Co(reco) dification of private law in 21ST century: some examples from lithuanian experience

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Co(reco) dification of private law in 21^st century: some examples from lithuanian experience

Valentinas Mikelenas

LL.D., Professor, Professor at the Department of Private Law, Faculty of Law at Vilnius University, Lawyer of Ellex Valiunas Law Firm

Vilnius, Lithuania

The codification of private law is a historical, social and cultural phenomenon. Lithuania was not able to draw up its own Civil Code during the 1918-1940 independence period, even though a working group on its preparation was set up in 1937 and part of the draft Code was prepared. Unfortunately, the draft disappeared during the Second World War and has not been found until now. In 1944, many Lithuanian lawyers who worked on the draft Civil Code escaped to the West and continued to cherish the hope that Lithuania would regain its independence later or sooner. As a result, the diaspora's lawyers continued to call for work in this area. Well-known interwar Lithuanian lawyer P. Stravinskas, while in forced emigration, wrote in 1955 in the Lithuanian diaspora law newspaper «Lawyers' News», published in the USA, the article «Lawyers, let's not break». By endorsing the work of another famous interwar Lithuanian lawyer, C. Butkys's proposal in 1953 - to start collecting material for the future Lithuanian Civil Code for Lithuanian diaspora lawyers, P. Stravinskas wrote: «... the creation of an own code is a tremendous job. This work is not done by civilized nations for years, but sometimes for decades. Only a nation with a high culture can create a good own code. First of all, you must have the material for the code, because ex nihilo nihili fit.... When we rise up in our legal culture, when we prepare material for future codes, it is to be hoped that the Lithuanian genius of codification of law will also appear, as Justinian appeared to the Romans in the past, Portalis and Napoleon for the French, Zeiller for Austrians, Windscheid for Germans, Huber for the Swiss» [1]. This hope of Lithuanian diaspora lawyers could only come true after the 1990s, when Lithuania's independence was restored. The working group on the preparation of amendments and additions to the Civil Code of Lithuania of 1964, as well as on the preparation of a new Civil Code, was formed by the Decree of the Presidium of the Supreme Council (Parliament) of July 18, 1990 [2].

The history of private law codification shows that there are two types of codification. First, it is the creation of a systematic set of new rules, or codification in the material sense, when a lex nova is created. Secondly, it is the structuring of the existing rules, i.e. compilation or codification in the formal sense, where the rules in force are mechanically grouped according to a certain formal criterion, without modeling the rules themselves or creating new [3]. The Civil Code of Lithuania of 2000 as well as the Civil code of Ukraine of 2003 is undoubtedly an example of material codification, since it was necessary to create new rules that would correspond to the fundamentally changed conditions of economic, political, social, cultural, ideological, etc. life of society.

The codification of private law shows that codification is meaningful and effective only when it is objectively necessary. R.J. Pothier also wrote that Civil Code must be necessary , modern and efficient [4]. Historically, when analysing codification in Europe, it is clear that the Civil Code was usually the baby of one or another turning point in society - usually - the revival of society. The Civil Code appeared when society reached a qualitatively new stage of its economic, social and cultural development. For example, in France in 1804, the Civil Code is undoubtedly the baby of the French Revolution, the renaissance of the French nation. An analogous conclusion can be drawn about the Civil Code of Lithuania, which is the result of the revival of the Lithuanian nation, which began in 1988 and later with fundamental political, economic and other changes. One of the reasons why the Civil Code was not drawn up in Lithuania during the p eriod 1918-1940 is also economic. In 1918, there were no major economic changes in public life, the economy was based on market principles and private property, so there was no economic need to reform in 1918. At that time, the need of preparing the Civil Code was more for political, cultural (4 different private legal systems were applied in Lithuania during 1918-1940) rather than economic reasons. As you know, after 1990, the drafting of a new Civil Code was promoted by both political and economic and other reasons. That is why the Civil Code was drawn up relatively quickly. codification private law lithuania stravinskas

