Friedrich Carl von Savigny, by Wikipedia

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Friedrich Carl von Savigny, by Wikipedia

Postby admin » Fri Jun 08, 2018 5:02 am

Friedrich Carl von Savigny
by Wikipedia
Accessed: 6/7/18

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Image
Friedrich Carl von Savigny
Born 21 February 1779
Frankfurt am Main, Holy Roman Empire
Died 25 October 1861 (aged 82)
Berlin, Kingdom of Prussia
School German Historical School
Main interests
Legal studies, legal philosophy
Influences: Gustav Hugo
Influenced: August von Bethmann-Hollweg

Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian.

Early life and education

Savigny was born at Frankfurt, 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 a pioneer 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.

Work

In 1803 Savigny published Das Recht des Besitzes ("The Law of Possession").[1] Anton Thibaut hailed it as a masterpiece which brought the old uncritical study of Roman law to an end. It quickly obtained a European reputation, and still remains a prominent landmark in the history of jurisprudence. In 1804 he married Kunigunde Brentano, sister of Bettina von Arnim and Clemens Brentano the poet. The same year he embarked on an extensive tour through France and south Germany in search of fresh sources of Roman law.

In 1808 Savigny was appointed full professor of Roman law at Landshut. He remained in this position for a year and a half. In 1810 he was appointed to the chair of Roman law at the new University of Berlin, chiefly at the insistence of Wilhelm von Humboldt . Here, in connection with the faculty of law, he created 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. During his time in Berlin Savigny befriended Niebuhr and Eichhorn.

In 1814 Savigny wrote the pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. In an earlier pamphlet Thibaut had argued for the creation of a unified legal code for Germany, independent of the influence of foreign legal systems. Savigny argued that such a codification of the law would have an adverse effect. According to Savigny the damage which had been caused by the neglect of former generations of jurists could not be quickly repaired, and more time was required to set the house in order. Moreover, a unified legal code would almost certainly be influenced by natural law, with its "infinite arrogance" and its "shallow philosophy". It was Savigny's opinion that jurisprudence should be saved from the hollow abstractions of such a work as the Institutiones juris naturae et gentium of Christian Wolff. Savigny opposed this conception of jurisprudence to the historical study of the positive law, which, according to him, is a condition precedent to the right understanding of the science of all law. However, Savigny did not oppose to the introduction of new laws or of a new system of laws.

In 1815 Savigny, together with Karl Friedrich Eichhorn and Johann Friedrich Ludwig Göschen, founded the Zeitschrift für geschichtliche Rechtswissenschaft ("Journal of Historical Legal Studies"), the organ of the new historical school. In this periodical (vol. iii. p. 129 seq.) Savigny made known to the world the discovery by Niebuhr at Verona of the lost text of Gaius. Savigny pronounced it to be the work of Gaius himself and not, as Niebuhr suggested, of Ulpian.

The same year, 1815, Savigny published the first volume of his Geschichte des römischen Rechts im Mittelalter ("History of Roman Law in the Middle Ages"),[2] the sixth and final volume of which did not appear until 1831. He had been prompted to write this work by his early instructor Weiss. Savigny intended it 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. In the first volume, Savigny treated the history of Roman law from the breaking up of the empire until the beginning of the 12th century. According to Savigny, Roman law, although considered dead, lived on in local customs, in towns, in ecclesiastical doctrines and school teachings, until it once again reappeared in Bologna and other Italian cities.

In 1817 Savigny was appointed a member of the commission for organizing the Prussian provincial estates, and also a member of the department of justice in the Staatsrath (State Council). In 1819 he became a member of the supreme court of appeal for the Rhine Provinces. In 1820 he was made a member of the commission for revising the Prussian code. In 1822 he was afflicted with nervous illness, which compelled him to seek relief in travel. In 1835 Savigny began his elaborate work on contemporary Roman law, System des heutigen römischen Rechts (8 vols., 1840–1849). His activity as professor ceased in March 1842, when he was appointed "Grosskanzler" (High Chancellor), the official at the head of the juridical system in Prussia. 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.

In 1850, on the occasion of the jubilee of obtaining his doctor's degree, appeared in five volumes his Vermischte Schriften, consisting of a collection of minor works published between 1800 and 1844. Savigny was hailed throughout Germany as "the great master" and founder of modern jurisprudence. In 1851 and 1853 he published the two volumes of his treatise on the law of obligations, Das Obligationenrecht, mostly on what English-speaking lawyers consider as contract law. It was a supplement to his work on modern Roman law, in which he again argued for the necessity of 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.

Ideas and Influence

Savigny belongs to the German historical school of jurists, founded by Gustav Hugo, and served a role in its consolidation. The works for which Savigny is best known are the Recht des Besitzes and the Beruf unserer Zeit für Gesetzgebung. According to Jhering "with the Recht des Besitzes the juridical method of the Romans was regained, and modern jurisprudence born." It was seen as a great advance both in results and method, and rendered obsolete a large body of literature. Savigny argued that in Roman law possession had always reference to "usucapion" or to "interdicts". It did not include a right to continuance in possession but only to immunity from interference as possession is based on the consciousness of unlimited power. These and other propositions were derived by the interpretation and harmonization of the Roman jurists. However, many of Savigny's conclusions did not meet with universal acclaim. They were opposed by, among others, Jhering, Gans, and Bruns.

Savigny argued in the Beruf unserer Zeit that law is part and parcel of national life. He opposed the idea, common to French 18th century jurists and Bentham, that law can be arbitrarily imposed on a country irrespective of its state of civilization and history. Another important idea of Savigny is that the practice and theory of jurisprudence cannot be divorced without injury to both.

