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## 1uRl0lCA lNJLRNAJl0NAL Xl/2006

1cachim Rckert
Prc|esscr, !.w. Ccet|e-un|.ers|tat
Friedrich Carl von Savigny,
the Legal Method,
and the Modernity of Law
*
Two very Iamous eIements oI the European history oI Iaw are connected by the titIe oI this articIe: modernity
and Savigny.
Modernity` is a big word. It appears impressiveIy in the aII-encompassing singuIar, as modernity` and not
modernities`, and it divides our compIete history into the modern and pre-modern, or the modern and the oId.
The oId may be Iorgotten. In speaking oI modernity as an unIinished project`, it is strictIy the Iuture that is
examined; onIy there can compIetion be expected. It was the Iamous German phiIosopher Jrgen Habermas
Irom FrankIurt who has stressed this perspective since 1980 in argument against severaI so-caIIed post-
modernists, such as Wittgenstein, C. Schmitt, and Lyotard as weII as such conservatives as FoucauIt, BateiIIe,
Derrida, and Nietzsche, again and again. ThereIore, it was he who eIaborated the IormuIa modernity an
unIinished project` into a weII-known topos Ior many oI the battIes to come against a new conservatism.
Savigny`, too, is a big word. Savigny was the most Iamous Iawyer not onIy oI his epoch. His name has
surpassed those oI many Iuminaries oI past centuries and the current one. Even today he occupies an impor-
tant pIace in every IegaI, many biographicaI, and even some oI the major Iiterary encycIopaedias. He may
enter the discussion with ease and is now abIe to announce himseII simpIy with his caIIing card`, as becomes
cIear.
Savignys card to Goethe, announcing his visit in 1832.
*1
*
Lecture given in Tartu in March 2006.
1
O. Liebmann (ed.). Die juristische FakuItt der Universitt BerIin von ihrer Grndung bis zur Gegenwart in Wort und BiId ... BerIin
1910, p. 85.
#$ 1uRl0lCA lNJLRNAJl0NAL Xl/2006
Two ceIebrities are good Ior a starting point but do not a summer make` as we say when the swaIIows
return in spring: A singIe swaIIow does not make a summer. One hopes they`II IinaIIy return soon, together.
So, how may we make these two ceIebrities meet? What do they have in common? Why Savigny? What can
be Iearnt Irom them Ior the modernity oI Iaw? AIIow me to make my smaII and modest contribution to this.
1. The modernity of law
What is meant by this IormuIa to what texts, peopIe, IegaI thoughts, and Iigures does it reIer? I shaII caII
some eIements to mind to iIIuminate the connection to Savigny.
The project oI modernity` notion combines two messages: one oI a historicaI nature and the other oI a
practicaI kind. Modernity is seen as a historicaI process, and its compIetion is a practicaI task. ThereIore, the
method is to connect proper cognition and proper action in one singIe project.
Seen Irom a historicaI standpoint, the view is one with its origins in the time oI the EnIightenment, which
was nearIy beIore aII eIse an enIightenment oI the oId IegaI worId. It may be summarised thus, in brieI:
enIightened phiIosophers, in the Iorm oI thinkers such as VoItaire, Hume, and Kant; enIightened criminaI
Iaw through the work oI Beccaria and Feuerbach; enIightened pubIic Iaw such as the Virginia BiII oI Rights,
the Declaration des Droits de lHomme et du Citoyen, and the US Constitution oI 1787 and the French
Constitution oI 1789; enIightened private Iaw in the Code Civil and the Austrian Allgemeines Brgerliches
Gesetzbuch oI 1804 and 1811; and in the work oI jurists such as Cambaceres and PortaIis in France, ZeiIIer
in Austria, Bentham in EngIand, and jurists in the German Reich (Hugo, HuIeIand, and Thibaut, as weII as,
perhaps, Savigny, too).
What is the message oI these names and Iaws? It is that oI (1) the emancipation oI man Irom his seII-created
dependence, in keeping with Kant, the message oI autonomy and Ireedom as a native right oI aII mankind;
(2) the Iaw`s independence oI reIigion and moraIs; (3) Iaw as a guarantee Ior preservation oI both, oI the
common and individuaI Ireedom; (4) Iaw as a common and equaI imperative; (5) civiI rights Ior aII men
instead oI rights onIy Ior states and nations; and (6) so-caIIed eternaI peace. This becomes more concrete
when the various sections oI Iaw are examined. This consideration turns Iirst to criminaI Iaw.
EnIightened criminaI Iaw is mouIded by the IoIIowing nine eIements: (1) the Iaw to punish humans by
humans onIy, not in the name oI God or pure reason; (2) the generaI Iorm oI written Iaw as an essentiaI
protection with regard to IoreseeabIe and equaI treatment; (3) the strict commitment to written Iaw in impo-
sition oI the hazardous eviIs caIIed punishment now and then; (4) precise and speciIic written Iaws; (5)
excIusive codiIication to create the Iatter; (6) Iair triaI beIore punishment, with onIy Iimited reasons Ior
arrest, and with the aboIition oI torture; and (7) pubIic and oraI triaI, and the sociaI prevention oI crime. In
brieI, the aim was to aIIow punishment onIy as a necessary and utmost eviI.
For pubIic Iaw and the system oI judicature the main task was to create inaIienabIe human rights, as pro-
cIaimed in 1776, which are independent oI state, guaranteeing Iiberty and property, as weII as to secure them
in diIIerent ways: through constitutions as soIemn written texts, by separation oI powers, via strict commit-
ment oI the judiciary to the Iaw and independent courts and judges, through the priority oI the constitution
and speciaI constitutionaI courts with judiciaI controI, and by equaI chances oI participation in IegisIation
through popuIar assembIies and parIiaments as Iar as possibIe. Another task was to controI the administra-
tion by creating administrative Iaw and protection through courts. In short, the aims are human rights, a
constitutionaI state, ruIe oI Iaw, and judiciaI controI.
In private Iaw, personaI Ireedom was to be created by shaking oII the traditionaI impositions Irom above
at Iirst by making private Iaw independent Irom dangerous pubIic Iaw and then by casting oII the shackIes oI
status and proIession, by aboIishing the personaI distinction among a serI or Iarmer in the countryside, a
citizen in commerce and trade, and a nobIeman in miIitary and civiI service. Furthermore, private autonomy
shouId be strengthened by canceIIing so-caIIed Preistaxen, reIerring to obIigations to concIude a contract;
by canceIIing prohibitions oI contracting, compuIsions oI approvaI, and tight priviIeges in the Iaw oI con-
tract; then by aboIishing the IeudaI bindings oI property and the trappings oI reIigion and oI poIitics and
cIans with respect to the rights oI domestic reIations and inheritance. In brieI the doctrine oI individuaI
private autonomy was the main purpose.
For enIightened jurisprudence the most important point was human autonomy, with independence gained
Iirst Irom reIigion, moraIity, moraIs, poIitics, and phiIosophy, those oId companions oI Iaw. It was most
important to create both, a IegaI subject oI its own and a reIated IegaI method. ThereIore, positive` Iaw (a
word newIy in vogue) meaning human, visibIe, and speciaIIy institutionaIised ruIes was emphasised.
