Book Legal History Chapters 1 - 2

Contents
I CODIFICATION.......................................................................... 5
1 Definition ................................................................................................. 5
2 The Legislator ........................................................................................... 9
3 The Judge ................................................................................................16
Recommended reading....................................................................................24
II CODIFICATION AND NATURAL LAW ...........................25
1 Declaration of Independence...................................................................25
2 Ius civile and ius naturale ........................................................................30
3 Positivism and natural law.......................................................................31
4 Ius gentium and ius naturale ………………………………………………………………. 34
5 Natural law in the Middle Ages ...............................................................35
6 Hugo Grotius and natural law ..................................................................37
7 The Age of Reason ...................................................................................40
8 Rousseau and the ‘contrat social’ ....................................................43
9 ‘Vernunftrecht’ .......................................................................................49
10 Natural law and aspirations to codification .........................................53
11 Concluding remarks .............................................................................58
Recommended reading....................................................................................61
1
III CODIFICATION AND ROMAN LAW ............................. 62
1 Imperium and lex .................................................................................... 62
2 Patricians and plebeians ......................................................................... 65
3 Civil law and praetorian law .................................................................... 70
4 Republic and Empire ............................................................................... 73
5 Imperial law and the law of jurists .......................................................... 75
6 Old and new Rome .................................................................................. 79
7 The Emperor Justinian (527 – 565) .......................................................... 82
8 The East Roman, i.e. Byzantine Empire ................................................... 99
9 Ottoman rule and the Kingdom of Greece............................................. 101
Recommended reading ................................................................................. 104
IV CODIFICATION IN ITALY .............................................. 106
1 Justinian’s codification in Italy .............................................................. 106
2 Tribal law and customary law ............................................................... 110
3 Feudalism, the feudal system and feudal law........................................ 114
4 Renovatio imperii.................................................................................. 118
5 Roman law and its glossators ................................................................ 121
6 Ordinances and commentators ............................................................. 132
7 Canon law ............................................................................................. 138
8 Revolution, restoration and codification ............................................... 160
V CODIFICATION IN FRANCE ............................................ 172
1 Emperor and king .................................................................................. 172
2
2 The King as Emperor in his kingdom ...................................................... 178
3 The parliaments (courts of law)............................................................. 184
4 ‘Mos Gallicus’ versus ‘Mos Italicus’ ....................................................... 186
5 Legal unity and legal diversity ............................................................... 190
6 Revolution ............................................................................................ 194
7 The dissemination of the Code civil ....................................................... 227
8 Concluding remarks .............................................................................. 229
VI CODIFICATION IN THE GERMAN COUNTRIES ...... 233
1 The Western Roman and Eastern Roman emperors .............................. 233
2 Roman Emperor and Roman law ........................................................... 241
3 The Habsburgs as Roman emperors ...................................................... 242
4 The Allgemeines Landrecht für die preussischen Staaten (ALR) ............. 246
5 The Allgemeines bürgerliches Gesetzbuch (ABGB) ................................ 256
6 The end of the Holy Roman Empire of the German Nation.................... 259
7 The fight for a national German codification ......................................... 262
8 Unification by ‘iron and blood’ .............................................................. 273
9 State unity and legal unity .................................................................... 279
10 Begriffsjurisprudenz versus interessenjurisprudenz .......................... 282
11 Codification and ideology .................................................................. 287
VII CODIFICATION IN THE NETHERLANDS .................. 299
1 Burgundy and the Low Countries .......................................................... 299
3
2 The Republic of the United Netherlands ............................................... 308
3 Revolution, Restoration and Codification .............................................. 323
4 Codification and Recodification............................................................. 340
VIII INSTEAD OF CODIFICATION ........................................ 346
1 Common law and civil law ..................................................................... 346
2 Common law and equity ....................................................................... 358
3 Common law and statutory law ............................................................ 372
4 ‘Law reporting’ ...................................................................................... 380
5 ‘Stare decisis’ ........................................................................................ 383
6 The Anglo-American law ....................................................................... 389
IX NATIONAL CODIFICATIONS AND EUROPEAN LAW398
1 The European Commonwealth .............................................................. 398
2 The Council of Europe and the ECHR ..................................................... 401
3 The European Union, Community law and the European Court of Justice412
4 Concluding remarks .............................................................................. 429
4
I Codification
1 Definition
‘A complete digest: such is the first rule. Whatever is not in the code of laws,
ought not to be law. Nothing ought to be referred either to custom, or to
foreign law, or to pretended natural law, or to pretended laws of nations.
Does the legislator who adopts, for example, the Roman law, know what he
does? Can he know it? (...) The compilers of the Justinian code, instead of
making the legislator say I will, they make him every moment say, ‘It
appears to me’. The emperor so completely forgets his dignity as to say, ‘It is
thus that Titius or Sempronius think’. Historical disquisitions ought not to
have place in the general collection of the laws. It is not necessary to cite
what the Romans did. If what they did was good, do like them, but do not
talk of them. The great utility of a code of laws is to cause both the debates
of lawyers and the bad laws of former times to be forgotten.’1
One of the distinctions regarding law that was used even in the time of the Romans
was that between written, ius ex scripto, and unwritten law, ius ex non scripto. Here,
they referred to the Greeks, who made the same distinction.
‘However, our law is fixed, either by text documented on paper or by the

unwritten text; as with the Greeks, some laws are written, others
unwritten.’2
It almost goes without saying that unwritten law is older than written law. The need
to record the law comes from the need for legal certainty. People need to know where
they stand and hope to obtain this by recording legal rules, so that at all times they are
able to read what the law entails. Not every record of the law is what we call a
codification. The term codification is relatively recent and dates from the time of the
Enlightenment; the word was first used by the Englishman Jeremy Bentham (1748-
1832). Even so, we chose the modern term codification as a guideline for this book
because it helps us get to grips with the complexity and limitlessness of the history of
law. By describing the background of codifications through different times and places,
1 Jeremy Bentham, ‘A General View of a Complete Code of Law’, The Works of Jeremy Bentham III,
Edinburgh 1843, pp. 205-207.
5
we will try to give students a better understanding of the profession of jurist, with
what occupies a jurist, in the task of the legislator and of the judge, and how these
relate to each other. However, before we go into this, we first need to establish what
we mean by codification. We would like to suggest the following definition:
CODIFICATION IS WRITTEN LAW, TO WHICH THE GOVERNMENT GIVES

EXCLUSIVE VALIDITY ON ACCOUNT OF ITS AUTHORITY; THIS
EXCLUSIVITY MAKES THE LEGAL RECORD A COMPLETE ONE.
There are three characteristics that we therefore consider essential for a codification;
if one of these is missing, then it cannot be called a codification. These characteristics
are:
a. a government that exerts authority over its subjects
b. a written law
c. the completeness of that law, achieved through the authority of the government,
which grants that law exclusive validity.
Over the course of this book, we will attempt to clarify these characteristics, about
which a lot can be said. We will limit ourselves here to some introductory remarks.
First of all, a codification is not conceivable in a society that does not (yet) have a
government. For instance, according to the Roman writer Tacitus, some Germanic
tribes would not have had a government except in times of war. If there is a
government, but it does not exert any real authority over its subjects – for instance, a
government in exile – then a codification created by this government has no validity.
Almost always, a government is considered a secular institution. However, a church-
based government is also possible. For instance, the Codex Juris Canonici could be
seen as the codification of the ecclesiastic (canonical) law of the Roman Catholic
Church, valid for the ‘subjects’ of that ‘government’, i.e. for the members of the Roman
Catholic Church.
While the observation that a codification requires an authoritative government, it is

not its ultimate goal. For a codification to be effective, the citizens will have to accept
the government’s authority. Here we have encountered a foreseeable problem. Not
every citizen will accept the government’s authority, especially if the laws that are
promulgated by the government infringe on that citizen’s perceived notion of
freedom. In a broader context it raises the question: why should the minority be
2 Inst. 1,2,3: Constat autem ius nostrum aut ex scripto aut ex non scripto, ut apud Graecos: τῶν νόμων οἳ
μὲν ἔγγραφοι, οἳ δὲ ἄγραφοι.
6
bound by the rule of the majority? It was in the Age of Enlightenment that this
problem was made prominent, when every citizen was considered to be an individual
who could determine his own particular will in natural liberty. The theory that was
then proposed to solve this problem is still in use today. It was not a new theory, by
the way, but it gained recognition from the work of Jean-Jacques Rousseau (1712-
1778). He considered the subordination of the individual to the community to be the
result of a tacit contract that subjects concluded with one another, in which every
individual’s particular will is voluntarily placed under the general will of the
community, la volonté générale. This contract was called le contrat social, we refer to it
as the social contract. Literally Rousseau wrote: ‘What man loses by the social
contract is his natural liberty, what he gains is civil liberty.’3 By means of this trick the
minority places itself under the authority of the majority and becomes bound by the
laws that are promulgated by that majority.
The second characteristic mentions ‘written law’. Therefore, an unwritten codification

is not possible. The written regulation includes either the complete law or a particular
field of law, e.g. criminal law, civil law, maritime law, etc. Although every codification
is an act of legislation, not all legislative activities are codifications. The preparation of
the state budget, a regulation of transitional law, the replacement of one statutory
article by another, none of these are referred to as codifications, although the change
in the employment contract law of 1907 is. Ultimately, the dividing line between
legislation and codification is extremely hard to draw, and the distinction between
them is not fundamental. The word codification is reserved in the literature for a
particular, confined area of law and this is how we will use it. In this book we will also
focus on just one field of law, private law, also known as civil law.
The final characteristic is related to the second and may well be the most important. A
record of law is only a codification if it is complete; that is to say, other than which no
other law applies in the same field. The pretence of completeness can never be given
by a private person: that is why the recording of law must be elevated to codification
on the authority of the government. In other words, the authority of the government
grants completeness to the collection of written laws and this is what makes it a
codification. The completeness characteristic needs some further explanation. It is
possible to wonder how a code that was often created many years ago can be
‘complete’. It can hardly be the case that the legislator could have anticipated
everything that may happen in practice. Part of the Dutch civil code dates from 1838,
i.e. from before the invention of the automobile, the television and the computer. What
3 J.J. Rousseau, Contrat social, I, 8: Ce que l’homme perd par le contrat social s’est sa liberté naturelle, ce
qu’il gagne, c’est la liberté civile.
7
then does it mean when we write that this part, too, is ‘complete’? This question needs
to be asked in more general terms and is related to the philosophy of law. How can we
‘deal’ in this day and age with an outdated text, and how did our ancestors do so in the
year 1800, using texts written in around 200 AD and codified in 533 AD? What does
such a text really mean to us? At first sight, the answer to this question is
disappointing: such a text does not really mean anything to us, and nor does any other
text. Like any spoken or written text, written codes of law need to be interpreted; only
through interpretation do they gain meaning or validity; without explanation, the
spoken word is a meaningless sound, the written word an inkblot. We generally
achieve that interpretation subconsciously; we hardly realise that an explanation has
taken place when we attach to the word ‘dog’ an image of our four-legged friend. Yet
this is what really happens; this is evident from the fact that I have chosen just one
particular meaning of the word ‘dog’: I am only thinking of the barking animal and
have excluded the dogfish and the hot dog.4 The latter two are not what you think of
when encountering a sign ‘No dogs allowed’. Even so, interpretation has occurred. For
instance, a Frenchman who does not know any English will not connect any image to
the combination of letters that make ‘dog’, whereas he may have a completely
different image with a word that is written the same in English as in French but that
has a different meaning, such as the word ‘grave’: burial pit / serious.
Explaining, then, is giving meaning to something. The listener and the reader give
meaning to the text they hear and see. The reader will have to constantly translate the
text, i.e. explain the text, even if his first language is the same as that of the writer. In
other words, there is no fundamental difference between translation and exegesis.
Every text is by nature open to multiple interpretations, and ultimately there are as
many ‘meanings’ of a text as there are people. Of the countless translations into Dutch
of, for instance, the Iliad, no two are the same word for word. Even the punctuation is
of critical importance for the understanding of a text. Almost always, one and the same
text will be interpreted differently by different people. Eventually it is the diversity of
people, not the text, that creates a multitude of interpretations, and therefore
confusion. If a writer is to avoid confusion, he will have to compose his text in such a
way that as many people as possible will give the same meaning to his words. The
influence of the writer is greater the better he succeeds in capturing his meaning in
the words he chooses. To achieve that effect he must picture in his mind’s eye the
reader of his works. It is the reader who judges the writer’s quality. The reader, as
well as the viewer of a work of fine arts, the listener to a piece of music etc., will
always give his own meaning to the created product and often will not take into
4 H.J. Scheltema, Inleiding tot het Romeinse Recht [Introduction to Roman Law], 1984, p. 15.
8
account the meaning of the ‘creator’. The meaning of the creator is not as relevant as
the meaning the viewer gives it, unless you are actually looking for the meaning of the
maker, such as when a harassed student at secondary school is asked what did the
writer mean. The latter activity is a typically historical one and the answer to the
question can only be given by approximation. In some cases, the creator of a work of
art that is rather inaccessible will explain the meaning of the work of art in writing,
but ultimately the viewer decides whether the creator has achieved his aim; he is the
one who explains the work. And so we have reached the conclusion that no text can be
without explanation and that there is a certain tension in the relationship between the
writer of the text and the interpreter of the text. In a codified society this relationship
is formalised; there is an official, authoritative author – the legislator – and an official,
authoritative interpreter of the text – the judge. We will now look more closely at the
position of each.
2 The Legislator
‘By substantially simplifying the Book of Customs, left to him by his

ancestors, King Pausole eventually issued a code that consisted of two
articles and that at least had the privilege of speaking to the ears of the
people. Here it is in its entirety:
Code of Tryphême
I Do not harm your neighbour
II Having clearly understood this, do whatever you wish.’5
Above, we established that the interpretation of a text is a necessary condition to

bring that text to life. If the author of a text aims to eliminate diversity of
interpretation as much as possible, then high demands are made of his writing skills.
Sometimes the need for clarity is so great that the language is reduced to, for instance,
algebraic formulas or to the symbols of formal logic. The legislator cannot go this far,
however great his need for clarity. In the Netherlands, the legislator uses Dutch and he
runs the risk that his words can be interpreted in multiple ways. To limit that risk, his
language needs to be ‘dry’: he needs to avoid synonyms and loanwords and abstain
from using flowery expressions. Complete clarity cannot be accomplished as a matter
of principle. Many legislators have been led astray in this regard, especially during the
Enlightenment, when people were convinced they could make laws so clear and
5 Pierre Louijs, Les aventures du Roi Pausole, Paris 1946, p. 14.
9
complete6 that explanation would be unnecessary and a mechanical application of the
law would suffice. The judge, according to a famous passage by Montesquieu, would
be no more than a soulless creature, whose only task was to be ‘la bouche de la loi’, the
mouth of the law.7
‘One cannot yet speak of freedom if the judicial power is not separated from
the legislative power and the executive power. If it was connected to the
legislative power, the control over the lives and freedom of citizens would
be arbitrary, because the judge would also be the legislator. If it was
connected to the executive power, the judge would have the power of an
oppressor. But although the courts of law do not need to be connected, the
verdicts do need to be, to such an extent that they would never render
anything but the precise text of the law. It could happen that the law, which
is all-seeing as well as blind, would be too strict in certain cases. But the
judges of the nation are, as mentioned before, merely the mouths that speak
the words of the law; soulless creatures who can temper neither the power,
nor the strictness of the law.’8
Even though this view was recognised as unrealistic later on, even today people
sometimes make it seem as if a legal text or another text only needs to be explained if
it is ‘difficult’ or ‘ambiguous’. Like any other text, every law needs explanation, and it is
the interpreter who gives meaning to the law; in other words, determines its content.
He is not bound to the daily (conventional) meaning of words, nor to the intention of
the legislator, although, through his own free will, he will usually take this into serious
consideration. The legislator’s powers are limited; he can issue laws, but he has no
control over their future explanation. This has been troublesome for many legislators:
often a legislator would proceed to providing his own authoritative explanation.
Emperor Justinian,9 for example, explained his own laws in various decrees.
Authoritative explanation by the legislator is called authentic interpretation. Even so,
this does not help much because these interpretative laws themselves also need to be
explained. The interpreter always has the final say. Another course of action for the
legislator is to find the means to legally restrict the future explanation by the judge.
The most radical action is a total ban on any comment on the code. Emperor Justinian
is said to have imposed such a ban. In 1749, Frederick of Prussia prohibited any
6 For more about this material completeness, see pp. 231, 232, 236, 244 and 295.
7 For further information about Montesquieu, see pp. 47 and 181.
8 Montesquieu, De l’Esprit des lois, 1748, XI,6.
9 For further information about Justinian, see p. 74 ff.
10
comment on his code.10 The writers about the French civil code were also
apprehensive about comments. The first fearful sentence of the standard work of
Locré on the French Code civil of 1804 goes as follows:
‘This work is no commentary, if that word is assumed to mean explanations

that originate from the imagination and personal opinion of its writer. It has
justifiably been said about these commentaries, that they kill the law. They
obscure it through a mix of odd, unsubstantiated concepts. They have the
dangerous power to turn the clearest text in a problematic one and draw
doubts and questions from it. In such a case the law does not achieve its
goals.’11
It is clear that such a ban on commentary is nonsensical; without explanation a law is

