journal reviews

Reviewed by: Frank L. Schäfer

Gerhard Dilcher, Die Germanisten und die Historische Rechtsschule: Bürgerliche Wissenschaft zwischen Romantik, Realismus und Rationalisierung

1Studien zur europäischen Rechtsgeschichte, vol. 301, Vittorio Klostermann, Frankfurt am Main 2017, XVI, 528 pp., ISBN 978-3-465-04287-7, 89.00 €

2When a person admires other people, he or she gradually takes over their characteristics. Undoubtedly and without any ironic undertone, Gerhard Dilcher, the great old master of the metaphysical Geistesgeschichte,1 slips into the role of his three role models. This triumvirate is composed of no less eminent scholars than Otto von Gierke, Max Weber and Franz Wieacker. Dilcherʼs latest anthology is the final result of this intellectual fusion: The Germanists and the Historical School of Law. The focus of the volume is clearly on the first term. The Germanists were a group of academics and practitioners who were peculiarly attached to local German legal sources. Their subject Germanistik bears the name German studies in literal translation, a term which is today more common for studies on German language and literature. In the 18th and 19th centuries, the Germanist scholars also researched the applicable law, and since the enactment of the German Civil Code in 1900, they have largely restricted themselves to the history of law. For this reason, German Legal History and German (legal) studies today are to be understood as synonyms as far as possible.

3In comparison, the also mentioned Historical School of Law is somewhat less important. The integration of this school into the title of the book probably goes back to the fact that Dilcher joined his great role model Gierke in extending the Historical School of Law far beyond the middle of the 19th century. It is obvious that Dilcher considers himself as the heir of this famous school. However, the overwhelming majority of the more recent research limits the Historical School of Law to a much shorter period from 1800 (or even 1815) to the revolution of 1848. As an example, I will mention here Hans-Peter Haferkampʼs monograph Die Historische Rechtsschule (2018). It would be interesting to read Dilcherʼs view of Haferkampʼs thesis that the Historical School of Law was not a general movement of legal scholarship (i.e. both Roman and German legal studies), but only the mainstream of pandectology.

4The subtitle Bürgerliche Wissenschaft zwischen Romantik, Realismus und Rationalisierung also deserves a closer look: civil society, science, romanticism, realism and rationalization. Dilcher thus clearly identifies himself as a follower of the Geistesgeschichte and as a representative of enlightened liberalism. He himself speaks of a “question of culture and history of science” (page 8) below the level of philosophy of law. Therefore, for Dilcher civil society in no way means a focus on civil law, i.e. on the applicable civil code. Rather, he wants to point to the bourgeoisie as the liberal carrier of change in the 19th century. However, it is somewhat anachronistic to see that Dilcher also applies this template to his studies of medieval Italian cities in other publications.

5The book presents a total of 18 essays, two of which are first-time contributions. The contributions cover four thematic areas: firstly, the history of German legal studies in Vormärz (pre-March); secondly, social and political change in the 19th century and its connection to German legal studies; thirdly, Gierkeʼs concept of a cooperative; and fourthly, the history of German legal studies in the 20th century. Unfortunately, the overview essay Die juristische Germanistik des 19. Jahrhunderts und die Fachtradition der deutschen Rechtsgeschichte (19th century German legal studies and the specialist tradition of German legal history) published together with Bernd-Rüdiger Kern in 1984 is missing.2 The first-time contributions deal with the following topics: first, Dilcherʼs sum of his concept of German legal studies (Bürgerliche Wissenschaft zwischen Romantik, Realismus und Rationalisierung), second, a lecture on Gierke at the symposium for Joachim Rückert (Zum Ort der Freiheit in Gierkes Rechtstheorie). The first original contribution is available in English in a slightly modified form in the journal Rechtsgeschichte. Thanks to Dilcherʼs broad understanding of the Historical School of Law, the period outlined in the volume extends far beyond the period from 1815 to 1848. It begins in the late 18th century and extends into the second half of the 20th century, almost to the present.

