Littérature scientifique sur le sujet « German Pandectist School »

The author of this study traces back the origin of the notion of "General Part"(Allgemeiner Teil in German) to the century's old tradition of Roman law (Civil law). He points out that the origin of the term "General Part" cannot be found in the sources of classical and postclassical Roman law. The most renowned representatives of the German Pandectist School i.e., Pandectist Legal Science developed the concept of "General Part"during the preparation of the codification of private (civil) law during the 19th century availing themselves, however, of the Roman law tradition dating back to the previous i.e. medieval legal science.

ABSTRACT: Bernhard Windscheid stood at the summit of the German pandectist school. He produced the very influential Lehrbuch des Pandektenrechts, which condensed the works of the authors belonging to the school, and took part in the commission charged with the redaction of the German Bürgerliches Gesetzbuch. The jurisprudence of concepts that developed the pandectist school created a series of legal concepts such as Rechtsgeschäft, subkektive Rechte, Anspruch, which were incorporated successfully into the German BGB – legal concepts that later spread in Italy, Spain, Portugal, Greece, and even The Netherlands. The Draft Common Frame of Reference (CFR) includes an Annex containing a glossary of legal terms that are used in the black letter rules. Article I-1:108 states that the definitions in the Annex ‘apply for all the purposes of these rules unless the context otherwise requires’ and warns that ‘where a word is defined, other grammatical forms of the word have a corresponding meaning’. The purpose of this paper was twofold. On the one hand, the paper discusses how much of the concepts elaborated by the pandectist school remains in the Draft CFR. The reason is that it is solemnly stated that ‘[a]n attempt has been made to find, wherever possible, descriptive language which can be readily translated without carrying unwanted baggage with it’. Since the conclusion is that most of the concepts elaborated by the German doctrine can be found in the Draft CFR, the second purpose is to analyse the consistency of the use of the concepts in the black letter rules.

Abstract The German Historical School in Spain? Puchta’s concept of customary law and its reception in Spanish Jurisprudence. During the 19th century, German Jurisprudence, through the work of the Historical School of Law and the Pandectist Studies, had a decisive influence on Spanish legal science as well as in other surrounding countries. However, the introduction of the doctrines of the Historical School in Spain has generally been regarded with skepticism by legal historians: the common conclusion is that in Spain there is no reception of the Rechtsschule. After a critical review of this traditional understanding of the reception of the School, I offer an analysis of the mid-century introduction of the concept of customary law developed within the Historical School, based on the doctrine of the Überzeugungstheorie (Puchta). The German doctrine of customary law was well received by the jurists who, from the first codification projects, privileged legal custom as the primary source of law. I maintain that one can speak on the one hand of the ‘projection’ in Spain of a philosophy – the vague legal historicism condensed in the notion of the Volksgeist –, and on the other hand of a clearer ‘reception’ of the doctrinal concept of legal custom elaborated within the Historical School.

Prof. Jozefat Zielonacki (1818-1884) against the Background of the XIXth Century Study of PandectsSummaryThe study of pandects is the study of the intercepted Rom an law formed and developed in the XIXth century Germany. The pandectist made use of the Justynian codification and their research m ethod was shaped under the influence of so called historical school in jurisprudence created by F.K. Savigny. Conducting a research on unparalleled scale on the Rom an law and with a time rejecting the historical perspective therein led to a creation o f an abstract scientific system - the „contemporary Rom an law”, viz. the study of pandects. In the second half of the XIXth century it dom inated the European study of law.The Polish representative of this branch was Jozefat Zielonacki, a graduate o f the Berlin University, a pupil of F.K. Savigny. H e lectured the Roman law at universities in Cracow (from which it was repealed after two years as a result of anti-Plish victimisation), Innsbruck, Prague, and Lwow. He stayed in Lwow from 1857 to 1870, contributing to ‘Polonisation’ of the university and establishing a well-founded centre of the Roman law study, well-admitted in Europe of that time. As far as the research method is concerned, Prof. Zielonacki constantly remained a pandectist - he created ahistorical works and the Roman law is treated therein as the prototype o f the contemporary binding law.The study of pandects is nowadays treated as one of numerous great periods of the history of the study of law and its achievements: the ordination, m ethod of thinking and terms retain their usefulness also for the contemporary study of civil law.