no longer a law but simply a collection of inkblots.
Another of the legislator’s attempts to keep the danger of ‘damage’ to his code at bay is
one in which the judge is forced to ask the legislator for an explanation. For example,
Justinian ordered that the judges ask for an explanation from the Emperor in all cases
where the law required such an explanation. During the Enlightenment, such a
mandatorily prescribed explanation was called ‘référé législatif’. This construction of a
‘référé législatif’ is also unsound. That is, the judge decides for himself, by way of
explanation, whether the law should refer back to the legislator;12 furthermore, the
authentic interpretation in its turn also asks for explanation. A desire derived from the
same misunderstanding is to construct a code that is so ‘clear’ that it can be
understood by everyone, even the man in the street. It may be clear that the
comprehensibility of the code is determined by the interpreter and his level of
education. If he is illiterate, no code will be accessible to him. If he is an expert in law,
then he can explain an article that is clear to many laypersons in such a way that the
article becomes incomprehensible; usually he explains a complex text such that only
insiders can understand it. For instance, what can you do with a sentence such as in
article [= section; abbreviation art.]. 6:173 (1) BW: ‘The owner of a movable good of
which it is known that it, in case it does not comply with the requirements that one
can demand from the good in the given circumstances, puts persons or goods at
particular danger, is, when this danger manifests itself, liable, unless liability on
grounds of the previous section would have been absent if he would have known of
10 See p. 228.
11 J.G. Locré, Esprit du Code Napoléon, 1803, Tome I, p. 1.
12 The judge is free to decide to refer to the legislator. See for instance, the Fluorideringsarrest
[Fluoridation Judgment] HR 22-6-1973, NJ 1973/386. This is not mandatory; the Supreme Court could
have reserved the case for itself.
11
the danger at the time it came into existence.’ However, if you claim that the terms of
an article or contract are so clear that they do not need any explanation, then you need
to realise that this claim is in itself an explanation.13
The final word lies with the interpreter; he is the one who decides the content of the
legal rule, aided by his knowledge and insights. In the end, it depends on him, not on
the legislator, whether chance or justice will reign. For this reason, litigants need to be
wary of too optimistic an expectation of a codification. Many times in history a belief
was held in vain that the end to all problems would be found by writing the law down
on paper. This can already be seen with the oldest codification of Roman law in 450
BC. Part of the population, the plebs, left the city of Rome and only returned after the
patricians had solemnly sworn that the law would be written down. The result was a
complete legislation, written on twelve tables.14 However, since the rules of
explanation of this law were and remained only known to the patrician priest caste,
the plebs did not get what they had expected from the written law. That only changed
after a certain Gnaeus Flavius disclosed the secret explanation.15
Given what we have discussed above, our conclusion can only be that the function of
the codifier is limited, much more limited than has always been assumed. A legal
system in which there is no codification is certainly conceivable and possible; the
Anglo-American legal system is an example of this. When everything is analysed, then
for us, too, only a weak residue is left for the legislator. His most important role is to
authorise the code, to state that he, with his authority, declares that this particular text
is the source of (all) law and that outside this text, no other law is valid. Neither with
regard to the content of his legislation, nor the extent of it, is he bound to any rule. The
legislation can consist of just two articles, as the fictitious codification of le roi
Pausole; it can be wordy, such as the Prussian Civil Code of 1794;16 it can consist of
systematically ordered rules of law such as the codifications of natural law or of a
collection of practical cases, such as the Justinian Digests:17 ultimately, it is the
authority of the government and not the quality of the content that elevates a text to a
codification. For instance, on 23 February 1835, the mediocre manual the Hexabiblos
13 Consider, for instance, the Dutch in its decision of 13 March 1981, NJ 1981/635 (Haviltex): ‘that the
terms of the agreements are however clear and a pure literal explanation (...) does not leave any gaps in
the arrangement of the relations of parties’. The Dutch Supreme Court quashed this decision: ‘The
question of how in a written contract the relations between parties are arranged and whether this
contract leaves a gap that needs to be complemented cannot be answered solely on the basis of a pure
literal explanation of the conditions of the contract.’
The latter view does not only apply to the text of a contract, but to any (legal) text.
14 See p. 58 ff.
15 See pp. 61-62.
16 See p. 225 ff.
17 See p. 80 ff.
12
by the fourteenth-century jurist Constantinos Harmenopoulos came into effect as the
codification of the new kingdom of Greece; it was valid there for more than a
century.18 In the excellent book by Paul Koschaker, Europa und das römische Recht,19
the writer demonstrates convincingly that the reception (adoption) of Roman law in
Western Europe was not just caused by the excellence of this law, but also and
especially by the fact that it was considered the current law of the Christian imperium
romanum.
‘Even if Roman law was a hundred times more perfect than has been
claimed afterwards, still no student would have travelled to the glossator of
Bologna if it hadn’t been the law of the imperium romanum… The authority
of the Roman law was decisive here, not its quality.’20
For us it is no different, however disappointing this may sound to those who have the
highest expectations of a codification. By the way, the fact remains that the legislator
is obliged to create the best possible code, which in our culture means a systematically
ordered set of rules of law. Nor is codification useless and redundant, even if it is not
necessary for a good administration of justice. There are several purposes that are
pursued with the help of a codification. We have already pointed out the legal
certainty that it provides. This was especially needed in the area of criminal law: when
someone was sentenced, it was thought, this person had the right to know on the basis
of which legal regulation the sentence was administered. This justified desire is
expressed in the Latin sentence: nulla poena sine previa lege poenali, or, as article 1 of
the Dutch penal code says: ‘An offence is only punishable by the power of a legal
provision that precedes it’. This has advanced the codification of penal law.21
The second function of a codification is economic. Cross-border trade and money

transactions demand uniform regulations. European legislation with respect to the
European Union is therefore characterised by the fact that it deals in particular with
enterprise law and company law. In East and West Germany, too, legal uniformity was
first established in the area of commercial law.22 Finally, there is a political function.
Civil law in particular is an important way to forge and strengthen a slowly maturing
national unity; it is therefore often established during politically tumultuous times. ‘A
new civil code only emerges out of political pressure’, according to P. Scholten. 23 This
18 See p. 91 ff.
19 First published in 1947, fourth edition 1966.
20 Koschaker, p. 80.
21 See below p. 47 and p. 150 ff.
22 See for about this p. 252 ff.
23 P. Scholten, Gedenkboek BW [Memorial Book BW] 1838-1938, p. 30.
13
is what happened in France, the Netherlands and Germany, for instance. Would the
Netherlands have started a general revision of its civil law if the Second World War
had not occurred? In France, too, the idea of a general reform of the civil code has
been proposed, but the efforts to do so have in the meanwhile been suspended and
replaced by piecemeal changes to the code.24
A codification is not without meaning, just as a text is not without meaning, as long as
it is being read. A well-written text, just like a well-phrased statutory article, channels
the interpretation of the people, and the legislator needs to skilfully lead the flow
through a channel that is as narrow as possible. That is no mean feat; a good legislator
should formulate as clearly and comprehensibly as possible, should systematically
order articles, and should not draft casuistic but rather general articles of law. But we
would like to draw attention to that generally subconscious act of explanation which
is performed by every reader of a text. This very first step is often overlooked,
especially when it is said that an article of law ‘speaks for itself’. Of the countless
possibilities of interpretation, the conventional one, the ‘obvious’ meaning of the
words, is just one option, even if the most common one. No one text has just one fixed
meaning; no one word has just one possible sentence. Hundreds of people will, when
filling out a form, write ‘male’ or ‘female’ after the word ‘Sex:’. However, there will
always be a joker who writes ‘yesterday’. In short, essentially nothing that is written
speaks for itself. This realisation has far-reaching consequences. It means that we are
in principle free in our interpretation, that the meaning we attach to a text is
determined by the person who is reading that text. However, a personal interpretation
by an ‘ordinary’ reader is not likely to be generally accepted. It is a different matter
when the interpreter has official status and authority in his role of interpreter. In
addition, he has the freedom to attach to a text whatever meaning he sees fit. It is not
the quality of his statements but his authority that defines what is called positive law.
With this fundamental freedom of interpretation, he ensures that the codification
never contains any gaps. The codification is therefore always complete, that is to say,
inexhaustible.
It is often said that codification has restricted legal development, and subsequently we
conclude that because of this the ‘living’ law has become static, rigid, or even been
killed. Savigny25 commented on this aspect. In our opinion, the development of justice
after codification progresses at the same pace as before. Perhaps a judge will feel a lot
less free in the explanation of a recently written text straight after the introduction of
a law and scrupulously adhere to the conventional meaning of the words, but this does
24 See p. 209.
25 For further information about Savigny, see p. 241 ff.
14
not halt the ‘living’ development of justice. Certainly, codification is a fixing of the text,
but this is more like a photograph, which for just one moment literally fixes the
objects that are photographed, after which the daily routines are picked up again. This
snapshot of the law has significant consequences. From now on, everything that takes
place in the ‘living’ law must be related to this photograph of the law. From now on,
the decision in every case that occurs is forced to find backing in a text from the
codification; via explanation, it must be included in an article of the law. The validity
that the government granted the recording of Dutch civil law at the moment that the
clock struck its final stroke at midnight on the night of 31 December 1991 to 1 January
1992 (a true snapshot) has not lead to a halting of the development of the law, but
rather has ensured that from that moment on all expansion of the living law was
redirected to that point, where the law was fixed, via the prism of explanation. On the
authority of the government, codification is declared ‘inexhaustible’, which means that
at the same moment – i.e. 1 January 1992 at 0:00 hours – that same government asked
the interpreter to draw his statements from the recorded text of legislation. The
reason that it is really inexhaustible is – we would like to emphasise this once again –
that the interpreter is, in principle, free in his interpretation of the text and therefore
decides the meaning of the legal text. In a society with a codification, the jurist is
therefore always an exegete, who is closely related to the religious exegete: both
practise not so much ‘science’ as ‘scholarship’ and are concerned with the explanation
of a canonised text. In the methods of interpretation, the scholars of the first and
second faculty will recognise each other: in both cases, current issues of modern times
must be resolved with the help of a historical and outdated document, and, as we will
argue, in both cases there is the need for a ‘learned authority’ in order to counteract
the confusing multitude of interpretations. In the methods of fixing the text, the task of
the jurist to date the currently valid codifications from after the invention of the
printing press is easier than that of the biblical theologian, who, like a law historian,
needs to have solid philological knowledge.
At the end of this section we would like to summarise our findings. In essence, we
argue that the fictional legislation of ‘le roi Pausole’ (with just two articles) has as
much right to be called a codification as the recently introduced Dutch civil code (with
over 1500 articles). The difference – not fundamental – is that the judge in the
kingdom of Pausole has less guidance when applying the law to a concrete case than
the judge in the Kingdom of the Netherlands. In the first somewhat absurd case, every
resident of Tryphême will refer to these two articles, and the judge will need to
develop from these two articles a system of distinctions and terms that eventually will
look like that of our legislation. In such a case, the judge will carry out duties that in
the Netherlands are carried out by the legislator. In England the judiciary, supported
15
by the authority of the king or queen, has developed a system of common law on its
own accord. Formally there is one difference between England on the one hand and
the Netherlands and the kingdom of Pausole on the other. The English judge
determines the law independently; the common law of England is expressed by him
and covered by his authority. The judge of Tryphême, as well as of the Netherlands,
however, will present his statement as an explanation of the legal text. The judge is
not a formal source of law. The legislator has in principle no other task than to grant
its authority to a legal text and to elevate it to the only and complete source of law.
Every codification will therefore contain an exclusivity clause with which the
legislator indicates that only the authorised legal text may serve as the source of law.
The legal text has exclusive validity, in other words it is complete.
3 The Judge
‘And as to Mr Curdle (…) he had likewise proved that by altering the

received mode of punctuation, any one of Shakespeare’s plays could be
made quite different, and the sense completely changed; it is needless to say,
therefore, that he was a great critic and a very profound and most original
thinker.’26
As we have argued, every law needs explanation, and everyone explains the law
usually subconsciously. There are many possible interpretations, in theory as many as
there are interpreters. To organise the multitude of interpretations somewhat,
sometimes a useful division is made among the ways of interpretation. There is, for
instance, the literal rule or grammatical interpretation, where the meaning of the
words in daily usage is taken into account. As we will see later, this way of
interpretation is always utilised by the English judge. It is also possible to consult
parliamentary history in order to try to determine what the legislator meant when the
text was written; this is called statute-historical interpretation, not to be confused with
historical interpretation, which looks for the origin of a particular rule and can hail
back to, for instance, Roman law. The interpreter who utilises systematic
interpretation works very differently. He checks whether and how a rule fits into the
system of the law, how it relates to other rules, how facts that are to be assessed can
be fit into the system and can be construed as a legal concept. This brings us close to
the analogy, in which a rule that on the basis of its working and intention is not
applicable to the case that is being assessed is still applied because the unregulated
case looks like the case that is covered by the rule. A leap is made, as it were, in order
26 Charles Dickens, The Life and Adventures of Nicholas Nickleby, chapter XXIV.
16
to arrive at the solution. Finally, there is teleological interpretation – which is winning
in popularity – in which the objective of a rule is taken into account, and in which the
explanation is made subordinate to this objective. If the objective is broad enough, for
instance serving legal certainty or equality under the law, then we end up soon
enough at the principles of law that are the foundation of our rules of law as legal and
moral truths.
Whatever the division of the different methods of interpretation, it is important to

keep in mind that we are in principle free to choose any method of explanation and
that none of the categories discussed here are mandatory. In other words, there is a
multitude of ways to interpret as well as a multitude of interpreters, in principle as
many as there are people. To avoid the confusion that is inevitably created by this
great diversity, it is of the utmost importance to establish an authority that is the only
authorised interpreter of the law, for the purpose of all of those to whom the law
applies. The interpretations of all other parties, no matter how relevant, have no
authority. It is the government, the same government that grants the legislation its
authority, that establishes this interpretative authority and gives it its authority. In the
Netherlands, it is the judge who must administer justice according to the law, and
under no circumstances may judge the intrinsic value or fairness of the law (art. 11
AB). He may never, under the pretext of reticence, opacity or the incompleteness of
the law, refuse to pass judgement or he will risk prosecution on account of denial of
justice (art. 13 AB). He is also officially required to supplement the legal bases that
have not been supplied by the other parties (art. 48 Rv). This latter requirement
results from the adagium ius curia novit, the judge knows the law.
Due to this requirement to explain the law, which is legally imposed in several ways,
the law is never incomplete. It is possible to observe that the explanation of the judge
also needs further explanation, thus leading us nowhere. In and of itself, it is correct
that the words of the judge need just as much explanation as the words of the law, and
often the statements by the judge are indeed explained by legal scholars in the form of
commentary under a verdict or judgment. However, the conclusion that we do not get
anywhere like this is premature. Because we are taught from a young age to attach a
certain meaning to a certain word, a communis opinio is created with regard to every
word. Even then we should keep in mind that this intelligibility is the result of
language teaching that is the same for everyone. Although the law can sometimes
seem unclear, ambiguous and incomplete, this does not mean anything more than that
the conventional (agreed) meaning given to the text is insufficient. What we want to
make clear is that the conventional meaning is just one of many, and that in principle
everyone is free to attach a different meaning to a word than the one that has been
17
learned. This is the task of the judge in particular; he needs to use terms that are as
clear as possible, i.e. words to which as many people as possible attach the same
meaning, to derive the assessment of the case in question from the legal text, from
what is clear and unclear, from what is ambiguous and unambiguous, from the
complete and ‘incomplete’ passages. Under no pretext whatsoever may he refuse to
pass judgment; the possible pretexts that art. 13 AB gives are thus hollow given that
he is free in his interpretation and may diverge from the ‘normal’ meaning. For
instance, where in art. 124 (2) of the University Statute it states that a PhD ceremony
should take an hour, the judge explained that one hour can be interpreted as forty-five
minutes. Although in criminal law the phrase ‘he who’ (commits this or that crime
etc.) is used many times, the judge interprets ‘man’ to mean ‘woman’ too. In the
Belgian civil code, the word ‘emperor’ was replaced by ‘king’ only in 1949. This late
replacement was hardly necessary as the judge had already been explaining the word
‘emperor’ as ‘king’. And for instance, in art. 1336 (3) (Old) Dutch Civil Code (OBW), the
judge read ‘debtor’ while the official text read ‘creditor’, and in art. 1460 OBW,
‘creditor’ where the text read ‘debtor’. These mistakes in the OBW clearly show once
again how juridical explanation works. Soon after its introduction in 1838 everyone
noticed the evident mistakes, but no one was, or is, allowed to simply change the legal
text and cleanse it of inaccuracies. This is the prerogative of the legislator who, after
all, drafted the text. If the legislator refrains from doing so, this is not a big problem.
The judge explains: the word ‘debtor’ in art. 1460 means ‘creditor’. The current Civil
Code (BW) also contains a similar mistake. In art. 3:270 (1) ‘seller’ should be read as
‘buyer’. Therefore, in several editions, the text ‘seller’ (read: ‘buyer’) was printed with
this article. If we carefully check what this imperative ‘read’ involves, then we can
conclude that it does not say that we should process the letters differently – of course
everyone reads ‘seller’ – but that the word ‘seller’ means ‘buyer’ in this article.
Changing the text, however, is the privilege of the legislator, and he actually changed
the word ‘seller’ to ‘buyer’ by law on 11 June 1992 (Bulletin of Acts and Decrees (Stb.)
286).
For the sake of completeness, we would like to point out that none of this should
create the impression that the judge can change the meaning of words completely
arbitrarily. Every meaning that deviates from the accepted meaning must be justified.
We would like to argue here that the judge has the fundamental freedom to resort to
such a change of meaning. We would also like to stress that he has that far-reaching
freedom of interpretation only in the area of private law, the area that is discussed in
this book. In criminal law, his authority to interpret is much more restricted. There,
words in principle have the meaning that our society would normally assign to them
and that are recorded in dictionaries. In that regard, the Dutch criminal judge is more
18
like the English judge, who is also more limited in interpreting private law when
explaining a statute. A statute is not a codification – after all, England does not have
codifications – but a law that is given for a concrete part of justice. In the
interpretation of the text of such a law, the English judge cannot go beyond the
conventional meaning of the words. If he doubts the meaning of a word, then he has
just one, effective, tool: the English dictionary. This is a record of the accepted
meanings of every word. The English judge cannot go any further than this; he does
not have the freedom of interpretation of the continental judge, but he also does not
feel the pressure to fit his decisions within the bounds of an exclusively explained
legal text.
The stamp of completeness that the continental legislator administers on the

