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Savigny, Friedrich Carl Von

Savigny, Friedrich Carl Von

WORKS BY SAVIGNY

SUPPLEMENTARY BIBLIOGRAPHY

Friedrich Carl von Savigny (1779-1861) was the founder of the older, romantic branch of the German historical school of law. He was born in Frankfurt am Main of an ancient and wealthy noble family from Lorraine, and his selection of an academic career was unusual for a member of his class. He began that career at the University of Marburg in 1800, teaching Roman law, and became professor of Roman law at Landshut in 1808. Two years later, at the suggestion of Wilhelm von Humboldt, he was appointed professor at the newly founded University of Berlin, where for three decades he had a most successful and influential career in legal teaching and research. From 1842 until the German revolution of 1848 he was Prussian minister for the revision of legislation.

In the academic year 1802/1803, Savigny gave a lecture on legal methodology at Marburg (see Juristische Methodenlehre), which shows him still poised between rationalistic and historical jurisprudence. (His student Jacob Grimm recorded this lecture.) However, the lecture contains some of the basic principles of his later doctrine, for example, that jurisprudence must be empirical and that it should be a synthesis of historical and systematic treatments of the law. He first applied these early theories in Das Recht des Besitzes (see 1803), a treatise that immediately established his reputation as one of the leading professors of civil law. What contemporary legal scholars saw as the particular significance of the treatise was the way Savigny took from the sources of ancient Roman law the leading principles of the law of possession, demonstrating the superiority of the Roman principles over the modifications that this law had undergone in Continental jurisprudence since the Middle Ages.

Savigny’s famous pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814) was published as an argument against the popular demand for the codification of German civil law on the model of the French and the Austrian codes. The pamphlet established the doctrine and program of the early historical school of law. In this pamphlet, as well as in his introductory essay (1815) to the first volume of the Zeitschrift für geschichtliche Rechtswissenschaft, founded as the organ of the school in 1815, Savigny outlined a new theory of the creation of law, culminating in a strictly genetic conception and analysis of law. Taking off from the ideas of Montesquieu, Burke, and Justus Möser, he asserted that positive law is not a product of reason. From its true basis, the common beliefs of a particular nation, it develops in a continuous, “organic” process as do a nation’s language and customs; it is the result of silent, anonymous, and irrational forces, of an implicit consensus, not of an intentional creative effort. Law is, therefore, of the same nature as custom; it is determined by the whole past of the nation and by its peculiar character (what was later called the Volksgeist), and it cannot be changed arbitrarily by legislation. Instead, Savigny advocated the reform of jurisprudence by means of historical research, holding that a strictly genetic study is the only way to conceive and develop contemporary positive law.

While some of Savigny’s contemporaries (Thibaut, P. J. A. von Feuerbach, Gönner, and especially Hegel and his school) rejected his doctrine, the historical school of jurisprudence dominated German universities for nearly half a century. Its program of historical research, though neither wholly nor rigorously fulfilled, made the history of law a scientific discipline, by basing it on the idea of evolution. Savigny’s own chief contribution in this field was his Geschichte des römischen Rechts im Mittelalter (1815-1831), which deals with the history of the sources, the literature, and the teaching of Roman law from the fifth through the fifteenth centuries. It initiated the modern study of medieval jurisprudence and has served ever since, corrected in many respects but unequaled, as the standard work on the history of medieval jurisprudence in Europe. Savigny also wrote a number of historical monographs, mainly on ancient Roman law (collected in his Vermischte Schriften).

In the field of legal dogmatics, Savigny’s doctrine re-created, by reviving the study of ancient Roman law, a common field of legal study in the individual German states the “modern Roman law,” or Pandects. His most important dogmatic works, System des heutigen römischen Rechts (1840-1849) and Das Obligationenrecht als Theil des heutigen römischen Rechts (1851-1853), show that the theories that he had put forward in 1814 and 1815 about the nature of law had not produced a radical change even in his own legal dogmatics. His early theories had been provoked by his reaction, influenced by romanticism, against the natural law theories of the French Revolution and of liberalism generally. Later, however, he not only retained the fundamental doctrines of the rationalist jurisprudence of the eighteenth century in his dogmatic teaching but actually made these doctrines the backbone of his legal system. Both of Savigny’s works are based on fundamental notions of German natural law theory as well as on Kant’s legal philosophy. Within the framework of these categories, Savigny transcended Roman law in many respects, adapting it to modern requirements or developing new solutions, many of which have become influential in German and other legal science; for example, his doctrines of contract and corporation, and particularly his system of private international law—which, like the systems of Story and Mancini, counts among the classic theories in this branch of law.

