The Science of Private Law and the State in Nineteenth Century Germany

Abstract

About 1800, the concept of a strict separation between private and public law arose in German doctrine. The debate dealt with two ques tions. How should this private autonomy be defended against stately interests? Some argued philosophically (Volksgeist), others frankly politically. The second and decisive question was to know which legal institution was reliable enough to receive the task to protect the pri vate law from the State. Unlike in other European states, the idea to protect private law with the help of the constitution was not the first choice for many jurists in Germany. Members of the Historical School preferred the judges to be entrusted with the above mentioned task. In the context of private law, jurists thought in national dimensions without a national state. Private law relied therefore on the Ius Com mune, a law without a state legislator. When the German states were unified to form the Reich in 1871, for the first time, private law was associated with the entire state. With the social question arising, a new discussion about the relationship between private law and the state emerged.