But this did not reIer just to IegaI ruIes in the modern sense oI the term. Since there existed no codiIications
oI private Iaw but a Iong chain oI Roman, domestic, and Canon Iaw, the anaIysis and Iormation oI the Iaw as
an independent uniIied entity had to be the main purpose. To manage this, the positive Iaw couId be deaIt
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
#% 1uRl0lCA lNJLRNAJl0NAL Xl/2006
with in either a practicaIjuridicaI or a scientiIic way. In any case, Iaw was to be presented as a system the
second word to enter the vogue, in about 1800 instead oI as, poIemicaIIy spoken, a mere aggregate`. A
system was said to be a unity structured by principIes (see, Ior exampIe, Kant). One matter oI serious debate
was where the unity oI the positive Iaw originated: Irom the outside (e.g., the arranging mind) or the inside,
the subject itseII. The diIIerence between so-caIIed externaI, or IormaI, and internaI, or materiaI, systems
stiII separates the main concepts oI Iaw and its method Ior exampIe, in German IegaI theory with Larenz
and KeIsen. What roIe does Savigny pIay here? We again return to the Why Savigny?` question.
2. Why Savigny?
Today`s German and European jurisprudence has IeIt behind nearIy aII oI Savigny`s texts. Textbooks on
private Iaw and IegaI methods, and sometimes even decisions, onIy remind us oI his theory oI the Iour
interpretation canons: the theory oI the grammaticaI, IogicaI, historicaI, and systematic eIement oI every
IegaI interpretation. This is not much but is at Ieast something, since the other authors oI Savigny`s era, and
even indeed oI the entire 19
th
century, are paid even Iess attention. OnIy in the history oI science and in very
cuItured speeches is there more memory to Iind.
But is Savigny oI cruciaI importance Ior the modernity oI Iaw? Was his contribution so IundamentaI that it is
worth remembering? ShouId we not be better served by taking a gIance at the modern` RudoII von Jhering,
the preacher oI the motto the purpose creates aII Iaw`, and his contemporary KarI Marx? This sounds
modern. Or shouId we Iook at Eugen EhrIich, the Iather oI the socioIogy oI Iaw, or at Feuerbach, the Iather
oI modern criminaI codes, or at the reaIIy radicaI modernists Iike the Knigsberg-Kantians Theodor von
HippeI and Christian Morgenbesser, whose books survived censorship onIy by accident? In 1798 we read it
in Beitrge zu einem republikanischen Gesetzbuch the terms Ior repubIican` and code` are the modern
key words in this titIe.
There are important reasons to devote oneseII sincereIy to these authors, but there are some good reasons
attending Savigny as weII. Living in 17791861, he joined the debates in the deciding phase oI the Iirst
cruciaI steps into the modernity oI Iaw. The battIes were Iought a IittIe Iater. In the IinaI part oI the 19
th
century, modern constitutions and codes were estabIished nearIy aII over Germany and Western Europe;
there were even generaI and equaI voting rights in the Reich (1871); there was a IundamentaI Iree private
Iaw; there were strict codes oI criminaI Iaw and proceduraI Iaw; and a Iar-reaching independent administra-
tion oI justice was attained. The project oI modernity had thrived at a proIound IeveI in Iaw (even in IamiIy
Iaw and Iabour Iaw), but it had not so deepIy estabIished itseII in society and poIitics.
In addition, Savigny Iived in a centre Ior the German deveIopment, in BerIin, and in the state oI Prussia,
which was more vigorous than others and cIearIy dispIayed the probIems accompanying the modernisation
oI the state, economy, and society.
Those cruciaI struggIes and centres Ior achievement aIways deserve our speciaI interest, because they show
above aII the motives and connections oI a certain probIem e.g., the modernity oI Iaw. Savigny thereIore
is part oI the decisive group oI comrades in arms in the Iight Ior the modernity oI Iaw. AccordingIy, he is oI
great interest where this topic is concerned.
At Ieast, when it comes to the subject itseII, one can make a discovery with Savigny. The onIy prerequisite
invoIves ridding oneseII oI at Ieast three prejudices and misunderstandings. These are:
(1) the LeIt HegeIian and Marxist point oI view, that Savigny was just a juridicaI reactionary;
(2) the opinion that he onIy wanted to preserve conservativeIy what had become obsoIete aIready;
(3) and, especiaIIy, the view that his theory oI IegaI method had become obsoIete and useIess.
The two poIiticaI prejudices I shaII deaI with onIy in brieI at the end oI this Iecture, as I wouId Iike to
examine the Iast point a IittIe more cIoseIy. This is even more reIevant because how this otherwise most
remembered work, his theory oI interpretation, is misunderstood proves paradoxicaI as weII as instructive.
Savigny is going to be shown to be much more modern than is generaIIy assumed.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
#& 1uRl0lCA lNJLRNAJl0NAL Xl/2006
2
P. Raisch. Vom Nutzen der berkommenen AusIegungskanones Ir die praktische Rechtsanwendung. HeideIberg 1988.
3
Ibid., p. 1.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
3. Savigny, the legal method,
and the legal decision
At Iirst sight, Savigny`s texts on IegaI method seem to come Irom another worId with regard to their Ian-
guage and subject. His cIassicaI German is deceptive when it comes to the unknown meanings oI his words.
And, most importantIy, IegaI method as a methodicaI decision, as we know it today, does not interest Savigny
to begin with. Two exampIes inspire today`s understanding.
3.1. Legal method as method of decision
Nowadays, instructions Ior the correct soIution oI a IegaI case, Ior the appIication and interpretation oI Iaw,
Ior the theory oI argumentation, Ior the assessment oI interest, Ior the judiciaI decision aII words oI
today are to be Iound in books with titIes bearing phrases such as IegaI method`. In the centre oI their
attention is the judiciaI decision. Two exampIes may prove this. My choice was mouIded not by originaIity
but by signiIicance.
Some years ago, a highIy detaiIed portrayaI was pubIished, whose name transIates to Legal Methods: From
Classical Rome to the Present.
*2
The author, known as a civiIian Iawyer, indicates aIready in the Iirst
sentence oI his book that he considers IegaI method to be 'methods oI thinking, Ieading to the correct`
resoIution oI cases
*3
. For him the entire history oI jurisprudence is transIormed into a practicaI instruction,
especiaIIy Ior the correct interpretation oI Iaw and the so-caIIed canons mentioned above. That is, the
grammaticaI, historicaI, IogicaI, and systematic arguments are eIements oI any decision, in the author`s
view.
