Introduction

The development of European law since around 1750 has been characterized by a recurring and generally successful effort to regulate broader domains of law, such as civil law or criminal law, through the use of codification.¹ Codification refers to the creation of comprehensive and systematically structured legal codes that have an exclusive nature, meaning that they serve as the sole source of law within their respective domains, superseding other legal sources. This has further implications such as that the judge's decisions should primarily rely on the provisions outlined in the codification. Certain codifications, therefore, impose binding rules on the judge regarding the manner of application (usually understood as interpretation) and gap filling. At the same time, these codifications deny judgments any binding force beyond the specific individual case. The underlying principle is that there should be no judge's law beyond codification. This is consistent with the above-mentioned exclusion of other sources of law. Nonetheless, it is impossible to fully implement the exclusionary effect of the codifications. Some codifications therefore include provisions specifying the extent to which other sources of law may still be consulted in the relevant area.

Only certain parts of the legal systems proved capable of codification, particularly those with rules that are deemed to possess a relatively unchanging nature – either enduring over extended periods or maintaining long-term relevance. In this respect, administrative law proves to be incapable of codification, as its content is subject to frequent changes. The primary focus of codifications lies in judicial law, which encompasses the laws applied by the courts, including civil law, civil procedure law, criminal law, and criminal procedure law. Codifications of commercial law were added as special civil law (Sonderzivilrecht). Constitutional law also presents a significant area for codification.² Since the French Revolution, the concept of the "constitutional state" has emerged, wherein constitutional law is codified within a formal document known as a "constitution," "basic law," or "constitutional charter." In this context, the idea applies that constitutional law should not exist outside the framework of the "constitution," unless the constitution explicitly refers to implementing laws. While both judicial law and constitutional law share the concept of "codification," they follow distinct paths of development.

Throughout Europe's legal history, three notable waves of codification emerged. The first wave occurred around 1800 and focused on the codification of natural law. The second wave, around 1900, centered on the field of pandectics. Finally, the third wave took place within the socialist legal system, spanning a more extended period and reaching its initial culmination after the Russian Revolution with the Civil Code of the Russian Soviet Federative Socialist Republic in 1922. This wave continued to gain momentum in the decades following the Second World War. Although judicial law served as the cornerstone of these developments, codifications also extended to other realms of law.

Codifications of judicial law

The codifications of civil law hold a prominent position in contemporary legal discourse and receive considerable attention. There is a straightforward explanation for this: Civil law has a broad impact on every citizen, unlike criminal law and procedural law, which only come into play in the event of a dispute. The development of civil law codifications can be traced back to several influential factors, which are discussed below. They are grounded in preceding legal-theoretical contexts, and their emergence is driven by state-political demands. For the most part, the other codifications of judicial law are clustered around them.

The pre-codification period

During the 16th century, as Roman law gained recognition, attempts were made to consolidate the entire legal system of a country into a national code, alongside other legislative acts.³ However, most countries opted for partial codes, focusing on specific areas such as criminal law and criminal procedure. The task of creating a truly comprehensive national code was often deemed too ambitious. Even when "Landesordnungen" (state ordinances) were issued, they did not encompass the entirety of national law as their name suggested. Instead, they covered specific legal domains such as civil law, criminal law, procedural law, administrative law (police law), and sometimes only specific aspects within these domains, such as inheritance law and contract law in civil law. As a result, additional laws continued to coexist alongside state ordinances. Therefore, these state ordinances lacked the exclusive nature of later codifications, and in most cases, common law provisions also applied subsidiarily.

The natural law codifications

The emergence of the first codifications was the result of the interplay between absolute state power, jurisprudence rooted in natural law, and the theory of legislation ("Gesetzgebungslehre"). The objective of the state was to achieve legal unification, which was particularly significant for composite states like the Prussian and Habsburg monarchies. Jurisprudential efforts aimed at establishing legal rules based on natural law principles, which were considered eternally "correct." The theory of legislation sought to create a systematic framework and precise terminology for these legal rules. Two paths were taken to achieve this goal. The General Land Law for the Prussian States (Allgemeines Landrecht für die preußischen Staaten, ALR) of 1794⁴ followed the older concept of state order and contained approximately 20,000 paragraphs covering public law (such as state-church law and administrative law), civil law (including general civil law and commercial law), and criminal law. However, the ALR did not lead to complete legal uniformity, as regional laws continued to be valid, and some provinces even developed their own provincial codes. The ALR was explicitly oriented to the social order divided into nobility, burghers, and peasants, and thus did not assume the unconditional equality of all citizens.

