Legal History from a European Perspective: Recent Episodes
Emanuele Conte
A series of academic podcasts for students. Feel free to write to emanueleconte@gmail.com for slides and more additional material
- 1871: the Second Reich.
- 1874-1887: the first draft.
- 1887-1890: Discussion on the Entwurf (provisional version of the code).
- The Germanists suggest the introduction of some (allegedly) customary institution.
- An Example: protection of the rent of houses. The return of the Gewere.
- Other example: foundations and communities.
- 1896-1900 Bürgerlich Gezetzbuch (BGB).
- 1814: Savigny against Codification.
- Volksgeist and the customary origin of every form of law.
- Aporia: how could Roman Law be customary?.
- Against Roman Law: the Germanists refuse the « law of Professors ».
- The real meaning of the contrast: liberal individualism vs. social corporatism.
- An example: Possession (Herzog 213):
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- Good faith, titulus, res habilis;
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- Exclusion of possession of rights.
- 1830 and 1848: Paris does not forget the Revolution
- The Belle Époque: progress, science, arts, and the law
- Codifications in Europe
- Napoléon’s reform of legal studies.
- Studying law means to understand the Civil Code.
- École de l’exégèse: what is exegesis?
- Triumph and defeat of the codification: the whole law is reduced to the code, but the code still needs a doctrinal interpretation.
- More codifications:
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- 1810: Criminal Code;
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- 1806: Procedure;
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- 1807: Commercial Code;
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- 1808: Criminal Instruction Code;
- New branches of legal science.
- Articles 4 and 5: no judge can refuse a judgement.
- Interpretation: the declaration of rights and the constitution help the judges in applying the Code.
- The judge cannot « bend » the law: he can just apply it.
- The judge must not extend the meaning of the law by analogy: if a case is not clearly foreseen in the Code he must ask directly to the legislator (the National Assembly).
- A judge is like a robot: just the mouth of the law.
- The Revolution did not issue a Civil Code: all projects raised criticisms.
- Portalis drafts the Code. He was a jurist formed in the French tradition.
- Herzog 209: the Code « was not all what it was supposed to be ». Is that right?
- Structure of private law: the two « major innovations » (Herzog 189-192) are there.
- Absolute property, freedom of contract, unification of subject.
- Abrogation of all existing laws.
- Codifying without a Revolution: Tuscany 1786 and Prussia 1794.
- Innovation and conservatism: the code is often contradictory.
- Also the projects set by revolutionary governments in France realise an absolutist project.
- Assemblée Nationale is not absolutist enough.
- 1804: a French Empire under Napoléon.
- The military side of the Revolution.
- 1792: The French Revolution against the coalition of conservative States.
- International attitude of entlightened theories.
- Internal and external enemies justify the terror and forms of dictatorship.
- Italy: 1796-97: Cisalpine Republic.
- 1804: French Empire.
- 1805-1815: More wars from Portugal to Russia. Final defeat at Waterloo and restauration.
- During the 18th Century European jurists developed the theories of natural laws.
- They established the natural right of every nation to rule itself.
- Emer de Vattel’s Law of Nations (1758).
- American Revolution introduced also a major example of the claim of the colonies for independency.
- 1787: the government of the Union: separation of powers.
- Executive: the President.
- Legislative: the Congress.
- Judiciary; judges and the Supreme Court.
- The American Constitution is a new pact - not the acknowledgement of existing ancient popular customs.
- Four innovations: 1) Expression of general priciples; 2) Nature and reason as grounds; 3) Written form; 4) Definition of natural rights.
- The Constitution above and beyond ordinary laws.
- Drafted by Thomas Jefferson.
- … all men are created equal.
- … they are endowed by their Creator with certain unalienable Rights.
- … among these are Life, Liberty and the pursuit of Happiness..
- Jefferson uses european legal concepts:
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- The “constitution” of the people is its consistency;
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- a king who oppresses his people is “a tyrant … unfit to be the ruler of a free people".
- European culture moved towards Enlightenment.
- A new concept of the society: a gathering of free individuals based on a social pact (This is an ancient idea, now renewed).
- A new concept of the individual: every man has fundamental rights; religion must not affect the State; every power must respect the rights of every individual; everyone think for himself.
- A new concept of law: it is Nature itself that justifies the legal institutions. Every power arbitrarily wanting to impose a legal organization is basically illegal and can be overturn.
