From Scholarly Positivism to Statutory Positivism
Particularly important for the process of disjunction between private law and legal history was the positivism prevailing since about the 1830s. The nineteenth-century pandectists related it to the system, concepts, and legal doctrine based on the Corpus Iuris.2Ai The system of contemporary Roman law was supposed to be comprehensive in that it had to be possible to find a logically consistent solution even for problems not specifically dealt with in the sources.
Obviously, these notions were bound to be transferred to the BGB. The scholarly positivism was turned into a statutory positivism.[140] Statutory positivism identifies the law with the entire body of statutory provisions, as long as they have been properly enacted. These provisions constitute exclusive reasons to act. Nobody is allowed to argue that there may be better reasons prescribing a different action.[141] [142] For the positivistic judge within a codified system this means that the 'old' law prevailing before the enactment of the code has to be ignored even if it appears to offer a more appropriate solution. Hence, for instance, the widespread reduction of the historical argument to an exploration of the preparatory 'paper trash'.24' That Roman law had been conclusively superseded and abolished appears to have been so self-evident that a specific rule along the lines of art. 1 of the Dutch 'Abrogation Act' appeared unnecessary.248218 See, e.g., Friedrich Endemann, Einführung in this Shatium des Bürgerlichen Gesetzbuchs (3rd edn., first part, 1897), 45, 51; Eduard Heilfron, Lehrbuch des Bürgerlichen Rechts (4th edn., first part, 1908), 41.
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