Does the Law of Succession Reflect Cultural Differences? [1 ed.] 9789462748859, 9789462368569

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Maastricht Law Series

1 Reinhard Zimmermann

Does the Law of Succession Reflect Cultural Differences?

Maastricht Law Series This is the published version of the first Maastricht Private Law Lecture which was delivered by Reinhard Zimmermann on 27 January 2017. According to a widely held view, the law of succession is shaped by the cultural values of the society within which it prevails. Related to this is the perception that the law of succession is marked by great stability. It is thus resistant both to change and to legal harmonization. Comparative research, too, has traditionally been regarded as impractical and unrewarding. In his lecture Zimmermann challenges this view. He points to transsystemic constants as well as transsystemic tendencies of development, to outdated peculiarities and thinking patterns as well as to the benefits to be gained by critical reflection, and he analyses historical examples of the phenomenon of legal charge and the reception of rules and ideas. The focus is, throughout, on two central problem areas within the province of the law of succession: testamentary formalities and the intestate succession regime. Insofar as it obstructs or prevents a critical comparative discourse in this field, the ‘legal culture’ thesis, according to Zimmermann, must be rejected. About the author: Prof. dr. dr. h.c. mult. Reinhard Zimmermann is director at the Max Planck Institute for Comparative and International Private Law in Hamburg. Since 2011 he is also president of the Studienstiftung des deutschen Volkes. About the Maastricht Law Series: Created in 2018 by Boom juridisch and Eleven International Publishing in association with the Maastricht University Faculty of Law, the Maastricht Law Series publishes books on comparative, European and International law. The series builds upon the tradition of excellence in research at the Maastricht Faculty of Law, its research centers and the Ius Commune Research School. The Maastricht Law Series is a peer reviewed book series that allows researchers an excellent opportunity to showcase their work.

Does the Law of Succession Reflect Cultural Differences?

Does the Law of Succession Reflect Cultural Differences? Reinhard Zimmermann

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Table of Contents I

Introduction 1 The ‘legal-culture’ thesis 2 Intestate systems and testamentary formalities: Overview

II

The ‘legal-culture’ thesis questioned: Twelve observations 1 Legal families 2 Receptions 3 Legal unification 4 Legal change 5 Transsystemic constants 6 Transsystemic tendencies of development a In general b The rise of the surviving spouse 7 Outdated national peculiarities 8 Outdated transsystemic thinking patterns 9 Critical reflection 10 System-conformity 11 Simplicity 12 No discrimination

5 5 7 8 9 11 12 12 14 16 18 19 21 22 23

III

A balance sheet

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1 1 2

I

Introduction

1

The ‘legal-culture’ thesis

The law of succession is very widely held, today, to be characteristically moulded by the cultural values of the specific society within which it prevails. It is said to belong to the ‘life-blood’ of a nation’s cultural identity1 and to constitute a subject matter ‘deeply rooted in culture and religion’.2 Related to this is the perception that the law of succession is marked by ‘a tendency towards preservation’, i.e. by great stability.3 Also related to the ‘legal-culture thesis’ is the view that the law of succession, in a comparative perspective, is characterized by much more conspicuous differences than other areas of the law.4 While attention has pointedly been drawn to the fact that the law of contract does not belong to a country’s folklore,5 this appears to be different with regard to the law of succession: its peculiarities are to be preserved and protected like a people’s customs or costumes, and every attempt to harmonize or unify the different laws of succession is thus bound to appear like an act of vandalism. Moreover, even comparative research, guided by a spirit of critical evaluation, would appear to be impractical or perhaps impossible, should the differences between the modern systems indeed be due to cultural path-dependency.6

1 2

3 4

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Ernst A Kramer, ‘Der Stil der schweizerischen Privatrechtskodifikation – ein Modell für Europa?’, (2008) 72 RabelsZ 773, 788. Nina Dethloff, ‘Familien- und Erbrecht zwischen nationaler Rechtskultur, Vergemeinschaftung und Internationalität: Perspektiven für die Forschung’, (2007) 15 ZEuP 992, 994. Likewise pointing to socio-cultural ‘and sometimes also religious factors’ Sjef van Erp, ‘New Developments in Succession Law’, in General Reports of the XVIIth Congress of the International Academy of Comparative Law (2007) 73, 74. See also, e.g., Alain-Laurent Verbeke and Yves-Henri Leleu, ‘Harmonization of the Law of Succession in Europe’, in Arthur Hartkamp, Martijn Hesselink, Ewoud Hondius, Chantal Mak, and Edgar du Perron, Towards a European Civil Code (4th edition, 2011), 459-479 (462): ‘… the social problem involved [in the law of succession] is of a morally and culturally more delicate nature than contract law’. Karl H Neumayer, ‘Eigenartiges und Altertümliches aus dem vergleichenden Erbrecht’, in Mélanges Paul Piotet (1990) 485, 485; Anatol Dutta, Warum Erbrecht? (2014) 4 (‘Beständigkeit erbrechtlicher Regelungen’). Rembert Süß, ‘Das Erbrecht der Europäischen Union’, in Rembert Süß (ed.), Erbrecht in Europa (2nd edition 2008) 285, 302; the 3rd edition (2015) no longer contains this passage. But see Neumayer (n 3) 486 (who, in view of the great variety of configurations in detail finds the degree of correspondence in fundamental questions and general lines surprising); Inge Kroppenberg, ‘Succession Law’, in Jürgen Basedow, Klaus J Hopt, and Reinhard Zimmermann (eds.), The Max Planck Encyclopedia of European Private Law (MaxEuP) (2012) 1617, 1620 (‘The approaches are varied but probably do not reflect any fundamental differences … between different cultures. They are rather alternative solutions to the same central regulatory concerns and transnational social challenges that are faced by all succession law regimes’). See, e.g., Ole Lando, ‘Liberal, Social and “Ethical” Justice in European Contract Law’, (2006) 43 Common Market Law Review 817, 825-826; most recently, see Ole Lando, ‘Unification of Patrimonial Laws Governing International Trade’, (2016) 24 European Review of Private Law 501, 510. Rather than to ‘accidental’ peculiarities of the national legal systems, the elimination of which Edouard Lambert described as the central task of comparative legal scholarship at the International Congress on

1

Does the Law of Succession Reflect Cultural Differences? This explains why the law of succession has for a considerable time led the modest existence of a neglected Cinderella. Yet, considering a number of recent studies on various aspects of the law of succession,7 Cinderella seems to be on the verge of turning into a beautiful princess.8 Moreover, occasionally even a Europeanization, or harmonization reaching beyond Europe, has been held to be desirable.9 It thus appears to be appropriate to investigate whether, and if so, to what extent and in which respect the law of succession is ‘culturally impregnated’. This is what the present lecture is about.

2

Intestate systems and testamentary formalities: Overview

It is impossible, within the confines of this lecture, to survey the entire province of succession law. The focus today will, therefore, be on two, albeit central, problem areas within that province: testamentary formalities and the intestate succession regime.10 Both of

Comparative Law in Paris: Procès-Verbaux des Séances et Documents, Tenu à Paris du 31 juillet au 4 août vol. 1 (1900) 25, 38. 7 For a recent monograph on the functions of the law of succession from a comparative and interdisciplinary perspective, see Dutta (n 3); a comparative sociology of the law of succession has been written by Jens Beckert, Unverdientes Vermögen (2004). On testamentary formalities und intestate succession regimes, see the works referred to in n 10; on testamentary freedom, see Miriam Anderson and Esther Arroyo i Amayuelas (eds.), The Law of Succession: Testamentary Freedom – European Perspectives (2011), and Reinhard Zimmermann (ed.), Freedom of Testation / Testierfreiheit (2012); on the right to a compulsory portion, see Anne Röthel (ed.), Reformfragen des Pflichtteilsrechts (2007), and Christoph Castelein, René Foqué, and Alain Verbeke (eds.), Imperative Inheritance Law in a Late-Modern Society (2009). See further the three chapters (of nine that were planned) of vol. 5, ‘Succession’, of the International Encyclopedia of Comparative Law (2002); Alexandra Braun and Anne Röthel (eds.), Passing Wealth on Death: Will-Substitutes in Comparative Perspective (2016); Birke Häcker and Charles Mitchell (eds.), Current Issues in Succession Law (2016); Gregor Christandl, Selbstbestimmtes Testieren in einer alternden Gesellschaft (2016); Jan Peter Schmidt ‘Transfer of Property on Death and Creditor Protection: The Meaning and Role of “Universal Succession”’, in: Nothing so Practical as a Good Theory: Festschrift for George L Gretton (2017) 323-337. 8 For an overview of the current state of the discipline, see Marius J de Waal, ‘Comparative Succession Law’, in Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2nd edition, 2018), Chapter 8, text following n 9 (‘… it would not perhaps be wrong to refer to something of a blossoming time in this area of comparative law.’ In the first edition of that work the author had still stated that ‘the law of succession is certainly lagging behind many (if not most) other areas of private law’); see also previously Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann, Exploring the Law of Succession: Studies National, Historical and Comparative (2007). 9 See, e.g., Dieter Leipold, ‘Europa und das Erbrecht’, in Festschrift für Alfred Söllner (2000) 647-668; Walter Pintens, ‘Die Europäisierung des Erbrechts’, (2001) 9 ZEuP 628-648; Kroppenberg (n 4) 1620; Reinhard Zimmermann, ‘The Present State of European Private Law’, (2009) 57 American Journal of Comparative Law 479, 508-510. There is now a large body of literature dealing with the EU Succession Regulation (no 650/2012); see, eg, Anatol Dutta, ‘Succession law (International)’, in MaxEuP (n 4) 1621-1627; De Waal (n 8) fn 66. 10 For detailed accounts, see Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Testamentary Formalities (2011); Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Intestate Succession (2015). In some of the following footnotes reference will also be made to a recent study on