Notes

1. archive.org
2. Geschichte des römischen Rechts im Mittelalter, erster Band

References

• Biographies by Stinzing (1862); Rudorff (1867); Bethmann-Holweg (1867); and Landsberg (1890)
• Chisholm, Hugh, ed. (1911). "Savigny, Friedrich Karl von". Encyclopædia Britannica (11th ed.). Cambridge University Press.
• Friedrich Karl von Savigny, UXL Encyclopedia of World Biography (2003)
• Azurmendi, Joxe (2008): Savigny: Volksgeist Zuzenbidearen historian in: Volksgeist. Herri gogoa, Elkar, Donostia. ISBN 978-84-9783-404-9.
• Herbermann, Charles, ed. (1913). "Karl Friedrich Savigny". Catholic Encyclopedia. New York: Robert Appleton Company.
• Berkowitz, Roger (2005), "From Science to Technique: Friedrich Carl von Savigny, the BGB, and the Self-Overcoming of Legal Science", The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge: Harvard University Press, ISBN 0-674-01873-7.
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Re: Friedrich Carl von Savigny, by Wikipedia

Postby admin » Fri Jun 08, 2018 5:43 am

Savigny's Research Program of the Historical School of Law and Its Intellectual Impact in 19th Century Berlin
by Hermann Klenner
The American Journal of Comparative Law, Vol. 37, No. 1. (Winter, 1989), pp. 67-80.

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"The only certain point which can guide us here is the idea of infinite progression." [1]


I.

It is easier, especially for a Marxist, to find reasons to criticize Savigny than to praise him. Certainly Savigny was a legal theorist of truly international caliber. His early work, "The Right of Property," has been translated into Italian, French, and English; his History of Roman Law in the Middle Ages into Italian, French, and English; his System of Contemporary Roman Law into French, English, and Spanish; and his world-famous treatise, On the Vocation of Our Time for Legislation and Jurisprudence, has been available for more than 150 years in English.

What use has been made of Savigny's works? Is he to be blamed for the fact that Nazi lawyers drew on his concept of "national spirit" (Volksgeist) as an idea of "inexhaustible fertility"? [2] Can we blame Savigny for proponents of racist practice in South Africa, particularly at the Afrikaans-language universities, who refer to Savigny's "spirit of the Volk"? [3]

Perhaps one need not even advance beyond the last century to raise and cultivate aversions against the "cloying troubadour of the pandects" (Heinrich Heine). Does not his strident opposition to the Enlightenment, revolution, democracy, republicanism, communism, and the emancipation of peasants and Jews [4] provide sufficient evidence of his overall position?
Does not his personal position in reactionary Prussia as an Academy member since 1811, as a rector magnificus of Berlin University appointed by the king (and not elected) in 1812, as a member of the Prussian Council of State since 1817, as a Justice of the Court of Appeal of the Rhine province since 1819, as Minister of State and Justice for Legislation since 1842, as President of the Council of State since 1847, as a crown lawyer since 1856, as a member of the House of Lords since 1859, etc., prove what kind of person and teacher this scholar must have been?

II

Without glossing over the significance of this personal element, but rather building on my previously published opinions, [5] I will herein attempt only to place and evaluate Savigny's research program within the intellectual context of his time. I believe it still to be true that the evaluation of a scientific work is not determined by the subjective concerns of its author -- the road to hell is paved with good intentions -- nor by his personal position in the social hierarchy of his country, but by the objective role that his insights have played in the development of society.

I do not deny that a connection exists between Savigny's research program and his personal adherence to the interests of feudal nobility. Nor do I deny that his inveterate hatred of the emancipation of Jews, against "badly applied humanity," as he put it, [6] affects his objectivity as a historian. The resolution (signed by him, as well as by Eichhorn and Schmals) of the trial committee of the Berlin Faculty of Law in a notorious case justified "the despicable behavior of today by the despicable behavior of yesterday." [7] He defended this justification by the argument that the Jews had never been free in Germany, and therefore any emancipation in the meantime was contrary to law. [8]

The impact and reputation of Savigny's research program is related to its place in Berlin's intellectual history, as is noted in Martin Wolff 's evaluation of the System of Contemporary Roman Law. [9] No other nineteenth century German university could compare with Berlin in the significance of its legal studies. [10] No other city in Europe could boast of such a broad constellation of great legal scholars during these important decades as could Berlin, with Eichorn, Fichte, Gans, Gentz, Gierke, Greist, Grimm, Hegel, Jhering, Kirchmann, Klein, Lassalle, Marx, Mommsen, Mullert, Puchta, Schopenhauer, Stahl and Svarez.

Savigny characterized the state as the "corporeal form of the intellectual national community" and the law as "the law of the people," having its "existence in the common national spirit." [11] However, his concept possessed democratic implications. Indeed, Savigny affirmed that the law had "no existence in itself," since its essence was the "life of men" as viewed from a particular aspect. [12] By his logical systematic method of tracing the traditional legal matter down to its roots in order to discover its "organic principle," Savigny constructed out of it the internal interconnection between the concepts and norms of law regardless of their social context. While affirming the "organic interconnection of the Law with the essence and character of the people," [13] he tailored a garment of Roman law for the German people according to the model of Papinian and Ulpian. He asserted that it was by no means the objective of the Historical School to subordinate the present time to the "domination of the past." [14] But nowhere in his historical analysis did he search for a contact with law-in-force, to say nothing about the prospects towards future law. [15] In his Contribution to the History of Law of Nobility in Recent Europe (published in the proceedings of the Academy in 1838) he did not consider the contemporary logic of the institution of nobility, whereas in his analysis of persons as the carriers of legal conditions, presented in the second volume of his System of Contemporary Roman Law (# (5) (published in 1840)), he repeated the ancient Roman subdivision of human beings into free men and slaves, and uncritically commented upon it at great length.

