Pandektensystem

From Max-EuP 2012

by Jan Peter Schmidt

1. Notion

The term Pandektensystem refers to the division of private law into five parts: general part, obligations, property, family law (family) and succession law. The name derives from the pandectist textbooks of the 19th century, which made this arrangement of private law popular. Of particular importance in this context was Georg Arnold Heise’s Grundriß eines Systems des gemeinen Civilrechts zum Behuf von Pandecten-Vorlesungen (1807), which is why the Pandektensystem is sometimes also called the ‘Heise-system’. Nowadays the Pandektensystem is usually no longer discussed in connection with the composition of textbooks, but rather with the structure of civil codes.

2. Genesis

The Pandektensystem developed over several centuries and is a product of different historical factors. Its starting point lies in the 16th century when both the humanist lawyers (humanism), and, quite independently of them, the Spanish scholastics (scholastic jurisprudence), began to move away from the legal order of the Digest (Corpus Juris Civilis) and tried to replace it with a system based on rational criteria. Many authors switched over to the scheme of Justinian’s Institutiones (Corpus Juris Civilis) and divided legal matters into personae, res, actiones (the concept of res, in that context, was a wide one and included not only property law in the strict sense, but also the law of succession and contract law). The most influential work of that time were to be the Commentarii de jure civili (1589) by Hugo Donellus.

Determined efforts of systematization were then also undertaken by the authors of the law of reason (natural law). Since they did not feel bound by the sources of positive law, their quest for a new arrangement of legal matters could follow completely new lines. A comprehensive system of natural law was first developed by Samuel von Pufendorf in his highly influential De jure naturae et gentium libri octo (1672). The basic principle of Pufendorf’s system consisted in a progression from the individual as such to the greater entities of human community, thereby expressing the idea of the dual nature of man as an individual and as a member of society. Accordingly, the law of persons (including, especially, patrimonial law) was presented first, being followed by family law, the law of companies and other associations, public law and public international law. An important consequence of this approach for future civil law systems was the separation of family law from the law of persons, which in the later course of developments also brought about the recognition of the law of succession as an independent part of that system.

The systematic diversity to be found in the legal literature of the 17th and 18th centuries was well reflected in the three major codes codifications from the turn of the 18th to the 19th century: while the Allgemeines Landrecht für die Preußischen Staaten (1794) had been strongly influenced by the law of reason, the Code civil (1804) and the Allgemeines Bürgerliches Gesetzbuch (ABGB) (1811) basically followed the order of the Institutiones. With regard to the structure of its third book (des différentes manières dont on acquiert la propriété), the Code civil also wore the marks of previous French legal doctrine.

The final phase of the formation of the Pandektensystem started during the second half of the 18th century when German writers on the ius commune began to abandon the institutional legal order in their desire to imitate the law of reason’s method of abstraction and generalization. Cornerstones on the road to the firm establishment of the Pandektensystem were Gustav Hugo’s Institutionen des heutigen römischen Rechts (1789), the Grundriß by Heise mentioned already, and finally Friedrich Carl von Savigny’s System des heutigen Römischen Rechts (1840–51) (historical school). Thereafter, the mission to find the correct system was taken to be accomplished, and the Pandektensystem dominated not only the expositions of Roman law, but also those of Germanic law and the laws of the territorial states.

The genesis of the Pandektensystem shows that it absorbed different legal traditions: while the separation of obligations and property goes back to the Roman law distinction between personal rights and real rights (iura in rem and iura in personam), the treatment of family law and the law of succession as independent units owes its origin to the influence of the law of reason (as subordinate units, family law and the law of succession had been already present in the Institutiones). The general part, in turn, was an entirely new component, which had its origin solely in the law of reason. It is generally regarded as the ‘crowning glory’ (Helmut Coing) and the ‘truly distinctive feature’ (Reinhard Zimmermann) of the Pandektensystem, because it expressed the idea that private law is not just an unstructured mass of rules and concepts, but is to be conceived as a genuine system with all its components being linked to each other.

3. The spread of the Pandektensystem over the world

With the Saxonian Civil Code (1863), the Pandektensystem for the first time found its way from the textbooks into an act of legislation. It acquired worldwide fame when it was also chosen as the structuring plan for the Bürgerliches Gesetzbuch (BGB) (1896). All civil codes drafted ever since (codification) have been decisively moulded by the Pandektensystem: while only few of them contain a general part, all of them are based on the division of subject matters into obligations, property, family law and succession (the socialist countries often excluded family law from the civil code in order to deal with it in a separate statute). An important role in the dissemination of the Pandektensystem was not only played by the BGB, but also by the Swiss Civil Code (ZGB) (1907) and the Italian Codice civile (1942), both of which served as models for the civil codes of numerous other states (reception).

