HISTORY OF EUROPEAN LAW

INTRODUCTION

History of public and private European law from the late roman empire to the modern age.

Knowledge of the past is the first step to understand the present (the current system).

Course:
- Part 1 > Evolution of law until French revolution
- Part 2 > The development of modern law (and codification).

The course will also include the historical development of important legal institutes, in particular
intellectual property.

THE HISTORY OF LAW AS THE HISTORY OF EXPERIENCES OF LAW

Law is a dimension of daily life. It is described in the real facts of life (works of scholarship, int.
treaties, etc.).

Flexible chronical boundaries

1. Middle age
2. Modernity
3. Post-modernity

They are shaped by 3 different civilizations and they have 3 different interpretations.

TERMINOLOGY: LAW

The term law can lead to some misunderstandings mainly in the European education system. To
those who live in continental Europe with the culture of the modern period behind them may
appear absolutely linked to power, to supreme the political power. The law is perceived as written
law that emanates from sovereignty.

Undoubtly, law is a voice and in the concept of the modern nation state it can sometimes manifest
itself as a collection of general legislative acts.

This would be restrictive meaning!

Law consists not only in power but also in the manner in which society organizes itself in accordance
with historical values that they observe in daily life.

Law is a more complex phenomenon > expression of a society that goes beyond the state.

Social importance of the law is increasing. The law expresses the values of society.

Law with most relevance to daily life > private law that governs relationships between individuals. It
allows them to live peacefully together.
SOURCES OF LAW

 Legislatio (legislative law) > the law originated by legislation, or a compilation of law ordered by
a sovereign.
 Doctrina (legal science) > the legal literature, the opinion of academic commentators about
different legal themes.
 Jurisprudentia (case law) > judge-made law, that is the body of decisions and sentences
pronounced by judges at courts.

In a historical perspective we should consider that from the middle ages to the French revolution (6 th
century to end of 18th) ius commune formed the legal system.

Today, there is a hierarchy of legal sources.

PERIODS OF LEGAL HISTORY

1. Roman – Germanic age

2. Medieval legal schools and common law age
3. Reforms and codifications age

ROMAN LAW

Roman age > 6th century A.D.

Roman law is the law created during the 9th century of the roman empire

Emperor Justinia decided to select the best rules and the legal science from the roman past

Justinian’s legislation
 Codex > 12 books (529 and 534 second edition) > collection of imperial laws (until the age of
Justinia)
 Digesta > 50 books (533) > collection of the jura (sentences of the most important jurists)
 Institutiones > 533 > systematic writings for academic purposes
 Novellae constitutiones > from 534 to 565, no official collection > like the Codex but they are
contemporary to the emperor Justinia (age of Justinia)

GERMAN LAW

Between the 5th and the 9th century. German laws were influenced by roman law and customs whose
purpose was to regulate the juridical relationship of both roman and German people.

They share similar feature with salic law.

Lex romana wisigothorum

CANON LAW

Body of laws and regulations made by the ecclesiastical body after the 20 th century.
‘Canon’ originally a rule adopted by a church council. They formed the basis of the code of canon
law.

They run parallel to the legal development of European law.

FEUDAL LAW

Agreement between lord and vassal > lord protects vassal and provide him with land in return for
products from that land.

MUNICIPAL STATUTES

Typical form of legislation in northern Italy, France and Germany at end of 11 th century > number of
cities began to organize themselves in an independent way.

Merchants were the class of people that had the main power of people (growth in trade led to
growth in power in politics).

SCHOOLS OF LAW

Gloss of Poppi > the most important gloss are marginal (when it’s between the 2 lines it’s just to
change a word).

Gloss > short explanation

It transformed ancient text … ?

Bartolus de Saxoferrato > most famous commentator, they were concerned with practical
application of the law (so going beyond the glossators)

So they made the gloss useful for practical application.

Ius commune and iura propria >

What was the importance of Justinian’s legislation?

Why was the Roman empire so important in European history?

Roman law is the common foundation upon which the European legal order is built. To a large
extent, the rules of roman law which had been transmitted were placed in a statutory framework
which provided a modern, systematic order.

What was the contribution of the Glossators’ work?

Glossators were scholars from the Middle Ages (11 th and 12th century, Bologna) who studied and
interpreted the Roman law, particularly the system of laws codified by Justinian in the first half of
the 6th century in the form of a work called the ‘corpus iuris civilis’. During this period, the
complexity of society demanded a more solid body of law more adequate for their time, and so the
medieval jurists looked towards Roman law. Glossators in particular explained the Roman law to
make it understandable for their contemporaries. They did so by glosses/comments in the margins
of the original texts. In this way they made the first attempt to organize the roman law in a more
structured way.
Difficulties > Roman society differed from medieval society so the work by Justinian was made for a
different time + Justinian doctrine quite complex (these scholars had to make the work
understandable for their contemporaries who were less schooled).

They researched Roman customs and traditions to understand the Roman law > in this way they
could make this law accessible to the general public (not just to scholars)!

NOTE: their discussions were more academic than practical.

Analyze the importance of the Magna Charta Libertatum?

Magna Carta, which means ‘The Great Charter’, is one of the most important documents in history
as it established the principle that everyone is subject to the law, even the king, and guarantees the
rights of individuals, the right to justice and the right to a fair trial. It was created in 1215 by King
John when he agreed to the terms of the Magna Carta following the uprising of a group of rebel
barons in England.

To fund the war against France, King John was asking more and more money (by taxation). According
to the English common law if the king was about to ask for more taxes from his subjects, he had to
ask for a special permission > but from an exceptional instance, this became ordinary > the King
could ask for more money without the permission.

This led to ‘no taxation without representation’ > clause 12: prohibition to impose new taxes on
vassals without the prior consent the ‘Commune Concilium regni’ (precursor to parliament;
composed of barons).

The Magna Carta is considered one of the first steps taken in England towards establishing
parliamentary democracy. It contains a lot of principles that are still in force today in most countries.

EXAMPLE:
Clause 20: proportionality of the penalty to the offence.
Clause 39: principle of due process (habeas corpus integrum)

Both > right to fair trial.

NB > Due process  is a requirement that legal matters be resolved according to established rules and
principles, and that individuals be treated fairly; basic principle that a trial needs to have to be fair.

CLASS 2

Ius commune > refers to roman law revised by medieval jurists + canon law
Iura propria >
- Feudal law
- Sovereign legislation
- Municipal statutes
- Company statutes
- …

Relationship between the 2 > law of merchant

Ius mercatorum > new law was first applied in the great markets which were an important
opportunity for commercial case law to arise
- Development of custom based law

COMMON LAW IN BRITAIN

Body of law traditionally opposed to civil law

Common law systems place great importance on case law

Statutes corresponded to the interpretation made by the court

Civil law jurisdictions > courts lack authority if there is no statute. Juridical precedent was given less
weight.

China is between civil law and common law systems

MAGNA CARTA LIBERTATUM (1215)

First example of an English written constitution > possible to draw the origins of this particular legal
system and to understand why the Magna Carta is still today an important symbol of liberty (it is still
cited today by lawyers in British courts).

HUMANISM

Legal humanists were a group of scholars of roman law who arose during the 16 th century in France
against the commentators. They had a great respect for classics and were mainly considered with
the authority of Justinian works.

Andrea Alciato, ‘Commentatius ad titulum digestorum de verborum significatione’

ENLIGHTENMENT (age of reason)

Intellectual movement which dominated during the 18 th century in Europe (particularly France).

Separation of church and state

Central doctrines of Lumiere were liberal values against oppressive monarch?

Most influential publication > Encyclopedie, Diderot (team of 150 scientists and philosophers) >
helped the spread the ideas of the enlightenment across Europe and beyond.

AGE OF LEGAL PARTICULARISM IN FRANCE AND ITALY

The Ordannances of Louis XIV

There are 4 orders issued from 1667 to 1681.
- Ordonnance civile (1667)
- Ordonnance criminelle (1673)
- Ordonnance du commerce (1673)
- Ordonnance de la marine (1689)

Ordonnances and the contribution of HF D’Aguesseau (1668-1751). He was strongly influenced by

the medieval tradition.
ORDANNANCES OF LOUIS XV
- Donations
- Testaments
- Substitutions

ITALY – ROYAL CONSTITUTION OF THE KINGDOM OF PIEDMONT-SARDINIA (1723-1770)

Law and constitutions of Vittorio Amedeo II > divided in 5 books.

BEFORE CODIFICATION
Viora, Consolidazioni

Between 18th and 19th century the problems were:

1. Lack of an organic and systematic structure in the collection of rules
2. Incompleteness of laws with respect to specific cases
3. Insufficient clarity in the formulation of the provisions

Aim > unify legal rules, produce single and clear rules, unique and universal legislation

France is first country who opened the way to such a code (followed by Austria and Italy)

CODIFICATION
This is the defining feature of civil law countries (unlike common law that have unwritten law). In
Europe the age of codification was in the 19 th century when the French emperor Napoleon selected a
body of jurists to create a body of regulations for civil law.

Viora, Consolidazioni e codificazioni (1967) > difference between the 2?

Code Napoleon (1801) first well-known example of codification.

Book 1 > Law of persons
Book 2 > Law of things
Book 3 > Law of actions

It was also introduced in Italy from 1806 to 1814

General profiles of the Code Napoleon (Code Civil des Francais)

Art. 7 of the law promulgating the Code abrogates ‘Roman laws, ordonnances, general or local
customs, statutes, regulations … in the matters that are the subjects of the laws that make up the
code’
- Liberte, egalite, fraternite
- Abolition of the distinction of subjects in social classes
- Unification of the subject of law

Interim laws > law enacted 1789 (French Revolution) to 1804 (date of promulgation of civil code); is
maintained after 1804 unless it contradicted the code directly.

AUSTRIAN CODE, 1811

After the end of the Napoleonic Empire the kingdom of Lombardy was part of the Austrian empire
until the unification of Italy (1865).

IMPACT OF CODE NAPOLEON IN EUROPE

Many European countries follow the model of the Code Napoleon.

RECEPTION OF CODE NAPOLEON

- Direct > many of the new civil codes are directly inspired by the Napoleonic one, as it occurs in
Belgium and Italy with the pre-unitary codes.
- Indirect > other codes are inspired by codes that in turn are inspired by the code napoleon, as it
occurs in some parts of Latin America.

ITALIAN CIVIL CODE OF 1865

Kingdom of Italy created in 1861 > need for body of law for the whole country

 The civil code of 1865 is more similar to the original approach of the Napoleonic code rather
than the pre-unification codes.
 Particular innovations are introduced in relation to family law.
 The regime of dowry is resumed.
 Intellectual property is also regulated.
 The legal easement of aqueduct is contemplated.

LEGAL SCIENCE (FR)

After the promulgation of the Code Napoleon the prevailing belief was that the code was the most
important document for the country.

It did not completely break with the previous prevailing thought.

Philippe-Antoine Merlin, Repertoire de Jurisprudence (1807-1809)

- Considers French law as a very important collection of laws
- Necessary collection of all the laws because they had accumulated over time

THE SCHOOL OF EXEGESIS IN FRANCE

Raymond-Theodore Troplong, ‘Droit civil explique suivant l’ordre du Code’

Very popular in France during 19th century

This spread to Italy.

