versão On-line ISSN 2411-7870
versão impressa ISSN 1021-545X
Fundamina (Pretoria) vol.20 no.2 Pretoria 2014
Associate Professor of Roman Law, Faculty of Law, University of Kragujevac
The 165th anniversary of the adoption of the Serbian Civil Code was in 2009. Some of its provisions, such as those concerning bequests, still have the force of positive law, which illustrates its continued relevance. The Serbian Civil Code was adopted in 1844, and was the fourth civil code in Europe after those of France, Austria and Holland. It was modelled on the Austrian Civil Code and inducted Serbia into the German legal sphere. Roman law, with its traditions and reception, had from the outset been a fundamental component of Serbian law, which was founded on the Roman-Byzantine legal tradition. Through Saint Sava's Nomocanon, written in 1219, it became the positive law of Serbia. Later, upon the adoption of Dusan's Code in 1349, the tradition of Roman-Byzantine law continued, although the influence of customary law and Orthodox Canon law cannot be discounted. In the nineteenth century, Serbia undertook civil codification much earlier than many more developed countries. In the conflict between customs and more progressive ideas in the domain of family law and the law of succession, customary law prevailed. Nevertheless, with the introduction of private property, all traces of feudalism disappeared from Serbia, which cannot be said of many other states at that time. The codification paved the way for the more rapid development of finance and trade relations and consequently also influenced other spheres of life. Serbia built its relations with other countries quickly and successfully.
1. Introduction: General characteristics
The Serbian Civil Code () was adopted in 1844. It was the fourth civil code ever written in Europe1, following on those of France, Austria and Holland. Modelled on the Austrian Civil Code (the Allgemeines bürgerliches Gesetzbuch), it inducted Serbia into the German legal circle.
The usual attitude among Serbian jurists is that the Serbian Civil Code is a shorter version of its main source, the Austrian Civil Code, except in the chapters on family and inheritance, which took into account the specific features of Serbian social relations. No previous research has focused on the specifics, deviations and enduring merits of the Serbian Civil Code; so, believing that these do exist, I shall attempt to spell them out.
Roman law had traditionally been a model for and fundamental part of Serbian law, which was based on the Roman-Byzantine legal tradition. It became positive law in 1219 when Saint Sava's Nomocanon was promulgated. Later, when Dusan's Code was compiled in 1349, the tradition of Roman-Byzantine law was perpetuated. However, Serbian customary law and the Canon law of the Serbian Orthodox Church during the Turkish occupation should not be ignored either.
The first bourgeois codifications of the nineteenth century were based on concepts of positive law. Through them, the rules of Roman law became a fundamental part of the Code. No matter how much the Serbian Civil Code owes to its source, its main author, Jovan Hadzic, in some cases uncompromisingly applied the rules of Roman law. This is a logical consequence of the heavy influence of Roman-Byzantine law on Serbian law before the Turkish occupation, and of Hadzic's education in Budapest and Vienna.
Initially it was intended that the Napoleonic Code civil be taken as a model for the Serbian Civil Code, and it was translated into Serbian. Later, that idea was abandoned and the Austrian Civil Code took its place. While the Serbian Civil Code was being written, the clash between customary rules and the need to implement modern law was significant. Unfortunately in the sphere of family law (family cooperative) and the law of succession, tradition prevailed, at the expense of many progressive laws contained in the Austrian Civil Code, which could have served as models. The theory of legal transplants2 helped to explain the loan of, most importantly, the structure of that Austrian Civil Code, as well as certain concrete legal institutions. The legal rules established by the Code in the realm of property law applied for an entire century, some even prevailing until the 1970s. One of the lesser known but more valuable rules of the Code was the acceptance of objective liability in the modern sense. Six years before the French courts did so Serbian courts began making decisions according to the principles of objective liability found in the Code. Unfortunately, because jurists failed to support these rulings, Serbia missed an opportunity to be among the first to integrate this principle into its legislation. Even today, after all this time, some of the rules of the Serbian Civil Code still apply.
The Serbian Civil Code introduced Serbia to current legal trends. Although Serbia's economic development was insignificant, it had a modern legal system. Since it was modelled on the Austrian Civil Code, Serbia initially followed the Germanic legal tradition, although French law subsequently had a far greater influence on it. Serbian law nevertheless continued to form part of the Germanic legal tradition, and occupied an enviable position in the European legal family.