codification makes a legal text more special than any other random text. Not only does
it need explanation like any other text, but it is also now ‘sanctified’ as a legal text. The
fons omnis iuris, the source of all law, requires the judge to base his decision on the
terms of the law: everything must be drawn from the same articles. In this, the
legislator’s text differs from the judge’s text. The latter needs explanation, too, but it
does not serve as the germ from which all crops need to grow. For this reason, with an
interpretative text it is not easy to diverge from the conventional meaning of the
words, and the text will be read like any other. If something else is meant than
previously, this will be mentioned too. But in a legal text, even with a completely new
interpretation, the terms remain the same, such that with an unchanged text
completely new dogmas can be developed and a completely different positive law can
come into existence. The most famous example is probably the text of art. 1401 OBW
the substance of which was completely changed on 31 January 1919.27 Even so, the
text of the article remained unchanged. The judge interpreted the word ‘unlawful’ in a
different way, but left the text as it was. Of course, the judge has no authority to
change a legal text; he merely explains it. The judge is therefore not, as is often
suggested in textbooks, an independent source of the law, however many new legal
concepts he constructs through his explanations. In this regard, too, the position of the
judge in Anglo-Saxon countries is different.
As we have seen above, the English judge is not allowed to attach to the words of a
legal text any other than the traditional explanation. If the legal text is inadequate and
it does not say anything or not enough about the case that is submitted to the English
judge, he will put the entire law aside and will resort to the common law’s right of the
judge. There, he is not limited to any legal text but operates more or less
27 The Lindenbaum/Cohen ruling HR 31-1-1919, NJ 1919 p. 161. The new interpretation has now become
law in art. 6:162 (2) BW.
19
independently. In other words, he is not an interpreter but a – minor – legislator. The
expression ‘rechtsvinding’ (finding law)28 that is often used today applies more to the
work of the English judge than to the Dutch, although we believe the word ‘finding’ is
too passive a description of the activities of the judge. So how is legal uniformity
achieved in England if each judge can work independently? The uniformity of the law
in England is guaranteed through the stare decisis principle that forces the judge to
keep to his previous decisions (precedents).29 Because no case is exactly the same as
another, when assessing the precedents he will also need to make interpretations,
especially with the help of analogy. The highest tribunal of judges checks the rulings of
the inferior judge against the stare decisis principle. But the English judge has the
authority to issue an independent, new rule if, in his opinion, no precedent is
available. Dutch judges do not have this kind of authority; they can merely arrive at
new ‘law’ by interpreting the same text in a different way. A party is then authorised, if
it does not agree with the interpretation, to ask a different (higher) authority for a
new interpretation. Ultimately, the Supreme Court gives the final interpretation.30
Although the inferior judge will, in general, follow the explanation of the Supreme
Court, he is not forced to do so, which differs from the English situation.31 In principle,
every judge is free in his interpretation, and he can therefore persist in his
interpretation where this differs from that of the Supreme Court. He does run the risk
that his ruling be ‘broken’ time and again, and that he will be made aware of the
28 The term ‘rechtsvinding’ (finding law) was introduced in the Netherlands by P. Scholten and has become
very popular. It is a term, according to G.J. Wiarda, Drie typen van rechtsvinding [Three types of finding of
law], 2nd edition 1980, p. 31, ‘that encompasses both the strict application of the law and the
interpretation of the law, as well as the judgment on the basis of custom or equity, and thus filled a
terminological need that arose when the law lost its monopoly position in jurisdiction’. We consider the
term ‘rechtsvinding’ unfortunate. It is too romantic and is too reminiscent of ‘schatvinding’ (finding of
treasure). By diligent exploration, searching and digging, you find the law. ‘The law is there, but needs to
be found. The find contains something new’, according to Scholten (Asser-Scholten, Algemeen deel
[General part], 3rd edition 1974, p. 12). The thought is then, that the law may still be obscured and
hidden, but if you remove the obstacles and dig into the interior, you will find the law like you find a
pearl in an oyster. Such a natural law view underappreciates the law-creating labour of the judge. The
law is not found, it is made, again and again, through interpretation.
29 See below from p. 391 ff.
30 According to art. 99 RO, the Supreme Court can nullify actions, rulings and sentences, inter alia because
of violation of the law. Before 20 June 1963, the article read ‘because of violation of the code’. This
change does not mean that since 1963 the Supreme Court does not deem itself responsible any longer to
judge on the basis of the codified legal text, but that it now also tests against the regulations of
international private law, the law of nations, etc. In these cases, the Supreme Court is forced to attach its
ruling to unwritten rules. In the case of international law, ‘the idea that all law would be in the code has
been abandoned’ (Hugenholtz-Heemskerk, Hoofdlijnen van Nederlands Burgerlijk Procesrecht, 19th ed.
1998, p. 222), but not for national law.
31 N.K.F. Land, Inleiding tot de verklaring van het Burgerlijk Wetboek [Introduction to the explanation of the
Civil Code], 1910, p. 197: ‘The judge is therefore not bound to a ruling that he has made previously in a
similar case as for which his decision is wanted now. Neither is he obliged to follow rulings of other
judges, even if they are higher ranking than himself. Even with regard to the jurisdiction of the Supreme
Court, the judge is free; actually, it is possible that the Supreme Court will abandon a previously accepted
dogma.’
20
highest interpretation every time.32 The comparison with theology comes to mind
again. The Supreme Court is the highest scholarly authority for judicial matters in the
Netherlands, as is the Pope over all bishops in the Roman Catholic church. To avoid
confusion of interpretation, this scholarly authority gives to the biblical text the
interpretation with which a ‘simple’ believer should comply. The church has at its
disposal the means to exercise power (ecclesiastical and in former times worldly) to
preserve the official doctrine. The Protestant churches, which owe their origin and
multitude, among other things, to protests against the central doctrine, which they
found suffocating, have also not managed to escape one or more official interpretative
authorities.33 Here, too, the interpretation of a biblical text can change over the
centuries, so that it seems as if we are supposed to believe something different. Still, a
biblical text remains unchanged and is in absolute terms even more invariable than a
legal text. Other than the Bible, the text of a codification can be revised partially or in
its entirety through later modifications. For instance, the developments in the field of
employment contracts have not been left completely to the judge but arranged by
increasing the number of articles of the law. And after the Second World War, out of
three possible options, that is, the partial, technical or complete revision of the
codification of the civil law, the third option was chosen.
In summarising the arguments so far, we would like to underline the important role of
the judge: not only in a country like England, where the law has not been codified, but
also in a codified legal system, it is he who actually decides what is law. Through the
fundamental obligation to explain the codification on the one hand, and through the
fundamental freedom of explanation on the other hand, the judge cannot be subject to
any limitations, however much the legislator tries to constrain him.34 The judge is free
in the way in which he interprets the text, but has the obligation to explain the law or
risk prosecution on account of denial of justice. The judge is chained to the law like a
slave to a galley. In his explanation, the judge is more likely to call on the help of
32 See also the intermediate solution in de Loi du 1 Avril 1837, referred to in F.C. von Savigny, System des
heutigen Römischen Rechts, I, 1840, p. 328: ‘If the second judgement or verdict is granted cassation
because of similar motivations as the first, the Supreme Court or the court of law to which the case is
remitted conforms to the decision of the Court of Cassation with respect to the question of law that has
been assessed by the Court.’
33 Consider in this context the typical conflict of interpretation in 1926 between Reverend J.G. Geelkerken
and the synod of Assen of the Reformed Churches about the speaking of the snake in Genesis 3.
34 The main drafter of the current Dutch Civil Code (B.W.) Meijers, too, had the illusion he could restrict the
freedom of interpretation of the judge. For instance, at the presentation of his draft in 1954, he writes:
‘Just as this came about at the realisation of the French Code and our own Civil Code, here, too, it is
acknowledged that this draft of a new code is incomplete like any other and will turn out to contain gaps.
The manner in which these gaps need to be complemented will not be left entirely to the own judgment
of the interpreter of the law.’ (Parlementaire geschiedenis van het Nieuwe Burgerlijk Wetboek
[Parliamentary history of the New Civil Code], Alg. dl. p. 125). See for more about Meijers and the draft of
the Dutch Civil Code below, p. 301 ff.
21
interpretations handed to him by the lawyers of the legal parties than to make use of
high moral principles. The lawyer is expected to possess explanatory skills: if he excels
in his profession, he is often given the predicate ‘clever’ rather than ‘wise’. He is
obliged to explain the law in a biased way and in a literal sense; rather than weighing
interests, he represents just one interest. The personal conviction, the question of
what he personally thinks, plays an even smaller role for him than for the judge. He
focuses wholeheartedly on the technique of the juridical métier. He has a clear goal in
mind, that is, the interests of his client, and his ranking and interpretation of the facts
and the legal rules are secondary to this goal. But although he, too, is free to explain
the law as he sees fit, his interpretation has no authority. He always has to wait and
see whether the judge will agree with him, that is to say, accept his explanation, and
with every case he represents he takes into account the authoritative explanation of
the judge. The entire activity of the ordering of the facts that are known to him into
juridically non-relevant and relevant facts, the application of the latter to a particular
dogma of the law, researching applicable articles, the interpretation of those articles
in the interest of the case, accounting for the last official interpretation in a similar
case, the presentation of all this to the judge, etc. comprises the profession of lawyer in
the most typical legal profession.
The lawyer gives a certain interpretation of the legal text, like the judge, but in
contrast to the judge his interpretation has no authority. The judge has the power to
impose his interpretation on others. As we have argued, the continental judge has
freedom in the manner of interpretation, but we should not draw the incorrect
conclusion that the judge can change the meaning of each word as he sees fit. In the
justification of his ruling, the judge will have to accurately account for every change in
the meaning of a word. If he can reach an acceptable outcome by using the traditional
meaning of the text, he may not resort to an unconventional explanation of the text. He
cannot arbitrarily do whatever he pleases. But this discipline that the judge must
impose on himself, and against which he will be tested by the highest authority, does
not negate his fundamental freedom of interpretation. The ‘unlimited’ interpretative
possibilities of the judge carry advantages as well as disadvantages. The biggest
disadvantage is that the judge can explain the text according to the political opinions
of his time, however nasty they may be. For instance, the German civil code in the
1930s was explained with a national-socialistic meaning without any change to the
text itself. The vaguer, and often the more ethical, the terms in the legal text are – in
reason and fairness, to common consent, to decency, on the basis of good faith,
according to the obligation of morality and propriety – the more easily they form the
tools with which the law can be reinterpreted. The legislator does not have the power
to phrase the text in such a way that he can prevent possible undesired future
22
interpretations by the judge. The big advantage of unlimited interpretation is that the
meaning does not become fixed, but is always adapted to the period and
circumstances. In this way, a historical, outdated text can function as the foundation of
living law. Because of this unlimited explanation, the law does not age; it remains
young forever, at least as young as the judge considers it to be. Therefore, the law
knows no gaps, it is never incomplete, or, as an old saying has it, it is always speaking:
lex semper loquitur.
23
Recommended reading
G ENERAL LITERATURE ON L EGAL H ISTORY
- P.A.J. van den Berg, Codificatie en staatsvorming, Groningen 1996

- G.C.J.J. van den Bergh, Geleerd recht. Een geschiedenis van de Europese
rechtswetenschap in vogelvlucht, 4th edition, Deventer 2000
- John P. Dawson, The oracles of the law, 2nd edition, Westport 1978
- P. Gerbenzon, N. Algra, Voortgangh des rechtes, 6th edition, Groningen 1987
- J. Gilissen, Historische inleiding tot het recht (first part: Overzicht van de
wereldgeschiedenis van het recht), Antwerp 1981
- H. Hattenhauer, Europäische Rechtsgeschichte, 2nd edition, Heidelberg 1994
- G. Köbler, Lexikon der europäischen Rechtsgeschichte, Vom frühen Mittelalter bis
zum gegenwart, 4th edition, Munich 1998
- P. Koschaker, Europa en het Romeinse recht, (Th. Veen ed.), 4th edition, Deventer
1997
- P. Koschaker, Europa und das römische Recht, 4th edition, Munich 1966
- J.H.A. Lokin, Tekst en Uitleg. Opstellen over codificatie en interpretatie naar
aanleiding van de invoering van het nieuwe Burgerlijk Wetboek, Groningen 1994
- V. Piano Mortari, Gli inizi del diritto moderno in Europa, Naples 1980
- O.F. Robinson, T. David Fergus, William Morrison Gordon, An introduction to
European legal history, Abingdon 1985
- P. G. Stein, Roman Law in European History, Cambridge 1999
- F. Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd edition, Göttingen 1967
L EGAL T EXTS
- P. Scholten, Mr C. Asser’s handleiding tot de beoefening van het Nederlands

burgerlijk recht, Algemeen Deel, 3rd edition, Zwolle 1974
- J. Vranken, Mr C. Asser’s handleiding tot de beoefening van het Nederlands
burgerlijk recht, Algemeen Deel, Zwolle 1995
- G.J. Wiarda, Drie typen van rechtsvinding, 4th edition, Deventer 1999
- K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des
Privatrechts, 3rd edition, Tübingen 1996
24
II Codification and natural law
There is a contradiction in wanting to force Enlightenment

through legislation.35
(Suarez)
1 Declaration of Independence
In the early morning of 20 October 1740, Charles of Habsburg, the sixth Charles of the
ancient Holy ‘Roman’ Empire, Sacrum Romanum Imperium, died.36 With him died, in
the direct male line, the family that had provided the empire with its emperors since
the Middle Ages: the Habsburg family.37 In theory, Charles had been the sovereign
over all areas of the German states and even beyond (e.g. in large parts of Italy); in
practice, however, he reigned over a smaller area that included present-day Austria,
the Czech Republic, Slovakia and Hungary, as well as considerable parts of present-
day Italy and Poland. The future of the aforementioned areas – the ‘Austrian
hereditary lands’ – had worried Charles deeply during the last years of his life. He had
a relatively young heir who, in addition, was a female: Maria Theresa. The Emperor
held the anxious suspicion that the rulers of the neighbouring countries, believing that
a woman would not know how to defend herself, would pounce upon his daughter’s
territory as soon as he swapped the secular for the eternal. The Emperor believed he
had taken effective precautionary measures, but the path he chose was not very
realistic. He thought that the guarantee by a large number of European monarchs to
make a case for the uninterrupted succession of Maria Theresa in the Austrian
hereditary lands would be sufficient. The content of these treaties, agreed by Charles
with various European monarchs – in those days treaties were made with rulers not
states – is known as the Sanctio Pragmatica (‘Pragmatic Sanction’). However, the
Emperor’s mortal remains had barely been interred in the Kapuzinergruft38 when one
of the guarantors of an uninterrupted succession, the King of Prussia, took possession
of Silesia, one of the Austrian territories. This flagrant violation of the Pragmatic
Sanction by Frederick of Prussia, who had ascended to the throne in that same year,
35 Aufklärung durch Gesetze befehlen zu wollen, enthält einen Widerspruch.

36 More details on p. 268 ff. and 277 ff.
37 This is discussed in greater detail on p. 277 ff.
38 The crypt in Vienna, in which most of the Habsburg emperors are buried.
25
1740, and to whom the philosopher Voltaire gave the epithet ‘the Great’, unleashed a
series of wars that became global conflicts, because the two main powers in those
days, Britain and France, fought each other whenever they could, and this over a
period of more than twenty years (with short breaks).39 These long and, even for that
time, extremely costly wars would have unpleasant consequences for France and
Britain. These two powers, sometimes in alliance with Prussia, other times with
Austria, fought each other across the globe. They fought from the Dutch East Indies to
the dark forests of North America and did not hesitate to involve the local people
(Indians and Native Americans) in the fight. Now, on the North American continent,
drastic political changes would unfold as a result of the on-going confrontation
between Britain and France, changes that would also determine the course of
European history.
It was the French, not the British, who had opened up the continent of North America;
the most developed settlement of European civilization was the French city of St.
Louis, from where French pioneers and trappers traversed further into the seemingly
endless mainland. The French possessed a large part of present-day Canada (Quebec),
and areas in the south and centre of present-day United States (Louisiana and other
states). Britain held a number of colonies (thirteen) on the East Coast, including
Virginia, Pennsylvania, Georgia and so on. From these areas, the combatants fought
each other in the most barbaric of ways; for example, the art of war was enriched by
scalping, a skill that Europeans taught their Indian allies in order to provide evidence
of the number of opponents killed. Details of military operations can remain
undiscussed; suffice it to say that in practice, the hostilities in North America ended
when the British general Wolfe captured Quebec from the French in 1759, without
which the French positions became virtually untenable. It is important to note that,
after the Peace of Paris in 1763, the French had to give up the entire North American
continent east of the Mississippi to Britain.40 Thus Britain won an enormous, albeit
largely unexplored area, and this – in the view of London – despite the fact that the
inhabitants of the thirteen colonies had contributed very little to the effort, especially
financially. The cost of the war had been huge and had indeed weighed heavily on the
‘Homeland’, and parliament – in Britain, parliament was in charge! – introduced
several new taxes on the American colonies in order to cover financial shortfalls. The
settlers objected, arguing that they would not pay taxes unless those who were being
levied were represented in parliament (‘no taxation without representation’). Indeed,
39 These years include the Austrian War of Succession (1740-1748) and the Seven Years’ War (1756-
1763). Incidentally, it should be remarked here that Russia manifested itself as a great power for the
first time in the course of these wars on the Western European continent.
40 So Louisiana, including New Orleans, remained French for the time being. In 1803 Napoleon sold these
French properties to the United States. See more about this below, p. 465.
26
the colonies were not represented in parliament in London, but – as London would
respond to American concerns – that was also not the case with the city of
Manchester, where taxes were also levied. The settlers would subsequently riposte
with the obvious remark that this too was malpractice and had to end as soon as
possible, and so on and so forth. This constant bickering created an atmosphere of
misunderstanding and irritability. In 1775, an incident occurred: British soldiers were
fired on near Lexington and some weeks later the armed insurrection against the
motherland became a reality.
It is noteworthy that the colonists initially did not know what to do with their
rebellion; many people did not want to break the final tie with Britain. However, this
all quickly changed through the hands of the journalist Tom Paine. Thomas Paine was
a jack of all trades and master of none. In Britain, he had been a corset maker, tax
collector (dismissed due to fraud), and retailer, and when his final business went
bankrupt, he decided to leave for America. There, he settled as a journalist and
published a pamphlet in 1776, in which he appealed to the colonists to loosen all ties
with Britain and to strive for independence. The pamphlet was published under the
title Common Sense and was immediately a huge success; it won over the settlers.41
The title of Paine’s pamphlet, Common Sense, is typical of the spirit of that time. Paine,
in support of his argument that independence was the only way for the settlers,
appealed to the common sense of his readers and not to precedents from history,
authoritative writers, or recognised rules of constitutional and international law.
People lived in ‘the Age of Reason’ and in such a time they needed no authority other
than appealing to human reason. Was this letting go of a way of thinking that took into
account all kinds of authorities really new and special? In the opinion of one of Paine’s
contemporaries, the Prussian philosopher Immanuel Kant (1724–1804), it was
indeed. In a famous and very readable essay entitled Was ist Aufklärung?, published in
1784, he noted the following:
‘Enlightenment is man’s emergence from his self-imposed immaturity (…).

