Pandect Science

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The Pandectist or Pandektistik was a five-part built scientific legal system of the German private law of the 19th century. Building on the preparatory work of other authors, it goes back primarily to the law teacher Georg Arnold Heise , who had integrated it into his lecture work from 1807.

history

Conceptually, Pandect Science is derived from the Roman law Pandects (commonly known as Digest) of Justinian legislation, later known as the Corpus Iuris Civilis . Case law , which was accepted as customary law in Germany, was mainly dealt with in the Pandects .

Roman law was systematically recorded well into the 19th century using the two-part system of institutions , the origins of which went back to the high-class jurist Gaius and which continued from late antiquity to modern times . The method of dividing private law into “personal law” ( personae ) and “property law” ( res ), in which the institutional system was divided into two parts, has now been overcome, because the res- term under property law was felt to be excessive and inappropriate. His conceptual narrowing led to the systematic being divided into five instead of two.

This five-part division was based on the structure of the main terms of ancient civil law, according to which the areas of law were divided as follows: legal subject , family , property , contract and offense . The law of inheritance was placed at the end of the system and property and property law were divided into real law (absolute law, property law) and mandatory law (relative law, contract law) according to legal technical aspects . A general part was placed in front using a clamp technique . The substantive consolidation of applicable law was carried out through the formation of abstract legal clauses and legal terms , whereby these were extracted from the Pandects and presented systematically. Special efforts in Pandect Science were aimed at more intensive legal-theoretical justifications of subjective rights .

The scientifically developed pandect law was considered common law in Germany until January 1, 1900 and was the foundation for the creation of the Civil Code (BGB) , in which the system continues to exist.

Influence of the historical school of law

Pandektenwissenschaft saw itself as historical jurisprudence . It follows on from the Romance branch of the historical school of law , which was founded at the beginning of the 19th century primarily by Friedrich Carl von Savigny , turning away from natural law . Behind this was the view that law is not culturally decoupled and acts as a timeless right of reason , but rather reflects the culture of a people and is therefore historical. In doing so, Savigny, who was to become the avant-garde of interest jurisprudence, emphasized that the system needs space for creative legal action. Savigny, who wanted to penetrate the actual classical Roman law, freed it from a multitude of medieval transformations for this purpose , but often remained methodologically inconsistent, because there are clear indications of over-positive law that he was trying to overcome. He also interfered with practicable common law.

The legal theory of the 19th century

The scholars of the pandect science that developed from it took up Savigny's path and with him the foundation for independent legislation. Following Georg Arnold Heise, important representatives of pandectic studies were Georg Friedrich Puchta , Karl Adolph von Vangerow , Bernhard Windscheid , Heinrich Dernburg , Julius Baron and Oskar von Bülow . Windscheid in particular created a work, the "Textbook of Pandect Law", which enjoyed high and almost equal authority in the German territories. Pandect science is conceived as an attempt to organize the legal material of the Romans without contradictions into a legal system. The judge Gottlieb Planck deserves the credit of being the most important representative of the implementation of scientific approaches in legal practice. Windscheid and Planck belonged to the first commission, which in 1874 brought the law of obligations of the later civil code into the first commission draft according to the definition of the Lex Miquel-Lasker , which was published in 1887/88 with a detailed explanation of its "motives". The codifications that were considered particular law in parts of Germany, such as the Prussian General Land Law (PrALR), were much less scientifically designed; the old German law offered comparatively little material. Neither could easily assert itself against Roman law. Despite the criticism cited by the representatives of the German side - in particular, they turned against the low consideration of social reality within emerging early capitalist currents - the second draft successfully passed the legislative process after various changes.

Independent legislation

The consequence of the predominance of Roman law was a high degree of abstraction and systematics, which left dealing with the law primarily to those with legal knowledge (namely the jurist). At the same time, a finely chiseled legal system with great internal consistency has been created, which represents a high level of cultural value that continues to this day. In this way, the Pandect Law was able to do justice to the concern of liberalism to limit the arbitrariness of the judge vis-à-vis the contending parties as narrowly as possible. The success of the BGB, which is based on the pandemic system, even led to "legal exports". The 1896 completed codification of German private law in the BGB was the model about the Civil Code (CC) of Switzerland and codifications of civil law from other cultures, such as the Turkey , Thailand , Japan or Korea .

Pandect science was important until the beginning of the 20th century, but was then replaced by the orientation of jurisprudence towards the BGB, which came into force on January 1, 1900. With Roman law going back to the pandects, pandectism also disappeared from legal practice. Just a few years after the turn of the century, dealing with Roman law was increasingly becoming a domain of legal history (see also Reception of Roman law ).

literature

Individual evidence

  1. ↑ Described in the initial work of Georg Arnold Heise : Outline of a system of general civil law for the purpose of pandect lectures . Heidelberg 1807; 3rd edition 1819; several reprints, most recently 1997, ISBN 3-8051-0302-6 ; Roderich von Stintzing : History of the German jurisprudence. Edited and continued by Ernst Landsberg , Oldenbourg, Munich 1880–1910 a. Reprinted by Scientia, Aalen 1978, Volume III, 2nd half volume, 1910, p. 88 ff.
  2. ↑ Hans Hermann Seiler : History and the present in civil law. Fundamentals of Property Law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, pp. 229-295 (230).
  3. ↑ Hans Josef Wieling : Property Law , 5th edition, Berlin 2007, I § 1 I 1,2.
  4. ↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Verlag CH Beck, Munich 2006, ISBN 3-406-47543-4 . Pp. 113-246 (159).
  5. ↑ Bernhard Windscheid : Textbook of Pandektenrecht in three volumes. With comments by Theodor Kipp , 9th edition Leipzig 1906, (first edition 1862–1870), § 37 fn. 3 (contains a detailed overview of the discussion).
  6. ↑ Friedrich Carl von Savigny: System of today's Roman law , 8 volumes, 1840 to 1849.
  7. ↑ a b Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 3 no. 9 ff. (Pp. 32-35).

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