Seminrio IV - Obrigatrio - Savigny PDF

## 12 ## Friedrich Carl von Savigny 1779-1861 Savigny’s ancestors were high-ranking citizens of Lorraine who moved to Germany when Lorraine became part of France. The Savignys occupied high-ranking public roles, wrote notable books, and socialized among nobility in the Upper Rhine. Though Fried...

## 12 ## Friedrich Carl von Savigny 1779-1861 Savigny’s ancestors were high-ranking citizens of Lorraine who moved to Germany when Lorraine became part of France. The Savignys occupied high-ranking public roles, wrote notable books, and socialized among nobility in the Upper Rhine. Though Friedrich Carl was orphaned, he was well cared for and educated. At age sixteen he was ready for university and enrolled at Marburg. Following the common fashion of academic wandering, he spent time at various German universities. He returned to Marburg to obtain his doctorate at age twenty-one. He remained in Marburg for several years lecturing on legal matters. He published his first important book at age twenty-four, a treatise on property. He was lauded by prominent jurists as a landmark in legal thought. John Austin said of it, "Of all books on Law, it is the most complete and perfect." At age twenty-five he married a sister of the poet Brentano and traveled to Paris to research at the Bibliothèque Nationale. He was invited to teach Roman law at the University of Bavaria four years later. Soon after that he was invited to be professor of Roman Law at the University of Berlin. He organized a faculty appeals court in Berlin for the review of first-instance decisions -- a model common to German judicial organization at the time. He also served as third rector of the university and was tutor to the Crown Prince of Prussia. In 1814 he wrote _Of the Vocation of Our Time for Legislation and Jurisprudence_, some excerpts of which follow this note. _Vocation_ was a response to a pamphlet by Thibault, a leading German jurist. Germany had recently shed the yoke of Napoleon, and Thibault proposed a new code of laws for the German states to replace the imposed Napoleonic Code. Savigny argued against codification. Over the following two decades, Savigny published numerous works. He authored a multi-volume history of Roman law in the Middle Ages and a comprehensive systematic work on modern Roman Law. He founded a periodical for the “historical school” of law. For a time he left teaching to become the Grand Councillor of Prussia where he carried out significant reforms to commercial and family law. His later years were marked by recognition and honor. He continued to write legal texts until the day of his death at age eighty-two. A generation earlier, Jeremy Bentham had famously championed codification, Savigny, the adversary of codes, did not mention Bentham in _Vocation._ ## Of the Vocation of Our Time for Legislation and Jurisprudence ### II ### The Origin of Positive Law - In the most ancient times to which authentic history reaches we find that the law had attained a fixed character peculiar to the people, just as their language, customs, and constitution. And these phenomena are not separate. They are only manifestations of the inseparably united people’s collective consciousness, its awareness of a need existing within itself, excluding any notion of accidental or arbitrary origin. - This youth of nations is poor in ideas, but they possess a clear sense of their relations and circumstances, they feel it and act upon it. In contrast, we, in our more complex and artificial existence, are overwhelmed by our own wealth, instead of enjoying and controlling it. - This natural simplicity is particularly observable in Law. Just as a person’s family relations and possessions possess an extra value because of their association, so, by the same principle, it is possible for the laws themselves to be objects of the common faith. But these moral faculties demand some physical vehicle to fix them: for language, its constant and uninterrupted use; for the constitution, the public and tangible authorities that hold the place of law. What then takes the place of law in our time? It is occupied by rules communicated both in writing and orally. However, that mode of fixation presupposes an extraordinary level of abstraction, which could therefore not be practicable in the ancient times of which we speak. On the contrary, we find that symbolic acts were used universally for the origination or elimination of rights and obligations. It is their perceptibility that outwardly holds the law fixed in a form, and their solemnity and gravity correspond to the importance of those legal relationships which have already been mentioned as peculiar to that period. Those formal acts may be considered as the grammar of the law of that time, which is important to note because the prime task of ancient Roman jurists consisted in their preservation and accurate application. We, in our time, have very often dismissed them as the products of barbarism and superstition, and we boast of our freedom from them, without realizing that we too are harassed at every turn by legal formalities which lack the principal advantages of the old formalities, namely their perceptibility and popularity, while ours are regarded by everyone as arbitrary and therefore oppressive. In these partial observations of ancient times we seem to be like those travelers who are amazed to see how French children, and even those of the