Intro_continental_legal_science [Unlocked]

reception), or should it turn its back on this foreign import and embrace native traditions and be truly German?..

C. F. von Savigny, a conservative German patriot of French Huguenot descent and one of the founders of the Historical School, abhorred codification and believed in the naturally evolved and everdeveloping law of the people, as expounded by aristocratic and learned jurists, the natural leaders of the nation. Codification, the fixing of norms at one particular moment, could only thwart the natural course of the law, which was sure to live in osmosis with changing needs and values.

His main opponent, A. F. Thibaut, by remarkable coincidence also of French Huguenot descent, believed in codification on principle. He belonged to the rationalist, Enlightenment tradition and was a liberal cosmopolitan. He defended legislation imposed by far-sighted rulers and their elitist councillors. He wanted the law to be written down in the vernacular and made accessible to the common man, not a secret science for the initiated who read Latin. Savigny, who reacted violently to Thibaut’s plea for a national code, found the idea ‘scandalous’ and loved pointing out the technical imperfections of the Code civil, whereas he held legal science based on Roman law to be vastly superior.

There were some strange contradictions in Savigny’s attitude: how could the law, rooted in the Volksgeist (people’s spirit) and in the romantic idea of the German nation, be based on Roman law, a notorious transplant? And how could professors who believed in the cosmopolitan ius commune be best placed to interpret and develop the historic law of the people? The fact is that the famous debate of the professors was not only, or even primarily, about technical merits or academic considerations, but was fuelled by deeply felt political convictions and patriotic gut reactions. Savigny distrusted laws and codes decreed by revolutionary assemblies or upstart military dictators (especially when they were French) and he much preferred the accumulated wisdom of generations of jurists, as interpreted by

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aristocratic law professors, as he was himself. Thibaut did not adore plebeian assemblies either, but he liked the notion of a code embodying the ideals of the eighteenth-century natural law, the universalist appeal of the Enlightenment and the certainty provided by comprehensive codes. The clash between the two jurists was about politics rather than academic merits or legal technicalities.

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

Germanists and Romanists.

… Two camps, as we have seen, vied with each other – the defenders of native tradition and those of Roman law; they were known as the Germanists and the Romanists… The Germanists studied the laws of Germanic people and medieval German customs, borough charters and lawbooks in order to discover the roots of true German law. The Romanists studied the Corpus iuris and the Schools to which it had given rise in medieval and modern Europe and especially in postreception Germany, in order to build a system of private law that was technically perfect and the best basis for the law of a German empire that was destined for great achievements. Neither group was moved by purely antiquarian or speculative curiosity or interest in the past as such, as they both saw their respective fields of study as contributing to the quest for the best Civil Code for their country: the legal past was directly relevant to the legal future...

National feelings.

No matter how strongly scholars disagreed about the merits of native vs. Roman law, their contest would not have been so dramatic if other, unacademic, i.e. political, considerations had not been involved. The quarrel was so violent because it concerned political feelings. It was all about the very touchy issue of national against foreign law...

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Analysed Sources of Law

The scholars of German Historical School studied various legal sources from the past.

The Romanists paid attention to the texts of Roman law and their interpretation in the Middle Ages.

The Germanists took a closer look on the texts of Germanic origin.

Savigny himself published several rare medieval documents in appendices to his famous “History of Roman Law in the Middle Ages”

(1st ed. from 1815 to 1831).

Indeed, both groups of scholars were responsible for a great number of carefully edited and published ancient and medieval primary sources (statutes, glosses, summae, commentaries etc.). All this was due to the immense interest in history and the remarkable progress in the study of manuscripts and their interrelationships (the so called codicology). Perhaps, the best known example of these academic efforts was the voluminous series of “Primary Sources on German History” (Monumenta Germaniae Historica), published since 1826 to our days.

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

p.272.