My second exampIe originates Irom Germany`s Iavourite book on IegaI methods, which repIaced the method
oI scientiIic jurisprudence` oI KarI Larenz Irom 1960: the short and precise textbook Juridical Method by a
Iamed pubIic Iawyer Irom ErIangen, ReinhoId ZippeIius. The Iirst edition was pubIished in 1971, the ninth
in 2005. ZippeIius introduces his theme in a more generaI manner than most other authors do, by stating that
'|t|he subject provides the method (p. 1). But even Ior him IegaI ruIes do not revoIve around the discovery
oI the worId`, as it were, but, as he emphasises, arise out oI the order oI the actions`, because Iaw Iirst was
ruIe oI conduct`, ruIe oI action`, and command`. Law oI this kind is decisive, he says, Ior the 'entry` into
the soIution oI a IegaI case and the 'updating oI the Iaw. Put brieIIy, Iaw reaches its aim onIy with what he
caIIs concretisation and appIication. AccordingIy, the probIems oI deciding a case are the main subject. This
theory oI IegaI method provides a more phiIosophicaI Ioundation than others but Iooks equaIIy Ior a practi-
caI perspective and Ior methods oI decision. Now we remember and see iIIustrated the diIIerence in the
books` titIes: jurisprudence` no Ionger appears in titIes oI textbooks on IegaI methods as it did Ior Larenz`s
Method of Scientific Jurisprudence. It vanished with regard to IegaI method. But not with Savigny. We may
now turn naturaIIy to the question oI his Iamous IegaI method as scientiIic method.
3.2. Legal method as scientific method
Savigny`s texts do not contain a speciaI chapter reIating to IegaI method in its practicaI meaning. He never-
theIess soIves cases but, obviousIy, in a diIIerent way. Savigny`s starting point is a diIIerent one. It is the
study oI Iaw and the scientiIic anaIysis and Iormation oI Iaw.
With regard to the study oI Iaw, Savigny heId speciaI Iectures in 1802/03 and 1809, named as we read on
the titIe page LegaI MethodoIogy`, or in the Iecture cataIogue An instruction to the seII-study oI juris-
prudence`. UnIortunateIy, it is nowadays known weII under the misIeading titIe LegaI Method`, which was
chosen in 1951 Ior the Iirst printed edition by Wesenberg, pubIished in 1952. There are considerabIe diIIer-
ences between IegaI methodoIogy` and today`s IegaI method`. LegaI method is the way to decide things
IegaIIy, whiIe IegaI methodoIogy is the way oI studying Iaw. These days, neither study nor practice wouId
distinguish between the two subjects, since the study` oI Iaw serves as Iengthy preparation Ior the state
examination, which is nearIy compIeteIy based on decision upon cases IegaIIy.
Studying in Savigny`s sense means something compIeteIy diIIerent. Studies shaII instruct jurists in how to
work scientiIicaIIy and independentIy. This is what Savigny wanted to teach. Even IegaI practice shouId
become scientiIic. Very signiIicantIy, Savigny was caIIed a machine oI studies` which is reported by
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his poet Iriend Brentano, who couId observe Savigny`s diIigence in Marburg and IeIt rather negIected as a
Iriend.
*5
Everything revoIves around the study oI Iaw and not around its practice oI deciding cases. We are
abIe to see the study machine with the eyes oI the painter L. Grimm. We understand as IoIIows: The method
and science oI Iaw are pIaced in the centre, and in a diIIerent way Irom the approach oI today. Savigny`s
method` deveIoped a concrete 'new view Ior science
*6
, as he stressed in 1809, and thereIore diIIered
strongIy Irom the tradition. The new word Rechtsvissenschaft` (IegaI science) occurs constantIy Irom 1802
to 1842. It became a buzzword in a way, and a modeI Ior the entire 19
th
century and beyond.
Method` is very important in the works oI Savigny as 'the direction oI the mentaI power to make every
scientiIic work succeed, as he emphasises in 1802 right at the beginning oI his Iecture on IegaI methods.
Literary modeIs, Irom those appIied by Roman Iawyers to the modeIs oI the present, are the source oI this
method and they are the onIy aid. Savigny does not try, as jurists usuaIIy did and stiII do, to deveIop a set
oI practicaI ruIes Ior the appIication oI generaI IegaI provisions. The reason Ior this is a theoreticaI one,
originating Irom the theory oI the possibiIity oI judgement, as deveIoped by Kant. I shaII return to the Iatter.
Even iI the expression IegaI method` does occur once in 1802
*7
, Ior Savigny it is identicaI with scientiIic
method.
The IegaI ruIes and the IegaI imperatives resuIt here Irom IundamentaI continuity, which is recognised by
Savigny`s new so-caIIed truIy historicaI method`. This method does not coIIect exampIes Ior decisions but
works out IegaI evoIutions with the character oI inner necessity. Savigny expIains this as IoIIows: the 'his-
toricaI treatment in its true sense, that is the contempIation oI IegisIature as being seII-moving and seII-
growing during a certain period oI time, is now the decisive moment.
*8
This phrasing co-ordinates the
4
See A. StoII. Der junge Savigny. BerIin 1927, aIter p. 398.
5
A. StoII. Friedrich CarI von Savigny. Ein BiId seines Lebens mit einer SammIung seiner BrieIe. VoI. I. BerIin 1927, p. 176.
6
F. C. von Savigny. VorIesungen ber juristische MethodoIogie 18021842, issued and introduced by A. Mazzacane 1993, p. 88 ( 1802,
IoI 4r) (the citation reIers to the originaI text; its IoIiation is annotated in the second, 2004 edition as weII).
7
Ibid., p. 88 ( 1802, IoI. 3v).
8
Ibid., p. 88 ( 1802, IoI. 4r).
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
Friedrich CarI von Savigny. Drawing by Ludwig EmiI Grimm, 1809.
*4
$ 1uRl0lCA lNJLRNAJl0NAL Xl/2006
method oI Iaw and the subject oI Iaw the treatment and the being. Both are understood in a new way. The
new historicaI work must neither teII nor eIegantIy coIIect Iacts and dates, nor may it put these in a pragmatic
(causaI or IunctionaI) order, as was done beIore. Its subject was meant to be something seII-growing. The
word seII` is cruciaI and changes a great deaI. II IegisIation` is understood as something seII-growing, then
it is thought oI as being without an actuaI IegisIator, as something quasi subjectIess and pureIy internaI
that is, as being a procedure carrying itseII out in the IegisIature. The Iawyers then work on Iaw itseII`, even
iI working on IegaI texts. The IegaI text, accordingIy, is just a maniIestation oI Iaw itseII. ConsequentIy,
Savigny Iater stresses, IegaI ruIes onIy pronounce the juridicaI thought`, 'to make it objective and preserve
it.
*9
This changes everything. It is now the objectiveIy existing thought behind the IegaI text that becomes
decisive. The ruIe itseII onIy expresses this thought in a more or Iess appropriate manner.
This Iaw behind the IegaI text is Ior Savigny a system`, and he wants to examine it as constantIy moving
through time. With this, it gains even though open during the passage oI this time the desired com-
pIeteness as a codiIication does but, as he says, in 'a diIIerent way and with an inner unity instead oI
externaI casuistry and in a manner independent oI chance and contingency.
TruIy historicaI`, as Savigny repeated oIten, thereIore reIerred to a IegaI method that is juridicaI as weII as
scientiIic and is not oriented toward the decision oI cases a method integrating the insight into reaIity and
into its worth. ConsequentIy, we have to ask as jurists whether this is a IegaI method that does not invoIve
decision.