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I

Introduction

them appear to be characterized by differences which are usually regarded as deeply entrenched. With regard to the intestate succession regimes we have to look, in the first place, at the order in which the deceased’s (blood-)relatives are called to succeed.11 Leaving aside a number of variations in detail, a distinction can be drawn between the French system, the three-line system, and the parentelic system. The French and the three-line systems constitute derivatives of the Justinianic succession scheme as laid down in Novels 118 and 127, 1.12 In the one case, three ‘lines’ are clearly distinguished – the estate first moves downwards, i.e. to the descendants, then, if there are no descendants, upwards, i.e. to the ascendants and, finally, if there are neither descendants nor ascendants, sideways, i.e. to the collateral relatives. Parents and siblings, therefore, never inherit at the same time. This is different in the French system where, again, in the first place the descendants inherit, secondly parents and siblings, with the siblings, if necessary, being ‘represented’ by their children (privileged ascendants and privileged collateral relatives), thirdly other, i.e. non-privileged, ascendants, and fourthly other, i.e. non-privileged, collateral relatives. The three-line system prevails in Spain, Portugal, and Latin America, while the French system not only applies in France (also after the reforms of 2001 and 2006), but has also decisively influenced Italian law and the Dutch law of 1838. According to the parentelic system, descendants are heirs of the first class, while the deceased’s parents and their descendants constitute a second class, the deceased’s grandparents and their descendants a third class (with, sometimes, further classes being added along to the same lines): this, at least in principle, represents the legal position in Austria, Germany, the Nordic countries, and South Africa, in attenuated form also in the Netherlands (2003), Scotland, England, Australia, and in many US-American states. The most delicate challenge for a legal system in intestate succession matters is the coordination of the succession right of the deceased’s (blood-)relatives, particularly his des-

the rules regulating the order of succession in cases where it is impossible to determine the order of death of two or more persons: Reinhard Zimmermann and Jakob Gleim, ‘Überlebens- oder Kommorientenvermutung bei “gemeinsamer Kalamität”?’, (2018) 155 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 527-581. 11 For details, see Reinhard Zimmermann, ‘Das Verwandtenerbrecht in historisch-vergleichender Perspektive’, (2015) 79 RabelsZ 768-821; Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann, ‘Intestate Succession in Historical and Comparative Perspective’, in Reid, de Waal, and Zimmermann, Intestate Succession (n 10) 442, 449-477. 12 For which, see Thomas Rüfner, ‘Intestate Succession in Roman Law’, in Reid, de Waal and Zimmermann, Intestate Succession (n 10) 1, 26-29.

3

Does the Law of Succession Reflect Cultural Differences? cendants, with that of the surviving spouse.13 While in a number of countries she is given a certain share in the estate (e.g. one quarter, one third, one half, or a child’s share), in others she is given a kind of preferential legacy in the form of a fixed sum of money as well as the family home, and occasionally even the entire estate.14 As far as the testamentary formalities are concerned, we find – once again with many variations in detail – three basic types: the witnessed will, the notarial will, and the holograph will.15 In what follows, the ‘legal culture thesis’ is challenged in respect of these problem areas from a number of different perspectives.16 It must, however, be emphasized at the outset that we are dealing exclusively with systems shaped by the Western legal tradition. For a comparison with the law prevailing in Islamic countries, two contributions by Nadjma Yassari provide an excellent point of departure.17

13 Sometimes this is even considered to be one of the most complex problems within the law of succession: Helmut Coing, ‘Empfiehlt es sich, das gesetzliche Erbrecht und Pflichtteilsrecht neu zu regeln?’, in Verhandlungen des 49. Deutschen Juristentages vol. 1 (1972) A1, A38; Inge Kroppenberg, ‘Succession upon Death’, in MaxEuP (n 4) 1627, 1630. 14 For details, see Reinhard Zimmermann, ‘Das Ehegattenerbrecht in historisch-vergleichender Perspektive’, (2016) 80 RabelsZ 39-92; Reid, De Waal, and Zimmermann (n 11) 489-503. 15 For details, see Reinhard Zimmermann, ‘Testamentsformen: “Willkür” oder Ausdruck einer Rechtskultur?’, (2012) 76 RabelsZ, 473; Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann, ’Testamentary Formalities in Historical and Comparative Perspective’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 432-471. 16 This lecture is based mainly on the three essays published in RabelsZ which are cited in n 11, 14 and 15, and on the two books cited in n 10. It analyzes the material presented in these publications against the background of the ‘legal culture thesis’. An earlier German version has appeared in [2016] Juristenzeitung 321332. 17 Nadjma Yassari, ‘Testamentary Formalities in Islamic Law and their Reception in the Modern Laws of Islamic Countries’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 282-304; ‘Intestate Succession in Islamic Countries’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 421-441.

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1

The ‘legal-culture’ thesis questioned: Twelve Observations Legal families

Modern legal systems are traditionally subdivided into a few large groups: ‘legal families’, determined by certain elements representing their specific ‘style’.18 The legal ‘style’ of a family can be taken as an expression and constituent part of a certain legal culture. Thus, one should expect the concept of ‘legal families’ to prove its worth especially with regard to the law of succession. However, the rules on testamentary formalities provide a striking contrast. At first blush, there appears to be a sharp division between the common law and the countries of the continental European, i.e. civilian, tradition. For since the Wills Act of 1837 the English common law and the legal systems influenced by it (Australia, New Zealand, the United States, and South Africa, though not Scotland) are regarded as strongholds of the witnessed will.19 But then it has to be remembered that, as a result of the influence of the ecclesiastical jurisdiction in testamentary affairs, before the enactment of the Wills Act the holograph will had been recognized for a long time.20 Today, too, more than half of the states in the United States accept witnessed wills as well as holograph wills.21 Conversely, the witnessed will was, from the Middle Ages onwards, the only regular private will in the tradition of the continental ius commune;22 in Germany it was replaced by the holograph will only with the entry into force of the BGB and became marginalized as ‘emergency will’.23 As a regular private will the witnessed will survives in

18 Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (3rd edition, 1998) 63-319; Hein Kötz, ‘Abschied von der Rechtskreislehre?’, (1998) 6 ZEuP 493-505; H Patrick Glenn, ‘Comparative Legal Families and Comparative Legal Traditions’, in Reimann and Zimmermann (n 8) Chapter 15; Hein Kötz, ‘Legal Families’, in MaxEuP (n 4) 1063 f; Uwe Kischel, Rechtsvergleichung (2015) 217-242. 19 For details, see the contributions by Roger Kerridge, Nicola Peart, Ronald J Scalise, Marius J de Waal, and Kenneth GC Reid, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 305-328, 329-356, 357-380, 381-403 and 404-431. 20 Richard H Helmholz, The Oxford History of the Laws of England, vol. I (2004) 440 f; Birke Häcker, ‘Testamentsformen in England – unter besonderer Berücksichtigung ihrer historischen Entwicklung’, in Mathias Schmoeckel and Gerhard Otte (ed.), Europäische Testamentsformen (2011) 105, 114. 21 Ronald J. Scalise, ‘Testamentary Formalities in the United States of America’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 357, 370-373. 22 This was the Justinianic testamentum tripertitum (Inst 2, 10, 3) which could be made orally (testamentum nuncupativum) or in writing (in scriptis); see Helmut Coing, Europäisches Privatrecht, vol. 1 (1985) 568 f; Nils Jansen, ‘Testamentary Formalities in Early Modern Europe’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 27, 37-39. 23 Reinhard Zimmermann, ‘Testamentary Formalities in Germany’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 175, 176, 212-218.

5

Does the Law of Succession Reflect Cultural Differences? Austria (also after the reform of 2017);24 in Brazil it is the only (though not much used) type of private will.25 The borderlines drawn by the concept of legal families are blurred even further if we turn our attention to the legal systems in the civilian tradition. Paraguay, Panama, and Peru recognize the holograph will, while Uruguay, Columbia, and Brazil do not.26 That difference can hardly be attributed to differences in legal culture. Spanish law accepts the holograph will in contrast to Portuguese law;27 and yet, both legal systems are taken to be part of the same legal family.28 Germany, since the enactment of the BGB, has two types of regular will, the holograph and the notarial will,29 while the making of a regular will in the Netherlands always requires the involvement of a notary public.30 Oddly, the holograph will was introduced into German law in 190031 while it was abolished in the Netherlands in 1838 (and not re-introduced in 2003).32 No cultural path-dependency is apparent from these decisions.33 The dissemination of intestate succession systems does not follow the lines drawn by the legal-family doctrine either. The three-line system prevails in Spain34 but not in Italy,35 Dutch law no longer follows the French system,36 and the parentelic system determines

24 Art 579 ABGB; for a detailed account, see Christiane Wendehorst, ‘Testamentary Formalities in Austria’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 221, 225 f, 240-245. 25 Jan Peter Schmidt, ‘Testamentary Formalities in Latin America with particular reference to Brasil’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 96, 106-108. 26 See Schmidt (n 25) 110; Karl August Prinz von Sachsen Gessaphe, ‘Das eigenhändige Testament in Europa und Lateinamerika: eine riskante oder sichere Testamentsform?’, in Mathias Schmoeckel (ed), Das holographische Testament (2015) 88, 128-141. 27 On Portugal, see Schmidt (n 25) 108; on Spain, see Sergio Cámara Lapuente, ‘Testamentary Formalities in Spain’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 71, 83-85. 28 Zweigert and Kötz (n 18) 107-109. 29 § 2231 BGB; for a detailed account, see Zimmermann (n 23) 197-212. 30 This applies to both the ‘openbaar testament’ and the ‘depot-testament’; for details, see Wilbert D Kolkman, ‘Testamentary Formalities in the Netherlands’, in Reid, De Waal, and Zimmermann, Testamentary Formalities (n 10) 142, 147-156. 31 See below, text on nn 44 ff. 32 See Kolkman (n 30) 153 f (‘There were intense discussions in parliamentary circles about this deviation from the provisions of the Code civil …’). 33 For an overview of the distribution of the holograph will, see Reid, De Waal, and Zimmermann (n 15) 437444; Prinz von Sachsen Gessaphe (n 26) 99-141. 34 See Sergio Cámara Lapuente, ‘Intestate Succession in Spain’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 96-117. 35 See Alexandra Braun, ‘Intestate Succession in Italy’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 67-95. 36 See Wilbert D Kolkman, ‘Intestate Succession in the Netherlands’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 224, 229 f.

