Contents
Preface page vii
1 The national codes: A transient phase
One code for every country? i
Anglo-Norman feudal law 2
Germanic elements in the Code civil 3
The German Civil Code based on Roman law 4
Change or continuity? 7
The ius commune, transnational by definition 13
The English common law purely English? 19
2 Ius commune: The first unification of European law 22
Tribes and nation states 2 2
The medieval ius commune 24
Towards a�new ius commune’? 26
Doubts about a �new ius commune’ 30
Thechancesoflegalunification 33
The past inspires optimism 3 6
3 Common law and civil law: Neighbours yet strangers 38
Six contrasting areas 3 8
The common law uncodified 39
Public and private law 41
The English Bench is paramount 44
The continental professor is paramount 45
Substantive law and procedure 48
Adversarial and inquisitorial process 51
4 The holy books of the law 54
Biblical and legal scripture 54
The Corpus iuris a holy book 55
The American Constitution and original intent 5 6
The Code civil and the School of Exegesis 62
5 Why did the ins commune conquer Europe? 7 3
The re-romanization of the West 7 3
Legal causes 74
Political causes 75
Cultural causes 79
Economic causes 80
Opportunistic causes 82
The ius commune a good thing? 84
Graeca non leguntur 86
6 Law is politics 89
The �Realist School' 89
German unification and the Civil Code of 1900 90
Germanists and Romanists 92
National feelings 94
The �Social Question' 95
The �Forests of Germany' 97
The Civil Code becomes law 98
Civil Code or the people's lawbook? 100
Jurists in the Third Reich 103
Epilogue: A look into the twenty-first century 134
Bibliography 144
Index 168