6Next, let us look in detail at the two first-time contributions of the book. The introductory essay Bürgerliche Wissenschaft zwischen Romantik, Realismus und Rationalisierung (pages 1-88) bears the same title as the subtitle of the book. Dilcher wrote it as a kind of “self-assurance” of his past views. We can therefore only expect little new, rather the continuation, deepening and nuancing of well-known theses. Dilcher resolutely defends his subject against attempts to place German legal studies in the political right corner because of its involvement in the National Socialist dictatorship. In fact, our cosmos is much broader than the spectre of nationalism, even though many Germanists in the Third Reich were indeed compromised by their adherence to antisemitism and racism. Dilcher wants to tell us something completely different, namely a success story of the liberal middle class.

7Dilcher unfortunately falls back into the old pattern of focusing the early Historical School of Law entirely on Savigny: “The intellectual foundation act of the Historical School of Law goes back to Savigny, and only to Savigny” (page 10). From page 32 onwards the essay then turns to the time after the Paulskirche, which – according to todayʼs quite predominant opinion among legal historians – no longer counts at all to the Historical School of Law. Dilcherʼs essay thus includes not only Heinrich Brunner (the most respected legal historian around 1900), but also Otto von Gierke and even Paul Laband (formerly a legal historian, but mainly active in the field of positivistic constitutional law) and Max Weber (sociology of law and national economics). For many readers, this must seem at least unusual at first glance.

8Dilcherʼs broad concept of Geistesgeschichte also leads to certain tensions. His attribution of Gierke to Hegelʼs philosophy of history is exemplary. How does this philosophy relate to other philosophers mentioned in the essay, to Kant, Fichte, Schelling and Dilthey? All great names, of course. A Geistesgeschichte must not, however, be content with big names as catchwords, especially not if they represent completely different philosophies. Otherwise the Geistesgeschichte will fall on the wrong path of arbitrariness. If Dilcher then claims that his interpretation of the arrangement of Gierkeʼs main work deviates from my own published in my monograph Juristische Germanistik: Eine Geschichte der Wissenschaft vom einheimischen Privatrecht (2008), the dissent is probably due to a misunderstanding. I completely agree with Dilcher and have already written down (page 496 of the mentioned book) that Gierkeʼs first volume is the historical prelude and the following volumes deepen individual aspects of the so-called dogma history.

9Starting on page 66, the further history of German legal studies in the 20th century follows. In many passages Dilcher and the reviewer share common views of the history of German legal studies. This is hardly surprising, since Dilcher and the reviewer both share the same academic socialization at the Frankfurt Historical School and obviously similar views of the value of freedom. Dilcher finally openly addresses the unfortunate entanglement of the Gierke family in the fate of Germany between nationalism and antisemitism. Dilcher elaborates this topic in detail in a further essay.3 It should be remembered at this point that the reviewer’s predecessor, Hans Thieme, presented a fundamental study on this sad topic decades ago.4 For many years, mostly all legal historians ignored Thiemeʼs contribution. It is Dilcher’s merit to present the facts. Dilcher also acknowledges Eugen Rosenstock-Huessyʼs great importance for German legal studies in the period from the First World War onwards. Dilcher portrays this brilliant scholar with his Jewish background as a representative of the liberal and cosmopolitan orientation of German legal studies. The reviewer would corroborate this without hesitation. But the denial of any continuity between German legal studies before 1933 and after 1945 with the dark years of National Socialism in between leads too far. During the Weimar period, many Germanists were on the side of monarchist reaction, antisemitism and nationalism. And after 1945, numerous Germanists who were involved in that way remained in office, trying to conceal all traces of their shameful actions. History is too multi-layered and too complex to be forced into a binary grid. At the same time, Dilcher’s attempt to draw clear historical lines remains very praiseworthy. If you want to tell a story masterfully, you have to simplify. That lies in the essence of great narratives.

