Friedrich Carl von Savigny | |
|---|---|
 | |
| Born | (1779-02-21)21 February 1779 |
| Died | 25 October 1861(1861-10-25) (aged 82) |
| Philosophical work | |
| Era | 19th century philosophy |
| Region | Western philosophy |
| School | German Historical School |
| Main interests | Legal studies,legal philosophy |
| Minister of Justice of Prussia (Minister for the Revision of Laws) | |
| In office 28 February 1842 – 20 March 1848 | |
| Monarch | Frederick William IV |
| Preceded by | Karl Albert von Kamptz |
| Succeeded by | Friedrich Wilhelm Ludwig Bornemann [de] |
Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a Germanjurist and historian.[1][2]
Savigny was born atFrankfurt am Main, of a family recorded in the history ofLorraine, deriving its name from the castle of Savigny nearCharmes in the valley of theMoselle. Left asorphan at the age of 13, Savigny was brought up by a guardian. In 1795, he entered theUniversity of Marburg, where, though in poor health, he studied under ProfessorsAnton Bauer (jurist) [de;eo;es;fr;ru;sv] andPhilipp Friedrich Weiss [de], 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, notablyJena,Leipzig andHalle; and returning to Marburg, took his doctorate in 1800. At Marburg he lectured asPrivatdozent on criminal law and thePandects.
In 1803 Savigny publishedDas Recht des Besitzes (The Law of Possession).[3]Anton Thibaut hailed it as a masterpiece which brought the old uncritical study ofRoman law to an end. It quickly obtained a European reputation, and remains a prominent landmark in the history of jurisprudence. In 1804 he married Kunigunde Brentano, sister ofBettina von Arnim andClemens 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 atLandshut. He remained in this position for a year and a half. In 1810 he was appointed to the chair of Roman law at the newUniversity of Berlin, chiefly at the insistence ofWilhelm von Humboldt. Here, in connection with the faculty of law, he created aSpruch-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 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 befriendedBarthold Georg Niebuhr andKarl Friedrich Eichhorn.
In 1814 Savigny wrote the pamphletVom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft [de;ja] (Of the Vocation of our Age for Legislation and Legal Science). In an earlier pamphlet, Thibaut advocated for the creation of a unified legal code for Germany, free from the influence of foreign legal systems. In contrast, Savigny contended that such codification would have a detrimental effect. In his view, the damage that 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 legal science should be saved from the "hollow abstractions" of such a work asChristian Wolff'sInstitutiones juris naturae et gentium. Savigny opposed this conception of legal science to the "historical study of positive law", which according to him is "a condition precedent to right understanding of the science of all law". Savigny did not oppose the introduction of new laws or of a new system of laws, but considered that the laws of any nation should reflect the "national spirit (Volksgeist)".[4][5]
In 1815 Savigny, together with Eichhorn andJohann Friedrich Ludwig Göschen [de;hu;it;ru;sv], founded theZeitschrift für geschichtliche Rechtswissenschaft [de;no] (Journal for Historical Legal Science), the organ of thenew historical school. In this periodical (vol. iii. p. 129 seq.) Savigny made known to the world the discovery by Niebuhr inVerona of the lostInstitutes ofGaius. Savigny pronounced it to be the work of Gaius himself and not, as Niebuhr had suggested, ofUlpian.
The same year, 1815, Savigny published the first volume of hisGeschichte des römischen Rechts im Mittelalter (History of Roman Law in the Middle Ages),[6] 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 fromIrnerius to the present time. His design was in some respects 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 inBologna and other Italian cities.
In 1817 Savigny was appointed a member of the commission for organizing thePrussian provincial estates, and also a member of the department of justice in theStaatsrath (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 head of the Prussian legal system. 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 hisVermischte Schriften (Miscellaneous Writings), 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 in 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.
Savigny belongs to the Germanhistorical school of jurists, founded byGustav Hugo, and served a role in its consolidation. The works for which Savigny is best known are theRecht des Besitzes and theBeruf unserer Zeit für Gesetzgebung. According toJhering "with theRecht 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 theBeruf 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 ofjurisprudence cannot be divorced without injury to both.
Major publications by Savigny include:
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