part vii • legal history and legal science • dag michalsen 334 tent of material law, as that of the numerous principles of the rule of law requirements. This was obvious in criminal law. Codification was thus both law and politics. Codification was initially a way to strengthen the legislators.13 As we know, eighteenth-century legislators were sceptical of lawyers and judges alike, and thought that codification might somehow tame them. However – and this was truly a paradox in the subsequent era of popular participation – the legislators increasingly depended on the legal experts, who in reality did the codifying. This tension between legislators – on the one side and the legal epistocracy on the other – is at the heart of any codification debate. It can still be heard in today’s laments about the unbalanced relationship between elected parliaments and the exhilarating speed of new complex legislation that by necessity is prepared by a growing legal bureaucracy.14 At this point I must stress an important dimension concerning my initial question about knowledge and time.A historical understanding of the emergence of both constitutions and codifications means we have to supersede the legal viewpoint; to understand their manifold functions we have to broaden our outlook on their historical background. The breakthrough of these legal forms – and their profound impact on legal systems – must be explained by the extraordinary era in history around 1800. From1776 to 1815 there was continuous turbulence, and from 1792 to 1815 an unbroken 25-year period of war in Europe. The dramatic upheavals – with numerous states of emergency – forced through the enactment of constitutions and made them into flexible tools for defining and organizing territories, peoples, and politics. How this affected constitutions today is something I will return to later.15 Codification had a some13 A central text to this effect is Jeremy Bentham’s General View of a Complete Code of Laws (1802). 14 For Legrand’s famous critique of the idea of large regional civil codes, see Pierre Legrand, ‘Civil Law Codification in Quebec: A case of Decivilianization’, Zeitschrift für Europäisches Privatrecht (1993), 574–91; for his theoretical approach, see id., Negative Comparative Law (London: Taylor & Francis, 2018). 15 Oren Gross & Fionnuala Aoláin, Law in Times of Crises: Emergency powers in theory and in practice (Cambridge: CUP, 2006).
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