Modernization of Civil Law across the 19th Century

Foreword

This article delves into the evolution of civil law following the Napoleonic Code, examining how different legal systems in Germany, Switzerland, Italy, and Japan adapted and developed before World War I. The Napoleonic Code, enacted in 1804, had a profound influence on legal structures around the world, providing a foundation for the modernization of civil law.” This exploration offers a comparative analysis of how these nations integrated elements of the Napoleonic Code while preserving their unique legal traditions.

In Germany, Roman law's reception laid the groundwork for a professional legal system that culminated in the German Civil Code of 1896. This code emphasized state sovereignty and the bureaucratic development of law, whereby judges served as state-trained experts. The Swiss Civil Code, implemented in 1912, was crafted by Eugen Huber, who drew upon both the Napoleonic and German codes. It provided Switzerland with a unified legal framework, reflecting the country's diverse linguistic and cultural heritage.

Italy's legal landscape underwent significant transformation during the 19th century. The introduction of the Italian Civil Code in 1865 marked a departure from previous feudal systems, in alignment with the ideals of the Napoleonic Code while emphasizing civil liberties and legal coherence. This new legal order was instrumental in shaping Italy's national identity and governance.

Japan's legal reform was particularly noteworthy, as it incorporated Western legal concepts while retaining elements of its indigenous traditions. The Meiji Restoration ushered in a period of profound legal transformation, culminating in the Japanese Civil Code of 1898. Influenced heavily by the German model, this code facilitated Japan's transition into a modern nation-state with a legal system that balanced Western principles with traditional Japanese values.

By examining these legal systems, this article highlights the diverse ways in which civil law evolved in response to the challenges of modernization and globalization before the onset of World War I.

The German Private Law

Roman law, as epitomized in the Corpus Juris Civilis (Body Civil of Law), was assimilated into Germany from the 15th century onwards, establishing a legal profession and a system of jurisprudence (Juristenrecht). Roman law served as the theoretical foundation for legal advancements that culminated in the scholarly works of the 19th century. In this tradition, the legal process in Germany is perceived as the application of broadly formulated rules to specific cases. German courts have historically been less influential in law development compared to their counterparts in common-law nations. Roman law provided mechanisms to fortify sovereignty and promoted the idea that legislation is a state monopoly. Consequently, the development of law has been the responsibility of a legally trained, state-regulated bureaucracy rather than, as in 18th and 19th century in England, a combination of the gentry and legal leaders. German judges, traditionally university-trained experts under state authority, have operated with judicial anonymity. However, in the 20th century West German judges have assumed a more proactive role, especially in constitutional matters.

Figure 1: The proclamation of the German Empire

The German Civil Code, enacted in 1896, benefited from nearly a century of scholarly efforts to systematize, clarify and modernize the law. As a result, the German code differs significantly from its French predecessor, featuring a more orderly structure, precise language, and rigorous application. The appeal of the German code is directed towards legal professionals, contrasting with the more accessible tone of the French Civil Code. Moreover, it accentuates ethical imperatives, mandating good faith and fair dealing in all affairs, and invalidating actions that breach good morals, abuse rights, or involve underhanded transactions. The code, designed to suit the society of the early 20th century, remains adaptable to new economic, cultural, and sociopolitical developments through general clauses that allow judges to elaborate specific norms.

In German private law, the Civil Code begins with the principle that every individual acquires the capacity to exercise rights and fulfill duties at birth. Minors are represented by guardians, and full legal capacity is attained at age 18. Individuals have the right to personal security and protection from attacks on their dignity, enforceable through court action.

Marriage in Germany, since 1875, requires a civil ceremony conducted by a registrar, with optional religious ceremonies following. A marriage can be annulled on various grounds, with consequences similar to divorce, and since 1976, the sole ground for divorce has been the breakdown of the marriage. After the 20th century, reforms have aligned marriage laws with gender equality principles, replacing the traditional marital-property regime with separate management and equal sharing of acquisitions during marriage. Upon a spouse’s death, the surviving spouse receives a significant portion of the estate, and both parents share responsibility for their children's welfare.