The thesis that law is only what is in the Code was also invoked at the beginning of qualitative codification, i.e. when the transfer of the rules of conduct into a single set was aimed at qualitatively modifying them by creating new, better rules of conduct and laying them out in a certain rational, logical sequence, i.e. to systematize them. Legal historians distinguish between three periods of qualitative codification or waves of codification - the 18th century, a wave associated with the Allgemeines Landrecht fur die Preufiischen Staaten of 1794 and the preparatory work for the future French Civil Code. In the 19th century, during the second wave Civil Codes were adopted in France, Austria, Italy, Spain, Louisiana, Quebec, the Netherlands, Germany and many other countries. In the 20th century Civil codes were adopted in Switzerland, Turkey, Brazil, Latvia. The wave of codification of the 20th century is also characterized by recodification, i.e. reform of existing Civil Codes, or adoption of the second Civil Code. For example, Italy adopted the second Civil Code in 1942, and after World War II alone, Civil Codes were adopted in more than 50 countries in the world, either new or revised [9]. The prophecies that the process of codification of civil law would end in the 20th century did not come true either. Codification and recodification continue in the 21st century. Following the fall of the socialist lager, new civil codes have been drawn up in the former post-socialist states of the Czech Republic, Romania, and, more recently, major reforms of the civil codes in Germany and France have taken place. The development and adoption of codes continues and continues - the Civil Code was drawn up by Israel and a new Civil Code was adopted by China in 2020.

The history of codification shows that in the codification process there have always been and are three main players - the professors of law, the courts and the legislator. The result of codification has always been sufficiently effective when all three of these driving codification forces worked together. Of course, the legislator played a decisive role in this process. Indeed, the history of codification shows that the codification process is partly a tool for political struggle, a way to strengthen power, its concentration and independence. It is no coincidence that the old Civil Codes are named after the rulers who initiated or approved them (Justinian, Napoleon, etc.). The codification of private law was also one of the means of strengthening the power of a king or emperor and concentrating power in one hand on national, centralized states in Europe. Thus, the Civil Code (like any other legal norm) is one of the forms of expression of centralized power of the State, the result of political choice. A State whose legal system is based on the idea of codification, but which does not have its own Civil Code and uses the Civil Code of another State, cannot use all the powers of its political power, as these powers are constrained by old rules, often alien to society, but binding on it. Codification is therefore not just a legal process, it is a legal- political process. It was the political necessity of drafting and adopting the new Civil Code that was stressed by Vytautas Landsbergis, then Chairman of the Lithuanian Parliament. At Parliament's sitting on 18 July 2000 welcoming the adoption of the Civil Code, he said: «[... ] now we finally have a complex solution - a completely new and truly Civil Code of the Republic of Lithuania. I see this achievement as a very important political fact. This is indeed a separation from the civil law system of the USSR, a final separation» [10].

Thus, the quality of the Civil Code, the speed at which it is drawn up and adopted largely depends on the political will to have an effective Civil Code. France adopted the Civil Code in 1804, partly because Napoleon was personally concerned about its preparation and adoption. For example, he attended as many as half of the Council of State meetings where the draft of the Civil Code was discussed. Not in vain, this Code is called the Napoleon's Code, and he himself considered the greatest achievement of his life not his military victories, but precisely the Civil Code [11].

I don't know if there is strong political support for recdification in Ukraine, but in Lithuania the our Working Group did not received proper political support when drafting the Lithuanian Civil Code. During the 10 years since the Civil Code was drawn up, three compositions of Parliament, ten Governments and eight ministers of justice have changed. The mere fact that, on 18 July 2000, the Minister of Justice did not attend the plenary session when the Civil Code was adopted in the Parliament, says a lot.

Effective codification is not possible without well-developed legal doctrine and creative case law. The effectiveness and durability of the Civil Code in France and other Western European countries was determined by the legal doctrine developed before the Civil Code was drafted.The law in force was analysed in detail, its historical origins, comparative studies were written, etc. For example, it was insoluble for the drafters of the French Civil Code to prepare part of the law of obligations when the fundamental study of R.J. Pothier's obligations was published back in 1761 [12]. Unfortunately, when creating the Lithuanian Civil code, there was a reverse situation - we first created the Civil Code, before we started to develop legal doctrine. The former socialist states has been more or less isolated from the rest of the world for 50 years. Comparative legal research was practically unknown, and if any study on comparative law appeared, then it was based on ideological motives - everything that is in the West is bad and unacceptable. As a result, several generations of lawyers were separated from the process of unification and harmonization of law that took place in the West until the 1990s.

