Roman Law and Modern Codifications

January 2011 will be the 200. anniversary of the Austrian Civil Law Code, the ABGB. March 2004 has been the anniversary of the French Civil Code, the Code Civil. This occasion was highlighted by hundreds of events throughout the world. Particular attention has been paid also to the genealogies of the different European Law Codes and the relations of the judicial cultures. In this context, a frequent affirmation was, that the Roman law would dominate core areas of civil law, property law, law of obligations and partially law of succession. Examining the relevant scientific literature, one can see that there exist single researches on the existence of Roman law within certain modern law books. The aim of this project is to point out, whether there exists, notwithstanding the differences that can still be found in modern Codifications, knowingly or unknowingly, a veritable ius commune europaeum on a Roman law basis. Within the frame of this historical law comparison, the French Code Civil, the Austrian ABGB, the Spanish Cdigo Civil, the German BGB and the Italian Codice Civile will be examined. The inalienability of Roman law for the understanding of modern Civil Rights shall be underlined, and the extensive unity of Civil Law, while maintaining a complex multiplicity, shall be shown. The necessity of research and education of Roman law, as a fundamental and connecting element of European legal culture, shall therewith be pointed out. As "Co product", on the occasion of the 200. anniversary of ABGB a solid contribution to the origins of Austrian Right will be delivered, to lighten upon the Roman law in the ABGB and to explicate which type of Roman law is regarded, and why it has been included in Zeillers` Codification in this form. With this work a contribution to the signification of Roman law in modern Austrian academic life shall be made.

The project constituted a substantial contribution to the development of modern legal systems in Austria, Germany, Italy and France. In all four countries there are renowned civil codes, the ABGB in Austria, the BGB in Deutschland, the Codice Civile in Italy and the Code Civile in Frankreich. The project layed open the evolutionary history of these legal systems and civil codes by applying the method of historical comparative law. This method made it possible to highlight the significance of Roman Law in all of the four legal systems in very different ways. The respective legislators executed the new civil codes based on scientific findings regarding Roman Law of the respective eras. A particularly interesting special case is Italy, whose legal system has been influenced considerably by Austria as well as Germany and Italy. However, through symbiosis of these three legal systems, it succeeded in creating a completely independent one. The significance of Roman Law at the root of the Austrian ABGB becomes particularly clear when taking a closer look at the curricula vitae of the two founding fathers of the law, Karl Anton von Martini and Franz von Zeiller. Contrary to the common belief that Martini and Zeiller predominantly dealt with natural justice, it has to be emphasized, based on the outcomes of the studies of this project, that they both were in many way excellent teachers and scholars of Roman Law. Above all, because of this they succeeded in creating a law code that is compact and still applicable today, on the basis of their philosophy of natural law. The role of the romanist can be ascribed to the father of the French civil code, Jean-Étienne Portalis. As an excellent lawyer who trained in Aix, throughout his life he occupied himself with the dimension of Roman Law. In particular, through new and profound analysis of the famous discours préliminaire, the project was able to demonstrate just how deeply Portalis was connected to the sources of Roman Law and just how much he was influenced by his immediate predecessors, who can both be considered distinguished experts of Roman Law, namely Domat and Poitier. This influence is frequently assumed, however, up until now, it could not be satisfactorily resolved. Regarding the German BGB, it has been passed on correctly that this law is the quintessence of the study of the Pandects in Roman law. The most important outcome of this project is to illustrate that all of the discussed legal orders rely largely on content, structure, method and spirit of Roman law, and that the respective founders of modern civil law in the discussed legal system adopted Roman Law as the foundation for their work, taking into account the state of knowledge of the matter at that time.