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2. The writings of legal scholars, for instance, clearly constituted a formal source of law at Roman law, but are considered less authoritative in contemporary civil law systems, and are clearly not a source of law in contemporary common law systems. See generally: Caenegem, R.C. van, Judges, Legislators and Professors—Chapters in European Legal History (Cambridge: Cambridge University Press, 1987) at 67-111CrossRefGoogle Scholar; Nicholas, B., An Introduction to Roman Law (Oxford: Clarendon Press, 1962).Google Scholar

3. See my ‘Some Thoughts on the Comparative Jurisprudence of Mistakes in Assumption’ in Bryan, M. & Robertson, A., eds., Private Law in Theory and Practice [forthcoming in 2006].Google Scholar

4. See, e.g., Ghestin, J. & Goubeaux, G., Traité de droit civil—Introduction générale, 4th ed. (Paris: LGDJ, 1994).Google Scholar

5. It is quite telling that the most extensive treatment of these concessions that I could find was that of a German scholar: F. Wieacker, infra note 9 at 272.

6. See, e.g., the historical accounts of English law listed above, infra notes 113-115. Interestingly, many references to such figures in contrast appear in continental accounts of English law. See, e.g., David, R., Les grands systèmes de droit contemporains, 8th ed. (Paris: Dalloz, 1982) at para. 21ff.Google Scholar

7. See, e.g., Wieacker, , infra note 9, Parts V and VIGoogle Scholar. See also Ewald’s account of the German literature, supra note 1 at n. 320ff.Google Scholar

8. See generally, Villey’s, Michel derisive reference to la philosophie des manuels (‘treatise philosophy’) ((1967) XII Arch. Phil. drt 214)Google Scholar.

9. On the eleventh-century rediscovery of the Corpus Iuris, see: Bermann, H., ‘The Religious Foundations of Western Law’ (1975) 24:3 Cath. U. L. Rev. 490 at 492Google Scholar. On the reception of the ius commune on the continent, see generally: Wieacker, F., A History of Private Law in Europe (Oxford: Clarendon Press, 2003)Google Scholar; Watson, A., The Making of the Civil Law (Cambridge, MA: Harvard University Press, 1981)Google Scholar; Merryman, J.H., The Civil Law Tradition (Stanford, CA.: Stanford University Press, 1985) at 7ffGoogle Scholar; Lawson, FH., A Common Lawyer Looks at the Civil Law (Ann Arbor: University of Michigan Law School, 1953) at 21 Google Scholar-45.

10. Vinogradoff suggests that, whereas the Corpus Iuris indeed generated considerable academic interest following its medieval discovery, as an object of juristic study it did not survive the fall of the Empire. Vinogradoff, P., Roman Law in Medieval Europe, 2nd ed. (Oxford: Clarendon Press, 1929) at 15ffGoogle Scholar.

11. On the relation between authority and reason in medieval thought, see: Wieacker, supra note 9 at 34ff.

12. Bermann, H., ‘The Origins of Western Legal Science’ (1977) 90:5 Harv. L Rev. 894 at 908-30CrossRefGoogle Scholar.

13. Mehren, A. Von & Gordley, J. The Civil Law System: Cases and Materials for the Comparative Study of Law (Englewood Cliffs , NJ: Prentice Hall, 1957) at 7.Google Scholar

14. Ibid.

15. Wieacker, supra note 9 at 34.

16. Schlesinger, R.B., Comparative Law: Cases, Text, Materials (Mineola, NY: Foundation Press, 1988) at 264-65Google Scholar. Rattigan wrote of Bartolus, the greatest of the post-Glossators, that ‘his strong practical common sense convinced him of the necessity of evolving from the chaos of conflicting statutes, customs, and feudal laws which prevailed in his day some principles of general application which were suitable to the age in which he lived.’ Rattigan, R., ‘Bartolus,’ in Macdonell, J. & Manson, E., eds., Great Jurists of the World (Boston: Little, 1914) at 41, 51Google Scholar.

17. For political and economic reasons, Western Europe then was in great need of reunification and hence particularly receptive to the implantation of Roman law throughout its territories. See: Pirenne, H., Economic and Social History of Medieval Europe (New York: Harcourt, Brace, 1937) at 34, 52.Google Scholar

18. On the reception of the ius commune in Europe generally, see: Wieacker, supra note 9; Watson, supra note 9 at 7ff; F Lawson, supra note 9 at 24ff; Zweigert, K. & Kötz, H., Introduction to Comparative Law (Oxford: Clarendon Press, 1987) at 69ffGoogle Scholar; Vinogradoff, P., ‘Customary Law’ in Crump, CG. & Jacob, E F, eds., The Legacy of the Middle Ages (Oxford: Clarendon Press, 1951) at 287ffGoogle Scholar; van Caenegem, supra note 2 at 6ff.