unlettered classes, speak French with perfect fluency. However, this organic connection between law and the essence and character of the people also manifests itself in the passage of time. Here, too, it may be compared with language. With respect to both law and language, there is never a time of absolute suspension. They are both subject to the same movement and growth as the rest of the popular tendencies. This growth remains subject to the same law of internal need as it was for the old. Law grows along with growth; it is strengthened with the strength of the people. Eventually, it fades when the nation loses its nationality. ### III ### Legislative Provisions and Doctrine - Legislation, properly so called, mostly influences segments of the law. However, the causes for its influence differ widely. In the first place, the legislator, in making changes to the law, may be moved by high reasons of state. It should occur to anyone who consults history to what an extent these sorts of provisions have already been easily deadly to law. In these there is no interest in the technical side of the law, except for its form and relation to the whole law, which makes this branch of legislation more difficult than it is generally assumed to be. There is a second influence of legislation upon the law. Particular rules may in themselves be unclear and, from their very nature, they may have unclear and varying applications. However, application of law requires definition with the greatest possible clarity. A type of legislation can come to the aid of custom by removing these uncertainties, by making clear these unclear points, and thus bringing the law to light and keeping it pure. - In the times about which we are speaking we shall not have in mind these sorts of partial influences when we speak of the need for a code. Here the intent is something different: that the nation should consolidate all its legal provisions and write them up so that the book thus formed is not, in the future, one authority among others but, rather, that everything previously in force shall be null and void. Therefore, the first question is: Where should the materials for this code come from? According to a theory that we have already mentioned, it was maintained by many that they should be provided by the natural law without reference to anything existing. However, everyone who has had to do with carrying out these sorts of plans, or indeed anyone at all who is at all familiar with - the essence of the matter, has recognized that a code formed from the natural law must remain incomplete. In the first place, there will be the great question of whether the code should contain all things at once or, rather, be added to, chapter by chapter, as necessary. If the former, and an order is given to a nation to adopt a complete code, or, at any rate, that a code is to be prepared for adoption, then it follows that it will contain a precise legal theory. - Not even the Roman code is entirely complete. The Roman Code, in the way it is planned to be the only authority on law, should contain all possible cases. This has occasionally been conceived as possible and advantageous, because it thought to be possible to get perfect knowledge of particular cases and then decide every one with a relevant provision in a code. But whoever has attentively studied legal cases will quickly realize that this undertaking would be destined to fail, as there are no limits to the variations of real combinations of circumstances. In all new codes, this attempt at material perfection has been given up altogether, but without anything being put in its place. However, there is a different kind of perfection that can be illustrated by a technical expression from geometry. For example, in every triangle, certain data are given, from the relations between them the remainder can be calculated; therefore, if two sides and the included angle are given, the whole triangle is known. In the same manner, every part of our law is fixed by certain points, which might be called main axioms. To discover the main axioms and deduce from them the exact relation between them and the precise connection of all rules and legal concepts, this is the most difficult problem in jurisprudence. In fact, it is precisely this problem that distinguishes our work as a scientific endeavor. Therefore, if a code is established in a time that is not on a par with its art, then the following evils are inevitable, and a great mistake will be made in terms of the administration of justice. The administration of justice will be guided, supposedly, by the code; but in reality, by something else outside of the code acting as the truly dominating authority. This false appearance will, however, produce the most disastrous effects. By its novelty, its relation to the ideas prevalent in the era, and by its power to influence from outside, the code will invariably attract all attention to itself, and nothing will be done to support the true source of law, which, obscured and forgotten in the dark, will receive no support from the moral energy of the nation which is its only salvation, and from which it alone may reach satisfaction. If this incomplete knowledge of principles is matched with the previous goal of completeness in terms of material, then particular decisions unobserved by the legislatures will continually intersect and contradict, which will become known only in practice – and, if there is