Introduction

The mutual influence of legal norms across national borders and – above all – across linguistic borders is a distinct feature of European legal history. Roman law and its development into common law in the Middle Ages influenced the law in many parts of Europe, especially in the course of the so-called reception of Roman law in the 16th century, in the German-speaking countries called (Roman-)Common Law – (Römisch-)Gemeines Recht.¹ At the beginning of the 19th century, the legislatures of many states took the French civil code of 1804 (Code civil des Français) as their model; European constitutions often mutually influenced each other. While transfers took place against the backdrop of similar legal customs and scholarship in almost all areas of jurisprudence, a role was also played by political and cultural currents as well as legal necessity. Similar factors influenced the transfer of European legal norms beyond Europe. These transfer dynamics are especially evident in the areas of civil and constitutional law.

Transfer for national policy reasons

The founding of non-European colonies by European states led to the export of European law for national policy reasons. Thus Anglo-Saxon common law extended to the later USA and other colonies of the Empire (along with Canada, the common law was also introduced in the Australian provinces and, to varying degrees, in India). In the process, it expanded into the Anglo-American legal sphere.² In southern Africa, the common law of the Dutch Cape Colony conquered by England merged with the Roman-Dutch law of the Boer republics to form a mixed system.³ Likewise, the mixing of laws occurred in the former French colonies of Québec (Canada) and Louisiana (USA).⁴ However, civil law remained codified in Québec, while common law took root in the U.S. states in the territory of the formerly French Louisiana. South Africa fended off undue influence of the common law through the independent further development of Roman-Dutch law, which in the 19th century led to an adoption of continental European methods such as systematization and conceptualization, following the example of German jurisprudence.

French law, especially the Code civil, spread equally through state expansion, firstly in Europe in the French satellite states established under Emperor Napoleon I (1769–1821)[], and, secondly, through the establishment of overseas colonies. These included the aforementioned French colonies in North America as well as large areas in North and West Africa, where French law remained effective for a longer period of time. There was also a transfer of Spanish and Portuguese law to the Spanish and Portuguese colonies, respectively, especially to Latin America and to the Spanish Philippines.⁵ Further, beyond Europe, the canon law of the Catholic Church widened its reach, in particular where the Church was supported by state expansion, as in Latin America.⁶

In contrast to common law, in which judicial precedent predominates, the idea of state legislation and cultivating the law through jurisprudence spread with Roman law. In this legal system, the legal culture is therefore determined by state legislation and university legal studies. The title of one programmatic essay accordingly asserts: "Zu Europa gehört auch Lateinamerika"(Latin America belongs to Europe).⁷

The transfer of continental European legal systems also promoted the idea of systematizing larger areas of law through codifications and, along with it, the notion of the constitutional state, i.e. that state power needed to be regulated within a constitutional framework. However, it was in the area of common law that the newly formed USA also independently advanced this idea, leading to the enactment of US constitutions as early as 1778 and 1787. After they broke away from Spain or Portugal, the new Latin American states similarly gave themselves constitutions, such as Brazil in 1824.

As Russia expanded into Asia – across Siberia all the way to the Pacific Ocean – European law also transcended the borders of Europe. Russia though participated only marginally in the development of continental European law.⁸ Its legal system had very few codifications, especially in civil law, and it had not become a constitutional state. Consequently, Russian law did not take hold beyond the boundaries of the tsarist empire.

As southeastern European states emerged in the wake of the territorial retreat of the Ottoman Empire, European law experienced another transfer – not across Europe's geographic border, but across its cultural border. After Greece proclaimed its independence in 1822, constitutions were established there in 1823/1827 based on the French model. Bosnia-Herzegovina, annexed by Austria-Hungary in 1905, also experienced a Europeanization of law.⁹ In 1910, it received a constitution, which, as the charter of fundamental rights clearly shows, was aligned with that of Austria’s from 1867. The Austrian general civil code (Allgemeines Bürgerliches Gesetzbuch, ABGB) had already been introduced in 1878, although only in a partly subsidiary form. The criminal code and the code of civil procedure of 1883 followed Austrian models, and the commercial code of 1883 Hungarian models.

