Introduction

The present set of Clarendon lectures is delivered at the end of one century and will be published at the beginning of the next. Thus, these lectures provide an opportunity to look both backwards and forwards.¹ For the German lawyer interested in private law, the twentieth century has been dominated by the German Civil Code.

This Code entered into force nearly exactly 100 years ago, on 1 January 1900. Over the past twenty years, however, we have been witnessing far-reaching changes. Our modern private law is in the process of reacquiring a European character. Since about 1990 scholars in Germany (and, of course, elsewhere) have begun to react to this change of perspective. A European private law scholarship is gradually emerging.² it is not too difficult to predict that it will dominate private law in the twenty-first century. Eventually, a European civil code may even replace the existing national codes.³ Obviously, we stand at an important juncture. It may, therefore, be appropriate to try to lake stock. I have, on a previous occasion, argued for the reconstitution of Savigny's Historical School of Law on a European level.⁴ Essentially, in these lectures, I would like to ask why this is necessary and suggest what may be done to implement such a programme. Savigny's Historical School flourished in Germany. The implementa-

’ Such double perspective is not unusual for comparative law; see W. J. Zwalve, Het fantishoofd der rcchlsivrgelijkittg (1988).

²See, for example, the textbooks by Hein Kotz, Europfiscfa’s Prim t recht, vol. i (1996) and Christian von Bar, Gemeineuropäisches Delikfsnchf, vol. i (1996), vol. ii (1999) or journals like Zeitschrift für europäisches Privnlrechl (since 1993), Efimjvnn Review of Private hue (since 1993), or Etrropi e diritto private (since 1998).

³A very forceful argument in favour of a European code of obligations has recently been advanced by Jürgen Basedow, 'Das BGB im künftigen europäischen Privatrecht: Der hybride Kodex', (200) 2(M10 AcP 445 ff.

⁴'Savigny's Legacy: Legal History, Comparative Law, and the Emergence of a European legal Science', (1996) 112 LQR 576 if. tion of the BGB, 100 years ago, may be regarded as its supreme triumph or its ultimate failure. Indisputably, the Code has changed our legal perception. It has led to an emancipation of Roman law from contemporary legal doctrine. This process is sketched in the first lecture. But has it also resulted in an emancipation of contemporary doctrine from Roman law? Has there been, in other words, a qualitative change in our substantive private law as a result of codification? This is the question underlying the second lecture. Lawyers in nineteenth-century Germany were constantly aware, in spite of the bewildering legal diversity with which they were faced, of a fundamental intellectual unity created by a common tradition. The recreation of such an awareness is of central importance to sustain the Europeanization of private law. The third lecture attempts to demonstrate how this may be achieved. In this sense, then, it may be said that the first lecture is devoted to Roman law (scholarship), the second to contemporary (German) law, and the third to European (private) law: past, present, and future. The focus in the first two lectures on developments in Germany is, hopefully, permissible in view of the BGB's anniversary.

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

Introduction

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