Intro_continental_legal_science [Unlocked]

Some critical remarks:

Robinson O.F. European legal history: sources and institutions,

p.269.

…Natural Law thinkers in Germany such as Thomasius and Wolff had argued that the principles of Natural Law could only be discovered by rational deduction from the nature of man. Their theories had been extremely abstract; the study of what was actually followed as law in any particular society was of less importance to men like Wolff than the logic of the system. This extreme approach was not adopted universally by Natural Lawyers… but it had been predominant in much of Germany.

Significance of Modern Natural Law.

Van Caenegem R.C. An historical introduction to private law, p. 139–141.

Some of the basic objectives <of the law of reason> were achieved. It had a liberating effect, since it led to the abandonment of the constricting system of the auctoritas (authority) of ancient texts. Admittedly, even in medieval thought auctoritas (authority) had to be subject to ratio (reason), but of the two it had been auctoritas which prevailed. Now ratio had become the guiding principle. The antiquity of a rule of law was no longer thought to guarantee its superiority. Some authors even adopted the opposite thesis and affirmed that each legal innovation necessarily represented progress.

The primacy of statute (especially codified statute) was now accepted… Since their homologation, customs had in any case come close to being statute in disguise, but were now relegated to a marginal role. Legal scholarship had no binding authority. Only case law maintained an important place in legal practice. The result, however, was much less radical than the supporters of statute as the unique source of law had (somewhat naively) imagined, and the attempt to prevent

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lawyers writing doctrinal commentaries was as vain as the hope of providing for every case in the codes. Yet the priority of statute over all other sources of law did bring about a marked simplification: henceforth, knowledge and application of the law were incontestably clearer and more certain. Natural law was an essential element in the triumph over old customary law and the (still prestigious) Roman law. Only a still more universal law, or rather a truly universal law, was in a position to mount a challenge to the quasi-universal authority of Roman law. If the Corpus iuris was the law of the Roman Empire and of the western world, natural law was that of all humanity; if Roman law was the work of the greatest people of lawyers in history, then natural law was the very expression of reason.

… 'most… lawyers recognize that on this question it is proper to follow not the subtleties of the Romans but the simplicity of natural law'.

'Law is a rational science.' The notion that law is purposive, that it can be used to direct social policy or even to bring about a certain kind of society, is also part of the legacy of the age of reason….

This led to law becoming ideological, and it allowed governments to tighten their control on their peoples….

The secularization of the law, its removal from the authority of theology and divine laws, was an objective of the Enlightenment which was largely attained… Now the temporal order was emancipated. It could set its own goals, and means to achieve them.

In several respects, however, the ambitions of the law of reason were frustrated… By the beginning of the nineteenth century, it had lost all real importance as a guiding principle and source of inspiration for the law. It had completed its task of mounting a challenge to the ancient order and inspiring the codes. It could disappear, like the revolutionary masses…Natural law as a discipline in the syllabuses of the law faculties crumbled away without any proper scholarly discussion….

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In the middle of the nineteenth century, <German professor> Windscheid observed 'The dream of natural law is at an end'. Natural law was now no more than a purely academic subject without practical significance.

Van Caenegem R.C. An historical introduction to private, p. 143–144.

… the complete failure of natural law… is connected with the great political and social changes of the time (which will be examined at length), and also with its intrinsic impotence as a school of thought. Its claim was to establish objective and universal certainties, which were valid for humanity at large. But these ambitions were not realized. What seemed just in all the circumstances to one scholar, people, age or civilization did not seem so to others. The axioms of natural law were in fact subjective, and so they had no value as the basis of a universal human system. The few general principles on which unanimity could be achieved (such as the duty to be honest and sincere, to keep promises and respect agreements) were so vague that they could scarcely solve the real problems of daily life. Natural law was too often inadequate precisely where a legal rule was most needed.

