GERMAN UNIFICATION AND THE CIVIL CODE OF 19oo

In the early nineteenth century Germany found itself in a dra­matic predicament. Having emerged victorious from the �wars of liberation’ against Napoleon, it faced several political and legal options.

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 ever-developing 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.^[118]

There were some strange contradictions in Savigny’s attitude: how could the law, rooted in the Volksgeist 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 Prqfessorenstreit 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 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 eighteenth­century 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.