A Synthesis of What has been 'Thought Apart'?

Interestingly, this is a point which was particularly force­fully emphasized by the pioneers of the new direction of historical scholarship in Roman law. Contrary to a number of modern legal historians, they did not regard legal history and historical legal scholarship, or interest in Roman law proper and its pandectist version, as mutually exclusive.^{[292] [293]} 'Without its impractical foundations', Emil Seckel wrote,²²¹ 'the practical private law cannot be understood.' And he continued in terms strongly reminiscent of Savigny: 'The natural connection that lies the present to the past cannot with impunity be snapped asunder.' Otto Lenel was prepared to disencumber the teaching of Roman law of those subject-matters which were no longer relevant for modern law.

Ludwig Mitteis was, in certain respects, a tragic figure. Much of what he had unleashed filled him with a feeling of uneasiness.^[296] This is true, in particular, of the concept of a universal history of classical antiquity which, to Mitteis's mind, dethroned Roman law and failed to recognize its outstanding and universal significance.^[297] Studies in the cuneiform laws did not interest him.^[298] Instead, he was apparently the only German Romanist^[299] who continued, in Leipzig, to give a course in the pandectist tradition ('Pandekten als Einführung in das bürgerliche Gesetzbuch') even after 1900; and he rejected a call to Berlin because the Prussian government did not have any sympathy for main­taining such a course.^{2 v} In 1908 he published a textbook on Romisches Privatrecht bis auf die Zeit Diokletians (Roman Private Law up to the Time of Diocletian)^{[300] [301] based on the pandectist system: first a general part and then the division into family law and the law of persons, property law, the law of succession, and the law of obligations.[302] 'Even though its content was entirely historical, there is a strongly dogmatic element pervading the book', Paul Koschaker writes,[303] 'since the point of departure is not a specifically historical one. For the author is not interested in Roman private law up to Diocletian's time as such but in the ques­tion whether, and how far, the concepts used in the general part of the BGB were present or prefigured in classical Roman law.}

This is true even for the national legal systems prevail­ing today. Already in the middle of the 1950s Max Kaser, when looking at contemporary private law doctrine, had diagnosed the first signs of exhaustion.^[307] The rich intel­lectual harvest, he said, which scholars had produced over the first half of this century was easily available in the big commentaries and textbooks.^[308] But it had been a scholar­ship which had accepted the lex position as an immovable boundary of its endeavours and which had attempted to solve all problems arising on the basis, and within the confines, of the Code.^[309] Kaser therefore hoped that 'our ossified private law scholarship may consider taking up a new task'.^[310] It would have to aim to move beyond the Code so as to advance (just as the classical Roman jurists had done) 'for each problem, independent of the letter of a specific law, to the idea of justice as such'.^[311] In the process, he thought, legal history and comparative law could be 'exploited to a much greater extent than is hith­erto accepted'.^[312] Legal historians were therefore called upon to turn their attention to the history of legal doctrines and institutions so as to prepare the foundations for a contemporary comparative scholarship in private law.^[313]