poor administration of justice, not even then. - - In addition to substance, the form of the code should be taken into account. For the legislature may have given full and proper consideration to the matter at hand, yet its work may still fail in its purpose if it is not also well-written. It is better to demonstrate what this sort of presentation should be by means of successful and unsuccessful examples of legal application than by general rules. It is generally required that legal language should be especially terse. Certainly, terseness can be very efficient, as seen in the Roman decrees and edicts. But there is also dry and expressionless terseness characteristic of someone who doesn’t understand the use of language as an instrument, and whose work is thereby rendered completely ineffective. There are numerous examples of this among the laws and records of the Middle Ages. On the other hand, - the excessively wordy style of the law may be very objectionable, and even completely intolerable, as seen in many parts of Justinian’s constitutions and in many novels of the Theodosian Code. However, there is also an intelligent and very useful wordiness, as seen in many parts of the Pandects. In conclusion, if what has been said so far with regard to code requirements is taken into account, then it will be clear that only very few eras will be equipped for that purpose. Young nations, it’s true, have the clearest understanding of their law. However, their codes are imperfect in terms of language and logical aptitude. On the other hand, in later times, most of the knowledge of a good jurist is lacking, since the requirements of a good jurist are very often not necessary for this purpose. However, there are few eras, and none have yet been found, where the requirements are met. If there were a law for such an era, it would need to be based on a deeper understanding of the matter, and by an even deeper understanding of language. Therefore, a middling era, which can be viewed as the pinnacle of civilization (and not necessarily so where law is concerned), is the only one that can be considered for drafting a code. However, that era does not need a code; it would only draw up a code for a later and less fortunate era, just as we lay in provisions for winter… but seldom does an era consider such things for posterity. ### IV ### Roman Law - - If we consider, in the first instance, the juridical work of Justinian, which has passed on Roman Law to modern Europe, we cannot fail to observe in them a time of decline. The core of these codes is a compilation of the works of a classic era, which we now consider to have been lost and irretrievable. Justinian himself makes no attempt to hide this. - Everything depends on having the right principles; and it is this very possession that constitutes the greatness of Roman jurists. The ideas and axioms of their science do not seem to have been arbitrarily produced. They are real beings, whose existence and genealogy were made known to them through a long and - intimate experience. For this reason their whole method possesses a certainty that is found nowhere else but in mathematics. And, without exaggeration, it can be said that they had complete conviction in their ideas. However, this method is by no means the exclusive characteristic of one or a few great authors. On the contrary, it is common to all. Even though a very different degree of practical application is the hallmark of each, the method is universal. Indeed, were we to have all their works before us, we would discover much less individuality in them than in any other literature. All of them, so to speak, work together on one and the same great work. And so, the theory on which the compilation of the Pandects is based should not be wholly rejected. Their theory and practice are the same. Their theory is intended for immediate application, and their practice is ennobled by a truly scientific treatment. They see in every principle a case to be applied, and in every case, the rule by which it should be decided. And it is beyond question that they show great skill in how easily they move from generality to particularity, and back again from particularity to generality. Their art is equally suited for the apprehension and communication of science, without loss of applicability and vigorousness, which are in general characteristic of ancient times. - The very high level of Roman jurisprudence at the start of the 3rd century of the Christian Era deserves a great deal of attention, but it is a mistake to consider it as the pure creation of a very favored era, divorced from its predecessors. On the contrary, the materials with which this science was constructed were handed down to the jurists of that time; many of them were even from the republican era. However, not only these materials but also, and especially, the admirable method were rooted in the period of freedom. In fact, what made Rome great was the spirit, quick and alert, that always led to renewing the form of its constitution, so that the new was but a help to the development of the old, and the new always included a mixture of principles, both progressive and stable. This spirit also dominated the constitution and the law. However, the former was extinguished before the end of the republic, but the latter was still active in subsequent centuries, because it did not endure the same causes of corruption that were present in the constitution. Thus, in