19. Von Mehren & Gordley supra note 13 at 13; Marsh, P.D.V., Comparative Contract Law: England, France, Germany (Aldershot: Gower, 1994) at 5.Google Scholar

20. On canon law generally, see Bermann, supra note 9 esp. at 499ff.

21. Lawson mentions the survivance of the law of marriage, supra note 9 at 29.

22. Lawson, ibid. at 10.

23. In between the post-Glossators and the school of secular natural law came the Humanists of the Italian Renaissance, who attempted to counter the post-Glossators’ systemization efforts and restore the Corpus Iuris to its original historical context, an undertaking later taken up by the German pandectists. See below, Part 2. Although the Humanists’ contribution was significant from a general historical perspective, it proved much less important from a legal perspective. The influence of the Corpus Iuris in fact markedly declined during that period. See generally: Jolowicz, H.F., ‘Utility and Elegance in Civil Law Studies’ (1949) 65 Law Q. Rev. 322 at 322-36.Google Scholar

24. See generally Strauss, L., Natural Right and History (Chicago, IL: University of Chicago Press, 1965)Google Scholar; Weinreb, L.L., Natural Law and Justice (Cambridge, MA: Harvard University Press, 1987).Google Scholar

25. Descartes, R., Oeuvres philosophiques, vol. II (Paris: Garnier, 1967), esp. n. 1 at 403.Google Scholar

26. ‘The method of system-building used during the 17th and 18th centuries was deductive. Employing a small number of very general concepts and precepts as his starting point, the system-builder of that period deductively developed successive ranges of less and less general abstractions, categories and principles until finally he laid out the specific rules governing concrete fact situations.’ Schlesinger, supra note 16 at 268.

27. This was the view of the Encyclopedists, and that of Diderot in particular. See Diderot’s ‘On the Interpretation of Nature’ (1754), discussed in Copleston, F., A History of Philosophy (Garden City , NY: Image Books, 1962) Bk 2, Vol. 3, at 40–43.Google Scholar

28. This is perhaps clearest in Wolff and Spinoza. See Wolff, C., Philosophia rationalis sive logica (Hildesheim: G Olms, 1983)Google Scholar; Spinoza, B., Ethik in geometrischer Ordnung dargestellt (Hamburg: F. Meiner, 1998).Google Scholar

29. Wolff’s theory that knowledge of the outside world could be gained, not through sensory perception, but through rational thought alone is entirely consistent with this view. Descartes, Leibniz, Locke and Berkeley similarly believed that nothing could be known to exist aside from the ideas in the mind of the perceiving subject.

30. See François Gény’ s famous critique of the idea/fact conception underlying the French legal system: Gény, F, Méthode d’interprétation et sources en droit privé positif—Essai critique (Paris: LGDJ, 1954) at esp. 110ffGoogle Scholar.

31. Rousseau, J.-J., The Social Contract, trans. by Cole, G.D.H. (New York: Dutton, 1968) at 12.Google Scholar

32. Mirabeau, H.-G. de R, Qu’est-ce que le principe de gouvernement? (Paris: Quai Voltaire, 1989) at 34.Google Scholar

33. The same ideas that animated the Reformation thus informed the French revolution. Along with the destruction of ecclesiastical hierarchy and the reconciliation of the individual with God, ‘the Reformation opposed the hierarchical system of ownership. In this opposition, it was aided by Roman law which did not recognize other title to land than that derived from the free disposition of the owner. Feudalism had made the King the supreme lord; the jurists appealed to the traditions of imperial Roman law exaggerating the signification of royal power and changing it into the eminent domain of the prince in order to destroy feudal bonds.’ Miraglia, L., Comparative Legal Philosophy Applied to Legal Institutions (New York: A.M. Kelley 1968) at 421.Google Scholar

34. On the ideology of the French revolution, see: Watson, supra note 9 at 83-98.

35. The following statement by Condorcet is instructive in this regard: ‘It is not in the positive knowledge of the laws established by men that we must look to learn what we must adopt, it is in reason alone, and the study of the laws instituted by different peoples and in different centuries is useful only to provide reason with the support of observation and experience.’ P. Condorcet ‘Essai sur les assemblées provinciales’, Part II, §VI, quoted in Burdeau, G., ‘Essai sur l’évolution de la notion de loi en droit français’ (1939) Arch. Phil. drt 7 at 13Google Scholar. (My translation.)