What was the impact of the Code Napoleon on the legal world?

CLASS October 6, 2020

Magna Carta clause 14: the ‘commune Concilium regni’

Clause 14 complements Clause 12, which had laid down that the taxes known as aids and scutages
were only to be imposed `by the common counsel of our kingdom’ (initial form of parliament). 
Clause 14 specified how that counsel was to be given and by whom.

Magna Charta clause 20: proportionality of the penalty to the offence

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for
a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.
Important > in this period, judges were very flexible in the application of the law. This clause made
judgments less arbitrary and more predictable (court could not just decide by themselves).

476, fall of Roman empire > beginning Middle Ages

1492, discovery of America > end of Middle Ages

After fall of Roman empire, there was a political and social fragmentation. We have a multitude of
kings, lords, etc. who were often at war with each other. As a result of this political chaos and
instability, populations fell and with it, cultivated agricultural land. This also led to a decline in
schools (because people had to work on the land to make a subsistence) and thus to less scholars
who could understand the law.

11th/12th century > as the economic situation starts to improve, we witness a rediscovery of the
Roman law and the rebirth of legal science. Before, there was no one who could understand.

Why Roman law? Justinian law was a body of law that had been used and refined for centuries and
so, for the new legal scholars it was easier to refer to a consolidated body of law (instead of creating
a new one). It was a practical decision. Moreover, they held Roman law and the society in general in
high regard.

Canonical law, the law of the Church, played a very important role.
- Corpus Iuris Canonici > collection of canonical law. It was very important not only for members
of the Church but also for people in general. E.g. marriage > canonical law.
- Strict separation between political power and the Church.

Describe the legal European context during the Medieval times.

During the centuries following the fall of the Roman Empire, custom would dominate the sources of
law. The coexistence of clusters of people belonging to different races living in the same location
generated the phenomenon of local customs which were followed by and binding on everyone living
in that locality, despite their ethnic origins. Thus, the early Middle Ages were characterised by
pluralism, for the very reasons that local customs were very fragmented. Nevertheless, many
fundamental common elements existed due to two factors. Firstly, early medieval society was
fundamentally united by a common religious beliefs stemming from the Church. Secondly, these
societies lived in similar conditions as throughout the European continent the economy was a rural
one, not a trade or commercial one.

This would change in the 11th and 12th century, when the legal system in Europe underwent a great
‘renaissance’. In fact, society underwent a radical transformation as an astounding series of
innovations were to take place almost simultaneously: reforms within the Church, demographic
development, new agricultural methods, the revival of trade, the rebirth of cities and last of all the
emergence of a legal science, through the founding of an institution, the university, devoted
specifically to the training of lawyers. The new European society demanded different rules and
methods to successfully manage public and private legal relationships. Only appropriate legal
education could insure such rules and methods. This new legal science was first developed in a single
centre of studies, founded in Bologna. Here the so-called Glossators studied and analysed the
Roman work of Justinian, explaining the text and making it accessible to their contemporaries. This
led to the revival of the study of civil law based on the Justinian Corpus Juris.
At the same time, Canon law, the law of the Catholic Church, gained considerable importance. This
Canon law existed of centuries of decisions made by church councils, by popes, and by church
fathers. In the 12th century, Gratian, a professor of law at the University of Bologna, started to
organize canon law, attempting to make a coherent body that could be taught to students. His work,
called ‘Decretum’, is the first systematic compilation of ecclesiastical rules and regulations. It was
quickly recognised as an authority and would be adopted by the papal Curia.

The new Roman law and Canon law mutually influenced each other. Together they provided the
basis for university-level education. From the interaction between these two types of learned law a
new synthesis emerged, which is sometimes called Romano-canonical law, or the ius commune. It
would be used throughout Western Europe for the centuries to come.

CODE NAPOLEON
The Code Napoléon was the first example of codification. It dated back to 1804 and it was divided
into three books: law of persons, law of things and law of actions. The Code was inspired by the
values of the French revolution, freedom, equality and fraternity. Another factor contributing in the
elaboration of this document was the need for a new and clearer structure of law. Indeed, it
abrogated all Roman laws, regulations, ordonnances, general or local customs and statutes that
were previously regulating the matters dealt in the Code itself. The Code had capital importance as it
became the main model of codification, thus influencing the legislative projects up to now, including
the Austrian Code (1811) and Italian Civil Code (1865).

Explain why the Magna Carta is one of the fundamental legal documents in history.
The Magna Carta is one of the most important documents in history as it has come to symbolize
three fundamental ideas, namely the idea of individual liberty, the idea of the rule of law, and the
idea that everyone is subject to the law, even the King. One of the key provisions is clause 39 that
states that: ““No free man shall be arrested or imprisoned … or exiled or in any way ruined … except
by lawful judgment of his peers or by the law of the land”. This effectively established the principle
of the rule of law, protecting individuals from arbitrary punishment by providing for a trial by jury.
These principles of the rule of law and equality before the law, as provided by the Magna Carta,
would become an inspiration for subsequent declarations of human rights. For example, it has
influenced the American Bill of Rights of 1791 and the Universal Declaration of Human Rights that
was adopted in 1948.

John ‘Lackland’ > he was not supposed to inherit any land.

King’s authority stronger in UK but at this moment England was at war with France and the King was
vulnerable.

LEX MERCATORIA
Business world needed rules that would permit quick exchange of goods and in case of disputes, a
quick judgment could be delivered.

12th century > The merchants adopted a series of legal documents that differed a lot from the
general contractual practice of the time.

It was one of the main sources of law for the merchant class.

The word ‘company’ comes from the Latin word ‘companio’ (people who share bread together).

Established principles of ‘equitas’ and ‘bonafide’

Bonafide > acting in good faith, don’t exploit the contract, don’t damage the party unnecessarily.
Equitas > fairness but it is related to the governing rules of the contract, specific kind of judgment
that is linked to specific context in which an economic relation is made. For merchants, it meant the
correct procedures of conducting business. Meaning that a type of behaviour that was permitted in
general could be prohibited by the lex mercatoria.

Aequitas is a legal term drawn originally from Roman law and refers to the justness of law. It refers to a
benign interpretation of law which corrects whatever is excessively strict and contrary to justice. Thus, it
allows courts to take into account the circumstances of a particular case, going beyond the strict meaning
of the applicable legal norm. 

The principle of good faith was very important in mercantile relations, guarding against fraudulent
advantage from the technicalities of the law. Many contracts were concluded by the mere exchange
of consent and it allowed a judge to determine what each party owed the other, and whether one
party’s behavior is in keeping with the attitude of an ‘honest man’, not damaging the other party
unnecessarily.

The principles of good faith and equity are linked in the sense that they both are principles softening
excessive adherence to the strict legal rules. However equity designates the conditions for deriving
the ‘justice of the particular case’, its focus is always fact-intensive. Good faith is centred on
protecting the legitimate expectations of all the subjects by preventing that the will of one of the
parties is seen as being of ‘superior importance’, it seeks to prevent any abuse. They both allow
judges to deviate from the law when the circumstances so require in order to reach a just result.

MUNICIPAL STATUTES
Middle Ages characterized by plurality of sources of law. Apart from the lex mercatoria, we also find
municipal statutes in this time.

Municipal statutes were the law of a single city. As there was no political unity in this period, also the
cities exercised a lot of authority over their citizen (they were in the first place a citizen of a city).

Look at difference between ius commune and common law today.

What were the main particular laws during the Middle Ages?
‘Particular laws’ (iura propria) refer to the multitude of specific jurisdictions and laws that existed
across Europe during the Middle Ages. Each of these ‘particular laws’ had its own rules and customs
and as the name suggests, they only applied to certain groups of people.

For example, many cities in Europe had their own municipal statute, laying down the laws that
applied to all the citizens of a specific city. You could also find instances of sovereign legislation,
meaning the set of laws and decrees issued by Kings or princes. This kind of legislation was mainly
connected to the protection of public order and could apply to only certain cities or regions within
the territory that the King controlled.

In addition to these local laws, there were also personal laws that were tied to personal and/or
social status. An example is feudal law that was produced by and applied to the feudal class. At its
core, it concerned an agreement between a lord and a vassal, whereby the lord promised protection
and the vassal, in return, pledged political allegiance and promised to provide military, political
and/or financial service to the lord. As part of the feudal agreement the vassal would be provided
with a plot of land. Over time, it became established that this land could be passed on to the vassal’s
heirs, giving the vassal tenure over the land. However, the feud could always be revoked by the lord
if the vassal committed specific crimes. Thus, ultimately, the lord continued to enjoy full sovereignty
over the land.

Another example is the ‘lex mercatoria’, the law of the merchants. It appeared in the 12 th century in
medieval Italian cities and spread all over Europe in answer to the needs of the merchants. The
increase in mercantile relationships gave rise to many new legal practices such as the ‘lettera di
cambio’ (bill of exchange) which permitted a flexible way of payment in different currencies without
having to carry metal coins, which was risky and cumbersome. These instruments, that originated as
customs with the active cooperation of merchants and notaries, were recognizes as valid in special
courts where mercantile disputes were debated. Here the procedures were simplified and free from
formalities, and the courts consisted of non-jurist merchants (judgment by peers). By adjudicating
commercial disputes, these special courts developed a jurisprudence of mercantile practices that
would become a separate legal system which would serve, in the 19 th century, as the basis for the
adoption of commercial codes in many civil law countries.

IUS COMMUNE AND IURA PROPRIA

Ius commune = common law (but different than the common law of England)
- ‘Commune’ because it was applicable to everyone, regardless of his social status or nationality.
- Composed by the Roman Law of Justinian as revised by the medieval legal science, a redundant
and controversial body of rules, and the Canon law, which was the ius commune ‘par
excellence’.

Middle Ages > society without a state, national boundaries were not as clear as today. People were
more connected to local communities/kingdom, but we can’t compare them with countries (they’re
not as strong). There was no solid concept of state.

Kings did not exercise an absolute power over his territories > his local lords had more power over
the territory that they were given by the King. They did almost not enact legislation.

Iure propria =
 Feudal law > right of territories still rich in feuds, contained in some imperial constitutions and in
the Libri feudorum.
- Feud is a piece of land that is given by the King/lord to someone ‘inferior’ as payment for a
service (e.g. best warriors). They were not just given the land, but also the authority over the
land, so the power to administer justice over the people of this land.
- Started as a custom but over time it became more structured > e.g. the territory that composes
the feud will pass to the sons of the person who received the feud from the King (in the
beginning, once the person died, the feud returned to the king). Because the nobility became
more powerful, they were able to put pressure on the King to get these rights regulating the
feudal system.
- Would become written law > Edictum de Beneficiis Conrad II, 1037. It was a ‘defeat’ because
Conrad could no longer take back the feuds from the nobles (it became hereditary).
- As a result, it came closer to the laws governing property. Difference > feud could be revoked if
the person committed some specific offences.
- Starting from the 12th century, the scholars who first studied only Roman and canon law, started
studying feudal law > it became more sophisticated, more complex.
 Sovereign legislation > the set of laws and decrees issued by sovereigns-princes mainly
connected to the protection of public order.
- Used to enact laws that would only govern specific territory/city/peoples inside his kingdom.
- Thus, the king’s legislation was not of a unified nature.

