Friedrich Carl von Savigny
Encyclopedia
Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was one of the most respected and influential 19th-century jurist
s and historians
.
, of a family recorded in the history of Lorraine
, deriving its name from the castle of Savigny near Charmes
in the valley of the Moselle
. Left an orphan at the age of 13, Savigny was brought up by a guardian until, in 1795, he entered the University of Marburg, where, though in poor health, he studied under Professors Anton Bauer and Philipp Friedrich Weiss, the former one of the most conspicuous pioneers in the reform of the German criminal law, the latter distinguished for his knowledge of medieval jurisprudence. After the fashion of German students, Savigny visited several universities, notably Jena, Leipzig
and Halle; and returning to Marburg, took his doctor's degree in 1800. At Marburg he lectured as Privatdozent
on criminal law and the Pandects
.
was at an end. It quickly obtained a European reputation, and still remains a prominent landmark in the history of jurisprudence. In 1804 Savigny married Kunigunde Brentano, the sister of Bettina von Arnim
and Clemens Brentano
the poet, and the same year started on an extensive tour through France and south Germany in search of fresh sources of Roman law. In this quest, particularly in Paris, he was successful.
In 1808 he was appointed by the Bavaria
n government ordinary professor of Roman law at Landshut
, where he remained a year and a half. In 1810 he was called, chiefly at the instance of Wilhelm von Humboldt
, to fill the chair of Roman law at the new University of Berlin
. Here one of his services was to create, in connection with the faculty of law, a "Spruch-Collegium", an extraordinary tribunal competent to deliver opinions on cases remitted to it by the ordinary courts; and he took an active part in its labours. This was the busiest time of his life. He was engaged in lecturing, in the government of the university (of which he was the third rector), and as tutor to the crown prince in Roman, criminal and Prussian law. An important consequence of his residence in Berlin was his friendship with Niebuhr
and Eichhorn
. In 1814 appeared his pamphlet (new edition, 1892). It was a protest against the demand for codification, and was intended as a reply to Thibaut's pamphlet urging the necessity of forming a code for Germany which should be independent of the influence of foreign legal systems. In this famous pamphlet Savigny did not oppose the introduction of new laws, or even a new system of laws, but only objected to the proposed codification on two grounds:
The enduring value of this pamphlet is that it saved jurisprudence from the hollow abstractions of such a work as the of Christian Wolff
, and proved that a historical study of the positive law was a condition precedent to the right understanding of the science of all law.
In 1815 Savigny founded, with Karl Friedrich Eichhorn
, and Johann Friedrich Ludwig Göschen, the ("Journal of historical legal studies"), the organ of the new historical school
, of which he was the representative. In this periodical (vol. iii. p. 129 seq.) Savigny made known to the world the discovery at Verona, by Niebuhr
, of the lost text of Gaius
, pronouncing it, on the evidence of that portion of the manuscript submitted to him, to be the work of Gaius himself and not, as Niebuhr suggested, of Ulpian
.
The record of the remainder of Savigny's life consists of little else than a list of the merited honours which he received at the hands of his sovereign, and of the works which he published with indefatigable activity. In 1815 appeared the first volume of his ("History of Roman Law in the Middle Ages"), the last of which was not published until 1831. This work, to which his early instructor Weiss had first prompted him, was originally intended to be a literary history of Roman law from Irnerius
to the present time. His design was in some respect narrowed; in others it was widened. He did not continue the narrative beyond the 16th century, when the separation of nationalities disturbed the foundations of the science of law.
His treatment of the subject was not merely that of a bibliographer; it was philosophical. It revealed the history of Roman law, from the breaking up of the empire until the beginning of the 12th century, and showed how, though considered dead, the Roman law lived on in local customs, in towns, in ecclesiastical doctrines and school teachings, until it blossomed out once more in full splendour in Bologna
and other Italian cities. This history was the parent of many valuable works in which Savigny published the result of his investigations. In 1817 he was appointed a member of the commission for organizing the Prussia
n provincial estates, and also a member of the department of justice in the ("State council"), and in 1819 he became a member of the supreme court of appeal for the Rhine Provinces. In 1820 be was made a member of the commission for revising the Prussian code.
