I. The Codification Movement in Europe
The codification of private law from the late eighteenth century onwards is regarded, very widely, as a turning point in the development of private law in Europe.1 Obviously, some of the more naive expectations entertained by intellectuals of the Age of Enlightenment have not been fulfilled: the codifications have neither made the learned lawyer redundant, nor have they led to a lasting consolidation (or ossification) of private law. They have, however, significantly contributed to the national fragmentation of the European legal tradition: for codification constitutes a piece of legislation which is applicable only within the confines of the territory for which the body responsible for legislation is competent to legislate. There had been signs of such fragmentation at the time of the usus modernus pandectarum in the seventeenth and eighteenth centuries when the 'institutional' writers had no longer discussed Roman law as such but Roman-Dutch or Roman-Scots law, ius romano-hispanicum or ius romano-saxonicum.2 But it had always been clear that these were merely regional or national variations of a common theme: different manifestations of one and the same legal tradition. With the enactment of the codifications this began to change. The awareness of a fundamental intellectual unity got lost and legal scholarship degenerated, in the much-quoted words of Rudolf von Jhering, to a national discipline the intellectual boundaries of which coincided with the political ones.3

At the same time, the codifications brought to an end the 'second life' of Roman law, i.e. the story of its practical application in Europe. Since the days of the 'reception' Roman law had provided the basis for the administration of justice in western and central Europe and had become a ius commune, or common law.4 In the process, it had been subject to considerable change; in particular, it had absorbed many elements of canon law, indigenous customary law, mercantile custom, and natural law theory. The usus antiquus of Roman law had thus been transformed into a usus modernus pandectarum5. Yet, a string of authors from François Hotman to Hermann Conring and Christian Thomasius had started to shake the authority of Roman law: of a law that had given rise to intricate doctrinal disputes, that was wedded to outdated and impracticable subtleties, and that had been enacted by the despotic rulers of past ages. Also, since Roman law was applicable only in subsidio, countless more specific territorial or local laws could govern a particular dispute. The great number and complexity of legal sources contributed to a widespread feeling of legal uncertainty and inefficiency as far as the administration of justice was concerned. The codifications were supposed to tidy up this messy situation: they were to provide a systematic regulation of the entire private law, ousting all rival sources including, in particular, the ius commune. Thus, Article 1 of the Dutch Abrogation Act (Afschaffingswet) provided, in a phrase suffused with fear, relief, and elation: 'The legal validity of Roman law is and remains abrogated.'6 #p#分页标题#e#

II. The German Civil Code as a Late Fruit of the Codification Movement
The German Civil Code is a comparatively late fruit of the codification movement. The three great natural law codifications in Prussia, France, and Austria had been prepared in the late eighteenth and early nineteenth centuries. They were intended to satisfy the desire for territorial legal unity. The Code civil, in particular, had thus become a potent symbol for the one undivided nation that had emerged from the upheavals following 1789. In the course of the nineteenth century, however, most of the other states of central, southern, and western Europe had codified their private law. Predominantly, the Code civil had been the source of inspiration. It continued to apply in Belgium and became the basis of the Dutch Burgerlijk Wetboek of 1838.7 It provided the point of departure for the Italian Codice civile of 1865 (which could thus be enacted a mere four years after the kingdom of Italy had come into being), for the Portuguese Código civil of 1867, the Spanish Código civil of 1888 - 89 and the Romanian Civil Code of 1865.8 The Serbian Civil Code of 1844, on the other hand, had been influenced mainly by the Austrian Code.

Increasingly, therefore, the legal position prevailing in nineteenth-century Germany was bound to look odd and anachronistic. The Prussian territories (including Westphalia, Bayreuth, and Ansbach) were governed by the Preußisches Allgemeines Landrecht. In the Rhine-Province, Alsace, and Lorraine the Code civil applied.9 The Grand Duchy of Baden had adopted the Badisches Landrecht which was based on a translation of the Code civil.10 The Kingdom of Saxony enacted its own Civil Code in 1865. Some places in Bavaria lived according to Austrian law, while in parts of Schleswig-Holstein Danish law prevailed. Most of the remaining German territories (comprising, in 1890, close to 30 per cent of the population of the Deutsches Reich) still administered justice according to the ius commune. But the ius commune only applied in subsidio. Countless more specific territorial or local laws could therefore govern a particular dispute: from thirteenth-century texts like Eike von Repgow's famous Sachsenspiegel to Baron von Kreittmayr's Codex Maximilianeus Bavaricus Civilis of 1756, from the Neumünsterische Kirchspielgebräuche to the Nassau-Katzenelnbogensche Landesordnung.11 Thus, for example, there were all in all more than one hundred different regulations concerning succession upon death. None the less, in the German territories, a fundamental intellectual unity had continued to persist throughout the nineteenth century. That unity was forcefully promoted by Savigny's Historical School of Law and the pandectist legal scholarship that emerged from it.12 Thus, the contemporary version of Roman law did not apply only in the areas still governed by the ius commune; even in the countries of codified law it provided the underlying legal theory.13 It provided the self-evident point of reference for understanding and assessing the codifications and territorial statutes. Therefore, it remained perfectly possible for a law professor to be called from Königsberg to Strasbourg, from Gießen to Vienna, or from Heidelberg to Leipzig. Nor were law students, as far as choice and change of universities were concerned, confined to the institu-tions of the state in which they later wanted to practise. Neither the Prussian Code, nor the Code civil or the Saxonian Civil Code, became the focal point for the legal training offered in the universities of the respective states.14 Just as the codified laws had at first been neglected, and subsequently been pandectified, by contemporary legal scholarship, they constituted hardly more than an appendix to the courses on Roman private law in the curricula of nineteenth-century law faculties.15 #p#分页标题#e#