- British lawyers of the 16th and 17th century used the legal concept of custom.
- But they used it to claim for the absolute independency of the common law from the continental tradition.
- Every judicial decision was then seen as an enforcement of customary principles. Herzog shows that actually it was not the case.
- A shared unrest for the whole of Europe.
- The most powerful nations of the North-West of Europe tended to an increasing centralisation of power in the hands of the kings.
- The tendency to a royal absolutism was balanced by the establishment of a strong national identity.
- The Nation existed before the institution of a legislative power.
- Two conceptual tools: 1) custom (= Roman consuetudo); 2) national history.
- Modern national historiography as part of the early “constitutionalism”.
- Is a custom non-written law? And if yes, can it be written down?
- Examples of written customs: the libri Feudorum.
- Writing down a custom is usually the sign of a new agreement between the ruler and the subjects: the example of the magna carta.
- The self determination of the communities: an idea connected with Protestantism.
- The construction of the French State in the 16th century: writing down customs, establishing representative parliaments.
- The role of royal jurists and the persising influence of the ius commune.
- Hotman converted to calvinism while attending to the legal studies.
- Geneva: the myth of a christian evangelical community.
- 1567: Hotman publishes Antitribonian.
- Replacing Roman law with a national legislation and national customs.
- Imagining a constitutional balance: the King and the Nation ==> Royal legislation and customary law of the Nation.
- The rupture of the unity of the Christians under one Church sharing the same beliefs endangered the very idea of the existence of one jus commune.
- Martin Luther 1517: Christian salvation is an individual affair, and not the business of a community hierarchically organised. The clergy play no role.
- A crisis of the very idea of legal norm. Luther refuses the canon law.
- Secular regulation and individualism: the rise of the market (Max Weber and beyond).
- Since the 12th century: French legal scholarship was more open to extra-legal knowledge.
- French culture is opened to innovations brought by the humanists.
- Francesco Alciato moves to France.
- Mos gallicus: historical research aimed at discovering the Roman law of the classical period.
- Mos gallicus: building a new systematic of legal concepts. Hotman criticise Tribonian’s method. Hugues Doneau suggests a new sysematic.
- Rediscovery of Antiquity: the 14th century Italy: Petrarch and Boccaccio.
- Lorenzo Valla and Angelo Poliziano on the Digest.
- Humanistic philology: doubts about the text of the received legal books (and about the text of the Bible).
- Humanists learn Greek: new editions of the Code.
- 15th/16th century: first humanist jurists. Andrea Alciato.
- The Roman law from the present to the past: turning it into a model, a source of inspiration.
- Admired, but distant: no more in direct use.
- Tamar Herzog is a specialist of the Early Modern.
- • Main points:
- 1) Humanism and the change in culture,
- 2) The Protestant Reformation and the rupture of the christian commonwealth;
- 3) The crisis of the prestige of Monarchy, and the rise of the Rule of Law;
- 4) Ius gentium, ius naturale, and the broadening of the geographical space;
- The crisis of the two universal institutions: the Church and the Empire.
- The Papacy agains the Emperors during the 12th and the 13th centuries.
- With the crisis of the Empire Roman Law looses its connection with its corresponding institution. It becomes ratio scripta.
- Innocent III, Gregory IX, Innocent III and Boniface VIII: The claim of the popes for the superiority of the spiritual power.
- The contrast with France and the decline of the centrality of the Roman papacy.
- Two different historiographical traditions:
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- Common Law: a history of public institutions introducing new procedures;
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- Continental law: a history of scholars, writings and doctrines.
- Glossators and commentators.
- Institutions introducing new procedures in the Continent.
- England was not exceptional.
- Is the common law system peculiar and special from the 12th century onwards?
- Similarities: Writs and Roman actiones, reintepreted by EUropean jurists since the 12th century
- The history of the origins of the common law as a peculiar English system was written in the 18th century, when the United Kingdom developed a truly peculiar national system
- The peculiarities of the modern era have been presented as medieval. But in the Middle Ages England is not more peculiar than other countries
- The Common Law is described as not depending from the legislative power.
- The current narrative: Judges in England, Jurists in continental Europe.
- 12th-14th cnetury: the English kings enactd a lot of legislative acts.
- About ownership, about procedure, about taxation. And criminal law.
- King and Parliament. Also a European model.