3.3. Is this a legal method without decision?
Savigny wants to recognise the Iaw as a scientiIic matter and understands it as a continuity that truIy` exists
as something objective and historicaI. ThereIore, one is tempted to say, the Iawyers` process oI decision is
compIeteIy transIormed into a process oI cognition. AccordingIy, Savigny was part oI a truIy pre-modern
objectivist position. As the reader knows, to recognise the Iaw as a truth was part oI the pre-modern theories
oI naturaI Iaw, regardIess oI whether their Ioundation was a recognition oI nature, God`s creation, human
nature, reason, or something eIse. But it wouId be wrong to pIace Savigny in this context. His message is oI
interpretation and IegaI hermeneutics.
3.4. Interpretation as legal method
interpretation, not application
Savigny knows and accepts the juridicaI work oI deciding. Where and how Savigny positions this work is
best expIained with regard to a locus classicus, which was in our day hardIy ever understood, Iet aIone ever
Iound. ObviousIy, Savigny`s 124 pages reIating to this subject and pubIished in 1840 have never been read
properIy to the end, and their systematics were never taken seriousIy. I am taIking about Savigny`s expIana-
tions Ior the Iour interpretation canons. As aIready mentioned, they are nowadays the most Ioved and cited
showpieces oI his major work System of the Present Roman Lav (18401848). Even though Savigny has
been quoted onIy rareIy in dogmatic textbooks since the 1930s, and not by chance since this date, the time-
Iess eIegance oI his description oI the Iour eIements oI every interpretation is stiII highIy appreciated. The
way he emphasised that the Iour eIements have to be tied together and that with this the thought inherent in
the Iaw`, as it were, couId and shouId be reconstructed is praised as weII.
*10
However, hand in hand with this
praise comes a criticism: Savigny`s recommendation was in reaIity absoIuteIy worthIess, since it was impos-
sibIe to decide, without reIerring to a ruIe oI priority, which oI the Iour eIements shouId be the decisive one
in the event oI a conIIict. In addition, the highIy important teIeoIogicaI eIement was said to be missing. The
interpretation thereIore remained arbitrary, the eIements useIess in the end.
This criticism is thoroughIy misIeading. It is biased by today`s thinking on decisions and does not pay
attention to the originaI way in which Savigny understands the task oI the canons. They serve as an aid in
compIeteIy understanding the IegaI texts onIy when these are oI what he describes as 'good condition.
*11
Thought and expression meet in this good condition` anyway. Both can be understood onIy at a rough and
approximate IeveI, depending on the use oI aII Iour eIements. This is what matters to him at this point. We
Iearn that Savigny starts with generaI hermeneutics oI Iaw, which commences not with the traditionaI speciaI
case oI opaque IegaI texts but with the understanding oI Iaw itseII. It is not the pathoIogy oI Iaw, the opaque
9
Ibid., p. 89 ( 1802, IoI. 4v).
10
F. C. von Savigny. System des heutigen Rmischen Rechts. VoI. I. BerIin 1840 (reprinted AaIen 1981), p. 222.
11
Ibid.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
$ 1uRl0lCA lNJLRNAJl0NAL Xl/2006
IegaI text, the Iacunae in Iaw, the uncIear case, and so on that are most important to him; rather, it is the Iaw
as a whoIe in its good condition and its normaI recognition. Indeed, at this point there cannot occur any
conIIict with regard to the interpretation, since thought and expression harmonise perIectIy. RuIes oI priority
or hierarchy are thereIore not necessary and are, in Iact, pointIess.
But what about teIeoIogy and hierarchy? One has to continue reading and then Iinds passages reIerring to
the interpretation 'oI IegaI texts in a poor condition. Savigny`s text is, as we have to bear in mind, strictIy
systematised. The tabIe oI contents iIIustrates this very weII.
*12
It is this second part that reIers to the impor-
tant cases oI indeIinite or wrong expression oI Iaw as weII as to the probIems oI Iacunae. Savigny caIIs this
activity Rechtsfortbildung
13
just as we might do. It proves probIematic to transIate this IormuIa into
EngIish the concept oI updating oI the Iaw doesn`t Iit, as it beIongs to the worId oI Iaw-making, whereas
the idea oI Fortbildung appIies to a mixture oI continuation and creation. It is a matter oI German phiIoso-
phy untransIatabIe perhaps but, I hope, understandabIe. In any case, Savigny creates speciaI ruIes con-
cerning how this work shouId be accompIished. Here he commences with a subject that is said to be absent
today: ruIes oI priority. He reIers to a hierarchy` oI aids to interpretation
*14
and aIIows bound to this
context teIeoIogicaI arguments as weII. However, he does restrict them, because it wouId be too easy to
pIay the spirit against the Ietter oI the words and thereby exceed one`s judiciaI competence and the bounds oI
IoyaIty. At this point, we now can see more cIearIy that Savigny IuIIy recognises the unavoidabIe eIement oI
decision as part oI a Iawyer`s work. And we understand aIso that he does not oIIer mereIy a theory oI
interpretation oI IegaI provisions. He provides much more generaI juridicaI hermeneutics oI texts at aII.
At this point we meet the borders oI interpretation, carrying us Iorward to consider the constitutionaI do-
main.
3.5. The constitutional dimension
of Savignys legal method
As decision Ior Savigny is as inevitabIe as it is dangerous, he IinaIIy tries to master it Irom a constitutionaI
perspective. At this time, in 1840, he had been a judge Ior years, with experience oI much activity in the so-
caIIed court oI revision and annuIment or cassation` Ior the Prussian RhineIand. On the basis oI these
experiences he proposed the concentration oI the deIicate Fortbildung in one speciaI supreme court, compa-
rabIe to the French court oI revision and cassation.
*15
He gave as reasons Ior this institutionaI soIution the
Iact that with regard to IegaI texts in a poor condition` it was impossibIe to impose cIear Iimits between
interpretation and overcoming, or between simpIe understanding oI the Iaw and independent activity. One
seems to hear the voice oI the experienced man who had been a Prussian judge since 1819 and was to be a
minister in 1842, who couId not easiIy chat anymore. Jakob Grimm compIains about the Iatter aIter 1842,
when the minister and state counseI adorned with goId braid visited him occasionaIIy between the meetings.
We see experienced proIessor and judge Savigny pIeading Ior a soIution that combines administration oI
justice and constitutionaI Iaw, expressed in a modern way: a proceduraI soIution.
With this we have reached the Iirst answer to modernity: Savigny betrayed neither the modernity oI Iaw with
his beIoved teIeoIogy nor the certainty oI the Iaw, nor did he abandon the commitment oI the judges. His
soIution simpIy prevented three major iIIusions oI a juridicaI optimum. Savigny did not beIieve in the bIess-
ing oI a king oI judges, in the strict bouche de la loi as Montesquieu wrote, nor did he hoId stock in refere
legislatif and sharp prohibitions oI interpretation and commenting as in the ALR oI 1794 or beIieve in the
IriendIy PeopIe`s Courts as Georg BeseIer did.
*16
And he didn`t say a word about the iIIusions oI his oppo-
nent in regard to codiIication, Anton F. J. Thibaut. Thibaut had emphaticaIIy stated in 1801 that the Iawyer
shouId be obIiged to interpret poor IegaI texts in a most restricted way, to Iorce the IegisIature to improve the
written Iaw.
