Prussia

Structurally similar was the development in Prussian law, as has been demonstrated particularly clearly by Jorn Eckert.^[5] It is widely known that the Prussian Code of 1794 only played a minor part, as far as legal scholarship and legal education were concerned.^[6] For many decades it was not taught, interpreted, and applied as such but only in relation to the ins commune: it was compared with, and assessed and evaluated from the point of view of, contemporary Roman law.

Savigny with his lectures on the Prussian Code provided the authoritative example.^[7] Interestingly, however, even in the practice of the Prussian courts the Code in the first years after its enactment appears to have been applied—in marked contrast to the intention of the legislature^[8]—like one among many other common law sources. Thus, the judges of the Supreme Court of Appeal tended thoroughly to examine the literature of the ins commune, but to refer to the provisions of the Prussian Code only 'comparatively rarely' and merely in order to affirm a result already arrived at by different means.^[9] Also in Prussia, therefore, Roman law remained in force as ratio scripta: a state of affairs which seems to have been regarded as self-evident by all those involved in the administration of justice. By and large, one may refer to a process of 'pandectification' of Prussian law.

4. Austria

A 'pandectification' also occurred in Austrian law.¹² More than forty years after the ABGB had become the source of private law applicable in Austria, Count Thun-Hohenstein introduced a legal curriculum,¹³ in which Roman law eclipsed the Austrian code.¹⁴ This reform of legal training coincided, and was inspired by, the efforts of Joseph Unger¹^ to refashion Austrian law in the mould of German pandectist scholarship.

Since the ABGB, he argued, had essentially merely restated the law applicable at the time of codification, it could only be understood from the point of view of the legal sources prevailing at that stage, i.e. particularly Roman law. Moreover, it had to be carefully examined how far the provisions contained in the code 'could still claim recognition as a matter of legal theory'.¹⁶ Once

¹² Cf., in general, Werner Ogris, Die Entwicklung der osterreichischen Print· firclifsirisseusclinfl ini 19. Jahrhundert (1968); idem, 'Die Wissenschaft des gemeinen romischen Rechts und das osterreichische Allgemeine Bürgerliche Gesetzbuch', in Helmut Coing and Walter Wilhelm (eds.), Wissenschaft und Kodifikation des Priva- Iftchls int 19. Jahrhundert, vol. i (1974), 153 ff.; Willwhn Bratmeder, 'Privatrechts· fortbiklung durch Juristenrecht in Exegetik und Pandektistik in Osterreich', (1983) 5 ZNR 22 ff.

ⁿ See, e.g., Gunter Wesener, Romisches Recht und Naturrreht (1978) (= Geschichte der Rechtswissenschaf(liehen Fakultät der Universität Graz, part I), 41 ff.

¹⁴ Paul Koschaker reports, on the basis of his lecture lxx»k, that he heard 7 hours' institutions of Roman law, 25 hours' Roman private law (Pandekten), 3 hours' Roman legal history and Roman civil procedure, and 2 hours' Roman criminal law, 'all in all, and including 2 practical exercises, 44 hours Roman law, as opposed to which 18 hours on the law of the General Civil Code looked somewhat pitiful—all the more so if account is taken of the fact that this excellent private law code had by that time been the valid law in Austria for 90 years': "Leopold Wenger: Ein halbes Jahrhundert rechtsgeschichtlicher Romanistik: Ein Rückblick', in Festschrift für Leopold Wenger, vol. i (1944), 3. Koschaker studied in the first years of the 20th century, first in Graz, before he went to Ludwig Mittels in Leipzig.

¹⁵ Joseph Unger, 1828-1913.

professor in Prague and Vienna, member of the Upper Chamber of the Reichtstag, government minister, president of the Imperial Court; cf. Jan Schroder, in Gerhard Kleinheyer and Jan Schroder (eds.), Deutsche und europäische Juristen aus neun Jahrhunderten (4th edn., 1996), 431 ff.; and see Hugo Sinzheimer, Jüdische Klassiker der deutschen Rechtswissenschaft (2nd edn., 1953), 83 ff.; Wilhelm Brauneder, in idem (ed.), Juristen in Osterreich 1200-1980 (1987), 177 ff.; Barbara Dolemeyer, in Michael Stolleis (ed.), Juristen: Ein biographisches Lexikon (1995), 628 f.

¹⁶ Joseph Unger, System des osterreichischen allgemeinen Privatrechts, vol. i (1856), p. viii.

again, Roman law, in its contemporary German version, provided the self-evident point of reference for understanding, assessing, and discussing the Austrian codification.¹⁷ Unger's programme¹⁸ decisively shaped Austrian legal science in the second half of the nineteenth century and stimulated a process which may be described as a 'reception'.¹⁹

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

Prussia

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