N. 7 – 2008 – Tradizione Romana
Roman Law in the Baltic Private Law Act
– the Triumph of Roman Law in the
Provinces?*
Sommario: 1. Conflicting
conclusions of earlier studies. – 2. Objective and
methodology of this paper. – 3. Roman law
provisions in the BES classification of things. – 4. Roman law
provisions in the BES general principles of servitudes. – 5. Purpose of the BES references to Roman law sources. –
6. Conclusions.
A part of the Baltic countries belonged
to the
1. – Conflicting conclusions of earlier
studies
Such a wide application of Roman law gave
reason for criticism by proponents of local law. The author of the draft BES,
Friedrich Georg von Bunge[4] was convinced that local practitioners
rely too much on the principles of Roman law[5]. In his programmatic writing on the
drafting of provincial law, Bunge claimed that Roman law should be avoided as
much as possible in the preparation of the future law[6], but at the same time he stated that
Roman law was the common part of all provincial law and its omission from the
Provincial Code would imply an incomplete approach to the local private law.
However, the approach to local private laws should be “reliable and complete”[7]. In addition, there are gaps in
provincial law where the principles of Roman law should be referred to and
their applicability defined, but not more[8].
At the same time, researchers of the BES
have often stated that Roman law was the main source of the BES. J. Jegorov
finds that the reception of Roman law, especially its third part plays an
important role in the codification of local laws[9]. A. Ylander has even cheered that in the
form of the BES, Roman and canon law was able to celebrate its triumph in the
Hermann Blaese has claimed (as opposed,
e.g., to Samson von Himmelstierna[14], the author of the previous draft
provincial law, whose CIC citations were not always valid, especially where the
article was copied from the General Prussian Land Law[15]) that when compiling the BES, Bunge
personally checked «all the referenced citations from textbooks and only if
they proved to be correct, he transposed the text and the latter [i.e.,
citations]»[16]. Such a multitude of references to Roman
law and Bunge’s alleged diligence in checking them is somewhat out of line with
Bunge’s words about the necessity to reduce the proportion of Roman law.
2. – Objective and methodology of this paper
In this paper I have tried to identify whether
and to what extent the references of the BES articles actually refer to the
substance of the Roman law sources referred to. As Hermann Blaese has (probably
based on A. E. Nolde) stated that «codifiers were able to find ready
formulations from textbooks and it was easy to transpose those to the
codification»[17]. I have viewed not only “pure” Roman law[18] but also the textbooks and manuals that
Bunge could have used for drafting the BES, so as to identify whether they and
which of them could serve as the basis for the sections and the references to
the CIC. My choice of authors is based on Bunge’s own references, the study by
A. E. Nolde[19] and contemporary standard literature.
In the course of writing the paper, a question
arose which is posed at the end of the paper: what was Bunge’s goal of adding
the source references? It may have been a wish to simply present the sources,
or he may have had broader objectives. For example, when drafting the Svod
Zakonov, M. Speranski who was criticised for excessive reliance on the Western,
especially French legislation, was ordered to supply references to Russian law
to all the articles. For this task Speranski selected a famous specialist in
Russian law, who performed the task “with great difficulties and often with
extremely strained interpretation”. Nevertheless, the Svod Zakonov contains
articles which are almost identical to the wording of the French Code civil and
institutes that Russian law was formerly unfamiliar with[20]. One of Bunge’s objectives was certainly
to lay down as many provisions applicable in the “prevailing practice” of the
Baltic provinces, so as to compile a full set of laws. Or did Bunge, as already
mentioned, wish to reduce the proportion of Roman law?
My analysis is based on the chapters of
the BES governing the classification of things and servitudes. These parts were
chosen because they are especially based on the ius commune tradition
and are still largely based on Roman law (CIC) today[21]. The source references of the relevant
articles of the BES also refer to Roman law and Bunge has stressed that only
the general principles should be adopted from Roman law[22].
