Book Review

This artful and fluent translation makes the most celebrated work of the most celebrated of European legal historians easily available to Americans. Franz Wieacker, who died in 1994, has counted as a great figure for a very long time in Europe. As readers of this book can discover for themselves, he was a legal historian of singular learning, creativity, engagement with the world, and philosophical depth. This book in particular, among his many, is scholarship of the finest water, a piece of high German interpretive writing in the style of a Werner Jaeger or a Heinrich Wolfflin. Read it, the way you would read a classic work of classical scholarship or art history.	1
The book, it has to be said, is out of date in many particulars. This is a translation of the 1967 second edition. Reinhard Zimmermann's introduction runs down many of the advances in our knowledge that have supervened since it first appeared. It is possible to feel doubts about the book's large architecture, too, of which more momentarily. None of that diminishes its value. A History of Private Law in Europe remains the single finest source for the advanced beginner in German legal history, and the single best-conceived work on European legal history in general.	2
Readers should be forewarned, though, that the book is principally a work of intellectual history, a study of the attitudes and aspirations of the most sophisticated European jurists since the twelfth century. There is relatively little history of doctrine here, as Wieacker's European readers have complained since the first edition appeared in 1952. That should not bother Americans, who should find the dose of doctrine they get here just about enough. More likely to bother Americans is the absence of any concern for law in action. This book is really for those who want to get in touch with the great ideas of European, and especially German, law. For them, it will be an unparalleled resource. This is especially true for Wieacker's treatment of certain periods: his discussion of early modern German jurisprudence, for example, opens up what would otherwise be completely inaccessible territory. Most exciting of all, I suspect, will be his review of twentieth-century German legal philosophy, a superb body of argument that remains mostly unknown to us. But even for periods that are well covered in more recent books, Wieacker's learning and judgment remain unmatched.	3
Readers should perhaps also be forewarned that his is a book to be read in historical context. It was a great part of Wieacker's strength as an intellectual that he was deeply engaged in the events of his terrifying time; but that is also a source of a certain weakness. The book is inevitably shaped by the Nazi experience. This is partly because its origins lie, in part, in a Nazi curricular effort to substitute "European" and "German" legal history for courses on Roman law. More importantly, it is because Wieacker (who had once, in his youth, been a committed Nazi) belonged to a postwar generation that worked desperately to refound a German intellectual life after Hitler.	4
Now, anti-Nazi scholarship is a good thing. But determination to get beyond the Nazi experience did introduce certain themes and biases into Wieacker's book that deserve comment. Most important of these is its insistent emphasis on the significance of Roman law. The Nazis denounced Roman law with a wholly insane nationalistic bitterness. One consequence of this was that haters of the regime, in the world of legal scholarship, tended to cast their emotional lot with Roman law. This was especially true of the finest of the books that laid the groundwork for Wieacker's A History of Private Law in Europe, as well as Koschaker's Europa und das romische Recht, completed in the last months of World War II.	5
It is no surprise then that Wieacker, who in the 1930s had expended great energy in the effort to create a "German" law for the new Reich, spoke, in 1952, mostly about Roman law. The centerpiece of his book, in particular, was the event that the Nazis most assailed: the "Reception of Roman law," the large-scale introduction of Roman texts into German legal practice in the sixteenth century. Nor is it a surprise that, to explain (and implicitly to justify) the Reception, Wieacker turned to a figure to whom many were turning in the early 1950s: Max Weber, then still widely regarded as an unimpeachable voice of a thoughtful German liberalism.	6
Unfortunately Wieacker did not adopt all that one might wish from Weber, whom Germans have too often regarded as a "sociologist" rather than a "lawyer." In particular, Weber's middle-range observations on topics like the transformation of the family business into the modern corporation made no appearance in Wieacker's A History of Private Law. But what Wieacker did adopt was Weber's best-known generalization: his argument about "rationalization." It was "rationalization" that served as the basis of "Verwissenschaftlichung," here translated as "intellectualization"—as a process that had little or nothing to do with the substance of the Roman rules but much to do with bringing science, orderly knowledge, and modern jurisprudential technique to German law.	7
This subtle apology for the Reception remains a classic. But Wieacker's readers may be slightly puzzled by an account of the Reception of Roman law in which the actual rules of Roman law figure so little. And indeed, the drift of our studies since Wieacker's book has taken us ever further from Roman law and ever more deeply into Canon law and into the larger learned system of the ius commune in which Roman law was only one element. We have in fact experienced a major shift away from the old nationalistic fascination with Roman law, a shift that only barely made itself felt in the second edition of Wieacker's book, which added some wise observations about Canon law. Laudably antinationalist as the book's emphasis on Roman law may be, that emphasis remains the hallmark of an era of nationalist scholarship that has passed.	8
But for all that, this remains a very wise book from a very harsh time, for whose translation we owe a debt of gratitude to Tony Weir.	9
James Q. Whitman Yale Law School

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