 Municipal statutes > normative acts issued by the municipalities, as a general order. Developed
above all in central-northern Italy.
- Body of laws of a city > they wanted the ability to regulate themselves.

How were cities governed?

- No uniformity
- Some cities would have elections to choose its rulers (but these elections would be restricted to a
certain class)
- If a king/emperor conquered a city, he would appoint one of his men as the ruler of the city (end
of elections).
- Some cities never had elected rulers (always appointed by the King), or would be ruled by the
nobility (e.g. Venice).

 Corporate statutes (e.g. lex mercatoria) > normative acts typical of the corporations of arts and
crafts.
- People often identified themselves by reference to their profession. By being a part of a
profession, you would be protected by this community (you are protected as a ‘butcher’, or as a
‘woolman’).

 Customary law > unwritten law created by the customs and habits of every population.

With regards to all of these laws, they started out as custom but would then be adopted as written
law.

With respect to iura propria, the ius commune plays a subsidiary role ensuring legal uniformity but
does not eliminate the multiplicity of sources (meaning that iura propria will prevail over ius
commune unless the iura propria cannot be applied to a specific case/it doesn’t provide a solution).

The teaching of Roman law in Italy and elsewhere did not result in the disappearance of other
normative sources which had existed for centuries in Italy and Europe, neither did it prevent the
development of new normative rules.

These rules regulated (on a customary or on a legislative level) legal relationships within social
communities, individuals and specific classes, specific areas (local laws).

Particular laws are divided into:

- Personal laws > laws that depend on the personal status.
- Local laws > territorial laws, that depend on the geographical area where a person resides.

CORPUS IURIS CANONICI

Did not just apply to priests etc. but also to people who weren’t part of the Church. Moreover, the
Church had lots of territorial possessions > many lands administered and governed by the Church. In
these lands, the law applicable was the canon law.

LOMBARD-FRANKISH LAW
This was another source of law that applied to the Lombards and Franks.
Lombards > they tended to not have written laws, but when they invaded Italy and came in contact
with the Roman culture, they adopted the practice of writing down their customary rules to make it
clearer and more precise.

RURAL LAW
This is the body of law that applied to non-urban territories (as cities were usually governed by city
statutes).
- No uniformity > in South Italy the rural law would be very different from the rural law of
Northern Italy.
- Repetition of behavior
- These rules usually emanated from the territorial lord of a specific land.
- Often, farmers were not completely free > they could not leave the land without the consent of
their lord.
- In England this changed after the Bubonic Plague > shortage of workers.

LOCAL LAWS
- Municipal statutes > cities grew and sought more autonomy from the King/Emperor (e.g. Milan,
emperor Frederick I ‘Barbarossa’).
- Sovereign legislation (the law of the king), i.e. The Kingdom of Sicily under Frederick II

Sovereign legislation not so important because of the political fragmentation > local lands and cities
adopted their own rules. Exception is the Kingdom of Sicily under Frederick II.
- Extended beyond Sicily > included Southern Italy
- At the same time, he was the Holy Roman Emperor and the King of Italy.

The Norsemen also arrived in Sicily where they established a Kingdom. Some centuries after this
conquest, Frederick II made an important law text called ‘Liber Constitutionum’ > remained in force
until the 18th century.
- It established a hierarchy between the sources of law > at the top were the rules contained in
the ‘Liber Constitutionum’ (the royal law), followed by local laws like city statutes, followed by
the ius commune (subsidiary role).
- The importance of Roman law was not diminished due to its subsidiary role, it still represented
the basic model for legal reasoning (every scholar, jurist, lawyer, etc. would first study Roman
law in order to understand how to approach the study of law).

The Kingdom of Sicily started with the Norman conquest > they altered the equilibrium in Southern
Italy (as they did in England, and Northern France).
- They had a different way of thinking, different view on authority, and the role of the King.
- They saw the king also as a legislator!

THE FRENCH ORDERS

There are 4 Ordonnances issued by Louis XIV from 1667 to 1681, which have no comparison with the
other monarchies for their breadth and coherence.
 Ordonnance civile – order of civil law (1667)
 Ordonnance criminelle – order of criminal law (1670)
 Ordonnance du commerce - order of commercial law (1673)
 Ordonnance de la marine - order of maritime law (1681)

They represent:
- Normative activity aimed at the reorganization of the civil and penal procedure and of
commercial law
- First crucial step towards codification with the implementation of …
- …

THE CONTRIBUTION OF H.F. D’AGUESSEAU (1668-1751)

Between 1691 and 1701 D’Aguesseau is the General Advocate at the ‘Court de Parlement’ of Paris
and writes ‘Discours’, which are considered examples of a formal addresses aimed to stimulate the
zeal of magistrates and of senior officials of the Court itself. The Discours are also addressed to the
jurist, exhorting him to comply with the science (conceived as legislation and legal science), with an
approach strongly opposed to creativity.

Between 1700 and 1717 the is appointed General Prosecutor and takes part in the drafting of many
laws, to advise the sovereign on matters of great relevance.

Between 1717 and 1750, once appointed Chancellor, he drafts the Ordonnances …

FIRST CONSOLIDATION ATTEMPTS IN ITALY

Italy in 1800s is not unified > different states. Different laws are promulgated in each country.

KINGDOM OF PIEDMONT-SARDINIA (1723-1770)

The constitutions of King Vittorio Amedeo II (editions 1723 and 1729) and of King Carlo Emanuele III
(edition of 1770)

The King’s aim is to promote the political unification of the state through the reorganization and
simplification of the law.

the Royal Constitutions of 1723 are divided into 5 books dealing with religious matters, organization
of the judiciary system, civil procedure, criminal law and procedure, private law and notary. In 1729
a sixth book is added regulating demanial and feudal matters.
A hierarchy of sources is established with the Royal Constitution at the top, the local statutes below
and the ius commune at the bottom.

The Royal Constitutions are studied by Mario Viora and are considered a typical example of
‘consolidations’ (conzolidazioni).

1723 > in the preface, the King declares that there are 2 aims of a kingdom with regard to political
unification: war and the law.

DUCHY OF MODENA
Modeled after the Royal Constitutions of the Kingdom of Piedmont-Sardinia and under the impact of
legislative unification desired by Francesco III Duke of Modena, in 1771 the Code of laws and
constitutions for the States of S. Altezza Serenissima is edited.

The Constitutions of the Duchy of Modena are divided into 5 books: judicial structures and civil
procedure, private law, feudal and financial matters, criminal law and criminal procedures.

While the Royal Constitutions accept to resort to the Statutes, the Constitutions of the Duchy of
Modena apply the ius commune in a subsidiary way, preventing the complete unification of the legal
system.

Like the Royal constitutions, they have a prominent place along the 18 th century consolidazioni.

Now it is important to analyze the voice of the legal science concerning the same problem:
unification of law.

THOUGHT OF LUDOVICO ANTONIO MURATORI (1672-1750)

He was a priest and scholar, and interpreter of the anti-jurisprudential and anti-forensic attitude
developed in Italy since the 16 th century. He criticizes above all the legal science, seen only as a
practical and profitable art for those who exercise it. His work is one of the most telling signs that
the system of the ius commune was in progressive demise.

Most important works:

 De codice carolino (1726): addressed to Emperor Charles VI of Habsburg; the work suggests a
new compilation of laws through a gradual process, characterized by the identification of one or
more jurists able to collect the most controversial points of law. It proposes a few solutions to be
submitted to the sovereign, who has to appoint a commission to supervise them and select the
best ones.
 Dei difetti della giurisprudenza (‘on the faults of jurisprudence’, 1742): the work of Muratori has
greater resonance in the legal thought. The essay contains a critical judgment of the legal system
of the time, drawing a line between internal defects that cannot be corrected (they have no
remedy because the law will always keep a margin of uncertainty and of doubt > e.g.
impossibility of the legislator to foresee every possible case, difficulty in interpreting the law,
etc.) and external defects that can be corrected (above all the lack of a text of laws, the
existence of too many sources and the overcrowding of the opinions of jurists). In the essay he
also addressed Pope Benedict XIV, proposing the draft of a legislative text that would clarify and
simplify the laws of the time.

Muratori praised the work of Vittorio Amadeo II in Piedmont-Sardinian who had concluded a
comprehensive revision of the legislation with the Royal Constitution of 1723. He expressed criticism
towards the grand schemes of global reforms which had been proposed by major exponents among
natural laywers like Grotius because he considered the idea of identifying a law of reason valid for all
time as impossible.

Reflection by Muratori > no longer true that in order to solve legal disputes it is necessary to resort
exclusively to codes; far more widely used is the case law which has given rise to doctrinal
jurisprudence (study of law doesn’t look at ancient texts anymore which are left to rest at bottom of
bookshelves).

The authority and prestige of Muratori, as well as the clarity of his arguments, may explain why his
essay gave rise to a heated debate > the Neapolitan Francesco Rapollo was critical of Muratori’s
emphasis on legislative intervention as a solution, whereas he felt what was needed was a clear and
coherent legal doctrine that is rooted in legal practice.

THOUGHT OF POMPEO NERI (FROM THE GRAND DUCHY OF TUSCANY, 1706-1776)

Pompeo Neri was a jurist and politician, commissioned by the Grand Duke of Tuscany to draw up a
code that affirms the absolute power of the monarch.

Among his works, there are 3 Discorsi that analyze the problem of particularism and the multiple
sources of law in Tuscany.

Pompeo Neri recognizes the need to start a reform of the legislation to replace the several and
confusing ones of the grand-ducal territories. He describes the Florentine statutory rights (private,
procedural, criminal); that is one of the prince’s legislation, in force throughout the Grand Duchy
after the aggregation of the previous States, the Roman law, the feudal and canon law, to recognize
also the juridical science and the decisions of the higher courts as true sources of law.

The purpose of the draft code is to overcome the legislative confusion with a body of uniform and
valid laws for the whole State. It is necessary to eliminate the contradictory norms and to choose
those more responsive to the needs of that time and to the territorial particularities.

All legal matters (both private and criminal) must be found in the code following Justinian’s
Institutions’ scheme. The works for its completion, however, never started the codification project
remained only an attempt and Empress Maria Teresa invited Pompeo Neri to Milan to carry out
some political assignments.

MISSING CLASS OCTOBER 20

THE RIGHT OF PROPERTY

Pothier (1699-1772) is one of the last ancient regime jurist who gives an important contribution to
property. He inherits from the ancient regime the concept of medieval origin property.
- Split in dominium utile and dominium directo: in particular

Code Napoleon, artt. 544, 545 ‘Of Property’

- Art 544 > people can use their property as they like. Before, in the Middle Ages, there was a
divide concept of property; there was not a single proprietor, especially concerning lands. This
article abolished all these divisions of property with a new notion of property that was unitary.
Roman law had a similar idea of property; in the Middle Ages there was a fragmentation
regarding the concept of property.
- Art 545 >
After the French revolution, the right to vote was linked to the right to property > one could only
exercise his voting power if he was the owner of some property or had some income. In a sense, the
right of property was at the heart of the CN.

