Monday, 2 February 2009

Intellectual Property Rights are not Property Rights within the Scope of the Civil Code

Many (Indonesian) lawyers/jurists think that intellectual property rights (Dutch: intellectuele eigendomsrechten) are property rights within the scope of the Indonesian Civil Code (Dutch: zakelijke rechten), and I am of the opinion that such perception is completely wrong.

Intellectual property rights are rights on the productions of the soul (English transliteration of rechten op voortbrengselen van de geest) and such rights do not fall within the meaning of property rights (zakelijke rechten).

Article 499 of the Indonesian Civil Code reads:

De wet verstaat door zaken alle goederen en rechten welke het voorwerp van eigendom kunnen zijn.

English transliteration/translation:

The law recognizes all goods and rights that can be the object of property/ownership as things.

This Article means that only goods and rights that can be owned by human beings are considered by the Indonesian Civil Code as property. This is consistent with the old as well as the new Netherlands Civil Code.

There are goods that cannot be the object of property of anyone (Article 519 of the Indonesian Civil Code) and there are things that cannot be object of property, or in other words: there are things that are inalienable, e.g., human rights.

As we have understood it, the legal concept of intellectual property rights was first introduced by the Statute of Anne of 1709, long before the promulgation of the Code Napoleon in France and its empire. However, the legislators never admit intellectual property rights as property rights within the ambit of the Civil Code. This has been discussed in my paper (in the Indonesian language, English version shall follow), titled: Sekuritisasi Hak Cipta, Suatu Gagasan Untuk Pembangunan (English: Securitization of Copyright, an Idea for Development). The paper has been published in the Bulletin of the Indonesian Capital Markets Legal Consultants Association. To get one soft copy of the paper, please contact me.

Why don't intellectual property rights constitute property rights within the ambit of the Civil Code? Find the answer in the other notes.

The IDLO Intellectual Property Resource Person for Indonesia

Sunday, 1 February 2009

The Statute of Anne

Anne, Queen of Great Britain (England and Scotland) and Ireland, the last monarch of the Stuart Dynasty. Queen Anne was the only sister of Queen Mary II, both were daughters of James II of England (James VI of Scotland). Queen Anne succeeded her brother-in-law, William III of Orange-Nassau, who reigned together with his wife, Queen Mary I, after forcibly deposing James II of England (James VI of Scotland) in the Glorious Revolution. After the death of Queen Mary II, William III continued to reign in Great Britain and Ireland as a single monarch until his own death in 1702. Queen Anne succeeded him to the British and Irish Thrones, whereas his Stadtholdership in Holland passed to Johan Willem Friso, Princely Count of Nassau-Dietz, Stadtholder of Friesland, his agnatic cousin, also descendant of William I (William the Silent), Prince of Orange, Count of Nassau. William III's title Prince of Orange passed to (i) Johan Willem Friso (House of Orange-Nassau), descendant in agnatic line of William I's brother, and in cognatic line also of William I himself, stadtholder of Friesland, and his descendants and (ii) Frederik I of Prussia (House of Hohenzollern), a senior descendant in cognatic line from William the Silent, who ceded his claims to the lands of Orange to France in 1713, and his descendants. Louis de Mailly and Prince Louis Armand de Bourbon-Conti were appointed by the French Monarch to also hold the title. The title is hereditary, but the Sovereign Principality of Orange was dissolved and came under the sovereignty of the French Monarchy.

The Statute of Anne (short title: Copyright Act 1709 8 Anne c.19; long title: "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned") repealed the Statute of Mary and, as such, ended the monopoly granted by the Statute of Mary to the Stationers Company.

Read the entire Statute by clicking here.

The Statute of Mary

The Statute of Mary was an Act passed and promulgated by Queen Mary I of the Tudor Dynasty in restoring England to Roman Catholicism. Under the Statute of Mary, heresy and paganism were forbidden and all books containing schismatic teachings were set on fire. The Statute gave monopoly to the Worshipful Company of Stationers and Newspaper Makers (better known as the Stationers' Company), which had been responsible for setting and enforcing copyright regulations until the that monopoly was abolished by the passage of the Statute of Anne in 1709.