High-quality codification is not possible without creative and consistent case law. In order for the Civil code to function effectively, it is necessary for the courts to creatively develop its provisions and to ensure its uniform interpretation. Unfortunately, experience shows that courts are often passive, that case law in interpreting and applying the same rule is contradictory, etc. Although today the case-law of the court is de facto recognised as a source of law in many states of the civil law tradition, there are many who believe the opposite. Effective codification and recodification of private law is impossible not only without the doctrine of law, but also without judiciary with adequate qualifications and a corresponding cultural and legal mentality.

The history of codification shows that the law, like other areas of public life, has never existed, is not and will not be a closed bowl. Consequently, the codification of private law, in particular the codification in material terms, implies the creation of a qualitatively new national system by 'borrowing' rules or whole institutes from other national legal systems. That is, the famous Lithuania Statutes of 1529, 1566 and 1588 (which are described as «surprisingly modern» [13]) - they were not and could not be a purely Lithuanian product. In the opinion of historians, the Statutes of Lithuania were a mixture of rules taken over from Magdeburg, Romans, Polish, Russian legal sources [14]. One of the reasons why the Civil Code was not drawn up in Lithuania until 1940 was that the Civil Code was imagined as a purely national product. Therefore, the Commission that drafted the Civil Code was officially prohibited from relying on the experience of foreign states [15]. One of the postulates of criticism of the new Lithuanian Civil Code is that it is not a purely national Civil Code, i.e. it is not a Lithuanian Civil Code [16]. However, these critics forget the simple fact that one of the essential features of modern codification is that the code ceases to be purely national legislation. The codification of private law today, living in a period of boom in international unification and harmonization of law, convergence of legal families, also implies the transformation of legal doctrines and ideas, entire legal institutes from foreign countries into national law (in A.Watson's words, «transplantation» [17]). It is important that this process is voluntary rather than coercive, so that it is creative, i.e. that the rules from other legal systems to national law are borrowed according to national peculiarities, in accordance with national language rules, etc.

The codification is not purely legal process. Many legal problems are also not purely legal. They lie in completely different roots, which lawyers sometimes underestimate. One such area is language. Not in vain, it is said that most legal disputes arise from words. The use of sources in different languages in the process of codification create a number of linguistic problems. There are many examples where one or another legal term known in one national legal system cannot be precisely defined by the aid of another language, since there is simply no adequate term in that language. The linguistic problems of codification is clearly illustrated by the translation of European Union legislation into national languages - not only ordinary persons, but also lawyers are not satisfied by the translation of European Union directives and regulations into Lithuanian language. This problem is exacerbated by Brussels bureaucrats demanding, for example, that directives be translated and transposed literally. Indeed, the codification is not merely an exclusive prerogative of lawyers. In order for this process to be effective, complex research in various scientific fields (economics, law, sociology, linguistics, culture, etc.) is needed, and it is necessary to involve scientists from other fields and directions. Codification and recodification are also an excellent opportunity to improve the national legal language. The Working Group, which prepared the Lithuanian Civil Code, worked closely with Lithuanian language specialists and worked together to ensure high -quality wording of the Code.

It is often said that the adoption of a new Civil Code is a revolution. In the case of material codification, such a statement is correct and is confirmed by the experience of Lithuania - the adoption of the new Civil Code meant not only a significant jump in a positive law, but also a breakthrough in our minds. However, history shows that the revolution also gives birth to its own enemy, the counter -revolution. Naturally, not everyone is interested in the new legal regulation. Various interest groups are already trying to influence in one way or another during the code-making process in order to adopt rules that benefit them. Failure to do so during the drafting of the Code leads to a march to amend or interpret the Code that has just been adopted. Therefore, the Civil Code is constantly at the center of the battlefield of various interest groups (economic, political, professional, religious, etc.). Such resistance to the Civil Code in Lithuania was observed not only during the period of the preparation of the Civil Code and its adoption in Parliament, but also after its adoption. For example, despite the fact that a transitional period of one year was foreseen for the entry into force of the Code, attempts were made to postpone its entry into force even longer. So, you have to be mindful that the recodification process will not be easy.