The obligations and contracts are placed in the third book of the CN. Under the influence of the
natural law thinking, in art. 1134 is enunciated the pacta sunt servanda principle, stating
‘agreements legally formed have the force of law over those who are the makers of them. They
cannot be revoked except by mutual consent, or for causes which the law authorizes. They must be
carried out in good faith’. This article is intended not only for the parties to an agreement/contract,
but also for judges. When they analyze the contract, they have a margin of discretion (e.g. when
contract is not clear or there is a lacuna). This article limits the judges’ margin of discretion: the
judge has to follow as much as possible what is written in the contract. In the Middle Ages, the
activity of the judge was not restricted. This is typical of the post-Enlightened mood of the CN.

Clause of hardship > can modify contract (thus breaching pacta sunt servanda).

Rebus sic stantibus >

Code Napoleon, art 1148 ‘Of Superior Force and Fortuitous Occurrence’

Code Napoleon, preliminary title, art 4 > relating to situation of lacuna of the law.
- Reaction to situation of ancien regime. Before: if the judge couldn’t find a rule applicable to a
specific case, he could ask the sovereign to provide an explanation based on the single case
(‘refere legislatif’).
- This mechanism was eliminated by CN: judge has to make a judgment even in the case of a
lacuna, using similar rules to solve the case. This article provides that in the case the judge
refuses to make a judgment, it will be considered a crime of justice. It was intended to speed up
the judgment process.

Art 1138 > transfer of rights of property; derived from French customary law, not Roman law! It is a
principle contained in other European codes, even today. Point of divergence between civil codes
who followed the Roman law and those who followed the French tradition.
- System of consent (inspired by CN) > for a transfer of ownership to exist, it is necessary only that
there is consent between the parties; when an agreement is made between parties, there is an
‘automatic’ transfer of property from the debtor to the creditor, who becomes its new
proprietor.
- System of ‘traditio’ (inspired by Roman law) > physical transferal/movement of the good,
meaning that it has to be actually transferred in order for there to be a transferal of property.

CLASS NOVEMBER 2 – LEGAL SCIENCE 19TH CENTURY (MOSCATI)

After the promulgation of the CN, for a long time, in France, the prevailing belief was the Code had
unified the legislation the country had long sought after.

The existence of the new Code does not completely break with previous juridical traditions: between
1804 and 1807, in France, the works pertaining to Roman law and French customary law, especially
the practical ones, are reissued or even republished.

The most significant case of this trend, typical of French legal science after codification, is the work
of Philippe Antoine Merlin entitled ‘Repertoire universel et raisonne de jurisprudence’.
In this work, Merlin conceives the French code as a ‘collection of laws, as if they are brought
together by the authority of the legislator, as only by the zeal of some particular jurisprudence’.

According to Merlin, the code is a necessary collection of all the laws, because they had accumulated
over time, spreading in various collection and with plenty of contradictions. Consequently, both their
knowledge and their circulation become difficult.

SCHOOL OF EXEGENIS IN FRANCE

The School of Exegenis (now Ecole du Code) is a juridical school which has an enormous success in
France for almost the entire 19th century. The characteristic of this school is that of studying and
teaching law with the technique of article-by-article analysis.

The need to take as a reference point only the rule, ergo the will of the legislator, arises from the
concern of excessive laissez-faire against judges who could freely decide, without any guideline, in
that confusing regulatory environment in which the code tried to give coherence.

Well-known in France and Italy, but not in Germany where there is another important school called
the ‘historical school’.

In particular, 5 periods can be distinguished:

 1804-1810: celebration of the great codification work that was the CN that finally allowed to
reach the unity in terms of legislation. Based on Merlin’s

Most important works:

Claude-Etienne Delvincourt and Francois Laurent > analysis of the principles of the French civil code.
Collection of case law in the first half of the 19 th century
Raymond-Theodore Troplong > civil law explained following the code’s order
Charles Bonaventure Marie Toullier > civil law on property and ownership
Charles Demolobme > course of civil code
Eugene Lerminier > general introduction to the law

THE SCHOOL OF EXEGESIS IN ITALY

The Code is taken as a reference model, in Italy, as it is in force in many States of the Peninsula:
Piedmont, Liguria, Marche, Papal State, and Kingdom of Naples, especially in two areas, the Kingdom
of Sardinia and the Kingdom of the Two Sicilies.

French model of exegesis taken as inspiration

Italian legal science follows the footsteps of France > importance of exegenis is also due to all the
translations of the most important work of the French scholars to Italian, that then circulated in the
peninsula.

GERMAN LEGAL SCIENCE: HISTORICAL SCHOOL OF LAW

Two fundamental beliefs:

- Law is not simply the product of reason.
- The determination of the rules of law cannot be entrusted exclusively to the legislator

Customs are of fundamental importance because they are spontaneous legal manifestations.
In reaction to natural law and under the influence of Romanticism, this school of thought holds that,
as Savigny writes, that ‘legal science … is nothing but legal history’. The law is therefore the spirit of
the population, the expression of the tradition and of the most profound juridical culture of every
community.

Law is seen as uninterrupted flow that arises from a community, develops with it and transforms
itself following the needs of the historical period. According to Savigny, in fact, the privileged source
of law is habit.

Jurist studied the roman origin of this period.

Most important jurists > Friedrich Karl von Savigny.

Before Savigny > Johann Gottlieb Fichte, ‘Reden an die deutsche Nation’ (1808)
- In this pamphlet, Ficht wrote about the importance of the political unification of the nation.
- Germany, like Italy, was not unified > they were divided into different political communities.

Subsequently, Savigny wrote a very important work ‘Of the Vocation of our Age for Legislation and
Legal Science’.
- Decisive stance against codification in all its forms
- By fixing the norms into a written text, the natural process of continuous transformation and
evolution of law is interrupted.

Savigny ‘Italienische Reise’ (his wife Gunda Brentano was Italian).

No French translation (only 20 years ago) > it was contrary to the school of exegesis which favored
codification.

Why translation now? Cultural significance but also the thought of Savigny on codification used to
argue against the adoption of a European civil code.

CONTROVERSY OVER CODIFICTION

In Germany, the majority of jurists, according to Savigny, were against codification.

Exception: Anton Friedrich Justus Thibaut > he was in favor of codification!

- Thibaut wrote ‘On the Necessity of a Universal Civil Code for Germany’ (1814)
- Savigny’s pamphlet was a reaction to Thibaut’s argument in favor of codification.

So there was a big division between German jurists that were pro and against codification (but
majority against).

PUCHTA AND THE GERMAN PANDECTISTIC SCHOOL

Savigny insisted on the need for a systematic study of law to illustrate the close connection and
affinities among individual legal concepts and single rules. He lies the foundations for a study of law,
which is completely different from the one based on the historical method.

The different approach to the study of law is better developed and expanded by a school, which is
the natural prosecution of the historical school of law: the Pandectist school.
The link between the 2 schools is represented by a pupil of Savigny, G.F. Puchta, who marks the shift
from the historical conception of law to the jurisprudence of concepts: starting from the more
general concept, it is possible to aim at the more particular one through a logical method of
deduction.

Puchta argues that, just as people express a juridical conscience in the usus as well as the awareness
of what is juridical, likewise it shows it by approving or accepting a law.

Windscheid is one of the major representatives of the Pandectistic School. He breaks with the
conception of habit and popular historical consciousness and makes exclusivity a dogmatic
configuration: “Custom is the conviction of the users that what they use is law and in this conviction
lies the reason for its compulsory strength”.

According to Windscheid, therefore, the privileged source of law is reason and legal logic, not the
popular sentiment.

Savigny created the basis for Puchta and other legal scholars to build a system of legal
study/classification of approaching the law in a more scientific way.

Puchta and pandectistic school more similar to the way of conceiving the law as a set of principles
(like we see in the ABGB > principles provide guidance to identify the concrete rules for specific
cases).

This school influenced many civil codes, like the BGB and ABGB. E.g. structure of BGB: first book is on
‘General Principles’ > idea that it is most important to first identify the general concepts and ideas
that govern the law and from which more specific and concrete rules can be deduced.

Puchta, ‘Course on the Institutions’

Picture of a pyramid: concrete rights can be traced back to a set of general principles (so from
abstract general principles we can deduce many specific concrete rights).

RINALDI NOVEMBER 2ND

Question: European Civil Codes of the XIX century

The XIX century was characterized, apart from the Code Napoleon, from many other civil codes all
over Europe, that mainly followed the French example.

Austrian Civil Code (ABGB) > promulgated by Francis I in 1811 in his hereditary German lands and
extended to Lombardy and Venetia in 1816.
- Differently from the French code, the ABGB reflected the contradictions between the ideas of
the Enlightenment and the wider socio-economic structure.
- ABGB abolishes the common law and eliminates the autonomy of traditions and local statues; it
was assumed to be the unitary subject of natural law.
- With regard to the principles of natural law, the ABGB recognized the role of effective rules
intended to integrate the law and to inspire its interpretation.
- It considered the problem of lacunae: if literal and logical interpretation did not suffice, and if,
even after reference to similar cases the case still remained doubtful, the case should be decided
according to principles of natural justice.
- Jurist who made the greatest contribution to the formation of the ABGB is Franz Von Zeiller who
was influenced by the ideas of Kant.
- ABGB drafted with particular certainty and clarity, and it is divided into 3 parts: “law of persons”,
“law of things”, “provisions common to the laws of people and the laws of things”.
- ABGB less modern that the French one, because it is redundant in some parts and lacking in
other aspects. It is formed mainly by principles, while the French code is based on commands

German Civil Code (BGB) > in 1881, with Germany politically and economically stable after
unification, the journey towards a civil code began.
- Reason that the civil code was only adopted in 1896, 30 years after they unified > ideas of
Savigny very influential (legal science not sufficiently mature to enact a civil code).
- Final work characterized by abstraction and a tendency towards individualism, a complexity of
language and doctrinaire provisions. It was intended to be read by legal experts and not average
citizens.
- BGB asserts its exclusive jurisdiction, reaffirms the validity of positive law and charged the judges
with the observances of state-made law.
- Typical feature of this codification is the use of “general clauses” (“Generalklauseln”) that allow
judges to have recourse to notions and experiences beyond the boundaries of positive law. They
refer to general principles such as ‘good faith’, the content of which is not defined by the BGB
either directly or indirectly, leaving it to be determined by the courts. Thus, they transfer to the
judge a considerable power which he would not otherwise have had in a codified system such as
the German. Within the formal structure of the codified system these provisions guarantee a
greater degree of adaptability without relenting on the principle of exclusivity.
- General clauses can be used to mold private law and ‘infer’ new ‘specific-abstract’ rules from the
general clause, and to soften the ‘edges’ of harsh rules in individual, deserving consequences. It
also enables courts to adapt the law to new demands of society and it partially explains why the
BGB has survived, seemingly unchanged, for over a century, i.e. how the code has kept up-to-
date.