Laziness and cowardice are the reasons why such a large part of mankind
gladly remain immature all their lives, long after nature has freed them from
external guidance. They are the reasons why it is so easy for others to set
themselves up as guardians. It is so comfortable to be immature. If I have a
book that thinks for me, a pastor who acts as my conscience, a physician
who prescribes my diet, and so on – then I have no need to exert myself. I
41 Tom Paine handed over the, for that time considerable, earnings from his writings to the American state
as a contribution to the war effort. The US did not show itself to be grateful: Paine died in 1809 as an
impoverished pauper, forgotten by the nation to whose creation he had contributed so much.
27
have no need to think, if only I can pay; others will take care of that
disagreeable business for me.’42
Humanity would – Kant thought – lapse into immaturity through its own laziness and
let itself be guided by various authorities (a minister, a doctor, a lawyer) without
consulting itself first. This had to come to an end. ‘Sapere aude: habe Mut dich deines
eigenen Verstandes zu bedienen’ (‘dare to know’). That was the battle cry that Kant
gave to the Enlightenment (‘Aufklärung’).
Paine’s pamphlet is a typical product of the Enlightenment and had a decisive
influence on the course of events in North America. He concludes his pamphlet with
the following appeal:
‘(Fourthly) – Were a manifesto to be published, and despatched to foreign

courts, setting forth the miseries we have endured, and the peaceable
methods we have ineffectually used for redress; declaring, at the same time,
that not being able any longer to live happily or safely under the cruel
dispositions of the B…h court, we had been driven to the necessity of
breaking off all connection with her; at the same time assuring all such
courts of our peaceable disposition towards them, and of our desire of
entering into trade with them: Such a memorial would produce more good
effects to this Continent, than if a ship were freighted with petitions to
Britain.’43
Paine’s call was promptly answered: on 4 July 1776 – since that moment, the US
national holiday – in Philadelphia,44 a statement was presented to John Hancock, the
president of the Congress of the thirteen colonies, by a committee of five people,
which included, amongst others, Benjamin Franklin, ‘the seizer of lightening from the
sky’,45 and the later president Thomas Jefferson: the ‘Declaration of Independence’. It
is mainly the work of the jurist Jefferson, representative of the state of Virginia. It
opens with a famous listing of some inalienable rights:
42 Immanuel Kant, Ausgewählte Schriften, Hamburg 1965, p. 1: ‘Aufklärung ist der Ausgang des Menschen
aus seiner selbstverschuldeten Unmündigkeit (…) Faulheit und Feigheit sind die Ursachen, warum ein
so grosser Teil der Menschen, nachdem sie die Natur längst von fremder Leitung freigesprochen,
dennoch gern zeitlebens unmündig bleiben; und warum es anderen so leicht wird, sich zu deren
Vormündern aufzu- werfen. Es ist so bequem unmündig zu sein. Habe ich ein Buch, das für mich Verstand
hat, einen Seelsorger, der für mich Gewissen hat, einen Arzt, der für mich die Diät beurteilt usw., so
brauche ich mich ja nicht selbst zu bemühen. Ich habe nicht nötig zu denken, wenn ich nur bezahlen
kann; andere werden das ver- driessliche Geschäft schon für mich übernehmen.’
43 Thom. Paine, Common Sense, (ed. Isaac Kramnick) Harmondsworth 1979, p. 111–112.
44 The temporary capital of the US; Washington had still to be built.
45 Franklin was the inventor of the lightning conductor.
28
‘We hold these truths to be self-evident; that all men are created equal, that
they are endowed by their Creator with certain inalienable rights; that
amongst these are life, liberty and the pursuit of happiness.’46
The Declaration then goes on to state that a ruler who violates these rights must be
put aside by his people. Now, what could these rights be based on? Were they created
by a legislative body? Were they recorded in international conventions? Were they the
impact of the established jurisprudence of an authoritative college of jurists? The
answer to these questions is in the negative: nowhere in any law or code is the right to
the ‘pursuit of happiness’ mentioned, let alone the right, or even – as is stated later on
in the Declaration – the duty, to put aside a government that breaches what we would
call ‘human rights.’47 From where then did Jefferson borrow these far-reaching
authorities?
It is mentioned in the Declaration that these often-cited rights are ‘self-evident’; they
therefore do not have to be ratified by a special legislator or judiciary, because
without that ratification – as if it concerned the laws of physics – they would also be
valid. Elsewhere in the Declaration mention is made of ‘the laws of nature’, which
suggests that nature itself is composed of a number of laws that are so self-evident –
‘naturally’ so – that they do not need any special mention. In other words, Jefferson
based his Declaration of Independence on ‘Natural law’. Now, what do we understand
by this natural law?
A few weeks before the proclamation of the ‘Declaration of Independence’,

Jefferson, together with some others, had drawn up another, no less famous,
document, the ‘Bill of Rights’ of the State of Virginia. This contained a list of
the ‘fundamental rights’ of the people of that state. The ‘Bill of Rights’ made a
big impression in Europe: it inspired, inter alia, the famous ‘Déclaration des
droits de l’homme et du citoyen’ of 1789,48 which, in its turn, served as a
model for the ‘Proclamatie der Rechten van den Mensch’, which was
published in the Dutch Republic in 1795. All these documents based the
fundamental rights of man on natural law, which gave all people of the
world a number of natural, self-evident rights. People had the right to revolt
against a reign that violated these rights. The natural, fundamental rights
46 It should be mentioned here that this statement, which has rightly become famous, did not extend to
black slaves or North American Indians.
47 The term ‘human rights’, ‘rights of man’, is an invention of Thomas Paine. In 1791, his book The Rights of
Man was published. It was written as a reaction to the Reflections on the Revolution in France by Edmund
Burke (see p. 433). As an aside we’d like to mention that even the name of the new republic – United
States of America – was derived from Thomas Paine.
29
derive their legal force not from the fact that they are included in political
documents such as the Bill of Rights or the Déclaration des droits de
l’homme, but are phrased in these documents more as already existing
rights: ‘all men are by nature equally free’ and ‘all men are endowed (…)
with certain inalienable rights’.
2 Ius civile and ius naturale
Even in classical Antiquity – since the times of the Greeks and the Romans – there has
been the belief that another legal order existed alongside and above the law created
by man: natural law (in Greek δίκαιον ϕυϭικὸν). For instance, the Greek philosopher
Aristotle described the relationship between the law that was created by the people
themselves and ‘natural’ law as follows:
‘Part of the legislation in a country is based on natural law and part on man-
made laws. Natural law is law that has the same legal force everywhere and
is independent of opinions; in the case of man-made law it does, in principle,
not matter whether it is such rather than so, but where it makes a difference
once it has been established.’49
The Romans, too, thought that not all law that was valid in a certain society at a
certain time consisted of rules of law that were recorded in laws or judicial decisions.
Not all law is, in other words, positive or ‘certain’ law. In addition, it was thought,
there is a large number of rules of law that are so ‘natural’, so self-evident, that they do
not need special ratification through a law or a judicial decision in order to be
considered valid. In other words, such rules of law derive their legal force from their
intrinsic rationality. The Roman jurist Gaius 50 expressed this thought as follows:
‘All peoples, who are being ruled by laws and customs, use partially their
own law and partially the law that is common to all people. Because what
every people has established as law for itself is particular to that people and
is called ‘civil right’ (ius civile), that is, the law that is typical for a nation. But
what is prescribed by the natural reason common to all people is adhered to
by all nations at all times and is called the ‘law of nations’ because all people
use that law. And so, the Roman people use partially their own law, and
48 More about this from page 229 onwards.

49 Ethica Nicomachea V,7,1134b; Aristotle (384–322 BC) was the teacher of Alexander the Great.
30
partially the law that is common to all people.’51
And thus the Roman doctrine of legal sources makes a distinction between rules of law
of specifically native origin (ius civile) and rules of the law of nations that were also
used in Rome and between Romans because they had universal validity (ius
gentium).52 It should be stressed that the Greeks and Romans, therefore, never
thought that the law that is valid in one nation is always limited to the borders of that
nation. That may be true for a number of rules of law, but certainly not for all of them.
For instance, the cities of Athens, Rome and Sparta each had their own ius civile, but
they shared the ius gentium with the rest of the then civilized world.53
With regard to the topic of this book, we should point out straightaway a
very practical consequence of this view that was universally shared in
Antiquity (and – as we will see – long afterwards). If, in Rome, proceedings
took place between people of different nationalities, or a legal issue was
raised with an international aspect, you often did not have to ask the
question – as is almost always the case now – which law was applicable.
Usually it would suffice to establish that the problem was not covered by the
specifically national ius civile, but by the law of nations, the ius gentium. A
choice between laws did not then need to be made; you applied your own
law, because this was the law of nations
In Roman legislative sources, the term ‘natural law’, ius natural, is often used instead
of the term ius gentium. This has caused a lot of confusion because the same term –
natural law (ius naturale) – has a special role in the antique philosophy of law. It is
recommended that this be kept in mind.
3 Positivism and natural law
A large part of the history of the antique philosophy of law is governed by a

fundamental disagreement about the nature of the law between the proponents of the
50 For more about him, see p. 101.

51 Gaius 1,2 (see also D. 1,1,9 (Gaius)): Omnes populi, qui legibus et moribus reguntur, partim suo
proprio, partim communi omnium hominum iure utuntur: nam quod quisque populus ipse sibi ius
constituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium civitatis; quod vero naturalis
ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius
gentium, quasi quo iure omnes gentes utuntur. Populus itaque Romanus partim suo proprio, partim
communi omnium hominum iure utitur.
52 Ius gentium literally means ‘the law of nations’, that is, the law that all nations have in common. This
must not be confused with international law, which refers to the legal relationships between nations. See
below, p. 51 ff.
31
‘Epicurean’ school of thought and that of the ‘Stoa’ or Stoicism. Stoicism derives its
name from the gallery of columns (Greek: στοά) that the city council of Athens made
available to the philosopher Zeno around 300 BC for the purpose of giving lectures
about his doctrines, which directed themselves mainly against the ideas of the
philosopher Epicurus (342–271 BC). Epicurus assumed, just like many centuries later
the English philosopher Thomas Hobbes (1588–1679) would, that the primeval state
of man would have been a bellum omnium contra omnes, a state of war of all against
all. Such a state would, he further believed, eventually have become unbearable,
because it would not be in accordance with the ‘natural’ laziness of man, which makes
him seek peace and avoid conflict. In order, therefore, to end the state of anarchy, man
would submit himself voluntarily to an authority accepted by all the people as well as
to its rules. Epicurean philosophy thus connects the creation of the law to that of an
authority. Therefore, it does not recognise any other ‘law’ than law that is directly
given by the authority. Law is, then, what is prescribed and enforced by government
bodies that are authorised to legislate – a king, a people’s council, a civil servant with
the authority to legislate. The Epicurean concept of law is therefore formal in nature.
Epicureanism answers the question of what should be considered ‘law’ not with
regard to the content but to the origin: ‘law’ is the rule of conduct created by an
authority, which is accompanied by a penalty by that same authority. When
establishing the content of its rules of conduct, the government would only be led by
the use, the utilitas. This was considered to be that which guaranteed the ‘happiness’
of as many people as possible. In other words, law would be no more than a means
through which, in the words of a modern utilitarian (Jeremy Bentham),54 ‘the greatest
happiness of the greatest number’ could be realised. The question of how this goal
could be reached – which is a question about the content of the law – is necessarily
determined by opportunistic considerations at a certain time and place. Thus it could
be necessary in a particular society at a particular moment in time to prohibit certain
behaviour under threat of severe punishment, while the same behaviour in a different
society at a different moment in time could be compulsory. In short, there would be no
rules of conduct with an absolute value, based on material grounds – that is, judged by
their content – or in themselves – that is, abstracted from a certain time and society.
Epicurus himself has described this as follows:
‘Law is not something that is absolute, but it is a kind of agreement that

people make over and over again in social relations to prevent people from
taking advantage of others or being taken advantage of.’55
53 See Inst. 1,2,2.

54 For more about Jeremy Bentham, see p. 431 ff.
55 Epicurus, Ratae sententiae 33.
32
Stoics fought with all their might against this positivistic concept of law. In brief, the Stoic
philosophy of law boils down to the following. The term ‘law’ cannot only mean what a
random government authority prescribes. The ‘law’ also needs to be judged in terms of
the level of fairness of its contents. The Roman philosopher, statesman and orator Marcus
Tullius Cicero (106–43 BC), whose mediation ensured the Stoic study of law, wrote about
this, turning against the Epicurean formal concept of law:
‘But if the law would consist of the orders of peoples, the regulations of
kings or the verdicts of judges, then it would be legal to rob, to commit
adultery or to produce false testimonies if these kinds of matters would be
approved by the masses.56 (…) And if everything, as they say, must be
measured by its use, then he who thinks it will benefit him, will neglect and
undo the law.’57
The question by what standard the ‘law’ must be measured then arises. Man would be
able to find that standard within himself, in his natural, innate, God-given reason,
ratio, that prescribes to man what law is; what he should do and should not do. ‘Law,’
Cicero writes elsewhere, ‘is the natural ratio itself.’58 Looked at in that way, law is not
something that is thus only valid when an authority prescribes that it is, nor
something that is made by people, it is rather a natural fact that you can find, through
reasoning, in yourself:
‘Law is the highest reason that is implanted by nature, and that orders what
should be done and prohibits the opposite.’59
And elsewhere
‘But of all that is covered in the discussions of learned people, nothing is

