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Legal history helps us to understand our modern law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrine as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error.
Today, however, historical legal scholarship has acquired an added legal significance in view of the Europeanization of private law and private law scholarship. It enables us to see the common ground between our modern national legal systems and to understand existing differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood under purely national auspices. It constitutes the foundation for scholarship in comparative law and paves the way towards re-establishing a European legal culture.
The first section of this book demonstrates how legal history lost touch with modern legal doctrine in nineteenth-century Germany. This process of emancipation was enormously beneficial, as far as our knowledge of classical antiquity is concerned. Arguably, however, the pendulum has swung too far. There has always been in the development of the civilian tradition, a competition between an ""elegant"" and a ""utilitarian"" approach. It would be highly desirable if legal historians, apart from exploring for their own sake the details of past times, would once again set itself the task of tracing the ways in which our modern law emerged from its historical origins.
The second section is devoted to a demonstration that this kind of approach is still possible, and meaningful, in spite of the fact that German law - like all other Continental legal systems - has been codified. Codification has influenced our ideology. But it has not cut us off from the common legal past. Adjudication and scholarship under the BGB remain German emanations of the civilian tradition.;The final section substantiates the claims that common principles underpin different legal systems by focusing on a number of examples.
This book contains the text on which Professor Zimmermann's Clarendon Lectures at the University of Oxford in October 1999 were based.