Intro_continental_legal_science [Unlocked]
.pdfNotable critics of legal positivism and their arguments: O. Gierke, R.
Jhering, K. Marx, A. Menger.
Excerpts from Readings
Dawn of Legal Positivism
The Province of Jurisprudence Determined <finally!>
Glenn P.H. Legal traditions of the world: sustainable diversity in law. p. 151.
Much of what has occurred in western science and law in the last three centuries or so has been the working out of the idea that you can change both the world and the law, since they are simply positive objects or constructions. The two ideas are very closely related to one another, and their interdependence is perhaps most evident in the idea that you cannot use the law to prevent changing the world. You can’t prevent scientists from changing the world since it’s just a fact, with no normative significance… The underlying proposition is still strong... So while the scientists construct a newer positive world, while observing and learning from the actual one, the lawyers construct newer positive law, as the instrument of human rationality. The idea of law as command was perhaps the first abstract formulation of this idea (Footnote: Formulated in England in the mid-19th century by John Austin <in The Province of Jurisprudence Determined (1832)>, though after extended immersion in German legal theory and preceded in formulation, if not publication, by the work of Jeremy Bentham) but the idea of positive law has subsequently been the object of profound and sympathetic development… Posited <i.e. positive> law would be ultimately grounded in a presumed basic norm <in Hans Kelsen’s words> authorizing present institutions to formally create law, and masking contact with other traditions or historical origins.
Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies p. 481.
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John Austin, having spent the winter term of 1827–1828 in the idyllic and peaceful Rhenanian university town of Bonn, far away from the bustle of London and the irritating failures he had suffered at the chancery bar, was unrivalled in his admiration for the modern version of Roman law as it had been interpreted, refined and further developed by the German scholars of his time. It was, he exclaimed, “greatly and palpably superior, considered as a whole, to the law of England. Turning from the study of the English to the study of the Roman law, you escape from the empire of chaos and darkness, to a world that seems by comparison, the region of order and light”.
Legal Positivism in France
The post-revolutionary France
Van Caenegem R.C. An historical introduction to private law, p. 147–148.
The Napoleonic codes… inaugurated a century of stability.
Judges had only to respect them and apply them strictly; authors had merely to interpret the articles of the codes faithfully. It was out of the question now for case law or scholarship to attempt to innovate or play a creative role. Law had merged with statute, the statute was the work not of professors or magistrates, who had no mandate to act in the name of the nation, but of the legislator, the sole representative of the sovereign people.
During the Revolution the universities of the ancien régime, and their law faculties in particular, had been abolished. Some years later, schools of law were founded again, and in 1808 university teaching of law recommenced, although on a very different basis. The new system provided for a single Imperial University comprising twelve faculties of law, which were of identical standing and were under the direction of a central administration. Teaching and the subjects taught were strictly supervised by five inspectors-general. In 1809 a vice-rector was
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actually appointed in order to oversee the dean of the Paris faculty. This system was not operated in its full rigour, but it did for long influence the French university world profoundly. It is scarcely surprising, in an atmosphere of extreme subordination to statute, and mistrust of both case law and scholarship, that what the dominant school of thought practised was literal interpretation of the codes; it is for that reason known as the Exegetical School. Rarely in history has a single movement been predominant for so long and so totally as was this school in nineteenth-century France and Belgium. That was in part because of the stability of the legislative texts commented on: for, while the Constitutions of France rapidly succeeded each other, the Code civil, like a rock in a tempest, remained immovable.
School of Exegesis
Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity over Two Millennia (2002), p. 62–70.
The Code civil and the School of Exegesis.