In 1822 a serious nervous illness attacked him, and compelled him to seek relief in travel. In 1835 he began his elaborate work on contemporary Roman law, (8 vols., 1840–1849). His activity as professor ceased in March 1842, when he was appointed "" (High Chancellor), the title given by Frederick the Great
in 1746 to the official at the head of the juridical system in Prussia, as in this position he carried out several important law reforms in regard to bills of exchange and divorce. He held the office until 1848, when he resigned, not altogether to the regret of his friends, who had seen his energies withdrawn from jurisprudence without being able to flatter themselves that he was a great statesman.
In 1850, on the occasion of the jubilee of his obtaining his doctor's degree, appeared in five volumes his Vermischte Schriften, consisting of a collection of his minor works published between 1800 and 1844. This event gave rise to much enthusiasm throughout Germany in honour of "the great master" and founder of modern jurisprudence. In 1853 he published his treatise on Contracts (), a supplement to his work on modern Roman law, in which he clearly demonstrates the necessity for the historical treatment of law. Savigny died at Berlin. His son, Karl Friedrich von Savigny
(1814–1875), was Prussian minister of foreign affairs in 1849. He represented Prussia in important diplomatic transactions, especially in 1866.
, though he cannot claim to be regarded as its founder, an honour which belongs to Gustav Hugo
. In the history of jurisprudence Savigny's great works are the Recht des Besitzes and the Beruf unserer Zeit für Gesetzgebung above referred to. The former marks an epoch in jurisprudence. Professor Jhering
said: "With the Recht des Besitzes the juridical method of the Romans was regained, and modern jurisprudence born." It marked a great advance both in results and method, and rendered obsolete a large body of literature. Savigny sought to prove that in Roman law possession had always reference to "usucapion" or to "interdicts"; that there is not a right to continuance in possession but only to immunity from interference; possession being based on the consciousness of unlimited power.
These and other propositions were maintained with great acuteness and unequalled ingenuity in interpreting and harmonizing the Roman jurists. The controversy which was carried on in Germany by Jhering
, Baron, Gans
and Bruns shows that many of Savigny's conclusions were not accepted. The Beruf unserer Zeit, in addition to the more specific object the treatise had in view, which has been already treated, expresses the idea, unfamiliar in 1814, that law is part and parcel of national life, and combats the notion, too much assumed by French jurists, especially in the 18th century, and countenanced in practice by Bentham, that law might be arbitrarily imposed on a country irrespective of its state of civilization and past history. Of even greater value than his services in consolidating "the historical school of jurisprudence" is the emphatic recognition in his works of the fact that the practice and theory of jurisprudence
cannot be divorced without injury to both.
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
s and historians
History of Germany
The concept of Germany as a distinct region in central Europe can be traced to Roman commander Julius Caesar, who referred to the unconquered area east of the Rhine as Germania, thus distinguishing it from Gaul , which he had conquered. The victory of the Germanic tribes in the Battle of the...
.
Early life and education
He was born at FrankfurtFrankfurt
Frankfurt am Main , commonly known simply as Frankfurt, is the largest city in the German state of Hesse and the fifth-largest city in Germany, with a 2010 population of 688,249. The urban area had an estimated population of 2,300,000 in 2010...
, of a family recorded in the history of Lorraine
Lorraine (province)
The Duchy of Upper Lorraine was an historical duchy roughly corresponding with the present-day northeastern Lorraine region of France, including parts of modern Luxembourg and Germany. The main cities were Metz, Verdun, and the historic capital Nancy....
, deriving its name from the castle of Savigny near Charmes
Charmes-la-Côte
Charmes-la-Côte is a commune in the Meurthe-et-Moselle department in north-eastern France.-See also:*Communes of the Meurthe-et-Moselle department...
in the valley of the Moselle
Moselle
Moselle is a department in the east of France named after the river Moselle.- History :Moselle is one of the original 83 departments created during the French Revolution on March 4, 1790...
