III. The Programme of 'Historical Legal Science'
Our perception of nineteenth-century pandectist 'legal science' has been coloured, for a long time, by the exaggerations of those who attempted to break away from it and from the 'conceptual jurisprudence' established on that basis. Thus, a scholar like Georg Friedrich Puchta is only slowly beginning to emerge from the shadow cast by the pre-eminence of Savigny.16 Jhering's work cannot be apportioned as easily, as once thought, into two different periods, separated by a 'conversion' from conceptual to functional jurisprudence. And even Bernhard Windscheid, the embodiment of pandectist scholarship in the second half of the nineteenth century ('Legal scholarship means pandectism, and pandectism means Windscheid') not only regarded himself as the servant, but also as the master of the concepts.17 True law, for Windscheid, was 'strict but, at the same time, lenient; fixed and yet free; firm but also flexible' (that corresponded to the ideal of classical Roman law), and the true Jurist, in his view, was able, like the Roman jurists, 'to serve his concepts and freely to rise above them'.18 The programme of 'historical legal science', as it had been developed by Savigny at the beginning of the century, had also been characterized by a certain tension. For while the emphasis of an organic connection between contemporary law 'and the entire past'19 led to a discovery of the modern discipline of legal history (previously there had only been 'legal antiquities'),20 Savigny ultimately aimed at legal (rather than historical) scholarship, i.e. the establishment of a legal doctrine which, though developed 'historically', was in conformity with contemporary requirements.21 Thus, in the preface to his System des heutigen Römischen Rechts (System of Contemporary Roman Law) Savigny emphasized the need 'firstly, to trace and establish, within the entire body of our law, what is... of Roman origin, in order not to be unconsciously dominated by it; but then our approach aims at eliminating, among these Roman elements of our intellectual formation, whatever has in fact withered away and merely continues to lead a troublesome shadow life as a result of our misunderstanding'.22 The main task of a scholar in private law, he writes at another place, 'is the intellectual penetration, adaptation and rejuvenation' of the legal material as it has come down to us.23 Savigny's vision of an 'organically progressive' legal scholarship,24 based on a uniform body of sources, guided by the same methodological convictions, and common to the whole nation - for Windscheid this was 'a revelation'25 - led to a heyday of legal scholarship in Germany. It constituted the intellectual foundation for the emergence of a national community of scholars, of German legal unification on a scholarly level. At the same time, pandectism secured the leading place for Germany in the world of nineteenth-century legal scholarship; it was much admired by lawyers all over Europe and exercised significant influence on the legal development in countries such as France, Italy, and Austria.26 #p#分页标题#e#

An obvious paradox inherent in Savigny's programme that has repeatedly been noted consisted in the emphasis on Roman law as the 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.27 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.28 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 italicus had paved the way for the usus modernus. This attitude was not easily reconcilable with 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'.29

IV. 'Historical Legal Science' and Codification
Moreover, there was, within the Historical School, an ambivalence towards the question of codification that was never quite resolved. The 'founding manifesto'30 of the Historical School was Savigny's reply to A.F.J. Thibaut's call to end the intolerable and inconvenient diversity of private laws prevailing in Germany by adopting a General German Civil Code, modelled on the French Code civil.31 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 hic et nunc, but criticized the very notion of a codification as inorganic, unscientific, arbitrary and hostile to tradition. At best, it was unnecessary; at worst it would distort and stifle 'organic' legal development.32

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 was to 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,33 and Rudolf von Jhering predicted in 1852 that his own generation of lawyers would see the demise of Roman law in its present form.34 The editorial of the first volume of the Zeitschrift für Rechtsgeschichte (Journal of Legal History 1861), while professing to continue the plan and the aims of Savigny's Zeitschrift für geschichtliche Rechtswissenschaft (Journal of Historical Legal Science) 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'. 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,35 was among the most influential proponents of a German codification. Among the German lawyers, he wrote in 1878, 'there are probably relatively few who have not, with all the strength of soul available to them, yearned for the great work of a German code of private law',36 Thus, it is small wonder that the codification's entry into force on the first day of the new century was greeted with strong feelings of national pride. 'The new century brings to fruition the greatest feat achieved in German legal life', as it was put in one of the two leading law Journals for practitioners,37 while the other one, the Deutsche Juristenzeitung (German Lawyers' Journal) opened its January issue for the year 1900 with an ornamental page carrying the heading 'One People. One Empire. One Law'. For the first time, the notion of legal unity had become reality on German soil and for the first time, therefore, the energies of scholars and practitioners alike could focus on the interpretation of one and the same authoritative text. #p#分页标题#e#