III.

From its embryonic to its classical form, the research program of the Historical School of Law was reactionary. Indeed, Gustav Ritter von Hugo, the patriarch of this school of law, had declared law to be autonomous, and by implication had separated jurisprudence from history and philosophy. He put this forth in his Textbook of the Rule of Nature as a Philosophy of Positive Law, published in Berlin in 1798. This argument can only be assessed correctly if it is understood as a reaction to the philosophy of law of the Age of Enlightenment in general, and of rationalism in Berlin in particular. Hugo advanced the general thesis [16] that there are no a priori, innate rights, but only empirical, individual, haphazard rights, and that one ought to abide by the law of a people just as by its language and customs, as it emerged; therefore, the present-day generation was not justified in overturning the traditional constitution. This attitude contradicted the credo published, under the restrictive conditions of Prussian censorship, by the so-called Berlin rationalists in their central journal, the Berlinische Monatschrift. The exact opposite of Hugo's views had been maintained by Johann Friedrich Herel (April 1783: The Freedom of America), Ernst Ferdinand Klein (April 1784: On the Liberty of Thought and of the Press), Moses Mendelssohn (September 1784: What does the Enlightenment Mean?), Carl v. Clauer (November 1790: Contribution on the Law of Humankind), Friedrich Gentz (April 1791: On the Origin and the Supreme Principles of Law), Wilhelm von Humboldt (January 1792: Ideas on the Constitution of the State), and, above all, Immanuel Kant (September 1793: Theorg and Practice). [17]

Just as Hugo's conception of identifying the philosophy of law totally with a philosophy of the already positive law -- faithful to his motto that all things juridical were a matter of putting up with what had once been given -- was counter-rationalism, so also was Savigny's early (1802-03) method of reducing philosophy to systems theory, contrary to Hegel's great composition, On the Manner of Scientific Treatment of the Law of Nature, its Position in Practical Philosophy, and its Relationships to the Sciences of Positive Law. Savigny liberated the lawyer from any knowledge, except from the mere preliminary knowledge of philosophy as something superfluous to him. In contrast, Hegel demonstrated that everything needs to justify its existence before the tribunal of reason, and decried the attempt to separate civil law from history and reason and to treat it as a being in itself. [18] Here, Savigny and Hegel attacked the law of nature from opposite positions: One declares it as indifferent ("jurisprudence can be studied without natural law and with it as well"); the other declares that the previous a priori and a posteriori manners of treating natural law were scientifically irrelevant because they were unable to identify the respective characteristics of that which was universal and that which was particular in the totality of historically developing life.

The research program identified with the Historical School of Law is less action than reaction. The two principal scientific works of Savigny to be considered in this context, his treatise, On the Vocation of our Time for Legislation and Jurisprudence (1814) and his introductory composition, On the Purpose of the Journal for Historical Jurisprudence (1815), are pamphlets more marked for their 'cons' than their 'pros,' especially their position on Thibaut. In this context, one often-forgotten fact is worth mentioning: Thibaut had not initiated the dispute about the need for codification in Germany and about the ability of the Germans to achieve this aim. Thibaut was only responding to an attack commenced by August Wilhelm Rehberg, in his book, On the Code Napoleon and its Introduction in Germany (1814), against the legislative legacy of the French Revolution. Thus, Savigny's anti-Thibaut pamphlet in fact can be characterized as a defense of Rehberg. This is the same Rehberg whose Investigations on the French Revolution, published twenty years earlier, had previously been criticized by no less an authority than Johann Gottlieb Fichte, in his Contribution on Correcting the Judgments of the Public on the French Revolution. [19]

To dismiss this as a scholarly quarrel misses the point about the significance of this rejection by Savigny of Thibaut's demands for a German national civil code. ("The cost for each country will hardly be more than the maintenance of a few actresses." [20]) Even the usually accepted understanding of the Thibaut-Savigny dispute as an internal German affair falls short of the mark. Crucial to their dispute is the claim to the universality of the French Revolution, in the sense of the inevitability of human progress from feudalism to capitalism within the framework of the Dutch, American, and, of course, English Revolutions.

Notwithstanding Thibaut's hopes, short of revolution it was impossible within this period of two to four years to abolish the traditional jumble of variegated, conflicting regulations in civil and criminal law in Germany and replace it with a codification stimulated by the Code Napoleon. At that early date this program was not yet available. In time, of course, the capitalist commodity market, just as it would need a German nation, would need a ius commune, an all-German law. For this reason, Savigny's railings against the Code civil as a product of the French Revolution, [21] though effective in helping prevent its introduction, ultimately were unsuccessful. Indeed, it seems an irony if not a stratagem of reason that it is Savigny who would later become not only a Minister of Legislation but the intellectual father of the Civil Code of Germany (BGB).

IV.

During the Jacobin dictatorship in France, Johann Gottlieb Fichte had justified the revolution as a possible, and even probable, phase of development of human progress in Germany. "The pent-up course of Nature violently breaks forth and . . . humankind takes a most cruel revenge against its oppressors, revolutions become necessary." [22] In his lectures on the philosophy of law held in the summer term of 1812 at Berlin University, Fichte conceived "a state of reason applicable to all times, a state in which reason has made a breakthrough" regardless of existing power and of existing law. [23] In this context he left out none of the real problems of his times, not the claim of the peasants to the soil, nor the legal claim of the dispossessed to work, nor the place of the university within the state, nor the establishment of international law designed to prevent war. In all these matters he put forth an absolute position and raised it to the rank of theory. Contractual law, just as the established law, was no law at all if not based on reason [24]; and traditional law did not concern mankind, because "we develop the notion of law as what should be, without asking for the empirical what is."

