"Needs" – pandectists between norm and reality

Hans-Peter Haferkamp

pp. 107-121

in: Yasutomo Morigiwa, Michael Stolleis, Jean-Louis Halperin (eds), Interpretation of law in the age of enlightenment, Berlin, Springer, 2011

Abstract

The development of legal interpretation between the 17th and 19th centuries is commonly described in terms of a growing adherence to the legislator's words. Since the end of the 18th century, scholars of antique Roman Law thus had to deal with the dangers of adhering to legal texts from an utterly different period of time, meant for an utterly different society. Consequently, Pandectism has often been accused of having created a law detached from life and the "real world". In the following study, I shall suggest a different perspective. Pandectists constantly sought to adapt the antique sources to contemporary life. That the validity of law had to be measured according to certain "needs' was a point of almost universal agreement. How a jurist could identify said "needs", however, remained a subject of debate: could this be achieved through intuition, empiricism or theory? Furthermore, there was no consensus about the position of "needs' in the field of legal theory. Were they part of legal interpretation or of the study of legal sources, or were they a legal argument sui generis? In essence, it can be argued that Pandectists generally drew on the antique sources in order to obtain a law in accordance with the "needs' of the 19th century.