GERMANY

Germany experienced a comparatively late reception of Roman law, from the fifteenth century onwards, and initially through the influence of canon law. However, when reception did occur, it was a relatively quick process.

As elsewhere, legal fragmentation encouraged reference to experts trained in Roman law. From the point of view of two localities with differing laws, Roman law was neutral law, to which recourse could be had in disputes, and the local authorities would often adopt Roman law in any case. It was common for disputes on complex points to be resolved by seeking opinions from university law faculties. As the law faculties were staffed by Romanists, the answer would be in terms of Roman law. We see therefore Roman law being, as it were, adopted from the bottom up.

But in the Germany of the Holy Roman Empire, which saw itself as the successor to the Roman Empire, Roman law had also a political signifi­cance. Its adoption was therefore also promoted from the top down by the establishment in 1495 of the Reichskammergericht as a supreme court of the Holy Roman Empire, in an attempt to establish a common legal order based on Roman law.

The result of these developments was the emergence of a distinctive German approach to the Roman texts, the Usus Modernus Pandectarum (“Modern Usage of the Digest”, “Pandects” being an alternative term for the Digest) in the seventeenth and early eighteenth centuries. Unlike the Humanists, the lawyers of this school used the Roman texts to provide practical solutions to practical legal problems, taking account also of Germanic customary law.

This development eventually culminated in codification of German law, but later than was the case in France. The codification movement was delayed till the later nineteenth century, although there were earlier attempts in particular areas of Germany. Part of the reason for the delay was that Germany was not unified until 1871, and so it would hardly have been practicable to impose a common code of law on it. Another reason for delay, though, was the dispute over the correct approach to take, between the “Historical School”, emphasising the importance of native tradition, and the Romanists, emphasising Roman law. Work on the final code, the Bürgerliches Gesetzbuch (BGB), was begun after German unification. Enacted in 1900, it combined Roman law and Germanic practice.