36. But see Hilaire, J., Histoire des institutions publiques et des faits sociaux (Paris: Dalloz, 1976) at 18.Google Scholar

37. This relation of authority to reason is further elaborated in the writings of nineteenth-century French legal philosopher Alfred Fouillée. Fouillée’ s theory of ‘force-ideas’ aimed to explain how the rational content of an agent’s particular ideas can have force independently of this agent’s particular mental state. Fouillée, A., L’idée moderne du droit en Allemagne, en Angleterre, et en France (Paris: Hachette, 1878).Google Scholar

38. Hilaire, supra note 36 at 9. (My translation.)

39. Merryman, supra note 9 at 21; Zweigert & Kötz, supra note 18 at 69-70; Schlesinger, supra note 16 at 300.

40. ‘[T]he active rationalism-in-practice of the modern legislator has absorbed the intellectual ratio-nalism-in-contemplation of the Middle Ages which brought it forth.’ Wieacker, supra note 9 at 35. See also: Martin, O., La Coutume de Paris—Trait d’union entre le droit romain et les législations modernes (Paris: Sirey 1925) at 13 Google Scholar.

41. See generally Herman, S. ‘From Philosophers to Legislators, and Legislators to Gods: The French Civil Code as Secular Scripture’ (1984) U. Ill. L. Rev. 597 Google Scholar; Prévault, ‘Les fondements philosophiques du Code Napoléon’ (1975-76) 64 Studi Urbinati 143 Google Scholar; Arnaud, A.-J., Les Origines Doctrinales du Code Civil Français (Paris: LGDJ, 1973).Google Scholar

42. One of the most important French codifiers, Domat, wrote: ‘There is a universal and unchanging law which is the source of all positive laws: it is none other than natural reason, which governs all mankind.’ Domat, J., Les loix civiles dans leur ordre naturel (Paris: Chez Durand, 1777 Google Scholar) at §1 (my translation). Another codifier, Portalis, suggested to the same effect that: ‘[w]hen one is directed by nothing established or known …, one must turn back to the principles [of natural reason]. For, if the foresight of legislators is limited, nature is infinite.…’ ( Portalis, J.E.M., ‘Discours préliminaire prononcé lors de la présentation du projet’, quoted in Fenet, P., Recueil complet des travaux préparatoires du Code civil, Vol. I, 2nd ed. (Oznabrück: O. Zeller, 1968) at 467 Google Scholar (my translation). See generally: Pothier, R.-J., Oeuvres de Pothier (Paris: Béchet, Chasseriau, 1825).Google Scholar

43. This was the title proposed by Cambacérès, the author of the second draft presented to the commission charged with the drafting of the new code. See: Fenet, ibid. at 109.

44. Ghestin and Goubeaux report that Domat, whose writings, along with those of Pothier, provided much of the substance and structure of the Code civil, had heavily relied upon Port Royal, whose own thought was derived directly from Descartes. Ghestin & Goubeaux, supra note 4 at 31.

45. Weber, M., Economy and Society, vol. 2, trans. by Fischoff, et al. (New York: Bedminster Press, 1978) at 657-58Google Scholar; Weber, M., Max Weber on Law in Economy and Society, trans. by Shils, E. & Rheinstein, M. (Cambridge, MA: Harvard University Press, 1954) at 64.Google Scholar

46. Article 7 of the Law of the sixth month of year XII of the Republican calendar, which promulgated the Code Napoleon, reads: ‘As of the date of the coming into force of these laws, the Roman laws, the ordinances, the general or local customs, statutes and regulations cease to have the effect of general or specific law in matters which are the object of the laws comprising the present Code.’ Hence the following words from a French professor of the Second Empire: ‘Je ne connais pas le Droit Civil, je n’enseigne que le Code Napoléon.’ (‘I do not know the Civil Law, I only teach the Code Napoléon’) Bonnecase, J., Introduction à l’étude du droit (Paris: Sirey, 1926) at 184.Google Scholar

47. Hilaire, supra note 36 at 47, quoting Cambacérès (my translation).

48. Keeton, G.W., ‘Codification and Social change’ (1971) 1 Hong Kong L. J. 245 Google Scholar; Stein, P., ‘Historical Development of Civil Codes’ in Canadian Institute for Advanced Legal Studies, The Cambridge Lectures 1983 (Toronto, ON: Butterworths, 1985) at 280, 281Google Scholar; Nicholas, B., ‘Introduction to the French Law of Contract’ in Harris, D. & Tallon, D., eds., Contract Law Today: Anglo-French Comparisons (Oxford: Clarendon Press, 1989) at 10.Google Scholar

