Belgian Legal Journals between ‘Pragmatic Laziness’ and Political Accommodation

Author:Patrick Praet
Position:Attorney-at-law, Wetteren Belgium Doctoral Student, University of Tartu

That legal historians are few has quite naturally led to a limited number of views and even to virtual 'monopolies' on certain topics. Legal history differs in this respect from other legal disciplines, which tend to attract a larger number of authors and therefore generate a much larger number of conflicting views and opinions.

During my preparation of materials on the topic of Belgian legal reviews in the nineteenth and twentieth centuries, it struck me that the handful of internationally published authors had taken a rather dim view on the subject: Holthöfer had dismissed Belgian law reviews as mere 'practitioners magazines' 1 , whilst Heirbaut deplored the absence of academics in law journals, denounced 'pragmatic laziness' as a national characteristic 2 , and concluded that the law reviews' history was "an example of the failure of the legal scholarship in the country" 3 .

However, between 1 March 2008 and 1 March 2009, no fewer than 6,000 articles were published in 82 different listed 4 Belgian law reviews, most of these journals having been established for several decades already. Also, most contributors hold academic positions. Surely not all of these articles could have been rubbish? Not even by the stringent standards of the German Pandektenwissenschaft.

Instead of accepting the wholesale dismissal, we propose to contextualise the Belgian law review scene against the backdrop of the intellectual and political eras in which the works were written: it will then become apparent that pragmatism and conformity play a much greater role in the perceived 'failure' than does suspected incompetence.

Within the constraints of this article, including an upper limit of 10 pages, my account cannot possibly hope to be complete, or even have the beginning of completeness to show for its efforts, which is why I have given ample attention to notes and suggestions for further reading.

The French and Dutch years

When the Southern Netherlands were transferred from the Spanish to the Austrian Habsburgs in 1714, the various towns and regions retained their various legal systems based on custom. The Austrian rule of the day meant modernisation in different fields-e.g., the abolishment of judicial torture-but it was not until 1787 that Emperor Joseph II decreed the replacement of the multitude of provincial councils and law courts by a centralised executive and new judicial institutions5. This attack on old liberties led to a series of protests and uprisings 6 that were barely contained by the time French revolutionaries invaded the country in 1792 and 1794, having it officially annexed on 1 October 1795.

Hegel famously described Napoleon as 'reason on horseback', and the newly incorporated departments of France indeed got a speedy introduction to the mixed blessings of the French occupation: the Code Merlin abolished all existing legislation and replaced it with the laws of the French Republic, characterised by economic liberalism 7 , secularism, centralisation, codification 8 , and-last but not least-the introduction of French as the judicial language.

The impact of the French period was to be profound and the reception of the new legal system thorough and permanent9. The logical explanation seems to be that, a certain political opposition notwithstanding, a majority in the legal profession saw the French import as a suitable tool for modern times, far superior in this respect to the idiosyncrasies of the Old Patriotic Law10. In addition, of course, the years 1795-1815 saw the emergence of a new legal elite who saw and seized new career opportunities in the unified empire11.

The French years did not yield much legal literature, but as early as 1807, 'noteworthy' decisions of the Brussels Court of Appeal started to be published on a regular basis, followed the next year by a similar initiative regarding industrial Liège's important Court of Appeal12.

Between 1815 and 1830, the Southern and Northern Netherlands were briefly reunited under King William I, but French legislation, centred on its five voluminous codes, remained in force13.

Not unlike the French period, the Dutch period was characterised by an amazing amount of accommodation by the legal professions, who were all too happy to stay in office. In fact, much of the legislative work in the United Kingdom of the Netherlands was undertaken by jurisconsults from the South and the working language of the reform commission was French.

Nonetheless, the legal profession proved ready to switch loyalties again after the sudden Belgian independence had surprised everybody. Loyal magistrates appointed by the Dutch king turned into stern anti-Orangists overnight, calling upon the new Provisional Government "to protect the fatherland against the vile agitators" 14 , by which not the insurgents but the Dutch were meant.

Van Hille recalls how only months before it turned pro-Belgian, the Court of Appeal in Liège had sent a slavish letter of adherence to the Dutch king and one absentee judge had made every effort to express his post factum agreement with the letter he had been unable to sign due to illness15.

As might be expected, the appointment of 400 new judges by the Belgian Provisional Government did not harm that government's popularity amongst lawyers. Moreover, these nominations were entirely politicised and carefully reflected the bourgeois balance of power between catholics and liberals, thereby keeping everybody happy16.

Independence and the question of a national legal system

With Belgian independence, the new state had three legislative options: to retain the existing Franco-Dutch legislation, to revert to the pre-revolutionary laws, and to draft entirely new legislation. Rhetoric notwithstanding 17 , the French system remained in place and no new legislation was introduced, with the exception of a much lauded, very liberal constitution in 183118.

Many explanations have been offered for this choice, but the most important one seems to have been pragmatism: since 1795, a whole generation of lawyers had been studying and practising the French laws that moreover seemed better suited to the needs of business and commerce.

From a doctrinal point of view as well, the decision was understandable: one simply had to 'get on with business' and easy access to the French original sources and commentaries was readily available19. Moreover, the absence of copyright laws until 1852 allowed for inexpensive pirated editions20.

As a result, in the first years of independence there were no Belgian publications to speak of and one relied on French commentaries and magazines instead21. As for the overviews of jurisprudence, a few local judgements might sometimes be added as a supplement to the French-language main pages.

But even after the early years of independence, no national legal tradition was created, although, politically, Belgium lived up to its treaty promises of eternal neutrality 22 and incessantly reiterated its sovereignty vis-à-vis a dominating southern neighbour23.

Here again, the explanation might be pragmatic: society and business simply had no need for new codification, and the existing laws continued to serve their purpose well. The proof of this attitude lies in the fact that when an update was due, new laws were indeed passed (e.g., the Law on Mortgages and Securities 1857 and the Criminal Code 1867). However, François Laurent's 1885 project of revision of the civil code, encompassing 2,441 articles, was never enacted.

According to Heirbaut and Storme, this absence of a more all-encompassing national project was essentially motivated by 'pragmatic laziness, possibly the typical feature of Belgian law'24.

The nineteenth century nonetheless saw the creation of a large number of magazines, some of which have survived to this day25. Virtually all of these were specialised on the basis of location or theme. These reviews concentrated heavily on jurisprudence and revealed a 'fetishism of the written law' 26 that was typical of the predominant exegetical school of interpretation. The best-known was La Belgique judicaire (carrying the programmatic subtitle 'Gazette des tribunaux belges et étrangers'), published between 1842 and 194027.

In 1882, the prolific writer Edmond Picard and three befriended who were attorneys founded the Journal des Tribunaux, abbreviated 'JT'. At the outset, it was meant as a tool for dialogue with the public at large and therefore was published on four pages in newspaper format and sold at newspaper stalls throughout the city.

Whilst the JT and other francophone periodicals were often sympathetic to progressive causes such as legal aid; one man, one vote; and workers' emancipation 28 , there was less understanding of the Flemish demands for equality and the use of Dutch in judicial matters29. The result of this lack of support would be that the JT and others eventually ended up being the magazines of francophone Belgium rather than of the entire country.

The JT and other reviews did not limit themselves to the publication of judgements and the announcements of forthcoming events but also provided scholarly articles, even if in smaller numbers. The reason for this is easy to see: 1830-1914 was a time of remarkable...

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