THE �SOCIAL QUESTION’
Roman law was not only attacked for political, patriotic reasons, it was also accused of being unsocial. Socialism was gaining ground in Bismarck’s Germany — much to the Iron Chancellor’s alarm — and social concerns were lively also in various parties of Christian inspiration.
It was therefore natural that the German vs. Roman controversy was also conducted in the light of the debate on community feeling vs. individualism. German law was seen by its defenders as socially conscious, ethical, warm and community-oriented, as appeared from the very title of the work of one of its main advocates, Otto von Gierke’s Das Deutsche GenossenschaftsrechtS Gierke was one of the great Germanjurists of the nineteenth century and the spokesman par excellence of the Germanist camp. He was, as we shall see later, a critic of the Civil Code that was being prepared, an antagonist of legal positivism and a defender of the ethical foundations of the law and of its social role: in ι 889 he gave a lecture on â€?the social mission of private law’ (â€?Die soziale Aufgabe des Privatrechts'). After some years in Breslau and Heidelberg, he had an illustrious career in the Berlin Law Faculty during one of its most glorious periods and was therefore involved in all the great issues of legal science and legal politics — notably the social question — of Wilhelmine Germany. Gierke was also interested in the German contribuÂtion to the rise of modern natural law, as appeared from his work on Althusius of ι 880.8 The main object of his criticism was, as could be expected, Roman law. Not, however, that of Antiquity, but the usus modernus and the Pandektenrecht of his own7 The term is difficult to translate. Genossenschaft means â€?community’ or â€?society’ and Genossen are â€?comrades’, so the general idea is of free corporations of comrades or good neighbours.
The (unfinished) work appeared in four volumes between ι 868 and 1913. The Genossenschaftsrecht sees German law as the bond that held families, rural and urban associations, the Church and finally the German state together in a free â€?give and take’ and was inspired by a strong community feeling.8 Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien. Althusius, or Althaus (1557—1638), was a German lawyer and political theorist and a convinced Calvinist and democrat. He defended popular sovereignty against state absolutism, developed a theory of the social contract and was an advocate of political pluralism based on divinely inspired natural law. time, in which he detected an â€?atomizing and individualistic’ approach, which was a threat to the â€?popular German and soÂcial private law’ that the German empire needed. No wonder therefore that economic liberalism was another object of his aversion. Indeed, in contrast to the good old law of the German past, Romanjurisprudence was seen by the Germanists as cold, egotistical, materialistic and close to capitalism and Iaissezfaire economics. It was therefore understandable that the exaggerÂated individualism, i.e. the absence of social concern, of the first draft of the Civil Code was blamed on Roman law. That this draft did not get into the statute book was, inter alia, because of Gierke’s onslaught in his Der Entwurf eines burgerlichen Gesetzbuchs und das deutsche Recht (ι 888) and in his aforementioned â€?Die soziale Aufgabe des Privatrechts'(ι 889). Gierke’s criticism had little efÂfect on the final text of the Burgerliches Gesetzbuch, but was influenÂtial in the long run in different political and social circumstances, when â€?the social drop of oil’ was increasingly appreciated.
Belief in the opposition between the â€?individualistic Roman’ and the â€?social Germanic’ spirit and the notion that the Rezeption was â€?a national misfortune’ only gained credence in the secÂond half of the nineteenth century, as earlier generations of Romanists and Germanists had been united by their faith in political and economic liberalism.
The Germanists of that time saw no opposition between their love of old German liberty and the prestige of Roman law. That in the sixteenth century some German authors were opposed to the Rezeption was based on the different fear that the administration of justice was falling into the hands of foreigners or Germans who had been brainwashed in Italian and French universities — a well-known xenophobic theme.[121] The â€?social drop of oil’ is still a bone of contention toÂday. The reader will remember the row about the Social Chapter in the Treaty of Maastricht, to which the British Government objected so strongly that an opt-out clause was provided to allow Britain to adhere to the Treaty after all. In the ι 930s the social concerns of Roosevelt’s New Deal were equally controversial. And the reader will, of course, be reminded of a similar debate in imperial Russia. Here some authors lauded the ancient comÂmunitarian spirit of village life in the mir (and the protection and solidarity it gave the peasants and their families) in contrast to the selfish poison of western individualism, whereas liberal, western-minded intellectuals naturally berated the mir for its stifling traditionalism and peasant backwardness.[122]