When, with these statements, Fichte asserted a theoretical counter-position to the prevailing practice in Prussia, he had just resigned from his office as first elected rector magnificus of Berlin University. It is against their substance that Carl von Savigny, appointed by the king to succeed Fichte as rector, developed a contrasting program derived from the introductory chapter to his Literary History of Roman Law in the Middle Ages, which was conceived in those months during which Fichte, for the first and last time, lectured on his theory of law.

Kant and Fichte had sought to reconcile individual freedom with the needs of society and proffered a social revolutionary program with an antifeudal content. In contrast, Savigny rejected a natural or reason-based law, and recognized traditional law as the established law. [25] Savigny's program consciously countered each prorevolutionary legal concept.

His argument asserted that, contrary to the philosophical school of natural rights, it was necessary to develop a historical school because only history could establish a true cognition of the human condition.  [26] No era brings forth a new world arbitrarily, he argued; rather, law derives from the entire past of a nation, and consequently was historically determined. Law emerged and developed not by legislative arbitrariness, but first by usage and popular belief and later by jurisprudence. Law has no existence in itself; its essence is rather the life of human beings as considered from a particular aspect. The basis of such law must be created organically by means of two methods: (1) through the historical method it had to trace legal matter to its roots, and thus to discover an organic principle by which what is still alive is separated from what only belongs to history; (2) through the systematic method it had to recognize and to represent any notion and sentence of law as intimately interacting with the entire matter of law and its major systematic unity.

In order to be able adequately to appreciate the program of the Historical School of Law, as derived from Savigny's writings, it is necessary to distinguish between its substantive contributions to the theory of law, the practice of law, and the policy of law (in each case considering its short-term as well as its long-term effects), thus differentiating the contents of the program from the intentions of the original author and the implementors of the program.

The Historical School of Law's conservative orientation towards the requirements of everyday politics has commonly been ascribed to a number of thinkers prominent on the Berlin intellectual scene.

Friedrich von Gentz, after a short-lived enthusiasm for the French Revolution (which he interpreted as a first practical triumph of philosophy), became the first and most important propagandist of the counter-revolution. His German language edition of Edmund Burke's Reflections on the Revolution in France was supplemented by his own counter-revolutionary treatises, and in Berlin he founded the Neue Deutsche Monatsschrift and the Historisches Journal, in which he attacked the French Revolution. [27]

Adam Muller, a life-long friend of Gentz, who studied with Hugo, admired Burke, and, like Savigny, was a member of the Berlin "Christian-German dinner society," argued that the state was not merely a social contract but constituted the totality of all human affairs. [28]

Carl Ludwig von Haller, an idol of reactionary romanticism in Berlin, justified the traditional 'lord-and-master' structure of society as a natural order of things, in which the lord and the servant, engaged in mutually beneficial transaction exchanges, and find happiness as desired by God. [29]

Finally, Friedrich Julius Stahl, from Bavaria, who offered himself to the Historical School of Law in Berlin as its philosopher, argued that the state was endowed with the majesty of the personal God, and that the monarch therefore was an officer of God above the people. There was no middle way between the sovereignty of a people and the authority of God. At most, he argued, society should reform only in a conservative manner. [30]


In Savigny's writings one detects a more complex pattern -- an interesting contradiction between what was desired and what was in fact brought about -- a contradiction that applies minimally to Hugo and not at all to Haller or Stahl. This phenomenon is particularly pronounced in the contradiction between theory and method. The theory of Savigny -- with its basic theses that a lawyer needed no philosophy, that the source of law was to be found in the history of law (and not in the history of society), that the continuum of history should not be disrupted by legislation generating discontinuity, that the law was in conformity with the national spirit but not the will of the people (to say nothing about the will of a social class), that world-determining rules of behavior were contained in the Christian view of life -- all this was compatible with the reactionary romantic mysticism of the viri obscuri of his times. This view was consonant with an unconditional defense of throne, altar, landlord rule, and a patrimonial state.

The method of Savigny, however, pointed in a different direction. He referred to the "pure" law of Rome and to the almost classic law of a commodity-producing society, reconstructing this law in its systematic purity. He made a decisive contribution to the fading away of the mixed feudal law of Germany, and to the emergence of a civil law that could be adapted to capitalist production and the circulation of commodities. At the same time, however, Savigny's method significantly contributed to that unworldliness of law and justice that is so characteristic of Prussian-German capitalism and that makes it so remote from the people. Savigny's bourgeois conservatism reflected -- but also stimulated, and sometimes impeded -- the reform-oriented strategy of the bourgeoisie.

V.