In succession, the decedent’s assets pass directly to the heirs, who are determined by intestacy rules or testamentary disposition, without passing through an administration stage. Heirs are liable for the decedent's debts but can limit their liability to the estate's assets. Wills can be unwitnessed if handwritten by the testator, or public wills can be declared orally or in writing before an official. Close relatives and spouses cannot be deprived of more than half of their intestate shares.

Figure 2: The proclamation of the German Empire, Anton von Werner. 1885

Property ownership entails community obligations, particularly in farmland management for efficiency and production enhancement. Transactions involving immovable property require registration with the district court, and good faith acquisition is protected. For movable property, the transferor must possess the item, the transferee must act in good faith, and the original owner must not have lost possession involuntarily. Transactions need not be for value, but unjust enrichment claims may require restitution or compensation.

Contracts in German law are governed by principles of good faith and ordinary usage, with courts determining what constitutes “ordinary usage.” Contracting parties must adhere to statutory prohibitions and moral standards to avoid fraud. In breach of contract cases, the promisor is liable for damages unless the breach was entirely beyond their control, but specific performance may be ordered if feasible. The principle of returning unjust enrichment is broadly stated but cautiously applied by courts.

In delict, any person who intentionally or negligently harms another’s life, body, health, property, or other rights must compensate for the damage. Damages are also due for statutory violations intended to protect others and for intentional and immoral harm. Remedies against the government are available for public officer misconduct.

Swiss Legal Framework

The Swiss Civil Code, also known as the Code Civil Suisse or the Schweizerisches Zivilgesetzbuch, represents a pivotal compilation of private law crafted by jurist Eugen Huber towards the end of the 19th century. Enacted in 1907 and effective from 1912, this code continues to underpin Switzerland’s legal system, albeit with amendments. Huber, benefiting from the prior establishment of the Napoleonic Code of 1804 and the German Civil Code of 1896, managed to sidestep many issues that plagued earlier codifications, while incorporating elements unique to Switzerland.

Figure 3: Eugen Huber

This legal corpus begins with an introductory section detailing its applicability. It is then divided into four primary books: the first addresses the law of persons, encompassing the law of associations akin to the German Civil Code; the second book focuses on family law, particularly matrimonial regimes and guardianship; the third covers inheritance law; and the final book pertains to property law. Complementing the civil code is a distinct federal code of commercial and personal obligations, effective from 1881, which acts as its counterpart.

In the 19th century, Switzerland’s 25 cantons adhered to varied and often conflicting customs, with discrepancies even within individual cantons. The French-speaking cantons showed significant influence from the Napoleonic Code, yet local customs in areas like guardianship and matrimonial regimes led to inconsistencies. In German-speaking regions, the disarray was more pronounced although the Civil Code of Zürich (1853–55) inspired some subsequent codifications.

Efforts towards national codification were hindered by the 1848 constitution, which left private law to the cantons. This obstacle was somewhat alleviated after 1872 when the federal government gained authority over certain civil-law issues, primarily commercial matters. The first outcome was the federal Code of Obligations in 1881, standardizing commercial law. Despite this, a comprehensive private law code remained absent with multiple succession laws and varying precedence rules based on residency or birthplace.

By 1896 the federal government assumed jurisdiction over civil law. Huber was tasked with drafting a preliminary code which was adopted in 1907, after minor revisions by a commission in 1901, and became effective in 1912. The code introduced a land-registry system and reformed various aspects of family and inheritance law, providing essential uniformity in Swiss private law.

The Swiss Civil Code’s influence extended beyond Switzerland. It was adopted by Turkey and shaped the legal systems of several countries, including Peru and Brazil. This demonstrates the code’s robustness and adaptability, making it a model for legal systems aiming for comprehensive and coherent private law frameworks.

