Charlotte Johann explores the relationship between law and history articulated in a fierce debate between two of the most prominent legal scholars of nineteenth-century Germany: Friedrich Carl von Savigny, the leading exponent of historical jurisprudence, and Eduard Gans, the foremost advocate of Hegelian legal philosophy. Situating their confrontation in the aftermath of the Napoleonic occupation of German Europe, the chapter argues that the two thinkers used concepts of history to counter the rupturing effects of revolution and empire on the German legal system, albeit in radically different ways. Savigny proposed to re-build the German legal system based on the hermeneutically rigorous academic study of pre-revolutionary legal orders, especially classical Roman Law. Gans, by contrast, defended the primacy of legislation as a vehicle of legal continuity by grounding it in an origin story of the modern state. Johann challenges interpretations of the debate as simply a clash between liberal and conservative versions of law’s history. Rather, she suggests that the issue at stake was whether, or to what extent, politics and law share the same temporality – an issue that continues to preoccupy legal theorists and historians alike.

Chapter two deals with the impossibility to account for the rise of a rule of customary law. I was once more confronted with this problem when I read the ILC Report on the identification of rules of customary law. The report contains a courageous attempt to develop a methodology to identify such rules in an objective way. However, along the way, many of the age-old problems regarding the existence and rise of rules of customary law reappear. The impossibility of grounding a method for customary law, I argue, has to do with the repetitive nature of this body of law. Rules of customary law only exist in and through restatements that present them as already valid. To get a better grasp of the kind of repetitive logic that drives customary law, I compare it to the logic of repetition at work in Beckett’s Waiting for Godot. In both cases, what is essential is and must remain absent; it is nevertheless made operative through acts of repetition and representations. Yet, customary law is also radically different as it employs what Kierkegaard called "repetition forward," a form of repetition that comes with change and transformation over time.