Georg Friedrich Wilhelm Hegel was the most significant figure opposed to the Historical School of Law. Appointed to succeed Fichte as full professor of philosophy at the University of Berlin, Hegel spent the last thirteen years of his life engaged in lecturing, publishing, politicizing, and organizing. [31]

The first lecture that Hegel gave in Berlin (October 1818) as well as the first book he published there (October 1820) were on the philosophy of law. His most important achievement was the systematic presentation of dialectics. Within this dialectic Hegel noted the contradictions in bourgeois society, especially the contradiction between wealth and poverty, the realization that only by setting the servant free would the lord become free, and finally the ideal of a society in which man would dominate by means of his reason. [32]

It was in his first lecture on the philosophy of law in that Hegel first presented his unequivocal critique of the Historical School of Law. In his lecture of 22 October 1818, he asserted that the historical view was proffered especially because "of the necessity of justifying the existing state of law," and that mere habit could not be the source of law because mere habit was only the "external, bad existence" of the spirit. [33] This could only be understood as a declaration of war against Savigny, and indeed was so understood by him and his followers. Various remarks in their correspondence present ample evidence of this. [34]

From 1818, when he introduced his lectures on the Encyclopedia and on the Philosophy of Law at Berlin University, until his last lecture on the philosophy of law, three days before his death in 1831, Hegel waged a war on three fronts. He criticized what he termed three erroneous developments against which he contrasted his own concepts. [35]

First, Hegel attacked those who, articulating a historical view, justified the traditional state of law, a state said to consist of the special quality of Germanic law (based on feelings and customs), the logic of Roman law, and the feudal legal system -- a system that did not allow full deployment of freedom of property or of the person.

Second, Hegel attacked those who were to blame for the weakened state of contemporary philosophy because they had degraded it from cognition to guesswork. Doubtless by this he meant Jakob Friedrich Fries, who asserted that nothing could be known about what is divine and true.

Third, apart from attacking Savigny, Hugo, and Fries, Hegel also attacked those who accepted the philosophy of law as an abstraction, a concept that for him meant the a priori manner of treating natural law, a manner separating the individual from his relationships with his fellow men and from his own development.

Hegel's critique was not just an academic skirmish, but a major struggle. The purpose of all constitutions of law was freedom, which was to be implemented by degrees in the history of the development of a people. In this struggle freedom was perceived as both a reasonable and historical necessity. The realm of what is legal could only emerge in a progressive sense. It was the task of philosophy to recognize what was historically necessary and reasonable regardless of what had been. Since positive law could be contrary to reason, it had to justify itself before insight and thought. Hegel affirmed that it was this realm of cognition, thinking, and truth that was the 'house of philosophy.'

VI.

Between Hugo, Haller, and Savigny, on the one hand, and Hegel, Gans, and Marx on the other, there could be neither conversion nor tolerance. In his university textbook on the philosophy of law, published in Berlin in 1820, Hegel excoriated the Historical School of Law, notwithstanding its powerful position in Prussia. [36] Haller was charged with absurd reasoning, Savigny with insulting the German nation, and Hugo with reducing jurisprudence to a mere science of reason, to a mathematics without any reason. [37]

Where is the least common denominator between a school of law in whose thought present-day interests are subsumed and subordinated under the millennia-old sources of law, and a philosophy of law that establishes itself as the critical tribunal for evaluating and, where appropriate, condemning the prior and the present-day law?

It is especially on the left-wing Hegelians that the publications of the Historical School of Law and the aristocratic pretensions of their leader had an irritating effect. [38] In the preface to his work on the universal history of law, Eduard Gans, Hegel's intimate friend, defended himself against the criticism of the Historical School. When, in the sixth edition of The Right of Property, Savigny criticized Gans, Gans responded with On the Basis of Property and compared the argument put forth by Savigny to the squabbling of rabbis (how particularly delighted Savigny must have been with this!). In the Berlin Jahrbucher fur wissenschaftliche Kritik (Annals for scientific criticism) (the central organ of the Hegel group), Ludwig Feuerbach, himself a follower of Hegel, denounced the main work on the philosophy of law presented by the Historical School of Law, "the philosophy of law according to a historical viewpoint," as simplistic mysticism, and strongly criticized its author, Stahl. Heinrich Heine sided with those to whom the right to revolution seemed to be implied in the right to life, and attacked Savigny as an abject person who advocated despotism as a customary right in terms of history. Arnold Ruge exposed the pseudo-historicism of the "historical lawyers" and their reliance upon counter-rationalist and counter-revolutionary mysticism. Karl Marx also attacked the Historical School of Law.

The most devastating oligarchical attack on the republican spirit, however, was led by the philosopher G. W. F. Hegel in Berlin, who is proven by "check-stubs" to have been a paid agent of Austria's Metternich against the Prussian state, and was therefore working directly for the sinister reaction of the Holy Alliance. It is a sad commentary on the level of our universities, that the holy aura surrounding Hegel has remained intact down to the present day.

When one considers that Hegel finished his Phenomenology of Mind in the year 1806, in the midst of the intellectual climate of the Weimar classics, we can only conclude that his ostensibly dialectical method was nothing but a Jesuitical distortion of the Socratic method so gloriously evident in the dramas of Friedrich Schiller. Hegel's idea of the world-historical individual was indeed drawn from the classics; his "philosopher kings" or "philosophical minds," however, tended to degenerate into mere power-mongers (Napoleon, for Hegel, was the World Spirit on horseback!), and were much closer to the master-race concept of Nietzsche and Hitler. Worst of all, toward the end of his teaching career Hegel not only engaged in the corrupt practice of blocking or spoiling the studies of many young and hopeful students, but also -- in his Philosophy of Right-- he provided the perfect justification for the totalitarian state, which served as source material for Europe's reactionary oligarchical circles, as it did later for the Third Reich.

We could name many more figures and fields which were involved in the Conservative Revolution's attempt to reshape the population's conscious values. In all these cases it can be proven, often in great detail, that these were not "sociological phenomena" or mysterious transformations in the Zeitgeist, but were developments initiated or financed by the oligarchy.

