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25 May 2018

Private Law Codifications through the Lens of Cultural History




The collapse of Communist regimes left the legislatures of the affected states with the duty to satisfy two fundamental economic and social demands. The first consisted of enacting laws to enshrine the democratic transformation of the structure of executive power, specifically in terms of reshuffling the relationship (the so-called vertical relations) between the state and its citizens. This exigency triggered a constituent process, sooner or later leading to the codification of a new constitution (sometimes called “Fundamental Law”) in these countries. The second legislative liability was to enable a social market economy in the relations between citizens and their organisations (what we call horizontal relations). This in turn necessitated a comprehensive reform of private law, ultimately culminating in the adoption of a new Civil Code, as was the case in Lithuania (2000), Romania (2009), the Czech Republic (2012) and Hungary (2013).

The halcyon days of codifying private law transpired in the 19th century, when private law codification as we know it today really began, producing a succession of great classic codes. First in the row were two codes conceived in the spirit of the Enlightenment, the Code civil (Code Napoléon) of 1804 and Austria’s 1811 Allgemeines Bürgerliches Gesetzbuch (ABGB). They were later followed by Germany’s Bürgerliches Gesetzbuch (BGB) in 1896. These pioneering legislative works came to serve as a model for enacting various civil codes elsewhere in Europe, Latin America, and Asia, some still in the 19th century, others in the 20th. Special mention must be made, on account of its extraordinary legal standards, of the Swiss code (Zivilgesetzbuch) of 1911, which exerted considerable influence on the development of private law in Hungary.1

Enacted after a decades-long forced interlude of state capitalism, the civil codes of post-Communist countries should be regarded as belated examples of codifying private law. Paradoxically, however, they are actually comparable to the codes enacted in the early 19th century, particularly in terms of their social function. The Code civil and the ABGB served the abolition of feudal conditions and the erection of a new social order resting on private property. The new codes in Eastern Europe in the 21st century had to be created for a modern regulation of the civil legal relations arising through the privatisation of production assets that had been nationalised by the states across the board.

With this sketchy historical overview out of the way, I will now attempt to describe the most important characteristics of private law codifications, illustrating them with examples taken from cultural history.




1. One of the stated purposes of a civil code is the re-evaluation and revision of the corpus of legal norms in order to adjust them to the altered conditions and to set them down for the record for a longer term. In this sense at least, codification as a process is not unique to the realm of law. Similar re-evaluations and the recording of ensuing results are performed from time to time on other norms regulating human coexistence. As in law itself, this process of re-evaluation reaches its climax when the new rules have been created and, sometimes, even enshrined in various written codes. These days, we can even talk about the ethical codes of certain trades and professions.

The various canons, intended to rank accomplishments of the human spirit and intellect, tend to be less rigorously bound and more limited in their range of effect, but are nevertheless not altogether unlike codes in their conception. The original meaning of the word canon is a “set rule of mandatory force”. In Antiquity, the application of this term was confined to fundamental norms regulating social cohabitation and conduct within the community.2

A literary canon, as we use the term today, refers to the sum total of works and their interpretations that are considered definitive and authoritative within a given community.3 A literary canon defines a given community’s prevailing priority of values and interpretations. It is frequently recorded in synthesising works of literary history and may determine or at least significantly influence mandatory curricula for schools.

2. The same evaluation-based generation of norms is a common occurrence in the fine arts as well, as exemplified by a poetic passage in Dante’s Divine Comedy.4 In Canto X, the poet and his escort enter Purgatory proper after spending time in the antechamber.5Virgil directs Dante’s attention to three sculpted figures, each the height of three men, carved by God into the white marble rock face, of such beauty and dramatic effect that “not merely Polycletus, but Nature also, would be put to shame by it”. Each of the three marble allegories of humility tells a story about human virtue, contrasting them to the examples of pride displayed on the terrace.6

The firstperhaps in imitation of a detail of the fresco by Simone Martini or Giotto7 in the Capella degli Scrovegnidepicts the Annunciation as reported in the Gospel of Luke,8 one of the favourite themes of post-Gothic and Renaissance painting, “so vividly sculpted, in a gentle attitude, that it did not seem a dumb image”.