…The Germanists were breaking new ground <i.e. were studying and editing new sources on German general and legal history>. The Romanists were bringing new techniques of scholarship to bear on their study of sources which were for the most part well known; some new sources, however, were revealed. In 1816 <German historian Barthold> Niebuhr discovered the Veronese palimpsest of Gaius’ Institutes and thus brought to light the only largely complete classical work to survive untouched by Justinian’s compiles; other pre-Justinianic fragments of legal writings were also found during this period, such as the Vatican Fragments. <Around 1820 Friedrich> Bluhme’s investigations resulted in his (generally accepted) theory of how the digest had been compiled

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by three committees, each going through a different block of material.

Methods

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

The general principles of the Historical School were not new; indeed, they bear marked similarities to many of the notions put forward by the Humanists <who actually had discovered legal history>. Essentially, its followers maintained that law evolved and was continually modified by conditions of time and place. What made their thinking important in European jurisprudence was its rejection of the schematic, universal approach of the Natural Laywers who had dominated the previous two centuries <i.e. the 17th to 18th centuries>. The men of the Historical School were interested in legal history in order that contemporary law could be firmly rooted in its historical past….

<...>

… the work of the Romanists and the Germanists represented two sides of the same coin; both engaged in an historical investigation of the evolution of law in order to advance the law in nineteenth-century Germany. (p. 272)

Rudokvas A.D., Kartsov A.S. The Development of Civil Law Doctrine in Imperial Russia under the Aspect of Legal Transplants (1800–1917).

<According to German legal historian Hans Hattenhauer> Savigny elaborated a rather complicated and German concept of Rechtswissenschaft (i.e. legal science). “To make his theory work in practical life, Savigny obliged the legal profession on the truth-finding power of logic, on a logically structured system of law. This system appeared to him as a great and complicated building, in which the

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concepts of law (Begriffe) served as bricks. The main task of a jurist – a task, which he rather reserved to the work of legal theory – therefore was giving a clear definition of legal concepts that is of persona, res, dominium, actio, contractus etc. He believed that these concepts had already existed before man started to think. To him they were living creatures. And their mutual relation was that of hierarchy, a firm and solid, logically founded static order, similar to a triangle resting on its base. In its top stood the highest-ranking concept, from which by descending downwards one could discover all existing concepts of the world of law. In this scheme law appeared as a tightly closed-up world of its own, steered by the power of a logically founded theory. The adherents of this view were convinced that the correct knowledge of these concepts, and their correct treatment, must bring about true law. Logic was the source of law, and logic alone – a source, which evidently is non-political. The science of law thus was nothing else but “counting with concepts”, in other words, a sort of mathematics.”

Critique of the Historical School

Robinson O.F. European legal history: sources and institutions, p. 273.

Savigny’s reputation was outstanding, but he had his critics. <Gustav> Hugo <professor at Göttingen University, who initiated historical studies in Germany even earlier than Savigny> thought that his theory of the Volksgeist was too abstract and out of step with a reliance on empirically ascertainable historical fact. German commercial lawyers were satisfied with the Roman law developed by the Commentators as relevant to their needs; they did not want to regress to doctrines taken from the less developed classical Roman law. Rudolph von Jhering (1818–1892) was also a Romanist; his thinking about legal evolution, as expressed in “The Spirit of Roman Law”, differed from Savigny’s in stressing the similarities between legal systems. He was not prepared to accept the strongly nationalistic

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approach of the Historical School, but thought that the ability to borrow wisely was one of the glories of a legal system. The comparative method of studying other systems as well as one’s own enabled the absorption of those foreign doctrines and institutions which were most profitable.

Significance of the Historical School

[A note from the instructor]

The Historical School succeeded in combatting the extremely abstract doctrines of natural law of the 18th century. It firmly established the view that law was the product of national history, and that the knowledge of law requires studying national legal sources.

The leader of the Historical School, F.C. von Savigny, elaborated a complicated concept of legal science as a logically coherent body of ideas, concepts, principles, and institutes.

But above all the Historical School managed to discover true legal history.