The Restoration of England to Roman Catholicism and the passage of the Statute of Mary may remind us to the codification and passage of Corpus Iuris Civilis.

The following is the commentaries of Sir William Blackstone on the Laws of England, including the Statute of Mary:

Chapter XI. Of Offences Against the Public Peace

We are next to consider offences against the public peace; the conservation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large. These offences are either such as are an actual breach of the peace, or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity of virtue of several modern statutes: and, particularly,

1. The riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 and 4 Edw. VI, c.5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by the statute 1 Mar. c.1, among the other treasons created since the 25 Edw. III: though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. st. 2 c.12, which made the same offence a single felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot in intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons were commended, by proclamation, to disperse, and they did not, it was, by the Statute of Mary, made felony, but within the benefit of clergy; and also the act indemnified the peace officers and their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents: but at first it was made only for a year, and was afterwards continued for that queen's life. And, by statute 1 Eliz. c. 16, when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James the First to the death of Queen Anne, it was never once thought expedient to revive it; but in the first year of George the First, it was judged necessary, in order to support the execution of the act of settlement, and to renew it, and at one stroke to make it perpetual, with large additions. For, whereas, the former acts expressly defined and specified what should be accounted a riot, the statute 1 Geo. I, stat. 2, c.5, enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them, by proclamation, to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony, without benefit of clergy. And, farther, if the reading of the proclamation be by force opposed, or the reader by in any manner wilfully hindered from the reading of it, such opposers and ingerers are felons, without benefit of clergy: and all persons to whom such proclamation ought to have been made, and knowing of such hinderance, and not dispersing, are felons, without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfortunately killed in the endeavour to disperse them: being copied from the act of Queen Mary. And, by a subsequent clause of the new act, if any person, so riotously assembled, begin, even before proclamation, to pull down any church, chapel meeting-house, dwelling-house, or out-houses, they shall be felons, without benefit of clergy.

2. by statute 1 Hen. Vii, c.7, unlawful hunting in any legal forest, park or warren, not being the king's property, by night, or with painted faces, was declared to be single felony. By now, by the statute 9 Geo,I,c.22, to appear armed in any inclosed forest or place, where deer are usually kept, or in any warren or hares or conies, or in any high road, open heath, common, or down, by day or night, with faces blacked, or otherwise disguised, or (being so disguised) to hunt, wound, kill, or steal any deer, to rob a warren or to steal fish, or to procure, by gift or promise of reward, any person to join them in such unlawful act, is felony without benefit of clergy. I mention these offences in this place, not on account of the damage thereby done to private property, but of the manner in which that damage is committed: namely, with the face blacked or with other disguise, and being armed with offensive weapons, to the breach of the public peace and the terror of his majesty's subjects.

3. Also by the same statute, 9 Geo I, c. 22, amended by statute 27 Geo.II, c.15, knowingly to send any letter without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threatening (without any demand) to kill any of the king's subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy. This offence was formerly high treason by the statute 8 Hen. VI, c.6.

4. To pull down or destroy any lock, sluice or floodgate, erected by authority of parliament on a navigable river, is, st statute 1 Geo. II, st. 2. c.19, made felony, punishable with transportation for seven years. by the statute 8 Geo. II, c.20, the offence of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of clergy; and it may be inquired of and tried in any adjacent county, as if the fact had been therein committed. By the statute 4 Geo III, c.12, maliciously to damage or destroy any banks, sluices, or other works on such navigable river, to open the floodgates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years. And by the statute 7 Geo III, c.40, (which repeals all former acts relating to turnpikes), maliciously weighing engine thereunto belonging, erected by authority of parliament, or to rescue any person in custody for the same, is made felony without benefit of clergy; and the indictment may be inquired of and tried in any adjacent county. The remaining offences against the public peace are merely misdemeanors and no felonies; as,