. Left an orphan at the age of 13, Savigny was brought up by a guardian until, in 1795, he entered the University of Marburg, where, though in poor health, he studied under Professors Anton Bauer and Philipp Friedrich Weiss, the former one of the most conspicuous pioneers in the reform of the German criminal law, the latter distinguished for his knowledge of medieval jurisprudence. After the fashion of German students, Savigny visited several universities, notably Jena, Leipzig
University of Leipzig
The University of Leipzig , located in Leipzig in the Free State of Saxony, Germany, is one of the oldest universities in the world and the second-oldest university in Germany...
and Halle; and returning to Marburg, took his doctor's degree in 1800. At Marburg he lectured as Privatdozent
Privatdozent
Privatdozent or Private lecturer is a title conferred in some European university systems, especially in German-speaking countries, for someone who pursues an academic career and holds all formal qualifications to become a tenured university professor...
on criminal law and the Pandects
Pandects
The Digest, also known as the Pandects , is a name given to a compendium or digest of Roman law compiled by order of the emperor Justinian I in the 6th century .The Digest was one part of the Corpus Juris Civilis, the body of civil law issued under Justinian I...
.
Work
In 1803 he published his famous treatise, Das Recht des Besitzes ("The law of possession"). It was at once hailed by the great jurist Thibaut as a masterpiece; and the old uncritical study of Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
was at an end. It quickly obtained a European reputation, and still remains a prominent landmark in the history of jurisprudence. In 1804 Savigny married Kunigunde Brentano, the sister of Bettina von Arnim
Bettina von Arnim
Bettina von Arnim , born Elisabeth Catharina Ludovica Magdalena Brentano, was a German writer and novelist....
and Clemens Brentano
Clemens Brentano
Clemens Brentano, or Klemens Brentano was a German poet and novelist.-Overview:He was born in Ehrenbreitstein, near Koblenz, Germany. His sister was Bettina von Arnim, Goethe's correspondent. His father's family was of Italian descent. He studied in Halle and Jena, afterwards residing at...
the poet, and the same year started on an extensive tour through France and south Germany in search of fresh sources of Roman law. In this quest, particularly in Paris, he was successful.
In 1808 he was appointed by the Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
n government ordinary professor of Roman law at Landshut
Landshut
Landshut is a city in Bavaria in the south-east of Germany, belonging to both Eastern and Southern Bavaria. Situated on the banks of the River Isar, Landshut is the capital of Lower Bavaria, one of the seven administrative regions of the Free State of Bavaria. It is also the seat of the...
, where he remained a year and a half. In 1810 he was called, chiefly at the instance of Wilhelm von Humboldt
Wilhelm von Humboldt
Friedrich Wilhelm Christian Karl Ferdinand Freiherr von Humboldt was a German philosopher, government functionary, diplomat, and founder of Humboldt Universität. He is especially remembered as a linguist who made important contributions to the philosophy of language and to the theory and practice...
, to fill the chair of Roman law at the new University of Berlin
Humboldt University of Berlin
The Humboldt University of Berlin is Berlin's oldest university, founded in 1810 as the University of Berlin by the liberal Prussian educational reformer and linguist Wilhelm von Humboldt, whose university model has strongly influenced other European and Western universities...
. Here one of his services was to create, in connection with the faculty of law, a "Spruch-Collegium", an extraordinary tribunal competent to deliver opinions on cases remitted to it by the ordinary courts; and he took an active part in its labours. This was the busiest time of his life. He was engaged in lecturing, in the government of the university (of which he was the third rector), and as tutor to the crown prince in Roman, criminal and Prussian law. An important consequence of his residence in Berlin was his friendship with Niebuhr
Barthold Georg Niebuhr
Barthold Georg Niebuhr was a Danish-German statesman and historian who became Germany's leading historian of Ancient Rome and a founding father of modern scholarly historiography. Classical Rome caught the admiration of German thinkers...
and Eichhorn
Karl Friedrich Eichhorn
Karl Friedrich Eichhorn was a German jurist.Eichhorn was born in Jena as the son of Johann Gottfried Eichhorn. He entered the University of Göttingen in 1797. In 1805 he obtained the professorship of law at Frankfurt , holding it till 1811, when he accepted the same chair at the new Friedrich...
. In 1814 appeared his pamphlet (new edition, 1892). It was a protest against the demand for codification, and was intended as a reply to Thibaut's pamphlet urging the necessity of forming a code for Germany which should be independent of the influence of foreign legal systems. In this famous pamphlet Savigny did not oppose the introduction of new laws, or even a new system of laws, but only objected to the proposed codification on two grounds:
- that the damage which had been caused by the neglect of former generations of jurists could not be quickly repaired, and that time was required to set the house in order
- that there was great risk of the so-called natural law, with its "infinite arrogance" and its "shallow philosophy" ruining such a scheme.