Wieacker F. A history of private law in Europe with particular reference to Germany, p. 336–337.

The Place of Legal History in Legal Science.

The discovery of true legal history and its emancipation from legal doctrine effected a change in the whole mentality of lawyers. It is impossible to exaggerate the importance of this… The professional interest of the legal historian is thus determined and driven by his own experience of the problems of law; if he has no personal experience of law he cannot distinguish legal history from general history, much less interpret it… His sense of justice as well as of specific legal questions and problems is at once historically conditioned and absolute. Legal history as 'the history of a problem" is thus an independent discipline, the study of legal problems and solutions in the whole past of

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mankind.

… The Historical School set the process in train but then paradoxically frustrated its plans by turning legal doctrine approached historically into a positive science of law <i.e. it gave way to the study of the school of Pandectists and the ideology of positivism, see below>.

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

143.

The paradoxical result was that Savigny was the leader of the Historical School and at the same time the precursor of the German study of the Pandects (Pandektistik), a nineteenth-century doctrine wholly based on Roman law and entirely unconnected with the German

Volksgeist.

Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 141– 144.

2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000, chapter 16.

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, p. 115–119.

Supplementary readings

1.Coing H. German «Pandektistik» in its relationship to the former «ius commune» // The American Journal of Comparative Law. 1989. Vol. 37. № 1. P. 9–15. <jstor.org>

2.Gale S. A very German legal science: Savigny and the historical school // Stanford Journal of International Law, 1982, vol. 18, p. 123–146.

3.Kantorowicz H. Savigny and the historical school of law // Law

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quarterly review. 1937 № 53 p. 326–343.

4.Klenner H. Savigny's research program of the historical school of law and its intellectual impact in 19th century Berlin // The American Journal of Comparative Law, 1989, vol. 37, № 1, p. 67– 80. <jstor.org>

5.Reimann M. Historical School against Codification: Savigny, Carter, and the Defeat of the New York Civil Code. // The American Journal of Comparative Law, Vol. 37, No. 1 (Winter, 1989), p. 95–119.

6.Reimann M. Nineteenth Century German Legal Science // Boston College Law Review. 1990, vol. 31, № 4, p. 837–897.

7.Savigny F.C. von. Of the vocation of our age for legislation and jurisprudence, London, Littlewood and Co., 1831.

8.Wieacker F. A history of private law in Europe with particular reference to Germany. Translated from German by Tony Weir. Oxford, 1995, p. 279–340.

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Questions

1)Why did the new movement of the Historical School begin in Germany?

2)Who were the main representatives of this school?

3)Why did the Historical School criticise the School of Natural Law?

4)What is Volksgeist according to Savigny?

5)Why did Savigny oppose Thibaut on the issue of codification of German law in the early 19th century?

6)What was the difference between the Romanists and the Germanists?

7)Who criticised the Historical School and what for?

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Topic 9. Legal positivism in Europe in the 19th century

Topic outline

Positive law and legal positivism. The notion of legal positivism in the ‘long 19th century’: its emergence and its features. Political, economic and legal causes of legal positivism. Legal norm as sovereign’s order backed by public force.

The age of codifications. Leading role of statutes and codes in the hierarchy of sources of law in Europe. Legal doctrine deprived of its normative status.

French school of exegesis. Reform of legal education and change of priorities in legal policy: literary interpretation of statutes in commentaries and judicial decisions. The limits of such exegesis and its critique towards the end of the 19th century.

The school of German Pandectists. Persistence of the learned law and legal fragmentation in Germany until the end of the 19th century. Transition from the Historical school to the Pandectism. Academic programmes of G. Puchta, H. Dernburg, B. Windscheid: comprehensive scientification of legal science, development of a coherent body of legal notions, separation of legal science from all non-legal elements (including morals and politics). Law as a closed and gapless system. The role of scholars, judges, practicing lawyers in this new system.

Codification of German private and procedural law and its consequences: shifting from legal positivism to textological positivism.

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