|Friedrich Karl von Savigny|
Friedrich Karl von Savigny, the founder of historical jurisprudence, was born in Frankfurt, Germany, into a family that had moved there from Lorraine. Left an orphan at thirteen, Savigny was brought up by a friend who educated him in ways that recall the experience of young John Stuart Mill. At seventeen Savigny entered the University of Marburg; after studying at other universities, he returned to Marburg for his doctor’s degree in 1800 and began a long, influential, and distinguished teaching career.
At the age of twenty-four he published Das Recht des Besitzes (The Right of Possession; Giessen, 1804), and in the following year he began to tour libraries in search of manuscripts for his historical work. In 1810 he accepted a teaching post at the newly founded University of Berlin, which he helped organize and where he became rector.
Friedrich Karl von Savigny did much to raise the standards of German universities and to help them achieve a dominant position in the world of scholarship. While teaching, writing, and assisting in the administration of the university until 1842, he also performed judicial tasks, and from 1842 to 1848 he was chancellor of Prussia.
|John Stuart Mill|
In his stress on continuity and tradition Savigny may have been influenced by Edmund Burke, and in his understanding of the methods and aims of historical research he may have been influenced by Barthold Georg Niebuhr, who also took part in the founding of the University of Berlin and was an admirer of Roman institutions.
Savigny’s two magna opera were the Geschichte des römischen Rechts in Mittelalter (7 vols., Heidelberg, 1815–1834) and the System des heutigen römischen Rechts (8 vols., Berlin, 1840–1849). In 1850 his miscellaneous writings, Vermischte Schriften, were published at Berlin in five volumes, and in 1851 and 1853 his two-volume work Das Obligationenrecht als heute römischen Rechts was published. He was cofounder, in 1815, of the Zeitschrift für geschichtlichen Rechtswissenschaft.
His massive work on Roman law in the Middle Ages became the source of subjects for countless historical monographs. His students, and their students in turn, dominated historical and legal scholarship and teaching for several generations, and he was universally acknowledged as one of the most influential thinkers and scholars of the nineteenth century.
The main thrust of Savigny’s jurisprudential thought, however, is not found in his monumental historical treatises but in a polemical tract published at Tübingen in 1814, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. This pamphlet was in rebuttal to A. F. J. Thibaut’s Civilistische Abhandlungen, in which a plan for a single code of laws for all German states was urged.
Friedrich Karl von Savigny argued that law has no abstract origin in nature or mind but is organically connected with the people of a nation and is an expression of its Volksgeist, or collective genius. Fundamentally, law is formed by custom and popular faith, “by internal, silently operating powers, not by the arbitrary will of a lawgiver.” The “real law” is always “the proper will of the people.” Like language and manners, law has movement and development; it grows with a people and dies with it.
In earliest historical times, Friedrich Karl von Savigny claimed, law was no more separable from a people than was its language or its manners. Rights and duties were created and extinguished by symbolic acts, which were the “true grammar” of law in this period. As social existence became more complex and sophisticated, law came to be expressed in abstract forms; jurists became a professional class, and law perfected its language and took a scientific direction.
|Roman law in the Middle Ages|
Instead of existing in the consciousness of the people, it now existed in the consciousness of the jurists, who became the representatives of the community, the voice of its Volksgeist. Now the law had a twofold existence: the “political” element, or the connection of the law with the general existence of the people, and the “technical” element, or the abstract and scientific existence of the law.
From this it follows that the jurist needs a twofold spirit: the historical sense, with which to seize “the peculiarities of every age and every form of law,” and the systematic sense, with which to see “every notion and every rule in lively connection and cooperation with the whole” legal order.
Through these senses the jurist will acquire mastery over a body of law, obtain for that law a thorough grounding in history, and discover its organic principle. He will be able to separate that which still has life from that which is lifeless “and only belongs to history,” and in this way he will arrive at a truly national law—a “living customary law.”
Friedrich Karl von Savigny’s views contributed in varying degrees to a number of significant results:
- They helped bring to an end the dominant natural law philosophy that looked to pure reason as the source of law.
- They delayed the movement for codified legal systems that had started with the Napoleonic codes.
- They established the historical school of jurisprudence.
- They laid the basis for the sociological school of legal thought.
- They retarded the development and acceptance of legislation as a source of law.
- They contributed to an exaggerated stress on nationalism and to a disparagement of the idea of a common law of humankind as an expression of Menschengeist.