Legal History Week 1-2 PDF

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 nation...

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