In identifying the origin of the text of
the BES articles, I used first of all the statement by F. G. von Bunge in his
autobiography that «when studying the sources of private law of all three
provinces I took the edition of Dabelow’s general private law handbook (Handbuch
des gemeinen Civilrechts) with the empty supplementary sheets and filled
them in with citations from provincial laws. This became the basis of all my
later works on this law»[23]. I, too, referred to Dabelow’s Handbuch….[24] In addition, Bunge has provided indirect
hints on the preparation of the BES, namely that the comments of Ottomar Meykow,
Professor of Roman Law at the University of Tartu have special value for him so
that he took them into account to a great extent[25]. According to Bunge, Meykow was the
editor of the BES and had services in bringing its content into conformity with
the newer doctrine[26]. Therefore I compared the final version
of the BES also with the draft prepared by Bunge alone[27]. There were hardly any differences in
the two chapters I reviewed. One article concerning the classification of
things had been split into two articles in the final version. One article had
been added to the servitudes chapter compared to the draft. One source
reference had been added later and one had been deleted.
Since Meykow may have advised Bunge also
on the contemporary standard works, I looked for the textbooks which Meykow
himself used for teaching. In the university’s lecture plan, the main work
listed under the literature of Meykow’s lectures was the pandect textbook by L.
Arndts in various editions[28]. In addition I studied the pandect textbook
by K. A. Vangerow, which was also a common approach and used by O. Meykow in
his thesis for a candidate’s degree[29]. I also checked the pandect textbook by
F. G. Puchta, one of the best-known jurists of the 19th century,
which was considered a standard work at the time[30].
A. E. Nolde, Docent of the
3. – Roman law provisions in the BES classification of
things
Firstly, I analysed thoroughly the first
chapter of the first title, “Corporeal and non-corporeal, movable and immovable
things” of the second book of the BES (property law). It contains 10 articles,
nine of which are referenced to the CIC. In addition, four articles are
supplied with references to local sources of law such as knighthood and
municipal laws, etc. Out of the nine articles with references to Roman law,
only three and a half had a direct link to the sources referred to. In three
cases out of ten, the concept contained in the article was present in the Roman
law text, but in a completely different context. The remaining two and a half
articles have no relation whatsoever to the sources referred to. I will not
give a full account of the analysis of each article; below are some more
typical examples.
For example, there is a direct link with
the references in the BES basic classification of things, in which things were
divided into corporeal and non-corporeal (articles 529 and 535). As opposed to
the following examples, article 529 was more or less in conformity with the
Roman law referred to[36]. The texts of the BES and CIC are not
entirely similar. While in the Institutions[37] (Inst. 2.2.1) it is written that
“corporeal things can actually be touched” (corporales hae sunt, quae sui
natura tangi possunt), BES article 529 is about general perception: “things
are corporeal or non-corporeal depending on whether or not they are perceivable
by the external senses” (die durch die äusseren Sinne wahrnehmbar sind).
The BES definition is thus much more equivocal and broader. Perception by the
senses covers also sight, smell, hearing, etc., and the line between corporeal
and non-corporeal things is completely different than in the CIC.
If we search C. C. Dabelow’s Handbuch…
for corporeal and non-corporeal things, we will find the original Roman form
with the following extension: «All things which can be touched or otherwise
perceived by the senses are corporeal things»[38]. It seems that in BES article 529, Bunge
may have used Dabelow’s handbook and the definition contained in it. At the
same time, it is not the “more Roman” part of the definition that has been
adopted, but only its second half[39]. Bunge may have used Mühlenbruch’s
textbook[40], although the text of the BES is
slightly different also from Mühlenbruch’s.
The following example is of how
contemporary civil law theory on the concept of fungible things influenced the
drafting of the BES articles and their references. It also resulted in the fact
that most of the references under the articles concerning fungible and
consumable things are inaccurate. Namely, in article 532 of the BES, things are
divided into fungible and non-fungible. The source of Roman law referred to
under this article (D. 12.1.2.1) was, however, the direct source for only the
last sentence of the article concerning fungible things; the rest of the
article was added by jurists of later centuries. In Bunge’s draft BES, article
532 (article 733 part (a) in the draft) and article 534 (article 733 part (b)
in the draft) were contained in a single article – article 733.
Article 733 part (b) of the draft BES
later became BES article 534 and it defined consumable things, but only one of
the three sources of Roman law referred to concern consumable things (D.