The second picture tells the story of David familiar from 2 Samuel:9 The humble Psalmist, went, dancing, girt up, in front of the blessed tabernacle: and he was, in that moment, more and less, than King.”

Finally, the protagonist of the tumultuous third painting is Emperor Trajan (98–117 AD) as he leads his troops into battle. At his bridle was a poor widow, in attitude of tearfulness and grief”, asking the emperor for vengeance for his murdered son. At first, Trajan wants to put off delivery of justice until after the war, but the entreaties of the widow convince him to change his mind: “Now be comforted, since I must fulfil my duty before I go: justice wills it, and pity holds me here.”10

In all three reliefs, Dante praises the vivid visual representation of the plot, the storia, as well as the movement and dialogue (the “visible speech”) of the characters. Of Gabriel, bringer of the joyous news, “you would have sworn he was saying: Ave!’” As for Mary, she “was fashioned there, who turned the key to open the supreme Law. And these words were imprinted in her aspect, as clearly as a figure stamped in wax: ‘Ecce ancilla Dei’, behold the servant of God.” Ditto in the scene with David: “People appeared in front, and the whole crowd divided into seven choirs, made one of my senses say ‘No, they do not sing’, another say ‘Yes, they do’. Similarly, eyes and nose disagreed, between yes and no, over the smoke of incense depicted there.” Finally, the dialogue between Trajan and the widow – who at first “seemed to say”, only to actually speak later – condenses the essence of Greek tragedy in its treatment of humility and justice.

By making these three reliefs literally speak to us, Dante turns his back on centuries of static, rigid iconography and Gothic painting, to codify the sacral art of his own age, which is narrative, pictorial and dynamically dramatic at the same time: “Cimabue thought to lead the field in painting, and now Giotto is the cry, so that the other’s fame is eclipsed.”11 Indeed, for all intents and purposes, this new canon is “carved in marble” by Dante.12

3. Mutatis mutandis, the same purpose is served by codifications of private law, in that they respond to changing conditions of human life, signal a paradigm shift, and fix the world-view of a new era to create enduring norms. This thesis can be illuminated by two historic examples.

Section 16 of the Austrian ABGB of 1811 uses notions familiar from the Enlightenment to encapsulate the radical break with the social hierarchy of feudalism: Every individual has inherent rights, already evident from common sense and has thus to be considered as a person.” In its own concise way, this seminal provision is characterised by a near-canonical accuracy in communicating to us a fundamental social change: All men are equal in the eyes of the law. All legal discrimination between individuals is abolished, along with servitude and slavery. It must be considered a provision ahead of its time, even if we remain painfully aware of the fact that no statute has the power, in and of itself, to eliminate or level differences between humans in terms of birth, talent, financial situation, and many other respects. A cradle of human rights, this canon of sorts has reached practical fulfilment over the past two hundred years. Moreover, the cited provision of the ABGB created the abstract category of legal capacity, which to this day serves as the starting point for regulating civil relations by expressing, in a notional form, the possibility of ownership in all legal systems based on the recognition of civilian private property.

A similar paradigm shift encoded in normative form can be perceived in one of the first draft codes in Hungary, which affirms the general protection of private individuals under private law.13 A canonical thesis in its own right, this provision declared that “everyone has the right to express one’s personality within the limits assigned by law and the prohibition of curbing the freedom of other individuals, without being hampered or trespassed by others in the exercise of this right”. In its explanation attached to the “general theoretical rule protecting individual rights”, the Parliamentary Committee stressed “the need […] to define the right of the individual in positive terms, as an absolute right”. This rule of thumb – radically new, indeed revolutionary, for the age, not to mention being worded with uncommon vividness – was adopted verbatim in Section 2:42 of Hungary’s Act V of 2013 on the Civil Code. What is at stake in this provision is no less than the legal recognition and protection of the right of the individual to unfold his potential to the full. Effectively, it reinstated a new code of civil rights after a hiatus of more than a hundred years.