more excellent by far than the correct understanding that we were born to
justice and that law is not determined by human randomness but by
nature.’60
56 Cicero, De Legibus I,16,43: Quodsi populorum iussis, si principum decretis, si sententiis iudicum iura
constituerentur, ius esset latrocinari, ius adulterare, ius testamenta falsa supponere, si haec suffragiis
aut scitis multitudinis probarentur.
57 Cicero, De Legibus I,15,42: Et si, ut eidem dicunt, utilitate omnia metienda sunt, negleget leges easque
per- rumpet, si poterit, is, qui sibi eam rem fructuosam putabit fore.
58 Cicero, De officiis III,5,23: ipsa naturae ratio, quae est lex divina et humana.
59 Cicero, De Legibus I,5,18: lex est ratio summa insita in natura, quae iubet ea, quae facienda sunt,
prohibetque contraria.
60 De Legibus I,10,28: sed omnium, quae in hominum doctorum disputatione versantur, nihil est
profecto praestabilius, quam plane intellegi nos ad iustitiam esse natos, neque opinione, sed natura
constitutum esse ius.
33
The Stoic legal doctrine results in the recognition of a natural law, of a complete set of
rules of law that is valid – independent of time and place and even of sanctioning by
an authority – simply because of its content, its rational value. In other words,
Stoicism honours a material concept of law: ‘law’ is what is in its content in
accordance with human reason.
4 Ius gentium (law as applied by all peoples) and ius naturale (natural law)
The natural law considerations of Stoicism found notable confirmation in the Roman
doctrine of legal sources, which is undoubtedly much older than the legal theories
described above. It was obvious to a Roman jurist that not all legislation was recorded in
laws that were laid down by the authorities. That was the case only with a part of the
law, the ius civile; a large part of which, the ius gentium, did not need to be recorded in
laws. The reason for this was simply that the rules of law that form part of this were
also valid without special legal ratification, solely because of their rationality. Great
Roman jurists such as Papinianus and Ulpian would have thought it ridiculous, for
instance, to define in a law that a buyer is bound to buy at the selling price and that the
seller is bound to supply the sold goods. They felt that this was self-explanatory,
because reason demanded it. In respect of all of this, it should no longer be surprising
that Roman jurists tended to equate the concept of ‘natural law’ (ius naturale), derived
from the philosophy of law, with the complex of legislative rules known in legal
practice that are not typically Roman but rather supranational, because generally
applicable; that is, the ius gentium. Because of this, a complication arose that was
caused by the fact that the term ius gentium is purely factual, while the term ius
naturale has a strong moral connotation.
The Stoic legal doctrine leads to the testing of the applicable law to the
absolute – and therefore anything but morally neutral – norm of the ratio.
The question can be raised whether a law, coming from a government body
authorised to legislate, that is at odds with the ratio can be generally
compulsory. The Epicurean school would have answered that question in
the affirmative; Stoicism answered it in principle in the negative. However,
within the practice of Roman law, at no point in its history was the law
tested against higher principles of law, such as that of human rights, as
would have been the case had Stoic principles been taken into account. The
influence of Stoic beliefs only led to a more careful definition of the legal
terms in use.
34
Slavery was a legal institution that in Antiquity, without any exceptions, occurred in
all nations. The Romans, therefore, did not hesitate to include the related legal
concepts, such as the release of slaves and the related legal consequences, as part of
the ius gentium. But could such issues also be seen as part of the ius naturale, the
actual natural law, since ratio suggests that all people are free in their ‘natural’ state?
Such thoughts caused the Roman jurist Ulpian to issue the following statement about
the legal institution relating to the release of slaves:
‘The issue finds its origin in the ius gentium, since according to ius naturale all
people are born free and releasing slaves did not occur, since slavery was
unknown; but after slavery made its appearance in the ius gentium, the
privilege of release followed.’61
We can see that the Roman jurists had some trouble with the position of slavery and
the related rules of law, which was caused by the moral realisation that slavery is
contrary to natural law. So it could happen that in some cases the ius gentium was not
considered part of the actual natural law (ius naturale). This did not prevent Roman
jurists from using both concepts – ius naturale and ius gentium – as mutually
interchangeable, in general. However, the subtle distinction would in later times
become of great importance, because the fundamental subordination of the ius
gentium to the ius naturale was made on the basis of the distinction between the law
that everyone uses (the actual criterion) and the law that is demanded by reason (the
moral criterion). This idea played an important role in the doctrine of legal sources of
the Roman Catholic Church, which has adopted many of the Stoic ideas.
5 Natural law in the Middle Ages
The distinction between ius civile and ius gentium, which was used for centuries in the
Roman doctrine of legal sources, lost all practical meaning after the codification by
Emperor Justinian,62 which came into being between 526 and 533 AD, and in which
the complete Roman law – the ius civile as well as the ius gentium – was codified. Since
then, within the borders of the Roman Empire, only the ius civile was valid because all
of the law was included in a government-set legal code with exclusive operation, and
therefore all of the law, including the former ius gentium, had technically become ius
civile. Therefore, the Code of Justinian was known in the Middle Ages as the Corpus
61 D. 1,1,4 pr. (Ulpian, libro primo Institutionum): quae res a iure gentium originem sumpsit, utpote cum
iure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita: sed
posteaquam iure gentium servitus invasit, secutum est beneficium manumissionis.
62 For a more extensive discussion, see below p. 104 ff.
35
Iuris Civilis. There was no longer any need for an independent study of private law
based on a rational foundation, because rational law was deemed to be included in the
Corpus Juris Civilis. In the medieval faculties of law, natural law was therefore not
treated as a separate discipline, but preferably taught in connection with canon, or
church, law.63 Canon law considered natural law – which was of divine origin,
according to the prevailing view – as very important: for instance, the Corpus Iuris
Canonici, a medieval collection of rules of canon law,64 actually places the authority of
reason (the ius naturale) above custom, and even above positive law, including the ius
gentium:
‘Through its dignity, natural law simply transcends custom and law. Because
everything that is accepted by custom or has been written down in laws
must, if it is contrary to natural law, be considered as small and powerless.’65
It should be noted that this text, which has had an extraordinary impact on the
doctrine of legal sources in all European jurisdictions, including the English, speaks in
terms of a hierarchy of sources of law, in which primacy is accorded to the ius naturale
because it was understood as a law that was applicable everywhere and at all times,
brought to mankind by God. To this is inextricably connected the inference that all
other law can and should be tested against the standards of this ius naturale. Such a
thought was – as is stressed above66 – alien to Roman law, as ius gentium was placed
as a positive law alongside ius civile, and a possible conflict between ius civile and ius
gentium, i.e. between positive law on the one hand and ius naturale on the other hand,
had no consequences. The Roman Catholic Church linked its huge authority – still
undisputed in the Middle Ages – to the doctrine of legal sources in which ius naturale
was placed as a legal source above all others. At a certain moment in time, the Pope
derived from this the authority to submit all worldly law, from whatever origin, to the
test of natural law, because, as Gregory VII wrote,67 ‘the Lord says, “I am the Truth and
the Life”. He did not say, “I am customary law”, but “the Truth”.’68 In practice, this view
amounted to correcting the inequities of positive law. Natural law was, in other words,
the source of the famous aequitas canonica, the equity of canon law, by which the ius
strictum (the ‘strict’, i.e. the posited, positive law – the ius civile and the ius gentium)
was moderated, and which essentially is no different than the equity that finds its
63 For an extensive discussion on canon law, see p. 158 ff.

64 For more about this, see below p. 178 ff.
65 D. 8, p.c. 1: Dignitate vero ius naturale simpliciter prevalet consuetudini et constitutioni. Quecunque
enim vel moribus recepta sunt, vel scriptis comprehensa, si naturali iuri fuerint adversa, vana et irrita sunt
habenda. For more about this rule, see pp. 168 and 425.
66 See above, p. 51 ff.
67 For more about him, see below, p. 165.
68 D. 8, c. 5: Dominus dicit Ego sum veritas et vita. Non dixit, Ego sum consuetudo, sed veritas.
36
basis in the views of natural law.69
6 Hugo Grotius and natural law
The natural law views of Stoicism exerted a major influence on Western European
culture, not least because the Christian church adopted these views. Their influence on
the political theories of the Middle Ages must not be underestimated. For instance, no
one less than Saint Thomas Aquinas (1225–1274), the greatest theologian in the
history of the Roman Catholic Church, derived from it the right of citizens to rebel
against a king who, in our words, violated their ‘basic rights’, and even depose him. 70
This example clarifies the close relationship that has existed for centuries between the
theory of natural law and theology; the special position given by canon law to natural
law is merely a derivative of this. The connection created in the Middle Ages between
natural law, theology and canon law was only broken in the seventeenth century,
when natural law became a separate legal discipline, mainly due to one man, who was
thereafter called the pater iuris naturae, ‘the father of natural law’: Hugo Grotius
(Hugo de Groot) (1583–1645). In his main work, De iure belli ac pacis, ‘On the law of
war and peace’ (1625), Grotius posed his famous thesis that, even if there were no God,
natural law would still exist.71 This thesis explicitly recognised the independence of
natural law from the will of God. In addition, Grotius showed that with the help of
reason, that is, by natural law, an entire legal system could be built, for which there
was a great need. To this day, the De iure belli ac pacis is one of the most authoritative
sources of international law, which is the law that people (or, more correctly, nations)
69 More about this below, p. 169.

70 Thomas Aquinas, De regimine principum Cap. VI: ‘If a nation has the right to choose their king, then they
can justly depose that chosen king or limit his power when he abuses his royal power in a tyrannical
manner. And one should not think that such a nation acts in an unfaithful way by deposing the tyrant,
even if they previously had always subjected themselves to him; because he would have to blame
himself for the fact that his citizens did not keep their promise to him because in ruling his people he had
not acted as is required of a king’ (Si ad ius multitudinis alicuius pertineat sibi providere de rege, non
iniuste ab eadem rex institutus potest destrui vel refrenari eius potestas, si potestate regia tyrannice
abutatur. Nec putanda est talis multitudo infideliter agere tyrannum destituens, etiam si eidem perpetuo
se ante subiecerat; quia hoc ipse meruit, in multitudinis regimine se non fideliter gerens ut exigit regis
officium, quod ei pactum a sub- ditis non reservetur). It should be noted that St. Thomas confers this
right only to nationals of a king who was elected by his people (or their representatives), as, for instance,
was the case in his time with the emperor of the Holy Roman Empire. So, this did not apply to a
hereditary monarchy.
71 Hugo de Groot, De iure belli ac pacis, Prolegomena par. 11: ‘And what we have just remarked would still
be valid if we were to posit that no God exists or that human matters are not managed by Him,
something that cannot be stated without committing an enormous misdemeanour.’ (Et haec quidem
quae iam diximus, locum aliquem haberent etiamsi daremus, quod sine summo scelere dari nequit, non
esse Deum, aut non curari ab eo negotia humana).
37
must adhere to in their mutual exchanges.72 In particular, because of the great
authority of this book everywhere in Europe, natural law acquired a new meaning for
jurists: since the publication of De iure belli ac pacis, natural law has been taught as a
separate academic subject in the programmes of faculties of law. It is usually taught using
Grotius’s book.73
Hugo Grotius is interesting from another perspective too. In 1631, he published a little
book that he wrote during his imprisonment at Loevestein Castle. This was intended
as a textbook: the Inleidinge tot de Hollandsche Rechts-Geleerdheid (Introduction to
Dutch Law). The Inleidinge reveals a curious perspective towards Roman law. In the
course of his discussion of the sources of law that were valid in his time, Grotius had to
explain why in Holland at that time not only Dutch law, of native origin, but also law of
foreign origin, i.e. Roman law, was used. He argued:
‘When for certain issues no written land laws, charters or habits could be
found, lawyers have always been allowed to use their reason according to
their knowledge and equity. However, the Roman laws, including those used
by Emperor Justinian, have been thought to be full of wisdom and equity
and are therefore considered as examples of wisdom and equity and
accepted as law through custom.’74
It is clear that Grotius considered the ‘wisdom and equity’ of the regulations in the
Corpus Iuris Civilis as the foundation for what has been called their ‘reception’ in
Holland and – in addition – in the other countries of the Netherlands. This includes the
assumption that Roman law was also accepted because of its substantive qualities, i.e.
its qualities of natural law. This point of view leaves open the possibility for
substantive criticism of Roman law. After all, the answer to the question of whether a
certain rule from Justinian’s Corpus Iuris ultimately belongs to valid, accepted law can be
found by means of a rational, substantive review of that rule. In other words, Roman law
was only considered to be accepted in as far as it passed the criticism test of natural law!
This reveals what can rightly be called a ‘Copernican watershed’: in the days of Hugo
72 It needs to be said that the subject of international law, which deals with the rights and obligations in the
relations between peoples, is still practised largely on the basis of natural law. For instance, the trials of
German and Japanese war criminals after the Second World War were carried out on the basis of
violations of unwritten rules of natural law.
73 The first chair in natural law within a law faculty was offered in 1661 to the great German jurist Samuel
Pufendorf (more about him below, p. 68). Other universities followed this example. In the Netherlands,
Groningen was the first. The chair in natural law disappeared in the course of the nineteenth century, but
lives on in the chair ‘Introduction to law’.
74 Inleidinge I,2,22.
38
Grotius the viewpoint became increasingly accepted that Roman law did not take a
central place in the legal firmament with natural law floating around it, but rather the
other way around. Mainly because of the historical research of the French school, mos
gallicus,75 people became increasingly interested in the typically Roman nature of all
kinds of regulations in the Corpus Iuris Civilis. In other words, jurists started to realise
that many regulations in this Corpus originated in specifically Roman historical
developments and cultural customs. In other words, many regulations in the Corpus
Iuris Civilis were not completely timeless, as had been assumed for a long time: they
were tied to a place and a time! In addition, in many cases, different, more rational
solutions were possible than those offered by the Corpus Iuris Civilis. Those other
solutions could be found in local law – which was not subjected to much academic
research in the Netherlands at the time – and especially natural law, that is, these
solutions were made up freely.
Hugo Grotius himself has made suggestions on important points of private

law that deviate from the regulations in the Corpus Iuris Civilis. For instance,
his view was that if someone obtained ownership of goods with the co-
operation of the previous owner, for instance, through a sale, the ownership
would have transferred at the moment at which the previous owner
committed himself to pass the property to the new owner; according to
natural law a subsequent transfer of the goods (i.e. the delivery) would not
be necessary.76 However, Roman law stipulated that in such cases, the
ownership is transferred only when possession has been taken of the goods –
delivery (traditio) – and that ownership can never be obtained merely
through the act of agreement.77 In the Inleidinge, Grotius points out the
controversy between his own point of view and that of the Corpus Iuris
Civilis, but chooses for the valid, positive Dutch law, rather than the Roman
regulation.78
Initially – to which the Inleidinge bears witness – this critical view of the Corpus Iuris
Civilis did not lead to any radical deviations from Roman law as, of course, it was full of
‘wisdom and equity’. However, the influences of the philosophical movement in the
seventeenth century, rationalism, gradually became stronger. They would dominate
75 See below, p. 218 ff.

76 See De iure belli ac pacis II,6,1-2; II,8,25.
77 C. 2,3,20.
78 Inleidinge II,5,2. In addition to the Dutch codification, Grotius’s views about the transfer of ownership
because of the will of the previous owner have had a major influence on the French Code civil: Grotius’s
system can be found in art. 711 and 1138 Cc. The Netherlands, chose to follow Roman law rather than
39
the eighteenth century and brand it the Age of Reason, or the Age of Enlightenment
(‘Le Siècle des Lumières’).
7 The Age of Reason79
Thomas Jefferson based the foundation of his Declaration of Independence on natural

law, including the regulation that a nation had the right and the duty to depose a ruler
who violated the rules of that same natural law. This latter idea was by no means new.
In 1690, the English philosopher John Locke (1632–1704) had expressly recognised
this ‘right to revolt’ that was based on natural law,80 and a long time before him, as we
have remarked above, one of the greatest medieval thinkers, no one less than Thomas
Aquinas, had argued the same point. Therefore, this view had a respectable tradition.
However, there is a big difference between the theory (which had been in existence
for a long time) and the practice of the American revolution, the first revolution in
modern history that was based purely on principles of natural law. In addition, natural
law in the eighteenth century had acquired a special political meaning that it did not
possess beforehand. This needs some clarification.
Natural law, as will have become clear, is supported by the – never proven –
presupposition that beyond as well as above the law made by humans, there is an
ideal law. Due to the disconnection of natural law from theology, human reason was
the only way you could get to know natural law – just as in Roman times. Now this, in
combination with the state of mind that we tend to call ‘enlightened’, had huge
consequences. The Enlightenment, as we have seen, called for independent thinking.
This appeal resulted in a barrage of critical writings, as a result of which nothing and
no one was spared anymore. In particular, Christianity was attacked. It is therefore
not surprising that many an ‘enlightened’ writer renounced Christianity, or at least
rejected the form it took at the time. While the Enlightenment was responsible for the
beginning of modern atheism, politically it laid the foundations for the major modern
revolutions, from the American up to and including the Russian. Indeed, when the
social and political reality of the eighteenth century was tested against the ideal of
considerations of natural law. For Old-Dutch private law, see J. Voet, Commentarius ad Pandectas VI,1,20.
Cf also p. 251.
79 The title of a book by Thomas Paine, published in 1798.
80 Two treatises on civil government, ch. XIII, par. 149: ‘For all power given with trust for the attaining of an
end being limited to that end, whenever that end is manifestly neglected, or opposed, the trust must
necessarily be forfeited, and the power devolved into the hands of those that gave it, who may place it
anew where they shall think best for their safety and security. And thus the community perpetually
retains a supreme power of saving themselves from the attempts and designs of anybody, even of their
legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the
liberties and properties of the subject.’
40
natural law, the inevitable conclusion was that a lot – if not everything – could be
improved. This realisation applied especially to the French philosophers.
The French king was sovereign and was not accountable for his actions; nor was he
answerable to anyone, according to himself (Louis XIV: ‘L’état, c’est moi’). Such a view
in itself did not have to be an obstacle to societal change in a more or less enlightened
fashion: Frederick the Great, Maria Theresa and Catherine the Great are proof of this.
France was ruled by the king, but the real power was held by a coterie around the
king, which, like Louis XV, was guided by the whims of his mistresses. Whenever the
king, or really his chief minister, tried to implement a number of much-needed
reforms, these were generally sabotaged by the nobility.81 In addition, especially in
criminal law, there were a large number of practices that originated from the Middle
Ages. The ‘affaire Calas’ made this clear to anyone who wanted to listen:
On 13 October 1761, a son of the Protestant cloth merchant Jean Calas

