Codification and Normativity: Catalan "Exception" and European "Norm"

KENNETH F. LEDFORD

At the crossroads of sociology and history, scholars trained in different disciplines write legal history while engaged in a protracted guerilla war that focuses upon notions of normativity. Law and legal development as objects of investigation evoke in the sociology of law the very essence of normativity: what is law if not codified norms, and thus itself subject, perhaps, to norms of development or at least rationality? Conversely, legal historians trained in history departments, who subscribe to the particularizing norms cherished by that discipline, consciously pride themselves on their power to resist the temptations of normativity and, perversely in the view of some, insist upon examining, even celebrating, the deviant, the limiting case, the "exception to the rule." At different times, one approach or the other has dominated the scholarly literature. Notoriously, the Parsonianism of the 1950s and early 1960s elevated a neo-Weberian normativity to hegemony in legal history as well as in social theory; now the chastened decades at the end of the twentieth and beginning of the twenty-First centuries have tipped the balance within legal history to social history's focus on people, ideas, and experience on the margin, a focus so full of potential to erode general schemes of normative development.	1
The two articles on private civil law codification in Catalonia in this issue of Law and History Review challenge received notions about the normativity of civil codes, drawn both from sociology of law and prior legal history, in a broad variety of ways.1 The authors, themselves from different disciplinary backgrounds, together dispute the master narrative of codification as movement toward modernity. This narrative is contained in Weber's sociology of law, in legal history written in law faculties, and in legal history written from the perspective of the "dominant" national legal traditions, especially often those of France and Germany. Normally emplotting the tale as one of a teleological, transnational process of legal rationalization and modern state-building, scholarship on codification has dismissed resistance as "irrational" in Weberian terms, while neglecting examples of successful resistance to codification and failing to explore the methods and structures that contributed to that success. The two forum authors use disparate approaches. Harty concentrates on the social and political role of lawyers in defending the Catalan particularist law of inheritance to what she calls conservative ends. Jacobson focuses on the history of ideas as well as social and political factors. But both authors emphasize the close imbrication of Catalan resistance to civil law codification with the birth of Catalan nationalism. In linking the debate over civil law reform with that most modern of conceptions of identity, nationalism, the authors call for a rethinking of the received view of a civil law code as a "requisite of modernity."2	2
The authors' challenge to the master narrative that equates codification with modernity transcends the antiquarian or recuperative call to explore the Catalan experience either for its own sake or as an extreme case. Both argue persuasively that their research, and the example of Catalonia, speaks to large European trends: discourses of nationalism; "the malleability, if not the subjectivity, of civil law"; and the ways in which codes, like nations, are "made, invented, and imagined" (Jacobson, 347). Far from being satisfied with making an incremental contribution to some vast tapestry of the history of civil law codification, both authors aspire to a reconceptualization of how legal historians and others view the nineteenth century.	3
But the authors also seek to complicate and undermine other received verities about codes, codification, and the nature of legal development in Europe in the nineteenth century. Together, they challenge the dichotomy between abstract-rational systematic codes and organic-historicist growth of law as an expression of the Volksgeist, a dichotomy that dates to Friedrich Karl von Savigny and the power of the Savigny reception. Along with the best of recent scholarship, they contest the emplotment of civil law codification on a spectrum ranging from the liberal to the illiberal. And finally, one of the authors seeks to refine and reshape sociological debates about the role of legal professionals with regard to civil law codification, carving out a middle ground in a sharp argument over the material or ideal bases for the professional project of lawyers.	4
Taken together, these articles, and their challenges to the received verities of the historiography of civil law codification, persuade the reader to take a new look at law and identity, of nationalism(s) and legal systems, not merely through the parochial lens of the Catalan resistance to a code as the "Castilianization" of Catalonia or through the mechanistic Savignian linkage of law to an ill-defined "spirit of the people." Stepping literally outside the center of the debate and viewing it from the periphery of nineteenth-century Europe, the authors not only recapture the Catalan experience for the larger field of legal history but force us all to reconceptualize the complexity of law's forms, the cosmopolitanism of sources available for use in debates about legal reform, the particularity of interests and institutions in those debates, and the tenacious ability of variegated and seemingly uncontemporaneous legal forms and institutions to exist alongside each other.	5
