COURT SYSTEMS AND LAWbloody revolution to achieve the doctrine of parlia-
mentary superiority (though the British did cut off
at least one head and became, for a time, a republic).
Although one often speaks of common law
systems as made up of cumulative, judge-dominat-
ed case systems, and Civil law countries as code
systems, Merryman (1985, ch. v) reminds us that
the contrast is overdrawn and misleading. All Ameri-
can law students are forced to master the Uniform
Commercial Code, and many states routinely refer
to their laws as ‘‘codes.’’ So too, there are code
nations, such as Hungary, that actually did not
enact a code until it became a socialist state, al-
though it was a Civil law country before then.
Instead, what is distinctive of codes in civil law
systems is that they are unified documents that
seek to express the spirit, ideology, and goals of
the new state the revolution has created. Thus, the
French code, the Code Napolèon of 1984, sought to
express the ideology of the French Revolution—
liberty, equality, and fraternity—in every clause. It
was intended to be a blueprint for a utopia. Thus,
every attempt was made to abolish or at least hide
any earlier statutes or laws that were inconsistent
with it and try to make a fresh start. Law would
now begin with the Code Napolèon.
Further, in lines with the French Declaration
Rights of Man and of the Citizen, the Code Napolèon
must be one that the average Frenchman could
read and interpret for himself without ‘‘humiliat-
ing’’ himself by going through clerks, officials, and
other overlords to get to the courts. As such,
lawyers would be unnecessary. For this to be possi-
ble, the code must be complete—without gaps.
Everything would be covered. Although manifest-
ly impossible, the Germans did make a valiant
attempt to do so in the Prussian Landrecht of 1794,
which laid out some 17,000 detailed ‘‘fact situa-
tions’’ that were felt to cover everything that could
come up, thus eliminating any need for lawyers or
interpreters. It failed, but it is a striking illustration
of how persuasive was the ideology of the French
Revolution, which created the belief that it could
be done. In the Code Napolèon and others following
it, the goal of completeness is achieved but only by
broad statements that practically invite judicial
interpretation. (For example, the Italian Civil Code
of 1942 tells judges to follow the intention of the
legislature, and if it is not entirely clear, then to
reason by ‘‘analogy.’’)
Germany, under Bismarck, did enact a code in
the full sense but in what can only be seen as a very
Germanic manner. The Code Napolèon began with
certain assumptions about human nature (equali-
ty, liberty, etc.) and tried to produce a humanistic
code that would, presumably, have universal appli-
cation. Under the influence of Savigny, a major
German historian, that approach was felt to be
inappropriate. Instead, he insisted (in the face of
heated controversy) that the German code (and he
did agree that a code was necessary), since it was
intended to represent the spirit of German socie-
ty, must be based on the German volkgeist (folk
spirit). But it was first necessary to decide what that
was. To that end, and with help of German roman-
tic writers, he felt it necessary to plumb German
history for the basic elements of the volkgeist and
build the code up from those elements. That code
would then be not only historically oriented but
also scientific (in being built up by logical and
empirical deduction from basic principles) and
professional. This code would not be revolutionar-
y—quite the contrary—but would be a true code in
being built up, paragraph by paragraph, from
principles that could stand on their own as a legal
document and manifesto of the new Germany.
One difference from the French code was that
with its complexity and its dependence on the
many historical details that went into the volkgeist,
it would require lawyers to explain and interpret it.
Nevertheless, it was careful, like the French, to
make sure judges would have little power, perhaps
even less than was the case in France. For answers,
the German litigant, with the help of his lawyers,
was to go to the code and, above all, not to seek
answers as American and common law lawyers do.
That would just return power to the judges again.Codes were also enacted in the many coun-
tries in Europe and elsewhere that followed the
French or German systems (Japan tried doing
both, with a dollop of the U. S. model thrown in as
well (Haley 1991), though the German model
eventually triumphed). When a code was shown to
have gaps, scholars (in keeping with the tradition
of drawing on the juriconsults in Roman law)
would develop a new principle, as in an example
provided by Watson (1981), wherein a doctrine
similar to the British concept of estoppel was devel-
oped to cover cases where a person had acted
contrary to his usual practice but others had come
to rely on this new behavior. But when a new