The partisans of natural law inevitably had to turn in large part to Roman law, in order to be able to state the rules required by practice in more precise and concrete terms. It is also significant that the codes of intermediate law, which were inspired by natural law, were a failure and had to be replaced by the Napoleonic codification, whose authors drew largely on ancient law…

It was, therefore, only in times of crisis that discontent with, and criticism of, positive law crystallized around natural law. Once the crisis was over and a new equilibrium had been established, natural law had played its part, and the new system (the Code civil or the law of the Pandects of the nineteenth century) could claim that it represented the desired legal order and the ideal law. The School of Natural Law was equally unable to realize its universal vocation. The hope had been to

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set out from reason, and so to work out a universal (or at least a European) law…

In reality, the triumph of national codes brought about the nationalization of legal systems which was characteristic of nineteenthcentury legal development. The law of reason and the cosmopolitan Roman law had to give way to different national legal orders based on national codes and national administration of justice.

Lopez P. Comparative Law in a Changing World. p. 57.

The Natural Law Movement represented an upsurge of rationalism and the belief that ‘the law for any society could by the use of reason be derived from principles inherent in the nature of man and society’ (Nicholas (1962)). The Dutchman Grotius (1583–1645) was the first great natural law exponent, and he applied it to the formation of a body of international law. However, his treatise on the jurisprudence of Holland considerably influenced the course of Roman-Dutch law. But it was in the international law field that the School of Natural Law was most influential, although it led to the elimination of the more irrational or ‘authentically Roman’ features of the law which were replaced by liberal doses of ‘logic’ in the law.

Road towards Codification.

Robinson O.F. European legal history: sources and institutions, p. 253.

The codification movement…

Elgar encyclopedia (1st edition), p. 398

The road towards the great codifications

It is, notwithstanding much research, still an open question to

what extent this natural law thinking really changed the 173

application of positive law, ius commune, in concrete cases… Law had become a public affair, a subject for debate in the salons and coffee houses. Basic human rights were formulated in a variety of social contract theories… No longer were books about law merely published in Latin, but in the native languages too… The manifold criticisms of the administration of justice and its sources of law led to enhanced appreciation of the legislation, or even codification. Codes were considered the panacea for all the evils which stuck to the old system of law.

It was not only Roman law which was challenged. The most ferocious propagandist of legislation, Jeremy Bentham, rejected customary law as much as Roman law (and for that matter natural law too). So did Voltaire in France, or Schorer in the northern Netherlands. Consequently, the position and prestige of Roman law had changed since the second half of the 17th century. Many people, jurists included, considered Roman law as a corpus alienum, a foreign transplant of remote origin. At the same time, the significance of indigenous law (ius patrium) increased. In the Netherlands Frederik van der Marck (1719– 1800) was still a rare bird as promotor of native law. In France, however, something like a national law, the Droit commun de la France, came into being, developed from the royal legislation, the customary law of Paris and Roman law jurisprudence. Special chairs in French law, founded by Colbert in 1679, stimulated the development of a national doctrine of law. In other European countries a similar favouring of native law could be discerned. In Spain, Roman law was even banished by royal order from the law courts and universities in 1713–1741.

Essential Readings

1. Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 115– 121, 139–141.

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2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000, chapter 13.

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, p. 94–96.

4.Bellomo M. The common legal past of Europe (1000-1800). Washington, 1995, p. 232–234.

Supplementary readings

1.Schröder J. The concept of (natural) law in the doctrine of law and natural law of the early modern era // Natural Law and The Laws of Nature in Early Modern Europe: Jurisprudence Theology Moral and Natural Philosophy. Ed. L. Daston, M. Stolleis. Farnham: Ashgate Publishing Group, 2009, p. 57–71. <ebrary.com>

2.Wieacker F. A history of private law in Europe with particular reference to Germany. Translated from German by Tony Weir. Oxford, 1995, p. 199–221.

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Questions

1)How did the conception of natural law in modern times differ from that of Antiquity and the Middle Ages?

2)What changes in science and philosophy did contribute to the rise of modern natural law?

3)Why is the school of modern natural law sometimes called the school of the law of reason?

