Legal history of Belgium
The legal history of Belgium has always been shaped by influences from neighboring countries. Since the founding of the state, Belgian law has been primarily influenced by French. Since the turn of the 20th century, the law in the Flemish parts of the country has instead been more influenced by the Netherlands, Germany and British-American common law . In the legal history of Belgium, Belgium has never really developed its own law .
Prehistory to 1830
Until 1830, there was neither a unified state nor a unified legal system in what is now Belgium. The applicable law consisted of local customary law . An exception to this is the Principality of Liège . Legislation in today's sense was a marginal phenomenon and existed primarily in the cities. From the 13th century onwards, the ius commune also advanced in the form of the academically received Roman and canon law . Local customary law, on the other hand, was not an object of scientific reception - it was rarely even written down. One of the few collections of common law is the Somme Rural by Frenchman Jehan Boutillier . A certain degree of legal unity emerged from the 14th century through the possibility of recours au chef de sens to the higher courts of the respective liege lords.
The political union by the Habsburgs since the 16th century initially did not change the legal fragmentation. It is true that legislation grew to up to 50 decrees per year until the 18th century; but since the political unity was based only on personal union, its effect was limited i. d. Usually on the respective territorial unit. The most important edicts of this time were the Edictum perpetuum Albrechts and Isabellas of 1611 and the Ordonnance sur le stile criminel of 9 Jul. 1570. One of the most important criminal and civil law scholars of the 16th century was Philip Wielant , who systematized the law of Flanders. Joos de Damhouder translated his originally Dutch writings into Latin. Research into the similarities between the various legal systems was mainly carried out by Gudelinus , Zypaeus and Anselmo .
As a result of the First Coalition War , the Austrian Netherlands were annexed by France in 1795 and all French law became valid and suddenly led to legal unity. The five Napoleonic Codifications also applied directly in today's Belgium. After the end of French rule and the establishment of the United Kingdom of the Netherlands , work soon began to replace the French Civil Code with a separate civil code. After the differences between north and south appeared to have been resolved in 1829, the new law was to come into force on February 1, 1831. However, the Belgian Revolution overtook legal developments: in 1830 the southern part of the kingdom declared itself independent: a separate Belgian state was established.
Founding of the state and French influence
The new Constitution of Belgium came into force on February 25, 1831. It leaned heavily on the existing constitutional systems of other European countries: around 40% were borrowed from the constitution of the Kingdom of the Netherlands, 35% from the Charte constitutionnelle in France of 1814, 10% from the French constitution of 1791 and around 5% from the English constitutional practice. The new constitution was nevertheless considered innovative: in the 19th century it served as a model for the constitutions of Spain, Greece, Romania and Luxembourg, in the 20th century it served as a model for the constitutions of Poland, Hungary and Czechoslovakia.
The constitution actually provided in Art. 139 that the applicable French codes should be replaced by their own Belgian laws. However, the lack of its own legal tradition prevented this: under French rule, university courses in law had been abolished, so the Kingdom of the Netherlands made do with German lawyers. However, the revolution prevented further German influence after 1830. In 1835 a central commission was set up in Brussels, which was the only one in Belgium to issue legal diplomas. The examination material was conservatively oriented towards French law and thus prevented legal innovations. The legal language remained French: this favored the continuing influence of French jurisprudence and jurisprudence in the interpretation of the French codes. Reforms and changes usually got stuck in the early stages.
In 1879 the government commissioned François Laurent to draft a new civil code, which he presented in 1883. Regardless of his reputation as the doyen of Belgian legal doctrine, the strongly anti-Catholic character of his draft prevented its implementation in current law. The new Catholic government therefore commissioned a commission in 1884, which, however, was unable to submit a draft until it was dissolved in 1929. After all, a new Code pénal came into force in 1867 , which, however, corresponded to a new edition of the French Code pénal . In the area of commercial law, however, rapid industrialization in Belgium forced new legal solutions. Importing French law was ruled out here because the industrialization process in France was progressing more slowly. The problems that arose first arose from the jurisprudence, which, with sometimes remarkable creativity, proved to be the motor of the legal reform process as a result of industrialization. In the years 1851 to 1891 the legislation followed the jurisprudence and gradually replaced the entire Code de commerce. Another important area of reform was social and labor law as a result of the first social laws in 1887.
The French influence began to wane at the beginning of the 20th century and the legal culture began to change. From 1876 the universities were allowed to issue legal diplomas themselves, which strengthened academic freedom. The newly emerging “scientific” method was directed against the previously predominant exegetical method: not only should the law be used as a source of law, but also non-legal and factual aspects. The most important representative of this scientific orientation is Adolphe Prins . After the Second World War, influential representations of civil law were created in this line of tradition by Henri de Page and René Dekkers , which are still in use today. Overall, however, the exegetical method remained predominant. The influence of jurisprudence increased: decisions of the Cour de cassation today have in practice the status of a parliamentary law. Important reforms that greatly reduced the influence of French law took place in family law: the classic French patriarchal system of the Civil Code was abandoned in favor of an emancipatory-egalitarian system. The new system was based primarily on legal historical work on the legal status before the French codes in the southern Netherlands: There, a more progressive Belgian family law tradition was discovered.
Belgian law becomes independent
While only 20 jurisprudential publications were published in Dutch between 1830 and 1890, this soon changed as a result of the early language legislation: since 1898, all laws must be promulgated in French and Dutch . There is a clear tendency towards two independent legal cultures that are defined by language boundaries. The French-speaking sphere is influenced more by French law, the Flemish part by the legal systems in the Netherlands, Germany or common law . From a Belgian law in the real sense, therefore, can hardly be spoken.
Belgium did not introduce general women 's suffrage , which was not restricted to specific groups of women, until 1948.
Individual evidence
- ↑ a b c d e f g h Dirk Heirbaut: The Belgian Legal Tradition: Does it Exist? In: Hubert Bocken and Walter De Bondt (eds.): Introduction to Belgian Law . Kluwer Law International, The Hague / London / Boston 2001, p. 1-22 .
- ^ Jad Adams: Women and the Vote. A world history. Oxford University Press, Oxford 2014, ISBN 978-0-19-870684-7 , page 438