5. Affrays (from affraier, to terrify) are the fighting to two or more persons in some public place, to the terror of his majesty's subjects; for , if the fighting be in private, it is no affray, but an assault. Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue. but more especially the constable, or other similar officer, however denominated, is bound to keep the peace; and to that purpose may break open doors to suppress an affray, or apprehend the affrayers; and may either carry them before a justice, or imprison them by his own authority for a convenient space till the heat is over; and may then perhaps also make them find sureties for the peace. The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case; for , where there is any material aggravation, the punishment proportionably increases. As where two persons cool and deliberately engage in a duel; this being attended with a apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has actually ensued. Another aggravation is when thereby the officers of justice are disturbed the due execution of their office: or where a respect to the particular place ought to restrain and regulate men's behaviour, more than in common ones; as in the king's court and the like. And upon the same account also all affrays in a church or church-yard are esteemed very heinous offences, as being indignities to him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted by statute 5 and 6 Edw. VI, c.4, that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiae; and, if a clerk in orders, from the ministration of his office during pleasure. And if any person in such church or church-yard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto; or if he strikes him with a weapon, or draws any weapon, with intent to strike, he shall, besides excommunication (being convicted by a jury), have one of his ears cut off: or, having no ears, be branded with the letter F in his cheek. Two persons may be guilty of an affray: but,

6. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assemble is when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it. A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcible breaking down fences upon a right claimed of common or of way ; and make some advances towards it. A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel: as if they beat a man; or hunt and kill game in another's park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner. The punishment of unlawful assemblies, if to the number of twelve, we have just now seen, may be capital, according to the circumstances that attend it; but, from the number of three to eleven, is by fine and imprisonment only. The same is the case in riots and routs by the common law; to which the pillory in very enormous cases has been sometimes superadded. And by the statute 13 Hen. Iv, c.7, any two justices, together with the sheriff or under-sheriff of the county, may come with the posse comitatus, if need be, and suppress any such riot, assembly, or rout, arrest the rioters, and record upon the spot the nature and circumstances of the whole transaction; which record alone shall be a sufficient conviction of the offenders. In the interpretation of which statute it hath been holden, that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable. so that our ancient law, previous to the modern riot act, seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account, as to redress grievances or pull down all enclosures, and also resisting the king's forces if sent to keep the peace, may amount to overt acts of high treason, by levying war against the king.

7. Nearly related to this head of riots is the offence of tumultuous petitioning; which was carried to an enormous height in the times preceding the grand rebellion. Wherefore by statute 13 Car.II, st. 1, c 5, it is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assizes or quarter sessions; and, in London, by the lord mayor, aldermen and common council, and that no petition shall be delivered by a company of more than ten persons; on pain in either case of incurring a penalty not exceeding 100 l. and three months imprisonment.

8. An eighth offence against the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping possession of lands and tenements, with menaces, force and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession , unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in a former book. But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim. so that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusual weapons. by the statute 5 Ric. II, st. 1 c.8, all forcible entries are punished with imprisonment and ransom at the king's will. And by the several statutes of 15 Ric. II, c.2, 8 Hen. VI, c.9, 31 Eliz. c.11, and 21 Jac.I, c.15, upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, one or more justices of the peace, taking sufficient power of the county , may go to the place, and there record the force upon hi own view, as in case of riots; and upon such conviction may commit the offender to gaol, till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury to try the forcible entry or detainer complained of: and if the same by found by that jury, then, besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title: for the force is the only thing to be tired, punished, and remedied by them: and the same may be done by indictment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements for three years immediately preceding.

9. The offence of riding or going armed, with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III, c.3, upon pain of forfeiture of the arms, and imprisonment during the king's pleasure, in like manner, as by the laws of Solon, every Athenian was finable who walked about the city in armour.

10. Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punishable by common law either by fine and imprisonment; which is confirmed by statutes Westm. 1,3 Edw. I, c. 34, 2 Ric. II. 1 c. 5 and 12 Ric. II, c.11.