Italian Civil Code > with the unification and creation of the Kingdom of Italy, the need for a unified
legislation for the whole of the peninsula emerges.
- Various projects are set up, and the final ones resulting in a unitary codification are approved by
a delegated law, which happens whenever technically complex texts, such as codes, need to be
approved.
- Directly influenced by the Code Napoleon. Why? (1) Italy was subjected to French domination
during the Napoleonic are and so the French code was very well-known, and (2) the French
tradition and Italian tradition share similar roots, namely principles of Roman law
- Civil code of 1865 is much closer to the original approach of the Code Napoleon rather than the
pre-unification ones. Secular and separatist positions (e.g. reference to civil marriage) are
preferred.
- Particular innovations are introduced in relation to family law, because the mother is recognized
as a parental authority, even if institutions (such as marital authorization) are maintained.
- Other differences in family law compared to CN > no divorce (Italy more religious than France),
relationship between husband/wife more equal.
- The regime of dowry is resumed and represents the ordinary property regime between consorts,
in accordance with the Italian tradition.
- Intellectual property is also regulated (art 437) > in the French system this was exclusively
regulated by special law and not the CN. In the Italian civil code the legislator made a different
choice. French conception of property connected to the idea of property under Roman law: an
absolute conception meaning that the rights connected to property were very wide.
- IPR > time limitation that existed also at the time of the CN (even though it is shorter than
today); economic rights tied to ILP are limited in time (e.g. 70 years after the death of the
original owner of the IPR). This time limitation is incompatible with the absolute notion of
protection of property which is why it was not included in the CN (intrinsic limitations of IPR,
particularly the time limitation).

Swiss Civil Code > over the course of the 19th century, several Swiss cantons had engaged in very
distinctive programmes of codification (e.g. Canton of Zurich, whose Private Law Civil Code was
promulgated in 1853). Nonetheless, the Swiss Confederations would have to wait until 1907 for a
unified federal constitution, even though a unified federal constitution had been in place since 1848.
- While in Switzerland too the birth of the code took more than 20 years in total, there was never
the controversy that surrounded the BGB in Germany. The process was simplified by 2 factors:
the codifiers were working against the backdrop of a political sphere in which direct democracy
already played an established governmental role; and in reality there was only one codifier, a
faithful exponent of the Swiss juridical tradition who was able to give the code its own specific
character.
- That author was Eugen Huber, who was a Germanist with a deep knowledge of Swiss legal
history. His proposals were favorably received because they were rooted in national tradition.
- Defining characteristics: the Swiss Civil Code is based on the idea that a code has to be popular
and democratic, so that even people without formal legal training should be able to understand
its content. This meant that the document’s language is plain and concise and that it makes
consistent reference to daily life. The entire code is founded upon a sense of solidarity, leading
to a much more concrete approach to the law in which inequalities of fact are acknowledged
and positions of social or economic strength and weakness are considered legitimate subjects
for the code to cover.
- Most important feature: the code deliberately rejects the idea that it could be complete and give
an answer to every conceivable question and so it left open a very wide field to judicial
discretion. Contrary to the BGB that aimed at given a very precise regulation and at leaving as
few gaps as possible, the Swiss Civil Code was restricted to guidelines and principles in many
instances.
- Unlike the BGB, the Swiss Civil Code does not have a general part describing the basic concepts
of law (e.g. the concept of damage). Instead, these definitions are ascertained by judges.
- Art 1(2) and 1(3) provide that “in cases unforeseen by the law the judge shall decide according
to accepted customs; should this also be absent he shall act as legislator and create his own law.
In this he shall follow the best teachings and jurisprudence available”.

In this period, there were many differences in family law in the European continent. E.g. French Code
Napoleon provided for the possibility of divorce, while other civil codes like the Italian and Austrian
one did not provide for this possibility because the Christian roots of these countries were stronger.

Interpretation of the Austrian civil code (ABGB)

 Architect Austrian civil code: Zeiller (most important member of commission tasked with
drafting the civil code).
 In his book, Zeiller explains how the code was written and how it is to be understood:
- ABGB is made for a ‘learned/cultured’ nation > language is complex.
- Zeiller explains that Roman law was the basis for the Austrian civil code, like it was for many
of the European civil codes (e.g. French Code Napoleon, but here the influence of Roman law
was mitigated by French customary law). Austrian civil code relies more on Roman law than
the CN.
- Roman law can be used for interpreting the ABGB (since it is based on Roman law).
 - Equity and reason also important > when the code doesn’t provide a specific rule for a
specific case, interpretation has to be guided by principles of reason. Very different than
French approach that provided a lot of specific rules while ABGB was a code of general
rules/principles.
- Another instrument of interpretation > Intention of the legislator (i.e. objective that
legislator wanted to achieve with a specific rule).
- Zeiller: ABGB can solve all the possible legal problems of civil law, through the interpretation
of the principles provided by the code itself. Different people may interpret the same legal
rule in different ways but the solution to this is the existence of Supreme Courts (who have
the power to impose a uniformity of interpretation and application of the law).

Direct/indirect influence of civil codes

 Direct influence > when a civil code takes as a model the civil code from another country. E.g.
civil code of Italy was directly influenced by the Code Napoleon because it took the CN as a
model while drafting its own civil code.
 Indirect influence > when the civil code of state A is influenced by the civil code of state B, which
in turn is influenced by the civil code of state C: we can say that the civil code of state C is
indirectly influenced by the civil code of state A, through the mediation of the civil code of state
B. E.g. German civil code indirectly influenced Chinese civil law.

Savigny ‘Of the Vocation of our Age for Legislation and Legal Science’
- Book was born from the debate between Savigny and Thibault concerning codification and the
adoption of a civil code in Germany.
- Peace Conference in Vienna after defeat of Napoleon: period of restoration in Europe
(boundaries of nations but also restoration of laws, to restore the laws before the Napoleonic
conquest).
- Innovation that the civil codes had imposed were irreversible > failure of restoration.
- In this time of change, Savigny believed it was important to write a book about why a German
civil code should not be made at that time.

RINALDI NOVEMBER 3RD

DUTCH CIVIL CODE

The private law of the Netherlands is founded on Roman law, as codified in the Corpus Iuris Civilis of
Justinian, and also on the Code Napoleon that applied during the French predominance of the
Netherlands from 1795 up to 1813. When the Netherlands, after annexation in 1811, became a part
of the French empire, the Code Napoleon was automatically introduced in the Netherlands as its
own civil code.

After the French left, the Code Napoleon kept its influence. The first Dutch Civil Code (called
Burgerlijk Wetboek) was formed in 1838 and was based on French civil law, but also on Roman-
Dutch law that ruled before the French occupation. While the 1838 Code drew heavily from the
Code Napoleon, it was not merely a translation. In particular, some French rules were removed that
were considered culturally inappropriate or inconsistent with Dutch legal principles (e.g. removal of
civil death, meaning the loss of all civil rights upon a criminal conviction, which was a concept wholly
foreign to Dutch society), and modifications were made to codify prior existing Roman-Dutch law.
Unlike the French model, for example, the Dutch Code drew a distinct contrast between real
property rights (rights in rem) and property rights that could only be enforced against one specific
person (rights in personam). The Dutch civil code returned to the requirement of delivery for the
transfer of ownership as known in Roman and Roman-Dutch law, and so a clear distinction was
made between the law of property and the law of obligations.

Over the next century the Dutch Civil Code of 1838 had been modified and amended frequently. In
1992 a new Dutch Civil Code was introduced, which was largely influenced by the German Civil Code
(Bürgerliches Gesetzbuch/BGB). In particular, the distinction between civil law and commercial law
has been abandoned in this new Dutch Civil Code in favour of a broader range of private law. it now
covers all aspects of commercial regulation that were previously contained in separate statute
books. The new Dutch code also loosens the legal positivism of the French system in favor or
granting courts wider discretion in adjudicating problems. Particularly, the Dutch code has many
general provisions that refer to the principle of good faith, understood as reasonableness and
fairness. They allow the court to determine whether the legal outcome, as prescribed by contract or
law, is reasonable and fair in a specific case, given all circumstances.

CLASS NOVEMBER 9

European-continental system > emphasizes the role of the author and his economic and moral rights
Anglo-American system > based on the right of reproduction of the copy

1886 Bern Convention for the Protection of Litery and Artistic Works was gradually signed by almost
all western countries except the US

In practice there is evidence that the 2 systems show some elements of convergence during the last
decades, especially since the US joined the Berne Convention. At the same time, the lack of interest
in them, led European Directives to be inspired by Italian copyrights.

Atkins case of 1666 used for the first time the term ‘property’.

John Locke
- considers property as a ‘suum’ in his Treatises of Government
- authors have the property of their work

Statute of Anne of 1710 attributes the reproduction right of the work not only to the author.
John Miltion in Areopagitica in 1643 > he argues that who destroys a good book commits a kind of
homicide.

Position of case law:

The Case of the Booksellers and Printers Stated: with Answers and Objections of the Patentee, 1666 >
in a judicial case, for the first time, the term property is used referring to literary works

Position of legal science:

Locke analyzed property rights and their relations with labor in his famous Two Treatises of
Government > stating that ‘the labor of his body, and the work of his hands … are properly his’.

Memorandum on the 1662 Act (1694) > Locke writes that no book may be reprinted without the
written authorization of the author.

He strongly opposed the monopoly of the press > name of authors should be included so as to
ensure property.

Public domain > the moment in which a work becomes available to all the public?

STATUTE OF ANNE (1710)

Statute of Anne (April, 1710) > “an Act for the Encouragement of Learning, by Vesting the Copies of
Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned”

This is the first statute concerning copy right!

Before, there was a draft of this act (“Bill for the Encouragement of Learning, by Vesting the Copies
of printed Books to the Rightful Owners thereof”, March 1710) > transposed some of the instances of
English case law and scholarship.
- It recognized the author’s ownership over his work and equated this with tangible property.
- To print without the consent of the authors was considered to be a great discouragement to
learning but also an invasion of property that could be very detrimental to their financial
situation.

Statute promulgated was very different!

- Although it recognized some of the requests, it did not consider the author to be the only owner
of his work.
- Instead, it acknowledged an exclusive right over the authors work together with other recipients
(e.g. printers, publishers). Intention was to curb the monopoly of the seller rather than to
protect the author’s ownership of his work.
- Reestablished the notion of common exploitation > after 14 years the works falls into the public
domain.
- This is how copyrights came about and slowly developed, giving priority to publishers over
authors.

Significant differences to continental legal system.

- Continental legal systems: attribution to authors of economic prerogatives, enhancement of
creativity, gradual recognition of the author’s moral rights.
- Position of English legal scholarship case law developed successfully in France through the
dissemination of Locke’s ideas > spread to rest of Europe.
RINALDI
SWISS CIVIL CODE

Different way of addressing some problems:

 Different than the BGB and ABGB in particular for the language used > simple language (more
like the CN) because it was meant to be understood by ordinary citizens and not by people with
legal education.
 Following the Enlightenment period, judges were seen as suspicious > too much
authority/discretion was feared and so many civil codes tried to limit as possible the role of
judges. Swiss civil code is an example of the complete opposite.
 Art 1 > judge is given a lot of authority: in absence of legal provisions and customary law, the
judge shall decide according ‘to the rule which he as a legislator would adopt’
 Today also the Swiss code gives a lot of power to the judge, but it is a little more restricted > not
tradition, but established doctrine and case law (bit more scientific).

High regard for good faith (art 2 and 3)! This was intended to encourage people to collaborate as
much as possible, even in private law, where usually parties only think about their own interests.
Method to improve contractual relationships > make them fairer.

1814 FRENCH CONSTITUTIONAL CHARTER

Restoration of Bourbon dynasty > Why? Napoleon was defeated and his dominion over France and
Europe disappeared. At the Congress of Vienna, the political powers/countries wanted to eliminate
all the changes made by Napoleon. They didn’t just want to restore the borders, but also all the
monarchies that were defeated by Napoléon and the restoration of their previous regime.

