Intro_continental_legal_science [Unlocked]

single code applied throughout German territory, scholarship was the principal means of interpreting the learned law, mainly by the issue of binding opinions (Gutackten) by the faculties of law to the courts.

German civilian doctrine was fundamentally different from the French School of Exegesis in substance as well as method.

The Pandectists.

Robinson O.F. European legal history: sources and institutions, p. 273–275.

The Pandectists originated as an off-shoot of the Historical School, and their main concern was the scientific application of the Roman texts. Like the Historical School, their methods prompted discussion and imitation throughout Europe – including England – and also in America. The Pandectists took their name from the Pandects (i.e. the <Greek name for the> Digest) of Justinian and their scholarship was essentially concerned with the systematization of Roman law for contemporary use, with the emphasis on the jurists of the classical age.

The Pandectists were to some extent influenced by the rationalist Natural Lawyers, back to Pufendorf, in that they aspired to a rigidly schematic approach. They too tried to create an interlocking system of legal rules and concepts, from which solutions to new legal problems could logically be drawn; this was undoubtedly due to the particular influence of Wolff. Like the later Natural Lawyers, the Pandectists were influenced by the natural scientists of their time; they aimed to identify a new kind of truth, the positive or scientific truth, by observation and experiment. They were thus legal positivists, in that they expounded the principles of observed law as something without any logical link to moral justice. Once data had been collected, analysis could determine what was cause and what effect; classification and definition were also essential parts of the scientific method. It was possible, if not common, for a Pandectist to compare the discovery of legal principles with the

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analytic methods of chemistry.

The school was founded by Georg Friedrich, Puchta (1798 – 1846), a pupil of Savigny who succeeded his master in the Berlin chair in 1842. Puchta himself was indebted to Savigny, particularly for the latter’s theory of the jurist as representative of the Volksgeist, and in his turn he influenced his master. Puchta believed that the jurist, as representative of the people, was responsible for both the theory and the practice of law and must use his skills to express rules and concepts hidden from the untrained mind. This special position meant that the rules elucidated by the jurist should ipso facto have the force of law – legal science therefore joined custom and legislation as a source of law. Moreover, it was the jurist’s duty to guide both legislator and people and guard the law from any rash or ignorant interference. The jurist must also place legal rules in their systematic context, recognizing their effect upon one another, and acknowledging their lines of derivation, so that each rule could be traced back to its underlying principle; thus, he could demonstrate the internal harmony of the legal system. This method, which is known as Begriffsjurisprudenz (jurisprudence of concepts), aimed at creating a hierarchy from the very concept of law itself down to each particular rule, the validity of an individual rule being dependent on its logical place in this hierarchical pyramid.

The construction of such a systematic hierarchy of concepts clearly demanded definition of all the concepts involved. As time went by, these definitions tended to become more and more abstract and to lead their framers into language more familiar to legal philosophers than to practitioners. For example, a legal right was defined as 'a power of volition', a legal act as ‘a definition of will', while the protection of peaceful possession was justified on the grounds that 'the law respects the realized will'.

Savigny, under the influence of Puehta, moved in his later years more strongly towards the systematic and away from the empirical in his study of Roman law. Even in his treatise on possession, some of his deductions had more in common with mathematical formulas than with

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the social realities of Roman law. His (unfinished) ‘System of Modem Roman Law’ (System des heutigen Römischen Recht) typifies well Pandectist legal science (Pandektenrecht). The material was to be arranged under obligations, property, family law, and succession, with further subheadings as appropriate. Certain basic concepts which applied throughout the system, such as status and juristic personality, he treated separately in the General Part with which he opened. He followed the same method within his treatment of obligations, explaining the generally applicable concepts before dealing with particular fields and their rules. The other major work of the Pandectists was Windscheid's ‘Textbook on the Pandects’ (first published in 1862) which went through seven editions in the author’s lifetime <Windscheid died in 1892> and became the standard manual of Pandectist doctrine. It was arranged according to the system outlined by Savigny. Unlike that of most of his fellows, Windscheid’s work was of use to practitioners because he made frequent reference to court decisions.

Although some Pandectists became as rigidly schematic as any of the more extreme rationalist Natural Lawyers, their roots in the Historical School meant that they preferred the Roman law of the Classical period to Justinianic law, let alone the modifications of the medieval civilians. This caused a degree of conflict with the majority of lawyers actually practising law, who adhered to the Gemeines Recht in the tradition of the usus modernus Pandectarum. Of the supporters of the latter approach, <Carl Georg> Bruns (d. 1880), for example, in his treatise on possession examined both the original Roman law and its evolution and the changes the concepts and rules had undergone since the twelfth century. He justified these changes on the grounds of their expediency and thus implicitly approved their continued application.

