1902 Encyclopedia > Karl Salomo Zachariae von Lingenthal

Karl Salomo Zachariae von Lingenthal
German jurist

KARL SALOMO ZACHARIAE VON LINGENTHAL, (1769-1843), German jurist, was born on 14th September 1769 at Meissen in Saxony. His family came from Austria. His father was a lawyer ; his mother, a Hessian, was the daughter of a pastor. Of feeble health and long the only child of his parents, Karl did not go to school until the age of fifteen. He afterwards studied philosophy, history, mathematics, and philology at the university of Leipsic. In 1792 he went to Wittenberg as tutor to Count zur Lippe, and whilst there he began to study law. There he came greatly under the influence of Kant, traces of whose teaching remain even in his latest writings. In 1794 Zachariae became a privat-docent, lecturing on canon law, in 1798 extraordinary professor, and in 1802 ordinary professor of feudal law. From that time to his death in 1843, with the exception of a short period in which public affairs occupied him, he poured out a succes-sion of works covering the whole field of jurisprudence and extending into other adjoining regions. He was also in-defatigable in the labour of his chair, and he was the editor of, or a copious contributor to, more than one periodical. In 1807 he went to Heidelberg, then begin-ning its period of splendour as a school of law. There, resisting many calls to Gottingen, Berlin, and other univer-sities, he remained until his death. In 1811 he married under romantic circumstances. His wife died in four years.

In 1820 he was elected representative of the university in the first Baden chamber, and four years later was made a member of the second. From 1825 to 1829 he devoted much time to political affairs and to the preparation of a code. He was a constitutional reformer, averse to great or violent changes. He loved to cite the saying of the Roman emperor to his adopted son,—"Imperaturus es hominibus qui nec totam servitutem pati possent nec totam libertatem,"—"a truth," he observes in one of his many brochures (Die Souverainetatsrechte der Krone Wurtemberg, &c), "which no Government and no people should ever forget." In 1842 he was ennobled with the title of Von Lingenthal. To the last days of his life he toiled with the ardour of a young student. His fame extended beyond Germany. The German universities then enjoyed by tacit consent a jurisdiction in regard to legal questions of international importance which had come down from the Middle Ages; and Zachariae was often consulted as to questions arising in Germany, France, and England. Elaborate "opinions," some of them forming veritable treatises,—e.g., on Sir Augustus d'Este's claim to the duke-dom of Sussex, Baron de Bode's claim as an English sub-ject to a share in the French indemnity, the famous dispute as to the debts due to the elector of Hesse-Cassel, confis-cated by Napoleon, and the constitutional position of the Mecklenburg landowners,—were composed by Zachariae. He died on 27th March 1843, leaving a son who has worthily continued his father's labours in jurisprudence.