However, people were accustomed to the new liberties and the system under which they had lived >
kings had to make some concessions in the form of constitutional charters which represented the
basis of the King’s exercise of power.

Concession > this kind of constitutional charter was a sort of self-limitation of power by the King. He
tried to maintain the reins of power by saying ‘voluntarily’ (otherwise people may think he was
compelled to do it and

1830 FRENCH CONSTITUTIONAL CHARTER

Old Art 6 no longer present > catholic religion as official religion of France.

Art 7 > censorship can never be re-established > big step forward to freedom of press.

Art 15 > also the chambers now have the power to propose laws.

Art 27 > sitting of the chambers are public

Art 33 and 34 > income requirements to vote and to be elected lowered

Art 47 > democratization of power of impeachment (before King, now chambers)

Strong opening to a more democratic constitutional order.

CONSTITUTIONAL CHARTER OF KINGDOM OF PIEDMONT-SARDINIA

NB > Would become the constitutional charter of Italy when it unified in 1861.

Question: Contribution of Savigny and the importance of the Historical School of Law
Savigny is a German jurist who regarded law as the customary expression of the spirit of the people.
He believed that the origin of the law is in the ‘common beliefs of the people’, much like language,
since ‘the law, like language, lives in the consciousness of the people’. This general or common
consciousness he called the Volksgeist. Thus, Savigny saw the law not as a consciously created,
legislative product, but as the result of a people’s historical and cultural experience, continuously
evolving and expressing itself in the community’s Volksgeist. He argued that any codification project
depended on legal techniques being advanced enough to create a just reflection of the law as it had
grown within a society. This level of legal sophistication, Savigny argued, had not yet been reached in
Germany. The 18th century had brought forth few great jurists, who were certainly very diligent, but
who lacked the historical sense to arrive at a correct understanding of the conditions of their times,
and the ability to form a systematic understanding. Savigny’s historical approach to law formed the
basis for the so-called historical school of law, whose goal was to trace existing legal materials back
to their roots to discover their organic principles.

However, for Savigny, legal science could only operate by combining the historical and the systemic
method. Historical investigation is necessary to reveal the general principles of positive laws. But the
study of the past is only a tool, a starting point for what Savigny regards as the true purpose of legal
science: detecting the innermost principles of the system and revealing the system’s internal
coherence, that is, the ways in which individual legal concepts and rules are united into a whole. It is
this systematic element of this thinking that left a profound mark on legal science. It formed the
basis of the Pandectist school, which was led by one of Savigny’s disciples called Puchta. The
approach of the Pandectists was based on the idea of law as a ‘system’, in other words a fully
worked out set of legal rules without any gaps, which could be applied to any new legal scenario that
may arise.

The historical school of law is an intellectual movement born and developed in Germany since the XIX
century, as a reaction to natural law and thanks to the influence of Romanticism. Romanticism
entailed a scepticism towards the Enlightenment conception of progress, revaluating history in all its
complexities and paying particular attention to the irrational dimensions of religion, belief and
customs. These irrational aspects of history influences the foundation of a new legal science, the
historical school of law. Savigny (1779-1861) is one of its most relevant figures: he thought that
“legal science is nothing but legal history”, so that the law is the spirit of the population and the
expression of tradition, an uninterrupted flow that arises from a community, develops and
transforms itself following the needs of that historical period. That’s why, according to Savigny, the
most privileged source of law is habit. In “On the vocation of our age for legislation and
jurisprudence” Savigny stands against codification in all its forms, as he thinks that by fixing the
norms into a written text, the natural process of continuous transformation and evolution of law is
interrupted. Savigny was, because of this convinction, part of a polemical debate with Thibaut (1772-
1840), who supported the need for a Code in Germany, as he thought it was a useful mean for
unification, incorporating the most important elements of the common Germanic legal tradition.
Anyway, the first, historicist, phase of Savigny’s writings is followed by a second, after 1840, totally
different one: in the System of Modern Roman Law he tried to sketch out a general theory of civil
law, providing a framework for the extreme fragmentation of many customs, going from the
particular to the general and reconciliating the conflicting details. We may perceive a re-evaluation
of the state and of the written law, alongside the central role played by legal scholarship.

Why was the idea of Savigny so strong in Germany and not in other countries (e.g. Italy > codification
happened very quickly after unification): different perception of German people as the whole, period
in which German nationalism arises. They reclaimed a cultural autonomy different than the rest of
Europe, and they didn’t accept codification like the majority of other European countries.

CLASS NOVEMBER 10
2010 Copyright Law of the People’s Republic of China > Compromise of common and civil law?

After French revolution: exclusive right of the author to exploit his work but without moral rights on
it.
- Initially the nature of the protection was linked to property and not to individual rights.
- Diderot, Letters on bookseller business > the same as tangible property (like real estate); “the
author is the owner of his own work”.

Act of the National Convention of 1793 > exclusive right to property but with a time limit of 10 years
after the death of the original author.
- Beginning of French authors’ right and the system of civil law regarding authors’ right.
- Author kept the property rights for his whole life, but the heirs only have the right for 10 years.
- Limited property due to temporal limitation.
- Difference to statute of Anne where author’s right was not recognized (it was on the same level
as publishers etc)

Central issue that the French neglected was the termination of property right.

Code Napoleon, 1804 > authors’ right could not be included in a code that only considered concrete
items (because authors’ right are time limited, not an absolute property right of material goods).

However, many legal scholars deemed that authors’ right should be deemed property rights >
special legislation required, not included in the code civil.

Napoleon in 1808 > literary property seen as ‘immaterial property’; no reference to perpetuity
- He did not want to hinder the spread of knowledge
- 1810 > To meet the requests of authors, Napoleon increased the limit of the heirs’ rights from 10
to 20 years.

Subsequently, legal scholarship (like Pardessus) tried to shape the different legal categories.
- Effort to make up for regulatory gaps in legislation > make them fit into the construction of
French civil law.
- Pardessus, Course in Commercial Law (1814) > he separated tangible (material) from intangible
(immaterial) property. For questions of intangible property they offered solutions different from
those of the category of property.

1448 > invention of printing press

- Initially printing privileges were given to the printer or book seller.
- In the 15th century there wasn’t even an established practice of paying authors > only person
receiving money was the printer or book seller. Often the author of the book was not even
 mentioned. One of the problems that emerged was related to censorship (authors was
concerned that his book would be censored, and he would be punished).
- It took a lot of time to recognize authors’ rights like economic exploitation.

EARLY 19TH CENTURY

 French model (based on law of 1793) and English model (based on statute of Anne and
subsequent legislation on copyright)
 French system prevailed in continental Europe
 English model spread in the Anglo-American world.

Civil codes inspired by France:

 Civil Code of Baden (1809) > any written work is the exclusive property of the author and can be
transferred like any other (material) good. Problem of piracy: it was important to put limits on
the right of publishers (before, they didn’t recognize the right of the author once they possessed
it). So there was the need for an explicit statement that only in the case that a manuscript is
given for a fee, there can be an alienation of property. Distinction between printer and
publisher.
 Portuguese Civil Code (1867) > contained in the section of the code concerning ‘labor’ (not
property). Important because it introduced the intellectual property rights in the civil code +
authors get a different kind of recognition: it is formally recognized that they perform a kind of
labor and in this way, they receive more attention.
 Spanish Civil Code (1889) > expressly refers to special legislation; every civil code contained
general principles concerning IPRs (except CN because there is no reference to IPR at all) and
specific legislation providing more concrete rules.

EVOLUTION OF IPR’S IN ITALY

 Kingdom of Piedmont-Sardinia (1837) > book of property (owners are granted ownership of
intellectual property seen as a property right > equation of intellectual rights with tangible
property)
 Italian Civil Code of 1865 > book of property
 Italian Civil Code of 1942 > book related to labor.

Civil Code of the Kingdom of Piedmont-Sardinia (1837), Art 440: “Protections of human ingenuity are
property of their authors, in compliance with laws and regulations that are related.”

Italian Civil Code (1865), Art 437: “Productions of ingenuity belong to their authors according to
rules established by special laws.”

Italian Civil Code (1942), Art 2577: “The author has exclusive rights to publish his work, and to use it
economically in every form and way, respecting the limits of the laws and according to their effects.”

What do we observe?
 In the Italian Civil Code of 1942, the author is given more prominence.
 Difference in the use of the term property > the first and second code use the verb ‘belong’,
meaning that it still considered it as a form of property. In the last one, authors’ rights are
defined as exclusive rights: we are no longer talking about property but about a right that more
specifically attains to the work of an author (more autonomous and specific). No more the
problem of assimilating authors’ right with the right of property > it was given a specific and
independent definition.
Terminology issue > in Italy, the code of 1865 replaces the term of property with ‘right to belonging’,
while the 1942 the expression ‘exclusive right’ is used. Problem in classifying the right, which
explains why it was not included in the civil code, seems to emerge once again. Replacement of term
property with exclusive right had already been adopted by many European laws (like the Berne
Convention).

BEGINNING OF PRINTING PRIVILEGES

First known printing privilege: Johannes of Speyer’s Printing Monopoly, Venice (1469)

Printing press is a very new thing; much uncertainty on what will happen (how it will revolutionize
the book market).

Venice rulers did not understand how important this invention was > didn’t seem strange to grant
monopoly.

Subsequently, Venice will become center of printing (Johannes dies some months after been granted
the monopoly).

NB > authors are not important! Only aim is to safeguard the printer. It was treated like any other
kind of invention.

Brother applied for the same monopoly but is refused!

ARIOSTO’S PRINTING PRIVILEGE, VENICE (1515)

Author himself asks for a privilege > that only he can publish and print his books.

VENETIAN DECREE ON AUTHOR-PRINTER RELATIONS, VENICE (1545)

Issued by the council of 10 (ruling body of Venice).

Context > time in which censorship of books was in force in a very strict way. Reference “to name
the author” was not only to the benefit of the author but also due to reasons of censorship. If an
author wanted to write something that was somewhat controversial, they would usually publish
without their name. This required publishers to name the authors which meant that authors who
went against the rules on censorship could be punished.

Question: origins of protection of copyright in common law systems.

The history of copyright law of common law systems originated with the introduction of the printing
press in England in the late 15th century. As the number of printing presses grew, authorities sought
to regulate the publication of books by granting exclusive printing privileges to printers. In practice,
these functioned as near monopolies on printing. During the 16 th century in England, the printers,
known as ‘stationers’, formed a collective (guild) called the Stationers’ Company. It derived its
authority from a Royal Charter of 1557, which granted it a monopoly on the printing of books. The
right to print a book was obtained by entering it in the company’s register and only members of the
company were allowed to own ‘copies’ of the books. In return for this monopoly over the book
trade, codified by the Licensing Act of 1662, the Stationers’ Company was expected to implement
the Crown’s censorship policies to prevent the publication of seditious and heretical books.

A crucial turning point came in 1695 when the Licensing Act of 1662 lapsed and with it the privileges
and powers of the Stationers’ Company. Attempts by the guild to persuade Parliament to restore
powers under the Act were unsuccessful, largely because of concerns about the damaging effects of
monopolies. Around the same time, John Locke was arguing that authors’ work should be
considered their property. He strongly opposed the monopoly of the press, asked the author’s name
to be indicated in his books so as to ensure ownership, and proposed a term to be introduced for
such ownership before the author’s work came under public domain.