1. The painting Madame Cézanne in Red Armchair, on display at the Cézanne Retrospective of the Autumn Salon of Paris in 1907, prompted Rainer Maria Rilke to comment, in a letter to his wife, that it was “as if each detail in it were familiar with all the others”.14 Codifications of private law aim at enshrining a comprehensive, coherent system (or, to use a more current term, network) of norms regulating horizontal relations among people. One of the cornerstones for a successful civil code is to ensure that each individually defined norm is harmoniously consistent with the other provisions therein, in respect of content, concept and terminology. In other words, each norm of a competently drafted civil code must be “familiar with all the others”. Just to mention one example illustrating the difficulty of accomplishing this, one could do worse than point to the definition of “the thing” as that term is used all over the place in the Code.15

2. The definition of “the thing”, as the object of ownership, governs the meaning of “possession or property”, the efficacy of protecting that property, as well as the notion and procedure of assigning property, in which it is also necessary to define implied warranty and cession. Germany’s BGB and, by default, the Swiss ZGB define “the thing” narrowly, insofar as they limit the meaning of the term to corporeal objects that can actually be taken possession of. Traditionally, the same approach has characterised Hungarian law in general, and the country’s Civil Code in particular. In contrast, British private law expands the notion to include not only movable and immovable goods, but also to marketable rights, assignable contractual positions and claims. Similarly broader definitions are employed by private law in France and Austria. Ultimately, any useful categorical distinction between material rights and contract rights boils down to how we define the notion of “the thing”. If a civil code confines its understanding of property to things in the narrower sense of the term, then the distinction between material and contract rights begins to make sense, while such a distinction becomes nonsensical when the definition of “the thing” is broader.

3. One of the benefits of successful systematisation is the enhanced ability of the codified network of sufficiently abstracted and mutually consistent norms to track changes in human relations in real time, compared to the maze of case-law rules adopted in quick succession, which tend to get lost in the details. By employing a coordinated set of general and particular rules and implied norms, a proper code makes it possible to actually reduce the number of rules we need to use. Furthermore, a well-conceived code of law will be more successful than the eager daily toil of lawmakers and a chaotic flood of regulations in satisfying the prerequisites of legal certainty. Another benefit of a code is that it provides a more solid context for the judiciary as it goes about its business of developing the law and filling the unavoidable gaps in written rules. The afterlife of classic codes of private law fashioned in the 19th century proves that legislative intervention is not always and not inevitably necessary to implement corrections demanded by altered conditions; judicial practice can often fulfil that function perfectly well by giving a fresh interpretation to established rules. Indeed, new legislation only becomes imperative in the face of genuinely profound changes in society, morals, and the general outlook on life.16 For instance, family law around the world was presented with such a massive challenge by the radical transformation of societies and general attitudes in the second half of the 20th century. Another example came from the post-Communist countries where the exigencies of the market economy and of once again recognising private property clearly called for legislative intervention in the form of codifying private law.




1. Private law and its codification mainly exert their influence on the daily life of civil society. Codes of private law set forth, systematise and solidify the legal norms underpinning the branching relationships, both personal and material, among legal subjects, including people and their organisations. By so doing, they make a vital contribution to legal certainty in horizontal human relations.

Speaking of the Roman Twelve Tables (451 BC), Fustel de Coulanges proposes that “[i]f it is sometimes possible for man quickly to change his political institutions, he cannot change his legislation and private law except slowly and by degrees. The history of Roman law, as well as that of Athenian law, proves this.”17 Indeed, private law codifications do not normally affect the fundamental structures of ownership and property, except in extraordinary circumstances of history, typically in the wake of revolutions, and then only in an indirect way and to a limited extent, such as by adopting new rules of inheritance. This lesson can be readily drawn from many edifying junctures of history.