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The ‘legal-culture’ thesis questioned: Twelve Observations

the intestate succession order in Austria and Germany37 but also, for example, in the Nordic states.38

2

Receptions

Related to what has just been said is another point: the phenomenon of legal transplants, or receptions.39 The holograph will had been recognized in postclassical Roman law for a few decades but it then disappeared.40 It resurfaced again in the Coutumes of Northern France in the course of the 16th century.41 Via the Ordonnances of the 17th and 18th centuries it made its way into the Code civil42 and thus also into the parts of Germany that were governed or influenced by French law.43 But the idea to introduce the holograph will into the BGB44 was rejected at first – even if it was sometimes claimed, as Gottfried von Schmitt, the author of the Preliminary Draft concerning the law of succession, noted with a touch of scepticism, that the progress of the general education had turned the holograph will into a convenient instrument for large parts of the population.45 It was only in 1896, and in the course of the deliberations of the so-called XIIth Commission of the Imperial Parliament, that, led by the deputies from Baden and Bavaria, the decisive swing of opinion occurred.46 In the plenary meeting of the Reichstag of 27 June 1896 the Committee’s recommendation, taken on the basis of a vote of 12 : 8, led to an extended and also partly emotional debate.47 While it was reported that ‘general rejoicing’ had burst forth when news of the decision to introduce the holograph will into 37 See Christiane Wendehorst, ‘Intestate Succession in Austria’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 159-180; Reinhard Zimmermann, ‘Intestate Succession in Germany’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 181-223. 38 See Jens M Scherpe, ‘Intestate Succession in the Nordic Countries’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 307-322. 39 See generally Michele Graziadei, ‘Comparative Law, Legal Transplants, and Receptions’, in Reimann and Zimmermann (n 8) Chapter 16; Gebhard Rehm, ‘Reception’, in MaxEuP (n 4) 1415-1420. 40 Novellae Valentiniani 21, 1; see Monika Beutgen, Die Geschichte der Form des eigenhändigen Testaments (1992) 11-16; Thomas Rüfner, ‘Testamentary Formalities in Roman Law’, in Reid, de Waal, and Zimmermann, Intestate Succession (n 10) 1, 19. 41 Beutgen (n 40) 39-47; Coing (n 22) 572; Olivier Descamps, ‘Les formes testamentaires de l’époche médiévale jusqu’à la période présente en France’, in Mathias Schmoeckel and Gerhard Otte (eds.), Europäische Testamentsformen (2011) 47, 52-57. 42 Beutgen (n 40) 39-47; Descamps (n 41) 60-68, 70-71. 43 Eike Götz Hosemann, ‘Von den Bedenken gegen das Testieren “im stillen Kämmerlein”: Die Geschichte des eigenhändigen Testaments in Deutschland, dargestellt aus Anlass des 200. Geburtstags des Badischen Landrechts’, [2010] Rheinische Notar-Zeitschrift 520-529. 44 For what follows, see Zimmermann (n 23) 182-187. 45 Gottfried von Schmitt, Entwurf des Rechtes der Erbfolge für das Deutsche Reich (1879), reprinted in Werner Schubert (ed), Die Vorlagen der Redaktoren für die erste Kommission zur Ausarbeitung des Entwurfs eines Bürgerlichen Gesetzbuches, Erbrecht I (1984) 519. 46 ‘Bericht der XII. Kommission’, in Benno Mugdan (ed), Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, vol. 5 (1899) 878, 886-888. 47 ‘Zweite Berathung im Plenum des Reichstages’, in Mugdan (n 46) 891, 893-903.

7

Does the Law of Succession Reflect Cultural Differences? the BGB had reached the Prussian Rhine-Province,48 ‘the greatest distress’ had been caused by the same piece of news in all levels and classes of society in Northern Germany.49 Curious cultural clichés were invoked. While it may be correct, it was said, that those living in the Rhineland or in Alsace-Lorraine are inclined to make their will in good time, and to do so prudently and free from external influence, the same cannot be said about the northern Germans: they were generally said to be reluctant to make a will, possibly because they believed that a death would occur within the family of someone who had made a will.50 From today’s point of view this all sounds rather bizarre. How many people still remember that the holograph will was an import from France? The opportunity to make a will in one’s own quiet chamber and without having to call in witnesses is regarded very widely as a self-evident expression of a German testator’s private autonomy. And if the introduction of the holograph will, at first, turned out not to be a success story,51 this was because excessive caution overstretched the requirements for what was to constitute a valid holograph will. After an almost endless series of legal disputes the matter was put right by the Testamentsgesetz (Wills Act) of 1938.52

3

Legal unification

The story of the introduction of the holograph will as the only regular private will in Germany can also be told as the success story of a legal unification – within Germany – of the law of succession. This is remarkable in view of the susceptibility of the German national character, as perceived by Gottfried von Schmitt, ‘to a great diversity of distinctive forms’, as well as of the fact that just about all conceivable forms of will making were recognized in some or other part of the Empire.53 Everywhere, therefore, people had become used to the forms prevailing in whatever part of the Empire they lived. Nonetheless, von Schmitt argued in a spirit of pragmatism, considerations of this kind find certain limits in objective exigencies.54

48 49 50 51

von Cuny, in Berathung (n 47) 898. Görtz, in Berathung (n 47) 901; see also von Buchka, in Berathung (n 47) 894 (‘schweres Unglück’). Görtz, in Berathung (n 47) 901. For a detailed account, see Fritz von Hippel, Formalismus und Rechtsdogmatik (1935); for an overview, see Zimmermann (n 23) 187-192. 52 For details, see Zimmermann (n 23) 193-197. On the legal position today, see Zimmermann (n 23) 197-205; Anne Röthel, ‘Form und Privatautonomie: Blicke auf das eigenhändige Testament’, in Schmoeckel (n 26) 33, 36-42. 53 von Schmitt (n 45) 516. 54 von Schmitt (n 45) 690.

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The ‘legal-culture’ thesis questioned: Twelve Observations

The introduction of the parentelic system constituted an equally impressive legal unification achieved with the enactment of the BGB.55 The decisive decision, in that respect, was taken by von Schmitt in his Preliminary Draft; in the further deliberations leading up to the BGB it was never questioned. ‘Every German territory, however small, has its own characteristic intestate succession regime’, von Schmitt had stated;56 but he had also stated that this diversity was based on a thoughtless and mechanical perpetuation of tradition and had no real foundation in a people’s collective legal intuitions, or culture.57 If von Schmitt, after a careful and admirably comprehensive analysis of the respective advantages and disadvantages of the contemporary succession systems, ultimately came down in favour of the parentelic system, this was, at first glance, surprising. After all, the parentelic system had previously prevailed only in some small places at the northern and southern margins of the Empire.58 But this meant that it was new not only to some, but to all, of the major German territories and that the inhabitants of all of them, rather than only of some of them, had to familiarize themselves with it. The lack of partiality inherent in this decision undoubtedly contributed to the general acceptance of the parentelic system. In actual fact it was taken over from Austrian law where it had determined intestate succession for about a century, and had done so in an entirely satisfactory manner.59 Thus, once again, the act of legal unification also constituted a remarkable instance of a legal reception.

4

Legal change

Just as the other great 19th century codifications, the BGB bears characteristic traits of a restatement:60 for its draftsmen aimed at setting out, incorporating, and consolidating ‘the achievements of centuries’.61 The codification was part of a tradition largely shaped by legal scholarship. However, as far as testamentary formalities and the intestate succession scheme are concerned, this is different. We are dealing here with new sets of rules which required considerable readjustment. This may have to do with the fact that the

55 56 57 58

For a detailed account, see Zimmermann (n 37) 184-190. von Schmitt (n 45) 690. von Schmitt (n 45) 690. In a few small territories ‘in the highest north and the deepest south’ (Schleswig and Bavaria, as far as the Austrian ‘Erbfolgepatent’ (Succession Regulation) of 1786 was still in force): von Schmitt (n 45) 691. 59 See Wendehorst (n 37) 163-165. 60 Reinhard Zimmermann, ‘Das Bürgerliche Gesetzbuch und die Entwicklung des Bürgerlichen Rechts’, in Mathias Schmoeckel, Joachim Rückert, and Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, vol. 1 (2003) no 20. For the Code civil and the ABGB, see James Gordley, ‘Myths of the French Civil Code’, (1994) 42 American Journal of Comparative Law 459, 460-483; Georg E. Kodek, ‘200 Jahre Allgemeines Bürgerliches Gesetzbuch – das ABGB im Wandel der Zeit’, [2011] Österreichische Juristenzeitung 490-498. 61 Bernhard Windscheid, Die geschichtliche Schule in der Rechtswissenschaft (1878), reprinted in Paul Oertmann (ed), Gesammelte Reden und Abhandlungen (1904) 66, 75.