49. Montesquieu, C.-L. de, De l’esprit des lois; les grands thèmes, Bk. 11, (Paris: Gallimard, 1970) Ch. 6 at 178 (my translation)Google Scholar. On the French conception of the judicial function generally, see: MacLean, R.G. ‘Judicial Discretion in the Civil Law’ (1982) 43 La. L. Rev. 45 at 46Google Scholar; Deak, F. & Rheinstein, M. ‘The Development of French and German Law’ (1936) 24 Geo. L J. 55 Google Scholar; David, supra note 6 para. 21.

50. ‘The great commentaries on the Civil Code are scarcely less authoritative than the Code itself.’ Allen, C.K., Law in the Making (Oxford: Oxford University Press, 1927) at 117-18Google Scholar. See generally: Marty, in Matter, P., Études de droit civil à la mémoire de Henri Capitant 84 (Paris: Dalloz, 1939) at 87 Google Scholar; Watson, supra note 9 at 171; Vries, H. de, Civil Law and the Anglo-American Lawyer (Dobbs Ferry , NY: Oceana Publications, 1976) at 300-03Google Scholar.

51. For a more thorough analysis of French legal materials on contractual mistake, see my ‘Consensualisme et objectivisme dans le droit français de l’erreur dans les conventions’ (2005) 2 La revue de la recherche juridique 661.

52. Rousseau, quoted in text to supra note 31.

53. As one commentator reported, French jurists long mistakenly attributed this notion to Ranouil, Kant. V., L’autonomie de la volonté: naissance et évolution d’un concept (Paris: PUF, 1980) at 13 Google Scholarff.

54. The non-mistaken party would be left to seek compensation for his reliance from the law of delicts, should the mistake have originated from someone’s fault.

55. In particular, Wieacker, supra note 9; Gordley, J., The Philosophical Origins of Modern Contract Doctrine (Oxford: Oxford University Press, 1991)Google Scholar and Ewald, supra note 1; John, M., Politics and the Law in Late Nineteenth-Century Germany: The Origins of the Civil Code (Oxford: Clarendon Press, 1989)Google Scholar; Whitman, J.Q., The Legacy of Roman Law in the German Romantic Era (Princeton, NJ: Princeton University Press, 1990)CrossRefGoogle Scholar.

56. Kant, I., Prolegomena to Any Future Metaphysics (Indianapolis, IN: Bobbs-Merrill Educational Publishing, 1950) at para. 14.Google Scholar

57. ‘Je pense donc je suis.’ See Descartes: Philosophical Writings, trans. by Anscombe, G.E.M. & Geach, P.T (Edinburgh: 1954) Part IVGoogle Scholar.

58. See Hume, D., An Enquiry Concerning Human Understanding, ed. by Selby-Bigge, L.A., 2nd ed. (Oxford: Clarendon Press, 1936).Google Scholar

59. See Kant, I., Critique of Pure Reason, ed. by Schwarz, W. (Aalen: Scienta Verlag, 1982).Google Scholar

60. Vecchio, G. Del, Philosophie du droit (Paris: Dalloz, 1953) at 111.Google Scholar

61. Ibid.

62. Ibid.

63. The Sainte Alliance of 1815 concluded by the Austrian, Prussian, and Russian monarchs with a view to reinforcing their respective kingdoms was a direct consequence of political activism from the historicists.

64. On historicism in German legal literature generally, see: Del Vecchio, supra note 60 at 203-13.

65. Herder, J.G., Traité de l’origine du langage, trans. by Modigliani, D. (Paris: PUF, 1992).Google Scholar

66. Fichte, J.G., Science of Knowledge, ed. by Heath, P. & Lachs, J. (Cambridge: Cambridge University Press, 1982).Google Scholar

67. Schelling, F. W. J., System of Transcendental Idealism (1800) (Charlottesville, VA: University Press of Virginia, 1978).Google Scholar

68. Hegel, G.W.F, Hegel’s Preface to the Phenomenology of Spirit (1807), trans. by Yovel, Yirmiahu (Princeton, NJ: Princeton University Press, 2005)Google Scholar; Hegel, G.W.F., Philosophy of Right, trans. by Dyde, S.W. (Amherst, NY: Prometheus Books, 1996).Google Scholar

69. Fichte similarly proceeded to synthesize mind and matter, but he did so by merging them into the subjective. See supra note 66.