Still greater than its impact on the structure of the civil codes has been the Pandektensystem’s influence on legal thinking: it ended up dominating the exposition of private law in legal writing and education even in those states whose civil codes followed an entirely different order, as for example in France (Code civil) and Austria (Allgemeines Bürgerliches Gesetzbuch (ABGB)). Finally, the Pandektensystem has also considerably influenced the writers on the common law and their way of structuring legal matters. ‘Hardly any other circumstance shows the universal influence of 19th century German legal thinking just as clearly’ as this worldwide spreading of the Pandektensystem (Andreas B Schwarz).

4. The controversy over the Pandektensystem

Criticism of the Pandektensystem has, at all times, been primarily levelled at its general part. Therefore, it is often overlooked that the division of legal matters into obligations, property, family law and succession, which nowadays almost seems to be taken for granted, was equally the object of controversy (as was the proper sequence of these parts). As early as the publication of the First Draft, the structure of the BGB was seriously challenged by authors such as Otto von Gierke and Anton Menger. Most vehement demands for an entirely new system of private law were made during the period of National Socialism. Today the discussions have largely died, even if some of the arguments put forward against the Pandektensystem may still be regarded as valid.

a) Objections of a systematic nature

A point of criticism that has often been advanced against the Pandektensystem is that it lacks a uniform underlying systematic principle: while the distinction between the law of obligations and the law of property is based on the different legal effects of their respective rules (relative effect/absolute effect), the rules which can be found in family law and the law of succession refer to specific areas of social reality, regardless of their legal effects. The two pairs obligations/property and family law/succession thus constitute a ‘cross-classification’ (Ernst Zitelmann). The adherents of the Pandektensystem, however, never relied on its logical consistency in the first place, but rather praised its great practical value.

As regards the different parts of the Pandektensystem, the (historically speaking rather young) category of the law of obligations was particularly called into question. To treat contracts and the law of delict in the same category just because both are about one person being granted a right to claim something from another was criticized as being formalistic and remote from reality. In the civilian jurisdictions, however, this view is nowadays hardly advanced any longer, and even in the common law jurisdictions, the traditionally unknown category of the law of obligations is receiving increasing attention. As regards the European level, it is still too early to speak of the existence of the law of obligations as a consolidated category. However, this is primarily due to the hitherto rather fragmentary character of the harmonization process. Given its—by now—firmly established tradition in almost all European legal systems, one can safely predict that the category of the law of obligations will play a crucial role in the further development and systematization of European private law. The third part of the Principles of European Contract Law (PECL), and especially the third book of the Draft Common Frame of Reference (DCFR), may be taken as clear indicators in this direction.

Criticism of the Pandektensystem was also levelled against the separation between the law of obligations and the law of property, as a result of which the rules on functionally connected issues (eg the contract of sale and the associated transfer of ownership) are often placed widely apart from each other. During the period of National Socialism, but also in the German Democratic Republic (GDR), numerous attempts were undertaken to structure patrimonial law in a more functional way, an idea which was partly realized in the Civil Code of the GDR (1975). Today, however, the criticisms concerning the separation of the law of obligations and the law of property have largely subsided, and the systematization according to the structure of legal relations is even praised for allowing considerable flexibility (Ralf Michaels). Of course, the distinction between the law of obligations and the law of property is not to be regarded as absolute: giving preference to functional considerations for individual situations is always possible (as the BGB does, for example, with regard to statutory liens (§§ 562, 583, 592, 647, 704) or the claims between the owner and the possessor of an object (§§ 987 ff)). This applies to the Pandektensystem in general: the individual categories are intended to provide no more than a basic orientation; they are never meant to be completely impermeable vis-à-vis each other.

