1902 Encyclopedia > Friedrich Carl von Savigny

Friedrich Carl von Savigny
German jurist and historian
(1779-1861)




FRIEDRICH CARL VON SAVIGNY, (1779-1861), was born at Frankfort-on-the-Main on February 21, 1779. He was descended from au ancient family, which figures in the history of Lorraine, and which derived its name from the castle of Savigny near Charmes in the valley of the Moselle. When Lorraine passed into the possession of France, his family attached itself to Ger-many, and his ancestors filled important official posts in Nassau and other German states. His great-grandfather wrote a work, La Dissolution de la Reunion, as a protest against the conquests of L°nis XIV. ; his grandfather was " Regierungsdirector " at Zweibrucken, and his father was a noble of the empire and " Kreisgesandter " of several princes of the diet of the circle of the Upper Rhine. His father, Carl Ludwig von Savigny, died in 1791, his mother in 1792, and he was brought up and educated by his guardian, Herr von Neurath, assessor of the Reichs-kammergericht or imperial chamber at Wetzlar, a master of the " Staatsrecht " of the time.

In 1795 Savigny went to study at Marburg, and derived great advantage, as is gratefully recorded by him, from the teaching and friendship of Professors Weis and Bauer. For six months he studied at Gottingen. It is noted as a curious circumstance that, though Hugo, the great civilian, was there lecturing, Savigny did not attend his course. He suffered much for two or three years from ill-health. Savigny visited, after the fashion of German students, Jena, Leipsic, and Halle ; and he returned to Marburg, where, on December 31, 1800, he took his | doctor's degree. His inaugural dissertation was entitled _ De Concursu Delictorum Formait. At Marburg he lectured as privat-docent on criminal law, the pandects, the law of succession, obligations, and the methodology of law. In 1803 he published his famous treatise, Das Recht des Besitzes, or the right of possession. It was at once hailed by Thibaut as a masterpiece ; jurists recognized that the old uncritical study of Roman law was at an end. It quickly obtained a European reputation, and still remains a prominent landmark in the history of jurisprudence. It was the fountain-head of a stream of literature which has not yet ceased to flow. Austin, no partial judge, pro-nounced it to be " of all books upon law, the most con-summate and masterly." In 1804 Savigny married Kuni-gunde Brentano, the sister of Bettina von Arnim and Clemens Brentano the poet. In that year he visited Paris, chiefly with a view to make researches in the National Library into the life of the jurist Cujas, whom he greatly admired. In a letter to be found in his miscel-laneous works he explains the ground of his admiration. " Dans l'histoire de la jurisprudence moderne, il n'y a pas d'époque plus brilliante que celle du 16mo siècle. C'est alors que la science du droit eut véritablement un grand et noble caractère qu'elle n'a pas retrouvé depuis." A story not without significance as to his character relates to this period of his life. On his way to Paris, a box containing papers in which were the results of laborious researches was stolen from his carriage. He bore the loss with equanimity, and managed with the assistance of Jacob Grimm, his wife, and one of her sisters to do much to re-pair the loss.





In 1808 he was appointed by the Bavarian Government ordinary professor of Roman law at Landshut, where he remained a year and a half, and where he left many pleasant memories. In 1810 he was called, chiefly at the instance of William von Humboldt, to Berlin to fill the chair of Roman law, and assist in organizing the new university. One of his services was to create, in con-nexion with the law faculty, a " Spruch-Collegium," or university court, competent to deal with 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 uni-versity (of which he was the third rector), and as tutor to the crown prince in Roman, criminal, and Prussian law. Not the least important consequence of his residence in Berlin was his friendship with Niebuhr and Eichhorn. In 1814 appeared his pamphlet Tom Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft. It was a protest against the demand for codification, and in particular against the extension of the Code Napoleon to Germany. Fired with the hope that a day of resurrection for the national life of Germany was at hand, Thibaut had written a pamphlet urging the necessity of forming a code for Germany. Savigny wrote a reply, in which were laid down some principles with which wise advocates of codi-fication might well agree. "I regard," he said, "the law of each country as a member of its body, not as a garment merely which has been made to please the fancy, and can be taken off at pleasure and exchanged for another." He laid stress upon the connexion of the present and the past and the consequent limitations of the power of legis-lation. But in the course of his argument he confounded the errors of codifiers in France, Austria, and Prussia, and especially the defects in the Code Napoleon, with the necessary incidents of codification. Put at its highest, his argument comes to little more than others had before crudely expressed by saying, "We are not wise enough to compose a code."

