Making of a German Constitution : a Slow Revolution

72 • The Making of a German Constitutionof civilization and peace. 91 Although Enlightenment legal scholars later developed aconception of natural law from Roman law, this did not make it more acceptable. 92Savigny rejected both justifications: ‘The advocates of the Roman law have not,infrequently, placed its principle value in its containing the eternal rules of Justice inpeculiar purity, and thus being entitled to be itself considered a law of nature sanctionedas a positive law.’ 93 ‘On looking closer’, however, Savigny argued, ‘the largerpart will appear to be little better than narrowness and subtlety ... almost entirelyconfined to its theory of contracts’, and this ‘remainder of the Roma, so cited for itsreal excellence, is of so general a nature, that it might have been discovered by plaingood sense, without any juridical cultivation’. 94 ‘For so slight a gain’, he stated, ‘it isnot worth while to invoke the laws and lawyers of two thousand years to help us.’ 95With regard to the corpus iuris civilis, Savigny articulated the complaint againstRoman law that would find expression in liberal legal thought until the enactment ofthe BGB. ‘If, in the first place’, he wrote, ‘we consider the juridical works of Justinian,consequently, that form in which Roman law has come down to modern Europe,we cannot but remark a season of decline in them.’ 96The study of Roman law was freed from the ius commune by Hugo and Savigny’sown teacher, Philipp Friedrich Weiss (1755–1808), at the University of Marburgamongst others. In the opening article for the Civilistisches Magazin Hugo foundedin 1791, he wrote that the magazine was dedicated to the ‘reformation of legal studies’.97 After Hugo and the development of classical common law theory, Roman lawwas increasingly seen as an historical artifact that belonged only to the particular societyand customs from which it was derived. This new conceptualization of Romanlaw already threatened the legal pillar upon which the monarchic principle and personalrule had stood since the Reception. The study of Roman law remained strong inGerman law faculties, but increasingly as a subject of history. German legal scholarswere interested in recovering the technical (scientific) expertise of Roman jurists, inhopes that it would offer a model for the modern rationalization and scientization ofGerman law. As Hugo emphasized, the Civilistisches Magazin was dedicated to thescientific rediscovery of ancient Roman law and not the ius commune. 98The politics of the new approach to Roman law was evident in the fact thatthere was a keen interest to recover the law and legal order of the Roman Republicrather than the Roman Empire. A frequent contributor to Hugo’s magazine, JohannSchlosser emphasized the need for the study of pure Roman law as a source of renewal.99 Feuerbach wrote in his 1809 letter to Savigny: ‘Aside from the academicand literary concerns, we badly need a work of pure Roman law that we can introduceourselves.’ 100 Although it was humanist-like, the new approach to Roman lawwas distinguished from humanism by the appeal to science. It was an appeal thatwas also deeply political insofar as it housed a claim to a sphere of academic libertyand autonomy free from the manipulation of the monarchical state. On the eve of thefounding of the University of Berlin, Friedrich Schleiermacher’s ‘Gelegentliche Gedankenüber Universitäten in deutschem Sinn’ (1808) drew clear distinctions between an