We have seen that Serbia was among the first European countries to have a codification of civil law. There was a special bond between countries that had legal codifications, because they were all based on the idea of positive law, the traditions of Roman and Byzantine law, and many common cultural phenomena. The early civil codification in Serbia allowed it to have stronger ties with European countries.
2. The place of the Serbian Civil Code among European civil codifications
The first complete legal codification was drawn up in France after the bourgeois revolution. The 1804 Code civil was just one part of it. It was based on principles of the equality of all citizens, the inviolability of private property and contractual freedom. At the same time, it succeeded in aligning traditional and modern legal institutions: the influence of the droit écrit of the South of France, where the Roman law tradition prevailed, and the droit coutumier of the North of France, where ancient customary law was dominant. The Code was drafted according to Gaius' system, and most of it still applies today.
Following the ratification of the Code civil, the notion of codification spread quickly, first to European countries, and then to the rest of the world. In fact, no civil code has had such an influence on the development of civil law in other countries. This influence is still apparent in the civil law of Belgium, Holland and Luxemburg. In Spain, the Codigo civile of 1889, still in use today, especially in the sphere of obligations, was strongly influenced by the Code civil, as were the civil codes adopted in Romania (1863), Italy (1865)3 and Portugal (1867).
Because France was a great colonial force in the nineteenth century, its influence in the Middle East, Africa, Indochina and Oceania was substantial. Its legal tradition left a deep imprint on the legal systems of these regions even after their independence. It exerted an even greater influence in Latin America where the codes of nearly all the countries4 were based on the Code civil. Most noteworthy is the 1870 Louisiana Civil Code, the cultural impact of which was significant even outside North American borders (for instance in Latin America), undoubtedly for the reason that it was the most Romanist code ever adopted5.
The Code civil owed its impact to cultural strength as well as to its quality, which is confirmed by the fact that, as indicated, most of the Code civil still applies in France today.
The influence of the 1811 Austrian Civil Code went beyond the countries in which it had been adopted, but was nevertheless far smaller than that of the Code civil, mainly because it was the codification of a revived monarchy, a multinational state, which was in constant danger of disintegrating. Its influence was strong in countries that formed part of the Habsburg Monarchy. The 1852 Code applied in Croatia, Bosnia and Herzegovina and the Military Frontier. In northern Italy, Lombardy and Venice, it applied until Italian unification in 1861. Liechtenstein adopted the Austrian Civil Code before the First World War, as did Czechoslovakia, which retained it for a long time.
The German Civil Code's influence was spread, not by colonial routes, but solely by its intellectual strength. It was under its influence that Japan, Thailand and China codified their law; and in Latin America, where the Code civil was dominant, it likewise influenced the codifications of two great countries, namely Brazil and Peru. It also influenced many European countries: Poland, Hungary, Greece and Montenegro.
According to many legal scholars, the Swiss Civil Code has had a far greater impact than the German Civil Code. In the nineteenth century, foreign laws were usually transplanted. In the twentieth century, autonomous attempts to adjust and rewrite laws, by those who sought inspiration in foreign codes, were more pronounced. Thus, the influence of the Swiss Civil Code spread to Sweden, Austria, Poland, Czechoslovakia, Hungary, the former Soviet Union, Yugoslavia, Albania, Greece, Bulgaria, as well as Thailand and pre-communist China. A notable exception is Turkey, for in 1927, during the reign of Kemal Ataturk, it adopted the entire Swiss Civil Code. The success of this adoption is amazing, considering that the code of an industrially and culturally developed country was "transplanted" to a country that was barely beginning to adapt to a modern way of life6. The transplanted law took root in the new environment and was largely responsible for Turkey's rapid modernisation, and its inclusion in the family of European states.
The influence of the Austrian Civil Code on the Serbian codification was not unusual. The codes of greater and more powerful countries had been modelled on other codifications. It was not easy for Serbia to decide whether to follow the French or Austrian model. The diplomacy of countries wishing to have an influence on Serbian territory played a crucial part in the decision. Prince Milos' initial wish to translate the Code civil, adapt it to Serbian customs and apply it was never realised. The transplantation of the Austrian Civil Code was a success, as evidenced by the fact that even today the rules of this Code are still in force when there are no relevant rules of positive law, but subject to the provisions of the Law on Invalidity of Legal Regulations Adopted before April 6th 1941 and during Enemy Occupation. Although in this way the Germanic legal tradition prevailed in Serbia, Serbian law was later heavily influenced by French law. However a comparison with the French, Austrian and Serbian codes furnishes evidence, which nevertheless does not change the character of Serbian law, rooted as it is in the Germanic legal tradition.