committed suicide. In those days, the naked body of a suicide was dragged
through the streets, face down, by way of punishment. Therefore, Calas tried
to cover up the suicide of his son. He was later accused of the murder of his
son because he – a Huguenot – would have prevented his son from
converting to Catholicism. In the course of the investigation, Jean Calas was
subjected to torture in order to elicit a confession; his arms and legs were
pulled out of their sockets, he was forced to drink huge amounts of water,
his feet and legs were shattered in the Spanish boot, and finally he was tied
to a breaking wheel and strangled by the executioner. He had not confessed,
because he had nothing to confess. Through the intervention of Voltaire, the
judicial blunder came to light; in 1765, the verdict was quashed and Jean
Calas was rehabilitated – posthumously. The Calas affair was a notorious
scandal that undermined the confidence in justice.
Therefore, the desire for some change is understandable. What can you do, however,
when the ruler refuses to listen to ‘reason’? Natural law then offers the authority to
cast aside such a ruler. This shows that the combination of the Enlightenment with a
secularized natural law yields an extremely explosive mix that easily ignites into
revolution. The rebellion in North America was therefore a warning signal: what
happened in America was not necessarily confined to America. However, sometimes it
81 For example, in 1774 Turgot, the prime minister of Louis XVI, suggested a number of tax reforms as well
as liberalising the trade of wheat, abolish certain personal services, etc. All these attempts were in vain
because they were frustrated by the nobility. A similar fate met the attempts to reform by Minister
Maupeou (see p. 217).
41
seemed as if the Enlightenment had penetrated the upper echelons – the rulers
themselves – and that the much-needed changes could be implemented from the top
down. The best example of an ‘enlightened despot’ was Frederick the Great, King of
Prussia. Voltaire, who stayed at the court of the king for some time, had great
expectations, and indeed, during Frederick’s reign many reforms were implemented
that justified such expectations. Elsewhere in Europe, too, enlightened rulers reigned.
In Russia, Catherine the Great corresponded with the most enlightened minds of the
time, and one of the greatest – Diderot – even spent some time at her court in St
Petersburg. Catherine also wanted to implement enlightened reforms, just like her
archenemy, Frederick of Prussia, but she was less successful.82 In the Austrian
territories, Maria Theresa’s son, Josef II, tried to apply the Enlightenment from the top
down. Some Italian states were also ruled by enlightened rulers.83 It seems as if
Europe was slowly and fairly uneventfully being led towards a new era by its
monarchs. However, even though they were more or less ‘enlightened’, the rulers
remained autocrats! The Enlightenment was, for them, mainly a fad and, moreover,
the presence of an enlightened ruler was randomly determined (by birth). Diderot, the
most sceptical ‘philosophe’, saw through this:
‘You will, however, hear it being said that the happiest government is that of
a just and enlightened despot. What nonsense! It could easily be the case
that the will of this absolute master is in contradiction to the will of his
subjects. Despite his just and enlightened mind, he would then be wrong to
take away their rights, even if that would be in their best interest. A human
being, whoever he may be, is never allowed to treat those that are entrusted
to his care as a herd of beasts. These can be forced to leave a bad meadow in
order to graze in a richer one, but it would be tyranny to use force with
regard to a community of people.’84
Even so, the presence of so many enlightened monarchs tempted many a European
82 Catherine wanted to introduce an enlightened code in Russia. To that effect she had an instruction
printed in Amsterdam in 1766 that she had written herself. This publication was banned in 1771 in
France. Her attempts were in vain.
83 See below, p. 194.
84 Histoire Philosophique et Politique des Établissements et du commerce des Européens dans les deux
Indes, Tome VII, The Hague 1774, p. 14: ‘Cependant, vous entendrez dire que le Gouvernement le plus
heureux, seroit celui d’un Despote juste et éclairé. Quelle extravagance! Il pourroit aisément arriver que
la volonté de ce maître absolu, fût en contradiction avec la volonté de ses sujets. Alors, malgré toute sa
justice et toutes ses lumières, il auroit tort de les dépouiller de leurs droits, même pour leur avantage. Il
n’est jamais permis à un homme, quel qu’il soit, de traiter ses commettans comme un troupeau de
bêtes. On force celles-ci à quitter un mauvais paturage, pour passer dans un plus gras: mais ce seroit une
tyrannie, d’employer la même violence avec une société d’hommes.’ This work appeared in the name of
Abbé Raynal, but was mostly written by Diderot.
42
philosopher to be somewhat optimistic. However, in France that expectation was not
justified. The country was one of the most absolutely ruled countries in Europe.
Neither of the last two kings of France – Louis XV and his grandson Louis XVI – can be
regarded as a typically eighteenth-century enlightened monarch. It is not that these
kings did not realise the necessity of a number of reforms (especially with regard to
tax matters), but they were too weak to force these through against the will of the
aristocratic coterie. The country was, however, through a curious turn of fate, the
cultural centre of Europe. In the salons, progressive ladies and gentlemen eagerly
discussed the ideal state and the American revolution, whereby the great
‘philosophes’ – Diderot, Voltaire, Rousseau, Condorcet and others – were greatly
admired. Their ideas had not the slightest effect on the king; the necessary changes
were not implemented. In short, France was ready for a revolution: the Enlightenment
offered the motives and natural law offered the legal justification for such a move.
Also, there was a recent precedent: the American revolution! You would therefore
expect the French king to completely reject a movement such as the American
revolution, but the old rivalry with Britain seduced him into a fatal move: he offered
his help to the United States, and France recognised – as the first European country85 –
the young American Republic. The first American ambassador, Benjamin Franklin,
was received with great honour by the king; many French nobles, amongst whom the
Marquis de Lafayette, enlisted voluntarily in Washington’s army, even before regular
French troops were sent to North America. It was a strange sight: the absolutist
France of the Bourbons and the young United States in an alliance against Britain!
This would of course lead to a war with Britain, a war that France could not afford
and that led straight to the financial debacle that resulted in the French revolution.
That revolution and the related first attempts towards a codification of French law
are closely linked to the way of thinking of one of the most influential ‘philosophes’ of
the eighteenth century, Jean-Jacques Rousseau. It is therefore necessary to pay some
attention to him and his way of thinking.
8 Rousseau and the ‘contrat social’
The literary man Jean-Jacques Rousseau (1712–1778) was born in Geneva where his
father was a watchmaker. After he converted to Roman Catholicism, he automatically
lost his citizenship under the then current law of the strictly Calvinist Geneva.86
85 The Netherlands recognised the US only later; despite this, this country is the nation with which the US
has had the longest uninterrupted diplomatic relations: the diplomatic relations between France and the
US were interrupted for a short while.
86 The French theologian Jean Cauvin (Johannes Calvijn) (1509-1564) established a theocratic dictatorship
in Geneva in 1541. Without going into the theological details that distinguish Calvinism from other
denominations, we would like to mention that Calvinism, which attained great influence in Scotland, the
43
However, in 1754, the prodigal son returned to the city of his father, confessed his
sins, and was accepted again into the circle of the just. A short while later, he left his
beloved Switzerland in order to publish his magnum opus, the Contrat Social,
elsewhere. The government of Geneva was not pleased with the new work by the
brand-new convert. They had the book burned in public the same year it came off the
press (1762) and banned Rousseau from their territory. The question arises as to why
this book troubled the minds of the Genevan elite to such an extent.
The Contrat Social contained Rousseau’s theory about the foundation of the
relationship between the governing authority and its subjects. That relationship was,
except for a few small, extremely democratic Swiss cantons, determined by tradition,
or – you could say – customary law, according to the then current views of the
governing elite. Sovereignty, the ultimate authority, was vested, as per tradition, in a
body under civil law. For example, in the Dutch Republic this was the States of the
individual countries, in France it was the king, and in Britain the king and his
parliament. None of these forms of government assumed that the constitutional
bodies – the States (Netherlands), the king (France), the king and his parliament
(Britain) – exercised sovereignty on behalf of the people. ‘The people’ as such were a
political factor of no importance whatsoever according to the constitutional law of the
Ancien Régime; they merely led a constitutionally relevant existence in its echelons:
the clergy, the nobility or the bourgeoisie. Pre-revolutionary European society
exhibits traits that match twentieth-century corporatism:87 the constitutional law did
not grant ‘the people’ an independent will, to be distinguished from those of its
echelons. There were, it was thought, a multitude of ‘wills’ that were co-ordinated into
one will by the sovereign, such as the States in the Republic, the king in France, or the
king and his parliament in Britain. And so ‘the people’ were bound to the will of the
sovereign without being able to express their will – a will that measured against our
standards would be legally relevant. Laws were, in this view, thus not the expression
of the will of the people, but the dictates of the sovereign who, of course, took into
account what was important to the echelons which constitutionally comprised ‘the
people’.
Rousseau’s point of view was fundamentally in contrast with this. What kept him
occupied was the philosophical question of how an individual, while retaining his
natural freedom, could be bound to a law whose content did not correspond to his
Netherlands and the United States, is characterised by a large involvement of lay people in the
management of the church and the fact that it forces the church to take a clear political standpoint. To
that extent there exists a kinship between the papal variant of the doctrine of the Two Powers (see p.
165) and Calvinism, because politics is placed under the primacy of theology.
44
individual will. Briefly summarised, he was concerned with the question of why the
minority could be bound to the will of the majority. The basis of his thoughts was that
a free person can only be subjected to rules once he has agreed to them of his own free
will:
‘Since every person is born free and as his own master, no one can, under
whatever pretext, bind him without his permission (…). But one will ask
how a person can be free and still be forced to subject himself to wills that
are not his own.’88
Elsewhere he formulated the question that kept him occupied as follows:
‘To find a form of association that defends and protects with all common
goods the person and the properties of every member and by which each
person, by forming an association with everyone else, only obeys himself
and remains as free as beforehand.’89
To answer this question90 Rousseau used a trick that has become famous but is far
from original: the ‘contrat social’, the ‘social contract’, which he defines as the act
through which all members of society place themselves and their property under the
authority of the will of that society:
‘Each of us brings his person and all his skills in the society, in which the
ultimate authority is the will of the society; and as a group we receive each
member as an indivisible part of the whole.’91
By making a ‘social contract’, a group of individuals voluntarily forms itself into a

‘people’, or in other words a nation. By this act, every individual who wishes to be part
87 See below p. 198.

88 Rousseau, Contrat Social IV,2: ‘Tout homme étant né libre et maitre de lui-même, nul ne peut, sous
quelque prétexte que ce puisse être, l’assujettir sans son aveu … Mais on demande comment un homme
peut être libre, et forcé de se conformer à des volontés qui ne sont pas les siennes.’
89 Contrat Social I,6: ‘Trouver une forme d’association qui défende et protège de toute la force commune
la personne et les biens de chaque associé, et par laquelle chacun s’unissant à tous n’obéisse pourtant
qu’à lui même et reste aussi libre qu’auparavant.’
90 These views were in no way new. See especially S. Pufendorf, De jure naturae et gentium III,2,8 and
Locke, Essai on civil government, par. 95 and 99. We mention these works because it is certain that
Rousseau was deeply influenced by them.
91 Contrat Social I,6: ‘Chacun de nous met en commun sa personne et toute sa puissance sous la
suprême direction de la volonté générale; et nous recevons en corps chaque membre comme partie
indivisible du tout.’
45
of that society gives up his ‘natural’ freedom and gains ‘civil’ freedom92 that consists of
the subjugation of his individual will to that of society, the ‘volonté générale’.
Rousseau derives the individual’s bondage from this voluntary subjugation to the will
of society.93
An important consequence for our discussion about the phenomenon of codification

follows from the train of thought described above, that is, the conclusion that an
individual can only be bound to rules that express the will of society. Every generally
binding rule that is not based on the ‘volonté générale’ is void:
‘Every law that has not been approved in person by the people is void; it is
absolutely not a law.’94
‘The legislative power belongs to the people and can only belong to the
people.’95
Rousseau’s thoughts concerning the bondage of the individual led him to conclude that a
general rule that binds citizens, a law in a material sense, can only be based on an express
declaration by the majority of the citizens that they want this rule; the minority is then
bound under the ‘social contract’. The law, as a generally binding rule that is based on an
express declaration of intent by the legislative force (the people), is therefore the only
source from which the applicable law can be drawn. In particular, this rules out natural
law96 as the source of the applicable law, a consequence that was indeed also recognised
92 Contrat Social I,8: ‘Ce que l’homme perd par le contrat social s’est sa liberté naturelle … ce qu’il gagne,
s’est la liberté civile.’
93 In a now famous (and infamous) paragraph, Rousseau expresses this thought as follows: (Contrat Social
I,7) ‘that anyone who refuses to obey the general will, will be compelled to do so by the whole body (...)
he will be forced to be free’ (‘que quiconque réfusera d’obéir à la volonté générale y sera constraint par
tour le corps (…) on le forcera d’être libre’). From that point of view the individual realises his freedom
by allowing the possibility of being beheaded on the basis of the will of the society (cf. Contrat Social
II,5). It is obvious that this type of logic tends to appeal to terrorists. After all: ‘qui veut la fin, veut aussi
les moyens’!
94 Contrat Social III,15: ‘Toute loi que le peuple en personne n’a pas ratifiée est nulle; ce n’est point une
loi.’ Out of interest we would like to point out that Rousseau wrote this remark as part of an
argumentation that was directed against the thought that the will of society could be applied by
representatives of the people, a thought that he would strongly reject.
95 Contrat Social III,1: ‘La puissance législative appartient au peuple et ne peut appartenir qu’à lui.’
96 It should be mentioned that the science of natural law in the eighteenth century had three of its most
prominent representatives in Switzerland: Jean Barbeyrac (1674–1744), who was the jewel in the crown
of the faculty of law in Groningen from 1717 to 1744, contributed to the popularisation of the views of
natural law of that century through his French translations of the works of Hugo Grotius and Samuel
Pufendorf. It was his translations of Pufendorf that were read by Rousseau. In addition we should point
out that Jean-Jacques Burlamaqui (1694–1748) was from Geneva, and his Principes du Droit Naturel and
Principes du Droit Politique greatly influenced the political theory of the eighteenth century. They were
also highly influential in Anglo-Saxon countries. The latter was even more the case for the works of Emer
46
by Rousseau.97 In addition, custom as an independent source of law can also not be
recognised. It only has legal force in as much as it is supported by the ‘volonté générale’,
i.e. the law. Rousseau would certainly have agreed with the rule of section 3 of the Dutch
General Provisions Act (Wet AB), a regulation that was actually taken directly from his
views:
Custom only then gives rights, when the law refers to it.
In addition, the thought that the judge could create ‘law’ is completely out of the
question in Rousseau’s viewpoint. That is, the judge is a magistrate, a servant of the
people. He must apply the will of the people, the ‘volonté générale’, but he is not
allowed to appropriate the powers of the people, the legislative authority. From all
that has been said so far, it is quite clear that there cannot be any question of an
independent legal power of Roman law, about which Rousseau does not speak in the
Contrat Social because he only offers a philosophical-theoretical reflection. Roman law
was never introduced by law and therefore had no legal power, unless the legislator
expressly declares to want this to be the case. In the latter case, however, his authority
is based on the law and in this form it is received in all Western European
codifications.
Thus we can see that in his Contrat Social Rousseau lay the philosophical foundations
on which nineteenth-century ideas about law and codification are based: all justice
must be based on the law, the inviolable98 expression of the will of the legislator. He
expressly rejects legal diversity as it is in violation of the intention of the contrat
social, which implies equality:
‘The social contract establishes such a large degree of equality amongst

citizens that they are all bound to the same conditions and should enjoy the
same rights. Thus, by the nature of the treaty, every act of sovereignty, i.e.
every genuine expression of the common will, obligates or benefits the
citizens equally.’99
de Vattel (1714–1767), one of the founders of the modern science of international law, whose views in
particular had the authority of law in the United States for over a hundred years.
97 See Contrat Social II,6.
98 As an aside, we would like to point out that the inviolability of the law in a formal sense, that is to say the
will of the highest legislator, written down in art. 120 of the Dutch constitution, is also directly based on
Rousseau’s ideas. The idea that the sovereign, the formal legislator, would be irrevocably bound to its
own will, as written in the Constitution (think of the fundamental rights that are included there), was
rejected expressly and with much emphasis.
99 Contrat Social II,4: ‘Le pacte social établit entre les citoyens une telle égalité qu’ils s’engagent tous sous
les mêmes conditions, et doivent jouir les mêmes droits. Ainsi par la nature du pacte, tout acte de
47
Some years later, in 1771, Rousseau had the opportunity to shape his ideas in a more
concrete way when some Polish noblemen asked him for his thoughts regarding a
better form of government for the Polish kingdom, which found itself in a permanent
state of anarchy. Of course, he advised the Poles to codify the law:
‘Three codes of law need to be created. A constitutional law, a civil code and a
criminal law. All three should be as clear, concise and precise as possible.
These codes of law should not only be taught at universities, but at all
educational institutes, and one does not need any other sources of law (…).
With respect to Roman law and customary law, this all should, if it exists, be
banned from schools and courts of law. One should not know any other
authority than the laws of the State; they should be uniform in all
provinces.’100
In the meantime, such reflections as these did not trouble the Genevan aristocracy;
instead, the consequences of Rousseau’s argument regarding the relationship between
the people and its governors were their main concern. In Rousseau’s view, no single
government can be the bearer of sovereignty; that lies only and exclusively with the
people and cannot be transferred by the people to its government:
‘The members of that body (i.e. the government) (are) no more than
servants of the sovereign. In his name, they exercise the authority of which
he has made them the guardians and he may limit, modify and revoke them
as he sees fit, as the actual transfer of such a right (i.e. without being able to
withdraw it) is incompatible with the character of the social system.’101
souveraineté, c’est à dire tout acte authentique de la volonté générale, oblige ou favorise également tous
les Citoyens.’
100 Considérations sur le gouvernement de Pologne X(a): ‘Il faut faire trois codes. L’un politique, l’autre civil,
et l’autre criminel. Tous trois clairs, courts et précis autant qu’il sera possible. Ces codes seront enseignés
non seulement dans les universités, mais dans tous les collèges, et l’on n’a pas besoin d’autre corps de
droit … A l’égard du droit romain et des coûtumes, tout cela, s’il existe, doit être ôté des écoles et des
tribunaux. On n’y doit connoître d’autre autorité que les Loix de l’Etat; elles doivent être uniformes dans
toutes les provinces.’ It should be mentioned here that Rousseau was not so naive as to suppose that the
judge, after the codification of the law, would only be allowed to apply the law without interpreting it:
ibidem) ‘Voilà le moyen qu’avec peu de loix claires et simples, même avec peu de juges, la justice soit
bien administrée, en laissant aux juges le pouvoir de les interpréter et de suppléer au besoin par les
lumières naturelles de la droiture et au bon sens.’
101 Contrat social III,1: ‘Les membres de ce corps (scl. le gouvernement) (sont) simples officiers du
Souverain, ils exercent en son nom le pouvoir dont il les a faits dépositaires, et qu’il peut limiter, modifier
et reprendre quand il lui plait, l’aliénation d’un tel droit étant incompatible avec la nature du corps
social.’
48
This view, which incidentally was by no means new,102 reduced the position of the
ruling elite in Geneva to that of an authorised representative of the people, who could
at any time revoke their authorisation. This potentially revolutionary view must have
been the cause of the condemnation of the Contrat Social and the exile of Rousseau. As
it happened, the ruling elite at the time were in a conflict with the Genevan citizens.103
It appears that Rousseau wrote large parts of his Contrat Social with exactly this
conflict in mind. The ideas he unfolds in the Contrat were used by the citizens to
question the authority of the regents, while, of course, making good use of the
theoretical arsenal that had been proposed by Rousseau for just that reason. Rousseau
himself took up residence near Geneva, in the then Prussian Neuchâtel, from where he
maintained contact with the rebellious citizens. The conflict between the aristocracy
and the citizens soon escalated and was accompanied by a harsh, personal
controversy between Rousseau and none other than Voltaire, who also resided near
Geneva, just over the border in the French town of Ferney. There, he entertained the
Genevan elite with theatre plays, something that – of course – was considered the
work of the devil by the Orthodox-Calvinistic citizens of Geneva. Of course, Rousseau
expressed his disgust at the degenerate decadence at Voltaire’s residence, and it goes
without saying that Voltaire replied to him in his own, inimitable witty style. He revealed
that Rousseau, who claimed to be a moralist and pedagogue, was living ‘in sin’, and that,
in addition, he had abandoned as foundlings the children that his companion Thérèse
Levasseur had borne him, without the knowledge of that poor woman. These
revelations discredited Rousseau in the eyes of the Genevan citizens and resulted in a
nervous breakdown that he never recovered from. He left Switzerland in high
dudgeon never to return. He died in the same year as his archenemy Voltaire, and
during the French revolution his body, just like that of Voltaire’s, was taken to Paris
where – together with Voltaire’s – it was buried in the Panthéon, where the young
revolutionary generation buried their great inspirers.
9 ‘Vernunftrecht’
Natural law is traditionally characterised by a belief, without reservation, in the