9

Does the Law of Succession Reflect Cultural Differences? Historical School of law in 19th century Germany took these aspects of the law – in marked contrast to the modern legal-culture thesis – to be ill-suited to an ‘organically progressive legal science’ but to require determination, one way or the other, by the legislature.62 Whether a will must be witnessed by three, five, or seven persons, or may be made without any witnesses, as long as it is in the testator’s own hand-writing, or whether the surviving spouse, next to descendants should receive one quarter, one third, or a child’s share, plus possibly a preferential right concerning all objects belonging to the marital household: these are questions that can hardly be tackled by means of doctrinal scholarship. The law of succession, in 1900, turned out, in this respect, to be less resistant to change than is usually suggested.63 But also more generally it is noticeable that the law of succession has been changed relatively frequently: be it in the course of a comprehensive re-codification of private law (Italy 1942, Portugal 1966), a re-codification of the law of succession (France 2001/2006, the Netherlands 2003, Catalonia 1993 and, again, 2009, Austria 2017),64 or be it by individual legislative reforms. Germany, as far as testamentary formalities are concerned, saw far-reaching legislative reforms in 1938 and 1969 and less significant ones in 1953 and 2002.65 In Austria, even before the reform of 2017 the relevant provisions were changed five times in the course of the 19th and 20th centuries.66 The intestate succession rights of the surviving spouse in France were reformed in 1891, 1930, 1957/58 and 2001/2006, in Austria in 1914, 1972, 1989, and 2004, in England in 1925, 1952, and 2014, and in Norway in 1851, 1854, 1937, and 1972.67 Only the intestate succession rights of the deceased’s (blood-)relatives have remained comparatively very stable. In the course of the 20th century only the Netherlands has changed its system: it has moved from the French to a modified parentelic system.68 Reforms in other countries have been less far-reaching; they were limited to specific adjustments within a given system. The unqualified statement that the law of succession is ‘static’, and so deeply entrenched in a country’s culture that it is resistant to change, thus appears to be, at least, exaggerated.

62 See the references in (2012) 76 RabelsZ 505-507. 63 Above n 3; see also Dieter Leipold, ‘Wandlungen in den Grundlagen des Erbrechts?’, (1980) 180 AcP 160, 211; Sebastian Herrler, ‘Wills’, in MaxEuP (n 4) 1773, 1774. 64 The Austrian National Council enacted the relevant statute on 7 July 2015; it entered into force partly on 17 August 2015 and partly on 1 January 2017. 65 See Zimmermann (n 23) 193-211. 66 For details, see Wendehorst (n 24) 235-237. 67 Overview in (2016) 80 RabelsZ 82 f. 68 See above n 36.

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Transsystemic constants

Remarkable, in the present context, is also the existence of certain constant features determining the law of succession everywhere. So, the legal systems in the Western world all draw a distinction between testate and intestate succession; they are in agreement that the rules on intestate succession apply only if the testator has not determined otherwise; and they hold these rules to be based on the idea of family succession. The legislator thus has to establish the sequence in which the deceased’s family members are called to succeed. Very often, in this respect, reference is made across the legal systems to the presumed intention of a typical deceased in order to justify certain legal rules.69 This idea can be traced to early modern Natural law doctrine. Thus, for example, Hugo Grotius asserted: ‘Successio ab intestato quae dicitur, posito dominio, remota omni lege civili, ex coniectura voluntatis naturam habet originem.’70 There are, however, common and constant features beyond these basics. Thus, it is recognized just about everywhere that, as far as the deceased’s (blood-)relatives are concerned, the estate should, in the first place, go to his descendants.71 The Glossa Ordinaria in this context referred to Galatians 4, 7 where the Apostle Paul states: ‘So you are no longer a slave, but a son; and since you are a son, you are also an heir through God’.72 For Joachim Georg Darjes, this was a result of the fact that parents are ‘per naturam obligati …, ut filios filiasque maxime amant’.73 Another example is provided by the idea that children, though inheriting per capita, also inherit as heads of the different family branches created by them – with the result that a descendant surviving the deceased excludes from the succession all descendants related to the deceased through him. If a descendant does not survive the deceased, his share does not accrue to the other descendants, but he is replaced by the descendants related to the deceased through him. A child of the deceased can thus inherit together with his sibling’s

69 See Reid, De Waal, and Zimmermann (n 11) 445-448; see also Braun (n 35) 68-71. 70 Hugo Grotius, De iure belli ac pacis libri tres, photomechanical reprint of the edition Leiden 1939 (1993) Lib II, Cap VII, III. See also Christian Wolff, Jus naturae methodo scientifica pertractatum (Halae Magdeburgicae, 1747) Pars VII, Cap. V (§ 1031 and § 1032): ‘[S]uccessio ab intestato nititur praesumta defuncti voluntate, seu qui ab intestato haeres est, ex praesumta defuncti voluntate succedit’ and ‘Successio ab intestato est ex testamento veluti tacito successio’. 71 From the perspective of Natural Law, see Samuel Pufendorf, De jure naturae et gentium (Francofurti ad Moenum, 1694) Lib IV, Cap XI, § 3: ‘In successionibus igitur ex intestato et ipsa duce ratione, et consensu omnium, quas novimus, gentium liberi praeferuntur reliquis etiam ipsis parentibus.’ 72 Gloss Parentibus on Authenticorum Collatio IX, Tit I, Cap I, in Corpus Juris Civilis cum commentariis Accursii, vol. 5 (Lugduni, 1627) col 515. – On Galatians 4, 7, Romans 8, 17, Hebrews 6, 12 and generally the conception of man as God’s heir, see Reinhard Zimmermann, ‘”Sind wir aber Kinder, so sind wir auch Erben, nämlich Gottes Erben und Miterben Christi”: Zur Bedeutung der Rede von Erbe und Erbschaft in der Bibel’, in Zivilrecht und Steuerrecht, Erwerb von Todes wegen und Schenkung: Festschrift für Jens Peter Meincke (2015) 435-450. 73 Joachim Georg Darjes, Institutiones Iurisprudentiae Universalis (3rd edition, Ienae, 1748) § 644.

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Does the Law of Succession Reflect Cultural Differences? children (ie. his nephews and nieces) provided the sibling does not inherit himself – or even with his sibling’s grandchildren, provided the sibling and his children do not inherit.74

6

a

Transsystemic tendencies of development

In general

In addition to such features common to all modern succession systems there are certain transsystemic tendencies of legal development. Here one may think of the liberalization of the testamentary formalities across the Western world.75 Thus, the additional requirement of witnesses with regard to notarial wills was abolished in 1938 in Germany,76 in 1991 in Spain,77 and in 2003 in the Netherlands.78 The requirements for a holograph will (the will must be written by the testator ‘in his own hand’, and it must be ‘signed’ by the testator) have in many jurisdictions been interpreted more and more leniently.79 In some jurisdictions (Italy, the Netherlands) the non-compliance with certain form requirements no longer invalidates a will but only renders it voidable.80 But there are also other paths that have been pursued in order to restrict the range of cases where a will must be held to be invalid because it lacks the required form.81 Particularly remarkable is a development which has caught on in the United States, Australia, New Zealand, and South Africa (though not in England or Scotland): The courts have been empowered under certain circumstances, differing across the various jurisdictions, to regard a will as valid in spite of non-compliance with certain form requirements (‘condonation’, ‘dispensing power’, ‘harmless error rule’).82

74 This was the position already in Justinianic law; see Novel 118, 1; for a detailed account, see Christian Friedrich Glück, Hermeneutisch-systematische Erläuterung der Lehre von der Intestaterbfolge nach den Grundlagen des ältern und neuern Römischen Rechts (Erlangen, 1803) §§ 94-111. 75 See Reid, De Waal, and Zimmermann (n 15) 462-468. 76 Zimmermann (n 23) 207 f. 77 Cámara Lapuente (n 27) 87 f. 78 Kolkman (n 30) 168-170. 79 On the developments in Germany, see Zimmermann (n 23) 197-205. 80 Alexandra Braun, ‘Testamentary Formalities in Italy’, in Reid, de Waal, and Zimmermann, Testamentary Formalities (n 10) 120, 128, 138; Kolkman (n 30) 170. 81 A doctrine akin to estoppel is reported to exist in Italy by Braun (n 80) 139 and in Austria by Wendehorst (n 24) 251. On the doctrine of conversion in this context see, e.g., Walter Pintens, ‘Testamentary Formalities in France and Belgium’, in Reid, de Waal, and Zimmermann, Testamentary Formalities (n 10) 50, 56; Braun (n 80) 139; Wendehorst (n 24) 251; Zimmermann (n 23) 177. 82 For details, see Nicola Peart, ‘Testamentary Formalities in Australia and New Zealand’, in Reid, de Waal, and Zimmermann, Testamentary Formalities (n 10) 329, 349-355; Scalise (n 21) 374-376; Marius J de Waal, ‘Testamentary Formalities in South Africa’, in Reid, de Waal, and Zimmermann, Testamentary Formalities (n 10) 381, 395-400; see further Marius J de Waal, ‘A court’s power to condone non-compliance with