It is argued that the Civil Code is distinguished from other legal acts by several of its features, which ensure its stability - completeness, freedom of contradictions, systemic approach. But can the Civil Code really remain stable in modern society? In Lithuania, 89 amendments were made to the Civil code during the twenty years of its validity. But is this just a problem of Civil code? The Code of civil procedure, for example, has been amended 66 times, and we already have a second Labour code in in Lithuania during 30 years. However, unlike in Ukraine, the total revision of the Civil Code has not yet been called into question in Lithuania.

One of the arguments used by opponents of codification is the statement that due to the plethora of special laws, the significance of the Civil Code is diminishing, the process of decodification is underway, so it is already possible to talk about the «death» of the Civil Codes [18]. Of course, the problem of the relationship between the Civil Code and the special laws is relevant. In Lithuania, attempts were made to resolve this issue by providing for a special rule in the Civil Code. Article 1.3(2) of the Civil Code provides that «if there are conflicts between this Code and the other laws, the norms of this Code shall apply, unless this Code gives priority to the norms of other laws ». It would be difficult to defend this norm in legal theory - why does the Civil Code have priority over another law? However, this rule saves little. There are many cases where special laws are adopted instead of filling in or amending the Civil Code. European Union legislation is often transposed into national law by means of special laws. As the principle of priority of European Union law over national law applies, such special laws generally provide for rules different from the Civil Code, thus extinguishing the priority of the Civil Code. By order of the Minister of Justice, a Civil Code Supervision Group has been set up with the task of ensuring the stability of the Code. However, the decisions of this group are of a purely recommendatory nature and are often not taken into account.

Another problem related to codification is the role of general clauses. Does the Code need to contain more principles or detailed rules? The twenty years of the application of the Lithuanian Civil Code has shown that principles (general clauses) are often abused. For example, courts, even if the Code rule is very clear, do not apply it, but resolve the case on the basis of an article 1.5 of a Civil Code that provides the principles of good faith, justice and reasonableness. Thus, of such general clauses in the Code, if abused, will only increase legal uncertainty and unpredictability.

I would like to draw attention to another important factor. The adoption of a new Civil Code does not automatically change people's mentality. In a couple or even thirty years, it is impossible to erase from people's memory the rules under which they lived for decades. Therefore, in the thinking of many lawyers who graduated from law during the Soviet period, we will find the remnants of the previous legal system and previous legal thinking for a long time to come. Only the younger generation, which had no connection to the previous soviet legal system, will escape this dualism.

Another important point in terms of the codification of private code in the post-Soviet space is the relationship of the new private law system with Soviet civil. It is not uncommon to be healed that one or another norm of the new Lithuanian Civil Code is taken from the Civil Code of 1964, i.e. the new Civil code has remained «Soviet» in a certain sense. The answer for such «critics» is very simple: you don't know the history of private law. Basically, the history of private law is the history of the «borrowing» of rules. Both Western lawyers and modern Russian legal doctrine recognize that the Bolsheviks did not create a fundamentally new civil law. After all, Russia's Civil code of 1922 was not created on an empty space. Especially in the field of law of obligations, much has been taken over from Tsarist Russian civil law. On another hand, Tsarist Russian civil law was developed in accordance with the traditions of Western law [19]. For example, the definition of obligation - obligatio est juris vinculum, which came from Roman law, remained in Soviet civil law, and we understand the obligation in the same way today. Thus, the mere fact that the Civil Code of 2000 contains the same rule as the Civil Code of 1964 does not mean that the rule is «Soviet».

