a model for what was perceived as modern law. Epistemologically this way of reasoning supposed that the Roman and the modern society were comparatively similar and that Roman law had the capacity to be abstracted in such a way that it encapsulated legal modernity.This legalcultural essentialism abounded in the texts of legal scientists.As late as around1900the leading English lawyer Frederick Pollock (1845-1937) observed that the Roman law “was more modern … than ours”, i.e. Common law.6 This almost inconceivable Romanist apotheosis of Roman law was established in German legal science by the names of Friedrich Carl von Savigny (1779-1861) and Rudolph von Ihering (1818-1892), authors who became hegemonic in their influence on how to interpret the expanding Roman law based private law in a number of European legal cultures.7 The 19th century role of the Praetor must be viewed in the new combination of this cultural setting and political constitutionalism.To understand one part of the intricate correlation between law and politics which has a special relevance here, is to emphasize the asymmetrical relationship between the modern19th century understanding of legal interpretation and the constitutional division of power. Positive law was understood as evolutionary and dynamic, thus making it much more difficult to uphold the Enlightenment model of an all comprehensive legislator fixating law to a permanent written code.The fusion of law and a non-ending social change was already an irritant in the constitutional system of division of power which so strictly distinguished between making law – that was legislation, and applying the law – that was the business of the court.This difference was as important in absolutist regimes as in constitutional regimes, except for the sovereignty of the monarch being substituted with the sovereignty of the people. In both cases the court was bound to the law – understood in a rather static social-political sense. Legal interpretation in a dynamic society addressed the difference between what legal tradition called the difference between - in Savigdag m i chal s e n 181 heimischen teutsche Gesetzgebung (1816) in: Kleine Schriften (1833) s. 133-151 (in particular on p. 144). 6 Frederick Pollock, “The Vocation of the Common Law” in: Law Quarterly Review 1895 pp. 323-336 (p. 331) 7 See the famous statement on the exemplary formal character of Roman law by Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg 1814), Ch. 4 which was paraphrased by others in countless later texts.
RkJQdWJsaXNoZXIy MjYyNDk=