3. Ratification of the Serbian Civil Code
In 1804, at the dawn of the nineteenth century, Serbs began their struggle for liberation from Turkish occupation and thus announced the revival of their state. The following decades were marked by a chain of events that represented a social, cultural and scientific revolution. Serbia adopted its constitution in 1835. The Lyceum was founded in 1838 and the first law studies began in 1841. A department of law was one of the three existing ones when the Lyceum became a Faculty of Law. Finally, in 1844, the Prince-in-council adopted the Serbian Civil Code, paving the way for Serbia to join Europe. There were two principal legislative measures: one regulated constitutional matters and the other the status of citizens and a wide range of social relations.
Following the success of the second uprising in 1813, Prince Milos gained total control over Serbia. However, frequent insurrections, popular dissatisfaction and the nobility's wish to have a greater role in the government of Serbia forced Milos to contemplate instituting the rule of law and restoring order to the country. In accordance with his decision, by an act of the Prince's Chancellery of 16 February 1829, he ordered that George Zahariades7 translate "a set of Napoleon's laws". In letters dated 1 June and 22 July 1829, Zahariades was officially assigned to the task8. The need to adopt these laws had been acknowledged, and the will to do so existed, but the conditions for the adoption of a civil code were not yet right. The work began in circumstances that could not guarantee the required security to the people and their property. It should not be forgotten that civil codes are adopted only "after the socio-economic relations of a capitalist society have developed and become dominant"9. At that time, capitalistic relations were only beginning in Serbia, and conditions for the codification of civil law were therefore non-existent. Nonetheless, Milos, having at the same time to confront other problems, reluctantly initiated the legislative process.
Milos' Decree 910 of 30 May 1829 appointed Vuk Stefanovic Karadzic to translate Napoleon's Code. According to his records, Karadzic was meant to translate the Code civil word-for-word into Serbian, after which the secretary Dimitrije Davidovic would choose which parts were fit for Serbs and leave out the rest10. This plan was rejected by Prince Milos, and it was suggested to the Prince that he should rather model the code on Austrian laws, which were in force on the Military Frontier and in closer places, and would appeal to the people in the Principality of Serbia because of their simplicity and brevity11. This codification attempt failed, and the Prince commented on the draft as follows: "Were the people who wrote those laws drunk or completely mad? Here and there, mixed in are foreign words which our people cannot understand ..."12.
Prince Milos did not abandon the new law. In a speech to the Parliament in Kragujevac on 1 June 1834, he promised that trials in Serbia would be conducted according to new penal and civil laws. If these laws were adopted, "every Serb would find defence not in the mind of the judge but in the law itself'13.
In Serbia, the dearth of educated jurists made codification even more difficult. In 1836, Prince Milos asked the Austrian government to allow Jovan Hadzic, a senator from Novi Sad, and Vasilije Lazarevic, the mayor of Zemun, to move to Serbia so that they could work on the codification14. When these two looked at the initial attempt, they realised that not only had it been based on the Napoleonic code, but that much of that code had been translated word-for-word into Serbian; although some small parts had been omitted, and even smaller parts added. "In our opinion, this Code is not adapted to Serbs and Serbia ..."15. The Code civil was therefore rejected as a model of a code of civil law in Serbia.
Prince Milos believed the code ought to be based on customary law, but although Hadzic promised the Prince that it would, he sought inspiration in the Austrian Civil Code. This was a logical choice for him: he had been a student at the University of Budapest where he received a doctorate in law; he had then furthered his studies at the University of Vienna for two years. At both universities, it was compulsory to study Roman law in depth. As an Austrian citizen, upon arriving in Belgrade, Hadzic contacted Antun Mihanovic, the Austrian consul who, in accordance with Metternich's orders, was trying to eliminate any French influence in Serbia including, naturally, the legislative influence16. Nevertheless, it is suspected that Hadzic also used certain chapters of the Code civil, but there is insufficient evidence to support this.