*17
This was rather consistent but compIeteIy iIIusory, as we know aIter 200 years oI modern
IegisIation, and Savigny recognised that immediateIy. We are now abIe to note with respect that Savigny
resoIved the probIem oI juridicaI decision in a very cIear and reaIistic way. And, above aII, he embeds it in a
scientiIic anaIysis oI the Iaw itseII as weII as in the institutionaI mastering oI the remaining diIIicuIties in
deaIing with IegaI texts oI poor condition` by a speciaI court.
12
Ibid., p. viii.
13
Ibid., pp. 18, 238, 291 et seq.
14
Ibid., pp. I 225, 228 et seq.; J. Rckert. Juristische Methode und ZiviIrecht beim KIassiker Savigny (17791861). J. Rckert (ed.).
FIIe und FaIIen in der neueren Methodik des ZiviIrechts seit Savigny. Baden-Baden 1997, pp. 2570.
15
F. C. von Savigny (Note 10), pp. 330, 327.
16
G. BeseIer. ErIebtes und Erstrebtes. 18091859. BerIin 1884, appendix, p. 1843.
17
A. F. J. Thibaut. Versuche ber einzeIne TheiIe der Theorie des Rechts (1801). VoI. 2. 2
nd
ed. Jena 1817 (reprinted AaIen 1970), p. 173.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
$ 1uRl0lCA lNJLRNAJl0NAL Xl/2006
ThereIore, it was in one way correct to assert that Savigny did not deaI with the moment oI decision. He
aIways emphasised that the main juridicaI task is to recognise the principIes and ruIes in generaI, not to oIIer
concrete ruIes Ior the soIution oI cases, as wouId a method aiming to give primary practicaI instructions. At
the same time, it is misIeading that Savigny even cIaimed to be practicaI` with energy. How is this possibIe?
3.6. Truly historical method as really practical method
Savigny stressed the practicaI eIement in the winter oI 1818 in a very strong way. For this we have to thank
his opponents Irom HeideIberg, who Iounded the most IiveIy, even today, journaI Archive for the Civil Lav
Practice in 1818. Right at the beginning oI his Iecture in the winter oI that year, Savigny deaIt with the new
demand Ior a practicaI method. He admitted that the study oI Roman Iaw had nearIy aIways been based on
the materiaI`. As he puts it, 'that is the ruIes oI Iaw, that originated Irom Roman Iaw as IinaI resuIts and
which the judicature can use immediateIy. FoIIowing Savigny, these resuIts`, which one couId caII case
ruIes nowadays, 'were their IinaI aim, and even though the scientiIic requests were negIected, the practicaI
need was satisIied at Ieast apparentIy Ior a good deaI.
*19
The criticaI words were their IinaI aim`
reIate to 'most |Iawyers| oI aII times that is, nearIy the entire tradition beIore him.
Savigny thinks oI himseII, in contrast to them aII, as the promoter oI reaI modernity oI Iaw.
As his own soIution Savigny emphasises, not surprisingIy, his Iamous historicaI method`. CompIeteIy diI-
Ierent Irom the practicaI method oI the ACP`s programme just mentioned was the other one, that one, in his
words, 'which is caIIed historicaI.
*20
But a surprisingIy cIear and Iirm Savigny insists that his historicaI
method was, as he puts it, the 'reaIIy practicaI method.
*21
Savigny thereIore cIaims that the more seII-aware
IormuIa is the better one Ior a truIy practicaI method. He suppIies the IoIIowing reasons: His soIution was
better because it was impossibIe in any case to gain materiaI compIeteness with regard to the IegaI ruIes
*22
,
'not just because oI the quantity, but especiaIIy because oI the constantIy growing diversity oI cases.
*23
ThereIore, compIete casuistry, as was aspired to by the Prussian Code oI 1794 with its approximateIy 20,000
18
See e.g. O. Liebmann (Note 1), p. 80.
19
F. C. von Savigny (see Note 6) p. 195 et seq. ( 1818, IoI. 78r).
20
Ibid.
21
Ibid., p. 197 ( 1821, IoI. 80r).
22
Ibid., p. 197 ( 1831, IoI. 99r), (e.g., pp. 215, 211).
23
Ibid., p. 211 (1827, IoI. 94v).
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
Savigny in oIIiciaI dressing, painted by Franz Krger, 1855.
*18
$! 1uRl0lCA lNJLRNAJl0NAL Xl/2006
paragraphs, seemed to be hopeIess Ior Savigny. The Prussian Code thought oI itseII as part oI the project oI
modernity. It was an attempt to, in the words oI Savigny`s description Irom 1814, 'contain in advance a
decision Ior every possibIe case. The opinion was, as iI it were possibIe and good, Iirst to know every singIe
case by experience and then to soIve it by using the decisive ruIe oI the code.
*24
Savigny`s rejoinder to this
opinion was that one was obIiged to 'Iearn the method oI Iinding ruIes, not the ruIes themseIves
*25
, that it
was useIess to accumuIate case ruIes. Further, he added that, whereas compIeteness as was aspired to by the
Prussian Code was impossibIe, the Iinding oI Ieading principIes` was the decisive and possibIe task. Be-
cause, with regard to these Ieading principIes, a 'compIeteness oI a diIIerent kind
*26
couId be achieved in
reaIity. This, he stressed, was the onIy possibIe way to master the diversity according to ruIes and was the
Iuture oI the principIes.
What do these statements oI Savigny prove about his modernity? He does not strike out against the enIight-
ening and modern idea oI binding the Iawyers to the ruIes oI Iaw. On the contrary, he pIeads Ior another and
a better way to reach this goaI.
Savigny very weII recognises the moment oI decision and the vitaI roIe oI most concrete case ruIes Ior the
sake oI jurisprudence. But this is secondary to him; indeed, he shows that it is even misIeading to try to
achieve certain Iaw by traveIIing this road. In contemporary Ianguage, we might say that the Iawyer cannot
be a directory, but he can Iearn the grammar oI the network and give reIiabIe inIormation iI the network
has a grammar. It is exactIy this that Savigny assumed to be true Ior the Iaw. For him, it consists oI naturaI`
IegaI reIations Ioremost. Today, contrary to this, we usuaIIy dissent, hoIding a view that Iaw is, rather, a sum
oI IegaIIy reIevant human acts oI decisions, and we consider aII Iaw to be contingent, and in this sense
positive. Thus, we end up running anew into an oId probIem. Since scientiIic anaIysis and Iormation oI Iaw
usuaIIy aims Ior a certain duration and stabiIity oI its resuIts, major probIems are created by this contingency,
up to the Iamous text on the worthIessness oI jurisprudence as a science` (written by the Prussian attorney
Kirchmann in 184748). We cannot have the cake oI security, stabiIity, and justice as weII as eat in every
contingent moment. At this point, we shouId begin to wonder about our IamiIiar modeIs oI appIication oI
Iaw, subsumption, and judgement.