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls. Such false and pretended prophecies were punished capitally by statute 1 Edw. VI, c. 12, which was repealed in the reign of Queen Mary. And now by the statute , 15 Eliz. c.15, the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

12. Besides actual breaches of the peace, anything that tends to provoke or excite others to break it, is an offence of the same denomination. Therefore, challenges to fight, either by word or letter, or to be the bearer of such a challenge, are punishable by fine and imprisonment, according to the circumstances of the offence. If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Ann c.13, shall forfeit all his goods to the crown, and suffer two year's imprisonment.

13. Of a nature very similar to challenges are, libels, libelli famosi, which, taken in the largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law: and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation , and the falsity, is the thing to be punished criminally: though doubtless, the falsehood of it may aggravate its guilt and enhance its punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; for , if the charge to true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace; and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And, therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing: and, secondly, whether the matter be criminal: and, if both these points are against the defendant, the offence against the public is complete. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in its discretion shall inflict: regarding the quantity of the offence, and the quality of the offender. By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Augustus, the punishment became corporal only. Under the emperor Valentinian it was again made capital, not only to write but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with the middle age of Roman jurisprudence, when liberty, learning and humanity were in their full vigour, than with the cruel edicts that were established in the dark and tyrannical ages of the ancient decemviri, or the later emperors.

In this and the other instances which ore have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, other with a less, degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only that free-will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for the restraining the just freedom of the press, "that it was necessary to prevent the daily abuse of it," will entirely lose its force, when it is shown (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true it will be found, that to censure the licentiousness, is to maintain the liberty, of the press.

Roman Catholicism in England and Copyright Law

The above picture shows Mary I (18 February 1516 – 17 November 1558), Queen of England and Queen of Ireland from 19 July 1553 until her death. The fourth crowned monarch of the Tudor Dynasty. Queen Mary I, daughter of Henry VIII and his first wife, Catherine of Aragon. Queen Mary I is remembered for her acts in restoring Roman Catholicism throughout England after succeeding her short-lived half brother, Edward VI (son of Henry VIII and his third wife, Jane Seymour), and her cousin, the Nine-Day Queen, Lady Jane Grey, to the English Throne.

During her reign, in support of her acts in restoring England to Roman Catholicism, she ordered the promulgation of the famous Statute of Mary that granted monopoly to the Worshipful Company of Stationers and Newspaper Makers (better known as the Stationers' Company) (established in 1403 and received its Royal Charter in 1557), which held a monopoly over the publishing industry and was officially responsible for setting and enforcing copyright regulations until the promulgation of the Statute of Anne in 1709.

Queen Mary I, Consort of Philip II, King of Spain, son of Charles V, Holy Roman Emperor of the Habsburg Dynasty, died at 42 childless and was succeeded by her half sister, Elizabeth I, daughter of Henry VIII and her second wife, Anne Boleyn.

During her reign, she held the following full title and style:

Mary, by the Grace of God, Queen of England, France and Ireland, Defender of the Faith, and of the Church of England and also of Ireland in Earth Supreme Head" (Latin: Maria Dei Gracia Anglie, Francie et Hibernie Regina, Fidei Defensor, et in terra ecclesie Anglicane et Hibernice supremum caput)

Under Mary's marriage treaty with Philip, the couple were jointly styled Queen and King. The official joint style reflected not only Mary's but also Philip's dominions and claims; it was "Philip and Mary, by the grace of God, King and Queen of England, France, Naples, Jerusalem, and Ireland, Defenders of the Faith, Princes of Spain and Sicily, Archdukes of Austria, Dukes of Milan, Burgundy andBrabant, Counts of Habsburg, Flanders and Tyrol". This style, which had been in use since 1554, was replaced when Philip inherited the Spanish Crown in 1556 with "Philip and Mary, by the Grace of God King and Queen of England, Spain, France, Jerusalem, both the Sicilies and Ireland, Defenders of the Faith, Archdukes of Austria, Dukes of Burgundy, Milan and Brabant, Counts of Habsburg, Flanders and Tyrol".