7.5.1). The other sources referred to (D. 30.1.30.pr.; D. 35.2.1.7) concern
fungible things. Therefore, the latter references are not relevant to this
article, but should belong to article 532. The probable reason for the inaccurate
references was the difference between the final version and the draft of the
article. According to the draft, all the three sources referred to should have
belonged to the same article (article 733) and would have been correct there,
but when the articles were changed, the sources were probably misplaced.
Another thing is that these references would not have added anything new even
if placed correctly, as their content was the same as regards fungible things[41].
Nolde’s claim that the texts of articles
532–534 originate from Mühlenbruch proved to be true; most of the references
are also the same, but Mühlenbruch does not have all the references: namely, he
does not have reference to D. 7.5.1 concerning consumable things. However,
Mühlenbruch has expressly cited in his textbook only that Digesta text
which Bunge referred to under article 532 [42].
I compared the articles of the BES also
with other textbooks and identified certain similarities with Arndts. The text of
article 532 of the BES does not entirely overlap with the text from Arndts’
book, although it may have been used. Of the references of article 534
concerning fungible things, the text of one (D. 35.2.1.7) is cited in Arndts’
textbook in Latin. It has not been used in the text concerning consumable
things, but the reference to consumable things under the text of the article is
the same[43].
The confusion with the concepts of
fungible and consumable things and the references is probably due to the change
in relevant legal theory.B. Windscheid has said that it was quite common
earlier to confuse between consumable and fungible things, but at Windscheid’s
times (the second half of the 19th century) the difference need not
be stressed anymore, as it is already known[44]. The two authors that Bunge could have
used in this respect did not consider the difference between these classes of
things so self-evident. Namely, in his handbook Dabelow provided consumable
things with the Latin equivalent of fungible things, res fungibiles.
Dabelow has not separately written about fungible things[45]. Mühlenbruch considered consumable things a
subcategory of fungible things and has mentioned that there was no legal
difference between fungible and non-fungible things. As far as wording goes,
the text of these articles of the BES bears more similarity to Mühlenbruch[46] than to Dabelow. A reconstruction of the
origin of BES articles 532–534 may be proposed: when Bunge wrote the draft BES,
he used Dabelow and Mühlenbruch on the premise that those were the same things.
The editors of the BES (e.g., Meykow) drew his attention to the fact that those
were not the same things and should be split into different articles. Once
Bunge did it, the references of the articles were not changed.
The last example is of two mutually
related articles of the BES, in which case the only link between the articles
and the referred sources is that the texts contain the same concepts, but the
text of the article does not arise from the referred source. Namely, article
536 of the BES concerns property law and the classification of things into
movable and immovable property[47]. The sources referred to under the
article (D. 43.16.3.15; 50.17.15; Inst. 4.6.1) indeed concern movable things
and res mobiles and ownership actions and actio in rem,
but the content of the article cannot even remotely be derived from these
sources. Those were completely different texts, whose only common feature is
the same concepts. Of the chosen authors, only Glück discussed the
classification of things into movables and immovables, but not exactly in the
same way as in article 536 of the BES. Glück generally discussed real right
claims and claims under the law of obligations together. However, he provided,
e.g., an examples of servitudes, which are considered to be immovable property[48].
Article 537 which elaborates on article 536
of the BES provides: Persönliche und Forderungsrechte, wenn letztere auch
auf die Erlangung einer unbeweglichen Sache gerichtet sein sollten, gehören zu
dem beweglichen Vermögen.
L.15 § 4 D. qui satisdare coguntur (II,8),
vgl. mit § 1 I. de action. (IV,6)[49].
