The Question of Codification

And finally there was, within the Historical School, an ambivalence towards the question of a codification of private law that was never quite resolved. The 'founding manifesto'⁵⁷ of the Historical School was Savigny's reply to A.

¹⁵⁴ Savigny (n. 46) p. xv.

Cf. also, in this context, Heinrich Mitteis, Lebensioert tier Rechtsgeschichle

(1947), 44.

⁵⁶ Koschaker (n. 18) 283 f. The same criticism is raised today against modern attempts to establish a historical scholarship operating on the basis of 'intensive comparative studies which are substantiated historically' and which are 'driven by practical and doctrinal interests' by Tomasz Giaro, ‘Europäische Privat­rechtsgeschichte: Werkzeug der Rechtsvereinheitlichung oder Produkt der Kategorienvermengung', (1994) 21 Ins Commune 1 ff. (the first quotation is taken from Max Kaser, 'Wege und Ziele der deutschen Zivilrechtswissenschaft', in Eiiroprt e il diritto romana: Slndi in memoria di Paolo Koschaker, vol. i (1954), 578; the second comes from Koschaker (n. 18) 346). Zwalve, (1997) 5 Z£uP 398, describes this methodological insight as 'a truism that I is I presented as a stroke of genius’.

⁵⁷ Bernhard Windscheid, 'Die geschichtliche Schule in der Rechtswissenschaft', in Gesammelle Reden und Abhandlungen, ed. Paul Oertmann (1904), 66. nient diversity of private laws prevailing in Germany by adopting a General German Civil Code, modelled on the French code civil.^[34] In his famous essay entitled Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Of the Vocation of our Time for Legislation and Legal Science) Savigny not only rejected the idea of a codification to be drafted and enacted hie et nunc, but criticized the very notion of a codification as 'inorganic', unscientific, arbi­trary, and hostile to tradition.

None the less it was widely accepted, from about the middle of the nineteenth century, that a codification of private law in Germany was about to come and would end the direct application of Roman law. Theodor Mommsen in 1848 voiced the German nation's desire for the creation of a uniform and national law,^[36] and Rudolf von Jhering predicted in 1852 that his own generation of lawyers would see the demise of Roman law in its present form.^[37] The editorial of the first volume of the Zeitschrift für Rechts­geschichte (Journal of Legal History, 1861),^[38] while professing to continue the plan and the aims of SaVigny's Zeitschrift für geschichtliche Rechtswissenschaft (Journal of I listorical Legal Science),^[39] gave expression to the prevailing conviction that the historical development of the law could now suffi­ciently clearly be assessed 'for the results of the historical inquiry to be employed in the legislative process'/*⁴ And even one of Savigny's most faithful disciples, who had sat at his feet in the University of Berlin and who had never ceased to see in him his own scholarly ideal, Bernhard Windscheid,^{[40] [41] was among the most influential proponents of a German codification. In a number of public speeches and essays he expressed his support for a code that would leave behind Roman law and at the same time complete its reception.[42]}

Of course, it was possible to argue that Savigny had only wanted to dispute the vocation of his own time for legisla­tion: a successful code of private law required a fully worked out doctrinal framework which had in the mean­time, and due to the efforts of the Historical School, been established.^[43] Paul Koschaker even maintained that the Historical School, a movement of professors, could become practically effective only by means of legislation.^[44] But the very idea that the conceptual and doctrinal structure of the law might be elaborated in a sufficiently sophisticated

manner to be perpetuated in a codification ran counter to the basic supposition of the Historical School that law develops gradually and organically; the idealization of the present is as a-historical as that of a specific epoch of the past (i.e. of classical Roman law).⁶⁹ Otto Lenel was there­fore, perhaps, Savigny's truer disciple when he saw in the enactment of the BGB the dawn of a reign of the letter of the statute book.

Ik

** How Windschoid resolved this conflict for himself has been the subject of a detailed examination by Jakobs (n. 61) 101 ff. In his article 'Die geschichtliche Schule in der RechtswissenscliafC (n. 57) Windschoid says on p. 75 f.: 'We want to have the code and also the legal achievements of the centuries: as genuinely historical jurists we will take care of that. As historical jurists we know that the code will be nothing but a moment in the development, certainly more tangible than the ripple in a stream, but still only the ripple in a stream.' Taking this as a point of departure, Jakobs regards the BGB as a 'code that does not carry the source of the law in itself; that source lies in the scholarship which has created the cotie. The code, therefore, does not control legal scholarship but is and will be controlled by it, as long as this scholarship is—in the full sense of the word—a historical one' (p. 160). Thus, the BGB 'does not limit legal scholarship in the formation of the (juristic) element of the law' (p. 120).

⁷⁰ See Fritz Pringsheim, 'Romisches Recht in Freiburg nach 191X1', in Ans der Geschichte der Rechts- uud Staatswissenschaften zu Freiburg i.Rr., ed. II. J. Wolff (1957), 121 f.

⁷¹ See, in particular, 'Die Lehre von der Voraussetzung (im Hinblick auf den Entwurf eines bürgerlichen Gesetzbuches)', (1889) 74 AcP 213 ff.; idem, 'Nochmals die Lehre von der Voraussetzung', (1892) 79 AcP 49 ff. Windscheid saw the notion of a 'presupposition' as an 'undeveloped condition': one parly wishes the effects of a transaction to be dependent on a certain state of affairs without, however, elevating such a presupposition, by way of express declara­tion, to the status of a term of the transaction. Such party may refuse to render performance, if his contractual opponent was in a position to gauge, from the circumstances of the transaction, that the presuppostion in fact formed an element of his intention. Windscheid's presupposition doctrine was, essentially, the old clausula rebus sic stantibus in a new cloak. For a modern analysis see Falk (n. 65) 193 ff.