The Civil Code, like any other legal act, is just a systemic set of rules. Whether those rules will work in life, whether they are followed, or whether people will regard them as the norm in their mutual relations depends on society itself. If society is not ripe to live according to the rules of the Civil Code, the Code will not perform the functions that the legislator sought to adopt it. Therefore, the meaning of the Civil Code as a set of rules cannot be overestimated and cannot be fetishised. The success of the Civil Code does not depend on its rational system or elegant language, but on the people who interpret it, apply it, adhere to it. Thus, the success of the Civil Code is determined not by legal technique, but by the culture of society, its economic, social development, moral and legal mentality. In the Civil Code, every second article it is possible to record that the subjects of civil relations must act in good faith, but this will not have any positive effect if society is in total moral crisis, when the norm of its life will not be honesty, but vice versa - dishonesty. The Civil Code must consolidate society, ensure tolerance, fairness and other moral values, without which recognition and observance the society is doomed to moral degradation and, ultimately, to failure. However, this can only be done through society itself. The society itself should not tolerate politicians who openly claim that politics and morality are incompatible; should not tolerate politicians and businessman who openly claim that business and fairness have nothing to do with it; should not tolerate dishonest and unqualified judges who have neither a moral nor a professional right to judge others, etc. Do we already have such societies in Lithuania and Ukraine?

References:

1. P. Stravinskas. Kaip ruoseme Lietuvos Civilinj kodeksa. Teisininkq zinios 1958/25-26, p. 15-16.

2. https://e- seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.385?jfwid =ld4gwo5xs.

3. The Civil Code and Europe: Influences and Modernity. Proceedings of Colloquy. Council of Europe, Strasbourg, 2004, p. 17.

4. Ibid, p. 21.

5. Jan M. Smits. The Europeanisation of National Legal Systems: Some Consequences for Legal Thinking in Civil Law Countries. In Epistemology and Metodology of Comparative Law. Oxford: Hart Publishing, 2004. Р. 229-245

6. J. P. Dawson. The Oracles of the Law. The University of Michigan LawSchool, Ann Arbor, 1968. Р. 2.

7. G.Iudica. Lo Stato moderno e la codificazione. Napoli: Editoriale Scientifica, 2021. Р. 26.

8. More in detail about problems related to structure of Civil Code see: The Scope and Structure of Civil Codes. Edited by Rivera J. C. Dordrecht: Springer, 2012.

9. About history of codification in more detail see: G.Iudica. Lo Stato moderno e la codificazione. Napoli: Editoriale Scientifica, 2021; R. Cabrillac. Les codifications. Paris: Presses Universitaires de France, 2002.

10. https://e-seimas.lrs.lt/portal/legalAct/lt/TAK/TAIS.105669.

11. G.Iudica. Lo Stato moderno e la codificazione. Napoli: Editoriale Scientifica, 2021. Р. 63.

12. R. J. Pothiere. Treatment of obligations according to the rules of both the forum of conscience and the external forum. Paris, 1761.

13. R.Frost. The Oxford History of Poland-Lithuania. Vol.I: The Making of the Polish-Lithuanian Union. Oxford: Oxford University Pres, 2018. Р. 541-542.

14. Edvardas Gudavicius. Short Survey of the First Statute of Lithuania. The Statute of Lithuania of 1529. Translated and edited by Karl von Loewe. BrielNV, Vilnius, 2002. Р. 22.

15. P. Stravinskas. Kaip ruoseme Lietuvos Civilinj kodeksa. Teisininkp zinios 1958/25-26. Р. 15-16.

16. R. Bakseviciene. Do we have our own codes? DELFI, 30 November 2004. https://www.delfi.lt/news/daily/law/ar-turime- savo-kodeksus.d?id=5565911

17. A. Watson. Legal Transplants. An Approach to Comparative Law. Scottish Academic Press, Edinburg, 1974. Р. 4-5.

18. N.Irti. L'eta della decodificazione. Milan:Giuffre, 1999. Р 74.

19. Новицкая Т. Е. Преемственность в регулировании гражданско-правовых отношений в Российском доре - волюционном и советском законодательстве. Труды Института государства и права РАН. 2017. Том 12, № 5. С. 1-26.

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