Maria Lewandowicz

How to Make the Impossible Possible? Reflections on the Unification [see below] of Inheritance Law in 19^th Century Switzerland

This article is devoted to the issues around unification of inheritance law in Switzerland in the 19^th century. Its objective is to demonstrate the problems confronting the Swiss legislature, the strategy adopted, and methods implemented for taking action in the face of having to reconcile diverse traditions, customs, and expectations under a single act. Eugen Huber, the main architect of the codification, strove to achieve a compromise that would allow the creation of a unified legal system based on the erstwhile legislative thought and technique, without having to forsake everything previously tried and trusted by this very diverse nation, grouped in small communities. He did so by pursuing the idea of universalization of testamentary succession, which had been marginalized in Swiss tradition since medieval times. The cantonal and common inheritance law which obtained till the time of codification was a mosaic of various laws, both with reference to the methods and the purposes of regulations. In this situation unification of the law through broadly understood self-regulating mechanisms of the market was probably the best choice. Implementing the institution of testamentary inheritance into the general legal system resulted in a situation whereby the society could, on the basis of common rules of conduct, independently determine its material situation in the event of a death, while remaining faithful to prevailing traditions and values. Unification through the introduction of common methods of conduct, and not through imposition of common principles and values, allowed the Swiss to harmonize apparently contradictory ideals of social cohesion and individualism, as well as to harmonize state interventionism with the right to self-determination.

* Artykuł powstał w ramach realizacji projektu „Szwajcarski kodeks cywilny z 10 grudnia 1907 roku – cele i metody” nr 2017/26/D/HS5/00625, finansowanego przez Narodowe Centrum Nauki.

The Bernese Civil Code (1824–1830) and Its Impact on Socio-Political Development*

The objective of this paper is to present the dynamics of events and dependencies, which resulted in the enactment of the Bernese Civil Code, as well as the importance and consequences of this work in the development of civil law and civil society in the canton of Bern. The paper addresses the issues concerning the question as to whether it is possible for an act of civil law to become a source of rules which, not finding sufficient protection in the existing constitutional system, cause changes in the latter. Did the codification of private law and the act of providing the ideas of freedom and equality with statutory protection result in the fall of the governance existing in Bern in the first half of the 19th century? Or was it perhaps the result of the accumulation of internal and external circumstances, leading to a formal sanctioning of systemic changes which had already occurred? The process of codification and systemic change in Bern constitutes an excellent example of the interdependence between private and publiclegal legislation and the fact that constitutional law does not always have to be the primary source of state protection covering basic social values.

*Artykuł powstał w ramach realizacji projektu Narodowego Centrum Nauki pt. „Szwajcarski kodeks cywilny z 10 grudnia 1907 roku – cele i metody”, nr UMO-2017/26/D/HS5/00625.