Insights From the Historical German Codification Debate With Relevance for the Development of a Uniform Civil Code for India

Abstract

In this essay I present a summary of the historical German Codification debate between Thibaut and Savigny and discuss its relevance for the development of a Uniform Civil Code for India. In the nineteenth century the German jurists Thibaut and Savigny conducted a debate on the need for a common civil code for all German states. In this historical debate the problems inherent in drafting a civil code were addressed. While Thibaut suggested that a legislative assembly could formulate the civil code by applying democratic-like voting procedures, Savigny argued that this attempt was doomed to failure. In their debate the two opponents disagreed mainly about the nature and foundations of the law. My aim here is to investigate whether we can gain insights from (the study of) this historical German debate that are also relevant for the ongoing discussion on the Uniform Civil Code in India. Drawing comparisons between the historical and modern legal debates has already been fruitful in other contexts such as the debate on a European contract law and a European civil code. I argue that as in the historical German example, different conceptions of the law may also be relevant in today's debate on the Indian Uniform Civil Code, namely a positivistic conception of the law and a historical, i.e. organic conception of the law. Recognizing these different understandings of what law is and how it is brought about may therefore help to reconcile the opposing sides.

Keywords: Uniform Civil Code for India, Indian Uniform Civil Code, Historical German Codification Debate