Peter Haas

American Revolution and the French Revolution , in which the classical legal systems inherited by medieval Europe were destroyed to make way for new legal structures devised in the light of reason, encouraged the idea that law was a product of the human mind and that different ages produced legal cultures according to the level of their insight into the truths of nature and human society.” This conviction came to be reflected in a new historical critical approach to the Roman legal heritage, an approach that was sensitive to the cultural matrix out of which Roman law emerged. The harbinger of this view was a study by Christian F. Glueck entitled Ausfiihrliche Erlduterung der Pandecten nach Hellfeld, the second edition of which was published in 1797.° Unlike earlier medieval studies, this was not a mere scholastic rearrangement or systematization of Roman law but an attempt to adduce the original meaning and intent of Roman law by paying attention to its cultural and linguistic background.

This view of law led directly to what came to be known as “positivism,” which is generally traced back to Gustav Hugo and his Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, published a year later, in 1798. In this study, Hugo set out to prove that what had been claimed by legal scholars of the past to be part of, or derived from, natural law were in fact historically bounded legal enactments. That is, what Hugo adduced from the Roman case was that all legal enactments are“positive” in the sense that they are the results of human institutions that had the power to enact, or posit, laws. There was not a givenness to law to which individual pieces of legislation had to conform, but law is part of the historical development of a people. This notion of law was of course tremendously powerful, and empowering, in the climate of early— nineteenth—century Germany . It gave tremendous intellectual weight to the idea that the legal traditions of the various German states and principalities were legitimately open to change at the hands of a new generation of leaders. But there were two different interpretations as