Codification as Nationalization or Denationalization of Law: The Spanish Case in Comparative Perspective
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Masferrer, Aniceto
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Aquest document és un/a article, creat/da en: 2016
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Some scholars have presented codification as a means to both nationalise and denationalise European legal traditions. This seems to be a paradox. On the one hand, the fact that laws needed to be approved by national parliaments and the ius commune - which was somehow regarded as a foreign law - ceased to be in force, gives evidence of how much codification contributed to the nationalisation of law. On the other hand, the fact that national parliaments enacted codes whose content had been highly influenced by foreign codes reveals that codification also contributed to the denationalisation of law. Different perspectives and arguments may lead to completely opposite outcomes. This debate has been particularly present in the Spanish scholarship. In the end, it seems that the view of codification as a means of denationalisation of law has prevailed, giving either a biased and partisan view of codification, or simplifying its richness. The consequences of such an approach have been notable in describing the codification of all legal branches, particularly in the civil law domain. After the Introduction (I), the paper will explore the Spanish historiography on this matter in a European context (II.1), paying particular attention to Belgium (II.2) and Romania (II.3). I will finish with some concluding considerations (III).
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