-- The Hitler Book, edited by Helga Zepp-LaRouche


This dispute between the 'monotheists of power' and the adherents of reason marked the entire intellectual debate in Berlin during the first half of the nineteenth century. The left-wing Hegelians conducted the revolution, but the revolution failed, and when Savigny, who had been forced from office by the revolution, finally died at the age of 83, Prussia's monarch took part in the burial ceremony. At the Royal Academy of Sciences in Berlin, his successor, in his commemoration speech, noted that the ideas of his teacher had become the common knowledge of all lawyers. [39] In his obituary, Savigny was referred to as the most brilliant star in German jurisprudence. [40]

VII

It is not possible to characterize Savigny's research program of the Historical School of Law as a classic. Neither Stahl's nor Savigny's writings are pioneering works. Savigny did not take a stand against the privileged political position of Prussia's nobility, nor did he support the urban bourgeoisie or the civil rights of the Jews; nor, finally, did he oppose the claim to absolute domination of the monarch reigning in Berlin.

However, he did become the intellectual father of the Civil Code in Germany, which, even if worse than the former Code Civil of France or the later Swiss Civil Code, nonetheless provided normative expression to the economic requirements of the bourgeoisie. [41] In his own conservative, indirect manner, the counterrevolutionary friend of the crown and of the church participated in the juridical work of silent reform which in the end turned out to be a revolution from above. [42]

What took place during the nineteenth century in Prussia-Germany and in its capital, Berlin, may be regarded as a reluctant way of adapting to bourgeois society, which had irreversibly imposed itself in Europe owing to the revolutions in England and France. It is true that progress imposed by an authoritarian state lacks the vital element of future democratic progress. But the fact that Savigny's theory of law, whose bourgeois contents became more clear as the nobility assumed bourgeois features and the bourgeoisie was prepared to subordinate itself politically to the aristocracy, had absorbed in itself the whole wealth of classic Roman jurisprudence imparted to it a durability extending to present times. The reservoir of productivity of this theory of law has not been exhausted to the present day.

_______________

Notes:

HERMAN KLENNER is Professor of Law and Member, Academy of Sciences of the  German Democratic Republic.
 
 1. Thus no other than Savigny himself! See Ingeborg Schnack (ed.), Der  Briefwechsel zwischen Friedrich von Savigny und Stephan August Winckelmann  123 (1984).
 
 2. Walter Schonfeld. Die Geschichte der Rechkrwissenschaft im Swieael der  Metaphysik 163 f. (1943). see the presentation, with ample sources in Ruckert , "Das  gesunde Volksempfinden -eine Erbschaft Savignys?," 103 Zeikrchrlft der Savigny-  Stiftung fur Rechkrgeschichte, Germanistische Abteilung 199 (1986).
 
 3. See John Dugard, Human Rights and the South African Legal Order 396  (1978).
 
 4. See the material collected in Joachim Riickert, Idealismus, Jurisprudenz und Politik bei Freidrich Carl von Savigny 208 ff. (1984). My review of this, the most significant book of the recent Savigny literature, is at 72 Arch. R.- & Sozialphil. 104 (1986). Klaus Luig and B. Dolmeyer offer a bibliography of the new literature concerning Savigny in 8 Quaderni fiorenti 501 (1979).
 
5. See Hermann Klenner, Vom Recht der Natur zur Natur des Rechts (1984); "Herder und das historische Denken in der Rechtswissenschaft," in No. 8G, Sitzungberichte der Akademie der Wissenschqften der DDR 35 (1978); "Momrnsen, der Jurist," in 9 Jiirgen Kuczynski, Studien zu einer Geschichte der Gesellschajtswissenschqften 182 (1978); "Savigny und das historische Denken in der Rechtswissenschaft," in Savigny y la ciencia juridica del siglo XIX 133 (Nos. 18-19, Anales de la catedra Francisco Suarez, (1979); "Satze und Gegenstbe in der deutschen Rechtsphilosophie von 1803-1843," in Wolfgang Forster (ed.), Gesellschaftslehren der klassischen burgerlichen deutschen Philosophie 171 (1983); "Der Jurist Marx auf dem Wege zum Marxismus," 37 Neue Justiz 476 (1983); "Der rechtsphilosophische Denk- Einsatz von Karl Marx," 12 Demokratie und Recht 47 (1984); "Drei Irrtumer, Wilhelm von Humboldts fruhe Staatsphilosophie betreffend," 34 Staat und Recht 281 (1985);"Alternativeinschatzungen Hegelscher Rechtsphilosophie," in Manfred Buhr, et al., Aktuelle Vernudt 67 (1985); "Stahls Berufung," in Helmut Bock (ed.), Unzeit des Biedermeiers 206 (1985); "Von den Griechen lernen, was schon, von den Romern lernen, was recht ist?," in Zum Problem der Geschichtlichtkeit cikthetischer Normen 22 (Sitzungsberichte der Akademie der Wissenschaften der DDR, 1986); "Rechtsphilosophie in Berlin, voriges Jahrhundert," in 36 Staat und Recht 101 (1987); "Das Recht zur Revolution -die sozialphilosophische Quadratur des Kreises?," in Die Grosse Franzosische Revolution und die Frage der revolutiondira Demokratie 43 (1987); "Als Recht und Poesie aus einem Bette aufzustehen schienen," Series 10, Zmpulse 168 (1987).
 
6. Savigny, "Stimmen fur und wider neue Gesetzbiicher," 3 Zeitschrift fur geschichtliche Rechtswissenschclft 22 f. (1816). The bagatellization of such passages by Erik Wolf, Crosse Rechtsdenker der deutschen Ceistesgeschichte 509 (1963), who sees Savigny's religiously-based antisemitism as being formed under the influence of his "unfriendly disputes" with Eduard Gans, goes astray for various reasons, one of which is that these controversies only took place many years after the anti-Jewish remarks of 1816. The decision of the Faculty of Law of 4 April 1820, rejecting Gans among other reasons because he was a Jew, was also signed by Savigny; it is reprinted in 4 Max Lenz, Geschichte der Koniglichen Friedrich-Wilhelms Universitat zu Berlin, 448 (1910). The Savigny-Gans conflict has recently been considered and analyzed by Braun, "Schwan und Gans," 34 Juristen Z. 769 (1979).
 