The other, more modern path was taken mainly by Bavaria, Austria (the non-Hungarian part of the Habsburg Monarchy) and France. They issued several individual codifications for major sub-areas of judicial law. Bavaria,⁵ for example, initially based its approach on the Prussian model. Nonetheless, the Bavarian Codex Maximilianeus, although aspiring to be comprehensive, consisted of distinct codes for criminal law (1751), civil procedure (1753), and general civil law (Chur-Bayerisches Landrecht, 1756). It should be noted that these are not complete codifications, as local and regional rights, as well as common law, remained in effect. Austria,⁶ on the other hand, refrained from an overall codification; instead, a number of codifications were issued for individual areas of law, such as criminal law and criminal procedure (first in 1768) or civil procedure (first in 1781). Civil law stands out as a particularly significant area of codification. In 1786, the General Civil Code (Allgemeines Bürgerliches Gesetzbuch) was introduced, albeit with only the first part of the original three-part plan being implemented. However, this partial ABGB of 1786 holds the distinction of being the first-ever codification of civil law. The first complete codification of civil law in Austria was the Civil Code for the Crown Land of Galicia in 1798.⁷ Building on it, the General Civil Code (ABGB) was implemented throughout Austria (excluding Hungary) in 1812. Thus, Austria had codifications for civil procedure law (1796), criminal and criminal procedure law (1803), and civil law (1812), but not commercial law. France also adopted the approach of separate codifications with the cinq codes, which refers to the five judicial codes established during the reign of Emperor Napoleon I (1769–1821)[].⁸ These codes are as follows: the Code civil of 1804, at the time of Napoleon I and Napoleon III (1808–1873) called Code Napoléon, the civil procedural law (1806), the commercial law (1807), the criminal procedural law (1808) substantive criminal law of 1810. ABGB and Code civil brought – unlike ALR – strict unification of law in their area of application.

Such codifications were an integral part of a modern state around 1800. They provided a framework for an organized, concrete, and dependable legal system in the domains of civil, criminal, and potentially commercial law along with an accompanying judicial organization with codes of civil procedure and criminal procedure. For this very reason, small and medium-sized states looked to Austria and France for inspiration when creating their own codifications. Various additional factors also contributed to this trend.

The Code civil gained widespread acceptance as the French state expanded its reach into the Netherlands and western regions of Germany. It also played a significant role in the establishment of French satellite states, including the Kingdom of Westphalia, the Grand Duchy of Warsaw, and the Kingdom of (Upper) Italy. In conjunction with other legal (see below) and power-political measures, the Code civil effectively facilitated French hegemony throughout Europe, solidifying the foundation of the "Grand Empire." However, the Code civil also corresponded to the contemporary societal demands for modernization, particularly among the reform-oriented factions. As further areas of expansion, above all the French colonies followed, starting with Algeria in 1840. Benefiting from the widespread use of the French language, the Code civil exerted a significant impact on legal codifications in several countries, including Romania (1863), Italy (1865), and Spain (1888/1889).

The influence of the ABGB, which was driven by motives other than imperialistic ambitions, had a more modest reach. Nonetheless, German-speaking Central Europe found the ABGB to be the most modern codification in their language. Several cantons in German-speaking Switzerland, such as Bern, Lucerne, Solothurn, and Aargau, drafted civil codes between 1824 and 1855, following the ABGB as a model. These cantons, along with other Austrian laws like the penal codes of 1803 and 1852, as well as the codes of civil procedure, notably the one from 1895, constituted an "Austrian legal group." Conversely, the French-speaking cantons of western and southern Switzerland adhered to the Code civil.⁹ The ABGB likewise served as a model for German states.¹⁰ For instance, Bavaria adopted aspects of the ABGB in various cases, and the preliminary work for the Saxon Civil Code of 1865 was also influenced by it. Apart from the substantive quality of the ABGB, Austria's position as the pre-eminent power in the German Confederation was also a contributing factor. In southeastern Europe, the ABGB influenced the codes of the Principality of Moldova (later part of Romania) as early as 1817, known as the Code Kallimachus, and in Serbia in 1844 with the Code Bogisic. This exemplified the western orientation of these states, with many of the code's authors having studied in Vienna. Moreover, the Principality of Liechtenstein implemented the ABGB as early as 1812.¹¹

