GERMANY, BRITAIN AND THE ROMAN EMPIRE

As in many cases, this debate can be traced back to late nineteenth-century Germany. Ludwig Mitteis' celebrated book, Reichrecht und Volksrecht (1891), was the first concerted effort to unseat the dogma of the legal unity of the Roman Empire of Diocletian and Constantine.

The whole conception of legal pluralism is, according to Mitteis, directly linked to the reception of Roman law in Germany. Mitteis saw parallel devel­opments in the spread of Roman law in the provinces in antiquity and the reception of Roman law in Germany from the sixteenth century onwards: Roman law supersedes the local law. The strength of the opposition to these foreign elements or foreign spirit is dependent on the moral consciousness in the very being of the people.^[85] The vocabulary and models used by Mitteis are those of the Historical School of jurisprudence, and he speaks of nations and their cultures in a vaguely Hegelian sense.^[86]

Mitteis reflects the orderly ideal model of the Wilhelmine German Empire (and partially also the French) and speaks of the Reichsidee of the Roman Empire.^[87] The buzz words of the day were unification and centralisation: the context of this model was the ubiquitous map of legal systems used in Germany during the nineteenth century, with innumerable tiny duchies and other fiefdoms which all had their own laws. The legal unification of the empires was in no way limited to Germany, which at the time of Mitteis was nearing the completion of the common civil code for all of the land (Bürger­liches Gesetzsbuch, 1900). In addition to the numerous codification projects in continental Europe, the colonies and provinces of the European powers were given their own codes.

What Mitteis describes as the ideal of legal unity in the Roman Empire can be seen as the ancient counterpart of the hopes and aspirations of the contemporary German jurists and the imperial trends of the late nineteenth century. Weaker legal cultures give way and are assimilated into a superior Roman legal framework.^[88]

Against this model we can juxtapose something that I would like to call, only half-jokingly, a British model of empire. Seen from that perspective, the centralised and unified continental empire is in sharp contrast to the divide et impera fragmentary empire, characterised by a light administrative structure with its main aim being the control of trade and tax revenue. Such an entity, an example of which would be the British Empire, could be pejoratively called a heterogeneous grab-bag of disconnected areas instead of an integrated whole such as the Russian Empire in the late nineteenth century.^[89]

E.