In 1815 he founded, with Eichhorn and Gb'schen, the Zeitschrift fur geschichtliche Rechtswissenschaft, the organ of the new historical school, of which he was the represen-tative. In 1816, while on his way to Rome as envoy of Prussia, Niebuhr made at Verona the celebrated dis-covery of the lost text of Gaius. He communicated to Savigny the fact, and also his conjecture that it was the work of Ulpian. Savigny made known the discovery to the world in an article in the Zeitschrift, and pointed out Gaius as the real author. Goschen, Bekker, and Holl-weg actually deciphered the manuscript; but there is some truth in Hugo's saying, " Without Savigny one would not have had Gaius."

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 Geschichte des Romischen Rechts im Mittelalter; the last did not appear until 1831. This work, to which his early instructor, Weis, 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 saw fit not to 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 con-tinuity in the history of Roman law; and it was an emphatic protest against the habit of viewing the law of a nation as an arbitrary creation, not connected with its history and con-dition. It was the parent of many valuable works which continued Savigny's investigations.8 In 1817 he was ap-pointed a member of the commission for organizing the Prussian provincial estates, and also a member of the department of justice in the Staatsrath, and in 1819 he became a member of the supreme court of cassation and revision for the Rhine Provinces. In 1820 he was made a member of the commission for revising the Prussian code. In 1822 a serious nervous illness attacked Savigny, and compelled him to seek relief in travel. He always con-sidered that he had benefited much by the homoeopathic treatment of Dr Necker, and he remained a firm believer in homoeopathy. In 1835 he began his elaborate work on the modern system of Roman law. The eighth and last volume appeared in 1849.

In March 1842 he.ceased to perform his duties as professor in order to become " Grosskanzler" of Prussia; and in that position he carried out several important law reforms in regard to bills of exchange and divorce (a subject on which he had meditated much). He held that office until 1848, when he resigned, not altogether to the regret of his friends, who had seen his energies with-drawn 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. Professor Scheurl, in his Einige Worte über Savigny, notes the fact that on the 31st of October Luther first revealed to the world the light of evangelical truth, and Savigny on that day began his work as a law reformer. In 1853 he pub-lished his treatise on Obligations, a supplement to his system of modern Roman law. Savigny died at Berlin on October 25, 1861. His son, Carl Friedrich von Savigny, born September 19, 1814, was Prussian minister of foreign affairs in 1849. He represented Prussia in important diplomatic transactions, especially in 1866, and died February 11, 1875.





In the history of jurisprudence Savigny's great works are the Macht des Besitzes and the Beruf unserer Zeit für Gesetzgebung. The former marked au epoch in jurisprudence. Prof. Ihering says: "With the Mecht des Besitzes was the juridical method of the Romans regained, and modern jurisprudence born." It marked a great advance both in results and method, and it rendered obsolete a large literature. Savigny sought to prove that in Roman law possession had always reference to usucapion or to interdicts, that it is not a right to continue in possession, but to immunity from violence, and that possession is 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 book also seeks to solve the problem of general interest, common to almost every system of jurisprudence, why possession, rightful or wrongful, as distin-guished from property, should be protected. This general problem suffers by being almost solely discussed with reference to Roman law. His leading principle, that every " exercise of force " is illegal, is not incontestible, and, if true, it does not clear up the whole problem. The attempt to treat the historical accidents of Roman aw as juridical necessities is the weak side of a work in other respects masterly; and there is a difficulty in understanding Austin's eulogy that it was of all books he knew " the least alloyed with error and imperfection." The controversy which has been carried on in Germany by Ihering, Baron, Gans, and Bruns shows that many of Savigny's conclusions have not been accepted.1 The Beruf unserer Zeit expresses the idea, un-familiar in 1814, that law is part and parcel of national life, and combats the notion, too much assumed by French jurists, espe-cially in last 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 founding or 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. Writing at a time when the influence of Hegel was in the ascendant, and in a city where he was official philosopher, Savigny was not carried away by meta-physical theories. In all his writings there is not a word betraying acquaintance with the labours of his great contemporary, Bentham; nor had Bentham more than the most superficial knowledge of 1 See Windscheid, Lehrbuch des Pandektenrechts, i. 439.
him (see Gans's Miickblicke auf Personal). Perhaps a study of both would do more than anything else to aid in the construction of a true science of jurisprudence, consisting neither of platitudes and logomachies nor of a worthless catalogue of legal curiosities. (J. Mf. )


Footnotes

The object of his investigation is thus described : " Delicta ooncurrere dicuntur, ubi de pluribus legum violationibus, quarum nonnisi unus est reus, in eodem judicio puniendis agitur. "
See Austin's criticisms in Lectures, ii. 698.

3 See Von Mohl's Staatsurissenschaft, vol. iii. p. 55. Vor a some-what less favourable view, see Gans's Vermischte Schriften.




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