Unlike the Code civil, which advocated strict equality, the ABGB still included certain legal institutions¹² pertaining to different social classes, such as those for the nobility (Familienfideikommiss)¹³ and the peasantry (Geteiltes Eigentum in den Grundherrschaften). Nonetheless, these restrictions were not explicitly referenced in the ABGB. In terms of the text of the codification, the ABGB was accessible to all social classes. In this regard, it had a neo-establishment (neuständisch) orientation and demonstrated openness towards an eventual egalitarian society.

The ABGB's openness explains its applicability in states with different political and social systems. It was used not only in the absolute empire of Austria but also in constitutional-monarchical Bavaria, the conservative cantonal republic of Lucerne, and the liberal canton of Bern. The ABGB, despite its comprehensive nature, required supplementary regulations outside the codification. In Austria, these regulations were necessary to impose restrictions on legal institutions specific to certain estates, such as the "Familienfideikommiss" reserved for the nobility. Besides, they were particularly important for addressing changeable legal institutions, as seen in the context of inheritance law in the peasantry. This necessitated the inclusion of references within the ABGB itself. The codification thus provided a framework for further legal provisions. A similar approach was observed in the ALR and the Code civil.

After the initial wave of codification, the movement gradually stabilized. The Zurich Private Law Code (1853–1855) diverged from the models of the Code civil and ABGB and instead aligned itself with the principles of the Historical School of Jurisprudence.

The beginning of the constitutional codifications

Even in modern times, the legal definition of rulers' rights often drew upon medieval origins. For instance, the position of the electors in the Roman-German Empire, granting them the power to elect emperors (as understood from 1500), derived from the Golden Bull of 1356. Nevertheless, such regulations remained selective and were complemented by treaties and customary law (Gewohnheitsrecht). During the French Revolution, and nearly simultaneously with the establishment of North American states, the concept of constitutional codification emerged for the first time.¹⁴ Constitutional law was to be precisely codified, underscoring popular sovereignty and serving as a safeguard against arbitrary interventions, particularly from monarchical forces. This led to the development of codificatory constitutions, exemplified by the United States from the 1770s and France from 1791. This constitutional codification gradually spread across Europe, encompassing the states in Central and South America¹⁵ that emerged from the Spanish and Portuguese colonies between 1810 and 1898. Eventually, even Japan adopted a constitutional codification in 1889.¹⁶ The term "constitution" became synonymous with the essence of the modern "constitutional state" that emerged from around 1800.

Codifications of constitutional law differ in their theoretical foundations and underlying causes compared to codifications of civil law. The establishment of a state or a profound change in the system of government often served as the impetus for the codification of a constitution. The theoretical underpinnings can still be seen quite clearly in the early constitutional codifications, until they are gradually replaced by constitutional models after 1850.

The enactment of the first two constitutions in the United States and revolutionary France was driven by political reasons. In the case of the United States, it marked the founding of a new state, as the British colonies in North America transformed into the United States of America in 1776[]. In France, a profound change in the system of government occurred with the replacement of absolute monarchy by constitutional monarchy in 1791 and later by a republic in 1793. Each subsequent change in the republican system in France (in 1795, 1799, 1802) was accompanied by a new constitution, as was the shift to Napoleon's monarchy in 1804, the return to constitutional monarchy in 1814, the transformation into a parliamentary monarchy in 1830, and the subsequent return to a republic in 1848.

The first wave of constitutional codifications coincided with the establishment of the Napoleonic state system in Europe. It began with the creation of French daughter republics, such as the Helvetic Republic (Switzerland, 1798)¹⁷ and the Cisalpine Republic (Upper Italy, 1797). Monarchical satellite states of France also emerged, among others¹⁸ Westphalia (1807) and Spain (1808). The influence of France, including Napoleon I himself in the case of Westphalia, led to the establishment of these states as decentralized unitary states. In the case of Switzerland, however, this plan failed. Instead, the Mediation Act of 1803, introduced by Napoleon, created a confederation of independent cantons. Bavaria, which significantly expanded during this period, also adopted its first constitution in 1808.¹⁹ Additionally, countries like Norway (1814) and Sardinia-Piedmont (1821) independently adopted their own constitutions.