70. Hegel, ‘Preface’ to the Philosophy of Right, supra note 68 at 10.

71. On the Historical School generally, see: Wieacker, supra note 9 at 300-29.

72. Savigny, FK. von Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (New York: Arno Press, 1975)Google Scholar. On Savigny generally, see: Kantorowicz, H. ‘Savigny and the Historical School of Law’ (1937) 53 L. Q. Rev. 326.Google Scholar

73. Thibaut, J., Über die Notwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland (Heidelberg: Mohr & Zimmer, 1814).Google Scholar

74. Herder, J.G., Idées pour la philosophie de l’histoire de l’humanité, trans. by Rouché, M. (Paris: Aubier, 1962).Google Scholar

75. In his words, there exists ‘an organic link between law and the essence and character of the nation.’ Vom Beruf, supra note 72 at 8.

76. See generally: Ewald, supra note 1 at 2030-37.

77. Wieacker, supra note 9 at 311. On the Romanist side, Puchta was attempting to move the Historical School towards highly conceptual and formal Pandectism. Whereas the conceptualization process had ended in empty speculation at the hand of Wolff and his followers, Puchta would use it to elevate the positive law of the day to the status of a classical dogmatic science. The Germanists agreed that legal rules had to be formalized into a scientific system, but they considered that this system should be built from properly German, not Roman, legal rules. See generally: Wieacker, supra note 9 at 318ff.

78. Ibid.

79. Ewald, supra note 1 at 2030 (italics in original).

80. The following summary of the Pandectist era by Wieacker (supra note 9 at 9) is particularly striking in this respect: ‘[They] abandoned the ethical principles whose superiority to positive law had been accepted by both the natural lawyers of the Middle Ages and the adherents of the modern law of reason, but held fast, as if still in thrall to the rationalism of the law of reason, to the view that right law could be inferred from general legal concepts bound together in a logical system.’

81. Ewald, supra note 1 at 2034-35.

82. Ibid. at 2026. The heirs of the Historical School included inter alia Kelsen and the School of Vienna. See Wieacker, supra note 9 at 325.

83. While Hegel’s philosophy of law and state was influential on German public law, it appears to have had little influence on German private law, despite suggestions to the contrary from many French scholars.

84. Ewald, supra note 1 at 2026-40.

85. See Wieacker, supra note 9 at 327-28. Among them were Gans and Puchta. Gans’s considerable influence on German private law is related in Ewald, supra note 1 at 2029.

86. Wieacker remarked in this respect: ‘It seems to be our lot to live with this dichotomy.’ Ibid. at 319.

87. Markesinis, B., The German Law of Obligations (Oxford: Clarendon Press, 1997) at 9 Google Scholar; Wieacker, supra note 9 at 364-65; Marsh, supra note 19 at 14.

88. Kant’s influence over pre-1804 French jurists probably was non-existent, as these jurists likely were unable to read German, and the first French translations of The Critique of Pure Reason and The Metaphysics of Morals were not published until 1835 and 1848 respectively. Ranouil reports (supra note 53 at 54) that it is through the School of Cousin, Victor (Leçons de la philosophie de Kant (1844 Google Scholar)) that Kant’s writings first came to be known in France. As for later French jurists, it seems that few of them ever read Kant, despite their frequent references to his writings. See, e.g., A. Fouillée, supra note 37, Brocher, C., Cours de droit international privé (Paris: Thorin, 1883)Google Scholar and Weiss, A., Traité élémentaire de droit international privé (Paris: Larose & Forcel, 1886)Google Scholar, discussed in Ranouil, supra note 53 at 54ff. As for Hegel, French authors readily concede that he had very little effect on French legal thought.

89. Ewald, supra note 1 at 2086.

90. Also known as the “gute Sitten clause,” §138 prohibits juristic acts that contravene public policy generally, and more specifically those “by which a person exploiting the need, inexperience, lack of sound judgment or substantial lack of will power of another, causes to be promised or granted to himself or to a third party in exchange for a performance, pecuniary advantages which are in obvious disproportion to the performance.”

91. Also known as the “Treu und Glauben clause,” §242 requires that obligations be performed in good faith, “giving consideration to common usage.”

92. Although similar clauses can be found in the French civil code, they are on the whole much narrower in scope and indeed have generated far less judicial activity.