Walter Wilhelm

[For the historical context of Savigny’s work, seeConflict of laws; Jurisprudence; Legal systems, article oncode law systems; and the biographies ofBurke; Montesquieu.]

WORKS BY SAVIGNY

(1803) 1848 Von Savigny’s Treatise on Possession: Or, the Jus Possessionis of the Civil Law. 6th ed. London: Sweet. → First published as Das Recht des Besitzes. A 7th German edition, enlarged and revised, was published in 1865 by Heyer.

(1814) 1840 Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. Heidelberg: Mohr. → Translated from the 2d edition by A. Hayward and pub- lished by Littlewood in 1831 as Of the Vocation of Our Age for Legislation and Jurisprudence.

(1815) 1850 Ueber den Zweck der Zeitschrift für geschichtliche Rechtswissenschaft. Volume 1,-pages 105-126 in Friedrich Carl von Savigny, Vermischte Schriften. Berlin: Veit. → First published in Volume 1 of Zeitschrift für geschichtliche Rechtswissenschaft.

(1815-1831) 1834-1851 Geschichte des römischen Rechts im Mittelalter. 7 vols. Heidelberg: Mohr. → Volume 1 was translated by E. Cathcart and published by Black in 1829 as The History of the Roman Law in the Middle Ages.

1840-1849 System des heutigen römischen Rechts. 8 vols. Berlin: Veit. → Volume 1 was translated in 1867 by William Holloway as System of the Modern Roman Law, published in Madras, India, by Higginbotham. An index volume, edited by O. L. Heuser, was published in 1851.

1851-1853 Das Obligationenrecht als Theil des heutigen römischen Rechts. 2 vols. Berlin: Veit.

Juristische Methodenlehre, nach der Ausarbeitung des Jakob Grimm. Edited by Gerhard Wesenberg. Stuttgart: Koehler, 1951. → Published posthumously.

Vermischte Schriften. 5 vols. Berlin: Veit, 1850. → Contains works first published between 1800 and 1844.

SUPPLEMENTARY BIBLIOGRAPHY

GagnÉr, Sten 1960 Studien zur Ideengeschichte der Gesetzgebung. Uppsala, Universitet, Acta universitatis upsaliensis, Studia iuridica upsaliensia, No. 1. Stockholm: Almqvist & Wiksell. → See especially pages 15-51.

Gutzwiller, Max 1923 Der Einfluss Savignys auf die Entwicklung des Internationalprivatrechts. Collectanea friburgensia, Vol. 28. Fribourg (Switzerland): Universitäts Buchhandlung.

Kantorowicz, Hermann 1912 Was ist uns Savigny? Berlin: Heymann.

Kantorowicz, Hermann 1934 Savigny, Friedrich Carl von. Volume 13, pages 546-548 in Encyclopaedia of the Social Sciences. New York: Macmillan.

Kantorowicz, Hermann 1937 Savigny and the Historical School of Law. Law Quarterly Review 53:326-343.

Koschaker, Paul (1947) 1966 Europa und das römische Recht. 4th ed. Munich: Beck.

Kunkel, Wolfgang 1962 Savignys Bedeutung für die deutsche Rechtswissenschaft und das deutsche Recht. Juristenzeitung 17:457-463.

Stintzing, Roderick Von; and Landsberg, Ernst (1910) 1957 Geschichte der deutschen Rechtswissenschaft. Volume 3, part 2: Das 19. Jahrhundert, der Historismus in der Rechtswissenschaft. Aalen (Germany): Scientia Antiquariat. → See especially pages 186-253 of the text section, and pages 94-110 of the notes.

Stoll, Adolf 1927-1939 Friedrich Karl v. Savigny: Ein Bild seines Lebens mit einer Sammlung seiner Briefe. 3 vols. Berlin: Heymann.

Wieacker, Franz 1956 Friedrich Carl von Savigny. Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Romanistische Abteilung 72:1-38. → Reprinted on pages 107-143 in Franz Wieacker, Gründer und Bewahrer: Rechtslehrer der neueren deutschen Privatrechtsgeschichte, published by Vandenhoeck and Ruprecht, 1959.

Wolf, Erik (1939) 1963 Grosse Rechtsdenker der deutschen Geistesgeschichte. 4th ed. Tubingen (Germany): Mohr. → See especially pages 467-542.

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