The Pandectists were a strong force in German legal thinking in the nineteenth century. Greater systematization that the Gemeines Recht offered was certainly desirable for the exposition of the law, whether to students or to the public, and also for its application. Again, although the Pandectists claimed to be politically neutral and concerned only

with private law, their values were those of the dominant 202

prosperous middle class which believed in the theory of laissez-faire, they stressed freedom of contract and the protection of private property

– as indeed the Romans had. Finally, Pandectist legal science was attractive because it represented unity and not diversity: it offered a common juristic culture which took no account of regional variations, and it was therefore of appeal to the forces of nationalism. Their Romanism, however, was disliked, particularly by the Germanists of the Historical School.

Representatives of Pandectism

Wieacker F. A history of private law in Europe with particular reference to Germany, p. 351.

Pandectism produced many great legal scholars of enduring fame. Its theory had such intellectual potential and the level of achievement set by its originators was so high that its later practitioners could do excellent work even if they were not especially gifted. More talented scholars achieved wonders. There is such a wealth of them that selection is difficult, and their achievements hard to summarize, but in the generation after Puchta the following stand out in terms of character and effect. Vangerow (1808–1870) is noted for his widely admired lectures in Heidelberg and his Pandects, which went through many editions; Aloys Brinz of Munich (1820–1887) was one of die leading experts in the doctrine of German private law, a man of great originality and creative imagination as well as penetrating intellect; Ernst Immanuel Bekker (1827–1916) was a scholar of catholic interests, brimming with juristic ideas; at the end of that period we can add Regelsberger (1827–1916, in Gtittingen from 1892) for the maturity of his approach and the sharpness of his perception. Arndts (1822–1880) was a sober and clear-thinking jurist whose Pandects (1852) went through fourteen editions, and who said to Jhering by way of a joke that he had failed his entrance examination to Conceptual Heaven because his views 'were insufficiently theoretical; he had yielded to the exigencies of practical life to the detriment of the purity of his theory'. Heinrich Dernburg (1829–1907, in Berlin from 1873) was perhaps even

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more practical in his understanding of law and his sense of the requirements of life; he applied the Pandectist method to the private law of the ALR, whose development the historical school had left to practitioners, and his Pandekten demonstrate how closely in touch with life positivism could remain, and how on its own terms it could appreciate and advance the needs of practice.

Outstanding even among these is Bernhard Windscheid (1817– 1892), not so much through daring or idiosyncrasy, but by reason of his disciplined objectivity,

Criticism of Pandectists.

Van Caenegem R.C. An historical introduction to private law, p. 158–159.

… the traditional middle-class <German> lawyers of the two countries shared an essentially conservative and text-orientated approach. It was precisely this which provoked a violent reaction in Germany in the second half of the nineteenth century. The revolutionaries who called the prevailing doctrine into question did not see law as an academic exercise consisting of elaborating and refining legal concepts. They saw it as a struggle between opposing forces and interests. For them, law was above all a social product and a tool for social action, rather than the privileged domain of learned jurists; their doctrine is known as <jurisprudence of (social) interests>, as opposed to the traditional <conceptual (abstract) jurisprudence>. It was necessary therefore to establish what social objectives were to be achieved with the aid of the law: hence the title of the radical work by Rudolf von Jhering (d. 1892), On Purpose in Law (1877) and its motto 'Purpose is the creator of all law.'

Jhering had himself begun as a traditional Romanist, but he became dissatisfied with abstract logical reasoning and involved in the social problems of his time, and this led him to develop his own concept of law… His Struggle for Law (1872) caused a sensation by presenting law explicitly as the object of a struggle for collective interests and for

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power, and so, ultimately, as the result of political forces.

… if statute was the sole source of law… it necessarily followed that law was the instrument of the forces which dominated the state and its legislative organs.

Robinson O.F. European legal history: sources and institutions, p. 275.

Many others, like Jhering, came to find their methods far too abstract and doctrinaire, and quite neglectful of the realities of social life. In his ‘The Spirit of Roman Law <on the Different Levels of its Development’ (1852–1865), Jhering moved away from Pandectist legal science and attempted to provide a sociological explanation for the evolution of the rules of Roman law. He laid the foundations of what was to become known as the jurisprudence of interests; that is, the approach which argues that the duty of a judge, especially when faced with a doubtful decision on a matter for which there is no explicit legislative provision, is to settle the case according to that estimate of the correct balance between the competing interests of the parties concerned which was to be found in the work of the legislator. The judge is not free to follow his discretion but must always look within the written law for this balance; nevertheless, he should concern himself with the legislator's social aims rather than with the ordering of concepts. Jhering stressed that legal science was concerned with social relations in general and business purposes in particular, and that the ideas of justice, law and the state were interdependent. There could be no clear and Permanent line drawn between private and public law since the state must be interested in the pursuit of activities desirable for the community. Historical evolution and present needs defined justice for the particular place and time. Legal concepts had no meaning apart from the activities of human life.

Socialist criticism of positive legal science.

Wieacker F. A history of private law in Europe with particular

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reference to Germany, p. 359–360.

A generation later <after Jhering> Otto von Gierke (1841–1921) spoke out more decisively for collective interests <as represented in the history of Germanic people and their communal ways of living>.

