The Law Under the Swastika (12 page)

The Distinction between Public and Private Law

IV.
We have another example of this mechanism of political challenge and scholarly response: how legal historians assessed the famous continental separation of the legal order into public and private law. Studies over the last few decades have demonstrated that the categorical (a priori) dualism of the law as an idea was foreign to German jurisprudence up to the end of the eighteenth century.
⁵⁷
Only after 1800 did idealistic philosophy and political and economic liberalism work hand in hand to effect a fundamental separation of state and society, of public and private law, and to enshrine them as categories of supposedly eternal value. The notion of a dichotomy—if not philosophically “necessary,” yet irrevocable in practical terms—saturated the legal order throughout the nineteenth century. Ulpian’s formula of the
duae positiones
(
Digest
1.1.1.2) supplied the venerable principle of categorization. Even when liberalism had passed its zenith in 1878 and found itself on the defensive with regard to the interventionist state,
⁵⁸
this dichotomy was retained as an intellectual construct. The new labor and social law, the war administration law, the social tenancy laws, and the business law of the 1920s barely encroached upon this dogma. Even textbooks from the end of the Weimar period gave no indication of serious doubts about this legal dualism.

Only National Socialism made an official and emphatic break with
nineteenth-century currents of tradition, proclaiming a new unity of the legal order and declaring that the separation of state and society was as outmoded as the basic rights of the citizen. Residues of privacy were to be dissolved, society was to be integrated into the state and the state into the “movement.” Legal literature after 1933 was in agreement that the old antagonism between public and private law had now been “overcome.”
⁵⁹
No other maxim was as widely accepted as this one.

Legal historians who addressed this question after 1933 started from various points of departure. Scholars who spoke as Germanists had it fairly easy. For instance, in 1935 Herbert Meyer hailed the end of the separation of public and private law as the restoration of a legal unity that had always existed in Germanic-German law, blaming the reception of Roman law and nineteenth-century liberalism for the fact that this pernicious separation had established itself in the first place.
⁶⁰
The Romanist who tried to declare that this separation was scientifically untenable, indeed philosophically “nonexistent,” and who tried to protect his own discipline by seeking to prove that Roman law was not to blame for the historically undeniable fact of this separation, faced certain difficulties. He had to classify Ulpian’s statement as a product of late Roman decay in order to dismiss it. This was Gerhard Dulckeit’s approach.
⁶¹
Dulckeit sought to prove that classical Roman law had still been dominated by the idea of unity, whereas Ulpian’s dichotomy, interpreted as an indication of the weakness of the state, originated “only in the period of political and cultural decadence in late antiquity.”
⁶²
This move saved the period when Rome was a powerful state and the notion of the “unity of the legal order” (K. Engisch), and it was now easy to relate them to the present and to the “transcendence of the liberal ideology of separation.”

Here, too, we see what seems at first glance to be a confusing picture—namely, that the practical and ideological destruction of liberalism by an authoritarian way of thinking that had become virulent after the turn of the century and culminated in National Socialism was able to give legal history the impulse it needed to see an old problem in a new light. The Nazi state accelerated an existing current—the rejection of the ideas of 1789—and drove it to the point of crisis, in the process bringing into view the historicization of the nineteenth century that had long since begun. In doing so the Nazi state also allowed scholars to distance themselves from the traditional notion that the separation into public and private law was an indispensable and “essential” characteristic of any highly evolved legal order. It was now easier for legal historians to perceive and express something they had, in
essence, long since known or could have known by looking at the legal culture of the Anglo-Saxon world: This dichotomy of the law was nothing more than the unstable product of specific historical circumstances. Moreover, it became clear, in terms of the politics of scholarship, why the nineteenth century had had such an interest in portraying this dichotomy as timeless, superimposing it on Roman law as though the kind of separation of state and society that prevailed in nineteenth-century central Europe had existed in the Roman Empire. In this regard the National Socialist period produced “progress” as earlier defined: a persuasive historiographical insight that outlasted the fall of the National Socialist state.

The Reception of Roman Low

V.
The reception of Roman law is the third and last example for the thesis that legal history, under the conditions of the Nazi state, was particularly disposed toward insights that had to arise from the growing distance from the nineteenth century.

It is not necessary to describe the long history of the discussion on Roman law from the seventeenth to the twentieth century. Peter Bender, in his Ph.D. dissertation at the University of Freiburg, presented an abundance of material and devoted a separate chapter to statements from the Nazi era.
⁶³
Everything that authors such as Hans Frank, Helmut Nicolai, Wilhelm Stuckart, Roland Freisler, Rudolf Walter Darré, Johann von Leers, or Alfred Rosenberg wrote about the reception of Roman law was drawn from the Germanistic literature since Georg Beseler, which had by then been infused with a national-Romantic and anti-Semitic language. A brief monograph from 1913 reveals that even an emphatic approval of the Civil Code could be combined with this kind of language: “The legal force of Italian law
[welsche Recht]
, which had always remained foreign to the spirit of the German people and for centuries had forced Germanic consciousness under the Caudine yoke of black-haired Roman tyranny, was destroyed by the Civil Code.”
⁶⁴

The “Rembrandt-German” Julius Langbehn, Oswald Spengler,
⁶⁵
Houston Steward Chamberlain,
⁶⁶
and, finally, Moeller van den Bruck
⁶⁷
were the authorities on the issue. Their voices were little challenged, since the university publications in the 1930s sounded the same basic tune that the reception of Roman law was a “national misfortune.” What professors such as Herbert Meyer, Walther Merk, Gustav Klemens Schmelzeisen, or Walther Schönfeld said differed little in substance, and sometimes they said it less elegantly: The received Roman
law was alien from the people, selfish, individualistic, liberal, commercial, rational, a dead letter—and certainly “un-German.”