7. The formulation of a well-known student of his: 1/2 Marx/Engels, Collected Edition (MEW) 172 (1982).
 
8. See Heinz Wagner, Die Politische Pandektistik 125 (1985); Hans G. Reissner, Eduard Gans 27 (1965); 1Max Lenz, supra. n. 6 at 410 ff.; 3 id. at 449ff; 4 id. at 145ff.
 
9. Martin Wolff, Das internationale Privatrecht Deutschlands 19 (1949); Max Gutzwiller, Der Einfluss Savignys auf die Entwicklung des Internationalprivatrechts (1923). Concerning the general international influence of Savigny, see Paul Koschaker, Europa und das Romische Recht 276 (1966); as to his influence on Austin, see W.L. Morison, John Austin 61 (1982) and my review thereof, 71 Arch. R.- & Sozialphil. 287 (1985).
 
10. See Kobler, "Zur Herkunft der deutschen Rechtslehrer des 19. Jahrhunderts," in Festschrift fur W. Mellman 128 (1978).
 
11. 1 Savigny, System des heutigen Rdinischen Rechts 22, 24 (1840). See Franz Wieacker, Privatrechtsgeschichte der Neuzeit 385 (1967); Ernst-Wolfgang Bockenforde, Staat, Geselkchaft, Freiheit 13 (1976) ("The Historical School of Law and the problem of the historical dimension of the law").
 
12. Savigny, Vom Berruf unsrer Zeit fur Gesetzgebung und Rechtswissenschaft 30 (1814). See Dieter Grimm, Recht und Staat der burgerlichen Geselkchaft 355 (1987).
 
13. Savigny, supra n. 12 at 11.
 
14. Savigny, supra n. 11, 1 at IV f.
 
15. Ludwig Feuerbach, 8 Collected Works 293 (1969).
 
16. See Gustav Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts 134, 434-45 (Vol. 2 of the Lehrbuches eines civilistischen Cursus, (1798), cited here in its third edition, was also used by Savigny (1809). In his general attack against "the philosophical manifesto of the Historical School of Law," Marx used and cited the fourth edition of Hugo's text on natural law, which appeared in Berlin in 1819. See I/I MEW, supra n. 7 at 191, 1018 (1975). Hugo's concept of society, with whose help he denied the generation of the living the right to revolt, because the right of the dead and the unborn generations thereby would be injured, incidentally corresponds to the social-contract model of Edmund Burke, as it was publicized in 1793 in Berlin: "Society is a partnership between those who are living, those who are dead and those who are to be born,"; see Burke, Reflections on the Revolution in France 194 (1982).
 
17. See Friedrich Gedicka & J.E. Biester (eds.), Berlinische Monatschrlft (1986); Wilhelm v. Humboldt, Individuum und Staatsgewalt (1985); Immanuel Kant, Rechtslehre. Schrlften zur Rechtsphilosophie 241-86 (1987).
 
18. Savigny, Juristische Methodenlehre 50 (1951); 2 Georg Friedrich Hegel, Work 517 (1974).
 
19. Concerning Rehberg, see above all Klaus Epstein, The Genesis of German Conservatism 547 ff. (1966). The pro-revolutionary work of Fichte mentioned in the text (new ed. 1973), which was directed against Rehberg, was in turn thoroughly and critically reviewed by Friedrich Gans at the time, in Allgemeine Literaturzeitung, Jena, 7 May 1794.
 
20. Anton Friedrich Justus Thibaut, Uber die Nothwendigkdt eines allgemeinen burgerlichen Rechts fur Deutschland 64 (1814); Thibaut, Civilistische Abhandlungen 461 (1814); see Thibaut's review of Rehberg's writing against the Code Napoldon in Heidelbergische Jahrbucher der Literatur 1 (1814).
 
21. Savigny, supra n. 12, at 54 f f . , incidentally with an explicit reference to Rehberg.
 
22. Johann Gottlieb Fichte, Zurri'ckforderung der Denkfreiheit von den Fursten Europas, die sie bisher unterdruckten, Heliopolis, in the last year of the old darkness XI11 [1793].
 
23. Fichte, supra n. 19 at 141.
 
24. Id. at 5, 60. See Universalhistorische Aspekte und Dimensionen des Jakobinismus (Sitzungsberichte der Akademie der Wissenschaften der DDR) 160 (1976): "The dead Fichte before Prussian censorship."
 
25. 1 Savigny, supra n. 11 at 338.
 
26. Savigny, "Uber den Zweck der Zeitschrift fur geschichtliche Rechtswissenschaft," 1 Zeitschrift fur geschichtliche Rechtswissenschaft 1 (1815), reprinted in 1 Vermischte Schriften 105 (1850) (see also Vol. 5, at 115); Savigny, supra n. 12.
 
27. Friedrich Gentz, Betrachtungen uber die franzosische Revolution. Nach dem Englischen des Herrn Burke neu bearbeitet mit einer Einleitung, Anmerkungen, politischen Abhandlungen und einem critischen Ve-rzeichnis der in England uber diese Revolution erschienenen Schriften, part 1, 122 (1793); same, in 2 Historisches Journal (No. 2) 73 f. (1800).
 
28. See 1 Adam Muller, Die Elemente der Staatskunst 48, 59, 154, 264, 284 (1922); 2 same 196; Muller, Handschrtftliche Zusatze zu den "Elementen der Staatskunst" 114 (1926).
 