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An equally transsystemic tendency is the restriction of the idea of family succession with regard to collateral relatives. Such restriction, which did not conform with Justinianic law,83 had already been recognized by a number of the classical codifications. Over the course of time, they were tightened up: in France and in the Netherlands from relatives of the 12th degree to the 6th degree,84 in Italy from the 10th to the 6th degree,85 and in Spain from the 6th to the 4th degree.86 The Latin American codifications tend to include collateral relatives up to the 4th degree, sometimes the 6th degree, in their intestate succession systems.87 Austrian law had originally taken into account all relatives up to the 6th parentela but now restricts the range of intestate heirs to the first three parentelae plus great grandparents (but not their descendants).88 England and the Nordic countries do not even regard cousins as sufficiently closely related to the deceased.89 The survival of the principle of a completely unlimited family succession in Germany,90 South Africa,91 and Scotland92 is an outdated idiosyncrasy. In Germany, it has led to the blossoming of a trade of professional ‘heir-hunters’.93 The removal of the discrimination, with regard to their intestate succession rights, against children that have been born outside of an existing marriage has also been a long, and sometimes tortuous, process encompassing all Western legal systems. In some of them it

83

84

85 86

87 88 89 90 91 92 93

testamentary formalities (the “dispensing power”): the South African and Australian experiences’, in Confronting the Frontiers of Family and Succession Law – Liber Amicorum Walter Pintens, vol. 1 (2012) 417-436. Justinians Novels 118 and 127, 1 did not mention a restriction; therefore apparently collateral relatives of the fourth class were considered in infinitum; see today Rüfner (n 12) 27. In a tradition reaching back to the Glossators it was, however, argued that only collateral relatives up to the tenth degree were able to inherit: gloss Cognatos on Novel 118, 3, in Corpus Juris Civilis cum commentariis Accursii, vol. 5 (n 72) col. 518; Rüfner (n 12) 30. On the controversy see, e.g., Glück (n 74) 429 (§ 133); Johannes Voet, Commentarius ad Pandectas (Parisiis, 1829) Appendix to Lib XXXVIII, Tit XVII, XXII. For France, see Art 755 Code civil (1804), today Art 745 Code civil (2001/2006); for the Netherlands, see Art 908 BW (1838), today Art 4:12(3) BW (2003), the latter provision also excluding great-great-grandparents (and more remote relatives). Art 742(2) Codice civile (1865), Art 572(2) Codice civile (1942). Art 955 Código civil (1889); today Art 954 Código civil. See also the comparative overview by Karl Heinz Neumayer, ‘Intestate Succession’, in International Encyclopedia of Comparative Law, vol. V/3: Succession (ed. Karl Heinz Neumayer) nos 49, 58; Dieter Henrich, ‘Familienerbfolge und Testierfreiheit im europäischen Vergleich’, in Dieter Henrich and Dieter Schwab (eds.), Familienerbrecht und Testierfreiheit im europäischen Vergleich (2001) 371 f. Jan Peter Schmidt, ‘Intestate Succession in Latin America’, in Reid, de Waal, and Zimmermann, Intestate Succession (n 10) 118, 135. See also Art 442-11 Código civil (Catalonia). § 741 ABGB; Wendehorst (n 37) 170. Section 46(1)(v) Administration of Estates Act 1925; Scherpe (n 38) 311. § 1929 BGB. This was one of two questions controversially discussed during the deliberations in the Reichstag: Zimmermann (n 37) 192. Section 1(1)(f) Intestate Succession Act 81 von 1987. Section 2(1)(i) Succession (Scotland) Act 1964. Zimmermann (n 37) 194.

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Does the Law of Succession Reflect Cultural Differences? has only recently been completed and it has been prompted, not only occasionally, by the precepts of national or transnational human rights documents.94 Equally laborious were the paths, in some respects quite different, towards granting equal rights of succession to adopted children; but, once again, the result today is the same everywhere.95

b

The rise of the surviving spouse

Another remarkable story, in the present context, is the rise of the surviving spouse within all intestate succession systems.96 Roman law, as reshaped by Justinian, only took account of her in exceptional situations,97 medieval customary law often left her out altogether because it relied on the dissolution of the community of property that had to be effected after the first spouse’s death.98 Christian doctrine, however, and subsequently also the authors of secular Natural law emphasized the close connection between the spouses. ‘[C]oniuges sint unum quodammodo corpus et una anima’, as David Mevius stated,99 taking his cue from St. Matthew 19, 5 (‘… and the two will become one flesh’). This connection ultimately also came to be reflected in the intestate succession rules. The German-language codifications of the late 18th, 19th, and early 20th centuries brought about a first advance in this direction.100 Other legal systems were more conservative, at first. This is true, for example, for French law101 (which, in this respect, was not received in Italy).102 From about

94 For details, see Reid, De Waal, and Zimmermann (n 11) 481-484. 95 For details, see Reid, De Waal, and Zimmermann (n 11) 484-486. Another transsystemic tendency of development is the rise of the presumption of simultaneous death first in the codifications of the ‘Germanic legal family’ (starting with Prussian and Austrian law), then also in the codifications of the Romanistic legal family (including, in 2001, the French Code civil) and, most recently (2016), in Scots law; for details, see Zimmermann and Gleim, (2018) 135 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 547-554, 554-561, 572 f. 96 For a detailed discussion, see (2016) 80 RabelsZ 39-92. 97 Neither Justinian’s comprehensive reform act of 543 AD (Novel 118) nor the amending act of 548 AD (Novel 127, 1) mentions the surviving spouse. What that meant is not entirely clear. Today the opinion predominates that the legal position prevailing previously was not to be changed: Justinian’s great reform was only aimed at a reform rationalizing the succession rights of the deceased’s relatives: Coing (n 22) 602 f; Rüfner (n 12) 27. Thus, the surviving spouse was taken into account only if there were no relatives at all who had a right to inherit. Imperial clemency, however had moved Justinian already in 537 AD to introduce the so-called ‘quarter of the poor widow’ (Novel 53, 6 and, later, Novel 117, 5); on which see Bernhard Windscheid and Theodor Kipp, Lehrbuch des Pandektenrechts (9th edition, 1906) § 574, 1; Ben Beinart, ‘The Forgotten Widow’, [1965/66] Acta Juridica 285, 292; Gabriele Heyse, Mulier non debet abire nuda (1994) 33-38; Reinhard Zimmermann, ‘Compulsory Heirship in Roman Law’, in Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) 27, 45 f; Rüfner (n 12) 28 f. 98 See (2016) 80 RabelsZ 46 with further references. 99 Commentarii in Jus Lubecense (Francofurti et Lipsiae, 1700) Pars II, Tit II, Art XII, 19. 100 See, eg, §§ 623-627 II 1 PrALR; §§ 757-759 ABGB (1811), §§ 2049-2053 Saxonian BGB; § 1931 BGB (1900); Art 462 Swiss ZGB (1907/1912). 101 Art. 767-770 Code civil (1804). 102 Art 754 f Codice civile (1865).

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the middle of the 19th century onwards, however, a reformist spirit shaped the European legal systems, often in several waves. The originally more progressive codifications, too, were reformed, sometimes repeatedly.103 The ambitious reforms in France and in the Netherlands as well as the entry into force of the Inheritance and Trustee’s Powers Act 2014 in England,104 all of them of recent or of very recent vintage, demonstrate that this area of the law has not yet found its definitive shape. Conspicuously, the surviving spouse increasingly ousts the deceased’s surviving ascendants and collateral relatives;105 in that respect the German-language codifications today appear to be comparatively antiquated.106 The central challenge for the law remains the coordination of the surviving spouse with the deceased’s descendants. Here we encounter, first, a widespread desire to allow the surviving spouse to remain within her familiar environment and to perpetuate her standard of life. Second, a coordination along the lines of granting the right of ownership to the descendants and a right of usufruct over the entire estate, or parts thereof, to the surviving spouse, is on the retreat, internationally.107 And, third, it is remarkable, that a number of more recent succession regulations have come out in favour of a solution according to which the surviving spouse receives medium sized and smaller estates, or even large estates, in their entirety.108 England provides an example for the one,109 the Netherlands for the other variant.110 In spite of all differences still existing among the legal systems today, the rise of the surviving spouse has been noticeable internationally. An essential reason motivating it is the demographic change affecting all Western societies: typically, the deceased’s descendants no longer depend on the estate to the same extent as the surviving spouse. By the time of the deceased’s death they have, as a rule, firmly established themselves in life and can thus rely on their own income in order to support themselves and their family. The surviving spouse, on the other hand, will often today, in view of the vastly improved medical standards, be faced with higher expenses than in earlier times.

103 For details, see (2016) 80 RabelsZ 49-59. 104 For details, and for an account of the development, see Roger Kerridge, ‘Intestate Succession in England and Wales’, in Reid, de Waal, and Zimmermann, Intestate Succession (n 10) 323, 335-340. 105 Especially in the Netherlands, England, South Africa, Denmark, and Sweden. 106 See, eg, § 757 ABGB; § 1931 (1) BGB; Art 462 ZGB. 107 See also Walter Pintens, ‘Tendencies in European Succession Law’, in Torstein Frantzen (ed.), Inheritance Law – Challenges and Reform: A Norwegian-German Research Seminar (2013) 9, 11; Neumayer (n 86) no 125; on the development, see Reid, De Waal, and Zimmermann (n 11) 497. 108 Likewise Kroppenberg (n 13) 1630; see also the overview in Reid, De Waal, and Zimmermann (n 11) 489503. 109 Kerridge (n 104) 343-345. 110 Kolkman (n 36) 241-246.

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Does the Law of Succession Reflect Cultural Differences?