<He offered> insights into the social role of law and indeed the whole structure of society…

<Gierke,> this great opponent of Pandectism adopted its systematics and conceptualism, apparently without realizing it his theory of corporations and joint property was presented as a breakthrough from positivism, but is in fact overloaded with doctrinal formulas, and his ‘German Private Law’ <Gierke’s principle work published in 1895 to 1917> can be offered as a leading example of how far Pandectism had come from historical interpretation of law. His view of the state as an organism is throughout based on the prevalent view of the constitution so that, although he abandoned economic liberalism and had new and fertile insights into the way social groups create law for themselves, he remained within the bounds of accepted thinking about the national state and the state ruled by legislation. He fought against Romanistic Pandectism in so many different guises – as Germanist, as 'philosopher of life', and as the spokesman of a social policy for law – that it is hard to say which of them was the most significant.

<...>

Karl Marx was a keen observer of Pandectism. He mercilessly laid bare the class function of law in the post-feudal bourgeois society, but saw no need to explain the foundations of private law, as he took it to be a phenomenon of the power relations and consciousness of alienated society which would fade away in accordance with the dialectical law of history. For a time his followers in Germany and Russia agreed with him.

<...>

<Anton> Menger, an <Austrian> lawyer whose important 206

polemical piece 'Private Law and the Dispossessed Classes’ (1890)… mounted an attack of principle against the legal ideals of pandectism and the First Draft of the BGB <i.e. German Civil Code>. His penetrating social analysis highlighted the advantage which the apparently abstract and neutral private law afforded to the founders and beneficiaries of the Industrial Revolution at the expense of the economically weaker classes in society…

Lasting Heritage of Legal Positivism.

The Spread of Pandectism in Europe

Wieacker F. A history of private law in Europe with particular reference to Germany, p. 350–351.

Pandectism travelled apace. Both branches of the historical school bore fruit in Switzerland, though its scholarship always retained a local flavour; this was due to J. J. Bachofen's apprenticeship with Savigny, the work of Savigny's pupil Keller and the early work of Bluntschli in Zurich, followed by frequent scholarly exchanges. Bluntschli's Code of Private Law for Zurich (1853–1856), the Code of Obligations of 1887, and even Eugen Huber's splendid Civil Code are all thoroughly imbued with Pandectism, although they are not quite so abstract; indeed the Civil Code may be the most mature piece of legislation it engendered. The historical school took root in Austria a little later, after the reforms of Thun and Hohenstein, when the work of Hasenöhrl, Unger, Exner, and their followers in applying it to the BGB produced very interesting results. Ludwig Mitteis made Austria pre-eminent in applying it to ancient legal history.

But even outside the area of German language and culture Pandectism made its effects felt very early. The method and system became dominant in Hungary and south-eastern Europe, especially in Greece; in the old heartlands of European legal study its effect was even greater. Savigny's pupil Wamkönig took it into Belgium right away. In Italy it contributed to the brilliant renaissance of Romanistic doctrine and Roman legal history which took place after national unity was

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achieved in 1861–1870. In France its influence was weaker, but it managed to survive the breach between the nations in 1870. Russia and Scandinavia were affected mainly by its methodology. It even reached England which, though it had played its part in intellectual movements in Europe, had steadfastly refused to import continental legal methods ever since the late Middle Ages. The importation now was due to John Austin, a significant figure although rather an outsider, and later to legal historians such as Pollock, Maitland, and Holds worth. Once codes and laws drafted in central Europe began to bite in the Near and Far East and in Latin America, it was possible to add a Central European legal family to the Anglo-Saxon and French families of law. By such peaceful conquests Germany's private legal science repaid or handed on what it had received over the centuries from other nations – from Italy in the thirteenth to the sixteenth centuries, from The Netherlands in the seventeenth and eighteenth, and from France in the sixteenth century and again at the beginning of the nineteenth.

Superiority of scientifically arranged law over case law

Dawson J.P. The oracles of the law, p. 100.

(citing Woldemar Engelmann in ‘Die Wiedergeburt der Rechtskultur in Italien’ (Leipzig, 1938):

Precedent justice is not only illogical but pernicious, because it interferes with the wiser conclusion of a later judge through the ‘prejudice’ of the earlier judge and serves the comfort of the indolent judge. Its sway marks a lack of legal culture. (Precedent-justice rules where there is no scientific knowledge or theory to enrich and guide legal practice and legislation – it exists where legal practice teaches legal practice, as in England. Judges lacking independence favour it, since it is comfortable and saves effort, work and personal responsibility.) A mark of Rome’s high legal culture is its <i.e. precedent-justice> systematic prohibition.

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Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 147– 151, 155–159.

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

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, p. 119–128.

4.Bellomo M. The common legal past of Europe (1000-1800). Washington, 1995, p. 21–25.

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.Gardner J. Legal Positivism: 5 ½ Myths // American Journal of Jurisprudence. 2001, 46. P. 199.

3.Greene L. Legal Positivism // The Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/legal-positivism/>

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

5.Wieacker F. A history of private law in Europe with particular reference to Germany. Translated from German by Tony Weir. Oxford, 1995, p. 341–370.