The Greek word ‘exegesis’ meant ‘explanation of authoritative but difficult texts’, such as the pronouncements of the oracle. From classical Greek the term entered Christian theology, where it indicated the word-for-word explanation and elucidation of
Holy Writ: the exegete was an interpreter of God’s word (‘biblical exegesis’). In the seventeenth century the term was applied also to the explanation of legal texts by the philosopher Leibniz who, ‘after the example of theology’, distinguished four methods of learning the law <didactical, historical, exegetical, and polemic>. In the same century the term ‘exegesis’ appeared in English, meaning the exposition of scripture, and later more generally any gloss or explanatory note or discourse. In nineteenth-century France the term was applied to a particular method of literal explanation of the Napoleonic codes, treated as if they were as authoritative for the law as Holy Writ was for religion
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and as the sole source of the law. It was the legal historian Emile Glasson who called those professors, who ‘taught, not the law but the Code’, the ‘School of Exegesis’, and in 1924 the civilian J. Bonnecase devoted a detailed monograph to the School… The term fitted the nineteenth-century ‘somewhat superstitious’ respect for the Code, which has been described as sacralised. It was this ‘superstitious’ attitude which produced a ‘generation of law professors who saw themselves as having only one function, namely, the explanation of the code, article by article, following the order adopted by its drafters’. Professor Aubry, in an address of 1857, maintained that it was the mission of the law professors to ‘protest against any innovation tending to substitute an alien will for that of the legislator’, thus betraying a truly medieval aversion to all <novelties>.
Towards the end of the century the restricted and narrow approach of the School was criticized by the Scientific School, which felt that other sources besides the will of the legislator were important and that lawyers should be aware of the wider social context. The succession of the Exegetical by the Scientific School is in some ways comparable to what happened in the Middle Ages, when the glossators of Roman law were followed by the commentators, who dared to look beyond the confines of the very words in Justinian’s law book and give their attention to feudal customs and urban statutes.”
At first the new Civil Code was heralded as the fruit of reason itself, and a law book of transnational and even universal significance. These thoughts not only circulated among the French, but even German scholars believed that the Civil Code, being based on both Roman and Germanic principles, could ‘claim universal validity’ and lead to a ‘rational development of the law on historical and national foundations’.
… the Code of 1804 was the fruit of a protracted wrangle and party political in-fighting…
<However> As soon as that Code was published, all this strife
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was forgotten. The paix bourgeoise (bourgeoise peace) had descended upon France and a holy book had fallen from heaven. It contained the law, the whole law and nothing but the law. It symbolized peace, stability and unity. It was conservative and, as far as the law of persons was concerned, even reactionary, but it corresponded to the mood of the nation, which had turned its back on the turmoil of the recent past. It was on this firm rock that the Exegetical School was to be built.
Its protagonists were well aware that the Code suited the political climate and said so in so many words. Thus we read in J. B. V. Proudhon’s Cours de droit français of 1810 that the Code ‘is a completely new body, consisting of the wisest maxims . . . all methodically coordinated and linked in a system that suits our political situation’...
It was in order to safeguard the new political state, and the new bourgeois social order, that the Civil Code had to be defended against all possible forms of contamination, by Roman law, canon law, ancient customs and particularly natural law. Having played its role in the subversion of the Ancien Régime, this, the law of reason, was now safely put away: France had had enough subversion, and natural law was only a dream which had run its course. After all, the norms of natural law are nowhere to be found in writing, so where could a judge possibly trace them?
