Methodennormen in kontinentaleuropäischen Kodifikationen

Provisions on Legal Method in Continental Civil Codes. More than half of the civil codes currently in force in European countries feature, usually in the introductory chapter, provisions on legal method, i.e. provisions on sources of law, statutory construction, application of rules per analogiam and similar issues. They differ significantly in content and style. Broadly speaking, there are the traditions encountered in the French Code civil, the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB), the Swiss Zivilgesetzbuch (ZGB), the civil codes of Spain and Portugal, and some more recent codifications in Central and Eastern Europe. Despite the prominent position some of the provisions assume in introductory chapters, their practical significance is, in modern times, usually negligible. Even where they are mentioned as justificatory patterns in legal reasoning, this usually occurs in a rather schematic way and does not really have much of an impact. A look back into history reveals that the provisions in question have origins of a mostly political nature, mirroring the power dynamic between the monarch or parliament on the one hand and the judiciary on the other, securing separation of powers or reacting to major historical developments such as the French Revolution. Also, these provisions are intrinsically linked with the emerging idea of private law as state law and with the codification movement taking place in Europe beginning in the late 18th century, underlining the positive nature of the law as well as the integrity of the codification. Originally, they had thus not been designed to provide much practical guidance with statutory construction or similar tasks. The absence of uniform legal methods often comes to be considered as a main obstacle to European legal integration. A restatement of the written and unwritten rules of legal method in Europe might be an interesting academic venture, but the practical impact would probably be very limited. What seems much more promising is to draft provisions on the autonomous methodology of EU law and its interplay with national law. This would not only provide a certain sensitisation of the legal community, but also help preserve the integrity of national codifications. In order to provide practical guidance in everyday legal work, such provisions would, however, have to be very different from the provisions on legal method currently featured in continental civil codes.