The Bourgeois Age

Jurisprudence
The Exegetic School
• New way of understanding jurisprudence → Exegetic School
↳Focused their legislation as the sole source of new law
↳Legal positivism → separation of powers → giving predominance to legislature

• Legislative branch → only power responsible for and authorized to enact laws
• Executive branch → must govern & administer according to law
• Judiciary → apply laws correctly
↳didn’t play a role on the creation of law
↳Function didn’t extend to the interpretation of law → judge was only a “mouth”

• For the jurists of the new school → legislation was the law
↳Case law & customary law → lacked validity
↳Comparative law & history → lacked significance

• ≠ Scientific School → viewed law as a dynamic reality which must take into account sociological and
economical aspects
↳Jurists must be free to present their conceptions of law in a systematic way without being
constricted by articles in the civil code

Historical School
• Enlightened thinkers → it is possible to construct an atemporal legal model based solely on
principles → Code Civil was the embodiment of timeless model

• Historical school → Saw law as an expression of the spirit of people (Volkgeist)

↳Jurisprudence had everything to do with history
‣ Upon basis of historical matters it was upon jurists to build an entire legal system
↳System would be constructed not upon rational premises but upon historical matter

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• Law developed in natural way → couldn’t be imposed top-down
↳Law develops from (Volkgeist)
↳Customary & source law are legitimate expressions & sources of law → law is a popular
creation not a political one

• Historical school was divided in two subgroups → Germanists & Romanists

↳Romanists → German legal system should be built in the basis of roman law
‣ Roman law was essentially an academic discipline
‣ Bolstered by the passion of all things classical
↳Germanists → supporters of the study of the German people’s particular laws and their transformation
into a coherent whole
‣ Rejection of roman law & its legacy → it was a natural disaster that deprived people from most
authentic expression of their identity → their own body of law

Pandectism
• Savigny → deduced from empirical/data material → general principles & institutions
↳He systematized both Germanic and Roman law
↳Made a system based on Roman law & applicable for German systems

• Germany → Dogmatic formalism → principles and concepts deduced from the system itself and
political, economic, sociological, religious, moral, and scientific considerations were dispensed with→
precisely because they fell outside the system
↳Legal positivism was based on the system itself
↳To find solution to a problem → a hypothesis was needed within a systematic set of
concepts/principles
↳Extreme legal formalism
‣ Roots on Kant → function of law was to protect subjective rights → protect this areas where the
individual acts and develops
■ Law’s objective is achieved through the creation & protection of the domain in which
individual can live & realize its potential
■ Law exists independent from moral conditions
■ Law has an autonomous behavior from morality

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Pandectist Codification
The Bürgerliches Gesetzbuch (BGB)
• Historical school opposed codification → but it was creating the ideal conditions for it to happen

• Masters of scientific methodology → pandects were perfect candidates to revise & draft codes
↳Considered the best proof of a jurist’s central position in the creation of law → just like in
Roman times

• Decision of drafting a civil code for unified Germany was based on the unifying force of a unique
code which would establish the three pillars of liberal society → equality before the law,
private property, and freedom of contract.
↳Brough a wave of protests → b/c according to pandects postulates there hadn’t been any
negotiation/consultation w/ representatives from other spheres of society
↳It was written in a technical language → only jurists understood
↳Too conceptual, dogmatic & not practical
↳Accused of individualism

• New commission was introduced to draft code → consulting w/ important interest groups (muted
protests)
↳Made some minimal changes to original document
↳Bürgerliches Gesetzbuch (BGB) was completed in 1896

Characteristics & Intellectual context

• BGB is made of five books
↳Was a product of its time & the context in which it arose
↳Represesented consistent system based on Roman law (except for fifth book)
↳Very sophisticated → in style

• Formulated principles from existing prescripts → From general abstract to concrete

↳Cross-references were needed to understand the text → made it tiring to read

• Characterized by the introduction of general clauses → guiding principles aimed for judges
based in morality
↳Follows the example of roman praetor → judge may rule according to bona fides
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 ↳Breadth of judge’s scope → opened the door to ideologies, social pressure & opinions

• The BGB was essential for a society on the verge of radical transformation under the pressure of
different collectivist and totalitarian ideologies
↳Arose when golden age of bourgeois came to an end

The second pandectist code: Switzerland

• Romantic ideas, enlightenment & political liberalism gave rise to a national civil code
↳Lots of fragmentation → e.g. Zurichs promulgated their own civil code
↳Included general clauses of BGB but didn’t have general part
↳Language was clear & consistent → so it could be understood by the general public