Henry VIII and Edward VI


Lady Jane Grey and Elizabeth I

CORPUS IURIS CIVILIS


THE STUDY OF THE FIRST-EVER CODIFIED BODY OF CIVIL LAW

Justinian I, the Eastern Roman (Byzantine) Emperor issued an order to collect legal materials of various kinds into several new codes, spurred on by the revival of interest in the study of Roman Law in the Middle Ages. This revived Roman law, in turn, became the foundation of law in all Civil Law Jurisdictions. The provisions of the Corpus Iuris Civilis also influenced the Canon Law of the church since it was said that ecclesia vivit lege romana — the church lives under Roman Law.

The work was directed by Tribonian, an official in Justinian's court, and distributed in three parts: Digesta (or "Pandectae"), Instititiones and the Codex Constitutionum/Codex Justinianus. The fourt part Novellae Constitutiones was added later.

Corpus Iuris Civilis ("the Body of Civil Law") was issued between 529 and 534 AD and compiled, in the Latin language, all of the existing imperial constitutiones (imperial pronouncements having the force of law), back to the time of Emperor Hadrian, and used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and the Codex Hermogenianus, which provided the model for division into books that were divided into titles. These codices had developed authoritative standing.

The Corpus Iuris Civilis was composed and distributed in the Latin language, which was still the official language of the government of the Empire in 529 - 534 AD, whereas the prevalent language of merchants, farmers, seamen, and other citizens was Greek. By the early 7th century, the official government language segued into the Greek under the lengthy reign of Heraclius (610 - 641).

Contents

Corpus Iuris Civilis contains the following:
  1. Codex Justinianus
  2. Digesta/Pandectae
  3. Institutiones
  4. Novellae
Codex Justinianus collects the constitutiones of the Roman Emperors. The earliest statute preserved in the code was enacted by Emperor Hadrian; the latest came from Justinian himself. The compilers of the code were able to draw on earlier works such as the official Codex Theodosianus and private collections like the Codex Gregorianus and the Codex Hermogenianus. Due to legal reforms by Justinian himself, this work later needed to be updated, so a second edition of the Codex (the so-called "Codex repetitae praelectionis") was issued in 534, after the Digesta. It reflects the social order of the later Empire. The position of the Emperor as an absolute Monarch with unlimited legislative, executive and judicial power is implicit throughout, something which became criticised by Montesquieu later.

Under Codex Justinianus, Orthodox Christianity was secured as the only state religion of the entire Empire, uniting the Church and the State, and making anyone who was not connected to the Christian church a non-citizen (also later criticised by Montesquieu). The very first law in the Codex requires that all persons under the jurisdiction of the Empire to hold the holy Orthodox (Christian) faith. This was primarily aimed against heresies such as Arianism. This text later became the springboard for discussions of international law, especially the question of just what persons are under the jurisdiction of a given state or legal system. Other laws, while not aimed at Paganism as such, forbid particular pagan practices. It is provided that all persons present at a pagan sacrifice may be indicted as if for murder.

The principle of "Servitude of the Jews" (Servitus Judaeorum) was established by the new laws, and determined the status of Jews throughout the Empire for hundreds of years. The Jews were disadvantaged in a number of ways. The Jews were not allowed to testify against Christians and they were disqualified from holding a public office. Jewish civil and religious rights were restricted. In principle the laws mandates that "they shall enjoy no honours". In worship the use of the Hebrew language was forbidden. Shema Yisrael, which was sometimes considered as the most important prayer in Judaism ("Hear, O Israel, YAHWEH our God, YAHWEH is one") was banned, and it was considered as a denial of the Trinity. A Jew who converted to Christianity was entitled to inherit his or her father's estate, excluding his/her still-Jewish brothers and sisters. The Emperor became an arbitrator in internal Jewish disputes. Similar laws applied to the Samaritans.

