Legal Codification: From Enlightenment to 19th Century Europe
Encoding
Encoding is intrinsic to the legal culture that developed on the European continent, due to the importance these countries place on law. Codification is the quintessential expression of law as conceived during the nineteenth century.
1. Roots and Content of the Ideal Encoder
Codification’s roots lie in assumptions crucial for its consolidation. It results from several factors, three being decisive:
- Legacy of Rationalist Natural Law:
- Conceptual Postulates: Natural rights derived from human reason, conceived as universal and eternal. This implies a positivist view of natural law.
- Methodological Principles: Led to a systematic formulation of law, aiming for a complete, closed, and contradiction-free system. This philosophy underpins codification, making codes the expression of this ideology.
- Bourgeois Revolutions: These revolutions drove the enshrinement of a sound legal system, abolishing old regime laws in favor of laws serving bourgeois interests. Codes became the normative instrument for implementing this new legal order.
- Development of Nationalist Phenomena: The quest for national political unity required legal unification, achieved by replacing old regime laws with a single national code enacted by the legislature. Codes became instruments of national legal unification.
Codification results from the convergence of these three phenomena, expressing legal unity. In contrast, old regime law was:
- Extremely Confusing: A product of tradition, composed of layers of superimposed standards.
- Profuse: Consisting of numerous, often uncertain provisions.
- Incomplete: Rules were haphazard.
- Plural: Varied territorially and subject-wise.
The new legal model aspired to be:
- Clear: Concise, simple, accessible through reason.
- True: Certain, fixed, default, providing clear legal solutions.
- Full: Without gaps, anticipating all legal problems.
- Only: The same law for all citizens.
This model requires legal settings where law is the primary source, leading to a 19th-century exaltation of law—legalism—making law the sole source, seen as an expression of natural reason and the general will, formulated in codes.
3. The Path of Codification in Europe
Codification, the process of developing codes, spanned the 18th, 19th, and 20th centuries. It had distinct phases:
1) First Phase
Operating under the ancien régime during enlightened despotism, this phase involved reforming legislation and developing some codes. These ‘illustrated codes,’ like the Prussian (1794) and Austrian (1811) codes, were technical, redeveloping existing law within the rationalist natural law framework.
2) Second Phase
Beginning with the French codification, this phase marked a break from the past. Napoleon’s codification, notably the 1804 French Civil Code, served revolutionary ideals and the new socio-economic model. Opposition arose where revolutionary principles were rejected, as in Germany, where Savigny argued law derived from the people’s legal convictions and evolved slowly over time. Savigny opposed codification, prioritizing custom and legal scholarship, though his Historical School of Law later divided into Germanic and Romanist branches. Codification progressed where liberal principles were implemented.
3) Third Phase
In the late 19th century, codification resulted from legal science development, as seen in Germany’s 1900 civil code.
4. On the Meaning of the Code
Codification, epitomized by the French model, introduced a new approach to law production. Codes became unified, comprehensive, and exclusive sources of law for their respective branches. This is termed legalistic mysticism, legislative monism, or legal absolutism, where law is the sole source, excluding custom or tradition. Codification aims to reduce legal experience to a complete set of written rules.
Parliament becomes the central legal point, expressing the legislature’s will.
Final Considerations
Understanding Spain’s 19th-century legal order requires considering:
- The slow, unstable codification process, culminating in the 1889 civil code, which only partially applied due to maintained provincial rights.
- Traditional law sources (headings and the Newest Collection) remained, creating a disharmonious legal order characterized by:
- Accumulation: Old and new laws coexisted.
- Uncertainty: The effect of laws was unclear.
- Flatness: Hierarchy among laws was not enforced until late in the century.
This resulted in a jurisprudence-centered system, typical of traditional regimes. Spanish 19th-century constitutionalism, except for the Cadiz period and the Democratic Sexenio, followed a conservative liberal statism, where the constitution lacked supreme legal value until late in the century, hindering actual legal system changes.