NINETEENTH-CENTURY LEGAL SCIENCE OUTSIDE GERMANY

For much of the nineteenth century, legal science in France was domi­nated by the ‘exegetical school', which sought to make a complete break between the text of the code, as it was enacted, and the sources from which it was derived.

In the first half of the nineteenth century Italian scholars were much influenced by the French exegetical school. After the publication of the Italian Civil Code in 1865, which immediately preceded the unification of the country, Italian scholarship took Pandect-science as its model. Works such as Windscheid's Pandektenrecht were translated into Italian by the leading scholars, and leading German Romanists, such as Jhering, were feted on visits to Italy.

In England the nineteenth-century debate among those who favoured legislation as a means of reform and those opposed to it was carried on largely in terms of Roman law. This is because the subject figured prom­inently in the reform of English legal education in the middle of the nineteenth century. Oxford and Cambridge had kept the torch of Roman law flickering but the Inns of Court in London had ceased to be active as teaching institutions. Teaching of English law had been intro­duced in the ancient universities only in the eighteenth century, and pro­duced Blackstone's encyclopedic Commentaries on the Lows ofi England, based on the Institutional scheme. It was not, however, until the nine­teenth century that legal education in anything resembling the continen­tal understanding of the term really began in England.

University College London, whose foundation owed much to the influence of Jeremy Bentham, established chairs both of English common law and of jurisprudence in the sense of legal theory. John Austin, a disciple of Bentham, was appointed to the latter chair in 1826 and immediately went to Bonn to prepare himself. Austin's general theory of law was taken from Bentham but his analysis of legal concepts came from the German Romanists. He sought systematic structure and rigorous analysis of general legal concepts and found them in such works as Savigny's treatise on possession (which he pronounced ‘of all books upon law, the most consummate and masterly') and Thibaut's System of Pandect law. The contrast between such works and those of English law was striking. ‘Turning from the study of the English to the study of the Roman law, you escape from the empire of chaos and darkness to a world which seems by comparison, the region of order and light.' In 1845 Nathaniel Lindley (later Lord Lindley) published a translation of the general part of Thibaut's work under the title Introduction to the Study of JusSspnidcnce.

An enthusiastic publicist for Roman law in the Pandectist sense was Henry Sumner Maine, who had been Regius Professor of Civil Law at Cambridge. In 1856 in an essay bemoaning ‘the immensity of the ignor­ance to which we are condemned by ignorance of Roman law', he illus­trated the value of a training in Roman law in providing a set of categories and instilling a particular mode of reasoning. They had permeated the discourse of moral philosophy since the seventeenth century and had dominated international law and relations. So Roman law ‘is fast becoming the lingua franca of universal jurisprudence'.

In 1859 an anonymous contributor to the Law Magazine wrote of Roman law:

it is obvious that its definitions and classifications, its mode of thought and the internal connections of its parts are for us incomparably more important than its minuter details. The enduring merit of the Roman law is that it is the work of a people who seem to have been raised up for that particular end at a time when the vocation of races appear to have been more marked and separate than they are now.

In several areas the influence of German legal science seeped into English case-law. In the eighteenth century, under the influence of such judges as Lord Mansfield, there had been a tendency to seek the general principles of jurisprudence in French works such as those of Domat and Pothier, particularly the latter's treatise on Obligations. In the nineteenth century, the general principles were sought rather in German Pandect­science.

One problem was the nature of the personality of corporations, such as joint-stock companies. In the middle of the century the most popular theory among English lawyers was that of Savigny. Only human beings had legal capacity, so that groups of people could only have legal per­sonality by fiction. Austin introduced into English usage the term ‘legal person', a translation of Savigny's juristische Person. According to this theory, companies were quite distinct from their members. Towards the end of the century Maitland pointed out that in Germany itself, the Fiction theory had given way to the Realist theory, based on the idea that a corporate body was an organism with a group-will, so that the law must take account of the character of those running the company. The Fiction theory was followed by the House of Lords in the case of Salomon ([1897] A.C.22), whereas the Realist theory found favour in the Daimler case ([1916] 2 A.C.307).