Harty and Jacobson present remarkably similar accounts of the phenomenon of Catalan resistance to civil law codification in order to make different points. Beyond their common goals of recovering for European legal history the deviant case of Catalonia and of thereby contesting the normative metanarrative of unbroken "development," they agree on three principal themes. First, both authors contend that "Castilian" efforts from Madrid to create a unified "Spanish" system of private law, in the context of a variegated legal system with many regions of foral law, catalyzed the emergence of Catalan nationalism and crystallized part of its vocabulary and discourse around a defense of particularist legal institutions and traditions. Second, each article argues that the defense of "particularism" involved the reality of Catalonia's relatively advanced industrial economy and prosperity as compared to the rest of Spain and the consensus among Catalan jurists and other intellectuals that industry and prosperity rested upon the foundation of a complex of particular legal devices and institutions, such as the casa pairal, casa industrial, universal heir, and sociedad anonima familiar (Harty), and the default system of ownership of postnuptial assets, free range of testamentary disposition, and emphyteusis (Jacobson), all of which contributed to industrial self-Financing by increasing family (or head of household) control of wealth at the expense of that of the individual. Third, both scholars contend that this confluence of legal structures and awareness of Catalan difference, constantly reinforced by a difference in language, by the early twentieth century had transformed laws earlier viewed merely as foral, or different, into laws that were national, specifically Catalan, hence better and more suited to Catalonia. This paralleled the transformation of Catalanism from regionalism into nationalism and permitted continued successful resistance to incorporation into a unified, national (Spanish) civil code.	6
Both articles embed their specific tales of Catalonia in the general nineteenth-century European debates about codification. Catalan jurists read and employed the English discourse of the "ancient constitution"; they replicated, with various permutations and variations, German battles between "Romanist" and "Germanist" conceptions of law, with hostility toward "Gothic" law thrown in; and they founded a branch of the "Savigny Foundation" in order to clothe their arguments against codification in the prestige of Europe's most famous private law scholar. These Catalan jurists made European debates their own, providing their unique twist when they squared the anti-Roman law emphasis of "ancient constitutionalism" with a defense of Catalan private law as truly "Roman."	7
The title of Jacobson's essay, "Law and Nationalism," reveals his particular focus on the complex and contingent ways in which law could be made, invented, and imagined, both as an entity in itself and as a rallying point in the larger political-ideological struggle to create a national identity. Just as nations arise by way of "invented traditions" that promote belief in "imagined communities," the meaning of law itself is malleable, a surface onto which interested social actors can inscribe meaning in the course of their struggles for interest and values. Jacobson is interested in the history of ideas, both specific to Catalonia and in common with all of Europe, and he shows well both the cosmopolitanism of the sources that inspired the Catalan legal reformers and nationalist theorists and the very specific process of invention of tradition framed in Catalan particular civil law.	8
Jacobson's essay is particularly convincing in his account of the "Romanist-Germanist" dispute within the Spanish debate over codification. While echoing the debate unleashed in the 1880s in Germany, the Catalan version played out in its own way. It embraced the legacy of Rome and an invented "Roman" purity of Catalan law, thereby reversing English constitutional tradition. It admitted the German historical school of jurisprudence as the governing intellectual model (it should not be overlooked that Savigny, the great anti-Code theorist, was also a leading Romanist).3	9
Finally, Jacobson's article liberates itself from yet another normative narrative, that established by Savigny and later elaborated by German conceptual jurisprudence. One of the explanations for the persuasive power with which Savigny wrote was his profound conviction that history was not only the best determinant of a legal system but that it was on his side. He advanced the thesis, influential in Weber's milieu as well, of a "natural" transition from the three abstract, mechanical Enlightenment natural law codes with which he found fault (the French [1804], the Prussian [1794], and the Austrian [1812]) to organic, historical codes, the epitome of which later materialized in the German Civil Law Code of 1900.4 Jacobson shows that the Catalan episode is really neither, elaborating upon the artificiality of this distinction already expounded by James Q. Whitman and Michael John.	10
The story told by Harty's article begins and ends with lawyers. Lawyers, both theorists but above all practitioners, played a crucial role in elevating civil law to the center of the debate over Catalan identity. In part they wanted to preserve their material interests, their power as gatekeepers of the public's access to law, in order to attain their goal of ordering their own affairs. But they also sought to be guardians and articulators of ideas related to regional and national identity. At the beginning of the story, in 1818 and again in 1851, lawyers took the lead in resisting "Castilian" efforts to unify Spanish law, which threatened to eliminate or reduce Catalan legal distinctiveness, before there was a distinct ideology either of Catalanism or Catalan nationalism. At the end of the story, lawyers stood at the head of the Catalan national movement by reason of their dominance of the candidates' lists and parliamentary delegations of the Lliga Regionalista. Harty details the process whereby Catalan lawyers and notaries, in an effort to protect their monopoly position as interpreters and gatekeepers of uncodified legal rules, but also because of their personal connection with the institution of the universal heir through the origin of so many of them as the younger sons (cabalers) of the casa pairal, publicly associated Catalan nationalism with Catalan civil law in an effort to protect their professional interests, their personal biographies. The challenge posed to both of these interests catalyzed lawyers' sally onto the field of nationalist struggle, where they "constructed and popularized" the very concept of the "Catalan nation."	11