Hence the two principal tenets of the School, i.e. that the whole law is in the Code and that the literal explanation of its text is the only acceptable approach. Neither jurists nor judges should venture outside its safe parameters. As far as the learned commentaries were concerned, Napoleon – following in the footsteps of Justinian – would have preferred that there were none. This was, of course, asking too much of the learned jurists who had been writing treatises for centuries and could not suddenly give up their dearest vocation. Nor did they wait many years to go to work. The first of the four volumes of Jacques Maleville’s Analyse raisonnée de la discussion du Code civil (Reasoned analysis of the discussion on the Civil Code) was published as early as
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1805. It was said that when Napoleon was handed a copy, he exclaimed: ‘a commentary: my Code is lost!’. Maleville’s first volume was followed in 1808 by Delvincourt’s Institutes de droit civil français (Institutes of the French civil law) and many others, which had in common their absolute respect for the Code, its order of articles and its terminology, and the absence of personal interpretation, philosophical reflexion or criticism, which those in power would not have tolerated. Legal history, in particular, had nothing to do with the teaching of the Faculties, nor did comparative law. Proudhon, professor and dean in the Law Faculty of Rennes, who died in 1838, expressed the feeling in terms that seem absurd in their starkness. According to him the Code was ‘a completely new body of rules’ – so what was the use of ancient antecedents? – and the principles of the law should be discovered <‘by comparing the Code with itself’> – so what was the use of comparative law?”
Representatives of the School
Van Caenegem R.C. An historical introduction to private law, p. 148–150.
Philippe Antoine, count Merlin de Douai (d. 1838) published a
Repertoire universel et raisonne de jurisprudence and a complementary Recueil alphabetique des questions de droit.
Jacques de Maleville (d. 1824), who has already been mentioned as one of the compilers of the Code civile from 1805 published an
Analyse raisonnée de la discussion du Code civil au Conseil d'Etat.
The German jurist, K. S. Zachariae (d. 1842), who was a professor in Heidelberg, … in 1808 published the first proper commentary on the Code civil. His ‘Textbook of French Civil Law’ (2 vols., Heidelberg, 1808, 2nd ed. 1811–1812) is a treatise on the Code civil which follows the order and method of… Roman law as applied in Germany.
A. Duranton (d. 1866), professor in Paris and the first French
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author of a complete commentary on the Code civil (Cours de droit français suivant le Code civil, 21 vols., 1825–1837)… this first 'pure exegete’.
Another exegete was R. Troplong (d. 1869), who was a magistrate and president of the Cour de Cassation. He started to publish his work ‘Le droit civil expliqué suivant les articles du Code’ in 1836. It finally reached twenty seven volumes.
A third influential jurist was J.- C - F. Demolombe (d. 1887), who taught civil law for half a century … His Cours du Code Napoleon in thirty one volumes was published between 1841 and 1876.
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… two professors of the university of Strasbourg, C. Aubry (d. 1883) and F.C. Rau (d. 1877) <wrote> a celebrated and authoritative commentary Cours de droit civil français (1838) <modelled after Zachariae’s textbook>. <They> occupy a special place in the French School of Exegesis. They were familiar with German systematic jurisprudence in general and the work of Zachariae in particular… In the third and fourth editions of 1869 and 1879 <Cours> became a complete and original French work, owing to German influence it occupies a place apart in legal literature. The subject-matter was not in the order of the code, but arranged according to a system of general concepts which had been particularly popular in Germany since the days of the School of Natural Law. German influence also explains why the authors make a distinction (unusual in France) between theoretical and practical civil law.
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Belgium was a colony of the French School of Exegesis. The Belgian exegetes are distinguished only by their extremism, and by the fact that they adhered to the exegetical method much longer than the French themselves. The dominant figure in nineteenth-century Belgian jurisprudence, and the only Belgian jurist of repute in France and
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internationally, was Francois Laurent (d. 1887), a professor at Ghent. As a lawyer, historian and politician… a liberal and fiercely anticlerical… His principal work, Principes de droit civil, appeared in thirty-two volumes between 1869 and 1879; an abridged version for the use of students was published under the title Cours élémentaires de droit civil (1878)…
It was also in Belgium, and in Ghent in particular, that the School of Exegesis survived the longest.
In the Netherlands, the School of Exegesis never acquired the doctrinal near-monopoly which it had had in Belgium. In any case, jurisprudence in the Netherlands was not influenced exclusively by French thought: German thought, especially the Pandectist, and Historical Schools (which went more or less unnoticed in Belgium), had a greater influence there.