The enduring value of this pamphlet is that it saved jurisprudence from the hollow abstractions of such a work as the of Christian Wolff
Christian Wolff (philosopher)
Christian Wolff was a German philosopher.He was the most eminent German philosopher between Leibniz and Kant...
, and proved that a historical study of the positive law was a condition precedent to the right understanding of the science of all law.
In 1815 Savigny founded, with Karl Friedrich Eichhorn
Karl Friedrich Eichhorn
Karl Friedrich Eichhorn was a German jurist.Eichhorn was born in Jena as the son of Johann Gottfried Eichhorn. He entered the University of Göttingen in 1797. In 1805 he obtained the professorship of law at Frankfurt , holding it till 1811, when he accepted the same chair at the new Friedrich...
, and Johann Friedrich Ludwig Göschen, the ("Journal of historical legal studies"), the organ of the new historical school
German Historical School
The German Historical School of Law is a 19th century intellectual movement in the study of German law. With Romanticism as its background, it emphasized the historical limitations of the law...
, of which he was the representative. In this periodical (vol. iii. p. 129 seq.) Savigny made known to the world the discovery at Verona, by Niebuhr
Barthold Georg Niebuhr
Barthold Georg Niebuhr was a Danish-German statesman and historian who became Germany's leading historian of Ancient Rome and a founding father of modern scholarly historiography. Classical Rome caught the admiration of German thinkers...
, of the lost text of Gaius
Gaius (jurist)
Gaius was a celebrated Roman jurist. Scholars know very little of his personal life. It is impossible to discover even his full name, Gaius or Caius being merely his personal name...
, pronouncing it, on the evidence of that portion of the manuscript submitted to him, to be the work of Gaius himself and not, as Niebuhr suggested, of Ulpian
Ulpian
Gnaeus Domitius Annius Ulpianus , anglicized as Ulpian, was a Roman jurist of Tyrian ancestry.-Biography:The exact time and place of his birth are unknown, but the period of his literary activity was between AD 211 and 222...
.
The record of the remainder of Savigny's life consists of little else than a list of the merited honours which he received at the hands of his sovereign, and of the works which he published with indefatigable activity. In 1815 appeared the first volume of his ("History of Roman Law in the Middle Ages"), the last of which was not published until 1831. This work, to which his early instructor Weiss had first prompted him, was originally intended to be a literary history of Roman law from Irnerius
Irnerius
Irnerius , sometimes referred to as lucerna juris , was an Italian jurist, and founder of the School of Glossators and thus of the tradition of Medieval Roman Law....
to the present time. His design was in some respect narrowed; in others it was widened. He did not continue the narrative beyond the 16th century, when the separation of nationalities disturbed the foundations of the science of law.
His treatment of the subject was not merely that of a bibliographer; it was philosophical. It revealed the history of Roman law, from the breaking up of the empire until the beginning of the 12th century, and showed how, though considered dead, the Roman law lived on in local customs, in towns, in ecclesiastical doctrines and school teachings, until it blossomed out once more in full splendour in Bologna
Bologna
Bologna is the capital city of Emilia-Romagna, in the Po Valley of Northern Italy. The city lies between the Po River and the Apennine Mountains, more specifically, between the Reno River and the Savena River. Bologna is a lively and cosmopolitan Italian college city, with spectacular history,...
and other Italian cities. This history was the parent of many valuable works in which Savigny published the result of his investigations. In 1817 he was appointed a member of the commission for organizing the Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
n provincial estates, and also a member of the department of justice in the ("State council"), and in 1819 he became a member of the supreme court of appeal for the Rhine Provinces. In 1820 be was made a member of the commission for revising the Prussian code.
