Friedrich Karl von Savigny

German jurist and legal scholar

• Born: February 21, 1779
• Birthplace: Frankfurt am Main (now in Germany)
• Died: October 25, 1861
• Place of death: Berlin, Prussia (now in Germany)

Savigny was a leading historian of Roman law. In the field of legal philosophy, he is considered generally to be either the founder or the leading exponent of the so-called historical or Romantic school of jurisprudence, which means that the content of a given body of law can only be understood through a process of historical research.

Early Life

Thin, with thick dark hair and a kind and generous face, Friedrich Karl von Savigny (SAHV-ihn-yee) was descended from a wealthy Protestant noble family that had emigrated from Lorraine to Frankfurt. Their family name came from the castle of Savigny near Charmes in the Moselle valley.

Savigny was educated at the Universities of Göttingen, Jena, Leipzig, Halle, and Marburg; at Marburg, he studied under Philipp Friedrich Weiss, a specialist in medieval jurisprudence, and Anton Bauer, whose reputation was gained in activities keyed toward the reform of German criminal law. Receiving his degree in 1800, Savigny determined to spend his life in scholarly pursuits. Personally wealthy, he was probably the first of the ruling classes to take up teaching as a career, a field that, because of its low pay and accordingly poor social standing, had hitherto largely drawn its members from the lower-middle classes.

As privatdocent at Marburg, where Savigny lectured in criminal law and on the Pandects of the Roman law, he published Das Recht des Besitzes (1803; Treatise on Possession: Or, The Jus Possessionis of the Civil Law , 6th ed. 1848), which he allegedly wrote in seven months and which gained for him offers of two chairs, one at Greifswald and one at Heidelberg. Savigny also published in 1803 a brief article in a short-lived English periodical, The Monthly Register, in which, after an assessment of German universities at that time, he declared that only four of almost forty universities in Germany were of more than local importance. In 1804 Savigny married Kunigunde Brentano, so he declined both university offers in favor of a honeymoon that included searching the libraries of France and Germany for manuscripts that would aid him in writing a proposed history of Roman law in the Middle Ages.

Savigny did, however, advise the government of Baden, one of the many independent German states, on the reorganization of the University of Heidelberg, which helped to make Heidelberg one of the important seats of learning in Europe. In 1808, Savigny went to the University of Landshut in Bavaria as professor of Roman law, and, in 1810, he not only took a significant share in the foundation of the University of Berlin but also was the first to be elected rector, or vice chancellor. He helped to organize the university on lines similar to those employed at Heidelberg, but with perhaps greater success. Savigny remained at the University of Berlin until March of 1842.

Life’s Work

In 1817, Savigny became a member of the Department of Justice in the Prussian Privy Council and, in that same year, a member of a commission for organizing the Prussian provincial estates. In 1819, he became a member of the Berlin Court of Appeal and Cassation for the Rhine Provinces, in 1826 a member of the commission for revising the Prussian code, and in 1842 chairman of the newly established department for revision of statutes. In 1842, he was also appointed Grosskanzler (high chancellor), or head, of the juridical system in Prussia, a post he held until the revolutions of 1848, after which he devoted himself to his writing and research, holding no more government positions.

In 1806, Napoleon I promulgated the Code Napoleon IIII26IIII , which provided a uniform body of rules for the French nation; many Germans looked upon this code enviously as an example of what should and could be done for the German people. In 1814, a professor of civil law at the University of Heidelberg, Anton Friedrich Justus Thibaut, wrote an article arguing that the law of the German people be codified both as a means of unifying the German states and as a means of applying a universally held logic or rule of reason to the law.

Savigny objected strenuously in his famous pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814; Of the Vocation of Our Age for Legislation and Jurisprudence , 1831), theorizing that law, like language, arises out of the customs, traditions, needs, and spirit of a particular people or community (Volkgeist) and that law cannot be imposed on a people or community arbitrarily. Something that is logical and reasonable for the French or English mind may be entirely illogical for the German. Rather than arbitrarily impose a mass of legislation upon a people, one must research the particular history of that people to determine the law that suits it best.

This exaltation of customary law, as distinguished from law as a universal rule of reason, was derived from the worldview of the Romantics. It proved, whether intended so by Savigny, to be not only the glorification of things German but also a recognition of distinctions between one German state and another. Furthermore, this concept of Savigny argued against the codification of the law of any particular people at any particular time, because, according to Savigny, the law, wherever located, was always in the process of evolving and neither could nor should reach a point where codification was possible. In 1815, with Karl Friedrich Eichorn and Johann Friedrich Ludwig Göschen, he founded the Zeitschrift für geschichtliche Rechtswissenschaft (journal of historical jurisprudence), a periodical voicing the ideas of the historical school.

Savigny’s theories, therefore, were the heart of the Romantic branch of the historical school of jurisprudence, which tended to dominate the German universities until his death and which were powerful enough to delay until 1900 the codification of German law—well after German unification in 1871. Nevertheless, despite Savigny’s emphasis on the historical approach, he was not an advocate of natural law. In his Juristische Methodenlehre, nach der Ausarbeitung des Jakob Grimm (wr. 1802-1803, pb. 1951; legal methodology as elaborated by Jakob Grimm), delivered as a lecture at Marburg, Savigny voiced the view that the historical approach should be systematic, so that the result contributes to a clearly defined system of legal science.

