Friedrich Karl von Savigny
Friedrich Karl von Savigny
The German jurist Friedrich Karl von Savigny (1779-1861) advocated the doctrine of historical continuity, according to which historical rather than natural rights and actual historical facts rather than legal theory were the bases for legal systems.
Friedrich Karl von Savigny was born on Feb. 21, 1779, in Frankfurt am Main, one of 13 children. By the time he reached the age of 13, he had lost all his brothers and sisters and his parents.
In 1795 Savigny entered the University of Marburg, and in 1800 he received his doctor of laws degree. He began a teaching career as privatdozent (unpaid lecturer) the same year. His first major work, Das Recht des Besitzes (1803; The Law of Possession), was well received by other jurists.
In 1804 Savigny married Kunigunde Brentano, the sister of Clemens Brentano, the poet, and the young couple set out on an extended study tour through France and southern Germany to collect legal materials for Savigny's planned work on the history of medieval law. Upon their return in 1808, he accepted a professorship in Roman law at the University of Landshut in Bavaria. Two years later, at the instigation of Wilhelm von Humboldt, who was assembling a faculty at the new University of Berlin, Savigny moved to the Prussian capital as professor of Roman law. He joined the commission for the establishment of the university and organized the law faculty and a Spruch-Collegium as an extraordinary tribunal for the purpose of delivering opinions on cases submitted by lower courts.
In 1814 Savigny issued a protest pamphlet, Vom Berufunserer Zeit für Gesetzgebung and Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence), where he spoke out against the pamphlet by the famous Heidelberg jurist A. F. J. Thibaut entitled On the Necessity of a General Code for Germany (1814). Thibaut had advocated the establishment of a completely new civil and criminal code of German law, pointing out that the presently used chief sources were based on Roman law, "the work of a nation which was very unlike us, and from the period of the lowest decline of the same." Savigny maintained that "law comes into being through custom and popular acceptance, through internal, silently working forces and not through the arbitrariness of a law giver." The historical continuity prevalent in the sources of Roman law was a better foundation for a legal system than the arrogance and shallow philosophy of the so-called "natural law."
In 1815 Savigny, Karl Friedrich Eichhorn, the author of the multivolume History of German Law and Institutions, and the publisher Johann Friedrich Ludwig Göschen founded the Zeitschrift fü r geschichtliche Rechtswissenschaft, which became the organ of the new historical school of jurisprudence. The same year Savigny published the first volume of his monumental Geschichte des römischen Rechts im Mittelalter (6 vols., 1815-1831; History of Roman Law in the Middle Ages). He described the survival of Roman law in western Europe and stimulated at the same time historical writing based on actual source materials.
Between 1817 and 1822 Savigny served on various legal boards. Because of a serious nervous illness he sought relief and recuperation in travel, spending more than a year in Italy, where he completed a number of smaller writings while continuing work on his History of Roman Law. In the late 1830s he undertook another major research project which culminated in the publication of Das System des heutigen römischen Rechts (8 vols., 1840-1849; The System of Contemporary Usage of Roman Law).
In 1842 Savigny's teaching career came to an end when he was appointed Grosskanzler (high chancellor), a position which put him in charge of the Prussian Ministry of Legislation, which was being separated from the administration of justice. The main legal concerns during his tenure dealt with bills of exchange, divorce regulations, and questions of civil and criminal court procedures. He retired from office in 1848. In 1853 he added to his earlier writings on contemporary Roman law with the treatise Das Obligationenrecht (The Law of Obligations). He died on Oct. 25, 1861, in Berlin.
Although Savigny was not the founder of the historical school of jurisprudence, he was its most famous representative. Many of his interpretations were challenged during his lifetime and later, but by reintroducing the juridical methods of Roman law he provided an important impetus for the study of modern law.
There is no full-length biography of Savigny in English. A short but useful introduction to Savigny's work is in G. P. Gooch, History and Historians in the Nineteenth Century (1913). The Thibaut-Savigny controversy is described in A. W. Small, Origins of Sociology (1924), which also deals with other German historians and writers and their impact on the social sciences. □