the legal sphere, the Roman character was strongly marked, and what had been long established was steadfastly maintained, and it did not allow itself to be restricted by whatever did not fit into a new and prevailing popular theory. For this reason, the history of Roman Law, moving back to the classical era, reveals everywhere a smooth and organic development. As soon as a new form is conceived, it is immediately inseparably linked to the old, and thus participates fully in the ripeness and stability of the latter. As we have previously observed, jurisprudence in its golden age was common to jurists in general. Likewise, we now see a similar unity among eras differing greatly from each other. We are therefore led to conclude this legal genius that has led to the excellence of Roman Law is not due to a particular era, but to the nation as a whole. - Roman Law developed, much like customary law, almost entirely from within. A more detailed exploration of its history shows how little, overall, explicit legislation brought about its development, while that development was otherwise very active. Despite what has been said about the need for a code, the history of Roman Law shows this quite well. While the law was undergoing active development, the need for any kind of code was not recognized, and not even in the most favorable times for such a thing. For the time of the classic Roman jurists, it would have been very easy to conceive an excellent code. And the three most famous jurists — Papinian, Ulpian and Paulus — were praefecti praetorio. They certainly were not destined - to be neither interested in the law, nor in the power to bring about a code, if they had found it advantageous or necessary. However, we find no evidence of such an undertaking. When, on the contrary, in an earlier era, Caesar, conscious of his power and the corruption of his time, decided to be absolute in Rome (so to speak), it is clear that he had in mind the creation of a code, understood in our sense of the term. And when, during the 6th century, the whole intellectual life was dead, the debris of better times was collected to satisfy a immediate demand of the time. It is clear that this idea arose from a desperate need for law. However, it was the extreme decline of the law that gave rise to the whole idea of a code. ### V ### Civil Law in Germany - Until very recently, one uniform system of civil law prevailed in Germany, known as common law, which varied more or less due to provincial laws but which did not completely cease to be in force anywhere. The main source of this common law was the books of Justinian. Roman law, it was said, had deprived us of our nationality, and the exclusive attention of our jurists to it had prevented our native law from attaining any equivalent independent and scientific standing. The idea of removing the Romans from our code is one of the most absurd and baseless claims in existence. Such a development would never have happened, or would never have lasted, without an internal requirement to do so. Moreover, an exclusively national development like that of the ancients was not possible in the path that nature has indicated for modern people . Just as the religious beliefs of nations are not peculiar to themselves, and their literature is no less free from the most powerful external influences on the same principle; that the fact that they also have a general system of foreign law does not seem natural. But there is another fundamental error in this theory... Even without Roman law, it would have been impossible to have a smooth and undisturbed development - of German law... Rome itself, still remaining the original focal point of the Roman Empire to the fall of the Western Empire, while Germanic peoples were migrating out, sometimes conquering, sometimes being conquered. Even the reforms to the constitution during the time of Augustus and Constantine had no immediate impact on the law... In Germany, on the contrary, as soon as the feudal system was fully established, there was nothing left that was peculiar to the old race. And everything — even the technicalities and names — became subject to a radical change, and this entire revolution had already occurred when Roman Law was introduced [to Germany]. - Not only are there a large number of purely Roman laws in the provincial laws themselves, the understanding of which is only possible in their original context, but even in those parts where, by intention, they have been neglected, they are frequently decisive in interpreting and applying the newly introduced laws. Therefore, issues that should be resolved by those new laws cannot be comprehended without Roman law. - Germany’s current extremely complicated legal structure, a result of the combination of common law (already extremely complicated in itself) with provincial laws, has given rise to numerous complaints . - First, it is alleged that this situation causes the excessive length of legal proceedings in many parts of Germany. In truth, it’s a great compliment to the judges of these regions to think that so much time is consumed in carefully considering difficult legal issues. They are helped in this by the first digest or handbook that falls into their hands. This complaint really stems from imperfections in legal procedure. Amending these imperfections is one of the most important things left to be taken care of. The sources of the law aren’t to blame. - Second, it