Final Observations

In my first lecture I attempted to show how legal history lost touch with modern legal doctrine in nineteenth­century Germany.^[564] This process of emancipation was enor­mously beneficial in enhancing our knowledge of classical antiquity.

The second lecture was devoted to a demonstration that this kind of approach is still possible, and meaningful, in spite of the fact that German law—like all other continental legal systems—has been codified. Codification has influ­enced our ideology. But it has not cut us off from the common legal past. Adjudication and scholarship under the BGB remain German emanations of the civilian tradi­tion.

Legal history helps us to understand our modern law. It explains why the law has become what it is. It lays open the premisses on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrine as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error. Today, however, histori­cal legal scholarship has acquired an added significance in view of the Europeanization of private law and private law scholarship. It enables us to see the common ground exist­ing between our modern national legal systems and to understand established differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood in purely national terms.

In the third lecture I tried to substantiate these proposi­tions with a number of examples. The focus was therefore on 'the vital connection that ties the present to the past'^[565] and on the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasized connections existing between civil law and common law. They were intended to demonstrate that there is no wall of incomprehension, except in the minds of lawyers still imbued by 'the nationalist historiography that originated in the nineteenth century'.^[566] It is essential, I think, to foster such understanding in order to re-establish a Euro­pean legal world marked as much by an interesting diver­sity as by a fundamental intellectual unity.

In the Holy Gospel according to St Luke, Jesus tells the story of a man who 'went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead'.^[567] This is the beginning of the parable of the Good Samaritan, one parable with which every common lawyer is familiar.^[568] As in the Authorized Version, so also in the Greek original and in Martin Luther's translation the man was 'half dead'. But according to the Vulgate he was 'semivivus'. Obviously, it is all a matter of perspective. Civil law and common law are not identical. But they do not constitute mutually incomprehensible traditions either. We can emphasize that which separates us. But we can also try to explore the common ground. I prefer the second alternative just as I prefer the optimism which, in the language of the Romans, regards the wounded man on the way to Jericho as half alive rather than half dead.