Harmathy 39;s Ten Rules
Rene Seiler
The role of civil law in the legal system is closely connected with the role of the state. Although the law of commerce developed outside seigniorial courts for a long time it became a part of state law due to a great extent of the mercantilist policy. 4 From the point of view of the present paper the general analysis of the development worked out by Heckscher can serve as a basis. Heckscher has emphasised the importance of the rise and development of the state in the economic development. As he put it: the state was both the subject and the object of mercantilist economic policy. The state was an agent of a unified economic sphere. 5 Mercantilism achieved the more in France and the less in Germany among states of Western Europe. Mercantilism did not mean, however, strong state activity in economic affairs, but private initiative was decisive, stimulated and directed by government measures. 6
A fundamental change started in the 18th century. There was an important transformation in economic organisation, specialisation of labour, change of technology, growth of population, overseas trade. Considerable differences evolved in Europe: Holland, England and France were the leading countries. 7 The changes meant introduction of new goods, new method of production, opening of markets, new sources of raw materials, organisation of the economy and need for credit. The transformation needed proper social environment and legal, political system as well. 8 Mercantilist approach was replaced by the so-called classical economic theory concentrating on individuals shaping their own ends and having a poor opinion of the wisdom of government. 9 Only a limited role of the state was admitted by Adam Smith who was a leading theorist of the period. According to him taxes, privileges, monopolies instituted by law hindered commerce. His main thesis was that it is by no means certain that an artificial direction by regulation is likely to be more advantageous to the society than that into which it would have gone of its own accord. 10 Nevertheless he admitted that different kinds of state activity (such as maintaining order, enforcing contractual obligations) were conditions of commerce. 11
3. Continuing changes of technics, demographic trends, structure of labour force, new conditions of life led to transformation of the social structure and of the ideology prevailing in the society. The changes required new solutions in the legal field, too. 12 In different European states codification started in the 18th century but the important codes were enacted in the 19th century. England was an exception as no civil code was enacted.
The legal basis of the civil codes was similar: the Roman law tradition. The political, social and economic background of the codes was, however, different. In the codes of the 18th century the political reason was prevailing: unifying, simplifying and rationalising legal rules of the state. This tendency could be observed in Prussia and the first period of the preparatory work in Austria. 13 The elaboration of the Austrian civil code was long and prevailing political concepts changed during this period, partly under the influence of the fear of the effects of the French revolution. 14 At the very beginning the main purpose of the codification was unification of legal rules in countries belonging to the Habsburg Empire, simplifying the administration of justice and, in addition, serving interests of trade. 15 The Habsburg Empire lost a considerable part of its territory during the 19th century; nevertheless, the aim of the unification of legal rules in different countries of Europe remained. The Austrian civil code influenced even rules of countries not belonging to the Austrian ruler. 16
4. The tendency of unification of legal rules was present in France, too since the modern state started developing and centralisation of power was growing in the 17th and 18th century. Different privileges of the feudal system were, however, serious obstacles to the general unification of law. 17 The diversity of legal rules in different parts of France hindered the development of trade. In addition, the existing law reflected the feudal system characterised by privileges not only of the king but those of the aristocracy and of the Church. Political elements of the old system were swept away by the revolution but the establishment of the new unified legal system could not be established immediately. Unification of civil law rules was achieved only by the Civil Code of 1804. 18 Social and economic relations transformed after the revolution profoundly and developed in accordance with the Code so that returning to the uncodified system of the pre-revolutionary period would have caused serious problems in social and economic life. Therefore, the application of the Code was maintained by the Charter of 1814, even after the restoration of the power of the king, with the exception of the rules concerning divorce. 19
5. The Prussian code of 1794, the Landrecht was more than a civil code. It embraced general rules of social life of an old social-economic-political system. It was characterised by Coing as last will of a system of the past. 20 In contrast, the French Civil Code was worked out in the early 19th century in a period close to the revolution when great political, social and economic changes took place.
After the downfall of Napoleon a loose cooperation of the different German States, the German Confederation was established. Conditions of the unification of the German states were not yet present. By that time there was, however, a need for unifying rules of economic contacts. In 1834 unification of tariffs was accepted in the framework of Zollverein. Efforts were made to work out common rules of commercial law and by 1861 the draft of a Commercial Code was prepared. The code was enacted at first in Prussia in 1861 and later on by other German states, too. 21
The decision concerning drafting a unified German Civil Code was made closely connected with the grounding of the unified German state. The original concept of the constitution of the German Empire contained the aim of the unification of the rules concerning the law of obligations only. As a result of political battles, however, the competence of drafting work was enlarged to the whole field of the civil law as it was understood in the civil law theory of the 19th century. Consequently drafting work covered family law, land law and law of succession, too. After political struggles the drafting work resulted in a comprehensive code in August 1896 which entered into force on 1 January 1900. 22
The German Civil Code was enacted nearly one hundred years after the French Civil Code. During this period society, economy changed considerably in German states too. The code was an important achievement from the point of view of politics, of the creation of a unified state. It was, however, in the words of Wieacker a late born child as it did not reflect social and economic conditions of the end of the 19th century. 23
8. Social and economic factors of the development can help to get a better understanding of the legal development. An important element of the transformation of economic life was money. Even in the 18th century the typical form of trade was exchange of goods. Paying money had a role only when the difference of value of goods exchanged was considerable. Money was usually not possessed by participants of exchange of goods. In addition, different kinds of money were accepted in a given country. Paying by check became generally accepted in England only in the 18th century. 28
The role of work force has got great importance in the economy and for understanding legal solutions. In the often quoted work Polanyi has stressed that studies on money, work force and land cannot be limited to economics. Social relations are to be taken into consideration as well. He emphasized that regulation by the state had important role in connection with relationships concerning labour force, money and land. Self-regulation could not have decisive role. 29 In general, it has also been stated that England was the only great nation to embrace free trade wholeheartedly. All other nations displayed tendencies toward free trade for some periods and only to a greater or lesser degree. Free trade was in reality but an element of a comprehensive system of economic policy. In different countries different policies can be found as a result of different social conditions. Different economic structures and conditions changed even in the same country at different times. 30
Hicks has pointed out that principles of non-intervention did not cover law and state in the classical economic theory. During the 19th century more and more exceptions were admitted to the principle of non-intervention in other fields too and state intervention got importance for maintaining stability or in the interest of economic growth. 31
9. As a result of the economic, social and political transformation in the 18th and 19th centuries the role of the bourgeoisie has changed and its consequences were reflected by the legal systems as well. Recognition of liberty of economic activity, abolition of privileges were examples of the changes. State activity and civil society became more and more separated. Public law concentrated on maintaining law and order, while the main field of interest of civil law was the rules of the game of the functioning of economy and society. In several European countries important political question and aim was unification of different parts of the given country, creating a unified state. Codification of civil law served the interest of the unified state, too.
10. At the end of the 18th century and beginning of the 19th century England, France and Holland were the richest countries but the Holland economy deteriorated in a short period. In England the industry developed fast, the number of population living in cities increased; there was a structural change in the pattern of economic activity, foreign trade had an important role in the development. 32
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