is alleged that provincial laws are extremely complex. This complaint is not limited to - the differences between different German states. It occurs even within the same region, where provinces and cities often have special systems. - The most important argument in favor of a uniform law is that it strengthens our love for our common country, but it is weakened by a multiplicity of distinct laws. - The wellbeing of any organism (as in the case of the state) depends on maintaining a balance between its whole and its parts. It depends on every part receiving its due. A spirited love for the whole can only be borne of a fully shared participation in all relationships. Only someone who looks after his own family well is truly a good citizen. Therefore, it is incorrect to assume that public wellbeing would be invigorated by obliterating all individual relationships. If it were possible to instill in each class, in each city, in each village—nay, in each hamlet—a spirit of unity, and a deeper sense of belonging more intensely than what exists now, then public wellbeing would be strengthened by this intensified and multiplied sense of unity. Accordingly, when the influence of law on love for one’s country is the question, provincial and state specific laws shouldn’t be viewed as obstacles. A law deserves praise to the extent that it harmonizes with, or is fitted to harmonize with, the people’s sentiments and conscience. It deserves criticism if it comes across as arbitrary and incompatible with the nation, keeping the people from being a part of it. There are often more instances of this in state-specific legal systems, although not every national law is truly popular. It’s true that, for this political purpose, no state of law seems more conducive to this kind of legal system, in which there is great variety and individuality in details, but which does have common law as its foundation, always reminding all Germanic nations of their indissoluble unity. However, the most harmful thing in this regard is the frivolous and whimsical alteration of the - law. Even if uniformity and convenience could be attained through change, the advantage would not be worth mentioning in comparison with the political disadvantage, which we have already alluded to, and to which we have already alluded. Whatever is created so by the hand of man before our very eyes will always take a very different place in the eyes of the people than that which does not have such a simple origin. And when, in our commendable zeal, we rail against a decision as a blind prejudice, we must not forget that all faith and sentiment regarding anything that is beyond our reach and higher than ourselves depends on the same sort of spirit. The consideration could well lead us to question the inappropriateness of the decision. ### VI ### Our Vocation for Legislation - Bacon wished that a code be produced in an era that surpassed previous eras in knowledge and intelligence. In very recent times, opponents of Roman law have often placed special emphasis on arguments such as the following: — Reason is equally common to all nations and all eras. And, since we have the experience of earlier eras to turn to, anything we produce must invariably be better than anything that was produced before. However, this idea that every era has a calling for everything is itself a very dangerous prejudice. In the fine arts, we are compelled to recognize the opposite. For the art of a past era, in which a skill was mastered, could be considered a good, and a well-known example of that era, something to be emulated and followed, but not something to be superseded because we are now in a more enlightened and sophisticated time. Why are we reluctant to admit the same fact when it comes to government and law. - If, in some era, there emerges a decided and recommendable trend within the public mind, it can be preserved and confirmed by legislation, but it cannot be created by legislation; and where such a trend is wholly absent, any attempt to set up a complete system of legislation will only increase the existing uncertainty, only add to the difficulty of the cure. ### 296 ## The Great Philosophers of Law - Unfortunately, during the 18th century Germany was very poor in great jurists. There were a great deal of hardworking men, it is true, and many of them did valuable preparatory work, but rarely was there done more than that. A double spirit is essential in a jurist: the historical, to swiftly grasp the qualities of each era and every form of law; and the systematic, to perceive every idea and every rule in living connection and natural relation, that is, only in their true and natural relation. This double scientific spirit is rarely found among eighteenth-century jurists. And, in particular, some superficial speculations in philosophy have had an extremely detrimental effect.. It is very difficult to form a just assessment of a time in which one is living. However, unless all signs are deceptive, a spirit has seized upon our science that is able in the future to elevate it to the level of a national system. However, little of this improvement as yet been achieved; so therefore I doubt our ability to produce a good code… - Even if we do not have, de facto, the necessary qualifications to produce a good code, then we shouldn’t believe that the real undertaking would be nothing more than a disappointment which, at worst, simply wouldn’t achieve anything. We