The Historical Transformation Of Thoughts Of The Modern Continental Civil Law

This dissertation mainly studies the historical progress how thoughts of continental civil law created, developed and matured from the 16th century to the 19th century. By studying it. the author hopes to achieve two targets: one is to summarize a clue of the development of thoughts of continental civil law. and therefore provides the historical coordinate referable in studying the concrete civil law systems. The other is to explore a way of studying the legal history of a branch on methodology, and enrich the connotation of western history of legal thoughts.The summary of the dissertation consists of seven chapters:Chapter 1, introduction. This part introduces the research object, the research approach and the framework of the dissertation, and it also defines several terms such as Modern Civil Law, Continental Civil Law and History of Thoughts of Civil Law etc. Chapter 2, the historical origin of thoughts of the modern continental civil law. This part describes the science of Legal Humanism prevailing in Italy. France and Germany, which promotes the emergence of thoughts of the modern continental civil law. Particularly, the author traces the beginning of thoughts of the modern continental civil law in back to the 16th century and thinks that the Renaissance influenced the research of the legal science, and Legal Humanism emerged. The earliest group of civil jurists of modern time emerged in the movement of Legal Humanism, and they advocated resuming classical Rome Law. Legal Humanism establishes the basis of thoughts of the modern continental civil law in two aspects: Firstly, Legal Humanism regards civil law as the law which is different from Canon Law and it secularized the modern civil law, at the same time, it promotes the development of the custom law in France; Secondly. Legal Humanism is different from the scattered legal thoughts of the Rome Law in Middle Ages, and it holds that civil law should be systematized. Legal Humanism decides the developing direction for the modern continental civil law. So. Legal Humanism marks the beginning of thoughts of the modern continental civil law.Chapter 3, the preliminary development of thoughts of the modern continental civil law. This part studies the impact of Natural Law on the development of thoughts of the modern civil law from the 17th century to 18th century. At first, the writer traces the tradition of western natural law. and compares the differences between classical natural law and the modern natural law. Then, orienting in Grotius , it states the humanism of the modern natural law. It also introduces thoughts of civil law of some natural law jurists. At last, the modern natural law promotes the issue of Continental Natural Law Code in the 18th century. The author thinks thoughts of the modern continental civil law develop preliminarily under the influence of the modern natural law. Particularly, it includes two respects: Firstly, the modern natural law changed the situation in which the obligation is regarded as the center of classical natural law, upheld the human natural rights, and made the beginning and goal of all political and legal institutes be the rights. All the above makes the rights become the center of the modern continental civil law. Secondly, the modern natural law jurists proposes taking the natural science (especially mathematics) as the model of the legal science, which causes thoughts of the modern continental civil law to develop further in the direction of the accuracy in concepts and systematization in structure.Chapter 4, the rationalization of the modern continental civil law. This part focuses on two points. The first is that codification of the counties in Continent in the 19th century includes rationalism. Looking from the macro perspective, enacting the civil code itself shows that the rationalism of the Enlightenment makes people believe that there is a chain of cause and effect existing in the field of civil affairs, and people can find and confirm the regulations in civil law and develop the civil law into codification on the basis of rational cognition. Moreover, the rationalism requires that jurists imitate natural scientists in order to make the logic of legal system perfect and the concept of law accurate in reckoning. From the micro perspective, the rationalism is also embodied in the technique of legislation. Specifically, one is the civil law absorbs the deductive method and the analytic approach that the rationalist usually employ, the second is the items of civil law show rational thinking ability when legislators summarize law regulations, and the third is the basic framework of civil law is the result that jurists constantly pursue its logically perfect systems.The second point is that the rationalization of the modern civil law may also be seen from the rationalization of person in civil law. Using the Spirit of Capitalism of Sombart, Weber, and the author thinks that the modern civil law accommodated the capitalism economy, so the capitalism's designing the human nature is also suitable for the modern civil law. Particularly, the writer thinks that in the modern civil law, human's living prototype is citizens or the bourgeois with the Spirits of Capitalism, who take the profits as their purposes. So persons in civil law also bear the desire ofmaking profits, and become the economic person. Besides, in the capitalist commercial society, all interests can be measured in currency, and all economic benefits can be converted into civil rights, so the systems of the modern civil law are designed into the tool calculating and distributing the rights and interests. Under the system, persons in modern civil law calculate various rights and benefits, and thus develop a kind of rational mind of calculation.Chapter 5, the liberality of the modern continental civil law. This part explores the liberality reflected in autonomy of the modern private law in Continent. There are three points in it. Firstly, in order to achieve the autonomy of private law. the modern civil law must control the state power. But civil law itself does not possess this function. So, the logic prerequisite of the autonomy of private law is that the country owns constitution which ensures the basic human rights (liberty, equality and property) not to be violated by public power and maintains a field of private autonomy. Secondly, the modern continental civil law takes the right as its center, and the autonomy of private law is revealed through the subjective rights in the systems of civil law. Based on the theories about philosophy of the private law in Continent in the 19th century, the author argues that the essence of the subjective right is Ihe free will of the subject. For example, ownership is the will that the subject arranges one's own property freely, and the contract reflects the combination of the free will of the two subjects. Finally, analyzing the autonomy of private law under the philosophy tradition of western liberalism, the author points out that the freedom under the autonomy of private law is the individual freedom instead of collective freedom, that it is the negative freedom instead of the positive freedom, and that it is the freedom of civil society instead of the freedom of the stale.Chapter 6, the Historical School of Law in modern continental civil law. This part focuses on the developments of the science of historical law and thoughts of Germany's modern civil law in the 19th century. Firstly, the author differs the meaning of Historicism and Hislorismus. and confirms that the ffistorische Renchsschule represented by Savigny in the 19th century are the specific phenomenon in Germany, which is different from Historicism. Then, the author traces the background of the historical culture under which Historical School of Law comes into being, namely, cultural nationalism of Deutsche and the romanticism at the beginning of the 19th century has promoted the formulation of Historical School of Law. Again, taking the views of Savigny. the key person of Historical School of Law. as an example, the author describes and proves the guideline of theory of Hislorische Renchsschule, and points out that the main views of the Hislorische Renchsschule are "the spirit of nation'1, "legal evolutionism". "Popular Law and Learned Law", "historical method and system method", etc..Savigny's theory includes many contradictions which appear in disputes between Roman School and Germanic School which are two branches of Historical School of Law. Later, Hislorische Renchsschule evolved into Pandectism in 1950s and influenced the formulation of BGB through Windscheid finally. After middle period of the 19th century, a trend of thought of civil law confronting Pandectism appeared gradually, and the theory of the End of the Law which Jhering created and the theory of the Social Law which Gierke advanced are representative. These two trends of thoughts began to appear at the time when thoughts of the modem continental civil law developed into great prosperous period, and they indicate thoughts of the modern continental civil law began to weaken from the climax.Chapter 7, conclusion. This part sums up the vein of thoughts of the dissertation and it points out that the historical development of thoughts of the modern continental civil law can be summarized with the following key words, namely. Human ism. Natural Law, Rationalism. Liberalism and Historismus, which shows different sides of thoughts of the modern continental civil law separately.