7

Outdated national peculiarities

Among the questionable peculiarities of the German intestate system is the relentless pursuit of the idea of an unlimited family succession.111 Even relatives so distantly related to the deceased that the latter is unlikely ever to have heard of them can have a right to succeed. This was regarded, at least by some of those responsible for drafting the BGB, as a matter of principle of extreme significance: any limitation would have been not only arbitrary but also a step onto the slippery slope inexorably leading towards the abolition of private succession and thus directly into socialism.112 As it turned out, however, not even the two dictatorships established on the German soil in the course of the 20th century envisaged the abolition of the concept of private succession; and today Art 14 (1), first sentence, of the Basic Law (Grundgesetz) (‘Das Eigentum und das Erbrecht werden gewährleistet’: Property and the right of inheritance are guaranteed) would frustrate any aspiration of that kind. The rule laid down in § 1929 BGB lacks any reasonable justification.113 The same is true of traditional peculiarities of the intestate succession laws of other countries. Thus, England in the early 20th century still recognized different succession regimes for realty and personal property; this was only abolished by the Administration of Estates Act 1925.114 French succession law, on the other hand, still recognizes the strange institution of la fente successorale. If the deceased is survived neither by descendants nor by siblings, but by a parent, the estate is split into two with one half going to the surviving parent, the other to surviving ascendants of the other parent.115 Historically, this was regarded as appropriate in the light of the maxim paterna paternis, materna maternis: since it could be assumed that the deceased had received his estate in equal parts from his father’s and his mother’s side, it appeared to be inequitable to let it go in its entirety to one side, depending on who of the parents had died first.116 But this is 111 See supra n 90. 112 See Horst Heinrich Jakobs and Werner Schubert (eds.), Die Beratung des Bürgerlichen Gesetzbuchs in systematischer Zusammenstellung der unveröffentlichten Quellen, Erbrecht I (2002) 99 (Reichstag, XII. Kommission); see also von Schmitt (n 45) 708 (‘Gerade endlich in einer Zeit, wo auch in Deutschland soziale Bestrebungen das Haupt erheben, welche kein deutsches Erzeugniß sind, ist gerathen, selbst den Schein einer Konzession zu meiden, die doch jenen Bestrebungen ungenügend, der grossen Mehrzahl des Volkes aber unverständlich oder widrig erschiene’). 113 A reform has been demanded repeatedly, but has never been effected; e.g., Anne Röthel, ‘Stiftungserbrecht statt Staatserbrecht?’, (2007) Non Profit Law Yearbook 189, 193-197. 114 For details, see Kerridge (n 104) 323-329. – An outdated peculiarity perpetuated even in modern English law is the survivorship presumption – possibly inspired by Roman law: see T P Gallanis, ‘Death by Disaster: Anglo-American Presumptions, 1766-2006’, in Richard H Helmholz and W David H Sellar (eds.), The Law of Presumptions: Essays in Comparative Legal History (2009), 189-200 (192 f) – in section 184 Law of Property Act 1925; see Zimmermann and Gleim, (2018) 135 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 532-536, 573. 115 Art 747 f Code civil. 116 For a more detailed account, see (2015) 79 RabelsZ 781 f, 801-803; see also Cécile Pérès, ‘Intestate Succession in France’, in Reid, de Waal, and Zimmermann, Intestate Succession (n 10) 33, 40 f. For the historical

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The ‘legal-culture’ thesis questioned: Twelve Observations

plausible only in the light of the family conception of the ancien régime: there is a family property that has been gathered together by the deceased’s ancestors and has to be kept in undiminished form within the family rather than to pass into another family. This also explains the traditional aversion of French law to affording an intestate succession right to the surviving spouse: such succession right, after all, also entails that the deceased’s property, or part of it, passes into the hands of – from the point of view of the deceased’s ancestors – another family.117 Intestate succession in the Code civil was originally dominated by the idea of blood-relationship: the surviving spouse was only taken into account, if the deceased had left no descendants, no ascendants, and no collateral relatives down to the 12th degree; and even then, she was only héritière irrégulière118 who did not enjoy saisine.119 As far as the surviving spouse is concerned a number of steps have been taken, affecting also the fente successorale, to improve her position. There has thus been a rapprochement with the thinking patterns prevailing in the German-speaking countries.120 Apart from that, however, even the reform of French succession law of 2001/2006 perpetuates the fente successorale. Yet, the typical estate today no longer consists of family property that has been built up over a number of generations but rather in a modest house, usually acquired by the deceased himself, money in the bank, and some investments;121 and family solidarity122 is a matter that is relevant primarily from the deceased’s point of view. He will, however, feel more closely associated with his surviving parent than with the parents and grandparents of his predeceased parent. The fente successorale, which has been adopted neither by the Italian nor by the Dutch codification,123 is a relic of past times, much as the primogeniture prevailing with regard to landed property in England until 1925;124 and it is as implausible today as the idea that a limitation of the parentelic system would be a step towards socialism.

background, see further Philippe Malaurie, Les successions, les libéralités (5th edition, 2013) no 67-70; François Terré, Yves Lequette, and Sophie Gaudemet, Droit civil. Les successions, les libéralités (2014) no 112; Tobias Fröschle, Die Entwicklung der gesetzlichen Rechte des überlebenden Ehegatten (1996) 16 f. 117 See, e.g., Pérès (n 116) 46. 118 Art 767, 770 Code civil (1804). Thus, the surviving spouse was preferred only to the State with whom, however, she shared the characteristic of being merely an héretier irrégulier: Art 768, 770 Code civil (1804). See Terré, Lequette, and Gaudemet (n 116) no 123: ‘Le conjoint survivant est un des grands vaincus de la Révolution.’ 119 See Malaurie (n 116) nos 161-165; Jean-Philippe Lévy and André Castaldo, Histoire du droit civil (2002) nos 982 f. 120 Terré, Lequette, and Gaudemet (n 116) nos 123-125; (2016) 80 RabelsZ 63 f. For the state of development today see, e.g., Christoph Döbereiner, in Rembert Süß (ed), Erbrecht in Europa (3rd edition, 2015) nos 6975. 121 Reid, De Waal, and Zimmermann (n 11) 493. 122 See Zimmermann (n 37) 183; Reid, De Waal, and Zimmermann (n 11) 447. 123 Kolkman (n 36) 228; Braun (n 35) 73. 124 See Kerridge (n 104) 326.

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8

Outdated transsystemic thinking patterns

It is interesting to see that there are also outdated thinking patterns that have left their traces not only in one or another of the continental codifications but across all of them. The reason is that these thinking patterns have been inherited from the ius commune. An instructive example is the ‘representation’ doctrine.125 The idea, mentioned above, of a succession by branches (or ‘per stirpes’) among descendants entails inter alia that children of the deceased may inherit together with children of a predeceased sibling – with the result that persons more closely related may inherit together with less closely related relatives of the deceased, children being relatives of the first degree, grandchildren relatives of the second degree.126 This was explained, on the basis of a literalist interpretation of the relevant Roman sources,127 by resorting to the idea that the grandchildren inherit in the place of, and thus as representatives, of their predeceased parent: they are treated as if they were relatives of the first degree.128 From this perspective, a number of doctrinal consequences suggested themselves. The most important one was that the representative’s succession right was taken to be identical to that of the person represented129 and that it thus displayed the same characteristics as the latter. If, therefore, the person represented had failed to become heir not because he had predeceased but because he had renounced the inheritance, had been disinherited, or was unworthy to inherit, then that also had to hold true for the person who was to step in as representative. This was sometimes summarized by the proverbial saying ‘vivi nulla repraesentatio’.130 .

125 Another example is the survivorship presumptions of Roman law that have been perpetuated in the ius commune, in Germany until the advent of the BGB. The French Code civil of 1884 also contained a refined set of survivorship presumptions; survivorship presumptions also prevailed in Scotland between 1964 and 2016 and still prevail in England today. For details, see Zimmermann and Gleim, (2018) 135 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 527-581. 126 From, at least, the time of the great National law authors of the early modern period, it was accepted that the rules on intestate succession are based on the presumed intention of the deceased. Thus, it was held that he would have wanted to be succeeded by those, ‘qui sanguinis … vinculo sibi proxime sunt coniuncti’: Johannes August Hellfeld, Iurisprudentia forensis secundum pandectarum ordinem (2nd edition, Ienae, 1766) § 1643. On that basis, a successio ordinum et graduum seemed to be the natural intestate succession pattern for the jurists of the Middle Ages and the early modern era: Within the four Justinianic classes (on which see, e.g., Rüfner [n 12] 26 f) the order of succession rights is determined by proximity in degree to the deceased. That proximity was, under Roman law (unlike later under Canon law), calculated by number of births between the deceased and the respective relatives: Gai D 38, 10; Inst 3, 6; Glück (n 74) § 16. 127 In Novel 118, 1 and 3 the expressions (in Latin translation) ‘in locum succedere’ and ‘in parentum iura succedunt’ are used. 128 See, e.g., Samuel Stryk, Tractatus de Successione ab Intestato (Francofurti, 1706) Dissertatio I, Cap I, LXVIII; Grotius (n 70) Lib II, Cap VII, VI; Voet (n 83) Appendix to Lib XXXVII, Tit XVII, IV; see further the discussion by Josef Kohler, ‘Zwei Studien über das sog. Repräsentationsrecht’, (1876) 7 (Puchelts) Zeitschrift für Französisches Zivilrecht 113, 114-120; Coing (n 22) 603 f. 129 ‘Repraesentans eandem personam, et eadem privilegia habet’: Index Iuris Civilis copiosus = vol. 6 of the 1627 edition, Lugduni, of the Corpus Iuris Civilis cum commentariis Accursii, under ‘Repraesentatio’. 130 See Joannis à Someren, Tractatus de Repraesentatione (Coloniae Agrippinae, 1713) Cap III, 1; Kohler (n 128) 120 f, referring to Dumoulin and other French authors; for Latin America, see Schmidt (n 87) 130.

