The Development in the Twentieth Century (Overview)

The law teachers assembled in Eisenach adopted a recommendation by Emil Strohal^[10] ^{^[11] to assign an 'essentially different and more prominent' position to the BGB in the legal curriculum than had been allocated to the previous codes of private law.^[12] in particular, the lectures on the BGB were intended to leach the private law prevailing in Germany as a systematic entity.}

The piece de resistance of all German law faculties in the nineteenth century, the course on the system of Roman private law in its pandectist mould (Pandektenvorlesung), had thus fallen by the wayside^[13] and Roman law had been reduced to a propaedeutic level: it merely constituted a 'pedagogical tool·.^[14] The relevant legal training statutes in the various German states followed this line.^[15] The scene was thus set for a legal development that differed markedly from that under the Natural law codifications. For the enactment of the German Civil Code did not stimulate a 'third renaissance of Roman law'. References to the ins commune, to its sources and legal literature, vanished from the pages of the law reports. Academic legal writers confined their attention, and their intellectual horizon, to the BGB and led German private law scholarship into a national isolation.^[16] And legislation in the field of private law also became enamoured 'with the example of the Chinese Wall'.^[17] Scholarship in Roman law, in turn, freed from its obligation to serve the needs of modern private law,³² was in the process thoroughly to historicize its subject.

A process had started which was pointedly described by Ernst Immanuel Bekker as an 'emancipation... by thinking apart Roman law and modern law'.³³ Bekker³⁴ is usually regarded as one of the last great pandectist scholars³⁵ who, unlike Windscheid, lived to see the new era.

But he was also one of the first who started, already in the 1860s, to abandon the methodological tenets of pandectist science.³⁶ Significantly one of his most important works was entitled Die Aktionen des Romischen Privatrechts (The Actions of Roman Private Law) and not, like Bernhard Windscheid's even more celebrated study, Die Actio des romischen Civilrechts, vom Standpunkte des heutigen Rechts (The Action of Roman Private Law, from the Point of View of Contemporar}' Law). Windscheid aimed at modern law and laid the foundations of one of the conceptual pillars of modern private law doctrine: the substantive rather than the BGB (though they sometimes displayed an anti-French bias; cf. the examples provided in (1994/5) I Columbia Journal of European Law 87 f.). Generally on comparative law as the basis of 19th-century legislation see Helmut Coing, 'Rechtsvergleichung als Grundlage von Gesetzgebung im 19. Jahrhundert', (1978) 7 Ins Commune 168 ff.

³² 'Long enough has legal history' patiently done the donkey-work for contemporary law; it has been weighed down by the exertions of gathering together the stones which others have used to build palaces. Legal history now revolts against such suppression' (Ernst von Moller, Die Trennung tier Deutschen und der Romischen Rechtsgeschichte (1905), 68); 'It is high lime that the unhappy marriage between legal history and legal doctrine is dissolved' (Hermann U. Kantorowicz, ‘Probleme der Strafrechtsvergleichung', (1908) 4 Monatsschrift für Krimiiialpst/chologte und Strafrechtsreform 108).

³³ Die Aktionen des romischen Priuatrechts, vol. i (1871), 2. Cf. the analysis presented by Maximiliane Kriechbaum, Dogmatik und Rechlsgeschichte Ivi Ernst Immanuel Bekker (1984), 30 ff. The catchword of 'thinking apart* (auseinanderdenken) has also been picked up by Willem Zwalve, Teaching Roman Law in the Netherlands', (1997) 5 ZEuP 393 ff.; Zwalve refers, in this context, to a 'severe case of intellectual schizophrenia' (p.

398).

³⁴ Ernst Immanuel Bekker, 1827-1916, professor in Halle, Greifswald, and 1 leidelberg. On his life and work, see Kriechbaum (n. 33) 1 if.

³⁵ Klaus Luig. 'Pandektenwissenschaft', in HRG, vol. iii, col. 1423; Kleinheyer and Schroder (n. 15) 466.

³⁶ Kriechbaum (n. 33) 277 (who adds: 'as it appears... quite independently'). procedural notion of an Anspruch (claim);^{^[18]} Bekker, on the other hand, specifically did not attempt to transform Roman law into a contemporary Roman law but wrote his book 'unaffected by the overwhelming weight of having to consider how Roman law might still be applied'.^{^[19]} Bekker also, incidentally, was both a friend and mentor of Otto Gradenwitz, one of the initiators of the modern interpola- tionist research ^{^[20]}

The development sketched here in its broadest outlines has today led to a situation where Roman law, as part of legal history, is merely one out of several 'foundational subjects'. In most German universities it is perfectly possible as well as permissible to obtain a law degree without having done a single course in legal history. Legal scholarship has become a completely a-historical discipline. The doctrinal literature very largely dispenses with any reference to historical (or comparative) material. And for the courts the sources of the ius commune have lost any relevance.^[21] Such isolation, as far as both the historical sources and comparative material are concerned, was regarded as 'completely outdated'^[22] by Ernst Rabel as early as 1913/14. Yet, it still essentially characterizes our modern private law. How was this possible?

<< | >>

↑

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

The Development in the Twentieth Century (Overview)

More on the topic The Development in the Twentieth Century (Overview):