have already discussed the great danger, which is inevitably looming, when a very imperfect and superficial state of knowledge is fixed by positive authority; that danger would be as limitless as this undertaking, and as broad as its connection with the awakening of the spirit of nationalism... It is impossible to deny vigorous efforts are being made, and it’s also impossible to say how much we will steal from the future if these currently present deficiencies persist. - One more important question to consider is that of language. I ask anyone who is familiar with good, proper expression and who doesn’t see language as a common tool, but as a scientific instrument, if we have a language suitable for drafting a code. I do not question the strength of the old German vernacular. However, - the very fact that it is unsuitable for the present purpose provides me with further proof that we are lagging behind in our way of thinking… The moment our science is perfected, we will see what benefit this language can bring because of its freshness and energetic character… I realize that someone may disagree with these points. They may grant all of these claims, but still maintain that the human intellect can be unlimited. And, with some reasonable effort, it could produce, even in our time, a work in which none of these imperfections appear in the final product. If someone wishes to take on this endeavor, our age is not one that shies away from this sort of effort, and there is no threat of a real triumph remaining undetected… ## VIII ## What We Should Do Where There Is No Code - In those countries where common law prevails, as in all others, a good state of law will depend upon three things: First, a sufficient set of legal provisions; second, a sufficient administration of justice; and finally, good forms for legal proceedings... -With respect to the legal provisions, to which the proposed code must also adapt itself, the combined system of common law and provincial law, which previously prevailed throughout most of Germany, should, in my view, be replaced by a code, or at least maintained where a code is not in effect. I believe these provisions to be sufficient — indeed, excellent — if jurisprudence does its job. However, it can only be done by jurisprudence itself. For, if we consider our real situation, we find ourselves surrounded by an ocean of legal theories and ideas that have come down through generations and multiplied. - Right now, we don’t really possess or master this issue, but we are nonetheless controlled and dominated by it, whether we like it or not. This is the foundation for all the complaints about our current state of law, which I acknowledge as well-founded; it is also the only cause for demand for codes. This issue surrounds us on all sides, and often without our knowledge of it. The people may think that they have eradicated it by cutting off all historical associations and starting a completely new existence. However, this undertaking would be built upon an illusion. For it is impossible to erase the impressions and the mode of thought of the jurists who live in our time; it is impossible to radically alter the nature of existing legal relationships. These two impossibilities are the basis for the indissoluble connection between generations and eras, in which only development and not an absolute beginning and an absolute end are conceivable. Specifically, the change in one or many legal doctrines does absolutely nothing in this regard. For, as has already been noted, our ways of thinking, the issues and speculations that may arise, will be influenced by the preexisting system. And the subservience of the past to the present will make itself known even where the present, by deliberate intention, strives to oppose the past. Therefore, there is no way to avoid the dominating influence of the existing question. It will harm us as long as we submit to it in ignorance; but it will be beneficial if we oppose it with a vivid creative energy—if we achieve mastery over it by means of adequate grounding in history, and thus acquire the entire intellectual wealth of previous generations. - Only when we have perfected our knowledge through studious and energetic research, and especially have sharpened our historical and political sense, will it be possible to make a sound judgment regarding this legacy that has been passed down to us. Until then, it might be wiser to pause before - judging the existing law as slipshod practice, political prejudice, and mere juridical apathy—but, most of all, to hesitate in applying the dissecting knife of analysis to our current system; because, by doing so, we might inadvertently injure healthy flesh, and then, before posterity, be accused of the greatest offense. The historical spirit is also the only protection against a kind of self-deception, which is revived from time to time in certain men, as well as in eras and nations as a whole: to think that what is peculiar to ourselves is in fact universal to human nature… We encounter people every day who think that their own opinions and legal ideas are the product of pure reason, and that nothing is responsible for them other than their own ignorance of their origin. If we lose sight of our own individual connection with the vast expanse of the world and its history, we necessarily see our own thoughts in a false light of universality and originality. It is only the historical sense that can protect