2. Let us take the first example from the dawn of the bourgeois transformation in Hungary. In his study informed by the theories of Jeremy Bentham18 and entitled After the Revolution”, Zsigmond Kemény writes that “[t]he most influential changes in common law, the most generic revolutions arise from the issues of class and succession. Viewed over a longer stretch of time, it is the covenants of private law that define the nature of the constitution a given state is to adopt, and determine whether the supervision of public affairs will be entrusted to the aristocracy, democratic forces, or, as the case may be, to socialism or theories aimed at dissolving all forms of order.”19 While Kemény’s thesis is undoubtedly true, it is important to note that what he means bycovenants of private law” is not the total of rules governing private law which provide for the horizontal relations between legal subjects, i.e. the actual object of private law codification, but rather the way in which the ownership relations underpinning social order are conceived. This is because the legal foundations of ownership are never laid by the rules of private law, but by acts of common law. The case was no different with the April Laws of 1848, which Kemény obviously had in mind. The road to civil society, not least including the industry of lending and an efficacious legal system of credit surety (both of which Széchenyi so ardently urged), presupposed the creation of land ownership that was marketable as any other goods, free from feudal encumbrances.20 For all these reasons, acts belonging to common law by nature had to be enacted in the first place. Act IX of 1848 therefore emancipated serfs by abolishing villein socage and pledging the redemption of fiefs once and for all. Another Act, adopted in the same year under No. XV, abolished the legal institution of entail. Just as importantly, it became the first law in the history of Hungary to mandate the enactment of a Civil Code.

Instances from the recent history of Eastern Europe will lead us to similar conclusions as we scrutinise the social impact of common law and private law provisions. Neither the drastic laws created around the middle of the 20th century to legitimise en-masse nationalisation of property, nor the counteraction of privatisation laws adopted after 1990 belong in the realm of private law, consequently they cannot be contemplated as objects of private law codification. These acts were strictly common law in nature. The former simply eliminated private property as the raison d’être for civil society (and private law), while the latter restored it, in whatever measure they succeeded.

3. By contrast, the bastions of social order can be significantly impacted by the enactment possibly even codification of private law provisions regulating succession. Such an influence was certainly exerted by new legislation during the French revolution, which abolished first-born privileges of inheritance and replaced it with the mandatory equal share of children in the family, thereby indirectly contributing to the fragmentation of expansive feudal estates. The principle was, for the most part, embraced by the Code civil. It was certainly with justified pride that Napoléon21 could write to his brother Joseph Bonaparte, King of Naples (1806–1808): “Introduce the Code civil in Naples, and whatever is not to your liking (i.e. the large estates) will embark on a path of dissolution in a couple of years. This is the best part of the Code civil […] what really made me conceive it. And this is why an English diplomat was right to point out that the French have grown flabby under their ancient system of succession.”22

The tool of legal succession was employed by Queen Anne a century before, to similar ends of social policy, spiced with more than a hint of discrimination. In the interest of buttressing landholders faithful to the Church of England, a law enacted in 1703 stipulated equal shares of inheritance by male heirs exclusively for estates of Catholic legators, while sustaining first-born privileges in Anglican families. The law was careful enough to expressly prevent Catholic testators from circumventing it, even by means of disposition.23 Needless to say, laws of inheritance and succession do not directly affect the foundations of society, if only because inheritance is limited to material assets in private property. And, as we have seen, enacting the legal structure of ownership is a matter of norms under common law.




1. Private law codification was instrumental in forging and consolidating individual states and their alliances. It is particularly true for codices of private law created in the 19th century that they were primarily motivated by the call to represent the unity of the nation state as it appeared in private law.24 The need to enable a genuine internal legal cohesion and homogeneity inevitably required the abolition of particularised private law systems, and the best way to do it was by codifying private law.

