Identification of the 'Pure' Roman Private Law
In spite, or possibly in view, of these problems Savigny's disciples, as far as they embarked on the study of Roman law, were much more interested in the 'certainty, with which we think and adjudicate in law'/2 i.e.
in legal doctrine, than in legal history. The Historical School was thus transformed into a Pandectist School.As far as legal history itself, particularly the study of Roman law, is concerned, this had a number of consequences. (i) It led to a neglect of constitutional law, criminal law, and all the other sources and areas of law which were regarded as irrelevant for modern legal doctrine.'3
(ii) But even in the field of private law the pandectist perspective prevented a clear recognition of the historical realities. On the one hand, of course, scholars were interested in identifying, understanding, and studying the best, i.e. classical, Roman law. On the other hand, however, modern private law doctrine required a firm and reliable basis which could only be provided by the Corpus Iuris. These two objects could only be reconciled by presuming the Corpus Iuris to contain, essentially in unchanged form, the achievements of classical jurisprudence. 'Pure' and 'unadulterated' Roman law, therefore, meant a law without the deformations and distortions inflicted by mos gallicus and usus modernus, as it presented itself in the Corpus Iuris. A more radical 'purification' by applying the methods of textual criticism to the Justinianic law books was not taken into consideration. This indifference to the study of interpolations was all the more remarkable'4 in view of the fact that the lawyers of the French and Dutch humanism had already embarked on textual criticism and had presented detailed studies and
72 (1861) 1 Zeitschrift ftlr Rechfsgeschichte 2.
73 Ci., c.g., the statements by Windscheid, 'Das romische Recht' (n.
66) 35 ff.74 Koschaker (n. 18) 27(1. research agendas.[45] Also, after all, Gaius' Institutes, our principal authentic source of information about classical Roman law, had been discovered in 1816 by Barthold Georg Niebuhr: by a scholar, that is, whose Romische Geschichte (Roman History) 'made... a sensation'[46] on account of its critical use of the sources.
(iii) The focus of academic interest on modern private law doctrine (which in its traditional core areas was based on Roman law) and the emergence of pandectisl legal science associated with it was also bound to antagonize the so-called 'Germanists'. They did not feel sufficiently represented in Savigny's Zeitschrift für geschichtliche Rechtswissenschaft (Journal of Historical Legal Science) and thus created their own periodical in 1839 in the form of a Zeitschrift für deutsches Recht und deutsche Rechtswissenschaft (Journal of German Law and German Legal Science)/[47] they organized 'Assemblies of Germanists' (Gernianisten- versaimnl ungen) (they are regarded today as preliminary steps in the process of intellectual and political unification of Germany'[48]); in the spirit of contemporary Romanticism they made the 'Germanic cultural component' the object of their research;[49] and they attempted to construct a system and a science of German Private Law:[50] an a-historical enterprise clearly inspired by the outstanding success of the pandectist agenda and described already in 1906 by Paul Laband as a 'peculiar mixture of positive and doctrinarian, antiquated and modern, specific and natural law rules'.[51]
2.
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