In 1710, Parliament enacted the Statute of Anne, considered to be the first copyright act. This Act
introduced for the first time the concept of the author of a work being the owner of its copyright
and laid out fixed terms of protection (14 years, and renewable for an additional 14 years if the
author was alive upon expiration). The Preamble of the Statute of Anne expressly recognized the
importance of copyright as a means of disseminating knowledge and information. Nevertheless,
while the Statute did provide for the principle of authors’ ownership of copyright, this right was
limited because in order to be paid for a work an author had to assign it to a bookseller or publisher,
and once a work was purchased the original copyright owner no longer had control over its use.

While the Statute of Anne brought authors to the forefront of copyright ownership, it was still quite
different from the arguments of Locke. In particular, it did not consider the author to be the only
owner of his work. Instead, it recognized an exclusive right over the work for the author together
with other recipients like printers and publishers. This was because the intention of the legislator
was to curb the monopoly of booksellers rather than to protect the writer’s ownership of his work.
Thus, the Statute of Anne established the notion of common exploitation because after a lapse of
time the work of an author came under public domain.

This is how copyright came about and slowly developed, influencing English and American law and
giving priority to publishers over authors. Locke’s ideas were picked up in France from which they
spread throughout Europe. Consequently, the continental legal systems were characterized from the
very beginning by the attribution to authors of economic prerogatives resulting in the recognition of
an exclusive right of the author to exploit his work.

Look at Atkins case?

CLASS NOVEMBER 16

Code Napoleon, 1804 > art 544: Propriety is the right of enjoying and disposing on things in the most
absolute manner, provided they are not used in a way prohibited by the laws or statutes.

Authors’ rights are not included in the CN!

In the opinion of Napoleon, intellectual property is immaterial property

Act of February 1810 > Napoleon increases heirs’ rights.

Pardessus, Course in Commercial Law (1814): “The sale of a manuscript in full ownership … does not
produce the same effects as that of ordinary properties. It does not entail …

EARLY 19TH CENTURY

- French and English models
- French system prevails in continental Europe after the promulgation of the 1793 law
- English model spread in the Anglo-American world.

In the early 19th century the law concerning author’s rights appeared on the European scene with
two models of reference: French and English models. The French system was adopted throughout
most continental Europe despite being excluded from the civil code. It took root first in the countries
subject to occupation by napoleon, and then in the other countries due to the importance and
novelty of the 1793 legislation. Such differences from the French model concern only the addition or
modification of specific aspect, e.g. duration of inheritance rights, requirement of formalities, scope
of categories of right holders. They don’t undermine the substance of the model.

The dissemination of the French model brings a large number of issues to the forefront connected to
the fate of intellectual property in Europe. Difference between countries that include IPRs in civil
code and those that adopt special legislation.
- Civil Code of Baden (1809): general authors’ rights contained in civil code while specifics are
adopted in special legislation.
- Portuguese Code: IPRs included in the civil code.

Peculiar element: right is not related to the national structure of the territory. The global concept of
its nature is generated. Historical analysis makes it easy to understand the issue.

Need for international treaties that derogate from domestic laws > contribute to substantial
uniformity among the major legal systems of continental Europe.

Bilateral Treaty between Austria and Sardinia, 1840 > art. 1: “The works or products of the human
intellect or of art which are made public in either of the signatory States constitute a property to
which the authors or creators of these are entitled, and which they may enjoy for life or otherwise
dispose of.

This convention was signed by almost all the Italian states before unification and also adopted by
other countries > it inspired similar bilateral agreement among the major countries. Circulation of
the civil law model led to the establishment of such treaties which formed the basis for other
international conventions (preparing for a global reflection on the issue).

International Brussels Congress of 1858 > brought together the European countries to study a
common legislation on authors’ rights. From their resolution emerged a strong and concrete trend of
harmonization and common conception of all intellectual work.

1878 Paris Congress which founded the ALAI (International Literary and Artistic Association) and the
creation of the Berne Convention found a solution for some of the issues still open during the
century.

Berne Convention for the Protection of Literary and Artistic Works, 1886

Solution > authors’ rights as a special legislation, temporary and non-perpetual inheritance rights
with the establishment of time limited ownership, authors exclusive right to exploit his work.

1928 revision Berne > significant recognition of two-fold nature (moral and tangible) is affirmed.
Attribution to the author not only of exploitation rights but also moral rights.

Also international treaties of the 20th century, like WIPO and TRIPS, under the American influence,
have used the notion of intellectual property in its polysemic meaning.

SEE MOSCATI’S ARTICLE!

RINALDI
Statute of Anne > they wanted to address the problem of piracy. Less economic incentive for authors
to publish.
- New books: 14 + 14 years
- Books already printed: 21 years
- Punishment for piracy (monetary penalty)
- It represents a societal bargain > balance between interests of the author, publishers and
printers and the interest of the public
- Primary objective: free market of ideas (continuing production of books and intellect).
- Balance between different persons involved in literary production criticized (common
exploitation).

Balance achieved by Statute of Anne different than the balance achieved by the French act on
intellectual property.

CLASS NOVEMBER 17

New challenges by so-called information society.

European Directives
- 2001 Infosoc directive > harmonization of authors’ rights and inspired by the digital millennium
copyright act. It underlined the development of authors’ rights faced with transformation and
technological changes of the digital world.
- Last directive in 2019

Recent initiatives have led to renewal of systematic and substantial level. They can be understood
and framed in the light of the past which have strongly marked the problems of the present.
- Draft of revision of book II of the French Civil Code > proposal made by Assocation of Henri
Capitant > recognized that intellectual property was never induced in the code; it was always a
special law. Question whether it is a special law or a self-contained domain. Draft stated that
provisions of code II are not prejudicial to particular law governed by the code of intellectual
property (or other special provisions governing IPR). Systematic innovation made by the
reformers of the second book, on the one hand ratify current trend to overprotect the author,
on the other hand, seemed to exclude a renewed attention to the problems of the nature of the
rights considering them as already granted. Proposition to introduce in the civil code the
renewed book II a provision about intellectual property.

European copyright code (2010): project of codification

- Harmonize the two systems of civil law and common law on IPR. It aims to become a model for
future legislation in Europe and MS > starting point for the evolution of a single plan to rule IPR.
- However, the ECC does not seem to be specially designed for civil law systems. It is developed to
combine the two systems.
- Compared to Charter of Fundamental Rights that states that intellectual property must be
protected without saying how, the ECC is the result of principles belonging to different systems.

Whole project aims at inspiring harmonization: ECC result of collaboration between copyright
scholars across the EU. Aim is to promote transparency and consistency in European copyright law
and include the voice of academia that often remains unheard. ECC drafted by legal scholars may
serve as a model of harmonization at the European level. It is not a recodification > European
copyright law operates within the system of EU, the code takes account of the substantive norms of
the Berne Convention and TRIPs agreements. Members of ECC hope that it will contribute to
establishment of copyright body.
With the UK leaving the EU, it may be easier to adopt a harmonization act based on the ECC ?

MORAL RIGHTS

Right of divulgation: right to decide whether and how the work is disclosed for the first time

Right of integrity: right to object to any distortion, mutilation or other modification, or other
derogatory action in relation to the work.

Right of attribution:
- Right to be identified as the author, including the right to choose the manner of identification
(e.g. by using pseudonym) and the right, if the author so decides, to remain unidentified.
- Right to require that the name or title which the author has given to the work be indicated.

Right of repentance: right to withdraw the work from the market

Origins of protection of moral rights are much more recent than the origins of economic exploitation
of authors’ work.
- Droit morale began to be protected in France after French revolution as the result of some
decisions of 1814.
- 1793 French Act: right to exploit the work following from the authors’ property
- Protection of non-econoimc rights would be a matter of specific interests. In the legal thought
starting from second half of 19 th century and for the legislator ony at the beginning of the 20 th
century.
- In France, since the first half of the 19 th century, both case law and the legal science started to
look at the authors’ rights not only in terms of property. In particular, in 1814, the case law
began to draw attention to the droit morale with a decision of the civil court of seine in which
the moral nature of the right was recognized within the limits imposed by the typographer to
safeguard the integrity of the text with the clear purpose of protecting the authors’ reputation.
This is a protection not of an economic nature, but of a moral nature.
- In the same year, Pardessus conceived the rights granted to the author as a protection of his
non-economic rights. Author’s rights in his intellectual work are intangible and comparable to his
rights in material property.
- Only in 1900 did the French Court of Cassation give a partial definition of moral rights and of its
effect on economic rights. The term moral rights made its first appearance in 1909 within a first
instance judgment and only in the 20s a specific project was discussed without reaching any
solution.
- France in the 19th century found it difficult the identified solutions and to turn them in a specific
legislation. It remained only at the level of legal science and case law.

Other countries of continental Europe began to construct such rights in some legislation.
- Baden Civil Code (1809), art 577: “These restrictions, unless the publishing contract has specified
otherwise or more, are that the publisher may make the circulation as big as he wants; however,
it may not be repeated without the consent of the owner; unequally that he may set up the
impression in the utterance as he likes, but that he cannot dimmish or increase the content” >
right of integrity!
- Austrian Civil Code (1811), art 1168: provided a particular right of the author to modify his work
even when he is bound by a publishing agreement. A new edition with changes compared to first
edition can be sold but the author must give the publisher compensation for the copies of the
original work that he hasn’t sold.
- Austro-Sardinian Convention (1840): right of the author to prevent the usurpation of the title
that he has chosen in case that it can mislead the public on the identity of the work (art 11) with
 the consequent “right to compensate for the damage suffered” (art 15). It prevents the person
of the author and can be seen as antecedent to moral rights.
- We see that these codes originate in areas influenced by Germanic thought > influenced by
thought of Kant!

Economic rights allow authors to derive financial reward from the use of their work by others. Moral
rights instead allow authors to take certain actions to preserve and protect their link with their work
(these rights are connected to the person of the author, to protect his reputation and integrity). In
many legal systems, while the author may transfer his economic rights, the transfer of moral rights is
not allowed (i.e. moral rights are only accorded to individual authors and they remain with the
author even after they have transferred their economic rights).

RINALDI

Important contribution deriving from Locke’s thought that was accepted both by English and French
system > concept of time-limited property.
- Statute of Anne: 14 + 14
- French law 1793: life of the author + 10 years for heirs.

FRENCH LAW 1793

Art 1 > difference with Statute of Anne: exclusive right for the whole life of the author + authors are
at the center of the law (they are the main focus of the law) even if they can sell their economic
rights. Statute of Anne also other subjects involved in book commerce were taken into account
(common exploitation).

Art 4 + 5 > economic punishment for piracy

Art 6 > Related to right to bring legal actions; right of author limited. Not present in the draft version.
Why was it inserted? In some part, related to censorship but more importantly. For some legislators
this article should be different because we are not protecting authors at the maximum level.
Maximum expression of protection of author vs idea that it is more similar to statute of Anne than
we might think. Since in the French act of 1793 there is this article about formalities, the systems
provided is so different from Statute of Anne (less innovative than it was thought to be). Political
struggle: in the end, these kind of formalities required the intervention of booksellers or those who
kept registries (meaning that their interests, in the end, were taking into account as well).