- Cortes, assise, parliaments, assemblies, senates, and so on.
- In Norman Southern Italy, in Spain, in the Italian free cities.
- Henry II (1154-1189): centralising jurisdiction.
- 1164, Constitutions of Clarendon: criminal justice must be given only by the king, also against clerics.
- Thomas Becket, archbishop of Canterbury against the king. Murdered in 1170.
- 1215: Magna Carta, a privilege for the lords.
- It granted protection against unjust imprisonment, limitation of taxes, and access to swift justice. Being originally a political agreement between the king and the aristocracy only, it gradually became a statement of limitation of the royal power in front of every Englishman.
- “It is impossible to imagine a right without a remedy”.
- Every step of the pleading had to conform to a well ordered process.
- Judiciary abstraction: the rights of the subjects had to be claimed only in the foreseen forms.
- Herzog 104: was continental Europe really different?
- Criticism to Herzog: no, procedure was a central issue everywhere in the late Middle Ages.
- The King must guarantee peace in the Reign.
- The Norman kings moved from protecting dates to protecting territories, focussing on the means of communication.
- The writ is an instrument to achieve uniformity in Royal interventions.
- A “revolutionary” change: the accused is allow to present his version of the facts.
- As for dialectical scholasticism, the truth can be approached by opposing different statements.
- Standardisation of cases: the truth is assumed in a judicial abstraction.
- Henry Sumner Maine: “So great is the ascendancy of the law of actions in the infancy of Courts of Justice, that substantive law has at fist the look of being gradually secreted in the interstices of procedure”.
- The Birth of the Common Law is depicted as a very peculiar happening by AngloAerican legal historiography.
- A very national glory: watch 3 minutes of the BBC series The Last Kingdom.
- Hastings 1066: a turning point in English history.
- Let us insert this in the Eurpean framework:
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- The Empire;
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- The free cities within the Empire;
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- The kingdom of France;
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- The new kingdoms: Castilla, Aragon, Sicily (Norman as England).
- The ius commune sought to replace existing legal orders?
- Calasso and the idea of ius commune as a comprehensive system.
- The Roman law in the view of the the Germanists of the 19th century.
- The corporations as autonomous human gatherings issuing their own legal norms.
- Medieval Pluralism in the view of Calasso.
- The jurists at work: using arguments of ius commune to fill the gaps of local laws.
- Herzog: the example of the meaning of “Justice”: it is a tension of the ruler towards an aim, a purpose.
- The example of Bartolus (1313-1357): on territory and jurisdiction.
- One more example: the legal personality. How can a non-human entity be a subject at law? How can it produce a will for agreements, and a feeling for possession?
- The persona ficta: use of the Roman idea of fictions.
- Procedure: Romano-canonical.
- Possession: not only material things, but also obligatory rights.
- Scholasticism needed an environment.
- From the Early medieval schools to the specialised universities of the 12th century.
- Roman law and the lay intellectuals.
- Birth of many Universities.
- Organisation and professionalism.
- Scholastic methos applied also to other texts: a collection of lombard feudal customs studied at Pavia by judges and lawyers.
- Libri Feudorum: a description of lombard customs concerning the fief, written in different stages from 1150 ca. and 1180/90 (again: scholastic method asks for a book).
- Why the jurists turn their attention to the feudal law?
- The story of Pillius moving to Modena.
- Invention of the concept of dominium utile. Feudal property divided in two.
- A very successful legal category.
- Scholastic method needs authoritative books.
- The Decretum = Concordia discordantium canonum by Gratian: around 1140.
- New legislation for the Church: the Decretales issued by the popes (increasing since the mid 12th century).
- Collections of Decretals:
- Ordered by matter
- Issued by private law professors
- Issued by the pope / legislator: Innocent III 1209
- Official collection issued by Gregory IX in 1234. Liber Extra.
- Dialectic and systematic: two conflicting approaches to kowledge.
- Systematic: ordering concepts in families - give a well-ordered map of the law as a “system”.
- Born in the 16th century - Heyday in Germany, 19th century (Pandectism).
- Dialectical reasoning: the authorities used as arguments. Oppositions and incoherences of the books used as opposing authorities.
- Like a gothic cathedral: boosting the two pillars from opposite sides medieval architects could build higher naves.
- Impossible to reach the sky, as it is impossible to reach the Truth: but you can try.