In 1822 a serious nervous illness attacked him, and compelled him to seek relief in travel. In 1835 he began his elaborate work on contemporary Roman law, (8 vols., 1840–1849). His activity as professor ceased in March 1842, when he was appointed "" (High Chancellor), the title given by Frederick the Great
Frederick II of Prussia
Frederick II was a King in Prussia and a King of Prussia from the Hohenzollern dynasty. In his role as a prince-elector of the Holy Roman Empire, he was also Elector of Brandenburg. He was in personal union the sovereign prince of the Principality of Neuchâtel...
in 1746 to the official at the head of the juridical system in Prussia, as in this position he carried out several important law reforms in regard to bills of exchange and divorce. He held the office until 1848, when he resigned, not altogether to the regret of his friends, who had seen his energies withdrawn from jurisprudence without being able to flatter themselves that he was a great statesman.
In 1850, on the occasion of the jubilee of his obtaining his doctor's degree, appeared in five volumes his Vermischte Schriften, consisting of a collection of his minor works published between 1800 and 1844. This event gave rise to much enthusiasm throughout Germany in honour of "the great master" and founder of modern jurisprudence. In 1853 he published his treatise on Contracts (), a supplement to his work on modern Roman law, in which he clearly demonstrates the necessity for the historical treatment of law. Savigny died at Berlin. His son, Karl Friedrich von Savigny
Karl Friedrich von Savigny
Karl Friedrich von Savigny was a Prussian diplomat, politician, and a leading member of the Centre Party. His father was the jurist Friedrich Karl von Savigny. He believed that "laws are not made but found"....
(1814–1875), was Prussian minister of foreign affairs in 1849. He represented Prussia in important diplomatic transactions, especially in 1866.
Ideas and influence
Savigny belongs to the so-called historical school of juristsGerman Historical School
The German Historical School of Law is a 19th century intellectual movement in the study of German law. With Romanticism as its background, it emphasized the historical limitations of the law...
, though he cannot claim to be regarded as its founder, an honour which belongs to Gustav Hugo
Gustav Hugo
Gustav von Hugo was a German jurist.He was born at Lörrach in Baden. From the gymnasium at Karlsruhe he passed in 1782 to the University of Göttingen, where he studied law for three years. Having received the appointment of tutor to the prince of Anhalt-Dessau, he took his doctor's degree at the...
. In the history of jurisprudence Savigny's great works are the Recht des Besitzes and the Beruf unserer Zeit für Gesetzgebung above referred to. The former marks an epoch in jurisprudence. Professor Jhering
Rudolf von Jhering
Rudolf von Jhering was a German jurist. He is known for his 1872 book Der Kampf ums Recht , as a legal scholar, and as the founder of a modern sociological and historical school of law.Jhering was born in Aurich, Kingdom of Hanover...
said: "With the Recht des Besitzes the juridical method of the Romans was regained, and modern jurisprudence born." It marked a great advance both in results and method, and rendered obsolete a large body of literature. Savigny sought to prove that in Roman law possession had always reference to "usucapion" or to "interdicts"; that there is not a right to continuance in possession but only to immunity from interference; possession being based on the consciousness of unlimited power.
These and other propositions were maintained with great acuteness and unequalled ingenuity in interpreting and harmonizing the Roman jurists. The controversy which was carried on in Germany by Jhering
Rudolf von Jhering
Rudolf von Jhering was a German jurist. He is known for his 1872 book Der Kampf ums Recht , as a legal scholar, and as the founder of a modern sociological and historical school of law.Jhering was born in Aurich, Kingdom of Hanover...
, Baron, Gans
Eduard Gans
Eduard Gans was a German jurist.He was born in Berlin of prosperous Jewish parents. He studied law first at the Friedrich Wilhelm University, Berlin, then at Göttingen, and finally at Heidelberg, where he attended G. W. F. Hegel's lectures, and became thoroughly imbued with the principles of...
and Bruns shows that many of Savigny's conclusions were not accepted. The Beruf unserer Zeit, in addition to the more specific object the treatise had in view, which has been already treated, expresses the idea, unfamiliar in 1814, that law is part and parcel of national life, and combats the notion, too much assumed by French jurists, especially in the 18th century, and countenanced in practice by Bentham, that law might be arbitrarily imposed on a country irrespective of its state of civilization and past history. Of even greater value than his services in consolidating "the historical school of jurisprudence" is the emphatic recognition in his works of the fact that the practice and theory of jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
cannot be divorced without injury to both.