3.7. The model of application of law, subsumption,
and judgement
At the start oI this paper, I announced a Iar-reaching theoreticaI consoIidation. The time is ripe Ior it. Savigny`s
scepticaI position with regard to casuistic case ruIes and codiIied soIutions contains a IundamentaI scepti-
cism reIating to the Iavourite modeI oI appIication oI ruIes. According to this, ruIes are suIIicient by being
binding, and it is necessary onIy to subsume the cases; the more casuistic and exact these ruIes are, the better.
Savigny`s scepticism with regard to those ideas about Iaw and the appIication oI ruIes has many weII-grounded
theoreticaI underpinnings. Their basis is the probIem oI power and abiIity oI judgement, as it was anaIysed
by ImmanueI Kant at that time.
*27
Kant`s concIusion was that it is impossibIe to create ruIes that connect
recognition and action by appIying generaI sentences to concrete situations, since doing so has aIways de-
manded additionaI ruIes stating whether the generaI sentence Iits the concrete case or not and this Ieads to
inIinite recursion. ThereIore, onIy some technicaI or pragmatic ruIes are possibIe at this point. Our methods
oI deciding cases are aII pragmatic. We use such ruIes nearIy every day in IegaI practice. AII pragmatic
jurisprudence thereIore can be understood just in a technicaI pragmatic way, at Ieast as Iong as the modeI oI
appIication mouIds jurisprudence. But iI it is understood as the task recognising the aIready existing ruIe in
a traditionaI or practised behaviour, one does not appIy abstract terms in a subsuming way. On the contrary,
the starting point there is oI given ruIes and not decisions, and we deveIop these naturaIIy`, Irom one group
oI cases to another. The perIect exampIe oI such a juridicaI proceeding has aIways been the customary Iaw.
It is deveIoped Irom given conduct. ThereIore it is possibIe and important Ior Savigny to state that every Iaw
arises in a way as customary Iaw.
*28
His Iavourite exampIes are the Iaw on biIIs oI exchange and that on bid
price (that is, the Iaw oI currency).
*29
Both indeed originate in events that have neither been created by IegaI
provisions nor been pIanned but are the resuIts oI a spontaneous, graduaIIy growing order.
24
F. C. von Savigny. Vom BeruI unserer Zeit Ir Gesetzgebung und RechtswissenschaIt. HeideIberg 1814, various reprints, criticaI edition
in F. C. von Savigny. PoIitik und Neuere LegisIationen. MateriaIien zum 'Geist der Gesetzgebung'. H. Akamatsu, J. Rckert (eds.).
FrankIurt am Main 2005, p. 21.
25
F. C. von Savigny (Note 6), p. 211 (1827, IoI. 94v).
26
F. C. von Savigny (Note 24), p. 22.
27
I. Kant. Kritik der UrteiIskraIt. 3
rd
ed. 1799 (originaI work: BerIin 1790).
28
F. C. von Savigny (Note 24), p. 13.
29
Compare K.-P. Ott. GeId- und GeIdwerttheorien im Privatrecht der IndustriaIisierung (18151914). konomische WechseIIagen in der
sogenannten BegriIIsjurisprudenz. BerIin 1998.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
$" 1uRl0lCA lNJLRNAJl0NAL Xl/2006
Another exampIe introduced by Savigny is Iound in the way he deveIops the Iong-missing Iirst principIe oI
the Iaw oI unjust enrichment, which is vaIid even today. His way oI Iooking Ior principIes by examining
major consented cases and groups oI cases is especiaIIy characteristic oI Savigny
*30
; in particuIar, the way he
moved Irom the given materiaI to the generaI ruIe was speciIic to his IegaI method as IegaI science.
ThereIore, it is not simpIy historicaI, poIiticaI, or ideoIogicaI reasons that have induced Savigny not to stress
the search Ior immediate resuIts and immediate ruIes Ior cases. There have been aIso careIuIIy considered
theoreticaI reasons, which Ied him to his scientiIic treatment` oI the Iaw. In his eyes, this was the onIy path
toward a better juridicaI security, a modern vaIue to which he accorded great import. Savigny did not Ieed
the iIIusion that it was reaIIy possibIe to caIcuIate in terms oI concepts, as a Iamous sentence oI 1814
*31
might
suggest. NevertheIess, IegaI certainty and security, understood as continuity in IegaI practice, were Iavoured
principIes oI Savigny, too.
3.8. Summary in ten points or even in three terms
We may now oIIer a summary. In its three-term Iorm, it consists oI Savigny key words: science, system, and
positive Iaw. What they mean together can be stated in 10 points:
(1) Savigny presents very weII a IegaI method Ior singIe cases, but it is very diIIerent Irom our
method.
(2) It is decisiveIy a scientiIic and cognitive method and is Iess practicaI-decision- and case-ori-
ented, in the present sense.
(3) This diIIerence IundamentaIIy changes the IundamentaI IegaI concepts and IegaI work.
(4) Law becomes abIe to be treated as an academic object with an inner system`, which is essen-
tiaIIy independent Irom concrete statutes and judicature. Case ruIes are onIy the smaIIest units in
this wide-ranging system.
(5) It is onIy the truIy historicaI method` that identiIies the right continuities and the Ieading prin-
cipIes`, and that can deveIop this inner system.
(6) The inner system and the Ieading principIes secure together the aspired-to compIeteness. They
are the reaI guide that is to be used in order to soIve the aIways endIess number oI cases. There-
Iore, the scientiIic approach is superior to a mere case-distinguishing approach Ior IegaI practice.
(7) AcknowIedging imperIect` IegaI texts, Savigny assigns the probIem oI deciding cases not the
highest but the Iowest priority. A careIuI method oI teIeoIogy might have a Iegitimate pIace here,
but onIy here, Ior imperIect` texts.
(8) Savigny`s starting point is the heaIthy condition oI norms`, not an imperIect, pathoIogicaI state.
In this heaIthy` condition, the IegaI ruIes simpIy resuIt Irom the words and circumstances them-
seIves. The Iaw is just there as customs are. His attributes are inner coherence, system, and
principIe. There is no need Ior ruIes conIIicting with interpretations here.
(9) Savigny`s method is part oI his generaI IegaI hermeneutics, which incIudes the soIution oI singIe
cases but has its origin in another starting point, being born oI naturaI conditions and not out oI
conIIict.
(10) Savigny expIained his soIution in very generaI terms. In that, he was abIe to oIIer, and accepted,
participation Iar more than other jurists did in the phiIosophicaI and generaI poIiticaI discussion
oI his time. His soIution was neither non-progressive nor Jacobinic (as the Vienna government
had suggested in 1819). In terms oI poIiticaI history, it was the position oI a reIorm conservative.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
30
J. Rckert. DogmengeschichtIiches und Dogmengeschichte im Umkreis Savignys. ZeitschriIt der Savigny-StiItung Ir Rechtsgeschichte.
Romanisiche AbteiIung 1987 (104), pp. 666678.
31
F. C. von Savigny (Note 24), p. 29.
$# 1uRl0lCA lNJLRNAJl0NAL Xl/2006
4. The modernity of law
in Savignys legal theory
We may now set Iorth severaI concIusions concerning the modernity oI Iaw as reIated to Savigny`s
conceptuaIisations in his IegaI theory.
