The Triumph OfPandectist Thought and the German Civil Code

Despite the various schools Ofjuridical thought assailing it, criticiz­ing it from within or contesting it critically from without, Pandectist thought continued to hold firm at the center of German jurispru­dence, and it had an enormous and lasting influence on all European law.

That textbook was written by Bernhard Windscheid and was pub­lished in German in 1862 under the title of PnntUkten. The title alone was significant and illuminating, because by echoing the traditional name for Justinian’s Digest it expressed a clear preference for the por­tion of Justinian’s compilation that focused on iura rather than on leges, thus reflecting a greater appreciation of jurisprudence than of the laws of the Code. Thus new and old were merged; the sistema iuris of the new jurisprudence emerged as consonant with the iura of the Roman jurists. Windscheid⁵S Lehrbuch des Pundektenrechts had an ex­traordinarily large circulation in Germany (a seventh edition, revised by the author, was published in 1891) and not only in Germany. The work traveled across every national frontier and, translated into a number of languages, became an essential text throughout continen­tal Europe.

Windscheid⁵S textbook was of fundamental importance not only for its circulation throughout Europe and for the admiration that it inspired and the acceptance it received. In clear prose and enclosed within a reasoned and programmatically exhaustive summary, it set down the problems that the Pandectists had debated and the solu­tions they had reached.

Bernhard Windscheid himself played a leading role in codification. As a member from 1880 to 1883 of the first commission for the codifi­cation of German law, he was able to cast the first draft of the civil code in the Pandectist mold and to propose the use, in certain specific areas of legislation, of the expository structure that was both his own and the trademark of the Pandectists. Windscheid⁵S presence on the commission, his personal prestige, and his scholarly activities helped to solder the new civil code to the Pandectist “system” that domi­nated all sectors of jurisprudence—the university, the world of the lawyers, and the administration. As a result, the code was pivotal for the entire problematic area that concerned the jurist—although it still did not cover certain aspects of private life such as relations within the royal family, domestic labor, agricultural labor, subsoil rights, and questions related to mining.

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