93. Wieacker, supra note 9 at 376.

94. Ibid. at 380.

95. Marsh, supra note 19 at 9.

96. David, R., French law (Baton Rouge , LA: Louisiana State University Press, 1972) at 12.Google Scholar The report of the Vorkommission of 1874, charged with the task of laying down the guidelines for the future codification commission, indeed provides that the new code would ‘correspond to the justified wishes of the German people … if it sticks to the proven common law institutions and axioms of the existing civil law system in Germany.’ Quoted in Marsh, ibid. at 14. The First Commission of 1881 similarly had for mandate to test ‘the private law now in force in Germany for appropriateness, internal consistency, and coherence.’ Wieacker, supra note 9 at 372.

97. Markesinis refers (supra note 87 at 13) to it as ‘the learned man’s code.’ Concerning the French civil code, in contrast, Wieacker reports that Napoleon personally attended 57 of the 107 drafting session, so as to insure that the text could be understood by lay people. For the same reason, the ‘common people’ were invited to comment on Cambacérès’s first code project. Thibaudeau, R, Mémoires, vol. 2 (Paris: Baudouin, 1824) at 148.Google Scholar

98. Marsh, supra note 19 at 11-13.

99. Ibid.

100. The German Basic Law indeed provides that, while judges are bound by law, they are nonetheless authorized to modify or eliminate specific rules. See: art. 20 III of the Basic Law. See generally: Ewald, supra note 1 at 2086-87; Markesinis, supra note 87 at 11.

101. See Watson’s account of the ‘block effect’ of Roman law (supra note 9 at 14-22), which effect was endorsed and magnified at French law. To wit, the very clear line drawn in the French legal system between civil and administrative: Brown, L.N. & Bell, J., French Administrative Law, 4th ed. (London: Butterworths, 1993) at 46.Google Scholar In Germany, in contrast, all contracts, whether involving a public body or not, are litigated in ordinary civil courts. Germany shares with France, however, the institutional feature of a separate constitutional court.

102. On the French civil code being intended as a book for the people, to be kept on one’s bedside table or picked up at the train station, see: van Caenegem, supra note 2 at 46.

103. Portalis, supra note 42.

104. Kötz, H., ‘Scholarship and the Courts: A Comparative Survey’ in Clark, D.S., ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday 183 (Berlin: 1990) at 193–94 Google Scholar; Markesinis, supra note 87 at 609.

105. Nicholas, supra note 48 at 11.

106. See above, text accompanying note 92.

107. In the Commentaries on the BGB, “juristic acts,”of which contracts are one kind, are defined as “private declarations of will, aimed at producing legal effects, which materialize in accordance with the juridical order because they have been willed.” Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich I (Berlin: J. Guttentag, 1888-1896) at 126 (my translation).Google Scholar

108. When Germany formally moved from a Rechtsstaat to a Sozialstaat in 1949, German judges were constitutionally authorized to engage in social engineering consistent with this transition. Moreover, the constitutional provisions to that effect were held to have a ‘tertiary effect’ in private law, and to bind private law judges in their interpretation of the general clauses of the BGB. (‘Lüth decision’ of the German Constitutional Court, Judgment of Jan. 15, 1958, BVerfGE 7, 198.) See generally: Wieacker, supra note 9 at 411, 427-30. Ewald goes as far as suggesting (supra note 1 at 2089) that ‘the sphere of the public and the sphere of the private can no longer be regarded as separate.’ In contrast, article 5 of the French civil code forbids judges from engaging in policy reasoning.

109. For a more thorough analysis of German legal materials on contractual mistake, see my forthcoming article, supra note 3.

110. §§119, 120 BGB.

111. §122(1) BGB.

112. §119(2) BGB.

113. Milsom, S.F.C., Historical Foundations of the Common Law (London: Butterworths, 1981)Google Scholar; Jenks, E., Law and Politics in the Middle Ages, 2nd ed. (London: J. Murray, 1913)Google Scholar; Von Mehren & Gordley, supra note 13 at 11; Zweigert & Kötz, supra note 18 at 189ff; Schlesinger, supra note 16 at 257; Merryman, supra note 9 at 53.

114. See, e.g., Salmond, J.W. & Winfield, P.H., Principles of the Law of Contracts (London: Sweet & Maxwell, 1927)Google Scholar; C. Fifoot, History and Sources of the Common Law (London: Stevens, 1949) and Milsom, ibid.

115. See generally: Caenegem, R.C. van, The Birth of the English Common Law (Cambridge: Cambridge University Press, 1973) at 19–25 Google Scholar; Green, J.A., The Government of England under Henry I (Cambridge: Cambridge University Press, 1986).CrossRefGoogle Scholar

116. Von Mehren & Gordley, supra note 13 at 12.

117. See generally Holdsworth, W.W., A History of English Law, vol. II (London: Sweet & Maxwell, 1903-1972)Google Scholar; J.A. Green, supra note 115 at 51-95.

