PANDECT-SCIENCE AND THE GERMAN CIVIL CODE

The German Romanists were not interested in tracing the way in which Roman law had been adapted to serve the needs of contemporary society by the work of the Commentators or the writers of the Dutch school.

Pandect-science, as the nineteenth-century German approach to the Roman law texts came to be called, owed more than a little to those natural law writers who saw law as a kind of legal mathematics. Savigny hoped to show that it was still possible to use the scientific concepts derived from the Pandects to solve the solution of contemporary prob­lems.

The festering social problem for Germany in the first half of the century was the position of peasants and the need to free them from the burdensome relics of feudalism. According to the German version of the ius commune, peasants were considered to be coloni. In late Roman law coloni were tenants who were tied to the land in a way that foreshadowed medieval serfdom. Savigny pointed out that this conception of the col­onate was the product of the period of Roman legal decline and that it should not serve as a model for nineteenth-century peasants. On the contrary, in true (classical) Roman law coloni had been free tenant farmers, and that version was a better model which legal science could recover.

Savigny wanted to strip Roman law of the baggage which it had accu­mulated for the purpose of accommodating the feudal relationship. As Donellus had demonstrated, the notion of a divided ownership, with a dominium directum ascribed to the lord and a dominium utile ascribed to the vassal, had no place in true Roman law. But if the lord and vassal did not share the dominium, how should their respective interests be charac­terised? The Roman notion of a servitude, or burden on the land, could be used to characterise both the interest of the lord and that of the vassal. For servitudes were either personal or praedial. The main per­sonal servitude was usufruct, the right to enjoy the land for life, and it had for long been used as the model for the vassal's interest, but with the reservation that it was permanent interest. If the lord were considered as the owner, then the vassal could be regarded as a kind of permanent usufructuary of the land. Now, however, it was argued that it better fitted the current state of the feudal relationship to regard the vassal as the owner, and in that event, the lord's residual interest was more like a prae- dial servitude, such as a right of way over the land. The significance of this analogy was that a praedial servitude could be extinguished by pre­scription. If the person entitled to the right of way failed to exercise it, or if the land-owner blocked the way and the person entitled did nothing about it for a certain period, then the land was freed from the burden on it. The door was open for the idea that by prescription the vassal could similarly free himself of the feudal burdens.

The search for a purified Roman law, through which professors could find solutions to Germany's social problems without resort to reform leg­islation, had only limited success among judges and practitioners. They were looking for legal arguments which could justify what they wanted to do anyway, namely, free the peasants from their feudal burdens, but the historical school's agenda of reform through academic doctrinal development did not move quickly enough.

Savigny's programme of finding the central principles of Roman law, begun in the treatise on possession, was extended to the whole field of private law in his significantly entitled System des heutigen romischen Rechts (System of present-day Roman law), which appeared between 1840 and 1849. For Savigny there was no contradiction between his historical studies and his Pandect-science; they illustrated two sides of the same phenomenon. For his followers, however, Pandect-science became less historical and more rational. By the 1850s it was clear that, if Roman law was to have relevance in contemporary Germany, it would have to be reinvented yet again. In place of Roman law as the law that allowed maximum freedom to the human will, as Savigny's System portrayed it, the mood of the age required a Roman law that expressed the material­ist values of a bourgeois society.

From the middle of the century it was obvious that German law was moving inexorably towards codification and that, whereas it was the pro­fessors who would prepare the code, it was the judges who would inter­pret it and give it effect. An all-German Commercial Code was enacted in 1861, but it was based not on Roman law but on the practice of mer­chants, which had inspired the French commercial ordinances of the seventeenth century. The stark fact was that Roman law, which allowed the parties great freedom to mould their transactions as they wanted, did not deal with the complex legal mechanisms of modern commercial life. The economic historian Max Weber pointed to the fact that, despite the liberal nature of Roman private law, none of the characteristic legal institutions of modern capitalism are derived from Roman law. As examples he cited annuity bonds, bearer securities, shares, bills of exchange, trading companies (in their modern capitalistic form), mort­gages (as capital investment) and direct agency.