The treatment of family law and the law of succession as independent functional units, on the other hand, has hardly met with any criticism and has come to be fully accepted in legal scholarship and practice. The separation of family law, as mentioned above, was initially based on systematic considerations by the authors of the law of reason (natural law), but it was later also backed up by substantive arguments. Savigny, for instance, pointed out that family law, otherwise than the law of obligations, was strongly marked by ethical and moral elements. With regard to the law of succession, some natural lawyers still favoured a separate treatment of intestate succession and testamentary succession: the first was attributed to family law, the second to the law of property. With the exception of the Allgemeines Landrecht für die Preußischen Staaten (1794), however, this solution has not found any followers.

b) The sequence of the parts

The sequence of the different parts of the Pandektensystem has been the object of discussion. The pandectist textbooks had always put the law of property at the beginning, followed by obligations, family law and the law of succession. Initially, this sequence was also envisaged for the BGB; in the course of drafting, however, the First Commission decided to swap the places of obligations and property. Since an explicit justification of this change was not given, there has always been much speculation concerning its motives. Some authors associated it with a systematic principle underlying the BGB. Since the rules of the law of obligations have, in some cases, effects on the law of property, they were believed to be of a higher degree of generality. This reasoning, however, is only partly convincing. For whether the rules of the law of obligations are applicable to the law of property needs to be established individually for each case. In particular, the doctrine of the abstract contract concerning the transfer of property refutes the assumption that the law of obligations generally anticipates the rules of the law of property. Therefore, the placing of the law of obligations in front of the law of property is rather to be attributed to practical considerations: in the course of the powerful and highly dynamic economic development of the 19th century, the law of obligations had surpassed the law of property as the practically most relevant and dynamic area of law.

With regard to the order of the BGB, particular criticism was provoked by the positioning of family law behind patrimonial law (obligations and property). Anton Menger saw it as a clear expression of ‘how much the natural foundations of society have been overgrown by ownership interests’. The draftsmen of the BGB, however, had simply followed the tradition of the pandectist textbooks, where the positioning of family law behind patrimonial law dated back to the influence of the natural law systems and their basic principle of progressing from the individual to the larger groups of society. The substantive argument for this sequence was that the patrimonial aspects of family law could not properly be understood without having the rules and concepts of the law of obligations and the law of property in mind. This reasoning, however, was soon refuted by the Swiss Civil Code (ZGB) (1907): following the example of some cantonal civil codes, it put family law in the first place and proved that no practical problems whatsoever ensued from this arrangement.

The placing of succession law at the end of the BGB was not self-evident either, as in the course of legal history its position had greatly varied. Quintus Mucius and Sabinus had placed it right at the beginning of their ius civile. In the Institutiones (Corpus Juris Civilis), and later in the Code civil and the Allgemeines Bürgerliches Gesetzbuch (ABGB), it occupied a position between the law of property and the law of obligations. The fact that the pandectist textbooks dealt with it after family law, once more, dated back to the influence of natural law. In practical terms, this sequence certainly has the advantage that a knowledge of the relationships within a family can be presupposed when turning to the rules on succession.

Finally, it may be said that any sequence of the component parts of private law can be justified, even more so as the question of sequence would appear to be irrelevant from a practical point of view. Nonetheless, the draftsmen of a code should keep in mind the symbolic meaning that can be attached to the order in which the law is presented.

5. Conclusion and outlook

The Pandektensystem with its division of private law into obligations, property, family law and the law of succession is firmly engrained today in legislation and legal thinking all over the world. As a formal plan of structuring the field of private law it is ‘to this day as valuable as can possibly be expected from any attempt of systematization’ (Franz Bydlinski). The Pandektensystem is therefore set to remain a constituent feature of European private law.

Literature

Andreas B Schwarz, ‘Zur Entstehung des modernen Pandektensystems’ (1921) 42 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 578; Herbert F Jolowicz, Roman Foundations of Modern Law (1957) 61 ff; Helmut Coing, Zur Geschichte des Privatrechtssystems (1962) 9 ff; Konrad Zweigert and Hartmut Dietrich, ‘System and Language of the German Civil Code 1900’ in Samuel S Stoljar (ed), Problems of Codification (1977) 34; Wolfram Müller-Freienfels, ‘The Problem of Including Commercial Law and Family Law in a Civil Code’ in Samuel J Stoljar (ed), Problems of Codification (1977) 90, 109 ff; Reinhard Zimmermann, The Law of Obligations (1996) 10 ff, 29 ff; Franz Bydlinski, System und Prinzipien des Privatrechts (1996) 117 ff; António Menezes Cordeiro, Tratado de Direito Civil Português: Parte Geral, vol I (3rd edn, 2005) 109 ff; Ralf Michaels, ‘Vor § 241. Systemfragen des Schuldrechts’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol II/1 (2007); Christian Baldus and Thomas Raff, ‘La capacité du “système des pandectes”’ (2008) 2 Studia Universitatis Babeş-Bolyai⎯ Iurisprudentia 101.

Retrieved from Pandektensystem – Max-EuP 2012 on 02 October 2022.

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