Zachariae's true history is in his writings, which are extremely numerous and multifarious. They deal with almost every branch of jurisprudence ; they are philosophical, historical, and practical; they relate to Roman, canon, German, and French law ; and his curiosity extended to the writings of his contemporaries, Bentham and Austin. A work on Sulla, in whom he sees another Napoleon, and an unpublished translation of his favourite Tacitus were some of the fruits of his restless activity. The first book of much consequence which he published was Die Einheit des Staats und der Kirche mit Rückgesicht auf die Deutsche Reichsverfassung (1797), one of the most original of his works, displaying the writer's power of analysis, his skill in making a complicated set of facts appear to be deductions from a few principles, —a study even now well worth reading. His theme is the relation of religion to the state. Zachariae undertakes to show that with Christianity three systems only are possible, — (1) what he calls the system of hierarchy, according to which the state is under the power of the church, the object of the former being subordinated to that of the latter ; (2) the territorial system, according to which the church is subject to the power of the state ; and (3) what he terms the collegiate system, according to which neither of the two societies is subject to the other, and both have different objects in view. The con-sequence of the adoption of these various systems—the principles of law which must be accepted according as one or the other of them is supreme—he deduces with much acumen. While much of his work has lost its interest, it remains a luminous example of the application of the deductive process to historical investigation, a proof that legal conceptions may often serve to give unity to the complex facts of history. In 1805 appeared Versuch einer allgemeinen Hermeneutik des Reehts. Neither in English nor in Scotch legal literature is there any book, so far as known to the present writer, covering the field to which it relates. It is an attempt to found on the rules of grammar and logic a system of interpretation applicable to all systems of law. The weak part of the book is that, like so many of Zachariae's works, it stops short at the point where the inquiry would be most fruitful. Illustrations are taken from Roman law ; we miss any adequate treatment of the problems which the forms of modern legislation raise. In 1806 appeared Die Wissenschaft der Gesetzgebung, a fragment, which is a curious outcome of the French Revolution. Impressed by the overthrow or decay of the forces which had hitherto held society together, he looked about for a better substitute for them than politique de circonstance offered. Many of Zachariae's maxims seem fanciful; there are divisions which do not elucidate, and distinctions made apparently for their own sake. But the work is interesting; it shows that the author was groping after the prin-ciple of utility as the guide of the legislator ; the study of very different facts had brought him independently to much the same conclusion as Bentham had reached. Zachariae's last work of importance was Vierzig Biicher vom Staate, published in 1839-42, with the motto non omnis moriar. This was his favourite work, and is the one to which his admirers point as his enduring monu-ment. Undoubtedly it contains much erudition and, what is rarer, many original ideas as to the future of the state and of law. It lias been compared to L'Esprit des Lois, and Zachariae, in spite of his pedantry, has some tincture of the discursive brilliancy of Montesquieu. It covers no small part of the field of Buckle's first volume of the Bistory of Civilisation. The reader will, however, seek in vain for any order or system in some of the chapters of Vierzig Biicher vom Staate. He was recasting many of his ideas as he wrote, and the book ends before the process is completed. Among the most esteemed of the works of Zachariae is that on Staatsrecht, of the originality of which he was proud, and his treatise on the Code Napoleon, a marvellous work, considering it was composed by a German professor who did not much concern himself with this subject till somewhat late in life. There are no fewer than three French editions of his book, and it has been trans-lated into Italian. Zachariae edited with Mittermaier the Kritische Zeitschrift fiir Rechtswissenschaft und Gesetzgebung des Auslandes, and the introduction which he wrote illustrates his wide reading and his constant desire for new light upon old problems.

Zachariae exhibits the best and the worst sides of German juris-prudence : there is the desire not to base generalizations or con-clusions on the peculiarities of any one system, but to master the whole facts. He does not assume a distinction or classification of Roman law to be necessarily scientific. He seeks real reasons ; he avoids the English lawyer's favourite fallacy of proving idem per idem, of seeking to show the reasonableness of anything by saying the same thing again in different language. Though a scholar, Zach-ariae has not the weakness of exaggerating the importance of what-ever is rare or unpublished, and he has no delight in barren erudition. Himself a learned pandectist, he had cast aside his countrymen's, proneness to find all things in the Corpus Juris. His books, how-ever, have the failings of so many German works on law. They want actuality ; they have little relation to the facts of life. They are leavened by metaphysics—often very bad metaphysics, and not always by the same system. Nor is he a clear thinker. We are never sure what is his notion of the province of jurisprudence ; his favourite idea appears to be that law creates among men an order similar to that which exists in the physical world, and that it is a security for the freedom of man's will. The influence of Kant is observable in all his works. In his later that of Hegel also appears; and his mental changes do not end there. He does not indeed say, "Back to Montesquieu; study facts, the simplest and primitive facts above all ; adopt his method, and improve upon it ; " but that is the wise spirit of some of his later works. Unfortunately he did not fulfil the promise which they contain. He had not learned to distinguish sharply between the science anil the practical art of jurisprudence, and we are never certain in what capacity he speaks. He had not conceived clearly the truth that society forms one whole, that the phenomena of law at any given time or place are not acci-dents but the outcome of a long train of events, that, so regarded, they are as much susceptible of scientific treatment as the facts of language, and that a treatise on botany or, still more, one on com-parative philology is a better guide to what jurisprudence may yet be than a volume of Hugo or even Austin. It was made a reproach to Zachariae that he changed -his opinions. He did so ; it was a sign of his single-mindedness and restless curiosity. It is also one of the reasons why his works are now little read. They opened paths, and they were superseded by others which could not have existed without them.

There is no adequate account of Zachariae and his works ; the best are Robert von Mohl's Geschichte u. Literatur tier Staatswissenschaften (1855-58) and Charles Broeher's K. S. Zachariae, sa Vie et ses Oeuvres (1870). (J. Mb)

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