29. 1 Carl Ludwig von Haller, Restauration de-r Staatswissenschaft 40, 69-72 (1816); 3 same 268 (1821); 6 same 565 (1825). See Friedrich Meinecke, Weltburgerturn und Nationaktaat 223-77 (1919): Haller and the circle around Friedrich Wilhelms IV.
 
30. 1 Friedrich Julius Stahl, Die Philosophie des Rechts nach geschichtlicher Ansicht V-XVI (1830-1837); 2/1 same, 18; 2/2 same, 73. A Stahl bibliography is offered by Zoltan Peteri (ed.), Legal Theory. Comparative Law 129 (1984).
 
31. On his impressions of Berlin, see Hegel in his Heidelberg letter of 12 September 1818 to his sister Christiane, immediately before his move to Berlin. See Johannes Hoffmeister (ed.), 2 Briefe von und an Hegel 197, 271 (1970).
 
32. 11 Georg Friedrich Hegel, Werke 183 (1969-1971). Hereafter, this edition will be cited by volume and page, unless otherwise indicated.
 
33. 1 Georg Friedrich Hegel, Vorlesungen der Rechtsphilosophie 1818-1831, 232, 237 (Karl-Heinz Ilting, ed., 1973-74). This concerns a transcript of a lecture of Hegel mentioned in the Index lectio under the title Ius naturae et civitatis/Naturrecht und Staatswissenschaft. It was prepared by Carl Gustav Homeyer, later himself a significant legal scholar, one incidentally in the footsteps of Savigny!
 
34. See the appropriate letter of Savigny in Gunther Nicolin (ed.),Hegel in Berichten seiner Zeitgenossen 230, 239 f., 291, 294, 506 (1971).
 
35. See Hegel, supra n. 32, Vol. 10/399-417, particularly 400; same supra n. 33 at 231-34; 1 Georg Friedrich Hegel, Vorlesungen uber Geschichte der Philosophie 3-8 (1982).
 
36. See Georg Friedrich Hegel, Grundlinien der Philosophie des Rechts 35, 243, 253, 280, 410, 490, 513 (1981).
 
37. See the review by Gustav Hugo of Hegel's Rechtsphilosophie, published in the Gottingescher gelehrten Anzeigen of 16 April 1821,as well as Hegel's counterdeclaration, in the Halleschen Allgemeine Literaturzeitung, May 1821, both reprinted in 1 Manfred Riedel (ed.), Materialien zu Hegels Rechtsphilosophie 67 (1975).
 
38. See 1 Eduard Gans, Das Erbrecht in weltgeschichtlicher Entwicklung XV (1824);same, Uber die Orundlage des Besitzes 2 (1839); 8 Ludwig Feuerbach, Gesammelte Werke 36 (1969) and same, Vol. 17 at 219 (1984); Heinrich Heine, Reisebilder 391 (1987); Arnold Ruge, "Die berliner Juristenfacultat," Hallische Jahrbucher fur deutsche Wissenschaft und Kunst 502 (1841); Marx/Engels, MEW, supra n. 7,Vol. 1/ 1 172 f., 167, 191 ff., 205;Vol. III/l, 16.
 
39. Adolf Friedrich Rudorff, Gedachtnisrede auf Friedrich Carl von Savigny 17 (1862).
 
40. Rudolf v. Jhering, "Friedrich Carl von Savigny," 5 Jahrbucher fur die Dogmatik des heutigen rdinischen und deutschen Privatrechts 354 (1861); See 2 Mario G. Losano, Studien zu Jhering und Gerber 53 (1884); Bernd Klemann, Rudolf von Jhering und die Historische Rechtsschule 69, 140 (Diss. Leipzig 1987).
 
And from this day stem the Olympian comparisons of Savigny, which have not yet abated. See Jhering, id, at 356; Morita August von Bethmann-Hollweg, "Erinnerungen an Friedrich Carl von Savigny," 6 2.RGesch. 44 (1867); III/2 Ernst Landsberg, Geschichte der Deutschen Rechtswissenschaft 213 (1910); Franz Wieacker, Privatsrechtsgeschichte der Neuzeit 383 (1967); Hans Kiefner, "Der Einfluss Kants auf Theorie und Praxis des Zivilrechts im 19. Jahrhundert," in Jiirgen Bluhdorn & J. Ritter (eds.), Philosophie und Rechtswissenschaft. Zum Problem ihrer Beziehungen im 19. Jahrhundert 5 (1969); Wolfgang Fikentscher, Methoden des Rechts 263 (1976).
 
41. See Reimund Scheuermann, Eiltfliisse der historischen Rechtsschule auf die oberstrichterliche gemeinrechtliche Zivilrechtspraxk (1972); Horst Hammen, Die Bedeutung Savignys fur die allgemeinen dogmatischen Grundlagen des Deutschen Burgerlichen Gesetzbuches (1983), as well as my review there in 6 Z.N. RGesch. 206 (1984).
 
42. Already in 1798 he had written to a friend about his hope that when the spirit of violent revolution once was extinguished, one might bring about that silent reform which, working without the bloody accompaniment of the former, would be the more certain and enduring. Reprinted in 1 Alfred Stoll, Friedrich Karl von Savigny.  Ein Bild seines Lebens mit einer Sammlung seiner Bride 69 (1927). See also  5 Savigny, Vermischte Schriften 181 (1850): "Now, that we are no longer exposed to  those political dangers with which the Code Napoleon threatened us before 1813, we  German jurists can become acquainted with the French jurisprudence with an easy  conscience."
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