PRAVNI TRANSPLANTI I SRBIJANSKI GRAĐANSKI ZAKONIK IZ 1844

Đorđević, Miroslav (2008) PRAVNI TRANSPLANTI I SRBIJANSKI GRAĐANSKI ZAKONIK IZ 1844. Strani pravni život (1). pp. 62-84. ISSN 0039-2138

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Abstract

Serbian Civil Code was enacted in the year of 1844, being the first civil code in Serbia and the fourth one to be enacted in Europe. It was a work of one man, Jovan Hadzic, Austrian scholar and Serb by origin. In 1837 during the autocratic reign of Prince Milos Obrenovic, he was invited to come to Serbia and help in writing civil code for Princedom of Serbia. Because of the very unstable political situation at that time, Hadzic’s work was delayed and eventually finished in 1842. Then it waited for almost two years to be revised and finally declared in 1844. In his work Hadzic used the Austrian Civil Code, and transplanted a large number of its legal solutions. He was widely criticized because of that action by Serbian scholars and law practitioners of that time (and later on by legal historians). But, free from all those critics, Serbian Civil Code has survived for a hundred years with only a few modifications. Today, in the fourth decade of expansion and wide acceptance of Alan Watson’s theory of “Legal transplants”, it is very interesting and challenging to face this theory with Serbian Civil Code of 1844. Deeper study of the Code shows that there are numerous transplants in it, mostly taken from the Austrian Civil Code, but also some were taken from French “Code Civil” and Roman law. Further studies of roots and reasons for these transplants tell us how Hadzic’s education and interests from his early youth took a large part in his judgment of what should be taken as a model for the Code. A closer look to some of the Serbian Civil Code’s articles demonstrates, as well, that some of the transplants were made unconsciously, without intention. Besides its many transplants, Serbian Civil Code is not a transplant in complete. There is noteworthy number of original norms that can be found in it. If we summarize everything, we may conclude that Serbian Civil Code undoubtedly supports Watson’s theory that Savigny’s claims about Volksgeist (spirit of the people) and law evolution are not always true in the case of law development. Law is often being developed by borrowings from the other systems of law. In this case, transplantation from more advanced systems (Austrian Civil Code in the first place) to less developed Serbian legal system was absolutely successful despite some critics. Time, as the supreme arbiter of values, has proven Serbian legal code to be a success - thanks to legal transplants.

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