However, the first of the two provisions
of Roman law referred to (D. 2.8.15.4)[50] states: It is a different case with one who
has a personal claim to land. And the second one (Inst. 4.6.1)[51] reads: «The main classification is into
two:every action which takes an issue between parties to a trial before a judge
or arbiter is either real or personal.A plaintiff may sue a defendant who is
under an obligation to him, from contract or from wrongdoing.The personal
actions lie for these claims.In them the plaintiff says that the defendant
ought to give him something, or ought to give or and do something. […]»
It is difficult to derive the text of the
BES even indirectly from these two citations. The only similarity is that the
text of the BES mentions movable property and the Digesta mentions a
parcel of land – both are properties, but of different classes. Also, both the
BES and Digesta mention personal claims (Persönliche und
Forderungsrechte and petitio personalis ja actio in personam)[52]. However, these sources of Roman law do
not indicate in which case movables are concerned or are not concerned. It cannot
be identified from which textbooks the references to sources originate from, as
the only author who has discussed this subject was Glück, and he did not refer
to these sources.
Nolde believes that the text of the
article originates from Glück, but this is not exactly the truth: Namely, Glück
states the opposite: «rights, rights of claim, and claims are classified as
immovables if their objects are immovables [...]»[53].Why Bunge worded this in the opposite
way is not clear.
4. – Roman law provisions in the BES general
principles of servitudes
The first title “General Provisions” of
Title 4 “Servitudes” of property law contains 14 articles, two of which make
reference to not only Roman law, but also other laws (e.g., the statutes of
In the first example, the references
under the BES article are partly relevant, while others could be replaced with
other references:
BES article 1090:Betrifft die Servitut
den Vortheil einer bestimmten physischen oder juristischen Person, so heisst
sie Personalservitut; bezweckt dieselbe dagegen den Vortheil eines bestimmten
Grundstücks, so dass dieser also von dem jedesmaligen Eigenthümer des Grundstücks
beansprucht werden kann, so wird sie Real- oder Prädialservitut genannt.
L.1. L.15 D. de servitut. (VIII,1). § 2 et 3
I. De rebus incorporal. (II,2)[55].
This article provides the main
classification of servitudes and defines the concepts of personal and real
servitudes. The first source referred to, D. 8.1.1, also provides a
classification of servitudes: Servitudes attach either to persons, as in the
case of the right to use and usufruct, or to things, as in the case of rustic
and urban praedict servitudes[56]. The second reference, D. 8.1.15, is not
quite exact, as the 15th fragment is divided into principium and
section 1. However, references are usually made with the precision of a
section.D. 8.1.15.pr. contains a few examples of invalid servitudes[57]. D. 8.1.15.1 defines the nature of
servitudes, which lies not in doing something, but in tolerance and inactivity[58]. Neither of these is related to the text
of the article[59]. The third and fourth references (Inst.
2.2.2 and 3) are to the chapter on non-corporeal things and it notes that,
e.g., the right of usufruct is also a non-corporeal thing. «The rights which
belong to urban and rustic estates also come under this heading.These are also
called servitudes»[60].
In conclusion, although these references are
about servitudes and at least some of them mention the classification of
servitudes, none of them define the nature of personal and real servitudes.
They can serve as the basis for this article only very remotely. However, the
article should have a reference, e.g., to Inst. 2.2.3 a few fragments below,
which clearly states that “the reason these rights are called servitudes
belonging to land is that they cannot exist independently of land”, which would
be much closer to the text of the article. Other more suitable sources could be
referred to.
As the sources of Roman law which are
referred to do not provide for such a definition, and it is hardly likely that
Bunge referred to the incorrect sources when knowing the correct ones, I tried
to find a similar definition from textbooks. Arndts defined them not word for
word, but still in a very similar way: «Rights of use are [...] whether
personal, servitutes personarum, personal servitudes, or rights of use
of plots of land, servitutes rerum, iura praediorum, praedial or real
servitudes depending on whether the right has been established for the benefit
of a certain person or a certain immovable, meaning the actual owner of the
immovable»[61]. Arndts also provides the first
reference mentioned by Bunge, D. 8.1.1; his other references differ from those
of the BES. Dabelow’s wording is a lot more different from the BES, although he
uses the same first source reference, but not the others[62]. Puchta’s wording also differs from the
BES, although he maintains the same principle. At the same time, stressing the
need of each owner of a servitude to gain benefits, Puchta refers to another
source, D. 8.1.15.pr., which is referred to in BES article 1090, noting that
the impulse for creating the principle of the need of a benefit arose from D.