Another problem concerned the nature of possession and Savigny's insistence on a particular mental and physical relationship between pos­sessor and thing possessed was frequently cited as having a general appli­cation to all developed legal systems. Likewise Savigny's view that contract law was based on the will theory and that all contracts required subjective consensus, in the sense of an actual meeting of minds, was generally accepted, even though the common law had frequently recog­nised a contract if the parties had behaved in such a way as to arouse reasonable expectations in each other.

In the second half of the nineteenth century, the Pandectist influence in England was countered by a theory, also based on Roman law, but viewed from a different perspective. In place of Savigny of the Pandects, the model was now Savigny, the founder of the historical school. The English version of the theory that legal development occurs by itself, without the need for legislation, was set out in Sir Henry Maine's trea­tise Ancient Law. whose subtitle was ‘Its connection with the early history of society and its relation to modern ideas'.

Just as Savigny had based his account of legal evolution on the laws of the ‘nobler nations', so Maine confined himself to ‘progressive soci­eties' (a notion he derived from the French writer Charles Comte). They turned out to be those of the Romans and the English. Roman law pro­vided Maine with a model of a legal system that had developed over a millennium without an obvious break and he structured his account of ancient law around the development of Roman legal institutions, with occasional references to those of other Indo-European societies.

In Rome a monarchy was replaced by a republic, dominated by patri­cians, whose interpretation of the ius civile provoked the plebeians to demand the enactment of the Twelve Tables. Maine generalises the Roman experience, holding that in the earliest period of society, divinely inspired kings hand down isolated judgments, which he calls ‘themistes'. Subsequently the kings lose their sacred power and are replaced by small groups of aristocrats. They have a monopoly of knowledge of the tradi­tional customs but they abuse their power of interpretation and produce popular agitations for the recording of the customs in what Maine calls ‘ancient codes'. So far the scheme is recognisably Roman but is not readily discernible in other societies and particularly has no parallels in England.

In subsequent periods of legal change, Maine was more fortunate. Certain mechanisms of legal change are found in both Roman and English law. These include the adoption of fictions to bring new situa­tions within established categories and the introduction of equity to modify the rigidity of the traditional law, through the control of reme­dies by the Roman praetor and the English chancellor. Law-making by legislation as a mechanism of legal change tends to appear late.

The most influential aspect of Maine's studies of Roman law is the impetus they gave to the study of society itself. Early society, he showed, begins not with the indi\'iifi;illHiiwilli the famllygroup. Theprimitive family is dominated by the patriarch. The members are subject to the power of the paterfamilias. This form of the primitive family explains the early history of wills, property, contract and delict. Roman law, as the law of a progressive society, was distinguished by the gradual disso­lution of family dependency and the growth of individual obligation in its place. ‘The individual is steadily substituted for the family as the unit of which the civil laws take account... we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals.' The status of the slave, the status of the female under tutelage and the status of the son in power all disappeared, to be replaced by the free agreement of individuals. Thus, concluded Maine, ‘the movement of progressive societies has hitherto been a move­ment from Status to Contract' (ch. 5).

Austin had generalised the particular institutions of Roman law and now Maine generalised the historical evolution of those institutions. Maine himself claimed that his method was based on that of the natural sciences. At the beginning of Ancient Law he says that the rudimentary ideas of law in ancient societies are ‘to the jurist what the primary crusts of the earth are to the geologist'.

Although many of his particular propositions were later controverted, and several later scholars made their name disproving them, Maine's general approach had considerable influence on the early study of anthropology and sociology. For example, in Ferdinand Tonnies' famous work Gemeinschaft und Gesellschaft (1887), the two contrasting types of social groups, community and society, are based on Maine's distinction between societies based on status and those based on contract. By showing the connection between ancient Roman legal institutions and the circumstances of early Roman society, Maine established the link between law and society in a manner that was fruitful for the develop­ment of the social sciences.