The replacement of the Napoleonic state system by the Congress of Vienna marked the onset of the second wave of constitutional codifications²⁰ from 1814/1815 onwards, which was reflected, for instance, in Bavaria 1818 and in Württemberg in 1819. The third wave followed in 1830 after the Revolution, with new constitutions enacted in France and the newly created Belgium (1831), as well as in German states like Hesse-Kassel and Saxony in particular in 1831. It was only during the fourth wave of constitutions resulting from the revolutions of 1848 that Prussia, Austria, and Hungary joined the ranks of constitutional states. However, Austria, together with Hungary, withdrew from the constitutional states again in 1852 when the constitution of 1849 was repealed.

Other constitutional codifications had specific origins, such as the founding of the state of Greece, which broke away from the Ottoman Empire in 1821, or the establishment of the North German Confederation in 1867, which later expanded into the German Empire in 1870/1871. Even in existing states, changes in political systems often coincided with the enactment of new constitutions, as seen in Austria²¹ (excluding Hungary) in 1867 when constitutional monarchy was reinstated or in France when the republic was reinstated after the Second Empire in 1870.

European constitutions were all interconnected, allowing for the emergence of a constitutional literature that was explicitly referred to by the authors of the constitutions. Some constitutions served specific purposes, such as integrating newly acquired territories, as observed in the unhistorical creation of Westphalia in 1807 and Bavaria in 1808. Generally, constitutions were expected to promote modernization by centralizing administration and jurisdiction under state control, instead of being exercised by landlords or church princes.

The ideas of popular sovereignty, separation of powers, and human rights played a crucial role in shaping constitutional codifications until 1848. This led to the constitutional type of democratic republic in the United States and, for a time, in France. In Europe, however, these principles were often combined with a monarchy, where the monarch and his government dominated within the constitutional framework. In parliamentary systems, the monarch's power was subjected to the influence of the parliament, as seen in the case of Belgium in 1831. Both forms of government emerged as alternative models by 1848, with constitutional monarchy becoming the standard in many European countries. However, following the First World War, parliamentary monarchy or republics became more prevalent.

Constitutional codifications themselves typically included provisions for supplementary laws, such as electoral regulations, self-governance statutes, and laws to enforce fundamental rights.²² This meant that the constitution, in a broader sense, drew from multiple sources. In Austria, for instance, several "basic state laws" replaced a constitutional charter in 1867.

The pandectist private law codifications

Towards the end of the 19th century, as Italy and Germany underwent unification and the federal state in Switzerland expanded, there arose a renewed need for the standardization of civil law. This need coincided with the prevailing scholarly trend of pandectics, which originated from the Historical School of Jurisprudence.²³ Pandectics was characterized by a rigorous terminology and a systematic approach based on the so-called pandect scheme: general part, family law, law of obligations, property law and law of succession. Around one hundred years after the earlier codifications based on natural law, a second wave of codification emerged, primarily in the field of civil law. This wave began in 1865 with the enactment of the Codice civile in Italy and the Saxon Civil Code (Sächsisches Bürgerliches Gesetzbuch), as well as the Code of Obligations (Schuldrecht) in Switzerland in 1886. It culminated in the German Civil Code (Bürgerliches Gesetzbuch, BGB) and the Commercial Code (Handelsgesetzbuch, HGB) of the German Empire – both codifications were deliberately enacted in 1900, at the beginning of the century – as well as in the Swiss Civil Code (Zivilgesetzbuch, ZGB) of 1912. The BGB is considered the quintessential pandectist codification. Other codifications within this group include the Codex Iuris Canonici of 1917, the Code of the Catholic Church, and the Japanese Civil Code of 1898.