- Scholasticism: in theology and in law.
- A huge intellectual effort to classify the reality following the categories given by authoritative texts.
- Distinctio: to apply two contradicting laws, I need to distiguish two different situations.
- Glosses: noting contradicting and agreeing passages in the margins.
- Regulae: extracting the justice from different laws ruling similar cases.
- Scholasticism did not « revive » Roman law: it created a fully new system.
- Looking for complete version of the books issued by Justinian in the 6th century.
- Just a lucky happening?
- The new intellectuals of the 12th century refused the use of legal texts out of context.
- They needed the whole of the legal compilations to interpret the laws (as in the case of Gerstungen).
- They needed books of law for the use in courts (as in the mosaic of Piacenza).
- Reconstruction of the Code as completely as possible (no greek constitutions).
- Rationality and Law
- Trial by battle vs. legal procedure
- The game of dice vs. the game of chess
- How do the historian describe the changes in a society?
- The dispute of Gerstingen, 1085.
- The principle of unlawful dispossession in the pseudo-Isidorian Decretals used in defense of Henry IV.
- Text and context: the rhapsodic use of the law vs. the legal interpretation.
- 12th century: the birth of ius commune.
- A list of 27 resolutions.
- It was an index for a collection of canon law texts which never was completed?
- This gives the idea of the new importance of legislative collections at the age of Gregory VII.
- It states the right to appeal to the pope.
- Investiture conflict: Gregory attacks the use of Emperors appointing bishops-counts when the county was coincident with a dioceses.
- For the first time, an Emperor was excommunicated in 1076.
- Regular clergy: the monks
- Secular clergy: priests in parish and cathedrals.
- Gregory VII condemns concubinage of the priest (against clergy having families).
- To protect ecclesiastical properties: if you have a concubine you can have a family and you may want to give the property of your church to your children.
- Reform of justice: introducing the right to appeal a superior court.
- Connected with blaming of ordeals: in 1215 the 4th Lateran Council banned them.
- The Church IS the society. For the Middle Ages (and all ages before the 18th century) the sources concerning the Church give information on the whole of the society.
- H. Berman, Law and Revolution (1983). The “Papal Revolution”.
- The Gregorian Reform changed the idea of law.
- A new aggressive attitude.
- Fracture of Christianity: West vs. East. The schism (1054).
- Theological reasons: more interesting than you might think…
- The disagreement was on the role and on the hierarchical order of the clergy
- The Empire is too weak.
- Lack of a system of appeal.
- The local lords plunder villages and monaseries.
- Popes, bishops and abbots controlled by aristocracy.
- Corruption in the Church.
- Renaissance of the cities. Birth of a civic citizenship
- 800 - 1000: a “feudal society”.
- Why it is so difficult to describe the fief in legal terms?
- Charismatic power (LH012) and love.
- The feudal relationships are multiform. But the fief has been defined at law: in the documents until the 11th century and by legal writings since the 12th century onwards
- Three elements: 1) personal relationship: lord, vassal. The act of homage; 2) material grant: beneficium. The act of “investitura”; 3) delegation of public powers (only for the major fiefs).
- 774: Charlemagne takes over the Lombard Kingdom.
- Christmas 800: He is crowned Emperor in Rome.
- The Empire is more Holy than Roman: a Christian society.
- Unification of culture, writings and mesures, BUT:
- Persistent fragmentation of kingdoms.
- After Charlemagne: division of the Empire. Increasing power of the aristocracy.
- Isidorian forgeries: broad diffusion and statement of the principle of unlawful dispossession.
- Fragmentation of the western worlds. Development of vernacular languages.
- Only the Roman Church preserves a central government, but also in the Church there are many tendencies toward regionalism.
- BUT: Rome does not serve as the Church’s supreme court. The appeal to the Pope against the bishop’s decision is not foreseen.
- Spread of Islam: 622-750: watch https://www.youtube.com/watch?v=I14x4-q_Gj4
- Codex: it collects Imperial constitutions (laws) issued by Justinian himself and his predecessors.
- Digest: it collects fragments of the writings of classical jurists. Is is the biggest part of the compilation.
- Institutions: it is an introduction to the law for first year students, written on the example of Gaius’ Institutiones.
- Novellae: it is a collection of the constitutions issued by Justinian after the second publication of the Codex in 534. Almost all in Greek.