… a new method (the 'Scientific School' <which was critical of the school of exegesis>) had grown up in France around 1900 and had also spread into Belgium.
Basic Assumptions and Methods of the School of Exegesis
Van Caenegem R.C. An historical introduction to private law, p. 150–151.
The essential theses of the School of Exegesis were that law and statute were identical, and the other sources of law – custom, scholarship, case law, natural law—had only secondary importance. To understand the exact meaning of the codes, it was necessary to set out from the text, from the text alone, and not from its sources. Scholarship and case law had therefore to resist going back beyond the codes, for that would inexorably lead to uncertainty. The legislator had chosen between different possibilities ancient and modern and, if his choice was not observed, the law would sink back into the diversity and uncertainty of the old sources, and so into the very faults for which the old law had been criticized. This approach (fairly described as
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'fetishism for written statute') also ruled out any recourse to natural law or 'general principles of law'. Demolombe asserted that 'clear law' required no commentary, and that the law 'ought to be applied even when it does not appear to conform to general principles of law or equity'.
According to Laurent, authors who invoked the 'spirit of the statute' to mitigate its literal meaning were guilty of trying to revive the ancient supremacy of scholarship and to seize a creative role in the development of law; guilty, in other words, of usurping the function of the legislator. The task of scholarship was 'not to reform but to explain statute'… Considerations of equity were also irrelevant, since they were individual and subjective… even an unjust statute must be observed. It would be for the lawyers to point to unjust measures, in the hope that the legislator would wish to remedy them. In any case, unjust statutes would be rare because the codes, the nineteenth-century lawyers believed, would correspond to the ideal image of law, for they fused statute, law, and natural equity. This general complacency is one of the most striking characteristics of the School of Exegesis.
Criticism of the School of Exegesis
Van Caenegem R.C. An historical introduction to private law, p. 150, 154.
<Towards the end of the 19th century> criticism was directed not just at the method followed by the school and at its positivistic concept of law, but also at some of the principles of the Code civil: excessive individualism, the lack of an adequate regulation of employment, exaggerated respect for freedom of contract, absolute rights of property, the role of the paterfamilias, and so forth. All these themes have taken on still greater importance in the course of the twentieth century. Here the following names deserve mention: François Geny (d. 1959), author of a Méthode d’interpretation et sources du droit privé français (1899); Marcel Planiol (d. 1931), who in 1899 published the first volume of his
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Traité elementaire de droit civil; and Adhémar Esmein (d. I9I3), founder in 1902 of the Revue trimestrielle de droit civil <Civil law quarterly review>.
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(Ideological and sociological criticism)
…a new method (the 'Scientific School') had grown up in France around 1900 and had also spread into Belgium. This was largely due to the work of the Brussels professor Henri de Page (d. 1969) who wrote a very influential Traité élémentaire de droit civil, which appeared from 1933, latterly in collaboration with René Dekkers (d. 1976), a professor in Brussels and Ghent. One of the first Belgian authors to attack the exegetical method was Edmond Picard (d. 1924), a progressive advocate and socialist senator who regarded law as a 'social phenomenon' which must be studied without 'pedantic erudition' (Le Droit pur. Cours d'encyclopedie du droit, 1899). Professor Jean Dabin (d. 1971) was another lawyer who reacted against the School of Exegesis, more on ideological than sociological grounds.
Legal Positivism in Germany
Van Caenegem R.C. An historical introduction to private law, p.
158.
In the nineteenth century German jurisprudence reached its zenith, both in the development of legal doctrine and in the history and philosophy of law. Its influence was felt in all countries and all areas of law. The technical quality and range of German learning were admired: the advances made by Romanists in the nineteenth century completely transformed understanding of ancient law; the pandectists developed gemeines Recht <i.e. German common law> to an unequalled degree of systematization; at the same time pioneering work in medieval Germanic law was carried out, which is still of value today. Legal scholarship had a profound influence on the practice of law. Since no
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