1. Savigny shares IundamentaI targets oI IegaI modernity. These targets are the universaIity, security, stabiI-
ity, and autonomy oI Iaw. On the basis oI these principIes, he deIines the roIe and the duties oI jurists in IegaI
science and practice. LoyaIty to norms in the process oI interpretation is most important Ior Savigny. He has
no iIIusions about the remaining Iree pIay with imperIect` statutes. He has no iIIusions on the question oI
how to deveIop the Iaw either. His soIution Ior a hard case is, consequentIy, Iocused on the constitution oI
the courts. Like that oI today, it is an institutionaI proceduraI soIution. He does not turn to judge-made Iaw as
a new, eIegant source or to teIeoIogy, which wouId cast him into a circuIar argument. Both soIutions extend
the competence oI the IegaI proIession, which runs counter to the modern concept oI egaIitarian participa-
tion. Very appropriateIy, Savigny distinguishes cIear Iaw, which does not ask Ior speciaI competencies, and
hard cases, which absoIuteIy reIer to judge-made Iaw and teIeoIogy. In this way he aIso recognises the
constitutionaI impIications oI methodoIogy. He subscribes to the IoIIowing very modern IormuIa: questions
oI IegaI method are questions oI constitution. Hence, Savigny`s approach here is perIectIy in Iine with the
project oI modernity.
2. Even his Iamous antipathy where codiIication is concerned is Iess contradictory to modernity than one
might suppose.
Savigny is a master oI diIIerentiation. He sureIy was against codiIication as a perIect tooI Ior private Iaw. His
scepticism and criticism were justiIied to a certain extent, especiaIIy in the reaIm oI modern private Iaw as
the competence oI individuaIs. The parties have to practice and to IormuIate good private Iaw as habit,
custom, or common usage. It must be an open Iaw Ior new needs. AII oI these points contradict a systematic
and compIete Iixation and pre-setting. NevertheIess, he accepted the importance oI Iixed ruIes Ior proce-
duraI Iaw and, above aII, Ior criminaI Iaw. This was nothing eIse than the project oI a modern proceduraI and
criminaI Iaw.
3. Savigny`s accent oI IegaI academia, or, as one might more readiIy say, IegaI science, is a harder point to
address. In his opinion, IegaI science is the onIy way to achieve true Iaw and an accurate IegaI practice. His
project oI IegaI science` was modern in its structure. He emphasises the importance oI principIes and Iead-
ing principIes in the existing and heaIthy` condition oI Iaw. Savigny preIers to ascertain these principIes
instead oI just soIving hard cases. He takes the undisputed ruIes and cases as the IegaI standard. The method
appIied at present has proceeded down the other path, to case-distinguishing, judge-made Iaw, with casuistic
and seIective statutes.
But the key question is that oI what is more suitabIe Ior the project oI modernity. The anaIysis oI principIes
and the appIication oI systematic thinking are deIences against arbitrariness even where the singIe case
decision is concerned. Every comparison oI oIder textbooks on private Iaw Irom the 19
th
century to the
1960s (Ieaving aside the Nazi era) with a newer book reveaIs the increasing conIusion in Ianguage, systems,
creation oI norms, and orientation. Thus, theory becomes the sIave oI the IegaI practice in a IegaI environ-
ment that Iavours case Iaw. SureIy, systems and principIes are not abIe to prevent every arbitrariness, but
they do make it diIIicuIt Ior the courts to abuse the methods oI interpretation. On our European continent,
onIy inIormaI statutes on instances and organisation are binding on practice in the courts. There are no
principaI ruIes and habits Ior precedents as in Common Law and EngIish case Iaw. Furthermore, the appIica-
tion oI principIes that are embedded in the existing positive Iaw preserves the connection oI Iaw and the
autonomy oI its users. This connection might be preserved even against a statute. This was a current conIIict
in Savigny`s time, as when the monarch`s statutes or decrees were under dispute. Today, a conIIict between
the democratic IegisIation and civiI society seems unimaginabIe, because both describe the same subject. In
the end, Savigny`s recourse to a true Iaw` besides the statute` has a Jacobinic and very modern touch
indeed. We recognise here a democratic right to resist an unconstitutionaI government or power.
4. Savigny`s project even contains modern eIements in substance. His concept oI Iaw is based on his Iamous
idea oI the spirit oI the peopIe` (Jolksgeist). That means that it perceives the Iaw more as a spontaneous
order than as a pIanned and impIemented structure. In this respect, the enIightened project oI modernity
seems to be ambiguous and undetermined. The codes and not the customs are its ideaI Iaw. This Iaw, pIanned
by an authority, does not serve onIy to order and to channeI approved matters; it aIso serves to shape society
and direct it Iurther against aII unweIcome ideas. For this reason, the reIation between the pivotaI point oI the
project oI modernity and its impIementation comes under pressure. Human autonomy is the pivotaI point,
but the impIementation can be directed against this autonomy oI the individuaI, as the history oI the 20
th
century proved. Today, democracy shaII reIieve the tension. Savigny does not choose this option. At Ieast he
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
$$ 1uRl0lCA lNJLRNAJl0NAL Xl/2006
32
F. C. von Savigny (Note 24), p. 5.
33
Ibid., p. 41.
34
Ibid., p. 81.
35
F. C. von Savigny (Note 10), p. 2.
36
J. Rckert. IdeaIismus, Jurisprudenz und PoIitik bei Friedrich CarI von Savigny. EbeIsbach 1984, p. 126.
37
J. Rckert. Juristische Methode und ZiviIrecht beim KIassiker Savigny. . p. 57; J. Rckert (Note 36), p. 164; A. F. Berner. Die
StraIgesetzgebung in DeutschIand vom Jahre 1751 bis zur Gegenwart. Leipzig 1867 (reprinted AaIen 1978), p. 236.
38
J. Rckert. Das 'gesunde VoIksempIinden'. Eine ErbschaIt Savignys. ZSGerm 1986 (103), p. 240 et seq.; V. Krey. Keine StraIe ohne
Gesetz. EinIhrung in die Dogmengeschichte des Satzes 'nuIIum crimen, nuIIa poena sine Iege'. BerIin 1983, pp. 90, 21.
39
V. Krey (Note 38), p. 21.
40
J. Rckert (Note 36), pp. 312, 328; F. C. von Savigny (Note 10), pp. 14, 15.
41
F. C. von Savigny (Note 24), p. 13.
42
Compare K.-P. Ott. GeId- und GeIdwerttheorien im Privatrecht der IndustriaIisierung (18151914). konomische WechseIIagen in der
sogenannten BegriIIsjurisprudenz. BerIin 1998.
charges the Iawyers with Iooking at the spirit oI the peopIe`, which is the seII-aware IiIe oI Iaw. This was a
Iirst step toward democratic modernity and by no means a IittIe step oI the time.