A second aspect of Savigny’s work dealt with the study and research of Roman law. His Geschichte des römischen Rechts im Mittelalter (1815-1831, 1834-1851; partial translation as The History of Roman Law During the Middle Ages , 1829) remains the definitive work on the subject. Although Roman law, which he admired, had been codified, Savigny tried to demonstrate that, despite the codifications, Roman law was actually administered as customary law, bringing it into conformity with the historical school of thought.

Apart from this, Savigny’s scholarship eliminated much of the incongruity that had clouded the understanding of Roman law during the period from the fall of the Roman Empire until 1100 c.e.System des heutigen römischen Rechts (1840-1849) presents in its eighth volume Savigny’s theories of private international law and the first modern systematic presentation of this phase of the law. The eighth volume also shows that Savigny was acquainted with the work of Joseph Story, an associate justice of the U.S. Supreme Court. In 1850, Savigny published Vermischte Schriften (miscellaneous writings), a collection of various pieces on the law. Das Obligationenrecht (1851-1853; the law of contracts), which is a furtherance of System des heutigen römischen Rechts, emphasizes freedom of contract, which proved of great use after the unification of Germany in the rise of industrial capitalism prior to World War I.

Although Savigny opposed a codification of German law, he nevertheless approved the application of the Roman law code to Germany, avoiding this contradiction by stating that Roman law during the Middle Ages had been so generally applied to and used by the German people that it had become in many respects part of the German customary law and thereby reflective of the German Volkgeist. Savigny’s thinking is weak in that codification is not necessarily an imposition of arbitrary law upon an unwilling people; it may be a mere memorial of a people’s customary law, and codification may thus be a plateau in the natural evolution of a people’s customary law. Further, as Julius Stone has noted, the Volkgeist doctrine

probably exaggerated the role in legal development of popular consciousness as distinct from the consciousness of small groups, either of specialists or of a dominant class… [and] the element of conscious attitudes… which lies behind a people’s relation with its law.

Significance

Friedrich Karl von Savigny’s contribution to law lies in his objection to codifications and in his scholarship in Roman law. He connected these two aspects of his work by maintaining that there had never really been a codification of Roman law but merely a development of customary law by an evolutionary process natural to the Roman people and the Roman Empire. This spirit of nationhood in the law was contrary to the nineteenth century efforts of the codifiers to press upon the German people an arbitrary set of laws unnatural to it.

At the time of his writing, Savigny was popular; those who wanted greater democracy were delighted with the concept that the people and not the nobility were the real makers of the law, and the nobility or aristocracy was happy to have found a way to avoid needed reforms. In the end, the results were not entirely salutary, for Savigny’s emphasis on the Volkgeist tended to strengthen the concept of German mysticism, to glorify the superiority of German law, to stifle reforms, to inhibit the development of a badly needed code for a unified people, and perhaps even to set another stone in the edifice of corrupt nationalism. Savigny’s major contribution to the law, it would appear, remains his scholarly work in laying open the field of Roman law, his insistence that the practice and theory of jurisprudence must be one and the same, his recognition of the evolutionary process in law, and his elevation of the profession of teaching and scholarship.

Bibliography

Allgemeine Deutsche Biographie. Leipzig, Germany: Duncker and Humblot, 1875-1912. The article on Savigny, in this fifty-six-volume biography of prominent Germans, presents a clear and sometimes provocative presentation of Savigny’s life and doctrines. In German.

Jones, J. Walter. Historical Introduction to the Theory of Law. Reprint. New York: A. M. Kelley, 1969. Chapter 2 discusses the legal codes in France and Germany, Thibaut, and Savigny’s criticism of the codes, together with excellent material on the pros and cons of the historical school of legal thought. The concepts of other legal historians of the period are brought to bear upon the historical school so that the reader obtains a fair view of the thinking on the subject during the nineteenth century.

Kantorowicz, Hermann U. “Savigny and the Historical School of Law.” Law Quarterly Review 53 (July, 1937): 326-343. Presents some of the facts of Savigny’s life but largely deals with the meaning of the historical school. Kantorowicz believes that it is Savigny’s scholarship and research in Roman law that constitute his real contribution to legal science. The article, however, is difficult reading for the layperson.

Montmorency, James E. G. de. “Friedrich Karl von Savigny.” In Great Jurists of the World, edited by John Macdonell and Edward Manson. Vol. 2. Boston: Little, Brown, 1914. Contains biographies of great jurists from Gaius through Rudolph von Ihering. In the selection on Savigny, Montmorency gives a general picture of Savigny’s concepts of the historical school of law. Montmorency does not discuss the essential contradiction between Savigny’s glorification of the evolutionary law of a particular people and his desire to impress Roman law upon the Germans, a point that is well discussed in the work by Stone, cited below.

Stone, Julius. The Province and Function of Law. Sydney, N.S.W.: Associated General, 1946. Chapter 18 is probably the best brief study of Savigny’s ideas. Concisely presents Savigny’s opposition to a code for Germany and gives a fine overview of his work in the Roman law of the Middle Ages in Europe and as applied to Europe in his own time. Also treats the essential conflict between Savigny’s insistence on an evolutionary customary law, his demand for an acceptance of the codified Roman law, and his attempt to resolve the conflict.

Ziolkowski, Theodore. Clio the Romantic Muse: Historicizing the Faculties in Germany. Ithaca, N.Y.: Cornell University Press, 2004. Examines how a sense of history permeated German thought from 1790 to 1810, influencing the disciplines of law, philosophy, theology, and medicine. Includes biographical information on German scholars whose work exemplified this Romantic historicism, including chapters on Savigny and the historical school of law and the codification controversy.