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Donata Eick NotesLegal Histroy 2018-2019
RUG International and European Law
Legal History Exam Notes
Natural Law
Legal History Week 1 part A
Codification :What does codification mean?
– Latin:
codex = book (esp. law code)
facere = to make
o Criminal law:
Government (‘prosecutor’)<-->Citizen (‘suspect’)
o Private law: Citizen (‘plaintiff’) <-->Citizen (‘defendant’)
The term codification is relatively recent dating back to the time of Enlightenment – Jeremy Bentham
(1748-1832) in University College of Londen (UCL) → invented the idea/concept of codification =
David Dudley Field II in the USA
Codification= the way we structurize the law = The need to record law comes from the need for legal
certainty
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.
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.
3 essential elements
A. Provisions committed to writing (written provisions).
An unwritten codification is not possible although every codification is an act of legislation,
not all legislative activities are codifications
B. Issued by body with authority (government). → legislature – body with power to legislate
A codification is not conceivable in a society which doesn't have a government.
NOT VALID if there is a government but does not exert real authority over its subjects e.g.
government in exile.
C. Exclusivity (because of the government’s authority):
no other sources of law to be used. → the only source of law to be used (in codified system).
No laws can be made outside the codes. No other sources of law are allowed = tied to the rule
in the codification.
,Donata Eick Notes
Legal Histroy 2018-2019
RUG International and European Law
Usually a exclusivity clause
This exclusivity can be traced back by Jean Jacques Rousseau (1712-1778) - Contrat Social (1762):
Rousseau’s theory is about the foundation of the relationship between the governing authority and its
subjects.
A free person can only be subjected to rules once he has agreed to them of his own free will =
Social contract: the act through which all members of society place themselves and their property under
the authority of the will of that society. A group of people, a nation gives up his natural freedom for civil
freedom → volunté générale – subjugation of his individual will to that of society
A record of law is only a codification if it is complete – no other law applies in the same field. The
authority of the government grants completeness to the collection of written laws.
How do you need to organize society and how can you create binding laws for a society?
o You need a social agreement. The minority has to follow the majority. (“La voluntaire
générale”
o Represents everybody - legislature → forced to bind everybody
How can we deal with outdated text?
It needs to be interpreted: through interpretation it will gain meaning, validity, explaining
Explaining is therefore giving meaning to something
The vagueness makes it more easier to reinterpreted a text. It can be adapted to the period and
circumstances.
Historical outdated text can function as a foundation of living law. 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.
Codification & Interpretation
Interpretation gives meaning to words.
How can recent or more ancient law be used to settle disputes in modern society? → the judge
interprets/ interpretations by Judiciary
There are always a multitude of interpretations
Interpretation keeps codification “young”
‘Codifications’ of civil law e.g.:
o France (1804)
o The Netherlands (1809/1811/1838/1992)
o Germany (1900)
o Special case: Law codes of Justinian (533-534)
o Louisiana state of USA does not follow a common law system. It has a legal codified system.
– Examples: Academic statute for PhD ceremonies → e.g. Groning 1 Hr = 45 min
,Donata Eick Notes
Legal Histroy 2018-2019
RUG International and European Law
Bourne (Inspector of Taxes) v. Norwich Crematorium Ltd., [1967] 1 W.L.R. 691, at 695, per Stamp J.
Bourne (Inspector of Taxes) v. Norwich Crematorium Ltd., [1967] 1 W.L.R. 691, at 695, per Stamp J.
- Was there a tax allowance rule for money spent on building a crematorium?
- Income Tax Act 1952: manufacturing of goods and materials or the subjection of goods and
materials to any process’
In a codified society the relationship between writer and interpreter is formalized:
There is an official authoritative author (the legislature) &
Official authoritative interpreter of the text (the judge)
The Legislator
Legislator’s powers are limited; he can issue laws, but he has no control over their future
explanation.
There is a need for clarity language which is used must be dry – abstain from using flowery
expressions
Judge according to Montesquieu is the mouth of the law
Authoritive explanation by the legislator is called the authentic interpretation
Legislator’s attempts to keep danger of ‘damage’ to his code of law; ‘référé législatif’ the judge
decides for himself, by way of explanation, whether the law should refer back to the legislator.
The final word is with the interpreter; he decides the content of the legal rule, aided by his
knowledge and insights.
Many times in history a belief was held – in vain – that the end to all problems would be found in
writing law on paper
Legislators most important role is to authorise code of law – The legislator – being the government – 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.
He is obliged to create best possible code of law
Purposes of Codification:
1. Legal Certainty – Person has the right to know on the basis of which legal regulation the sentence
was administered. – NB in criminal law = nulla poena sine previa lege poenali
2. Economical – Cross-border trade and money transactions demand a uniform regulation – e.g. EU
3. Political – Civil law in particular is an important way to forge and strengthen a slowly
maturing national unity, often established during politically tumultuous times.
Codification is always complete and thus inexhaustible
The Judge:
Nix v. Hedden, 149 U.S. 304 (1893)
Tariff Act 1883: Tax on imported ‘vegetables’
Subscription for cellphone use, phone for free, price included in fee for using phone
A form of loan for consumers?
, Donata Eick Notes
Legal Histroy 2018-2019
RUG International and European Law
Formal completeness: judge bases its outcomes on the law. This is what the judge needs to use. This is
what the judge can use in the sense of the sources of law.
Vs
Material Exclusivity: all possible scenarios are accounted for (not possible = fallacy)
Codifications are never materially complete
Interpretation methods:
Intrinsic (considering the text itself not looking at anything else)
1. Grammatical interpretation → Looking for the most common meaning = Plain meaning of the
text/ Words in daily usage is taken into account
o Used a lot in common law UK/ criminal law
Extrinsic (taking other factors into account)
2. Systematic interpretation →Checking how a rule fits into the system of law, how it relates to
other rules, how facts that are to be assed can be fit into the system and can be construed as a
legal concept
o Using a definition from a statute to use to understand another piece of legislature e.g. horse
carriage/ Road Traffic Act
3. Interpretation based on legislative history → (statute-historical using legislative history). Try
to determine what the legislature meant when the text was written possible to try determine
what legislator meant when text was written
4. Historical interpretation (legal history of provision). Looks at the origin of particular rule e.g.
Roman Law
5. Teleological interpretation (Telos : purpose) → look at the intent of a rule. Used quiet a lot in
treaty law. Objective of a rule is taken into account in which the explanation is made subordinate
to this objective
6. Analogy: 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. the unregulated case looks like the case that is covered by the rule = A leap is made, as
it were, in order to arrive at the solution
NB to establish and authority that is the only interpreter of law = all other interpretations by other
parties have no authority
No single world has one meaning. A good lawyer can play with this. Different interpretation e.g.
Zantvoort Pool Bathcape case.
Dutch Supreme Court:
Sometimes changes its interpretation (overrules itself)!
o Example is an ‘illegal act’ (art. 1401 Old Civil Code [BW]): in Waterpipe in Zutphen Case
Where leather was being processed. Because of the cold the water pipes leaked and
the main screws had to be closed to stop leather from being destroyed however
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