Joseph Lakanal report on the French copyright act

- Lakanal is saying that intellectual is the most perfect form of property. We know it’s not true
because intellectual property has a time-limit and cannot be considered an absolute right.
- Laboulaye > stresses that the nature of intellectual property is limited. He criticized Lakanal.
- Renouard > differences between idea that authors are absolute owners of their work vs the idea
that authors’ rights do not come from property rights but because authors are workers. He
states that the French copyright regime of 1793 is not a system of absolute property.

1793 law is a step forward regarding the protection of the author but there are still limitations that
persist. It will be improved in time.

CLASS NOVEMBER 23

Some contributions of legal science and case law.

Italy:
 Federigo Sclopis > any idea of privilege must remain outside because it would sign a deviation
from the droit commun (common law), and the principle of literary property must return,
according to its nature, into the droit commun.
 Case law after enactment of civil code of Piedmont-Sardinia of 1840 > the useful property of the
manuscript and the printed work passes to the publisher… while the spiritual property of the
work always remains with the author, and it is therefore that even in the later editions it must
always show itself to the public under his name, and must neither be changed nor altered
without his assent. Not yet moral rights, precursor?
 Alessandro Manzoni > personal right of author to exercise control over publication of his work
when he claimed the need for his consent of the English title of The Betrothed (I Promessi).
Felice le Monnier reprinted the edition of The Betrothed of 1832, which Manzoni later amended
and did not want to circulate (future right of integrity of the text).
 Pettifogger, stereotype of 17th century lawyer?
 Italian law of 1865 did not seem to progress with respect to the convention, only reference to
right of integrity in the use of the work.
 But some jurists understood the importance of such rights, believing that the heirs should
continue to defend the authors reputation also after his death.
 Ferrucio Foa, used the term ‘moral rights’ in the title of his paper in 1898. This required deep
analysis in order to delineate single rights and favor legislative examination.
 Italian law was revised in 1875 and 1882 but moral rights not included.
 Italian case law accepted the right of divulgation as entirely granted to the author. Most
important litigations: Verga vs Mascagni, Ricordi vs Sonzogno, D’Annunzio vs Scarpetta.
 Protection of the authors’ rights gains more attention but not yet included in legislation which
results in feeling of incompleteness (e.g. German law of 1901 and French law of 1920) > famous
‘affaire camoin’ (1925-27) very important example of publication of work without authors
consent. It was judged by the Supreme Court of 1927 as a serious infringement of moral rights.
The French painter Camoin had thrown numerous paintings in the garbage which were
subsequently recovered and restored by someone else without Camoin’s consent.

In Italy and rest of Europe, the 20 th century was characterized by willingness to grant wider
protection to authors and their rights in light of technological development and new reproduction
devises.

Vittorio Polacco: in 1919, the Italian government appoints the Polacco Commission to draw up a new
law on authors’ rights.
- Grant to the author the right to claim attribution, integrity and repentance. Protection of such
rights even after his death. They were not provided for in most European legislation of that time.
- Despite its favorable reception, the bill was not passed by Parliament > in 1925, the draft bill of
the Polacco Commission is revived during the fascist regime. This new law explicitly protects
moral rights.
- Edoardo Piola Caselli is the main architect of this new law. He revised the Polacco draft in a way
that the protection of authors personal and moral rights was more accurately regulated.
- Art 16 > authors rights not only include economic rights but also personal rights (no time limit to
personal rights).

European perspective
- Starting from 20th century, there was the argument to give moral rights priority and to propose
new regulatory system through Berne Convention.
- League of Nations provided an international character of the issue. In this context, the legal
science itself started to deepen the nature of these rights connected to the person of the author.
- Francesco Ruffini: claimed the prominence of protection of personal rights and supported their
international dimension. Importance and centrality of personal techniques designed to protect
these rights fall within the new conception of authors rights.
- There rights start to become considered autonomous, inviolable and unwaivable. They continue
to connect the author to his work even when it is transferred.
- During the revision of the Berne Convention held in Rome in 1928, moral rights received due
consideration at the international level. Article 6bis now recognized the protection of moral
rights and entrusted national legislation to determine how such rights should be exercised. Not
all moral rights are protected: only the right of attribution and right of integrity received full
approval.
- Opposition of UK > right of divulgation was felt detrimental to the interests of publishers.

Chinese copyright law 2010

- Appears to be linked to civil law system
- Art 10 includes personality rights (attribution, integrity, distribution, repentance, etc.) without
using the term moral.

The protection of moral rights today internationally recognized has long represented an essential
dissimilarity from the common law system. Only in 1988 the BCIA ratifies the US adhesion to the
Berne Convention.
- In April 2019, upon the initiative of the Congress, the Copyright Office published a report
discussing the level of protection of moral rights in the US.
- In Europe, one of the most controversial point of the directive lays in the lack of harmonization
of moral rights protection. 2019 Copyright Directive: ‘moral rights not harmonized at EU level’.
- However, European Copyright Code (ECC) or Wittem Project of 2010 > gives plenty of leeway to
the protection of moral rights, including right of attribution, integrity, divulgation and considers
them separate from economic rights. The right of divulgation ceases as the author dies (not
perpetual), while the right of attribution and integrity are granted to the heirs (should be
regulated by specific laws). NB > Neither the French intellectual property code nor the Italian law
provided for any limitation in the term of time for the protection of moral rights. Under the
Berne Convention, protection is granted at least until the expiration of economic rights, after
which national legislation became responsible.
- Solution proposed by ECC rests on the willingness to harmonize the 2 systems > inspiring model
is the Canadian copyright because it establishes the same time limitation.

RINALDI

Differences between Berne convention and the Berlin revision in 1908:

- Art 1 (both) > reference to ‘Union’ (lot stronger than treaty): right of authors should be
recognized at a universal level, to broaden as much as possible the scope of the protection.
General expression of ‘rights of authors’ and ‘works’ > they wanted to use the broadest kind of
description so that interpretative problems could not narrow the scope of protection.
- Original art 2 vs revised art 4 > before the enjoyment and exercise of rights were subject to
formalities, in art 4 they are NOT subject to any formalities. They were seen as a kind of
limitation to author’s rights because their right is subjected to specific actions.
- Also: scope of protection was limited to country of origin while in the revision it is widened to
the level of protection guaranteed by the country in which the work is published. E.g. Even if in
the country of origin author’s rights are not protected, the Berlin revision provides that the
author will still be granted protection if the country in which his work is published offers such
protection (i.e. you can enjoy rights even if your country of origin these rights are not granted to
 you). This meant that even foreigners coming from countries not part of the Berne convention
would be offered the same level of protection when publishing their work on the territory of
countries belonging to the Berne convention.

Art 6bis, 1928 revision > recognition of personal/moral rights.

Berne Convention in force today was last amended in 1979

- Art 2bis: Limitation of protection > protection is absent or less strong (referring to economic
protection, not moral rights!): because of public interests, such works may be placed in a domain
similar to a public domain (when term of protection expires of a book it becomes part of the
public domain where everyone can access it without any form of payment; but moral rights still
present).
- Art 2bis refers to political speeches and speeches delivered in the course of legal proceedings so
that their dissemination is possible and the public can access it freely (so they can inform and
educate themselves). A too strict protection would be detrimental to society.

CLASS NOVEMBER 24
Rome revision wanted to harmonize the Berne Convention with the Pan-American convention in
1910

Only in 1988 the US acceded to the Berne Convention

From an historical perspective, this safeguard of rights has evolved significantly. Throughout the 19 th
century the main commitment was to grant the author the property of his own intellectual work and
to seek the most effective remedies of defence. The 20 th century was characterized by the
endorsement of moral rights and the subsequent dismissal of economic rights, both at the national
and supranational level. The 21 st century appears to be marked by the waning of the interests of
moral rights, of the personal rights of authors with the specific authors of national and European
markets of unstoppable European harmonization of digital rights (US copyright model seems to
prevail).

One of most controversial point of EU directives > lack of harmonization of moral rights.
- Past few decades, following some restrictive examples (e.g. US), the European interest in
protection of moral rights seems to decrease and their legislative destinies according to what the
1998 Green Book provides for are entrusted to national legislation.
- It is worth remembering that at Rome Conference 1928 the American delegates proposed that
moral rights linked to individual person were to be protected by each country and not at the
international level. This is confirmed by the silence by of the Copyright Directive of April, 2019
and by the explicit statement appearing in its official drafting > “moral rights are not harmonized
at EU level”.
- Difficult to agree with thesis put forward in common law word according to which the interests
of EU in moral rights is justified by complexity of their harmonization. This does not consider that
the duration has been matters of the directives. Nevertheless, there are hints of strong interests
all over the world, who under ALAI 20 years ago, agreed to further reflect and make new
proposals for moral rights in the digital word.

European copyright code (ECC) became a reference model for future legislation in Europe gives
plenty of leeway to the protection of moral rights during authors lifetime. On the contrary it
provides that the right of divulgation ceases upon the death of the author and that the subsequent
right of integrity and attribution shall be regulated in separate legislative text yet to be specified. It
has been argued that such a draft brought about an unprecedent recognition of moral rights in EU,
mainly in the UK, always reluctant to accept such an implementation. Neither the French or Italian
intellectual property right law provide for any time limitation for the protection of moral rights as
well as other civil law countries. Under the Berne Convention, article 6bis, protection is granted at
least until expiration of economic rights, after which national legislation applies. It was agreed that
moral rights were to be protected after the death of the author ever since the Rome Conference and
following proposal by Italian delegates.

Solution suggested by ECC rely on the willingness to harmonize the two systems. Inspiring models
seems to be the Canadian copyright, because it establishes the same term for both economic and
moral rights, and the French droit d’auteur, although with the introduction of limited time span of
protection yet to be defined for the heirs’ rights. It is a clear departure from old droit d’auteur
system that always considered moral rights to be perpetual.

Although initially conceived to fight against international piracy, the early conventions represented
willingness to harmonize authors’ rights. Berne Convention was inspired by civil law systems.

Today the directives face technological challenges from digital words > reopen debate on authors’
rights.

In 2019, the US celebrated its 30 th anniversary of joining the Berne Convention with a renewed
interest in moral rights.
- Copyright Office (upon initiative of Congress) published a report discussing the level of
protection of moral rights in the US > demand for review for moral rights has increased
particular after supreme court limited BCIA’s scope.
- Supreme court in Dastar Corp v Twentieth Century Fox case > once a copyrighted work falls into
the public domain, anyone can freely use the work, even with the attribution to the creator.
- SEE ARTICLE!

After Rome revision, there was a draft bill for US to accede to Berne Convention
- Included moral rights provision > ensure compliance with article 6bis
- Not approved

BCIA 1988
- ‘We already comply with the Berne Convention’ > specified that Berne Convention is not self-
executing and rights already recognized in the US is enough to comply with US obligations.
- Contradiction with early refusal to adhere
- Some references to moral rights in specific legislative texts but always very limited (very loose
and not specific). E.g. VARA
- Moral rights protection in US called ‘patchwork’ (no unitary framework). Despite lack of
homogeneity of such provisions, US claimed that it satisfied its obligations under article 6bis of
the Berne Convention.