The Romanists now concentrated their efforts on preparing the sub­stance of the civil Code. They recognised that Roman law's contribu­tion would have to be in the form of a distillation of principles that could be incorporated into a code that would be appropriate for a commer­cially oriented society. To this end Roman law had to be purged of those features which recalled the non-industrial society that gave it birth and those aspects which encouraged entrepreneurs emphasised. Yet, by basing the substance of the new code on Pandect-science, the Romanists were able to claim that it was an apolitical, impartial law and that, as its exponents, they were above politics.

The two most prominent German Romanists of the second half of the nineteenth century were Rudolf von Jhering and Bernhard Windscheid, almost exact contemporaries, who both died in 1892. Jhering had a keen sense of irony and derided the stress on concepts, detached from their consequences, which characterised the prevailing Pandect-science. In his three-volume masterpiece on the spirit of Roman law (Der Geist des romischen Rechts), of which the first volume appeared in 1852, he wrote that

the desire for logic that turns jurisprudence into legal mathematics is an error and arises from misunderstanding law. Life does not exist for the sake of con­cepts but concepts for the sake of life. It is not logic that is entitled to exist but what is claimed by life, by social relations, by the sense of justice - and logical necessity or logical impossibility is immaterial. (ii.2.Introd. 69)

Roman law, held Jhering, was based not on moral principles, as the natural lawyers had maintained, but on economic necessity; its guiding principle was self-promotion. Jhering did not completely reject national character as a determinant of law. The ideal character for legal growth was a balance between the conservative and the progressive forces that allowed the law to grow slowly but surely. As examples of peoples whose character had such a balance, he cited the ancient Romans and the English.

In 1857 Jhering founded a periodical for studies aimed at showing the potential of Roman law to deal with modern problems. As he announced in the first issue, its watchword would be ‘through Roman law, beyond Roman law'. An important example is Jhering's own essay on the doctrine of culpa in contrahendo, or fault in the formation of a con­tract which was itself void or incomplete. He took a couple of texts in the Digest and built on them an elaborate theory according to which there could still be a contractual liability, even though there was no con­tract.

Windscheid made his name with a book on the action in Roman law, published in 1856. Savigny had regarded the Roman action much as Donellus had seen it, that is, actions were provided to give effect to pre­existing subjective rights, based on justice. Windscheid showed that the praetor, representing the Roman state, granted an action whenever it was state policy that a legal remedy was appropriate. The praetor did not concern himself with rights. In deciding what remedies to grant, he was guided by his sense of the economic needs of the time.

The new Pandectists did not admit that they were advocating a par­ticular political philosophy but the legal science that they claimed to have discovered in Roman law revealed a highly individualist law. It encouraged freedom of contract without any recognition of the inequal­ity of bargaining power. It gave the maximum protection to private property and it reduced to a minimum the liability of business men for injuries caused to others in the course of their operations.

The form of the BGB does not follow the order of the Institutes but is influenced by other earlier orders, in particular the Christian geomet­ric systems, going back to Pufendorf and Domat, which moved from the general to the particular. First there is a General Part setting out rules common to all kinds of legal transaction and including the part of the law of persons dealing with legal capacity. Emphasis is put on the notion of Rechtsgeschäft, which is essentially the negotium of Althusius, that is, any expression of the will by which a person intends to produce a change in his legal position. Then follow four books devoted respectively to Obligations, Things, Family law and Succession. Although the order of treatment is not that of the Institutes, the categories out of which it is constructed and many of the substantive rules are recognisably Roman.

The developments just described made German legal science the dominant force in European legal thinking. True, the stock nineteenth­century ideal of a civil code, copied by nations codifying their law, was the French Code civil, the model for the Dutch, Belgian, Italian and Spanish codes. But when it came to legal science, in the sense of the interpretation of the law by jurists, German scholarship reigned supreme. Students flocked to the great German law faculties in the way they had gone to Italy in the twelfth century, France in the sixteenth century and the Netherlands in the seventeenth. This was true even of some common lawyers from England.

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