The Neglect of the More Recent History of Private Law
(iv) The separation of a Romanist and a Germanist branch of the Historical School, in turn, had a number of detrimental consequences. Thus, in particular, it contributed to the remarkable neglect of research into the historical development of private law from the Middle Ages until the age of codification.
Both Romanists and Germanists tended to concentrate on topics and periods which were undoubtedly within their sphere of competency: the former on pandec- tist doctrine and later, since the 1880s, on ancient Roman law, the latter on the 'Germanic' law of the pre-reception era. Thus, as far as the Romanists were concerned, there was a yawning gap between Justinian's Corpus Juris and the moment when 'the legal world was recreated by Savigny and his associates'.82 The early Middle Ages were claimed by the Germanists who tended to overlook the many complex interactions between the Roman 'vulgar' law of late antiquity and the customary laws of the 'Germanic' tribes.83 As far as the 'reception' and the subsequent legal development is concerned, however, it was obvious that it could not be tackled by either Germanists or Romanists alone.The necessity of interdisciplinary collaboration was recognized already in 1861, on the occasion of the foundation of the Journal of Legal History. It was designed to reunite the Journal of Historical Legal Science and its younger Germanist sister, the Journal of German Lain and German Legal Science. The editors specifically subscribed to the program- w Koschaker (n. 18) 274.
83 See, e.g., Karl Kroeschell, 'Germanisches Recht als Forschungsproblem', in Festschrift filr Hans Thieme (1986), 7; the summary in Hans Schlosser, Grundziigeder iieneren Privutrechlsgeschichte (8th edn., 1996), 6 if.; and the panoramic discussion by Maurizio Lupoi, Alle radici del mondo giiiridico etiropeo (1994).
For exemplary studies of individual areas of the law, see Hermann Nehlsen, Sklavenrecht zwischen Antike mid Mittelalter (1972), and Harald Siems, Handel mid Witcher ini Spiegel friih- mittelalterlicher Rechlstpiellen (1992). In his History of Roman Late in the Middle Ages Savigny had already laid the foundations for the assumption that Roman law had survived the fall of the West Roman Empire: Schroder, in Kleinheyer and Schroder (n. 15) 357. matic statement under whose auspices Savigny had launched his journal, but they noted one difference: 'the law of the fatherland' had acquired greater significance in comparison with Roman law. Thus, it would also be the task of the new journal to investigate 'the legal relationships, the shape and evaluation of which [was] the free act of the German legal consciousness' and to trace the legal development also through periods which 'had hitherto been skipped'.[52] The Journal of Legal History was continued, in 1880, as Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Journal of the Savigny-Foundation for Legal History). The Savigny-Foundation had been set up with a specifically comparative objective in mind: it was supposed to promote scholarly work 'in the field of the law of the various nations... particularly studies which discuss Roman law and the various Germanic laws both as such and in their relation to each other'.[53]The attainment of this objective was not facilitated by the fact that the journal was split into two divisions, a Romanist and a Germanist one; in 1911 a third division, devoted to Canon law, was added. To this day the journal appears in the form of three practically independent yearbooks.[54] Studies devoted to the more recent history of private law have remained, for a long time, very much the exception. For them a fourth division would have been required since the split-up into the three traditional branches of legal history simply does not make sense when it comes to tracing the history of the foundation, the fiducia, or the testamentary executor.[55] Strangely, therefore, the Journal of the Savigny-Foundation for Legal History perpetuates a division of academic endeavours88 that was entirely alien to the person in whose name it is still published today: it was inherent in his concept of historical legal scholarship that all strands of the tradition had to be taken into account which had contributed to modern law.
That division was defensible, if at all, only as a matter of specialization concerning historical research, particularly as far as classical Roman law was concerned. This was, in fact, its purpose. For Savigny's programme had, in the meantime, been subtly changed: a Journal of Historical Legal Science had been turned into a Journal of Legal History. The destination of a historical legal science, so it appeared to many, had been achieved: with Windscheid's Lehrbuch des Pandektenrechts (Textbook of Pandcctist Law) the mastery of private law had been perfected to such an extent as was required by a codification. All that remained to be done was to cast that textbook into statutory provisions. If, however, historical legal science had arrived at its ultimate destination, scholars were now free to turn their attention to legal history: and this time legal history as such, not one controlled by contemporary needs.89
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