8.1.19 [63]; he has not referred to the other
sources mentioned in the BES[64]. The common part of these sources which
the BES refers to is that the above textbooks contain not only the references
to Roman law, but also the Latin text of the provisions. Although the textbooks
contained other references to sources, the BES mentions those whose text was
provided in the textbooks and which were therefore easy to check. It seems that
Bunge has taken the text of this and other articles almost or completely word
for word from a textbook and added some references to Roman law on the basis of
the citations made in the books without delving into the substance of the
citations.
As regards servitudes, there were many
cases (4.5)[65] (BES articles 1090, 1092, 1098 point d,
1099, 1102) where one of the sources referred to in the text reflects the Roman
law source of the BES text, while the other references made in the BES are
irrelevant. It also happens that various references to a source repeat the same
idea, while the repeated part makes up only a half of the BES article and the
other half has no reference (BES article 1101).
It is quite common that a source contains
a specific example or case, from which the BES draws a general rule (BES
articles 1092, 1093, 1102). In such case, secondary literature has done the
generalisation work. Some sources may have served merely as inspiration for the
text of the BES (BES articles 1089, 1090, 1091, 1101). Among the general
principles of servitudes, none of the articles have only completely irrelevant
references to sources.
I would like to give an example of the
source reference of an article, in which case the general principle is
presented more specifically as a principle of the right of servitude and others
need to be generalised or modified in order to understand the connection with
the text of the BES article:
BES article 1092:Ist der Umfang einer
Servitut zweifelhaft, so spricht die Vermuthung für den geringsten Umfang des
Servitutenrechtes.
L.20 § 4 u. 5 D. De servitut.praed.urb.
(VIII,2); L.20 D. De servitut.praed. rust. (VIII,3); L.9 D.de regulis iuris
(L,17)[66].
The third reference of this article (D.
50.17.9) is to the principle of Roman private law serving as the basis for the
article – Semper in obscuris quod minimum est sequimur (In matters that
are obscure we always adopt the least difficult view), which has been
transposed to servitudes.
D. 8.2.20.4 gives a specific example of
the servitude of stillicide (stillicidium): If rainwater was originally
discharged from tiles, it is not permissible subsequently to discharge it from
broad-work or any other material[67]. D. 8.2.20.5 goes further with the
servitude of stillicide and describes other possibilities or acquiring it and
the establishment of such a servitude. It has been stated amongst other things
that “a servitude can be rendered lighter, but not heavier”[68]. While the remaining text described
various cases, this part of a sentence contained a more general rule, which,
however, requires further generalisation and a quite different approach for the
text of BES article 1092. The reference to D. 8.3.20 is again inaccurate, as it
consists of four fragments; however, if all four were to be true, we have
another four inappropriate references. Namely, they all describe methods of
establishing other servitudes in addition to the right of servitude or the
extinguishment of such servitudes, but that the rights of the owner of the
dominant parcel of land correspond to the applicable servitudes.
The content of BES article 1092 has thus
been provided in a generalised form in only one source. In addition, another
source contains a rule that needs to be modified. The remaining sources
describe in smaller or greater detail specific servitudes, but they can only
serve as inspiration for article 1092 at best. In addition to that, they could
have served as inspiration to many other articles to at least an equivalent
extent.
Such a principle of the right of
servitude, although not in quite the same wording, has been mentioned only by
Mühlenbruch, from whom the first two sources also originate[69]. None of the other authors (Dabelow,
Arndts, Vangerow and Puchta) discuss such a principle of the right of servitude
and neither do they refer to these sources.
Compared to all textbooks, the regulation
of the BES is extremely detailed and casuistic[70]; article 1092 is a good example of this.
Namely, essentially the same (the fact that the right of servitude is
applicable in an as small as possible scope) can be concluded from BES article
1101. Also in the event of references to sources, Bunge has remained true to
the principle of great detail and casuistry – he has added as many references
as possible that repeat each other, are partly irrelevant, or simply
decorative. For example, article 1093 has seven references, all of which
contain more specific, more or less relevant examples that support the general
principle of the article. As many of them are only very remotely related to the
text of the BES article, at least some of them could have been omitted,
especially considering that Bunge wanted to reduce the role of Roman law.