The Digesta or Pandectae consist of a collection of legal writings mostly dating back to the second and third centuries. There were fragments taken out of various legal treatises and opinions and were inserted in the Digesta. In their original context, the statements of the law contained in these fragments were just legal doctrines or private opinions of legal scholars. However, the Digesta given the force of law like the other parts of the Corpus Iuris Civilis.

As the Digesta neared completion, Tribonian and other two professors, Theophilus and Dorotheus created a students' textbook, which was called the Institutiones, whic means 'Elements'. Because there were four elements, as such, the manual consists of four books. The Institutiones are largely based on the Institutiones of Gaius and two thirds of the Institutiones of Justinian consists of literal quotes from Gaius.

The Novellae consisted of new laws that were passed after 534. They were later re-worked into the Syntagma, a practical lawyer's edition, by Athanasions of Emesa between the years 572 - 577 AD.

See Other Note: Critics by Montesquieu on Corpus Iuris Civilis

The Civil Code, the Glorious Victory of Napoléon Bonaparté

Although the Code Napoléon is not the oldest codified rules of civil law after Codex Justinianus (Corpus Iuris Civilis) - it was preceded by (i) Codex Maximilianeus bavaricus civilis (1756), (ii) Allgemeines Landrecht für die Preußischen Staaten (1794) and (iii) the West Galician code (1797) - the Code constitutes the glorious victory of the Emperor.

The Code Napoléon (established in 1804) which was promulgated in Belgium, Luxembourg, the Netherlands, North Italy and part of Germany, which was under the suzerainty of the French Empire, in addition to France. Although those countries have been independent from French imperialism, they still maintain and retain most of the rules and principles of the Code, of course with some modifications. Other vassal states, such as Westphalia, Southern Italy and Poland, also took over most of the Code.

The Emperor said: "Ma vraie gloire n’est pas d’avoir gagné quarante batailles. Waterloo effacera le souvenir de tant de victoires. Ce que rien n’effacera, ce qui vivra éternellement, c’est mon Code civil." [My true victory is not the fact that I have won forty battles. Waterloo will erase the memory of all victories. Nothing will ever erase what will live forever, my Civil Code.]

Although Code Napoléon was not the first civil code and did not represent the whole of his empire, it was one of the most influential. It was adopted in many countries occupied by the French during the Napoléonic wars, and thus formed the basis of the private law systems also of Belgium, Italy, Luxembourg, the Netherlands, Spain, Portugal and their former colonies. In the German regions on the left bank of the Rhine (Rhineland Palatinate and Prussian Rhine Province) the Napoleonic code was in use until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire.

The Code Napoléon was also adopted in 1864 in Romania (with some modifications), which is still in force as of 2006 (articles 461 to 1914). Other codes with some influence in their own right were the Swiss, German and Austrian ones, but even there some influence of the French code can be felt, as the The Code Napoléon is considered the first successful codification. Thus, the civil law systems of the countries of modern continental Europe, with the exception of Russia and the Scandinavian countries have, to certain different degrees, been influenced by the The Code Napoléon.

The legal systems of the United Kingdom other than Scotland, as well as Ireland and the Commonwealth, are derived from the English common law rather than from Roman roots. Scots law, though also a civil law system, is not codified; it is strongly influenced by Romano-Dutch legal thought, and after the Act of Union 1707 by English law. The Code has thus been the most permanent legacy of Emperor Napoléon Bonaparté.

See Other Note: The Commonwealth and the Francophone Countries

Saturday, 31 January 2009

Decoding the Indonesian Civil Code and Commercial Code

INTRODUCTION - PROLOGUE

His Majesty Willem Frederik George Lodewijk (King Willem II)
By the Grace of God, King of the Netherlands
,
Prince of Orange-Nassau, Grand-Duke of Luxembourg, Duke of Limburg


History of the Indonesian Civil Code

The Indonesian Civil Code was first enacted in Netherlands East Indies (Indonesia) in 1847 by virtue of the Koninklijk Besluit (Royal Decree) during the administration of the Governor General Jan Jacob Rochussen (second photo - right) in behalf of His Majesty Willem Frederik George Lodewijk, by the Grace of God, King of the Netherlands, Prince of Orange-Nassau, Grand-Duke of Luxembourg, Duke of Limburg (King Willem II) (first photo - above).