The First Italian Civil Code

The evolution of Italy's legal system reflects its complex history, spanning over two millennia, from the Roman Empire to the present Italian Republic. This historical journey mirrors the transformations and developments of Italy as a nation and society. Throughout history, Italian law has played a vital role in shaping the country's identity and culture, embodying the distinct character of its society.

Italy's legal system has undergone significant changes over time, adapting to the evolving needs and demands of different periods. These adaptations are evident in various legal reforms that have shaped the nation's history and continue to influence its legal framework today.

Figure 4: Civil Code of the Kingdom of Italy, 1865.

During the formation of the Italian nation state in the 19th century, Italy underwent significant legal reforms to align its legal system with the new political and social realities. The Napoleonic Code, introduced in 1804, served as an exemplary model for modernizing the Italian legal framework. Its revolutionary nature, emphasizing civil rights and freedoms, offered a blueprint for an efficient and progressive legal system. As a result, the Italian Civil Code, introduced in 1865, drew heavily from the principles of the Napoleonic Code. This code remains a fundamental component of Italy's legal system, highlighting its enduring influence on the country's legal landscape.

The impact of the fascist regime, which came to power in 1922 under Benito Mussolini, was a pivotal moment in the Italian legal system. The fascist government sought to reshape the legal framework to reflect fascist ideology, prioritizing state authority over individual rights and freedoms. This period saw the suppression of political opposition and the implementation of laws that curtailed individual liberties. The Rocco Code, a significant piece of legislation introduced in 1930, exemplified the regime's control over the population by limiting freedoms of speech and the press and restricting the right to strike.

The ongoing evolution of Italy's legal system demonstrates its adaptability to the changing political and social landscape. Italy's legal history is a testament to its resilience and commitment to balancing tradition with modernity, making it a fascinating study in the intersection of law, history, and culture. As Italy continues to evolve, its legal system will undoubtedly play a crucial role in shaping the nation's future, reflecting its unique heritage and contemporary challenges. This rich legal history offers invaluable insights into the intricate relationship between law and society, providing a foundation for understanding Italy's past and its path forward.

Japanese Law after the Meiji Restoration

Following the Meiji Restoration of 1868, which dismantled feudal privileges and reinstated titular power to the emperor, the new Japanese government sought to establish an economic, political, and legal framework that would command international respect. The adoption of Western law was a significant aspect of the comprehensive importation of Western elements. In legal matters, Japan modeled its systems after those of continental Europe, particularly Germany. The architects of the Japanese Civil Code of 1898 reviewed numerous legal systems, including those of France, Switzerland, and common-law countries, integrating elements from each. Nevertheless, their final draft predominantly reflected the initial draft of the German Civil Code. Subsequent developments in Japanese law remained faithful to these influences. In 1947, amendments to code provisions addressing family law and succession, which had incorporated traditional Japanese attitudes, finalized the transition of Japanese civil law to align with the continental European legal tradition.

Figure 5: Meiji Constitution Illustration. 1890

In various aspects, however, Japanese law bears a closer resemblance to that of the United States of America than to European models, especially in the realms of public and constitutional law. This is largely attributable to the post-World War II occupation and subsequent exposure to American legal thought and education. From the standpoint of private law rules and institutions, the Japanese legal system remains more aligned with European civil law than with the common law of the United States of America. Nonetheless, the Japanese legal framework differs significantly from all Western legal systems.

The certainty that Japanese law did not evolve organically indicates that its role in modern Japanese society differs substantially from its function in Western societies. In Japan, law plays a much less pervasive role in dispute resolution and the formulation and modification of conduct-regulating rules. The Japanese legal profession is small, and extralegal dispute resolution methods are still widely utilized.

The concept of family in Japan extends beyond the immediate nuclear family. The idea that a business functions similarly to a family unit also endures, which influences labor relations, particularly in small and medium-sized enterprises. In Japan's relatively homogeneous society, social status imposes substantial obligations, and community pressure is exceptionally influential.