Harty depicts Catalan lawyers in a more unified manner than Jacobson, perhaps because she concentrates not only on the publicistic work of the same opinion leaders, lawyers more broadly conceived as "jurists," but also more particularly upon practitioners, notaries and advocates, and their professional institutions. Like Jacobson, she emphasizes lawyers' ideal rather than material interests, rooting their opposition to codification more in their articulation of a profound Catalan conservatism that emphasized hierarchy, authority, and familial deference, expressed in Catalonia's particular law, rather than in their more narrow material interests of preserving the advantage of their exclusive knowledge of the peculiarities and arcana of Catalan law. Harty, in passing, argues that what she calls Catalan lawyers' conservatism thus serves as a corrective to recent claims by Terry Halliday, Lucien Karpik, and others that lawyers in modern Europe have had some sort of elective affinity with political liberalism. She thus enters into a very current debate about the nature of lawyers' professionalism, one that might be called the "Halliday/Karpik vs. Abel" dispute. At the root of this vigorous exchange is a differing view of the very nature of professions in general, but particularly the legal profession; how much of lawyers' behavior as professionals arises from efforts to establish and maintain monopoly control over the production and reproduction of legal services and providers, and how much can be traced to lawyers' commitment to an ideal conception of the best political and economic arrangements for society, usually profoundly liberal?5 What Harty appears to offer is a middle ground, an example of lawyers who operated not primarily from material interest (the monopoly-seeking "professional project") but nevertheless arrived at a "conservative" political position. In this way, she opens a new dimension of analysis that invites both sides in the debate to revisit their core assumptions about lawyers' professionalism.	12
In addition to these many virtues, the two articles presented here raise, but do not address, at least three questions that will need to be answered before the Catalan experience can be used to refine and reshape assessments of any general European phenomena regarding civil law codification. The first question arises from the mundane historicist observation that Catalan circumstances differed from those of Germany as to the political and social valence of codification efforts. In Germany, lawyers favored a national code from 1815 and 1848 onward, not only as a means to combat political fragmentation and achieve national unity, but as a means to combat autocracy represented primarily by Prussia and the Prussian political and social system. A unified civil code in Germany thus imagined a state in which the overweening dominance of Prussia, saddled after the 1850s by a relatively backward set of procedural and substantive law codes, could be diluted into a new German national code, with potentially emancipatory consequences. In Spain, on the contrary, the impetus for codification actually better fit the normative pattern of the dominant central power, Castile, engaging in a state-building project to eliminate inefficient and potentially rival regional variation; what varied from the "norm" was the outcome, not the effort.	13
Second, the Catalan experience might well contribute to the theorization of a shift over time in the political valence of nationalism, from a mid-nineteenth-century variety still rooted in the emancipatory meanings of the concept, liberating citizens by locating them within unified communities of formal equals, to a late-nineteenth-century and twentieth-century variety rooted in racialist language and with an exclusionary, hierarchical, authoritarian cast, described by Heinrich August Winkler as a shift from left nationalism to right nationalism.6 The very nature of the community imagined, by lawyers via law and by others, tended to shift over the course of the nineteenth century from an internal community of formally equal individuals to an external hierarchy of substantively, even substantially, different peoples, with dire consequences for the twentieth and twenty-First centuries.	14
Finally, Harty's emphasis on the conservatism of Catalan lawyers' program risks replicating in new form the normative, teleological, directional implication of the very literature that both authors wish to challenge. Catalan lawyers were conservative in that they defended a "system of social and economic relations that privileged hierarchy, corporate structures, and a household economy built on family patrimony" (Harty, 351); they "rejected liberalism" (Harty, 354) because they were "rooted in a conservative view of society, one in which social order was maintained by structured household relations that dictated one's place and purpose" (Harty, 360); they resisted "redistribution of wealth" (Harty, 383), and they interacted "with industrialists, landowners and businessmen in the civil society associations they frequented" (Harty, 383). Historians must above all be careful of overestimating the emancipatory ambitions or achievements of nineteenth-century liberalism; liberalism proved remarkably compatible with hierarchy, corporatism, structured household relations, industry, and business, depending upon when those values suited the purposes and advanced the class interests of adherents of liberalism.7	15