10Next, a few comments on the first-time contribution Zum Ort der Freiheit in Gierkes Rechtstheorie (On the place of freedom in Gierkeʼs legal theory, pages 377-391), which Dilcher first presented at the birthday symposium for Joachim Rückert in Frankfurt am Main (pages 377-391). Here as well it can be seen that Dilcher and the reviewer rate Gierkeʼs conception of freedom similarly. Dilcher rejects the thesis that Gierke, through his cooperative theory, can be attributed to the camp of contemporary socialists or, theoretically speaking, to collectivism. On the contrary, Dilcher rightly emphasizes the many traces of liberalism in the form of freedom rights in Gierkeʼs work. Applying this to cooperative law, Dilcher correctly argues that Gierke had sought to balance community and freedom. In his oral presentation at the Symposium for Rückert, Dilcher summarized this with the beautiful concept of an “equilibrium” between community and freedom. Gierkeʼs concept is not a forced community, but is built on the voluntary participation of its members. Whether one should interpret Gierkeʼs cooperative law as the birth of social liberalism, however, must be decided by the reader. At any rate, that would not be a historical interpretation. A critical point is that Dilcher even praises the late Gierke of 1919 as a liberal. As Dilcher analyzed in another essay of the anthology, Gierke had already turned to radical nationalist ideas by that point that would ultimately fall back on his own family.

11Dilcher does not base his contributions only on a very broad temporal understanding of the Historical School of Law. He is equally generous with the Germanists as a group, since he declares the sociologist Max Weber and the Romanist and great historian of private law Franz Wieacker to be, so to speak, honorary Germanists. The two essays Historische Sozialwissenschaft als Mittel zur Bewältigungder Moderne Max Weber und Otto von Gierke im Vergleich (Historical social science as means to master modernity – Max Weber and Otto von Gierke in comparison, pages 415-442) and Franz Wieacker als Germanist (Franz Wieacker as a “Germanist”, pages 479-504) will therefore be discussed here.

12Weberʼs classification as a Germanist is more a nice game of thoughts than a real thesis, which could open doors previously closed to legal history. It is a truism that both Weber and Gierke each tell a great social story. On a narratological level, striking similarities can indeed be observed. This may be beneficial for narrative theory, but very limited for legal history. Gierke was a passionate jurist, and his works on cooperative law are normatively structured accordingly. Weberʼs interest and perspective, however, are quite different. He applies sociological methods and understands law only as a subsystem of sociology. It therefore remains the case that Weber, despite his dubious teaching license for commercial law, at least does not belong to the mainstream of German legal studies.

13The anecdote that a Romanist had praised Franz Wieacker as the greatest Germanist cannot really be taken seriously. Wieackerʼs comparison with German legal studies is quite groundless. For Dilcher bases his thesis on Wieackerʼs topoi such as “rationalization” and “scientification”, which are not very typical for German legal studies. Dilcher is more likely to hit the right point with Wieackerʼs preference for “life and reality” and his narrative of a decaying legal culture. All this, however, does not make Wieacker a Germanist, but is rather owed to the zeitgeist of National Socialism and other movements that are critical of private autonomy. It should also be borne in mind that Wieacker neglects the Germanists of the 18th and 19th centuries as private law scholars. He writes a story about Roman law and Roman legal scholarship. No Germanist scholar would ever ignore his own colleagues in such a way.

14If you have to recommend the book, Dilcher makes it quite easy. It is very gratifying to see that the history of German legal studies and its narratives are now largely consolidated. Using German legal studies as an example, he delivers a great story of academic liberalism. You don’t have to agree with all the details, but that is not the point with a story whose literary quality reaches far beyond the status of simple specialist literature. Dilcher does not write about master narratives; he himself delivers a master narrative for which the science of legal history will be grateful to him. The book is a cultural asset for legal history and beyond. The reviewer therefore recommends this wonderful work to all lawyers for reading. At a time when globalism and reason are crushed between nationalism and irrationality, liberal ideas are needed.

Review by 18. September 2019
© 2019 fhi
ISSN: 1860-5605
First publication

  • citation suggestion Reviewed by: Frank L. Schäfer, Gerhard Dilcher, Die Germanisten und die Historische Rechtsschule: Bürgerliche Wissenschaft zwischen Romantik, Realismus und Rationalisierung (18. September 2019), in forum historiae iuris,