Jak uczynić niemożliwe możliwym? Refleksje nad unifikacją prawa spadkowego w Szwajcarii w XIX

Maria Lewandowicz

Abstrakt

How to make the impossible possible? Reflections on the unification [see below] of inheritance law in 19th century Switzerland

This article is devoted to the issues around unification of inheritance law in Switzerland in the 19th century. Its objective is to demonstrate the problems confronting the Swiss legislature, the strategy adopted, and methods implemented for taking action in the face of having to reconcile diverse traditions, customs, and expectations under a single act. Eugen Huber, the main architect of the codification, strove to achieve a compromise that would allow the creation of a unified legal system based on the erstwhile legislative thought and technique, without having to forsake everything previously tried and trusted by this very diverse nation, grouped in small communities. He did so by pursuing the idea of universalization of testamentary succession, which had been marginalized in Swiss tradition since medieval times. The cantonal and common inheritance law which obtained till the time of codification was a mosaic of various laws, both with reference to the methods and the purposes of regulations. In this situation unification of the law through broadly understood self-regulating mechanisms of the market was probably the best choice. Implementing the institution of testamentary inheritance into the general legal system resulted in a situation whereby the society could, on the basis of common rules of conduct, independently determine its material situation in the event of a death, while remaining faithful to prevailing traditions and values. Unification through the introduction of common methods of conduct, and not through imposition of common principles and values, allowed the Swiss to harmonize apparently contradictory ideals of social cohesion and individualism, as well as to harmonize state interventionism with the right to self-determination.

Słowa kluczowe: inheritance, testaments, successions, Swiss civil code, unification

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