5. FinaIIy, I wish to turn now to some standard criticaI arguments in respect oI Savigny and modernity.
(1) Savigny`s rejection oI codes
Savigny`s rejection oI the French Code Civil and the Austrian GeneraI CiviI Code (ABGB), the two most
IiberaI codes oI the day, is weII known. But he mainIy criticised the technique oI codiIication. Savigny
shared the aims oI compIeteness and security oI Iaw, but he had other tooIs in mind. He wanted to achieve
these aims through IegaI science nameIy, by Iearning the IegaI principIes oI the existing Iaw. Abstract
systematic, comprehensive casuistic approaches and mechanicaI security`
*32
were not his means. Savigny`s
method was most suitabIe Ior private Iaw, which has been in a non-codiIied state Ior centuries and aIways
needs the technique oI non-positive roIes.
As regards contents, in 1814 Savigny turned against the 'indescribabIe power, which the mere idea oI
uniIormity |oI the Iaw in one country| |.| exercised Ior such a Iong period in Europe.
*33
However, this did
not reIate to the equaIity oI human beings. He was particuIarIy criticaI oI the technicaI weaknesses, which
caused 'huge IegaI uncertainty, in his opinion.
*34
He did not criticise important modern principIes oI the
Code Civil Iike equaI IegaI capacity or the Ireedom to act. The same is true Ior the Austrian code. In his
System` oI 1840, Savigny decIared aII men equaI beIore the Iaw.
*35
CriminaI Iaw and constitutionaI Iaw were more probIematic areas. Savigny`s view on the true` Iaw behind
the IegaI provisions cIashed with the urgent necessity oI secure and precise criminaI norms, which he de-
scribed as 'an externaI Iact, determining the rights oI the citizens (1802, unpubIished).
*36
SurprisingIy, but
consequentIy, Savigny very earIy on advocated IegisIation Ior criminaI Iaw. UnpubIished but IairIy weII-
estabIished sources prove that. Savigny Iectured on this in 181617 beIore the Prussian crown prince, who
was his private student
*37
(18161817, unpubIished). He deIended and impIemented his position when this
Iater king appointed him in 1842 as minister oI IegisIation. The Iamous Prussian criminaI code oI 1851 and
the German ImperiaI CriminaI Code oI 1871 were the resuIts. Hence, Savigny pIeaded Ior codiIication in the
IieId oI criminaI Iaw. Despite his generaI deniaI oI codiIication, his position on criminaI Iaw is not inconse-
quentiaI. In the concrete case oI criminaI Iaw and in the tradition oI the EnIightenment, the urgent need Ior
IegaI security outweighs the disadvantage oI Iixing norms. Furthermore, Savigny`s criminaI code is miIder
than Feuerbach`s ambitious and Iamous Bavarian code oI 1813. Savigny`s code postuIates the principIe oI
nulla poena sine lege as weII ( 2).
*38
Some schoIars even ascertained it to be the 'spirit oI the IiberaI
Rechtsstaat.
*39
We see that Savigny`s rejection oI codes is not generaI and contains very modern eIements.
(2) Savigny`s rejection oI contract theory
As is generaI knowIedge, Savigny condemned the prevaiIing contract and sovereignty theories in constitutio-
naI Iaw. He cIaimed that the state was an 'integrated whoIe by nature (Naturganzes), no machine` as the
theory oI the EnIightenment decIared it, and that it was a 'corporaI stature oI the Iiving community oI
peopIe (leibliche Gestalt der lebendigen Jolksgemeinschaft), not a mere instrument (1840).
*40
In Savigny`s
conception, the peopIe and their Iaw were not constituted but onIy a 'visibIe and organic emergence (sichtbare
und organische Erscheinung).
*41
For him, the concept oI peopIe` described an organic substance, not a
poIiticaI subject. The concrete monarch, the concrete peopIe, the concrete IegisIator, and jurists are onIy the
organ` oI the true Iaw`. They had onIy to 'recognise and to pronounce the Iaw, which existed irrespective oI
them
*42
. On the other hand, they had sometime heIped to constitute it.
In comparison to Savigny`s approach, here the project oI modernity is more radicaI and accredits compIete
sovereignty onIy to a concrete nation. Savigny did not choose this soIution, because he had in mind the
bIoody tyranny oI the popuIar government during the French RevoIution.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law
$% 1uRl0lCA lNJLRNAJl0NAL Xl/2006
43
J. Rckert. DogmengeschichtIiches und Dogmengeschichte im Umkreis Savignys. ZeitschriIt der Savigny-StiItung Ir Rechtsgeschichte.
Romanisiche AbteiIung 1987 (104), pp. 666678.
44
F. C. von Savigny (Note 24), p. 29.
Savigny seemed to reject the principIe oI Ireedom when he reIormuIated it as a principIe oI true` Ireedom
(1815) and criticised non-positive basic rights (Urrechte).
*43
Yet he argued in Iavour oI a Iree private Iaw in
principIe, which can be described as IiberaIism in private Iaw.
*44
He preserved Ireedom Ior private Iaw but
not Ior pubIic Iaw. As a portrayaI oI positive Iaw in Prussia and Germany Ior the year 1840 this seems to be
adequate and reaIistic. Savigny was IuIIy aware that the boundary between a Iree private Iaw and a Iess Iree
pubIic Iaw was a cruciaI question. But on this point he was not very cIear. On account oI this Iack oI
accuracy, Savigny`s distinction was too open Ior the enIightened project oI modernity. We see that Savigny`s
rejection oI contract theory had its Ioundation in dangerous eIements Ior his time, not in a generaIIy diver-
gent position.
(3) Savigny`s metaphysics?
At Iirst gIance, Savigny`s objective-ideaIistic approach to metaphysics does not appear to Iit into the project
oI modernity. He uses his metaphysics to secure the existing Iaw against rationaI and pIanned changes by
IegisIation. Savigny`s metaphysics represents a doubIe concept oI Iaw a Iaw within the Iaw` even
within the sphere oI positive Iaw. His metaphysics aIso represents a juristic thinking, which creates ambiva-
Ience but aIso a sheIter Ior tradition against the Iuture and containment Ior the concept oI Ireedom. In
contrast and Iar away Irom Savigny, the project oI modernity ties up with Kant`s subjective ideaIism.
Yet Kant`s project is not compIeteIy Iree oI metaphysics, even iI one thinks in terms oI Habermas`s juristic
inaIienabiIities`. EvidentIy, the project oI modernity has to set its Iirst starting point itseII, just as other
projects do. And, indeed, it began with human autonomy Ior the Iirst time. The project oI modernity must
not IaII back beyond this starting point and must not choose another outset. But this choice at the beginning
can onIy be based either on an indisputabIe/imperative soIution or on empiricaI/IogicaI arguments. The Iirst
promoter` choice must be described as metaphysics. In this Iight, two Iorms oI metaphysics are seen to be
simpIy juxtaposed one with the other.
I hope this work has provided the reader with a cIear sense that the standard critics oI Savigny do not oIIer
prooI against the modernity oI the key eIements oI his jurisprudence. In the end, we see a great deaI oI
modernity in Savigny`s IegaI theory, which this work has been an attempt to iIIuminate, in demonstration
against some very misIeading simpIiIications made today. In this way, I hope, we`II not onIy Iearn history but
Iearn Irom history.
1cachim Rckert
Frieorich Carl vcn 3avigny, the Legal Methco, ano the Mcoernity cl Law