- This trasfirmation of the law in the West had already began when Justinian ascended the throne (527).
- He wanted to restore the majesty of the Roman Empire, through the war and the law.
- Both projects failed from a political point of view: - His huge compilation of law was too big to be diffused and used; - He could take Italy over after a tremendous war, but the Bizantines could not hold it for long.
- But his great legal codification was haphazardly preserved and it has played a major role for global legal history.
- Herzog 58: we must reconsider old explanations of history, because every generation proposed a different interpretation of the past.
- Two examples: Legislation (and custom) and Property law.
- Legislation: 19th and 20th century historians on legislation: it was only the mirror of ancient customs. But today we think that legislation was the word oth King: new written laws impose new rules to the people.
- Property law: German legal historians of the 19th c. proposed the myth of Gewere as an original German legal concept. Ernst Levy showed that it was part of the vulgar law since the late Empire.
- A classical book: Ernst Levy, West Roman Vulgar Law. The Law of Property, 1951.
- Classic Roman possession: Possession was the material control of things protected by the praetor – In order to: 1) acquire property through lapse of time (usucapio); 2) protect a factual ownership without the need of proving the property.
- Roman possession is not a right, like property, and therefore it cannot produce an “action”.
- The fact of being a possessor is qualified by law.
- All the early medieval lawbooks contain lists of prices to pay to satisfy a victim of a crime and avoid his vengeance.
- If you hurt someone, you have to pay him a price established by law.
- This displays the power of the King. The King guarantees that every free man pays the same price for the same offense.
- Graduation of crimes and oaths taken by jurors are still part of the criminal law and procedure.
- Also the isea of a God « who sees everything » seems to come back when we use video or audio recordings as criminal proofs.
- For European societies of the Early Middle Ages God is always present among men.
- This idea will change in the 11th Century, with the Gregorian Reformation. This change will lead to the introduction of rational procedures.
- The « magical » presence of God can explain why the judge asked to God himself if the defendant was guilty or not.
- This was made though ordeals: kind of games to display the favor or the disfavor of God for the accused.
- Also the oath taken by a number of persons had an ordalic character.
- What is a « law » for the early medieval kingdoms?
- It displays the « word of the King »: the King guarantees for the observations of some rules while he will give judgement.
- But the King is more similar to a biblical judge than to the Roman Emperor.
- As in the Bible, what matters is more the intrinsic justice of the text than the formal enactment by the legislator: this is why we do not have official « codifications » in Europe any more.
- This made possible also forgeries: if an official law lacks, one can write it because its content is equitable, and put it under the name of a legislator (typically a pope).
- The new kingdoms led by barbarian kings were all established by former allied of the Roman Empire. They issued lawbooks that merged some customs of the roman-barbaric soldiers, norms of vulgar Roman law, and principles of the Christian systems of justice.
- Those lawbooks were issued in the 6th and 7th centuries, but they were copied mostly during the Carolingian age (750-850 d.C.). They reflect legal principles used in Europe until the year 1000 and beyond.
- Some of these principles - merged with canon law rules - continued to be used by the Church, or have been resurrected by the historical school to justify legal innovations that diverged from Roman law.
- The traditional narrative: the « barbarian peoples » enter the Empire led by their Kings (that implies that they conceived themselves as peoples and recognaized a king before entering the Empire).
- Recent researches (ethnogenesis) prove that this is wrong. Roman armies formed by barbarians of different origins settled inside the Western Empire led by their military leaders.
- When the barbarian leader convert to Christianity, he becomes a king, and his army becomes his people.
- The model of the early medieval kingdom is biblical: it is David’s and Solomon’s Israel of the Bible.
- Forms of social life: Marriage as a sacrament It marks a personal status and binds the spouses for life.
- Various forms of monasticism. Monastic rules (not legal: based on the charismatic power of the abbot).
- Churches, monasteries, and other « holy houses » as landowners who lease land.
- Personal rights and powers are concessions granted by hierarchical power: vestiturae. Property, public offices, rights over peasants, etc. form a « clothing » granted by the authority.
- Two theories: 1) The Church was very romanized, so Constantine’s conversion did not change very much; 2) The introduction of christian principles subverted for ever the key concepts of the classical Roman law.
- It is true that the primitive Church took shape in the framework of the Roman mentality. It merged the original principles of Hebrew monotheism with Roman imperial centralization.