Considering all the incorrect or inaccurate references, he would have had
plenty of opportunities to reduce the number of references to Roman law.
To summaries to results of this random
analysis, all completely irrelevant references were found in the part
concerning types of things; there were none in the servitudes part. Thus, of
the 23 articles of the BES analysed, 3.5 articles contained only incorrect references;
6 articles referred to the same concept in a different context, and the
remaining 13.5 articles had at least one source each that served as the basis
for the article, even when it had to be generalised.
5. – Purpose of the BES references to Roman law
sources
Although Bunge himself claimed that the
proportion of Roman law in the BES should have been reduced, this wish did not
apply to adding references to Roman law sources[71]. More rather than less of such
references have been added to the parts of the BES studied in this paper. Quite
a few of the references are irrelevant. As a rule, the references have been
drawn from textbooks, in which they were relevant (although perhaps in a
different context), but they are irrelevant to the specific article of the BES.
Considering that most articles were still supplied with at least one relevant
source, it may be presumed that Bunge did not choose the references quite
randomly, but made a certain choice, probably choosing references from
textbooks and preferring those which provided also the text of the source and
not only a reference. Bunge’s own words suggest that he wished to reduce the
role of Roman law. However, this does not seem to be the case if we consider
the multitude of references to Roman law sources. Although the references are
not completely random, he has chosen to add a larger rather than smaller number
of them. This raises the question of what role these references to Roman law
played. Was the instruction to supply all articles with references to
applicable law the only reason why Bunge added such a great number of
references to Roman law?
The multitude of references to sources
(based only on the index of sources) is one of the reasons why the BES embodies
the triumph of Roman law. Could Bunge have wished the BES to strike as mainly
the outcome of Roman law, even if it was not entirely so? Did the great number
of references to Roman law serve to legitimise Bunge’s undertaking despite his
intention to reduce the use of Roman law? On the one hand, it may have been
necessary to legitimise the BES for the local provincial practitioners who had
been constantly using Roman law in their practice and wished to continue doing
so. It should be admitted that provincial legal science was still in a much poorer
state compared to Roman law research. This way, practitioners would have been
left with the impression of “soft landing” and the hope that former Roman law
practice would still be usable.
On the other hand, times had changed also
in terms of imperial governance: a former toleration for the special
regulations applicable in various parts of Russia was being replaced at the
beginning of the 1860s with the Russian central government’s wish to harmonise
Russian legislation[72], and in such case, a great number of
local sources would not have been recepted so well. In addition, the Russian
government was at that time fascinated by everything originating from
Certainly the references may have been of
help for users in interpreting the provisions of the BES; some examples of this
are known. For example, Erdmann used the references of BES article
6. – Conclusions
Naturally this small excerpt cannot serve
as a basis for very far-reaching conclusions. Still, it may be said that when the
classification of things gave the impression that most references had no
connection or had only a very indirect connection with the sources of Roman
law; this was not the case with servitudes. However, it is the classification
of things that would not be expected to deviate so much from Roman law.
Servitudes are an area where later theory may have much to say and change. The
result is therefore surprising.
When writing the BES articles that
originate from Roman law, both Bunge and the editors of his draft used the
textbook by L. Arndts “Lehrbuch des Pandektenrechts”, which Professor of Roman
law O. Meykow of the
Most of the additions in the wording of
the articles certainly originate from Arndts; some corrections seem to have
been guided by Dabelow’s approach. Whether these were done by Meykow or someone
else (Bunge himself) is not clear. In any case, the references in the observed
chapters were added by Bunge himself in 95% or more of the cases. The question of
whether the coincidence between the references of article 1090 and the Roman
law sources cited in textbooks is accidental or intentional needs further
investigation. I cannot currently confirm or refute whether any other textbooks
were used. The reason for the large number of references to Roman law requires
further research, but probably it arises from the wish to legitimise the BES in
the eyes of local provincial practitioners as well as the Russian central
government. However, it may be said that the multitude of references to Roman
law did not imply an equally extensive use of Roman law, and we cannot speak
about the triumph of Roman law that has been claimed so far.