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1 - The civil law in European codes

Published online by Cambridge University Press:  30 July 2009

Reinhard Zimmermann
Affiliation:
Director of the Max Planck Institute Hamburg, Germany
Hector L. MacQueen
Affiliation:
University of Edinburgh
Antoni Vaquer
Affiliation:
Universitat de Lleida
Santiago Espiau Espiau
Affiliation:
Universitat de Lleida
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Summary

The European codes: background and significance

I have been asked to discuss the civil law in European codes. This is not as straightforward a task as it may appear at first glance. We should, at the outset, therefore reflect on the background, scope and significance of the terms used in the title of my chapter. A code, or codification, in the modern technical sense of the word, is a peculiar kind of statute. Like all other statutes, it is enacted by a legislature, and its application is therefore backed by the authority of the state for which that legislature is competent to make laws. Its characteristic features are, firstly, that a codification must aim at being comprehensive. It has to provide a regulation not only for a number of specific issues but has to cover a field of law in its entirety. Secondly, a codification constitutes an attempt to present its subject matter as a logically consistent whole of legal rules and institutions. It provides both the conceptual framework and intellectual fulcrum for any further doctrinal refinement and judicial or legislative development of the law.

Codification, as outlined in these few sentences, is a specific historical phenomenon that originated in late seventeenth- and eighteenth-century legal science. It was an enormously influential idea, that managed, within hardly more than 150 years, to recast the entire legal tradition on the European continent. It was much less successful in England.

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Publisher: Cambridge University Press
Print publication year: 2003

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