Hadzic arrived in Belgrade on 26 April 1837 and began working on the code that he said had to be based on the customs of the Serbian people and to serve their needs. It needed to be all encompassing but not too long, clear and legible. This would curb the autonomy of judges, but also ensure the independence of the judiciary and keep the number of trials within bounds.
Because Hadzic estimated that the codification would take a long time, he asked the Prince for permission to return to Austria, attend to his business and obtain a permit for prolonged residence in Serbia. He received the permit in June 1838 and returned to Belgrade to begin work on the civil code.
This work was done during a period of political turbulence: Prince Milos left the throne before the codification was completed. Apart from his work on the code, Hadzic was also politically active, and was even considered as something of a protagonist for the Party for the Defence of the Constitution. He left Serbia in 1840 to return to Novi Sad, but not before signing a contract with the Serbian government for drawing up the code. Upon completing a draft in 1842, he sent it to Prince Aleksandar Karadjordjevic who at that time was on the throne of Serbia. The Serbian Civil Code was ratified on 7 April 1844 (annunciation)17.
4. Customs and modern law
The author of the Serbian Civil Code, Jovan Hadzic, was a highly educated man, brought up in the spirit of liberal philosophy and an exponent of the school of natural law. He loved Serbia, as well as the role of its Legislature, which was attributed to him and which he supported wholeheartedly. He saw himself as the Solon or Lycurgus of a new Serbia18. Although the Code was modelled on the Austrian Civil Code and according to many critics was not very original, the scale and importance of this achievement cannot be denied. The criticism most often raised that the new code was not adapted to the social and historical development of Serbia, or to its traditions, does not diminish this achievement. It contained many Romanist ideas that did not coincide with Serbian customs but was still legislation of which Serbs could be proud. The Code was based on one of the greatest of cultural achievements: Roman law. Because Roman law was the foundation of all European codifications, once it had a Code, Serbia became integrated into the European cultural milieu. It should not be forgotten that before the Turkish occupation, Serbian law was based on the traditions of Roman-Byzantine law. One of the most important aspects of the codification was that it clarified property law in Serbia. No less relevant was the establishment of a framework for the development of capitalist commerce and financial relations. Seeing that the Austrian Civil Code was its main inspiration, the Serbian Code facilitated and strengthened commercial and cultural ties with Austria. The dream of a connection to Western Europe also became a reality. The creation of the Serbian Civil Code is in fact a fine illustration of law developing mainly through legal "copying and pasting". According to Professor Alan Watson, the most frequently copied came from Roman law and from the English legal system. According to his classification, we have here a third group: a situation in which a nation willingly accepts much of a legal system that is applied by another nation or several other nations19. It seems as though such transplantations have contributed much more to the development of individual legal systems than to the development of the original system within the framework of its own society. For that reason, the view of some legal experts that law is simply an outflow of a "national spirit", of the social, economic, national and cultural conditions in a particular country, should not be accepted unhesitatingly.
As we have seen, the Serbian Civil Code of 1844 incorporated much of the Austrian Civil Code of 1811. At that time Serbs and Austrians were not at the same level of economic or cultural development, nor did their "national spirit" resemble each other. Nevertheless, the Serbian Civil Code was accepted and applied and to some extent has survived in Serbia's positive law even today. How was this possible? It is possible to borrow law, even as in this case when it is taken from developed systems and "transplanted" into less developed ones, provided that enough attention is paid to the modification of borrowed legal norms. They need to be adapted and adjusted according to the level of development and the needs of the societies that are adopting them. Only then is "copying and pasting" successful. Jovan Hadzic succeeded in doing this. He adopted most of the Austrian Civil Code, with the exception of the chapters on family law and the law of succession. In these fields, he had to give preference to the significantly more conservative Serbian customary law. At that time in Serbia the position of men in society was better than that of women, and male children had advantages over female children in matters of succession. Jovan Hadzic, a highly educated jurist of liberal bent, had to accept the realities of Serbian life and adjust the Code to correspond to Serbia's levels of commercial and cultural development as well as the structure of its society. Naturally, certain dissatisfied social circles disapproved.
