I. THE GERMAN CIV11 CODE: A PRISON CELL FOR LEGAL SCHOLARSHIP?
When the BGB entered into effect, on the first day of the new century, it was regarded as a triumph of German legal scholarship.[143] What German arms had achieved on the battlefields of France—political unity—had now also been peacefully accomplished in the area of private law:[144] 'One People.
One Empire. One Law', to quote the headline of a special front page in the German Lawyers' Journal (Deutsche Juristeiizeitung).[145] For the first time, there was a code of private law for Germany at large, for the first time the energies of scholars and practitioners alike could focus on one and the same authoritative text, and for the first time justice had wrapped itself—as Ernst von Wildenbruch put it in a poem devoted to the occasion[146]—in an indigenous garment. The days of the rule of Roman law were over; the German national spirit had ultimately carried the day. And just as pandectist scholarship was no longer required as a general theory of the law, it was also no longer necessary as a symbol of German legal unity.But not everybody greeted the new Code with feelings of joy, elation, and national pride. Ever since the First Draft had been published in 1888, there had been sustained and widespread criticism.[147] The draft was condemned as being too abstract and pedantic, it was denounced as a pandectist textbook cast in statutory form and thus as being too unGerman; it was attacked as being out of touch with the realities of life and as lacking even a drop of socialist oil. It was a text drafted by and designed for the expert lawyer, not a layman's legal primer. While some of this criticism was heeded by a Second Commission set up in 1890, the Code itself retained most of the basic features for which the First Draft had been criticized. Eventually one had to resign oneself to the fact that too much had been expected of the Code.[148]
At the same time there was considerable anxiety, in the years before 1900, a feeling of uneasiness and fear of how the enactment of the Code might affect the administration of justice.[149] It was realized by many that in view of the peculiar nature of the Roman sources lawyers had enjoyed much leeway· The Digest, after all, is no systematic code or textbook but a gigantic torso of Roman legal materials.
Its overall character is casuistic. Much of it reflects the position at the various stages of Roman legal history; and it is full of contradictions and controversies. The very complexity and richness of these sources had left ample room for doctrinal development and innovation,[150] and the pandectist scholars had thus been able to attribute authoritative character to their propositions. They were the high priests of legal scholarship.[151] The new Code, so it was feared, would leave no room for any productive scholarship and it would turn the judge into a mere 'subsumption machine' (Subsiimtwns- autoniat).[152] Being comprehensive, systematic, precise, and highly technical, it constituted a 'prison cell' for legal scholarship.[153] There was great concern about an impending cult of literalism.[154] These anxieties led a number of authors to claim the status merely of a 'restatement' for the BGB;[155] they stimulated renewed attempts to search for criteria of justice beyond the positive law;[156] and they contributed substantially to the rise of the Free-law movement (Frei rechtsschule).[157]How, then, did the courts react to the new Code? It is widely known today that Germany, in the words of John Dawson, experienced a 'case-law revolution'.[158] A whole range of legal rules and institutions is recognized today of which there is no trace in the provisions of the Code. In certain cases the courts have even, effectively, overruled provisions of the Code.[159] But did this constitute a "revolution'? Did the courts overturn the established legal order? And did this happen suddenly and only from about the 1920s onwards? It is widely believed today that the first two decades under the BGB were marked by an exaggerated statutory positivism displayed, particularly, by the Imperial Court:[160] a kind of German 'ecole de I'exegese' engaging in a 'legal game of chess'.[161] We will consider these questions by looking in some detail at one specific area of German law and then, more briefly, at a number of developments in other areas.[162] The focus of our attention, therefore, now shifts from Roman law to contemporary private law. Roman law, in the words of Ernst Immanuel Bokker,[163] had been 'thought apart' from modern law and had thus emancipated itself. Could the same be said of modern law?
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