Therefore, although Japan adopted a variant of the German Civil Code early on, it did not embrace the German strong consciousness of legal rights. In many facets of Japanese life, it remains challenging to predict whether a dispute will be settled based on legal standards, and it is often uncertain whether an individual will assert the rights legally available to them. Western legal principles, such as the predictability of legal consequences before conduct occurs, full effect to legal claims in disputes, and resolution of individual disputes without regard to the parties’ social and economic background, have not deeply permeated Japanese law. Instead, conciliation facilities are employed to facilitate adjustments based on nonlegal considerations; local police stations provide conciliation rooms, and community elders serve as intermediaries. Compromise based on legally irrelevant factors is encouraged, and disputes are frequently resolved through methods outside formal legal processes.

Figure 6: Peace conference in Imperial Japan, 1895

Conclusion

The examination of civil law development following the Napoleonic Code reveals the profound and varied influences this legal framework had on multiple jurisdictions. In Germany the reception of Roman law laid the foundation for the German Civil Code of 1896, which emphasized state sovereignty and a professional legal system. This codification marked a departure from traditional law, establishing a structured and efficient legal order that underscored the role of the state in lawmaking and judicial processes.

Switzerland’s adoption of the Swiss Civil Code in 1912, crafted by Eugen Huber, provided the nation with a cohesive legal framework. This codification, influenced by both the Napoleonic and German models, successfully unified the country's diverse legal traditions, reflecting its multilingual and multicultural character. The Swiss Code's adaptability and clarity ensured its relevance and applicability in a rapidly changing society.

In Italy, the introduction of the Italian Civil Code in 1865 represented a significant shift from feudal legal systems to a modern legal order inspired by the Napoleonic Code. This codification highlights individual rights and legal uniformity, playing a crucial role in the formation of Italy’s national identity and governance structures. The Italian Code integrated various regional laws into a coherent system, promoting legal consistency and justice across the nation.

Japan’s legal transformation during the Meiji Restoration culminated in the Japanese Civil Code of 1898. This code, heavily influenced by the German model, facilitated Japan’s modernization by incorporating Western legal concepts while preserving traditional Japanese values. The Japanese legal system’s ability to blend foreign influences with indigenous practices exemplified its flexibility and resilience in the face of rapid societal changes.

The investigation into these significant codifications highlights the diverse pathways through which civil law evolved in different nations before 1915. Each legal system, while drawing inspiration from the Napoleonic Code, tailored its codification to reflect its unique historical, cultural, and social contexts. This comparative analysis underscores the dynamic interplay between legal tradition and innovation, demonstrating how civil law can adapt to meet the demands of modernity while preserving essential aspects of national identity.

Bibliographic References

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Huber, E. (1912). Swiss Civil Code. Zurich: Orell Füssli.

Merryman, J. H., & Pérez-Perdomo, R. (2007). The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America. Stanford: Stanford University Press.

Schlesinger, R. B. (1998). Comparative Law: Cases, Text, Materials. New York: Foundation Press.

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Visual References

Figure 1: Legal System in Germany, 1895

https://www.reddit.com/r/europe/comments/1bi0dh7/legal_system_in_germany_before_the_unification_of/

Figure 2: The proclamation of the German Empire, Anton von Werner. 1885

https://human.libretexts.org/Workbench/Modern_World_History%3A_New_Perspectives/05%3A_Economic_Transformation_and_Nation-Building_-_1800-1900/5.07%3A_Illiberal_Modernization_-_Germany

Figure 3: Eugen Huber

https://hls-dhs-dss.ch/it/articles/004533/2022-09-27/

Figure 4: Civil Code of the Kingdom of Italy, 1865.

https://www.anticousato.com/codice-civile-regno-italia--regio-decreto-ordinamento-stato--procedura-1865

Figure 5: Meiji Constitution Illustration. 1890

https://visualizingcultures.mit.edu/throwing_off_asia_01/toa_vis_02.html

Figure 6: Peace conference in Imperial Japan, 1895

https://jsis.washington.edu/earc/japan-during-the-meiji-1868-1912-and-showa-1913-1989-eras/