118. Von Mehren & Gordley, supra note 13 at 12.

119. Zweigert & Kötz, supra note 18 at 192; Milsom, S.F.C., Studies in the History of the Common Law (London: Hambledon Press, 1985) at 11–36 Google Scholar.

120. Pollock, Sir F. & Maitland, F.W., The History of English Law Before the Time of Edward I, vol. I, 2nd ed. (Cambridge: Cambridge University Press, 1968) at 155ffGoogle Scholar.

121. Turner, R.V., Judges, Administrators, and the Common Law in Angevin England (London: Longman, 1994) at 17-34Google Scholar. See generally Potter, H., Historical Introduction to English Law and its Institutions, 4th ed. (London: Sweet & Maxwell, 1958)Google Scholar; Hanbury, H.G., English Courts of Law, 4th ed. (London: Oxford University Press, 1967).Google Scholar

122. E. Jenks, supra note 113 at 36, 38. This is not to say local law disappeared at once. (Fifoot, supra note 114 at 389-98.) ‘At the outset of the seventeenth century local custom and local courts were still an immensely important part of the law administration in England. True, these local institutions were marked for eventual doom, but they had resisted over centuries successive assaults by quo warranto; they were yet a part of the fabric of law and government.’ Goebel, J., ‘King’s Law and Local Custom in Seventeenth Century New England’ (1931) 31 Colum. L. Rev. 416 at 417.CrossRefGoogle Scholar

123. Milsom, supra note 113 at 13.

124. See generally Pollock & Maitland, supra note 120 at 144ff.

125. Pollock & Maitland, ibid. at 150. See generally Maitland, F.W., The Forms of Actions at Common Law (Cambridge: Cambridge University Press, 1936).Google Scholar

126. Maitland’s account of the history of the writ of trespass provides a good example of this process. See Maitland, ibid. at 53ff, 65ff. Writs of right had to be introduced before manorial courts, whereas possessory claims had to be initiated in royal courts. Royal authorities thus proceeded to curb the manorial jurisdiction to its benefit, first, by establishing a right to appeal of manorial decisions to the royal court (van Caenegem, supra note 18 at 6) and, second, by having ‘possessory remedies] [be] allowed or encouraged to reach upwards until it leaves no work for the proprietary writ of right to do’ (Milsom, supra note 119 at 145). In particular, royal officials gradually extended the writ of entry, a possessory writ, ‘to cover almost every event which might divert land from its rightful owner’ (ibid.).

127. Milsom, supra note 113 at 36.

128. Milsom, ibid. at 11.

129. Postema, G., ‘Classical Common Law Jurisprudence (Part I)’ (2002) 2 Ox. U. Commonwealth L.J. 155 at 160-61.Google Scholar

130. Postema, ibid. at 163. ‘[S]ubstantive norms of behaviour and liability were brought into litigation through the jury’s common sense judgments. Juries were not asked primarily to assess the weight of evidence, but rather ‘to speak the truth of their own knowledge’, and to decide the substantive issues shaped by the writes according to common sense (customary) norms.’ Postema, ibid.

131. See generally: Mitnick, J.M., ‘From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror’ (1988) 32 Am. J. Leg. Hist. 201 CrossRefGoogle Scholar; Green, T.A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800 (Chicago, IL: University of Chicago Press, 1985).CrossRefGoogle Scholar

132. Postema, supra note 129 at 163.

133. Kiralfy, A., ‘Custom in Medieaval English Law’ (1988) 9 J. Legal Hist. 26 at 27.CrossRefGoogle Scholar

134. Milsom, supra note 113 at 40-41; Pollock & Maitland, vol. I, supra note 120 at 211. Milsom further reports (ibid. at 44ff) that the Yearbook records of court proceedings suggest that the procedural and administrative flavour of these proceeding was further enhanced following their takeover by the counters.

135. Postema, supra note 129 at 167.

136. Postema, ibid. at 175, quoting Hale, M., ‘Reflections by the Lord Chiefe Justice Hale on Mr Hobbes His Dialogue of the Lawe’ in Holdsworth, W., A History of English Law, vol. 5, 7th ed. (London: Sweet & Maxwell, 1956) at 502-03Google Scholar.

137. Postema, G., ‘Classical Common Law Jurisprudence (Part II)’ (2003) 3 Ox. U. Commonwealth L.J. 1 at 15Google Scholar, quoting Hale, ibid. at 503. ‘The philosopher and theologian are not suited for this task … for it is not an enterprise of discovery, through exercise of abstract reason, of general practical principles, but rather an enterprise of judging particular cases through a grasp of concrete relations and arrangements woven into the fabric of common life.’ Ibid. at 9.