infallibility of reason. This is why it is no coincidence that its revival as an independent
legal discipline in the seventeenth century coincides with the intellectual movement
known as ‘rationalism’ that arose in the same century. This is not the place to give an
extensive analysis of seventeenth-century rationalism; suffice it to – hesitantly – give
102 See p. 58, n. 46 for a view of the English philosopher John Locke, whose theories deeply influenced Rousseau.
49
this definition of the term: rationalism is an intellectual movement that is supported by
the belief that only human reason is capable of penetrating the final truths; reason, ratio,
would have no limits. Particularly in mathematics, this presupposition yielded great
results104 and jurists were impressed by it. Therefore, following the example of
mathematics, more geometrico, constructs of natural law began to be created that were
purely based on reason. These ‘systems’ of natural law soon had no connection to
Roman law other than that a regulation here or there was mentioned as an illustration
of a regulation of natural law. Roman law was no longer given any other authority by
these rationalists; it lost its authority as the written natural law, ratio scripta. In the
German territories in particular, this new, purely rationalistic approach to natural law,
freed from the authority of Roman law and first promoted by Hugo Grotius, was very
influential. In Germany this approach is called Vernunftrecht, and its influence on the
modern practice of private law cannot be overestimated. The subject would have
looked very different without the eighteenth-century Vernunftrechter. It was, after all,
these rationalists who first introduced all kinds of basic concepts in private law.105
The strictly systematic build-up of practically all modern codes of law is derived from
their work. The most famous of these natural law scholars are Samuel Pufendorf
(1632–1694), Christian Thomasius (1655–1728) and Christian Wolff (1679–1754). The
latter was more of a philosopher than a jurist, but his work in particular received the
most attention in the German territories. The title of one of his works speaks volumes:
Institutiones iuris naturae et gentium, in quibus ex ipsa hominum natura conti-

nuo nexu omnes obligationes et iura omnia deducuntur – ‘Fundamental
concepts of natural law from which human nature itself continuously
derives all obligations and all rights’.
We would like to point out that these teachers of natural law as a matter of principle
did not teach the actually applicable law but rather an ideal, intellectual law, which
was not determined by tradition and history. In other words, they taught not the law
as it was, the ius constitutum, but the law as it ought to be, the ius constituendum. This
gave education in natural law at academies a somewhat unworldly character in the
eyes of objective listeners – of whom there were also many at the time. Indeed, the
103 As an aside, we would like to remark that only a small number of the residents of Geneva were eligible to
vote. Most of the citizens did not vote. As so often the citizens demanded a right that they then refused to
another part of the population.
104 For instance the mathematical treatises of Descartes and Pascal in particular in France, and the
mathematical work by the great Grand Pensionary Johan de Witt (1625–1672), who is regarded as
one of the founders of statistics and modern actuarial science.
105 Note the strict distinction between property law and contract law, the theory of declaration of intent as
the foundation for contract law and the dogmatic distinction between original and derivative acquisition.
50
professors of natural law in the eighteenth century, especially the Germans, were
models for the caricature of the somewhat absent-minded, idealistic and unworldly
professor.
The works of the above-mentioned Vernunftrecht scholars included the pretence of a

total victory of natural law over Roman law. So it should not come as a surprise that
amongst them can be found self-declared opponents of Roman law. Hugo Grotius, the
spiritual father of Vernunftrecht, had already been less than complimentary about
Roman law.106 Pufendorf spurned the chair in Roman law at the law faculty of the
University of Heidelberg, which he was offered in 1661. He allegedly remarked on that
occasion that he didn’t consider it a particular merit to add the thousandth
commentary to the nine hundred and ninety-nine commentaries on Justinian’s
Institutes that already existed. He made no secret of his aversion to the state of the
academic study of law at the time, which was totally permeated with Roman law and
its Corpus Iuris: ‘nonsense, the product and the foundation of the kingdom of
darkness’107 is what he called the work of his colleagues on Roman law, who most
likely will not have gratefully received his words. A generation later, Christian
Thomasius held the chair in natural law at the University of Halle. For him, completely
in the style of the Enlightenment, every juridical tradition had become theoretically
useless. ‘It is ridiculous,’ so the scholar said, ‘to assume that tradition has an
independent meaning if that meaning does not correspond with reason, and there,
where it happens to be the case, it still does not have any independent meaning
because the strength of such a tradition lies in its rationality, not in the singular fact of
being a tradition.’ He wrote:
‘Both Grotius and Pufendorf suffer from an abundance of proofs and

references from the work of other writers. Grotius, because he thought that
natural law was proven by such platitudes, while Pufendorf was driven by
the policy consideration that his opponents could otherwise accuse him of
not having read the classical Greek and Latin writers. Both of them should
106 Cf. the preface of Hugo Grotius in his Historia Gothorum, Vandalorum et Langobardorum, Amsterdam
1655, Prolegomena p. 63–64: ‘The Roman laws contains hair-splitting that is chasing after the most
unimportant things, a volatility and instability and such a large mass of complexity that there is no one
who has such a good memory that he doesn’t often come across regulations that were still unknown to
him. But philosophy demands that the law is simple, short and clear ... I relish the fact that I find these
things in the laws of our Northern regions.’ (Ego in Romanis legibus subti- litatem minima quaeque
persequentem, varietatem, inconstantiam, video, tantam denique molem, et in mole perplexitatem, ut
nemo tam felicis sit memoriae, cui non saepe eveniat in leges incursare. At philosophia legem vult esse
simplicem, brevem, claram; (…) Haec ego in Septentrionalium nostrorum legibus invenire me gaudeo).
107 De jure naturae et gentium, Frankfurt 1774, Praefatio p. XXIX: ‘nugas, regni tenebrarum foetum iuxta et
stabilamentum’.
51
also be excused because they lived in a time in which all scholars were very
much impressed by the authority of the ancients. But that way of writing
damages students more than it benefits them. By these references, the mind
will be more distracted than aided, especially because they only very seldom
can be used as proof of whatever they are being cited for. This is because of
the endless disagreements of the ancient philosophers, also in matters of
morality. In addition, most people are these days quite capable and
prepared to pay more attention to that which is being argued than to the
person arguing it.’108
Thomasius is the herald of a potentially virulent nationalism. He was the first

professor in Germany who did not wish to speak to his students in the language of law,
Latin, but who chose to speak German. He also developed a theory that was later often
used against Roman law: the idea that a nation that used foreign (i.e. Roman) law put
its own political freedom at risk. The consequence of this idea is that a nation that
respects itself is ruled by its own laws, not tainted by foreign ideas. That argument
was accepted by the Dutch professor in natural law, Frederik Adolf van der Marck
(1719–1800), a fierce fighter against Roman law and, just like Hugo Grotius once was,
an admirer of the modest simplicity and poetic expressiveness of old Germanic law.109
These thoughts should be viewed against the background of the fact that in
eighteenth-century Germany, and also in the Netherlands, they had
‘rediscovered’ the ius patrium, the old national law that came straight from
the time before the ‘reception’ of Roman law. Since that reception, this law
had stood in the shadow of Roman law, and it was not taught as a separate
subject at any European university, not even in England, with the exception
of France.
Roman law found itself, as will be clear from the above, on the defensive for the first
time since the existence of European universities, and it seemed to have had its day.
Everywhere in Europe, natural law gained ground; as early as 1689, a book that was
108 Chr. Thomasius, Fundamenta juris naturae et gentium ex sensu communi deducta, Halle 1718, Cap. prooem.
§ III & IC: Laborant & Grotius & Pufendorfius pluralitate testimoniorum & allegationis aliorum scriptorum.
Grotius, quod putavit, talibus locis communibus probari ipsum jus naturae, Pufendorfius necessitate
politica adactus, cum invidi ejus ei objicerent, quod Graecos & Latinos autores classicos non legisset.
Uterque insuper excusandus, quod uterque scripserit adhuc iis temporibus, ubi omnes eruditi immersi
adhuc erant autoritati veterum. Sed nocet iste scribendi modus discentibus magis, quam ut proficiat.
Distrahitur intellectus magis, quam ut adjuvetur attestatis ejusmodi, praeprimis rarissime id omnino
probantibus, cujus gratia adducuntur, propter infinitam veterum, etiam in moralibus dissensionem.
Praeterea hodie plerique jam apti sunt & cupidi, magis id examinandi, quid dicatur, quam quis dicat.
109 See also below p. 358, n. 32.
52
heavily inspired by Vernunftrecht appeared in France, and had a great influence on the
later Code civil: Les loix civiles dans leur ordre naturel by Jean Domat (1626–1696).
Natural law seemed to be the future; towards the middle of the eighteenth century,
Roman law, which had been regarded for centuries as the ‘reason that had become the
letter’ (ratio scripta), was considered by many to be on its way out. Even so, the future
of European private law lay in a renewed study of Roman law that flourished,
especially in the German territories, as a reaction to natural law and in particular to
the codifications that were the result of this school of thought.
10 Natural law and aspirations to codification
Eighteenth-century Enlightenment was characterised, as we have seen, by a strong

aversion to Roman law. The validity of this law was considered to be in violation of the
‘natural’ principle that every nation should have its own law, written in the language
of that country, and proponents strived to abolish the subsidiary effect that Roman
law had on almost all of the Western European continent. In its place, codifications
should be introduced that were either – like the Prussian ‘Allgemeines Landrecht’110 –
set up as a subsidiary source of law, taking the place of Roman law, or – as in the
Austrian code111 – operated exclusively and therefore set aside not only Roman law,
but also the non-Roman local customary law. These codifications and attempts at
codification were obviously not based on Roman law but on natural law; the ‘natural’
law that remained the same everywhere and at all times, and that since the time of
Hugo Grotius had been taught, alongside Roman law, at most European universities,
and that was very fashionable in the Enlightened circles of the eighteenth century.
The theory of natural law was, as we have seen, governed by the presupposition that
you can find ‘true’ ‘natural’ law through reasoning, through rational deduction. It is,
therefore, idealistic in nature: it presupposes the existence of a set of unwritten rules
of law that are valid independently of human beings; according to Hugo Grotius,
independent of God even. Attentive readers will now be considering a notion that was
also thought of by many in the eighteenth century as well: if the presuppositions of the
teachers of natural law are correct, then you do not need any codes of law at all, just as
you do not need codes of law to validate the principles of physics. Indeed, these rules
are valid even when they are not written down in a code. So how, we can wonder, did
jurists in that same eighteenth century in which natural law was so influential
nonetheless decide on the desirability of a codification? Is this not redundant from a
110 See below p. 280 ff.

111 See below p. 293 ff.
53
natural law point of view? The answer to the latter question can only be in the
affirmative: a codification is, according to the classical view of natural law, a useless
activity, since it can only contain regulations that are also valid even if they are not
included in a code. Even so, the jurists of natural law stressed the need for a
codification. Firstly, for a number of issues, looking to natural law for a solution would
be fruitless because they are relatively random; like the decision on the number of
witnesses that is required for the validity of a will, or the age of majority. Issues such
as these need to be decided on and inscribed into a code. The desirability of a
codification of criminal law was further defended on the basis of natural law by the
‘principle of legality’ that was introduced for criminal law by the Italian Cesare
Beccaria in his book from 1784 ‘On crimes and punishments.’112 This principle states
that prosecution should only be allowed to take place on the basis of a legal provision
that existed at the time of the crime or violation and in which they are defined and
threatened with punishment. Now, this point of view makes the codification of
criminal law essential. In fact, the huge success of Beccaria’s work really set off the
eighteenth-century codification machine. This desire for codification of criminal law,
of course based on considerations of natural law, pulled that regarding civil law along
with it.
In theory, all of these codifications of civil law, based on natural law, should be largely
identical, because is there not one and the same natural law everywhere? In reality,
however, every codification that came into being, every design even, was different,
and no two intellectual creations were the same. This situation, paradoxical from a
natural law point of view, is caused by the fact that it was considered necessary – in
accordance with the doctrine of Montesquieu – to adapt the abstract, universal, and
idealistic natural law to the local circumstances of the country for which the
codification was created. In his book from 1748, De l’esprit des lois,113 Montesquieu
turned against the idealistic view of natural law that all law could be found through
reasoning because natural law is universal in character. In contrast, he thought that an
important part of the law that is valid in a certain society at a certain time can
necessarily not be universal, because the law is not dictated by universal reason alone,
but also by such random circumstances as the climate of the country in which that law
would be valid, the particular nature of the inhabitants, the political system of that
country, the geographical aspects, religion, etc. This realistic view tied in closely with
another French tradition, that of juridical humanism, the mos gallicus, that saw and
explained the law – and more in particular the Corpus Iuris Civilis – as a historical
phenomenon, as a product of factors determined by time, place and circumstances,
112 See also p. 191.
54
and not as the emanation of a naturalis ratio114 that remained itself at all times.
Montesquieu is one of the greatest representatives of the French humanistic tradition that
is difficult to combine with natural law. His book was so successful in the learned world
that its views were accepted everywhere as self-evident, not in the least because the
proponents of natural law used this book to support their convictions that all rules of
natural law were to be adapted to the special circumstances of each individual nation; a
conviction that in fact undermines one of the fundamental principles of natural law – its
universal character. This is what the spiritual father of the Austrian Civil Code, Von Zeiller
(1753–1828), remarked in this respect:
‘The laws are based on general and unchanging principles and reasonable
foundations of justice (…). This is the reason for the fact that the civil codes
of civilised people agree in most regulations, and from this, one can explain
how, for such a long time, the states of Europe could use the old Roman civil
code as a main source to decide juridical proceedings. In the meantime,
every state, according to its special relations, needs laws that are its own
(…). The climate, the food supply, trade, the usual etiquette, the
reasonableness or unreasonableness of the character of the inhabitants all
have an undeniable influence on the regulations of the juridical form and the
different kinds of legal acts, on wills, agreements, collaterals and the
entitlement to compensation.’115
In addition to the adaptation, considered necessary, of universal natural law to the

individual character of each nation, intellectual economy also demanded codification.
After the law – that is, natural law – was written down in a codification, it was no longer
necessary to follow the difficult road of reasoning to find a regulation of natural law. You
only needed to open the code to find the result of this intellectual process. This explains
why codifications of natural law as well as attempts at codification – like that by H.C.
113 See for more about this work p. 225.