The author of this article analyzes the process of codificaton of private law (civil law and commercial law) in the light of the thought of Andrés Bello (1781–1865), the humanist thinker and expert of codification in Chile. The intellectual background of Andrés Bello, born in Venezuela, comprised history, philosophy, linguistics, literature, mainly poetry, education as well as law. It also deserves to be mentioned that Bello was the first rector of the State University of Chile founded in 1842. According to the idea of Andrés Bello Roman law (ius Romanum or ius civile) constituted the background of legal education as well as the primary source of the codification of private law in Chile. The author of the study points out that Bello had no legal education. In the field of philosophy he was substantially influenced by the scholastic tradition. In his works he put special emphasis on morality in compliance with the plurisecular tradition deeply rooted in natural law (derecho natural). This article provides also an insight into the partial influence of the German Historical School of Law (Historische Rechtsschule) on the law related ideas of Andrés Bello. The author emphasizes the decisive influence of Johann Gottlieb Heineccius on Andrés Bello. Andrés Bello was regarded as a major authority regarding his principles of international public law both in Europe and in most countries of Latin America. He spent 19 years in the United Kingdom, in London. His work Principios de Derecho de Gentes, published in 1832 was with no doubt fundamental in particular as far as sovereignty of State was concerned. Andrés Bello was a committed advocate of the Solidaridad americana pointing out the specific features i.e. characteristics of the Spanish speaking states in America. In the field of the codification of private law (civil law and commercial law) in Chile the role of Andrés Bello was determinant. The first step towards codification was the consolidation of the law of the country. The process of consolidation ended in 1833 when the first constitution of Chile was promulgated and came into effect. During the second period, encompassing the period between 1834 and 1838, Andrés Bello took into consideration the French Civil Code, the Austrian General Civil Code and the Civil Code of canton Bern (Switzerland) prepared by Samuel Ludwig Schnell. During the third period (from 1838 through 1849) Andrés Bello contemplated the structure and the contents of the draft Civil Code of Chile. It has to be notes that on the territory of Chile several compilations, namely the Breviarium Alaricianum, the Fuero Juzgo, the Fuero Real, the Siete Partidas, as well as the Ordenamiento de Alcalá were implemented. Moreover, the Nueva Recopilación, promulgated in 1567, the Recopilación de las Leyes de las Indias, promulgated in 1680 as well as the Novísima Recopilación, promulgated in 1805 were in effect. The author of the article emphasizes that the Civil Code of Chile prepared by Andrés Bello influenced the codification of civil law in most countries of Latin America. Therefore, as the author puts it, Andrés Bello can be regarded as a ‘father of codification of civil law’ in Latin America. The Civil Code of Chile was completed in 1855 and promulgated by the National Congress in the following year. The Civil Code of Andrés Bello came into effect in 1857. The Code is still in effect, with minor amendments i.e. modifications. The Civil Code of Chile follows partly the French Civil Code. However, the Código de la República de Chile, albeit does not contain a General Part (parte general), differs from the French model regarding its structure. Compiling the Code, Andrés Bello took into consideration the Spanish legal dogmatics based mainly on Roman law traditions (acervo jurídico romano). He also availed himself of the doctrine developed by the representatives of the German Pandectist Legal Science with particular regard to the thoughts of Friedrich Carl von Savigny (1779–1861). Several legal institutions regulated in the text of the Civil Code of Chile testifies the influence of the works of Jean Domat (1625–1696), Robert-Joseph Pothier (1699–1772), Merlin, Favard de Langlande, Jean-Etienne-Marie Portalis ((1745–1807), Raymond Théodore Troplong, Pardessus and Carl Salomo Zachariae von Lingenthal (1769–1843). Andrés Bello took into consideration first of all the French Civil Code, the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the Louisiana Civil Code, the Prussian General Land Code (Allgememeines Landrecht) as well as the Dutch Civil Code (Burgerlijk Wetboek), promulgated in 1838. In the last part of his study the author emphasizes that the Civil Code of Chile does not contain a General Part (Parte General). The structure of the Civil Code of Chile is as follows: the Preliminary Title (Titulo preliminar), containing general dispositions, the Law of Persons, the Rights In Rem, The Law of Succession (Law of Inheritance) and the Law of Contractual Obligations.

From the perspective of comparative property law, the article examines the precedents and official legal views on "virtual currencies" in countries representing both Common Law tradition (England, the United States) and Civil Law tradition (Pandectists/Germantic school including German, Japan, the Netherlands and Romanistic school including France) to identify the legal nature of “virtual currencies”. It concludes that although it is still controversial to classify “virtual currencies” into the available classes of property, most of these countries recognise “virtual currencies” as property and proceed to regulate them effectively. However, “virtual currency” should be considered a “non-traditional” property - a crypto asset created by a combination of blockchain technology and cryptographic techniques aimed at ensuring authenticity in confirming certain rights and interests of a legal subject. In the future, traditional concepts and principles of property law also need to be modernised to meet the requirements of diversifying new forms of non-traditional property in the era of the Fourth Industrial Revolution.

La tesi di dottorato analizza la recezione del modello pandettistico tedesco da parte della cultura giuridica italiana a cavallo tra Otto e Novecento. Particolare attenzione è riservata alle traduzioni italiane delle opere pandettistiche, sviluppatesi soprattutto grazie alla strategia “attualizzante” applicata da Filippo Serafini agli studi romanistici. La tesi include pertanto un repertorio dettagliato delle traduzioni e della manualistica italiana di diritto romano, che si svilupparono come filoni paralleli. Pure le traduzioni acquisirono progressivamente il valore di opere originali, soprattutto grazie all’inserimento di contributi personali dei traduttori italiani in forma di note, come si può notare in particolare nella versione italiana del Lehrbuch des Pandektenrechts di Bernhard Windscheid, realizzata da Paolo Emilio Bensa e Carlo Fadda. L’esame delle loro note in tema di interpretazione del diritto italiano, diritti della personalità e condizione giuridica della donna dimostra l’importanza della comparazione giuridica per lo sviluppo della scienza giuridica italiana.
This doctoral thesis analyses the influence of German Pandectist model on Italian legal culture between the 19th and 20th centuries. Particular attention is paid to Italian translations of Pandectist literature, whose development was especially due to the “revitalizing” strategy applied to Romanistic studies by Filippo Serafini. Therefore, the thesis includes also a detailed catalogue of Italian translations and original handbooks of Roman law, which developed as parallel literatures. The translations were turned into original works too, thanks to the personal contributions introduced by Italian translators through their notes. This can be seen especially in the Italian version of the Lehrbuch des Pandektenrechts by Bernhard Windscheid, written by Paolo Emilio Bensa and Carlo Fadda. The analysis of their notes on the matters of interpretation of Italian law, individual rights and juridical condition and rights of women shows the importance of legal comparison to the development of Italian legal studies.