The BGB had a significant impact on both jurisprudence and legislation. Influenced by pandectology, the ABGB underwent a profound renewal through the partial amendments of 1914, 1915, and particularly 1916.²⁴ These amendments brought about substantial changes while still preserving the inherent characteristics of natural law. In contrast, during the reforms led by Mustafa Kemal Atatürk (1881–1938) in Turkey, the Swiss Civil Code and the Code of Obligations were adopted in 1926. One reason for this was that they were considered the most modern civil law codifications; in addition, the French-language version of Swiss law was convenient for international comprehension and dissemination.²⁵

The pursuit of legal unification led to the enactment of codifications in various legal domains. In the German Empire, significant codifications included the "Reichsstrafgesetzbuch" of 1871, which standardized criminal law, and the "Reichszivilprozessordnung" of 1877, which established uniform procedures for civil cases. Likewise, in Austria, a modern codification of civil procedural law was implemented in 1898.

The constitutional codifications after the First World War

The political landscape after the First World War gave rise to a new wave of constitutional codifications, primarily driven by the collapse of the Russian Empire, Austria-Hungary, and the Ottoman Empire. In the emerging states around 1918, including Finland, Ireland,²⁶ and Turkey, the immediate priority was the establishment of constitutions rather than the codification of judicial laws. After the promulgation of founding acts, which were mostly understood as provisional, the new states set about drafting constitutional codifications. This was motivated, first, by the need for a definitive framework for state organization and governance, particularly in cases where monarchies were replaced or rejected. Second, there was also the moment of integration of the individual parts of the state, which is particularly evident in completely new entities, such as in the case of the multi-ethnic Czechoslovakia.²⁷ Even in cases where state continuity was maintained, there were instances of system changes and the adoption of new constitutions. An illustrative example is the Weimar constitution of 1919 in Germany,²⁸ which is named after the place where the resolution was made: It reflected the transition from monarchy to republic, the strengthening of central authority, and the curtailment of special privileges enjoyed by individual states. The underlying theoretical basis of these new constitutions was consistently rooted in popular sovereignty. Consequently, they were enacted by a constituent national assembly ("Konstituierende Nationalversammlung"), designated as such in Germany and Austria, or under similar names in other countries.²⁹

A smaller constitutional wave seized some of those states that deliberately turned away from the democratic principle over time. This was seen in countries like Portugal (1933), Austria (1934), and Slovakia (1939).³⁰ Despite witnessing similar anti-democratic shifts, countries like Italy (since 1922), the German Reich (since 1933), and Czechoslovakia (since 1938) retained their existing constitutions, although they underwent significant modifications. In France, during the Second World War, the German occupying power hindered the enforcement of a draft constitution.³¹

In certain states, rather than focusing on codification, there was a prevailing tendency towards a formal interpretation of the constitution. This allowed for the grouping of individual constitutional laws outside of the constitutional charter as a superior legal framework ("Stammgesetz"). This approach, particularly evident in Austria, gained momentum from 1920 onwards.³² On the other hand, some states, like the German Reich, adhered to the concept of constitutional codification. They mandated the inclusion of new constitutional laws into the constitutional charter through an incorporation requirement.

The codifications of judicial law after the First World War

Despite attempts to do so, the new states that emerged in 1918/1919, such as Czechoslovakia and Poland, did not enact codifications of judicial law.³³ Instead, the existing codifications that were in place prior to the formation of these states continued to be in force, such as the ABGB in the former Austrian parts of Czechoslovakia and Poland and the BGB in Poland's former Prussian territories. In these states, the established judicial law codifications proved to be stronger than the new statehood, at least initially. As a result, multiple codifications coexisted within the unified national territories, as was the case in Yugoslavia.

The codification movement had only a limited impact on administrative law.³⁴ Nonetheless, in Austria, the General Administrative Procedure Act, the Administrative Penal Act, and the Administrative Enforcement Act were codified in 1925. In Württemberg, a draft for an administrative law code was created in 1931. Now individual laws were often enacted outside the codifications, particularly in civil law.³⁵ For instance, building laws were enacted in Austria in 1912 and in the German Reich in 1919, followed by rent laws in 1922 and 1923, and later the marriage law in the German Reich (including Austria) in 1938. Despite these developments, the idea of codification persisted. In National Socialist Germany, there was a plan to introduce a new codification called the "Volksgesetzbuch" (People's Code), which aimed to partially dissolve the traditional boundary between private and public law. This new code was intended to follow a division based on different areas of life, such as family, inheritance, and work.³⁶ However, this approach differed from the view adopted by the civil codes of Italy (1939/1942) and Greece (1946), which were late offshoots of the pandectist codification tradition.