us from this. To apply this sense to ourselves is, indeed, the most difficult task… - One might be tempted to admit that this historical foundation for the question in which we are inevitably involved is necessary in our current position, and yet, at the same time, to consider it a great evil due to the capacity of this foundation to absorb energy that could be poured forth into more useful channels.. This would be a gloomy view, for it would be a recognition of an inevitable evil. However, we can console ourselves with the knowledge that this view is wrong! On the contrary, we should regard this necessity as a great good. In the history of all important nations. We see a transition from a circumscribed, yet fresh and vigorous individuality to undefined universality. The law undergoes the same process; and, in the process, one can lose sight of one’s nationality. Thus, we see that, when ancient nations pause to reflect upon how many peculiarities of their law have vanished, they easily fall into the mistake already mentioned— - judging that all that remains of their law is a jus quod naturalis ratio apud omnes homines constituit. It is obvious that, at the same time, the unique advantage for which the old law was distinguished is lost. To speak of returning to that past time would be useless and futile. But it is an entirely different matter to hold clearly in mind its distinctive excellencies and, thus, to protect our minds against the limiting influence of the present — a task that is as achievable as it is beneficial… History, even in the infancy of a people, is always a noble teacher. But, in times such as ours, it has the added duty of being a guide, as it is only through history that a living connection can be maintained with the primordial state of the people. And the loss of this connection will rob any people of the better part of its spiritual life. In line with this theory, the thing that makes common law and provincial laws truly useful and above reproach is precisely the historical method of jurisprudence… Its goal is to trace every established system back to its root and, in doing so, to discover an organic principle by which what still has life can be separated from that which is dead and belongs only to history… - It s not difficult to see that ancient jurists must be studied (although it is difficult to make this obvious without judging them properly). They should not simply remain as dead letters in the schools; instead, they must be brought to life. We should read and think in their spirit just as we do for any other author for whom we have complete affection. We must become so imbued with their way of thinking that we can write in their style and on the basis of their principles, continuing in their truly profound spirit the work that they were hindered from completing. One of my strongest convictions is that this is possible. The first requirement is, without question, a strong grounding in legal history; and (which necessarily follows from this) the firm habit of seeing every idea and every doctrine in its proper historical context… - The free exchange between faculties of law and courts of justice, which was proposed a short time ago, would be an excellent way to bring about this union between theory and practice. This connection of practice with a robust theory that’s constantly developing is the only way to consistently provide a supply of talented men for the bench. It’s true, that the position of a judge can be honorable and respectable without this. On top of this, a judge can always improve themselves by pursuing interests unconnected with their professional field, such as those to which their natural disposition may incline, but it is entirely different if their profession, itself, attains a scientific character and becomes a means of improvement. Such a state of affairs would, in itself, satisfy all demands. A judge would no longer serve as a mere instrument, but would be exercising a liberal and honorable vocation, and the administration of justice will be truly and scientifically complete… To deny that the state of affairs, in this regard, is most unfavorable is impossible— - the state where a judge is limited to the mechanical application of a given text, without permission to interpret. If we consider this to be one extreme, then the opposite extreme would be that the judge would have to find the law for each case, but they would not be allowed to exercise completely arbitrary discretion due to the certainty that results from a strict scientific method. However, it is not impossible to approach the latter; and, when we do, the ancient judicial organization of Germany will be revived in a renewed form. - I have previously supposed that three things are needed: legal provisions, administration of justice and legal procedure—all in good shape. It has been shown how legal provisions must be based on a profound and extensive science. It has also been shown how, through the same means, the administration of justice can become truly suitable for its task. However, both of these are insufficient if the form of procedure is bad. In this respect, - many regions of Germany need a rapid and effective reform of their procedure, as they do for their present code. It’s true that this is difficult because many regions have no code, and a code would certainly not be a simple matter… But, from a practical standpoint, the differences are ==End of OCR for page 12==