The Role of Roman Law
An obvious paradox that has been frequently discussed consisted in the emphasis on Roman law as basis for a contemporary theory of private law. It ill matched the idea of law as being the product of the spirit of the people (Volksgeist).
The phenomenon of the 'reception' could only be explained in a very tortuous way on that basis.[32] A second problem arose from Savigny's partiality for the pure and undiluted Roman law, corresponding to the educational principles of contemporary humanism and the aesthetic ideas of classicism.[33] It entailed a somewhat disdainful attitude towards the immediately preceding period of the usus modernus pandectarum and a negative, and essentially unjust, evaluation of the work of the medieval Commentators whose mos Italiens had paved the way for the usus modernus. This attitude was in fundamental opposition to a programme that was fundamentally based upon the notion of 'organic growth' and insisted on 'the even and dispassionate recognition of the value and individuality of every age'.53Moreover, Savigny strove to 'discover and determine within the entire body of our law what is in reality of Roman origin... and to eliminate, within the environs of these Roman elements of our legal consciousness, whatever has in fact withered away and merely continues to lead a troublesome shadow existence, as a result of our misunderstanding'.54 He (as well as his pandectist successors down to Ernst Immanuel Bekker) thus assessed Roman law from the point of view of modern doctrine. There was the danger of a skewed perception of the past: a perception affected by 'considerations of how Roman law might still be applied' (gemeinrechtliche Amvendbarkeitsriicksichten). For if the ultimate challenge is the transformation of Roman law into a contemporary Roman law, a certain temptation always exists to read contemporary law into Roman law?71 By aiming at productive assimilation the scholarship of the Historical School intended to be historical and doctrinal at one and the same time: an enterprise as likely to succeed as 'the mixing up of fire and water'.56
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- Williamson C.. The laws of the Roman people: public law in the expansion and decline of the Roman Republic. University of Michigan,2005. — 535 p., 2005
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- Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p., 2004