Legal culture and legal policy transfer

The transfer of rights, which was initially primarily driven by the state, was maintained after decolonization in places where it was sustained by a broad class of European immigrants, as in the United States and Latin America. But even in some former colonies where there had been little European immigration, there was adherence to transferred law, for example in India, in the French parts of Africa, and in some of the Spanish colonies, such as the Philippines. The transferred law continued to shape the legal culture, not only through the transfer of legal norms, but also as a result of their further development. Thus, in the tradition of the French Code civil, the Code civil du Bas-Canada/Civil Code of Lower Canada of 1866 established the Canadian province of Québec as a continental European legal enclave in the North American common law area. The legislation of the states that emerged from European overseas colonies maintained the European legal tradition and supplemented it with further specific adaptations of European models. In 1830, for example, the Austrian penal code of 1803 found its way into the Brazilian codigo criminal do imperio do Brasil¹⁰ and finally into the Philippine penal code of 1870. Over the course of the 19th century, the codifications of Napoleon I concerning civil law, civil procedure law, criminal law and criminal procedure law as well as commercial law from the years 1804 to 1807 were adopted worldwide in particular. Then, the German Civil Code (BGB) started to exert great influence from the end of the 19th century.¹¹

The transfer of legal norms also entailed the transfer of related jurisprudence. However, the appeal of European jurisprudence was also rooted in its intrinsic usefulness. Thus, by 1800, works by the Austrian natural law scholar Karl Anton von Martini (1726–1800) had already found their way via Spain to its American colonies.¹² In the 19th century, above all the texts of German civil law scholars like Hermann Roesler (1834–1894) spread because of their conceptual and systematic penetration of legal subject matter, sometimes even in areas of common law.¹³ They cemented the continental European tradition in the law of South Africa and Latin America. For the same reason, the writings of German constitutional law scholars like Albert Mosse (1846–1925) proved popular.¹⁴

This paved the way for the striking transfer of European legal norms to states that had not been European colonies, but drew on European models to modernize their state and legal systems. Japan is a noteworthy example:¹⁵ During the modernization push of the so-called Meiji period, central European legal and constitutional forms were adopted that had been familiar in Japan due to the country’s European delegations. For this reason, Lorenz von Stein (1815–1890) as well as Heinrich Rudolf Hermann Friedrich von Gneist (1816–1895)[]) became advisors and co-drafters of the first Japanese constitution, the Meiji Constitution of 1889. Japan's private law was initially clearly influenced by French law, but after 1898 it was strongly oriented towards the German Civil Code, which also became an important model for Chinese private law around 1930.¹⁶

Further notable transfers of law beyond Europe involved the young Turkish Republic under its reformer Mustafa Kemal Atatürk (1881–1938).¹⁷ Two codifications – adaptations of the 1912 French version of the Swiss Civil Code and Code of Obligations (debt law) – effectively entered into force as the "Turkish Civil Code" and "Turkish Code of Obligations" in 1926. However, the former Ottoman Empire had already borrowed heavily from French legislation in commercial law, civil procedure, and criminal and criminal procedure law.

Reciprocal transfer?

In recent years, research has also examined the extent to which the further development of transferred legal norms has had an impact on the countries of origin. Here, too, it is useful to distinguish transfers for national policy reasons from those that are related to legal culture and legal policy. Due to the global organization of the Roman Catholic Church, there were repercussions from developments in the South American region on canon law.¹⁸ The transfer of Swiss law to Turkey resulted in regular joint exchanges. The Hispanitá, the states with Spanish-speaking populations, cultivates a common scholarly tradition, while developments in the individual countries are noted and received by the others.¹⁹ In such cases, however, it is less a retransfer to the original point of transfer than a contribution to a shared legal culture. This is most true of common law, which by its very nature is a single system that is sustained by its overall area of application.

Developments in judicial law

Due to original transfer of law and its lasting effect, as well as the independent developments which were associated with the transfers, the world was divided into two large legal areas. On the one hand, there are the common law states; on the other, there are the civil law states of the codification-based, continental European legal system.

The transfer of European law and European legal thinking remained closed to the Islamic area in many respects.²⁰ This is especially true for those branches of law that are strongly interwoven with religious prescriptions, as in marriage and inheritance law. Nevertheless, some Islamic states, especially those such as Egypt or Syria that had been exposed to European influence early on, were at least somewhat open to the transfer of French legal norms.

Results in constitutional law

The tradition of the European constitutional state spread around the world, at least formally, in both common law and civil law states. The founding of states and, in most cases, the change of governing systems almost always involved the enactment of a constitutional framework with rules for the head of state, the government, the parliament, with the outlines of the judicial and administrative organization, and, in most cases, with a basic rights charter. Of course, differences existed not only in the further elaboration of the constitutions e.g. with regard to electoral law, the organization of the administration and the enforcement of fundamental rights, but above all with regard to constitutional practice. Notwithstanding this, the similar constitutional documents provide a benchmark for assessing political systems and their implementation. To this day, however, different views on constitutional standards still exist even within Europe. The drafting of the European Charter of Fundamental Rights, for example, revealed the extent to which views on fundamental rights diverge: While central European states regarded them as self-evidently enforceable, legal entitlements, other European states rejected this definition, seeing fundamental rights strictly as national objectives.

Wilhelm Brauneder