From the Historical School to the Pandectists
It is almost a corollary to Savigny5S approach that although a “people” can live without a code, it cannot live without a legal “system” that serves to define all relations juridically by the guarantee that gives every individual the same legal status.
The “norm”—that is, the specific solution offered by a provision—is marginal next to the process of legal status. If, for example, a relation between a man and a res is defined as dominium^ any precept is marginal that provides in a specific manner, with more or less detail, for the various “faculties” already included in the theoretical figure of dominium in view of proposing all those “faculties” or even of admitting many and excluding some (which is what makes the norm marginal). Juridical “figures” were needed if relations were to be defined, and those constructs, in Savi- gny5s view, had been created and were readily available (with the clarity and irreducible concision that was the secret of Roman jurisprudence) only in the Roman law—the law of ancient Rome and that same law as it had been revised and reinterpreted in the Middle Ages (the ius commune). As Savigny wrote, despite the “blind rage for improvement” of the eighteenth-century Enlightenment, one must not lose “all sense and feeling for the greatness characteristic of other times... all, consequently, that is wholesome and profitable in history.”[23]Thus Savigny moved quite naturally from his “historicist” thought to develop a “systematic” thought, and indeed his longest work, a classic and a monument in European legal science, is entided System of the Modern Romtin Law.[24] In this work the roots of an ancient thought—the thought of the great Roman jurisconsults and of the great jurists of the Middle Ages—were joined and mingled, thanks to an infusion of new vital fluids, with a new thought that resisted the rampant vogue for codification with a staunch defense of “jurisprudence” and its “function” and “vocation.”
Savigny5S thought gave rise to a scholarly movement whose members were known as ccPandectists,55 a name taken from that given to Justinian’s Digest (Pandectae), which means a comprehensive legal work.
The leading figures in this school were Karl Adolph von Van- gerow in Heidelberg (1808—70), Alois von Brinz in Munich (1820— 87), Karl Ludwig Arndts von Arnesberg (1803—78), the author of a well-received textbook on Pandects first published in 1852 that went through fourteen editions, Heinrich Dernburg (1829-1907), and, above all, BernhardWindscheid (1817-92). These nineteenth-century jurists absorbed and interpreted the bourgeois spirit of their age with genius and acute sensitivity.With the Pandectists the legal “system” crystallized and became the true object of juridical science. Laws became marginal to that science, which rigorously and absolutely excluded “the moral, social, and political conditions” of the community.[25] In this way, the Pandectists gave expression to a rigid formalism operating within a theoretical construction that was at its base ethical but was empty and neutral in its conformation. Thus the jurist-theorist interpreted and realized the need for “order” and ccCertainty55 of the dominant social strata (the bourgeoisie, first and foremost), assured them “rules of the game” that could be freely utilized by anyone who had the (economic) means to do so, and guaranteed each component part of those strata sufficient liberty that individuals could choose their own ends, determine their own actions, and satisfy their own needs on the basis of personal “motives” extraneous to the system and therefore held to be extrajuridical. In this way, juridical resources were merely instrumental; out of respect for individual liberty this order did not focus on the motivations or the ends on the basis of which people acted, did not assign juridical relevance to those motivations and ends, and did not indicate what should or must be done.
What emerged was a framework that obliged the jurists only to see to it that the theoretical constructs had been respected and to judge whether or not the “rules of the game” had been followed.
It also obliged them to take no account of the person who, as an integral being in a specific ethical, social, and economic setting, had performed an act or had been involved in a conflict of interest. “Pouvoir neutre, pouvoir nulle”—where power is neutral it does not exist— applied to judges. Thus the judiciary, one of the great branches of the apparatus of state, was seriously confined, limited, and conditioned by another sort of apparatus, the academic. Throughout the nineteenth century and even after, academic and university circles controlled jurisprudence in German-speaking lands; in fact, until as late as 1900, they succeeded in blocking codification of the law, a highly visible phenomenon that had achieved sweeping and lasting successes in other European lands. This explains the lofty dignity and enormous prestige that German and European universities enjoyed throughout the nineteenth century and for a good part of the twentieth century.The Pandectists thus had an enormous and incisive influence on jurisprudence throughout continental Europe; they were responsible for consequences of fundamental importance in the historical long term. They created a European legal science that proved capable of overcoming the national barriers set up by the various national codes. They connected the new legal science with the old in a redoubtable historical continuum. They returned to the juridical methodology of the ancient Roman jurists and to the refined theoretical elaborations of a medieval jurisprudence that had both enriched European culture and civilization (by its rereading of the ancient Roman law and its interpretation of the medieval canon law) and had enhanced that legacy and defended it from the attacks of “enlightened” eighteenth-century Utopians.
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