To ensure that the new laws were in keeping with the national spirit, Prince Milos himself ordered that research be undertaken into the legal customs concerning ownership and the law of succession of various countries. A commission was set up to conduct the enquiry, its role being to inform the Legislature about "what is suitable for our nation and what is not"20. Hadzic and Prince Milos clashed on the question of the rights to succession of female children. Hadzic, in accordance with his beliefs and the provisions of codifications of the time, condemned Serbian legal traditions that denied female children the right to inherit. The reason for such traditions was that at that time the individual family unit was unimportant in Serbia. It was a period when the family cooperative was the usual unit. This was the most noteworthy legacy of the agricultural system of the past, being a self-sufficient organisation whose produce was used for its own needs, not for a larger market. A cooperative was not only a commercial entity but also a living community. It was an association of life, work and property. This form of community became stronger in Serbia and in other Balkan countries during the Turkish occupation21. In a cooperative, the estate belongs to the whole family, and all the members exploit it together. It is logical that, in such a family, the right to succession is limited to male descendants. They remain in the family, and the property they inherit remains within the community, because they do not depart from it. Female descendants generally marry and join other families (unions), so that what they inherit goes to a different community. In this situation, traditions prevailed and the exclusion of female children from succession became the norm.
This led to great dissatisfaction among the local intelligentsia (from Belgrade, of course). Even at that time, the individual type of family had become dominant in urban areas, and the idea that male and female children should have equal rights of succession had gained wide acceptance. However, the city areas were still underdeveloped, and the critics did not manage to obtain equal treatment of children. The loudest criticism came from women in Belgrade; mothers who could not bear the thought that their daughters would be deprived of their inheritance. They cursed and damned Hadzic "wherever they found themselves"22. The provision was also condemned by the first commentator on the Code, Dimitrije Matic, who claimed that an "obvious injustice" had been done to female children23. Serious and vehement criticism continued, so that two years after ratification of the Code, the Council established a commission to revise the law of succession. However, all its efforts to change the position of female children never went beyond dialogue and good intentions.
Hadzic also preserved Serbian customary law within family law. A married woman was considered to be equal to an older minor in terms of working ability. This was the same view found in the Code civil. The Austrian Civil Code was more liberal, but Hadzic had had to make concessions to the customs and public opinion prevalent at the time in Serbia. These legal rules made up the more conservative part of the Code, according to which customary norms had to be respected. This discrimination against women, together with its negative consequences, continued for a long time.
Hadzic is considered to be responsible for the destruction of the Serbian traditional family - the family cooperative. He was condemned as the man who destroyed a traditional Serbian institution, as someone not alive to cultural perceptions and who wanted to subject the Serbian people to western rules and laws. Whether Hadzic did this because he did not fully understand the legal nature and social function of the Code, or deliberately, in order to facilitate the birth of commerce and financial relations is not really important. The fact is that easier trade relations contributed to social development and better contact with Europe. Possibly the greatest achievement of the Serbian Civil Code was its establishment of a legal system of (civil) private property. Paragraph 211 provides "that every Serb is the total master of his possessions, so that he is entitled to enjoy them and dispose of them at will, to the exclusion of all others, [of course] within the limits of the law." This description, like the Roman definition of ownership, gives the owner the right to do with his possessions what he wants24. Hadzic's courage in framing this definition is all the more remarkable, considering that at the time Serbia was rife with remnants of antiquated notions of property that were stalling progress. These were forms of customary law relating to collective property: communal property, communal forests and grazing areas, selling and buying between relatives, and many other rights. The establishment of the inviolability of private property was of inestimable value, both at the time of its introduction and in the future progress of Serbia. The farmer was proclaimed the free owner of his land. At the same time, feudalism still existed in the Habsburg Monarchy, Romania, Turkey and some other European countries. The introduction of private property created the opportunity for the expansion of trade relations, financial industry and capitalism, and for the more rapid development of Serbia.
The Serbian Civil Code came into being during a very important time for Serbia. Liberation from the Turks ushered in a new era that brought different and new relations in all spheres of life. However, these new types of relations lacked adequate legal regulation. Wishing to be remembered as a great leader, Prince Milos made a wise decision when he ordered the drafting of a civil code. Rules of Roman law were integrated straight into the Code from various sources. Hadzic also inserted such rules of his own initiative, because he was a connoisseur of Roman law. Had the development of commerce and financial relations been at a higher level, the influence of Roman law would certainly have been more pronounced. However, the strong influence of Byzantine law on Serbian medieval law should not be forgotten, and it is therefore possible to speak of the continuous influence of Roman law on Serbian law.