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The ‘legal-culture’ thesis questioned: Twelve Observations

The representation doctrine was received in the codifications of France,131 the Netherlands,132 Italy,133 Spain,134 Portugal,135 and Latin America136, and it became also part of Austrian law.137 Representation, in the words of Art 739 Code civil (1804) ‘est une fiction de la loi, dont l’effet est de faire entrer les représentants dans la place, dans le degré et dans les droits du représenté’: the descendant is to be treated as if he had stepped into the place, into the degree (of relationship vis-à-vis the deceased), and into the rights of the person represented. Hence, ‘[o]n ne représente pas les personnes vivantes, mais seulement celles qui sont mortes’; and the consequences were thus the same as under the ius commune. In the course of time, the legal position changed, thus entailing an ‘extension’,138 or desubstantialization, of the concept of representation that has, as such, been perpetuated until today. Predominantly, it is no longer believed that the legal consequences in cases of renunciation, disinheritance, or unworthiness follow logically from the ‘essence’ of representation; rather they can be determined by the legislator one way or the other. There has been a development away from the principle of ‘vivi nulla repraesentatio’ everywhere.139 This does indeed appear to be reasonable. Thus, for example, the rule according to which the legal position of a grandchild is not to be affected by the unworthiness to inherit of the parent through whom he is related to the deceased140 corresponds to the idea that children are not to be punished for the sins of their parents. The BGB did not adopt the concept of ‘representation’: the pandectists had, rightly, regarded the representation doctrine as ‘entirely unfounded and untenable’141 and as ‘probably completely abandoned’.142 This verdict has not prevented it from making a re-appearance in modern German legal literature.143

9

Critical reflection

This leads on to another point. Critical reflection is not only admissible in the law of succession but it is as necessary as in other areas of the law. Such critical reflection can 131 Art 739-744 Code civil (1804), Art 751-755 Code civil (2001/2006). 132 Art 888-895 BW (1838). 133 Art 729-735 Codice civile (1865), Art. 467-469 Codice civile (1942). 134 Art 924-929 Código civil (Spain). 135 Art 1980-1984 Código civil (Portugal, 1867); Art 2039 f Código civil (Portugal, 1966). 136 Schmidt (n 87) 133 f. 137 So-called ‘materielle Repräsentation’: Rudolf Welser, in Rummel (ed.), Kommentar zum Allgemeinen Bürgerlichen Gesetzbuch, vol. 1 (3rd edition, 2000) §§ 733, 734 no 1. 138 Kolkman (n 36) 233 f. 139 For details, see (2015) 79 RabelsZ 789-793. 140 See, e.g., Art 755 Code civil; Art 4:12(1) BW; Art 929 Código civil (Spain); for Italy, see Braun (n 35) 78; § 541 ABGB; for Germany, see Dieter Leipold, in Münchener Kommentar zum BGB, vol. 9 (7th edition, 2017) § 1924, no 31. 141 Karl Adolph von Vangerow, Lehrbuch der Pandekten, vol. 2 (7th edition, 1867) § 414. 142 Windscheid/Kipp (n 97) § 572, n 4. 143 See Zimmermann (n 37) 196.

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Does the Law of Succession Reflect Cultural Differences? be prompted by historical contextualization and reconstruction of traditional thinking patterns such as la fente successorale or the representation doctrine. Such thinking patterns can then either be dismissed, or they can be substantiated by establishing a new rational foundation. The latter is the case, for example, with regard to the idea of the succession, on the part of descendants, by branches (per stirpes)144 which by no means stands or falls with the representation doctrine. The deceased’s children inherit per capita; the law of succession thus treats them on an equal footing.145 Each of the children usually founds his own family for which he is responsible and to which his property will, in the normal course of things, pass after his death. It would be very odd, if the predecease of one of the deceased’s children were to have the consequence that the predeceased child’s children would lose their part of the inheritance while the share of its siblings would quite unexpectedly be increased (‘windfall’). By establishing a regime of succession per stirpes the law thus attempts to ‘isolate’146 the intestate succession regime against the vagaries of fate, i.e. in this case, the predecease of one of the deceased’s children.147 Obviously, if this line of reasoning is convincing with regard to descendants, it will be equally convincing with regard to collateral relatives:148 if the deceased’s siblings stand to inherit, they also inherit per stirpes. The law has to be consistent in implementing ideas which it has acknowledged to be convincing. Another suitable point of reference for critical reflection can be the idea that the rules on intestate succession, while conforming to the normative foundations of a modern society (eg gender equality, no discrimination against extramarital children, promotion of the best interests of children, including adopted children) should also reflect what a typical testator would have regarded as reasonable,149 as far as the fate of his property after his death is concerned. The three-line system, accepted so unquestioningly in Spain, Portugal, and Latin America, can serve to illustrate this.150 Grandparents, and even great grandparents, are called to inherit before even the most closely related collateral relatives (i.e. siblings) of the deceased. However, since the estate will, as a rule, soon be passed on from the grandparents and great grandparents to their descendants, the ultimate result will hardly be in line with what a typical deceased would have wanted; for the higher the estate ascends, the more it will eventually move away from the deceased.151 The idea of

144 Above II.5. 145 See, e.g., Art 744 (2) Code civil; Art 566 (1) Codice civile; Art 931 f Código civil (Spain); Art. 4:11 (1) BW; § 732 ABGB; § 1924 (4) BGB; s 47(1)(i) Administration of Estates Act 1925. 146 See Schmidt (n 87) 128. 147 See Schmidt (n 87) 128-130. 148 See (2015) 79 RabelsZ 803-805. 149 Text to n 69. 150 Above I.2. 151 See the thorough critical analysis of the three-line system by Schmidt (n 87) 136-139.

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The ‘legal-culture’ thesis questioned: Twelve Observations

family succession is also accommodated in a more satisfactory manner if the property passes to a relative of the second rather than of the third or even fourth degree.152

10

System-conformity

Another important criterion for evaluating the rules of the law of succession is their system-conformity. An example that has already been alluded to is the implementation of the idea of succession per stirpes among descendants as well as among collateral relatives. Another issue that may be mentioned is who among the deceased’s relatives should inherit in cases where there are no descendants (and where there is no surviving spouse either). Consideration will have to be given to the deceased’s parents or his siblings. While no legal system appears to give preference to siblings, the jurisdictions in the tradition of French law place siblings and parents on the same level.153 Very widely, however, in Germany154 as well as in Spain155 and in England,156 parents are preferred to siblings. The latter approach is supported, first, by the idea of reciprocity. If, as is generally acknowledged, children are the persons who are closer to their parents than any other (blood-)relative, then parents must also be the persons who are closer to their children than any other (blood-)relative (unless, of course, the children themselves have children; but if that were the case, the question whether the deceased’s parents or siblings are to inherit their estate would not arise). Second, the way in which the law determines duties of maintenance within a family demonstrates that siblings are not taken to be equally close to a person as his parents or children. Such duties of maintenance normally exist vis-à-vis children or, more generally, descendants, and vis-à-vis parents or, more generally, ascendants (this is the case, for example, in Germany, Austria, France, and the Netherlands),157 sometimes only vis-à-vis children (England, Scotland, Nordic countries).158 Even in countries where maintenance may have to be provided for siblings 152 Further examples of the critical evaluation of the comparative evidence relate to the question, what happens in cases where the deceased’s parents inherit but one of the parents has predeceased (see (2015) 79 RabelsZ 799 f.) and to the succession problems following the death of two or more persons in a ‘common calamity’ (see Zimmermann and Gleim, (2018) 135 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 566-573). 153 Art 736-738-2 Code civil; Art 568, 570 und 571 Codice civile; Art 4:11 (2) und (3) BW; see also Neumayer (n 86) nos 39-44. 154 § 1925 (1) BGB; see also § 735 ABGB. 155 Art 935 Código civil (Spain); for Latin America see Schmidt (n 87) 122. 156 Section 46(1)(iii) Administration of Estates Act 1925; with respect to the USA, see Ronald J Scalise, ‘Intestate Succession in the United States of America’, in Reid, De Waal, and Zimmermann, Intestate Succession (n 10) 401, 414. 157 For details see §§ 1601-1603 BGB; §§ 230-234 ABGB; Art 203 und 205 Code civil; Art. 1:392 (1) BW. 158 For details, see William Blackstone, Commentaries on the Laws of England (9th edition, London, 1783) 446452 (Book I, Chapter 16, I. 1); ss 2 f Children Act 1989 (England); s 1(1)(c) Family Law (Scotland) Act 1985; Peter Lødrup, Anders Agell, and Anna Singer, Nordisk børneret I – Fars-kap, morskap og underhåll till barn (2003) 237-430.

