THE GERMAN HISTORICAL SCHOOL

By the end of the eighteenth century, it must have seemed to a dispas­sionate observer that Roman law had ceased to be a vital force in European thought. There was, of course, a permanent sediment of Roman law terms residing in moral and political discourse and in inter­national diplomacy.

The traditional function of Roman law as a source of legal ideas seemed, however, to be finished with enactment of the codes, and, even where the law was still uncodified, it was often viewed as antiquated and irrelevant. It was about this time that J. W. Goethe observed that Roman law was like a duck. Sometimes it is prominent, swimming on the surface of the water; at other times it is hidden from view, diving amid the depths. But it is always there. Just at the moment when Roman law seemed to have become no more than the subject of antiquarian study, it suddenly acquired new life.

The dramatic revival of the fortunes of Roman law in the early nine­teenth century is associated with the reaction against codification and the notions of law that codification implied. The story of this revival begins with Edward Gibbon's Decline aad Fall af the: Raman Empire, of which the first volumes appeared in 1776. In the forty-fourth chapter Gibbon announced that ‘the laws of a nation form the most instructive portion of its history'. He then proceeded to survey the ‘revolution of almost one thousand years from the Twelve Tables to Justinian' by divid­ing it into three periods, each distinguished by a particular type of jur­istic activity.

Looking at Roman law in this way demonstrated that the main agency of legal development was not legislation but debate among jurists and Hugo challenged the prevailing orthodoxy of his day by asserting that ‘statutes are not the only sources of juristic truth'. The model for Hugo and his colleagues was not the law of the legislator Justinian but the law of the second century ad, when the emperor had apparently conceded to the jurists control over the development of the law through argument and debate and the giving of authoritative legal opinions. It was the jurists, therefore, who had the prime responsibility for making law.

Hugo's lead was taken up by Friedrich Karl von Savigny (1779—1861) and the German historical school which he founded. Its manifesto was the pamphlet Savigny published in 1814 entitled ‘On the vocation of our age for legislation and jurisprudence'. This was written in reply to the proposal, made by A. F. J. Thibaut, to create a common civil code for all German states, which would unify them legally in the way that the Code civil had unified the law of France.

Law was not, argued Savigny, purely a construct of reason, as the natural lawyers had presented it, but a product of the tradition and ethos of a particular society. Each nation's institutions, such as its language and its law, reflect this popular character and should change as society changes. Legislation is too blunt an instrument for legal development, which should be by custom and practice in the early stages of society and by juristic debate as society becomes more developed. Law grows ‘by internal silently operating forces, not by the arbitrary will of a law-giver'. In the early period of a society, law is not sufficiently technical to be put into the form of a code; in the declining period of a society, the exper­tise for creating a code is lacking.

Savigny's scheme of legal development was clearly a generalisation of a view of Roman legal history which saw the law of the republic as unde­veloped, regarded Justinian's law as the product of a society in decline and identified the classical period as that of maturity. Ignoring the traces of disagreement among the classical jurists, Savigny held that, far from engaging in polemics, their works show far less individuality than other types of writing; ‘they all cooperate, as it were, in one and the same great work'. Their whole mode of proceeding has the certainty of mathemat­ics. So they were able to introduce new institutions without jettisoning the old: ‘a judicious mixture of the permanent and progressive princi­ples'.

Savigny did not seek to apply his scheme of legal evolution to all soci­eties but only to the ‘nobler nations', a category which for him clearly included not only the Romans but also the Germans. There were, however, difficulties in applying his scheme of continuous historical development to German legal history in view of the break caused by the reception of Roman law. Savigny regarded this as the result of internal necessity. For Germans there was no alternative to adopting Roman law in the sixteenth century. Roman law was not a national but a supra­national law, which, he declared, could no more be considered an exclu­sive national possession than could religion or literature.

Savigny's ideas were received enthusiastically, not only in Germany but also elsewhere in Europe, by those who for various reasons were

suspicious of legislative reform and codification. The notion of the popular spirit (Volksgeist), enunciated by his followers, had a mystical quality, which was quite absent from Montesquieu's more rational con­ception of the spirit of a society's laws, but which fitted in well with the romanticism of the early nineteenth century.

In the 1840s the German historical school split into two groups, Romanists and Germanists, each charged with intense emotion. For the Germanists, Roman law was an alien law and its influence was likened to a virus that had infected pure Germanic law and stunted its growth. The legal historian Heinrich Brunner referred to the influence of Roman law in the twelfth and thirteenth centuries on Bracton and Beaumanoir as ‘a prophylactic inoculation', which enabled the English and French laws to escape a full reception later. The English legal histo­rian, F. W. Maitland, sympathised with the Germanists who were researching the roots of Germanic customary law and characterised their efforts thus: ‘Every scrap and fragment of old German law was to be lovingly and scientifically recovered and edited. Whatever was German was to be traced through all its fortunes to its fount. The motive force in this prolonged effort... was not antiquarian pedantry, nor was it a purely disinterested curiosity. If there was science, there was also love.'

The Romanists, on the other hand, led by Savigny himself, sought both to purify Roman law from its adulteration by decadent non-Roman elements and to bring out the universal principles inherent in the texts. Savigny's first task was to recover the most accurate version of the texts of Justinian and record their transition through the middle ages to his own times. He laid the foundations with his monumental History of Roman Law in the Middle Ages, the fruit of personal research on manu­scripts in most of the main libraries of Europe. It revealed in rich detail the survival of Roman law texts in the dark ages and the revival of their study in the twelfth century. Adherents of the historical school ascribed to the intervention of Providence on its behalf a significant event that occurred just at the time when Savigny inaugurated the school. Dependence on Justinian's texts for discovering the classical Roman law was greatly reduced by Niebuhr's discovery, in the cathedral library of Verona, of an original text of Gaius's Institutes.

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