The part played by the Serbian Civil Code in the development of law and the Serbian state in the nineteenth century was invaluable. Even today, the role of the Code in the creation and development of law must not be underestimated, and one-sided and unfounded criticism of it must be rejected.
*Symbols are not accidental notions of things and the phenomena that they mark. This is also so with regard to our beloved and highly respected colleague Laurens Winkel. Enjoying his rich scientific opus that has tremendously increased the understanding of Roman law in modern times, we still expect new insights and original thoughts from him. In the light of the collegiality and kindness he has unselfishly lavished on us, I should like through this contribution to express my deep gratitude towards him. Congratulations, dear Professor!
1 When I told this to Professor Alan Watson in 1998 at a congress in Madrid, he was surprised, and suggested that I enlighten the general public on this fact too. His theory of legal transplants was of great help to me when I explained the appropriation of many of the legal institutions from their source (the Austrian Civil Code).
2 Alan Watson, Legal Transplants An Approach to Comparative Law, Athens, GA., 1974 (tr. [ Links ] Pravni transplanti pristup uporednom pravu, Belgrade, 2000, 13).
3 Under fascist rule Italy abandoned these legal precepts and in 1942 adopted a new code influenced by German law.
4 Except Brazil and Peru, where the codes were modelled on German examples.
5 Athan N. Yiannopoulos, "Requiem for a Civil Code: A Commemorative Essay", Tulane Law Review, 2003, 406. [ Links ]
6 Alan Watson, Pravni transplanti pristup uporednom pravu cit., 172.
7 The tutor of Prince Milos' son.
8 A. Jovanovic, "Rad na torzestvenim zakonima", Arhiv (Archives), Belgrade, 1909/8, 257-262. [ Links ]
9 P. Guzina, "Istorijski osvrt na karakter i znacaj srpskog gradjanskog zakonika iz 1844 godine", Istorijski glasnik (The Historical Gazette), Belgrade, 1949/1, 28. [ Links ]
10 Vuk Stefanovic Karadzic, VukovaPrepiska, Knjiga 1 (Vuk'sRecords, Book 1), Belgrade, 1907, 353. [ Links ]
11 A. Jovanovic, "Zakonodavstvo Kneza Milosa", Pravda (Justice), br. 51, Belgrade, 1907. [ Links ]
12 Porota list za pravne i drzavne nauke, (Jury A Newspaper for Legal and State Studies), Belgrade, 1881, 302-303.
13 "Knjazevska crpska kn'igopecatnja", Novine Srpske (SerbianNewspaper), 1835/5, 2.2.
14 Jovan Hadzic was tasked with drafting a civil code and Vasilije Lazarevic with drafting a penal code.
15 A. Jovanovic, "Rad na torzestvenim zakonima", Arhiv (Archives), Belgrade, 1909/9, 19. [ Links ]
16 Slobodan Jovanovic, Politicke i pravne rasprave (Political and Legal Debates), Belgrade, 1990, 276. [ Links ]
17 A major Orthodox holiday.
18 Slobodan Jovanovic, Politicke i pravne rasprave cit., 302.
19 Alan Watson, Pravni transplanti pristup uporednom pravu cit., 58.
20 PC. Prince Milos 17/12/1837 to Hadzic; Hadzic to the Prince 20/12/1837; Hadzic and Lazarevic to the Prince 24/08/1838; in: Aleksa Jovanovic, "Rad na zakonima kneza Milosa", Arhiv za pravne i drustvene nauke (Archive for Legal and Social Studies), 25/11/1907, 17.
21 A. Gams, "Znacaj srpskog gradjanskog zakonika za Srbiju u XIX veku", in: Sto deset godina od donosenja Srpskog gradjanskog zakonika (A Hundred Years Since the Adoption of the Serbian Civil Code), Belgrade, 1996, 19. [ Links ]
22 Memorial C.K.A XXX, Hadzic to Vozarovic, 11/01/1847.
23 Matic, D., Obasnene Gradjanskog zakonika za Knezevstvo srpsko (Explanation of the Serbian Civil Code), vol. I, Belgrade, 1850, 540.
24 Bartolus ad D 41.2.17.