114 For the mos gallicus, see in particular p. 218 ff.
115 Cited by Zweigert-Kötz, Einführung in die Rechtsvergleichung, Band I: Grundlagen, Tübingen 1971, p. 192:
‘Die Rechtsgesetze ruhen auf allgemeinen und unabänderlichen Grundsätzen und Vernunftprinzipien
der Gerechtigkeit … Daher kommt es, dass die bürgerlichen Gesetzbücher der cultivirten Nationen in
den meisten Vorschriften überein kommen, und daraus lässt sich erklären, wie die Staaten Europas
lange Zeit das alte römische Gesetzbuch als eine Hauptquelle zur Entscheidung der Rechtsstreitigkeiten
beibehalten konnten. Indessen bedarf doch jeder Staat nach seinen besonderen Verhältnissen
einheimischer, ihm eigentümlicher Gesetze … Das Clima, die Nahrungswege, das Commerz, die üblichen
Arten des Verkehrs, die Redlichkeit oder Unredlichkeit des Charakters der Einwohner haben einen
unleugbaren Einfluss auf die Vorschriften über die rechtliche Form und verschiedenen Arten der
55
Cras in the Netherlands116 – so often looked like textbooks: they had the same function
as physics textbooks, according to the teachers of natural law. Newton’s gravitational
laws – it was reasoned – are universal by nature but you cannot expect the common
man to find these through independent reasoning. This is why they were explained to
the people in handy encyclopaedic articles (by Voltaire, no less!) and in manuals.
Similarly, in codifications you should not just find the rule of law, but also the
intellectual process by which such a rule has been arrived at.
Modern natural law is the product of seventeenth-century rationalism, which has the
optimistic view that humans can get to the truth via – by per definition infallible –
reason. Towards the end of the eighteenth century, many philosophers became
sceptical, such as the British scholar David Hume (1711–1776), who was also
influential on the continent, and legal scholars such as the German jurist Friedrich Carl
von Savigny (1779–1861). Indeed, there has never been a lack of self-declared
opponents of the view of natural law, not even in Antiquity.
Amongst the practitioners of natural law, the Greek philosopher Carneades

(c. 214–129 BC) was regarded as the proverbial enemy of the view of
natural law, and was ascribed a bad disposition, almost as a matter of
course. In countless works of natural law since Hugo Grotius, he has been
put forward as the pragmatic representative of despicable legal positivism.
That is, the sceptic Carneades pointed out the fact that the law, as he had
come to know it through his travels in the then known world, differed
strongly from country to country and also changed in character over time.
From this fact – according to him – it could only be deduced that every legal
system is bound in time and place and that when the law is established, the
people do not act on the ideal of natural law and its never changing
principles, but by considerations of efficiency that are necessarily
determined by factors that are bound to place and a certain time. ‘There is,’
he concluded, ‘no natural law’.117
Rechtsgeschäfte, über die Testamente, Verträge, die Sicherstellungen und das Recht des
Schadenersatzes.’
116 See for more about this below, p. 363 ff.
117 Carneades left no writings. His views, however, are handed down to us through the writings of the
Roman orator and philosopher Marcus Tullius Cicero (106–43 BC) and the Christian writer Lactantius
(1st half of the 4th century AD), who could still draw on parts of Cicero’s writings, now lost, that
discussed in detail the issues mentioned here. Cf. Lactantius, Divinae Institutiones 5.16: Ius autem
nullum esse naturale (...) iura sibi homines pro utilitate sanxisse, scilicet variances pro moribus et apud
eosdem pro pace Ribus saepe Mutatá. (Transl.: ‘There is no natural law (...) on the basis of considerations
of efficiency, the people have fixed justice for themselves, self-evidently differently according to their
customs and within the same group of people often changing depending on the time conditions’).
56
In the Netherlands, the president of the Supreme Court of Holland and Zeeland,
Cornelis van Bijnkershoek (1673–1743), demonstrated, in no uncertain terms, his
aversion to the view of natural law at that time. He feared for randomness in the
administration of justice if every jurist were to declare his own subjective ratio as law.
‘Is it not the case,’ he argued, ‘that what is equitable to one person is inequitable to
the next? Does not the theory of natural law result in contempt for the written law
(the Corpus Iuris Civilis) and in a complete subjectification of the law because every
jurist will use his own, completely independently conceived, law? Is it , therefore, not
preferable to have the certainty of a written source of law (which Van Bijnkershoek
still considered to be the Corpus Iuris Civilis) above the uncertain – because they are
subjective – results of the argumentation of practitioners of natural law?’118 The
critical observer could see the accuracy of Van Bijnkershoek’s argument illustrated in
practice: when lining up the works by teachers of natural law such as Hugo Grotius,
Pufendorf or Wolff, it became obvious that there was not one absolutely unequivocal
and objective truth, but a multitude of opinions; they were found to differ in view in
many ways. A contemporary noted the following:
‘If that application was ever certain, and if people did not differ in their ways
of thinking about this, then we would need few or no civil codes. But the
application of natural law to the most important subjects was thought of
very differently by one Grotius, totally differently by Pufendorf, by Wolff and
others, all proponents of this outstanding science. Of its application ... we
can say that it is pointless, whichever way you turn, twirl or spin it.’119
This is how, towards the end of the eighteenth century, doubts started to grow about
the theoretical presuppositions on which natural law was founded; in several
countries there was even a renewed appreciation of Roman law. This is the climate in
which the codification idea could only triumph: the doubts raised by the teachers of
natural law about the value of Roman law on the one hand, and the practical and
theoretical objections by their opponents against the application of natural law on the
other hand, created a dilemma from which the only way out was codification. The
nineteenth-century codifications were born out of this dilemma. It should come as no
surprise that in these codifications, the influence of Roman law was much stronger
than in a typical natural law codification such as the Austrian Civil Code and, to a lesser
degree, the French Code civil.
118 See Cornelis van Bijnkershoek, Observationes Iuris Romani, 1710, praefatio.
119 De eer der Hollandsche natie en van hare wetgevers, rechters en rechtsgeleerden (…) verdedigd tegen het
Vertoog over de ongerymdheid van het zamenstel onser hedendaagse regtsgeleerdheid en practyck, p.
103–104.
57
11 Concluding remarks
The theory of natural law was considered passé in juridical thinking almost
everywhere in Europe during the nineteenth and a good part of the twentieth century.
Everywhere in Europe the thought caught on that there was no other law than what
had been written down as such by an authorised government body. In other words,
the natural law way of thinking had to make way for the positivistic one. For this, we
feel, two factors have been of decisive importance. The first is based on the point of
view, emphasised by the ‘Historical School’ and its major representative Friedrich Carl
von Savigny, that ‘true’ law cannot be found by means of a purely rational exercise
that would result in an outcome that would be valid always and everywhere. Rather,
the content of this law would be determined by the special characteristics of the
historically-grown morals and customs of a particular society.120 The second is based
in the – not to be underestimated – influence that Rousseau’s political ideas have had
on the Western European doctrine of legal sources. Such ideas did not allow other
regulations of law than those that are based on the express order of the sovereign, the
volonté générale, that is expressed in the law. The well-known German jurist Gustav
Radbruch (1878–1949), therefore, expressed a conviction that was widespread in his
time, not just in Germany but across Europe, when he said the following in his widely
acclaimed and widely read Einführung in die Rechtswissenschaft:
‘But it has turned out to be impossible to answer the question about the
purpose of the law other than by recording the different opinions about this.
Even when looking at a certain moment in time and a particular people, we
find opposing visions about the purpose and thus the organisation of the
legal system, which to its adherents seemed all equally ‘natural’ and
between which science is unable to decide which one is generally valid – to
say nothing of the historical changes and national diversity of visions on the
law. Therefore, the idea of natural law was a mistake – but it was
conceivably the most fruitful mistake possible. It’s an old ‘trick of world
history’ to regard the law it wants to apply as already in force, and to regard
the law it would like to declare invalid, as already being invalid. And thus
the century of Enlightenment has carried to victory its legal policy rights
under the false colours of a natural law that is valid everywhere and
eternally. Therefore, this magical formula has fulfilled a world-historical
mission, but at the same time has lost its efficacy.’121
120 See for more about Savigny and the ‘Historical School’ below, p. 301 ff.
121 Radbruch, Einführung in die Rechtswissenschaft, Leipzig 1929, p. 32: ‘Aber es hat sich uns als
unmöglich erwiesen, die Frage nach dem Zwecke des Rechts anders als durch die Aufzählung der
58
Even at the beginning of the twentieth century, the theory of natural law was
considered one of the most spectacularly productive misunderstandings in the history
of law, a fantasy:122 ‘these days it’s generally assumed that there is no other law than
“positive” law.’123 Twenty years after these sentences were committed to paper by
Radbruch, sentences very different in tone flowed from his fountain pen. In 1947,
shortly after the end of the reign of terror that cast its shadow over Germany between
1933 and 1945, he wrote the following:
‘But besides the restoration of respect for the law, the German jurist has a
second assignment that almost seems to be in contrast to the first. The
rulers in the twelve-year-long dictatorship have often given injustice, yes
even crime, a legal form. Even the eugenic killings were founded on a law,
albeit in the monstrous form of an unpublished, secret law. The outdated
view of the law, the positivism that prevailed without contradiction for
decades amongst German jurists and its doctrine that ‘the law is the law’,
was defenceless and powerless in the face of such injustice; the adherents of
this doctrine were forced to recognise every law, as disenfranchised as it
may be, as legal. Legal science must look back to the millennia-old common
wisdom of the ancients, of the Christian Middle Ages and the period of
Enlightenment, which is that there is a higher law than the law, a natural
law, a divine law, a law of reason, in short, an extra-legal law, against which
injustice is tested, even if it is cast in the form of a law. In this light, a verdict
brought on the basis of such a disenfranchised law is not jurisdiction, but
rather injustice, even though such injustice cannot be held against the judge
because of his positivistic juridical training.’124
mannigfaltigen Parteimeinungen darüber zu beantworten. Schon dieselbe Zeit und dasselbe Volk
weisen nebeneinander entgegengesetzte Ansichten über das Ziel und damit über die Ausgestaltung
der Rechtsordnung auf, die ihren Vertretern alle gleich “natürlich” erschienen und zwischen denen
allgemein gültig zu entscheiden die Wissenschaft nicht fähig ist – von dem historischen Wandel und
der nationalen Verschiedenheit der Rechtsanschauungen ganz zu schweigen. Der Gedanke des
Naturrechts war also ein Irrtum – aber er war der denkbar fruchtbarste Irrtum. Es ist eine alte “List der
Weltgeschichte”, das Recht, das sie zur Geltung.
122 The subject ‘Natural Law’ disappeared in the course of the nineteenth century from the curriculums of
most Northern European faculties, such as the German and Dutch ones. The current subject
‘Introduction to Legal Science’, or, if you like, ‘Encyclopedia of Law’ is its heir. See also above, p. 55, n. 39.
123 Radbruch, Einführung in die Rechtswissenschaft, p. 33: ‘(e)s ist heute allgemein anerkannt, dass es
anderes als “gesetztes”, “positives” Recht nicht gebe.’
124 Gustav Radbruch, ‘Die Erneuerung des Rechts’ in Die Wandlung, 1947, p. 8–16: ‘Aber neben der
Wiederherstellung der Achtung vor dem Gesetz hat der deutsche Jurist noch eine zweite Aufgabe, die zu
jener ersten fast in einem Gegensatz zu stehen scheint. Vielfältig haben die Machthaber der zwölfjährigen
Diktatur dem Unrecht, ja dem Verbrechen die Form des Gesetzes gegeben. Sogar der Anstaltsmord soll
durch ein Gesetz untergründet gewesen sein, freilich in der monströsen Form eines unveröffentlichten
Geheimgesetzes. Die überkommene Auffassung des Rechts, der seit jahrzehnten unter den deutschen
59
These sentences reflect the legal-philosophical reaction to what in the eyes of
Radbruch and others could not be interpreted in any other way than as the
bankruptcy of legal positivism. This explains the resurrection of the theory of natural
law on the Western European continent after the Second World War. In the meantime,
it has had an impact on the extremely important European Convention on Human
Rights (ECHR),125 but also, for instance, on the regulation that appears in many new
European constitutions – especially these of former dictatorial countries such as
Germany and Italy – that the judge has the authority to formally test the law against
the human rights in that same constitution.126 In this way, the Stoic-Christian doctrine
of natural law has turned out to be an inextricable part of the European moral
tradition.127 It may not have been able to withstand the test of a rigorous
epistemological criticism, but it expresses the voice of human conscience that
demands that every legislation must satisfy certain moral and rational demands in
order for it to be called ‘law’. That is a voice that every legislator needs to take into
account.
Juristen unbestritten herrschende Positivismus und seine Lehre “Gesetz ist Gesetz”, war gegenüber
einem solchen Unrecht in der Form des Gesetzes wehrlos und machtlos; die Anhänger dieser Lehre waren
genötigt, jedes noch so ungerechte Gesetz als Recht anzuerkennen. Die Rechtswissenschaft muss sich wieder
auf die jahrtausendalte gemeinsame Weisheit der Antike, des christlichen Mittelalters und des Zeitalters
der Aufklärung besinnen, dass es ein höheres Recht gebe als das Gesetz, ein Naturrecht, ein Gottesrecht,
ein Vernunftrecht, kurz ein übergesetz- liches Recht, an dem gemessen das Unrecht Unrecht bleibt, auch
wenn es in die Form des Gesetzes gegossen ist, – vor dem auch das auf Grund eines solchen ungerechten
Gesetzes gesprochene Urteil nicht Rechtsspre- chung ist, vielmehr Unrecht, mag auch dem Richter, eben
wegen seiner positivistischen Rechtserziehung, solches Unrecht nicht zur persönlichen Schuld
angerechnet werden.’ Striking is the exculpation of the German judges at the end of this quote. Did
Radbruch blame himself for the fact that he had trained generations of German judges in a positivistic
view, that he himself now reproved?
125 For a more extensive discussion, see below, p. 475 ff.
126 The Dutch constitution denies the judge that authority (art. 120 Gw). However, bear in mind that the
Dutch judge is required to apply the international conventions to which the Netherlands is party. Under
the rule that national law must yield to international (art. 94 Gw) the Dutch judge is required to test the
national legislation, in particular against treaties such as the ECHR.
127 As an aside, the – significant – phenomenon needs to be pointed out that the criticism of the theory of
natural law that has been voiced since the end of the eighteenth century was expressed mainly in
Northern Europe and in particular, in the Protestant part. In the Roman Catholic part of Europe
(especially the Roman Catholic universities in the largely Protestant northern Europe), the theory of
natural law – of course – remains to this day an integral part of legal education.
60
Recommended reading
G ENERAL LITERATURE ON L EGAL H ISTORY
- E.V. Arnold, Roman Stoicism, London 1958

- E. Cassirer, Die Philosophie der Aufklärung, Tübingen 1932
- P. Gay, The Enlightenment, An Interpretation I (The Rise of Modern Paganism),
New York 1966, and II (The Science of Freedom), London 1973
- P. Hazard, La crise de la conscience européenne, Paris 1961
- P. Hazard, La pensée européenne au XVIIIe siècle, Paris 1963

- J. Israel, Radical Enlightenment, Oxford 2001
- J. Israel, Democratic Enlightenment, Oxford 2011
- H. Nicolson, The Age of Reason, London 1960
- R.R. Palmer, The Age of the Democratic Revolution I (The Challenge), Princeton
1959, and II (The Struggle), Princeton 1964
- M. Pohlenz, Die Stoa, Geschichte einer geistigen Bewegung, Göttingen 1972
- Fr. Venturi, Italy and the Enlightenment, New York 1972
L EGAL T EXTS
- P. Scholten, Mr C. Asser’s handleiding tot de beoefening van het Nederlands

burgerlijk recht, Algemeen Deel, 3rd edition, Zwolle 1974
- J. Vranken, Mr C. Asser’s handleiding tot de beoefening van het Nederlands
burgerlijk recht, Algemeen Deel, Zwolle 1995
- G.J. Wiarda, Drie typen van rechtsvinding, 4th edition, Deventer 1999
- K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des
Privatrechts, 3rd edition, Tübingen 1996
61

Book Legal History Chapters 1 - 2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Book Legal History Chapters 1 - 2

Uploaded by

Copyright:

Available Formats

Contents

2 The Legislator ........................................................................................... 9

3 The Judge ................................................................................................16

II CODIFICATION AND NATURAL LAW ...........................25

2 Ius civile and ius naturale ........................................................................30

3 Positivism and natural law.......................................................................31

4 Ius gentium and ius naturale ………………………………………………………………. 34

5 Natural law in the Middle Ages ...............................................................35

6 Hugo Grotius and natural law ..................................................................37

7 The Age of Reason ...................................................................................40

8 Rousseau and the ‘contrat social’ ....................................................43

10 Natural law and aspirations to codification .........................................53

11 Concluding remarks .............................................................................58

1 Imperium and lex .................................................................................... 62

2 Patricians and plebeians ......................................................................... 65

3 Civil law and praetorian law .................................................................... 70

4 Republic and Empire ............................................................................... 73

5 Imperial law and the law of jurists .......................................................... 75

6 Old and new Rome .................................................................................. 79

7 The Emperor Justinian (527 – 565) .......................................................... 82

8 The East Roman, i.e. Byzantine Empire ................................................... 99

9 Ottoman rule and the Kingdom of Greece............................................. 101

Recommended reading ................................................................................. 104

IV CODIFICATION IN ITALY .............................................. 106

1 Justinian’s codification in Italy .............................................................. 106

2 Tribal law and customary law ............................................................... 110

3 Feudalism, the feudal system and feudal law........................................ 114

4 Renovatio imperii.................................................................................. 118

5 Roman law and its glossators ................................................................ 121

6 Ordinances and commentators ............................................................. 132

7 Canon law ............................................................................................. 138

8 Revolution, restoration and codification ............................................... 160

Recommended reading ................................................................................. 170

V CODIFICATION IN FRANCE ............................................ 172

1 Emperor and king .................................................................................. 172

3 The parliaments (courts of law)............................................................. 184

4 ‘Mos Gallicus’ versus ‘Mos Italicus’ ....................................................... 186

5 Legal unity and legal diversity ............................................................... 190

6 Revolution ............................................................................................ 194

7 The dissemination of the Code civil ....................................................... 227

8 Concluding remarks .............................................................................. 229

Recommended reading ................................................................................. 231

VI CODIFICATION IN THE GERMAN COUNTRIES ...... 233

1 The Western Roman and Eastern Roman emperors .............................. 233

2 Roman Emperor and Roman law ........................................................... 241

3 The Habsburgs as Roman emperors ...................................................... 242

5 The Allgemeines bürgerliches Gesetzbuch (ABGB) ................................ 256

7 The fight for a national German codification ......................................... 262

8 Unification by ‘iron and blood’ .............................................................. 273

9 State unity and legal unity .................................................................... 279

10 Begriffsjurisprudenz versus interessenjurisprudenz .......................... 282

11 Codification and ideology .................................................................. 287

Recommended reading ................................................................................. 297

VII CODIFICATION IN THE NETHERLANDS .................. 299

1 Burgundy and the Low Countries .......................................................... 299

3 Revolution, Restoration and Codification .............................................. 323

4 Codification and Recodification............................................................. 340

Recommended reading ................................................................................. 345

VIII INSTEAD OF CODIFICATION ........................................ 346

1 Common law and civil law ..................................................................... 346

2 Common law and equity ....................................................................... 358

3 Common law and statutory law ............................................................ 372

4 ‘Law reporting’ ...................................................................................... 380