The constitutional codifications after the Second World War

The aftermath of the Second World War, similar to the First World War, witnessed a wave of constitutional codifications that reflected the transformations in the global landscape of states. Unlike in 1918, the impetus was not the establishment of new states, but rather the restoration of democratic constitutional structures. This trend is particularly evident in the case of Germany.³⁷ Between 1946 and 1947, a series of constitutions were issued for the restored states, such as Bavaria and Saxony, as well as for newly founded states, like Brandenburg and North Rhine-Westphalia. Subsequently, in 1949, two constitutions emerged, each claiming validity for the entire territory of Germany within the 1937 borders: the Bonn Basic Law for a Federal Republic of Germany in the area controlled by the Western occupying powers, and the Constitution for a German Democratic Republic (GDR) in the Soviet occupation zone. Other countries, including France (1946), Italy (1948), Hungary (1949), and the restored Czechoslovakia (1948), also adopted new constitutions during this period. Austria, on the other hand, reverted to its 1920/1929 constitution. It is undeniable that this constitutional wave embraced the principles of democracy and republicanism. Monarchies were abolished in Hungary, Bulgaria, Italy (in 1946), and Romania (in 1947).

The "socialist" codifications

Due to the establishment of communist systems, the satellites of Soviet Russia in Eastern Europe,³⁸ which saw themselves as "socialist states," experienced a wave of codification between 1950 and 1976.³⁹ As this involved the transformation of the state and social order, it affected virtually all areas of law. The overall aim was to replace "bourgeois-bourgeois law" with "socialist law." This concerned, first of all, constitutional law. With the 1968 constitution, the GDR bid farewell to the constitutional tradition that was still observed in 1949. Otherwise, the outward appearance of the previous partial law systems was essentially retained and new codifications were created for them. The GDR⁴⁰ distributed traditional civil law among two codifications: the Family Code of 1965 and the Civil Code of 1976. Its structure shows an appeal to areas of life such as "contracts for the organization of material and cultural life" (housing rent, insurance, "travel and recreation"). Since the concept of "personal property" was severely restricted, the "use of land and buildings for living and recreation" gained special importance. Further codifications were issued in the GDR, including the Labor Code (1961) and the Criminal Code (1968). The main difference from previous codifications was the importance of ideological "principles" such as that of "socialist civil law": They determined the interpretation and application of the other regulations in accordance with the state doctrine. In addition, party congress resolutions of the Socialist Unity Party of Germany (SED) were considered a source of law. The situation was similar in the other Soviet satellite states, such as under the Czechoslovak Civil Code of 1950.⁴¹ With the incorporation of the states of the GDR into the Federal Republic of Germany, the GDR codifications lost their validity. After the end of communist rule in other states, the "socialist" codifications there underwent extensive changes and remained in force until new codifications were enacted. This also applies to constitutional law.

Decodification and recodification

In non-communist countries outside the Eastern Bloc, the era of codifications in civil law seemed to be nearing its end after 1945. Subsidiary laws increasingly eroded their significance. While codifications had been relatively rare during the interwar period, they now became less favored, and subsidiary laws emerged as a legislative alternative. This shift was evident in the enactment of laws pertaining to condominiums, rent, insurance contracts, and consumer protection. The process of "decodification,"⁴² the dissolution of codifications, appeared to be gaining momentum. However, in 1992, the Netherlands surprised many by introducing a new civil code, signaling a reversal of this trend. Similarly, in Germany, specific areas of law, such as marriage law, were eventually reincorporated into the existing Civil Code (BGB) in 1998, effectively halting the process of decodification. Austria, on the other hand, did not follow this reversal. In the former Eastern Bloc countries, a resurgence of the codification idea was observed, driven by the need to replace the previous "socialist" codifications. In the realm of civil law, efforts to develop new codifications commenced in most of these "reform states." While this process is still ongoing in many countries, e.g. Albania (1994), Russia (1994–2008), Estonia (1993–2002), and Lithuania (2001) have already implemented new civil law codifications.

Wilhelm Brauneder