Optional Thesis
Final Honours School of Modern History
Oxford University
April 1997
Introduction
On 25 April 1947, Professor E.M. Meijers received from the Dutch government the task of drafting a new Civil Code. According to the official announcement, the existing code, introduced in 1838, was too old and no longer sufficiently in tune with developments in jurisprudence, and in society in general.
At a conference held in The Hague in 1938 to celebrate the hundredth anniversary of the old code, Meijers had been the only speaker to call for a complete recodification. The other speakers had been convinced that such an enormous project could never be completed, and either advocated partial reform or considered the judiciary capable of side-stepping the ambiguities and lacunae of the existing code. Paul Scholten, a colleague of Meijers at the University of Leiden, had said that “our Civil Code is a quiet possession,” and that and that a new code “only comes into existence out of political urgency.” The Minister of Justice, for his part, pointed out that he had more pressing concerns.
Clearly, something had happened between 1938 and 1947 to make a recodification more attractive and to create sufficient “political urgency”. The most obvious potential factor is the Second World War and the German occupation of the Netherlands between 1940 and 1945. This brought many changes to Dutch society, some more lasting than other, and certainly also to the administration of justice and popular confidence in the judicial process. The experience of occupation, the joy of liberation, and the urge for renewal which this brought with it in most of the recently-liberated countries of Western Europe, would seem, at first sight, to be sufficient cause for the sudden popularity of recodification: it is, after all, a form of renewal. It is thus the main object of this thesis to investigate whether the decision to recodify the Dutch Civil Code was the product of the ‘Sturm und Drang’ mentality of the liberation era, or whether Meijers’ appointment in 1947 simply marked the natural culmination of a long-running argument on which the war in fact had little impact. As it turned out, very little came of the hopes for radical changes to Dutch politics and society after the war, and it is tempting to see the recodification as an inexpensive gesture to those, including Queen Wilhelmina herself, who had hoped to see much more.
The actual process of recodification and the legal changes which it eventually brought about have been comprehensively and expertly examined in a recently published Ph.D. thesis by Dr Erik Florijn, Ontstaan en ontwikkeling van het nieuwe Burgerlijk Wetboek. In this thesis, I have therefore decided to concentrate entirely on the decision to recodify the civil code, rather than the long and somewhat tortuous process by which the new code was drafted and implemented. This thesis investigates the historical context in which the decision of April 1947 was taken and seeks to understand why it was taken after, rather than before, the Second World War, and how, if at all, the experience of war and occupation contributed to its genesis. In this analysis, the personal motives of Meijers and J.H. van Maarseveen, the Minister of Justice who appointed him, will be of paramount importance.
To see the decision to recodify the Civil Code as ‘Renewal’s only victory’ would be to imply that the instigators of that decision intended it to effect some sort of renewal. Whether this was indeed the case remains to be seen. This thesis is, in other words, a case study of the wider issue of the post-war renewal of society and politics desired by many people, particularly but in no sense exclusively in the Resistance, during the German occupation of Western Europe, and the degree to which these plans and hopes became reality. It also offers an insight in microcosm into the question of continuity and change, and the relation between them, between pre- and post-war European politics and society.
Most of the primary research for this thesis was done at the Ministry of Justice in The Hague, which has extensive archives on the recodification project (which still continues) and the immediate context of Meijers’ appointment. Further primary material was found in libraries in The Hague, Leiden and Oxford, and obtained from Dr Erik Florijn and Miss Clara C. Meijers. Thanks are due to these individuals and institutions for their help and advice.
Continue reading [PDF] – NOTE: This text has not been edited since 1997.
Some recent publications:
- Dirk Heirbaut, ‘Factors ensuring the success or failure of draft codifications. Some European experiences‘, in: L. Chen & C.H. van Rhee, Towards a Chinese Civil Code: Comparative and Historical Perspectives (2012), pp. 61-83
- Marjan Schwegman, ‘Cleveringa en Meijers: Een weerbarstige geschiedenis van getuigen en overleven’, Oratie 2017
- ‘Oorlogsgeschiedenis Eduard Meijers verdient plek in herdenkingscultuur’, november 2017
- ‘Vijftig weeffouten in het BW – Inleiding‘ (2017)
Some older sources, now available online:
- E.O.H.P. Florijn, Ontstaan en ontwikkeling van het nieuwe Burgerlijk Wetboek (1994)
- G.J. Veerman, ‘Van oude dingen die voorbijgaan—het BW 150 jaar’, Justitiële Verkenningen, 14/6, 1988
- E.H. Hondius, ‘Recodification of the law in the Netherlands: the New Civil Code experience‘, Netherlands international law review, 1982, vol. 29, issue 3, pp. 348 – 367