Beyond Roman Law by Means of Roman Law
These were the famous excesses of pandectist scholarship. But in many other areas the same pandectists, consciously or unconsciously, had heeded Jhering's famous call to venture beyond Roman law by means of Roman law.[123] They tried to strip Roman law of everything specifically Roman, or contingent, and to turn it into a kind of Natural law.
They thus made it ready for codification (thereby in fact following the example of the Natural lawyers whose work they generally so strongly rejected). Paradoxically, therefore, the very high level of their achievements contributed to the process of historicizing Roman law. The codification was based on the most advanced and refined pandectist learning and thus it did not require, contrary to all previous codifications, a legal theory beyond itself that would have represented a higher level of reflection and to which it would have had to be intellectually related.[124] At the same time, Roman law was bound to appear to contemporary lawyers as something historically contingent which could be left to legal historians. The enormous success of private law legal science during the nineteenth century thus led to a disjunction from its own basis.[125] And it is hardly surprising if the opinion soon gained ground that the world of private law consisted exclusively of the BGB. A modern textbook author like Konrad Cosack specifically refused to discuss, and develop, the law historically;[126] such a way of proceeding was likely to distort either the old or the contemporary law. The challenge of 'thinking apart' Roman law and contemporary law and thereby 'emancipating' the one from the other, as issued by Bekker,[127] could hardly have found a more unequivocal response.[128]3.
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