The German historical school

The codification movement seemed to put an end to the history of the tradition of Roman law in Europe, but it did not. The reawakening of Roman law in the nineteenth century was directly related to the powerful reaction against the idea of codification and the rationalist passion of the Enlightenment.

The ideas of Hugo influenced Friedrich Carl von Savigny (1779-1861), one of the most important legal thinkers of the civil law tradition and founder of the German historical school of jurisprudence. Born in Frankfurt, graduated from Marburg, professor of law in Berlin beginning in 1810, and minister for legislation (1842-48), Savigny argued that law could not be reduced to a pure construction of reason because the law was a product of the culture and ethos of each society. The symbolic starting point of the historical school was Savigny’s famous pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft [On the vocation on our age for legislation and legal science, 1814], which was directed against the essay Über die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland [On the necessity of a general civil code for Germany, 1814] written by Anton Thibaut (1772-1840), professor of law at Heidelberg.

The revival of Roman law 101 later called “national spirit” (Volksgeist), and this spirit left its mark upon all legal institutions and laws.

According to Savigny, what Germany needed was not to create a rationalistic code but to dive into its own history, to understand its own laws. Only after fulfilling this essential task could a codification make sense. This theory of the Volksgeist fit accurately with the general trends of German nationalism, a natural product of the democratic ideas developed by the French Revolution, and the sense of German unity derived from the French Wars and Napoleonic oppression. Only the founding of the German Empire in 1871, and with it the founding of the German nation, provided the political and constitutional framework for the codification of the law.

The historical school of jurisprudence was divided into two branches: the Romanists (including Savigny, Georg Friedrich Puchta, and Adolf Friedrich Rudorff, among others) and the Germanists (including Karl Friedrich Eichborn, Jacob Grimm, and Georg Beseler). The Romanists focused on Roman law and its reception in Germany as a constitutive part of the Volksgeist, while the Germanists focused on medieval German law as an expression of the German soul. Both branches engaged in historical research into the evolution of the law, and according to Savigny, both Roman law and German law were to constitute the two pillars of the new German legal science.

Savigny wrote three exemplary works besides the famous pamphlet against Thibaut: the dogmatic monograph Das Recht des Besitzes [The law of possession, 1803], the masterful Geschichte des romischen Recht im Mittelalter [History of the Roman law during the Middle Ages, 1815-31], and the brilliant System des heutigen romischen Rechts [System of modern Roman law, 1840-49]. In The Law of Possession, written when Savigny was only twenty-four years old, Savigny tried to expound the institution of possession as it had been according to the original Roman sources. The Law of Possession is a masterpiece that ended up taking the old uncritical approach to Roman Law. In History of the Roman Law during the Middle Ages, the best of all his works, Savigny purified the idea of Roman law of all alterations derived from the Middle Ages and the practice of the usus modernus. He was convinced of the unity of the European legal tradition and the important role of scholars to transmit this tradition. Finally, the seminal eight-volume System of Modern Roman Law made Savigny a foremost pioneer of the school of pandectists.