The German Genius

Moreover, according to Iggers’s interpretation, Troeltsch and Meinecke maintained that (non-German) European thought remained committed to natural law throughout the nineteenth and into the twentieth century. This difference, he says, helped lay the basis for the “deep divergence” in cultural and political development observed between Germany and “Western Europe” after the French Revolution. Another Sonderweg. 8
    “A N E POCH IN THE H ISTORY OF E UROPEAN I NTELLIGENCE”
     
    The German historians also stimulated change in more practical ways. Consider first something we take for granted now: access to archives, and the freedom to publish whatever is discovered there. 9 G. P. Gooch reminds us this was by no means always true and that the first scholar of heroic consequence in modern historiography, the man who improved its standing to the status of an independent discipline and who inspired many later historians, was Barthold Niebuhr (1776–1831). The “rather mawkish” son of the noted Danish traveler and explorer Carsten Niebuhr, he was introduced to the great classics of other civilizations by his father. He pursued law and philosophy at Kiel but he also studied history and knew as early as nineteen what he wanted to be: “If my name is to live, it will be as an historian and publicist, as a classicist and philologist.” 10 He spent time in Denmark and Berlin, in public administration, but in 1810 he was offered a professorship at the University of Berlin, and it was there that he began his mammoth work on Rome. In the middle of the fighting he published two volumes of a book that we now recognize as inaugurating the systematic study of Roman history. Niebuhr always claimed that his time in public administration had provided him with an understanding of history that “no previous historian” had experienced and gave him a perspective that, he said, showed that history is more an account “of institutions than of events, of classes than of individuals, of customs than of lawgivers.” This was a crucial shift in emphasis but not his only one, his other achievement being to identify the sources of early Roman history and assess their credibility. He had thoroughly assimilated Wolf’s methods and results in the Prolegomena ad Homerum , which convinced him that the history of early Rome could be found in a critical examination of its literature. Goethe was impressed and so was Thomas Babington Macaulay in Britain, who declared Niebuhr’s book(s) on Rome “an epoch in the history of European intelligence.” 11
    L AW AS AN A CHIEVEMENT OF C IVILIZATION
     
    In the German context, an important aspect of this developing historical consciousness occurred in the realm of law. Two Berlin professors were crucial in showing how laws were not “God given,” as many people thought, but had evolved. Karl Friedrich Eichhorn studied law, political science ( Staatswissenschaft ), and history at Göttingen. His original intention was to be a practicing lawyer, but after being offered a chair at Frankfurt an der Oder, he turned to research and writing. The first volume of his Deutsche Staats-und Rechtsgeschichte ( History of German Law and Institutions ) appeared in 1808 when he was twenty-seven, and it earned him an invitation to Berlin.
    Eichhorn’s aim was to show that state and public law was “the product of all the factors that influence the life of a nation.” He described the links between legal ideas and institutions, showing how both had evolved. In doing so, he helped generate a spirit of nationality, but in Berlin he became identified with the view that law—like art and philosophy—is one of the defining achievements of a great civilization.
    Friedrich Carl von Savigny was a lifelong friend of Eichhorn’s. Also educated at Göttingen, he published a work on certain aspects of the Roman Law of Possession in 1803 and the following year set out on a prolonged tour through the libraries of Europe. These travels provided him with a unique experience and self-confidence, so much so that when, in the wake of Napoleon’s victories, there was a call for a French-style German-wide code of law, Savigny effectively opposed the idea. Now a professor at Berlin, he forcefully argued instead that law had to grow, by custom and usage, that any code “imposed” on a people would necessarily be arbitrary and do more harm than good. This view was underlined in his Geschichte des römischen Rechts im