On the wall in my of fice hangs a poster, reprinted in 1996 on the hundredth anniversary of the promulgation of the final version of the German Civil Code from an 1896 original, entitled "Map of German Laws and Courts." It displays the multiplicity of legal systems in Germany, some seventeen separate regions of law, ranging from French, Danish, Friesisch, and Jütisch, and even surviving municipal laws to the more familiar Prussian, Saxon, Bavarian, Badenese codes, and the "common" or received Roman law. This multiplicity and fragmentation that the map symbolically proclaims is precisely what the new German Civil Code promised to overcome, creating at last a uni fied (and liberal) German state and, presumably, a uni fied German society. The German empire, not to mention German society, famously failed to be uni fied by the civil code or any other reform, remaining a deeply divided social system through two wars, a failed democracy, and a disastrous dictatorship. Moreover, as Michael John in particular has pointed out, this very model, unifying civil code actually came into being by virtue of a series of political compromises that bracketed out vast areas of law for "special" legislation, either at the central or state level. The map serves, as do these two articles on Catalonia, as a powerful reminder that the normative account of European civil law codi fication, rooted in Weber's powerful analytical tools in his sociology of law, obscures the continued coexistence not only of his four types of law but of other particular traditions and variants. 8 Harty and Jacobson contribute signi ficantly to the development of this branch of legal historiography by reminding legal historians always to examine the normative postulates of the scholarly literatures to which they seek to contribute.	16
Kenneth F. Ledford is associate professor of history and law at Case Western Reserve University in Cleveland. Notes 1 See Stephen Jacobson, "Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective," and Siobhán Harty, "Lawyers, Codification, and the Origins of Catalan Nationalism, 1881–1901," Law and History Review 20 (2002): 307–47 and 349–84. 2 The foundational text for the "modernity" of civil law codes is "Economy and Law (The Sociology of Law)" in Max Weber, Economy and Society, ed. Guenther Roth and Claus Wittich (Berkeley and Los Angeles: University of California Press, 1978), 2: 641–900. While the crude "normativity" posited in this essay does not do justice to the nuance of Weber's application of ideal types to legal systems, interpreters of Weber have often fallen short of his mastery. Even so skilled an interpreter as David Trubek cannot fully avoid the trap of depicting the categories of substantive and formal irrationality and rationality in anything other than value-laden, indeed normative historical stages of progress. See David M. Trubek, "Max Weber on Law and the Rise of Capitalism," Wisconsin Law Review 1972: 720–53, especially table 1 at 729 and table 2 at 735 3 As Jacobson and Harty both note, the touchstone texts here are two outstanding new-generation legal histories: James Q. Whitman, The Legacy of Roman Law in the German Romantic Era (Princeton: Princeton University Press, 1990), and Michael John, Politics and the Law in Late Nineteenth-Century Germany: The Origin of the Civil Code (Oxford: Clarendon Press, 1989). 4 The most readily accessible version of Savigny's seminal work is Frederick Charles von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, trans. Abraham Hayward (New York: Arno Press, 1975), a translation of the second edition of Friedrich Karl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg, 1840). The first edition appeared in 1814. 5 Although this debate dates back to the publication in the late 1980s of the first work of the Working Group on the Comparative Study of Legal Professions, Lawyers in Society, ed. Richard L. Abel and Philip S. C. Lewis, 3 vols. (Berkeley and Los Angeles: University of California Press, 1988–89), the latest salvo can be found in an exchange on the Books-on-Law page at the Jurist web site; see Richard Abel's review of Terence C. Halliday and Lucien Karpik, eds., Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford: Clarendon Press, 1997) at http://jurist.law.pitt.edu/lawbooks/revnov98.htm#Abel and the reply of Hallliday and Karpik, http://jurist.law.pitt.edu/lawbooks/revapr01.htm#KarpikHalliday. 6 Heinrich August Winkler, "Vom linken zum rechten Nationalismus: Der deutsche Liberalismus in der Krise von 1878/79," in idem, Liberalismus und Antiliberalismus (Göttingen: Vandenhoeck and Ruprecht, 1979), 36–51. 7 I have explicated my own views as to the limits of liberalism generally in Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers 1878–1933 (New York: Cambridge University Press, 1996), esp. "Conclusion: Lawyers and the Limits of Liberalism," 291–99, and idem, "Lawyers and the Limits of Liberalism: The German Bar in the Weimar Republic," in Lawyers and the Rise of Western Political Liberalism, ed. Halliday and Karpik, 229–64. For a more general explication, see Richard Bellamy, Liberalism and Modern Society: An Historical Argument (University Park: Pennsylvania State University Press, 1992). 8 For a persuasive recent exposition of precisely this point, see Harold J. Berman and Charles J. Reid, Jr., "Max Weber as Legal Historian," in The Cambridge Companion to Max Weber, ed. Stephen Turner (New York: Cambridge University Press, 2000), 223–39.

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.