4)Which scholar could take credit for establishing the school of modern natural law?

5)What other approaches in legal science did modern natural law coexist with?

6)Who were the main representatives of modern natural law in Germany and France? Were they lawyers or philosophers?

7)What were the sources analysed by the followers of modern natural law?

8)What methods did these scholars use?

9)How did modern natural law influence the development of legal science and legislation in Europe?

10)How did modern natural law promote the idea of codification of law?

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Topic 8. German Historical School in the 19th century

Topic outline

The German Historical school in the 19th century as a reaction against the revolutions and the abstractness of the new natural law. The dispute about the codification of private law in Germany between Anton Thibaut and Friedrich Savigny.

Ideological foundations of the Historical school: the ‘rediscovery’ of history (Möser, Niebur, Mommsen); law as a historical phenomenon and an outcome of ‘People’s spirit’ (Volksgeis) in the teachings of Eichhorn and Savigny. The place of history in the domain of legal science. Histories of Roman law and German law. Legal past in the present.

Methodology of the Historical School: study of old documents, systematic arrangement of the historical data, ‘scientification’ of people’s laws and customs by scholars.

Evolution of the Historical school in the works of Friedrich Savigny: from ‘The law of possession’ to ‘The history of Roman law in the Middle Ages’ and ‘The system of the modern Roman law’. Savigny’s views on the positive law. Savigny’s heritage in the works of Georg Puchta.

Implications of the German Historical school abroad.

Excerpts from Readings

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History of the School

Van Caenegem R.C. An historical introduction to private law, p.

144.

… the triumph of national codes brought about the nationalization of legal systems which was characteristic of nineteenth-century legal development… The development went along with that of sovereign states in the same period, as well as with various intellectual currents. In France, Montesquieu had already emphasized the necessity of adapting the law to the 'spirit' of peoples, and numerous German jurists of the late eighteenth and nineteenth centuries were convinced that each people must live by its own laws, adapted to its particular needs. So the School of Germanists (which opposed that of Romanists) looked in ancient law for elements which could shape a Germanic law adapted to the needs of the German people. It was not a question of raising legal barriers between peoples, but at least legal unity had been achieved within states. The geographical frontiers of customary regions had disappeared, or would do in the course of the nineteenth century, and many old corporatist and social barriers (such as the 'Estates') had been suppressed.

Van Caenegem R.C. An historical introduction to private law, p. 142–143.

The two great schools of thought which took over from natural law at the beginning of the nineteenth century were the Exegetical School and the Historical School…

The Historical School was launched by the work of its founder, F. C. von Savigny (d. 1861), ‘On the Vocation of Our Age for Legislation and Legal Science’ (1814), and had its own periodical, the 'Journal for Historical Jurisprudence' founded in 1815. The name <of the periodical> proclaimed the programme: jurisprudence should be historical, and the historical experience of a people ought to be the true source of inspiration for its legal practice. This school believed that law was a natural, organic expression of the life of a people. It could not be

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codified at a given stage of development, any more than a language could.

Robinson O.F. European legal history: sources and institutions, p. 269.

The new school was brought to life due to the following main reasons:

1)as a reaction against the extremely abstract conception of law professed by the school of modern natural law, which dominated the scene in the 17th and 18th centuries;

2)“The other main reason for support for the historical approach was political, and again in contrast with that of the natural lawyers. They had been inclined to support absolute rules who would impose on their subjects the law which jurists and rules knew was good… In a more liberal society such reliance on a single source of authority was not generally acceptable”.

There were other factors which explain the jurisprudential importance of the Historical School.

One of them was the issue of German unification

Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity over Two Millennia (2002), p. 90–94.

German Unification.

1)The question of political unification

2)The question of legal unification

… The next issue was, of course, whether the projected German nation state should have one national civil code, which seemed to be logical and to follow Bavarian, Prussian and Austrian precedents as well as the famous French model. And if there was to be a civil code for the whole of Germany, was it to be based on Roman law, as represented

by the usus modernus pandectarum (consequent to the 179