Romanists responded with the standard arguments we have already encountered. First of all they pointed out how different the various periods of Roman law had been. That explains why Wieacker said in 1941 that it was a great merit of “legal-political writing,” in particular, that an understanding of the various periods of Roman law had entered into general consciousness.
⁶⁸

The second argument, and certainly a valid point, was that it was by no means Roman law itself that had been received, but medieval “Roman-Italian” law (G. Dahm). What was taught in Bologna had been, so to speak, an
arteigen
(true to type) product of the empire grown from two related roots.

The third argument maintained that the much quoted defensive reactions against the learned doctors in the sixteenth century had not been protests against Roman law, but rather protests against individuals and the social conditions they legitimated.

The fourth argument was the most important one. It maintained that the reception process involved not so much the content of Roman law as a new way of thinking. The most important characteristics of the reception and the period following it had been the establishment of the legal system on a written basis, university training, specialized terminology, and methodology—in short, the process of turning the law into a science
(Verwissenschaftlichung)
.

We must leave open the details of how this new interpretation of the reception process arose, and who—beginning in the late nineteenth century—prepared the ground for it. Max Weber’s interpretation of Western rationalizing processes undoubtedly played a role, as did the scholarship of Georg Simmel, Werner Sombart, and Karl Mannheim. Within the discipline of legal history, the university course on the history of private law in the modern period had a stimulating effect, in part by providing an impulse for the editing of sources and by giving rise to studies like those by Woldemar Engelmann, Helmut Coing, Friedrich Schaffstein, and Karl Michaelis.
⁶⁹

The question of who was the first to use the term
Verwissenschaftlichung
cannot be resolved here. In all likelihood a discussion was carried on within the inner circles of the former Kiel School, for besides Michaelis and Schaffstein, it was above all Georg Dahm and Franz Wieacker who developed the basic idea. Dahm wrote in 1942 that the essence of the reception was methodological; the thesis that “the reception of the foreign law had destroyed or permanently damaged the
order of the German nation represents an unacceptable simplification,” for one must not “blame the reception of Roman law for the destruction and disruption national life suffered in the nineteenth and twentieth centuries.” Moreover, the polemics against Roman law were a “petty bourgeois narrowing of the field of vision . . . which regards any reception of foreign cultural traditions as a disaster.”
⁷⁰

At around the same time the word
Verwissenschaftlichung
appeared in the writings of Wieacker. Beginning in about 1942, we can trace in his articles how he developed the basic idea, until he was able to present it to a larger audience in the first edition of his
Privatrechtsgeschichte der Neuzeit
(History of private law in the modern era [1952]).
⁷¹
In 1944 he argued that one could characterize the reception “as a
Verwissenschaftlichung
and rationalization of German law.”
⁷²
The essence of reception was not the “adoption of a law foreign in content”: “We must look for the good and evil of this reception neither in the ‘foreignization’ of the substance nor in the growing pains of an impetuous
Verwissenschaftlichung
, but rather in this
Verwissenschaftlichung
itself’.”
⁷³

Verwissenschaftlichung
, the process of turning jurisprudence into a science, Wieacker maintained, also contained the key to the connection between reception and the development of the modern state.

The thesis that the reception of Roman law was not a “foreignization” of German law but part of the modern processes of rationalization became a widely accepted topos in postwar legal history. This was so not only because of its inherent scholarly persuasive power, but also because of the collapse of the nationalistic world view in Germany and the embrace—encouraged by all political camps—of Europe and its intellectual traditions. The title of Koschaker’s 1947 book,
Europa und das römische Recht
(Europe and Roman law), expressed that mood exactly.
⁷⁴

I have recalled the formative period of the thesis that the reception of Roman law constituted a process that turned jurisprudence into a science because this example, too, demonstrates how scholarly “progress” can take place under political pressure. The emphasis on the methodological side of reception was surely an insight derived from scholarship itself. Moreover, in terms of the history of the discipline, it was also time to recognize that the interpretation of the reception process as “foreignization” was a national-Romantic myth created in the nineteenth century to make a distinction between content and method, accentuate the European aspect of reception and its connection to the modern rationalizing process, and highlight the social and administrative side of the process that made the modern state a state of laws. At the same time, this view clearly offered a defensive strategy—welcome
at the time—of highlighting value-neutral methodology instead of the incriminated content of the law.

What Dahm and Wieacker wrote in 1942 and 1944 could no longer be reconciled with the party’s propaganda concerning point 19 of the party program. In 1942 Wieacker also complained emphatically that the common opinion about the reception of Roman law was still not taking into consideration “the revolutionary changes in the most recent insights, methods, and opinions in legal history.”
⁷⁵
To be sure, the party’s propaganda against Roman law had fallen silent during the war, the discipline had recovered its self-confidence, and its language was becoming freer again. Now, moreover, during a time of great danger, the European connections came into view again with greater clarity.
⁷⁶

The Study of Germanic Law

VI.
It is probably no coincidence that these examples of advances in legal history come from the fields of Roman law and the private law of the modern period. Here the conflict was focused, here the “crisis” had been smoldering since the turn of the century, here the changes in the curriculum plan of 1935 and the broad antiliberal current of the time—which was necessarily also a current hostile to Roman law—had the most marked effect. These factors provided a stimulus for subjecting to critical analysis the notion of “liberal” Roman law, the “transcended” separation of public and private law, and the notion that the reception of Roman law had been a “national disaster,” and refuting them with sound scholarship. I think scholars today would agree that the results of these efforts can be called “progress” and have retained their importance over and above the tactical concerns that were also on the minds of legal historians at the time.