- Monotheism tempered by the Trinity and the many saints.
- As for the Empire, the autonomy of the local communities had to respect the hierarchical superiority of the central see.
- The Church of Rome issued mandatory decrees (judgements) and statutes (canones).
- Diocletian and Galerius performed the last and most severe persecution of Christians in the Roman Empire (303 to 311).
- Confiscation of churches and their estates.
- 28 october 312: the battle of Ponte Milvio: Constantine let his army fight under the sign of Christ.
- February 313, Milan: Restitution of churches and their estates.
- Imperial constitutions of 318 and 333: a jurisdictional privilege for the christians.
- 325: first council of Nicaea.
- The Gregorianus and the Ermogenianus were private compilations. The first Emperor who imposed his codification to the Empire (i.e. the world) was the christian Theodose II.
- God as a lawmaker (Herzog 35). The Emperor empowered by God.
- God rules the world through a book. The Emperor does the same.
- And the Church?
- Nicaea 325: one faith for the Empire.
- The divine nature of Christ: the Church and the Empire share the government of the bodies and the souls.
- The Theodosian code is not only «more famous»: it is the first codification composed upon an imperial order and officially promulgated.
- Like the great compilation of Justinian, also the lawbooks of the barbaric kingdoms wanted to preserve something of the Roman legal system, adapting it to the new situation. This remains a characteristical feature of the medieval legal compilations.
- Herzog refers the traditional interpretation, based on the persistance of «Germanic legal traditions» in the early medieval lawbooks. But it is difficult to say what exactly was German law.
- The sources of the Roman law are almost all lost. All we know of the imperial statutes and of the writings of the Roman jurists is preserved only through the codification of Theodose II (439) and the compilation of Justinian (529-534).
- The codification of Theodose has been largely used in the West until the 11th Century. After 1100, however, the compilation of Justinian (Code, Digest, Institutions and Novellae) has been the most important witness of the Roman law system. And it still is.
- The compilation of Justinian presents a system filled with contradictions. - Ius civile vs. Ius honorarium / Ius civile vs. ius gentium / Classic Roman Law vs. Vulgar Law / Secular legal principles vs. rules influenced by Christianity.
- These oppositions have been very fruitful for the development of the law during the Middle ages and the Modern era.
- Goethe’s image of Roman Law as a « diving duck » that sink and always resurfaces (p. 14)
- Key sentence: «translate everyday life into legal formulations» (p. 14). This is the peculiar invention of the Roman legal system.
- What exactly did reappear? Herzog says: a technique of legal abstractions. This is the main character of the complex construction of Roman Law. Example: the legal presumptions as a technique to construct an artificial reality.
- To understand this construction we must look at the trial. It changed deeply over time, but it kept the key feature of being based on a set of abstract concepts suitable for describing reality in legal terms.
- We will refer to Herzog’s book, but:
- We will add some important points.
- We will point at some passages we can disagree with.
- We will stress the moments of change
- We will try to be accurate in historical analysis and in considering the technical legal issues.
Whitman: the World Historical Significance of European Legal History.
- Max Weber and the peculiarity of the western capitalism.
- Legal History can tell the story of the meaning of legal institutions in shaping the societies of Europe and the West.
- This story marks the western way of dealing with the relationship of each of us with the power
- As in every story, in the history of law things happen.
- Historical happenings do not determine directly a change of the legal institutions, because institutions are purely abstract concepts. Things happen to the humans, and the humans create, modify or extinguish the legal institutions.
- This course will be an attempt to tell this story.
Some features of the traditional legal history which do not fit with our contemporary beliefs.
- Nationalism: the identity of the European nations was based on history, and in particular on the history of institutions and laws.
- Evolutionism: the legal institutions themselves were the subjects of the traditional narratives. They were (and ofter still are) considered as if they were biological organisms, evolving through time.
- Progress: the legal system of a nation was described as positively evolving towards the present days.
- Resistance to the idea of revolutionary changes: legal institutions were described as always connected to their origins. Evolution was often meant as the opposite of revolution.
The foundation of the present legal education has been in 19th Century Germany.
- The German Historical School.
- Savigny to Windscheid and to Gierke.
- «The whole science/knowledge of the law is nothing else than legal history» (Savigny).
- Private law is Roman Law.
- Public law, administrative law, business law and more has «German roots».
- Criticisms: things did not go that way.