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Does the Law of Succession Reflect Cultural Differences? (Italy, Spain),159 they are last in line. Third, also the provisions concerning the ‘compulsory portion’ indicate which persons the law regards as most closely related to the deceased. The range of persons eligible to claim a compulsory portion is limited to children, or children and parents, or, more generally, to descendants and ascendants.160 Siblings are not taken into account. All of this reflects the special respect due in the Western legal tradition to parents: ‘Honour your father and your mother, as the Lord your God has commanded you, so that you may live long and that it may go well with you ….’161

11

Simplicity

In addition to this, the solution to a problem that is in conformity with the system is often also the simpler solution. This is demonstrated by a look at the body of rules that is necessary in French and Italian law in order to co-ordinate the succession rights of parents and siblings.162 A point that was already controversial among the authors of the ius commune provides another interesting example. Since descendants inherit per stirpes, it may be thought that if the deceased is not survived by any of his children, but by a number of grandchildren, the grandchildren receive the share which would have gone to their respective parent had he or she still been alive. However, if the number of grandchildren differs between the various branches, this will lead to the grandchildren receiving unequal shares. Such unequal treatment has often been, and sometimes still is, regarded as inequitable and as being contrary to the deceased’s presumed intention. It has thus been argued that the grandchildren should inherit per capita.163 But the appeal to the presumed intention of the deceased, in this situation, is based on pure speculation. Under these circumstances, and in view of the fact that there appear to be no other arguments in favour of an equal treatment of the grandchildren, it is advisable to stick to the solution flowing logically from a regime of succession per stirpes.164 This is supported by the experiences gathered in the United States with the implementation of the per-capita regime: that regime can lead to comparatively complex scenarios.165 It is also supported by the consideration that the law should, as far as possible, avoid a regulation which accepts 159 Art 433 Codice civile; Art. 143 Código civil (Spain). 160 § 2303 BGB; §§ 762 f ABGB; Art 536 Codice civile; Art 913 Code civil (with respect to ancestors, see now Art. 738-2 Code civil); Art. 4:35 f. BW; Art. 807 Código civil (Spain). 161 Deuteronomium 5, 16. From the perspective of Natural Law, see Pufendorf (n 71) Lib IV, Cap XI, § 13; Darjes (n 73) § 647. 162 Above n 153. 163 The question is discussed b Glück (n 74) § 99; see also Stryk (n 128) Dissertatio I, Cap II, XXXV; Kohler (n 128) 170-175; Windscheid and Kipp (n 97) § 572, n 5. For today’s discussion see, with respect to Germany, Zimmermann (n 37) 196; for the Netherlands, see Kolkman (36) 234; for Latin America, see Schmidt (n 87) 127 f. 164 This corresponds to the prevailing opinion in Germany, the Netherlands, and in most of the Latin American countries; for Italy see Braun (n 35) 79. 165 Scalise (n 156) 109 f.

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The ‘legal-culture’ thesis questioned: Twelve Observations

that a share in the inheritance of one branch of the family is affected by events occurring within another branch.166

12

No discrimination

That the law of succession should not condone, entrench, or even further discrimination: this was recognized already by Justinian. His intestate succession regime, as laid down in Novels 118 and 127, 1 was no longer based on the principle of agnatio (i.e. a family tie established exclusively through the male line) but rather on consanguinity (cognatio). It did not discriminate between men and women, or between persons who had or who had not been emancipated. Nor did it differentiate between different assets of the deceased.167 In all these respects, Justinian’s regulation appears to be distinctively modern. Over the course of time, further discrimination has disappeared, particularly against adopted and extra-marital children.168 Also, in many countries today the discrimination, within the law of succession, against homosexual partners has been removed, regardless of whether they are allowed to marry or to enter into a registered partnership.169 In English and Scots law,170 we still find open discrimination against half-siblings: as under Roman-Justinianic law,171 they are only called to inherit if siblings of the whole blood (full siblings) do not exist. But the treatment of half-siblings in legal systems subscribing to the three-line system is also (latently) discriminatory. If, in view of a lack of descendants (and surviving spouse) the estate goes to the relative closest in degree to the deceased, then, if the mother has predeceased, the father inherits and, if the father has predeceased, the mother inherits. From there, however, the estate typically passes only to the children of the surviving parent. Children of the predeceased parent, as far as they are not common children, end up with nothing.172 That appears to be inequitable. Treating half-siblings and full siblings equally does not mean that they have to receive the same share in the estate;173 half-siblings are in the same position as full siblings only in respect of the parent whom they have in common with the deceased. After all, they can also

166 In addition, there is the argument in favour of preventing manipulations, which would be possible if one of the children, by renouncing the inheritance, were able to secure a bigger share of the estate for his family; see Schmidt (n 87) 128. 167 (2015) 79 RabelsZ 770 f. 168 See text to n 94 und n 95. 169 Reid, De Waal, and Zimmermann (n 11) 503 f. 170 Section 46(1)(v) Adminstration of Estates Act 1925; s 3 Succession (Scotland) Act 1964. 171 Novel 118, 3 pr, on which see Glück (n 74) §§ 127-131; Windscheid and Kipp (n 97) § 572, fn 3. 172 Schmidt (n 87) 137 f. 173 But see Art 737 Code civil and, for the USA, Scalise (n 156) 415.

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Does the Law of Succession Reflect Cultural Differences? expect to inherit in their capacity as a member of their other parent’s family. The reasonable result follows quite naturally from the parentelic system which, therefore, does not require special provisions concerning half-siblings174 – another reason why it appears to be superior to the three-line system.

174 As we find them, for example, in Art 949 Código civil (Spain), Art 570 (2) and 571 (2) Codice civile and also in Art 4:11 (2) BW; for Latin America, see Schmidt (n 87) 134 f, 138.

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III

A balance sheet

Of course, law is an expression of human culture and, of course, there are different cultures.175 These cultural differences are bound to be reflected, in some way or another, in the law. This becomes evident, for example, if Western legal systems are compared with non-Western ones such as those prevailing in Islamic countries or ‘first nations’.176 Western legal systems also display a number of differences among each other, in the law of succession as much as in other fields. But it would be wrong to attribute all of them to cultural differences and thus, in a way, to hyperbolize or mystify them – particularly if the modern nation state is used as the relevant point of reference.177 Much, in this respect, is based on a thoughtless and mechanical perpetuation of tradition,178 or on ideological preconceptions. It would appear to be more appropriate to conceive of our modern legal systems as different manifestations of a European legal tradition, characterized by a fundamental unity.179 A distinctive element of that tradition is its quest for rationality and intellectual coherence which, at the same time, allows for organic growth and development. This is true for all areas of private law, and the law of succession can, therefore, no more be described as folkloristic than the law of contract.180 Here, as much as there, constant efforts must be made to find solutions to legal problems reflecting the needs and reasonable expectations of the members of the legal community affected by these solutions; and that requires critical reflexion in a broadly based historical and comparative perspective. Certain normative foundations on which all Western societies are built are relevant in this respect,181 as are developments affecting them all.182 The law of succession has, over the centuries, been subject to change and will continue to be changed; it has abandoned outdated thinking patterns and will continue to do so; it has experienced

175 See already Josef Kohler, Das Recht als Kulturerscheinung: Einleitung in die vergleichende Rechtswissenschaft (1885); today see, e.g., Bernhard Großfeld, Macht und Ohnmacht der Rechtsvergleichung (1984) 80-93; Ralf Michaels, ‘Legal Culture’, in MaxEuP (n 4) 1059-1063; and see now the comprehensive study by Peter Mankowksi, Rechtskultur (2016). H. Patrick Glenn, instead, uses the less confrontational term ‘legal tradtion’: Legal Traditions of the World (4th edition, 2010); Kischel (n 18) 238-242 uses the concept of ‘legal contexts’. 176 For the intestate succession rights of the deceased’s relatives, see (2015) 79 RabelsZ 817 f. 177 See also Jürgen Basedow, ‘Rechtskultur – zwischen nationalem Mythos und europäischem Ideal’, (1996) 4 ZEuP 378-381; Michaels (n 175) 1257. 178 See above, text to n 57. 179 For a more detailed discussion, see Reinhard Zimmermann, ‘Roman Law and European Culture’, [2007] New Zealand LR 341-372; idem, ‘Roman Law’, in MaxEuP (n 4) 1487-1491. 180 See also De Waal (n 8), II. 2 (‘The Traditional View Challenged’). 181 See above n 94. 182 For example, demographic developments (see above II.6.b, in fine); and see, with regard to another problem occurring in all modern societies, Gregor Christandl, Selbstbestimmtes Testieren in einer alternden Gesellschaft (2016).

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Does the Law of Succession Reflect Cultural Differences? wide-ranging harmonization and may well in the future be harmonized on an even more wide-ranging level. The law of succession, like all other areas of the law, requires a critical discourse beyond national borders; for, after all, it deals with problems arising in the same, or in very similar, form everywhere. Insofar as it prevents such discourse, the ‘legal culture thesis’ must strongly be opposed. It is good to see that the law of succession’s existence as a Cinderella of comparative law is coming to an end.

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Maastricht Law Series The Maastricht Law Series is created in 2018 by Boom juridisch and Eleven International Publishing in association with the Maastricht University Faculty of Law. The Maastricht Law Series publishes books on comparative, European and International law. The series builds upon the tradition of excellence in research at the Maastricht Faculty of Law, its research centers and the Ius Commune Research School. The Maastricht Law Series is a peer reviewed book series that allows researchers an excellent opportunity to showcase their work. Series editors Dr. Bram Akkermans (editor-in-chief) Prof. dr. Monica Claes Prof. dr. Mariolina Eliantonio Dr. Bram van Hofstraeten Prof. dr. Saskia Klosse Dr. Denise Prevost Prof. dr. David Roef Dr. Marcel Schaper Prof. dr. Jan M. Smits Published in this series: Volume 1: Reinhard Zimmermann, Does the Law of Succession Reflect Cultural Differences?, ISBN 978-94-6236-856-9 Volume 2: Anna Berlee, Access to personal data in public land registers, ISBN 978-94-6236841-5 Volume 3: Marcus Meyer, The Position of Dutch Works Councils in Multinational Corporations, ISBN 978-94-6236-848-4