The Indonesian Civil Code (in Dutch: Het Burgerlijk Wetboek voor Indonesie) was promulgated together with (i) the Indonesian Commercial Code (in Dutch: Wetboek van Koophandel voor Indonesie), (ii) the General Rules of Legislation for Indonesia (in Dutch: Algemene Bepalingen van Wetgeving voor Indonesie, and (iii) the Regulation on Judicial Organisation and the Policy of the Justice (in Dutch: Reglement op de Rechterlijke Organisatie en het Beleid der Justitie). All of the codes were published in the State Gazette (Staatsblad) No. 23 of the year 1847, and announced on 30 April of the same year.

His Majesty Louis Napoléon Bonaparté, By the Grace of God, Prince Français,
King of Holland, Count of Saint Leu, (King Louis I Napoleon)


Origin of the Indonesian Civil Code


The Indonesian Civil Code is a blueprint with some modifications of then Nederlandse Burgerlijk Wetboek, which was promulgated in Koninkrijk Holland (5 June 1806 - 9 July 1810) during the reign of His Majesty Louis Napoléon Bonaparté, by the Grace of God, Prince Français, King of Holland, Count of Saint Leu, (King Louis I Napoleon) (third photo - above) of the Bonaparté Dynasty, brother of His Imperial Majesty Emperor Napoléon Bonaparté (fourth photo - below). Koninkrijk Holland was a vassal state of the French Empire and different from Kingdom of the Netherlands (Koninkrijk der Nederlanden).

His Imperial Majesty Emperor Napoléon Bonaparté

The Nederlandse Burgerlijk Wetboek was the blueprint of the French Civil Code (Code Napoleon).


The Indonesian Civil Code after Indonesia's Independence (17 August 1945)


After the proclamation of Indonesia's independence, the four codes have been maintained and retained by the Republic of Indonesia by virtue of Article II of the Transitional Provision of the 1945 Constitution. The Regulation on Judicial Organisation and the Policy of the Justice has been completely repealed by the enactment of Law No. 18/2003 on Advocates, following other laws on the judicial authority and on the Supreme Court that were previously enacted.

The other three remain valid except for:

The Civil Code:

(1) the rules on marriages (Book I) that have been perfected by Law No. 1/1974;
(2) the rules on real and immoveable property (Book II) that have been replaced by Law No. 5/1960;
(3) the rules on real mortgage/hypothec over land (Book II) that have been replaced by Law No. 4/1996

The Commercial Code:

(4) the rules on limited liability companies (naamloze vennootschap) that have been replaced by Law No. 1/1995, the latter has been replaced by Law No. 40/2007.

CODED MESSAGES OF THE INDONESIAN CIVIL CODE AND COMMERCIAL CODE

Apart from being written in Dutch, the two codes contain coded messages that cannot be understood without decoding them.

What coded messages are there? The Indonesian Civil Code contains 1993 articles and the Indonesian Commercial Code contains 754 articles. Thus, it will be a hard labour to find all those coded messages and how to decode them one by one. In the next note I will give the readers only a few examples of those coded messages, which often cannot be found by laymen, even those who study law, because of the language used in the codes.

HOW TO DECODE THE CODED MESSAGES

In decoding the coded messages, like Harry Potter, I need the help of magical things. I use the methods of interpretation, which includes (i) linguistic skills, (ii) historical study, (iii) comparative study and (iv) philosophical readings. They do help. However, since the codes are written in an archaic and rather poetic (Dutch) language, in decoding the coded messages, I need to use my feelings to grasp the poetic language. That's why I also learn classical poetry and romanticism.

In the next note I will explain how I decode the coded messages.

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