The Legacy of Roman Law in the German Romantic Era

The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change

James Q. Whitman
Copyright Date: 1990
Pages: 300
https://www.jstor.org/stable/j.ctt7ztv22
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    The Legacy of Roman Law in the German Romantic Era
    Book Description:

    Well after the process of codification had begun elsewhere in nineteenth-century Europe, ancient Roman law remained in use in Germany, expounded by brilliant scholars and applied in both urban and rural courts. The survival of this flourishing Roman legal culture into the industrial era is a familiar fact, but until now little effort has been made to explain it outside the province of specialized legal history. James Whitman seeks to remedy this neglect by exploring the broad political and cultural significance of German Roman law, emphasizing the hope on the part of German Roman lawyers that they could in some measure revive the Roman social order in their own society. Discussing the background of Romantic era law in the law of the Reformation, Whitman makes the great German tradition of legal scholarship more accessible to all those interested in German history. Drawing on treatises already known to legal historians as well as on previously unexploited records of legal practice, Whitman traces the traditions that allowed nineteenth-century German lawyers like Savigny to present themselves as uniquely "impartial" and "unpolitical." This book will be of particular interest to students of the many German thinkers who were trained as Roman lawyers, among them Marx and Weber.

    Originally published in 1990.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6098-2
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xvi)
  4. ACKNOWLEDGMENTS
    (pp. xvii-xvii)
  5. ABBREVIATIONS
    (pp. xviii-2)
  6. Chapter I LAW IN THE FOURTH MONARCHY OF MELANCHTHON
    (pp. 3-40)

    At the close of the 1814 pamphlet that would make him world famous, hisOn the Vocation of Our Time for Legislation and Legal Scholarship, the great early nineteenth-century leader of German law, Friedrich Carl von Savigny, quoted a long passage by Phillip Melanchthon.¹ There is something unexpected in reading this ending to Savigny’s pamphlet: Melanchthon’s elegant Latin, two-and-three-quarter centuries old, comes as a surprise after pages of German focused on the urgent legal situation of post-Napoleonic Germany. But Savigny was typical of his time in invoking a glorious name from the Reformation. As the national revolutionary armies of the...

  7. Chapter II DECLINE OF THE ROMAN-LAW CORPORATE TRADITION IN THE EIGHTEENTH CENTURY
    (pp. 41-65)

    Within a generation after the Melanchthonian program had established itself, the Public Peace gave way. The organized violence of the Thirty Years’ War, far more systematic and technologically accomplished than any faced by Germans before 1495, ruined vast stretches of the German world. Inevitably, Melanchthonian constitutionalism suffered. The Reichskammergericht was thoroughly politicized during the wars, becoming an instrument of the emperor.¹ Moreover, as the wars drew to a close, one of Europe’s greatest polymaths mounted a direct challenge to Melanchthon’s legal-historical order. In 1643 Hermann Conring, then professor of medicine at Helmstedt, decisively disproved the legend of Emperor Lothar’s formal...

  8. Chapter III IMPERIAL REVIVAL IN THE FIRST ROMANTIC DECADE AND THE DISCOVERY OF THE ANTONINES
    (pp. 66-91)

    The Enlightenment had enemies among German literary men early on. Their work, beginning with the activity of Möser and Herder in the late 1760s, is familiar to all students of German history. But if the literary Anti-Enlightenment has long been familiar, it is only recently that historians have rediscovered what could be called the great political Anti-Enlightenment: the startling revival of the Holy Roman Empire, linked with growing intellectual antiabsolutism, that began in the late 1780s. So-calledReichspatriotismus, love of the Holy Roman Empire, appeared far and wide in the last years of the eighteenth century. Germans began once again...

  9. Chapter IV IMPERIAL TRADITION AND THE NEW PROFESSORIATE AFTER 1814
    (pp. 92-150)

    Seventeen months after Napoleon’s final defeat, Count von Buol Schauenstein opened the first session of the Bundesversammlung, the new federal assembly of the German states at Frankfurt. His speech is jarring to read. Though Count von Buol, the Austrian ambassador, was addressing the delegates of the victorious German states, he did not speak about victory. He spoke about the German universities and professors. Germany, said Count von Buol, was a land of poets, thinkers, artists, and adventurous merchants.¹ False modesty would not prevent him from expressing his conviction that Germany stood in the first rank of literary, artistic, and practically...

  10. Chapter V HIGH CULTURAL TRADITION AS AN INSTRUMENT OF REFORM: THE PROFESSORIATE AND THE AGRARFRAGE
    (pp. 151-199)

    The promise of Roman legal civilization as the Roman-law professors conceived it was change without destruction, peaceful reform through the revival of Roman tradition. This was not a completely empty promise. This professorial talk of the saving power of classical tradition may now seem to have been hopeless or fantastic. But the romantic Romanist lawyers had practical plans for change that historians have never understood. In the end these plans did not—and probably could not—succeed. Nevertheless, at least until the decline of rule-of-law romanticism that began in the late 1830s, it seemed possible, without the agency of the...

  11. Chapter VI CULTURAL CRISIS AND LEGAL CHANGE AFTER 1840
    (pp. 200-228)

    The program of Savigny did not survive midcentury unaltered. After 1840 the strength of Roman tradition as Savigny conceived it was shaken by two successive cultural countermovements: in the 1840s, romantic Germanists mounted a bitter attack on Roman law and on public respect for Rome. This Germanist challenge faded—if only for a time—after the Revolution of 1848. But Roman tradition was undermined in new ways during the 1850s. The 1850s were the decade of materialism, of a kind of cult of the natural sciences and of commerce that seemed fundamentally incompatible with the cult of the classics. The...

  12. CONCLUSION
    (pp. 229-234)

    I close this study in 1861. This was the year of Savigny’s death. It was also the year of the completion of the Commercial Code, after which the process of codification irreversibly began, and the displacement of the ancient texts inevitably loomed. After the Commercial Code, codes for other areas of law followed at intervals until 1900, when the greatBürgerliches Gesetzbuchcame into force, at last completely displacing theCorpus Iurisfrom the German legal order. With codification, interpretive authority passed to the class of the judges, against whose authority Savigny and Puchta had struggled so hard and so...

  13. GLOSSARY OF TERMS AND PHRASES
    (pp. 235-238)
  14. WORKS CITED
    (pp. 239-272)
  15. INDEX
    (pp. 273-281)