And herein lies the most important contribution of the Code civil. When it was drafted, the legal system of France had been standardised for a while, but its private law had been far from being solid. The medieval line of demarcation between the respective private laws of provinces north and south had persisted until the end of the 18th century. In the South, roughly south of the Loire, the core of private law had been supplied by the so-called droit écrit, based on Roman law. By contrast, the northern provinces (pays de droit coutumier) had built on hundreds of German custom laws in establishing their own private law. True enough, of these many custom laws only a few had remained in active application in a larger sphere of influence, for instance in Paris and Orléans. In any case, the enactment of the Code civil proved a decisive step toward negating particularism and standardising French private law. At the same time, it contributed significantly to the consolidation of the French nation state.25 Italy, on its way to becoming a nationstate, soon followed suit by standardising particular private laws in its first Codice civile (1865).26

Until the German unification of 1871, various German kingdoms, principalities and city states had observed a private law more or less their own. Although these all rested on a common private law based on the Roman model that was adopted in 1495 (the so-called gemeines Recht), the discrepancies between them were nevertheless significant, particularly in view of autonomous codes adopted by Bavaria (1756), Prussia (1794) and Saxony (1863). Yet the unity of the Imperial German state inevitably required an effort to standardise private law across the empire. This is precisely what was accomplished by the BGB,27 drafted in 1896 and entered into force in 1900.

Much the same function of consolidating statehood was fulfilled by common private law codes adopted by countries that could not be classified as nation states, for instance by the cantons of Switzerland (1883, 1911) or the Habsburg Empire (1811).

2. The dissolution of the Soviet Union provided yet another example of similarly rooted developments in using private law codification as a tool to consolidate autonomous statehood. Upon regaining their independence, the former member states, the Baltic countries first among them, hastened to confirm their autonomous identity by adopting their own codes of private law, at the turn of the 20th and 21st centuries. Estonia and Lithuania enacted a brand new code of private law (in 1993–2003 and, respectively, in 2003), while Latvia resuscitated its Code dating from 1937, before the Soviet occupation, which re-entered into force in 1992–1993.

3. The European Union itself has taken steps toward a standardised private law. For the time being, the various bodies of the EU have confined themselves to issuing directives and guidelines in the attempt to harmonise private law across member states, and these efforts have been limited to specific fields of private law, such as intellectual property, trademarks, corporate law, consumer protection and the like. These focuses notwithstanding, the EU clearly aims at standardising laws in a broader sweep, particularly as regards contract law. The earnestness of this effort is reflected by working documents and plans prepared by international teams of experts, such as the Principles of European Contract Law (PECL),28 or the Draft Common Frame of Reference (DCFR).29 Despite these developments, however, it must be said that, for a variety of political and professional reasons, the enactment of a standardised private law for the EU remains a remote possibility today.

Translated by Péter Balikó Lengyel



1 See Gábor Hamza: Entstehung und Entwicklung der modernen Privatrechtsordnungen und die römischrechtliche Tradition. Budapest: Eötvös University, 2000, pp. 209–215, 224–229, 249–255, 287–290, 629–683.

2 See Jan Assmann: Das kulturelle Gedächtnis: Schrift, Erinnerung und politische Identität in frühen Hochkulturen. Beck: München, 1997.

3 For an approach of literary canons from multiple perspectives, see Mihály Szegedy-Maszák: Megértés, fordítás, kánon (Understanding, Translation, Canon). Bratislava: Kalligram, 2008.

4 Dante Alighieri: The Divine Comedy. A Translation into English Prose by A. S. Kline. Kindle Edition, 2000.

5 Purgatorio X, 28–93.

6 See Richard Lansing (ed.): The Dante Encyclopedia. New York: Garland Publishing, 2010.

7 Purgatorio XI, 94–96.

8 Luke 1, 28–38.

9 2 Samuel 4, 14–23.