138. Simpson, A.W.B., ‘English Common Law’ in Newman, P., ed., The New Palgrave Dictionary of Economics and the Law, vol. II (London: Macmillan, 1998) 60 at 64Google Scholar.

139. Maine, H.S., Dissertations on Early Law and Custom (New York: Arno Press, 1975) at 389.Google Scholar

140. See Postema’s description of the “artificial reason” of the common law, supra note 129 at 175.

141. Milsom, supra note 119 at 212.

142. See, e.g., J.’s, Devlin comment that ‘[t]he true spirit of the common law is to override theoretical distinctions when they stand in the way of doing practical justice.’ Dissenting in Ingram v. Little [1961] 1 Q.B. 31 (C.A.).Google Scholar

143. Postema, supra note 137 at 6.

144. To wit, the judicial upheaval surrounding the importation, and misinterpretation, of Pothier’ s doctrine: Smith v. Wheatcroft, (1878) 9 Ch. D. 223 Google Scholar, 230, per Fry J.; Lake v. Simmons, [1927] A. C. 487, at 501, per Lord Haldane; Sowler v. Potter, [1940] 1 K. B. 271; Stewart v. Kennedy, (1890) 15 App. Cas. 121. See generally: Marsh, supra note 19 at 2; Simpson, A.W.B., Innovations in Nineteenth Century Contract Law in Legal Theory and Legal History (London: Hambledon Press, 1987)Google Scholar; Cheshire, G.C., ‘Mistake as Affecting Contractual Consent’ (1944) 60 Law Q. Rev. 175, 184Google Scholar; Tylor, , ‘General Theory of Mistake in the Formation of Contract’ (1948) 11 Mod. L. Rev. 257, 265CrossRefGoogle Scholar; Goodhart, A.L, ‘Mistake as to the identity in the law of contracts’ (1941) 57 Law Q. Rev. 228 Google Scholar; Smith, J.C. & Thomas, J.A.C., ‘Pothier and the Three Dots’ (1957) 20 Mod. L Rev. 38.CrossRefGoogle Scholar

145. See generally: Milsom, supra note 119 at 82-96; Newman, R.A., ed., Equity in the World’s Legal Systems (Brussels: Bruylant, 1973) at 139ffGoogle Scholar; Coing, H., ‘English Equity and the Denunciato Evangelica of the Canon Law’ (1955) 71 Law Q. Rev. 223 at 231.Google Scholar

146. Milsom, quoting St. Germain, supra note 119 at 89.

147. Milsom, ibid.

148. Milsom, ibid.

149. Thorne, S.E., Henry de Bracton, 1268-1968 (Exeter: University of Exeter, 1970)Google Scholar; Pollock & Maitland, vol. I, supra note 120 at 207; Nicholas, B., ‘Rules and Terms—Civil Law and Common Law (1974) 48 Tul. L. Rev. 946 Google Scholar; Re, ED., ‘The Roman Contribution to the Common Law’ (1961) 29 Fordham L. Rev. 447 at 479-83Google Scholar; Barton, J., Roman Law in England (Mediolani: Giuffrè, 1971) at 50-53Google Scholar.

150. F. Bacon, Maxims of the Law, quoted in Postema, supra note 137 at 6.

151. ‘[Its aim] never was to establish general principles by way of abstraction (or ‘induction’) from prior cases, but rather to make concrete judgments from a comprehensive grasp of the concrete relations and arrangements woven into the fabric of common life.’ Postema, supra note 129 at 5. See also Nicholas’s description (supra note 48 at 13) of common law reasoning as ‘shunning all abstractions and moving from one pragmatic solution of a problem to the next.’

152. (1871) L.R. 6 Q.B. 597.

153. See generally Shatwell, E.P., ‘The Supposed Doctrine of Mistake in Contract: A Comedy of Errors’ (1955) 53 Can. Bar Rev. 166 Google Scholar; Atiyah, P. & Bennion, A., ‘Mistake in the Construction of Contracts’ (1961) 24 Mod. L. Rev. 421 at 421, 423.CrossRefGoogle Scholar

154. This was recently emphatically confirmed by the Court of Appeal in Great Peace Shipping Ltd. v. Tsavliris [2002] E.W.J. No. 4397.

155. Non est factum cases readily come to mind. See, e.g., Saunders v. Anglia Building Society (Gallie v. Lee) [1971] A.C. 1004 (H.L.).