Law, Code, and Juridical System in Germany: Thibaut, Savigny, and the Historical School

What happened in Prussia in the realm of the legislative and doc­trinal questions that concern us here was truly emblematic, because in Prussia we can clearly see, like twin roots of a mighty tree, the two juridical phenomena of codification (which for the entire nineteenth century remained in the improper form of a “code,” that is, in the form of the Lcindrecht of 1794) and of a legal system, which had be­come dominant by the end of the century.

The year 1814 was important not only for the history of German law but also for legal history throughout Europe. Two famous essays were published in that year, one by Anton Friedrich Justus Thibaut (1772—1840) and the other by Friedrich Carl von Savigny (1779—1861).

In the first of these studies (which was also first in date) Thibaut insists, as the title states, “on the need for a common civil code for Germany.”^[15] In this work, which shows the clear influence of two great models of recent date, the Napoleonic Code civil of 1804 and the Austrian civil code of 1811, Thibaut predicted swift national unifica­tion for a land whose unified legislation must operate as a stabilizing element as well as faithfully reflect national unity.

The second of these works was written in polemical opposition to the first. In it Savigny denied that a unified civil code was desirable and doubted, given the current state of Prussia, that the land could provide jurists capable of the task.^[16] Prussia, Savigny stated, ran a seri­ous risk of promulgating “an aggregate of single dispositions” rather than “an organic whole,” a course that would have an outcome differ­ent from, or even opposite to, the desired one.^[17] Single laws aimed at circumscribed sectors, he stated, would better serve the end of regu­lating and ordering society. Savigny also stressed the irreducible and essential need for a legal science aware of its own strength and capable of organic development.^[18] This is precisely why he entitled his study (usually referred to as Beruf the key word in German) “Of the Voca­tion of our Age for Legislation and Jurisprudence.”

It has been observed that Savigny^,s thought displays two partially conflicting tendencies that coexist “in a strong intellectual tension.” On the one hand, Savigny was “oriented toward juridical theory and the ethics of liberty” and for that reason was sensitive to the cultural and political panorama within which the triumphant bourgeoisie took its place; on the other hand, he was “led...

Savigny avoided choosing between the interests and the loca­tions” of these two camps to follow his own, autonomous path. The “apparatus” that seemed to him the most important was his own pro­fessional group of scholars and academics. The university remained uppermost in his mind, and he benefited from two strokes of good fortune: the first was his appointment at the University of Berlin (just founded), which enabled him to leave the provincial University of Landshut in Bavaria; the second was the presence in Berlin of Wil­helm von Humboldt (d. 1835). Humboldt was a moving force in a vast restructuring of the model of the modern university, and he deserves mention here for a memoir destined to become famous, written, per­haps in 1810, on the occasion of the inauguration of the University of Berlin.^[20] The basic thrust of this study was that the university must contain, defend, cultivate, and encourage “man’s spiritual life” and man’s vocation (which was both a duty and a need) for knowledge and study. For that reason the university was the institution best fit­ted for the formation of a “method” and for teaching or learning that “method.” Beyond the undeniable influence these notions had on Savigny, and beyond their historical relevance for their contempora­ries, they might well offer matter for meditation even today and still prove pivotal to the life and the structure of universities in all civilized countries.

Undeniably, Savigny⁵S “activity as a reorganizer of universities and academies, placed within the context of intellectual and political cir­cles in Berlin, should not be underrated.”^[21] Nor should it be thought episodic, unimportant, or aberrant within Savigny⁵S own thought or within the objectives of that thought.

The kernel of Savigny⁵S Beruf and of his polemic with Thibaut lay in the idea that it was not the task of the institution of legislative power to elaborate a “general code”; furthermore, it was not realistic to think that a “code” could be imposed on a people exclusively by following rational schemes often remote from the history of the soci­ety to which the “code” was attempting to give order. Savigny held instead that the legislator must limit himself to promulgating norms for circumscribed sectors and must make his precepts fit within the determinations of legal doctrine—that is, he must follow the concrete and specific facts of “jurisprudence,” a term that Savigny uses in a broad sense to refer both to the practical activities of judges and law­yers and the theoretical work of jurists. For Savigny, jurisprudence alone was in a position to define and comprehend the “spirit of the people”—the Volksgeist—and to give concrete form to that spirit by proposing and even redacting the texts of specific provisions that the legislator would then take responsibility for promulgating in the exer­cise of his exclusive legislative power. What is more, the legislator would have to take that responsibility; he could not act arbitrarily, nor should he have “extravagant anticipations” for the realization of “absolute perfection” as he might when he founded legislative proj­ects of his own on “reason” alone.^[22] The legislator must instead ad­here to the content that jurisprudence constructed and imposed, in­terpreting “the spirit of the people” and attributing to himself the monopoly on that interpretation (a monopoly that had clear advan­tages in terms of prestige and power).

Thus doctrine (theory elaborated in the universities) became the vehicle for a precise and lucid political option, because it was doctrine that took responsibility for discerning the norms that various peoples, operating through custom, had created and respected, and because it was doctrine that took on the burden of interpreting and expressing the “spirit of the people.”

What gave Savigny∖s thought homogeneity and enhanced the func­tion of legal doctrine even more was the importance that he assigned to the Volksgeist. Savigny held that, in order to translate “the spirit of the people” into a legal precept, the jurist should not look to the peo­ple or to the society in which the people is always the principal actor but rather to the way in which the people had been viewed and repre­sented by the jurists of the past, within the tradition of Western thought in general and German thought in particular. History had to offer certain and unchanging fact, not the events in which the people may have played the part of either hero or succubus, but rather the spirit of the people, as it had been historically configured, consoli­dated, and structured—the spirit of the people reexperienced and comprehended as it had been expressed by a succession of jurists through time, contributing to and shaping tradition by their writings. For Savigny, tradition was the determinant and conditioning histori­cal “given” in the face of which neither the jurist nor, for even greater reason, the apparatus of state—not even legislative agencies eager to construct a code or the crown itself—could think or act arbitrarily.

These are the reasons that led historians to consider Savigny the founder of the “historical school of law.”

The jurist emerged as playing an overwhelmingly important role in this view. Not by chance, that role found strong support in both the idea and the structure of the university, conceived and realized (fol­lowing Humboldt and Savigny) as a center for training in methodol­ogy (rather than as a professional school) and as the focal point for a new elaboration of the law.

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