10 The scene is depicted in several works of art, such as Rogier van der Weyden’s tapestry (Bern Historical Museum) and No. 92 of Doré’s illustrations to Dante.

11 Purgatorio XI, 95.

12 See Ivan Nagel: Gemälde und Drama – Giotto, Masaccio, Leonardo. Frankfurt am Main: Suhrkamp Verlag, 2009, pp. 51–59.

13 Section 17 of the so-called “Committee Draft” of 1915.

14 See Rainer Maria Rilke: Briefe über Cézanne, Hrsg. von Clara Rilke. Frankfurt am Main: Suhrkamp/ Insel Verlag, 1983, p. 7.

15 See Attila Menyhárd: Dologi jog (Material Law). Budapest: Osiris, 2007, pp. 44–55.

16 See Lajos Vékás: Az új Polgári Törvénykönyv elméleti előkérdései (Theoretical Premises of the New Civil Code). Budapest: HVG-ORAC, 2001, pp. 17–19, 21–24.

17 Numa Denis Fustel de Coulanges: The Ancient City. A Study on the Religion, Laws and Institutions of Greece and Rome (an English translation of La Cité antique, 1864). Batoche Books, Kitchener, Ontario 2001, p. 264.

18 Jeremy Bentham: An Introduction to the Principles of Morals and Legislation. Clarendon Press, 1789.

19 Zsigmond Kemény: “Forradalom után” (After a Revolution), in: Változatok a történelemre (Versions of History). Budapest: Szépirodalmi Könyvkiadó, 1982, pp. 228–229.

20 István Széchenyi: Hitel (Credit). Pest: Trattner és Károlyi, 1830.

21 For Napóleon’s personal involvement in the creation of the Code civil, see Eckhard Maria Theewen: Napoleons Anteil am Code civil. Berlin: Duncken & Humblot, 1991.

22 Cited by Béni Grosschmid: Magánjogi tanulmányok (Studies in Private Law). Budapest: Politzer Zsigmond és Fia, 1901, pp. 5–6.

23 See Béni Grosschmid: Magánjogi tanulmányok. Budapest: Politzer Zsigmond és Fia, 1901, p. 343.

24 See Franz Wieacker: “Der Kampf des 19. Jahrhunderts um die Nationalgesetzbücher”. In: Industriegesellschaft und Privatrechtsordnung. Frankfurt/M: Fischer Athenäum Verlag, 1974, pp. 79– 86.; Karsten Schmidt: Die Zukunft der Kodifikationsidee: Rechtsprechung, Wissenschaft und Gesetzgebung vor den Gesetzeswerken des geltenden Rechts. Heidelberg: C. F. Müller Verlag, 1985, p. 34.

25 See Paul Ourliac/Jehan de Malafosse: Histoire du droit privé I–III. Paris: Presses Universitaires de France, 1957–1969.

26 See Alberto Aquarone: L’unificazione legislativa e i codici del 1865. Milano: Giuffrè, 1960.

27 See Heinrich Getz: Die deutsche Rechtseinheit im 19. Jahrhundert als rechtspolitisches Problem. Bonn: Ludwig Röhrscheid Verlag, 1966.

28 See Ole Lando/Hugh Beale (eds.): Principles of European Contract Law. (Part I and II, Combined and Revised). The Hague/London/Boston: Kluwer Law International, 2000, p. 561; Ole Lando/Hugh Beale/Eric Clive/André Prüm/Reinhard Zimmermann (eds.): Principles of European Contract Law (Part III). The Hague/London/New York: Kluwer Law International, 2003, p. 291.

29 See Christian von Bar/Eric Clive (eds.): Principles, Definitions, Model Rules of European Private Law Draft Common Frame of Reference (DCFR), Full edition in 6 volumes. München: Sellier European Law Publisher, 2009.

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