savigny and the state

Frederick C. Beiser has underlined the contribution of the formation of the ‘historical school of law’ in early nineteenth-century Germany to that century’s beginning ‘to become self-conscious as an historical age and to define itself against the age of Enlightenment’ – an age which, in the view of the new historical era, ‘seemed to have been oblivious to the decisive role of history in intellectual and cultural life’.[i] Beiser locates as the ‘official beginning’ of the historical school of law the publication in 1815 of the first volume of the Zeitschrift für geschichtliche Rechtswissenschaft (214). The founder of this journal for historical legal studies was Friedrich Carl von Savigny (1779-1861), who was also chair of the law faculty at the University of Berlin and – in Beiser’s phrase – ‘acknowledged leader of the historical school’. For under Savigny’s guidance the Berlin law faculty became the centre of the early nineteenth-century historical school in general. ‘Since Savigny insisted that the curriculum focus on Roman law, it was necessary to give his students a rigorous historical training.’ (215)

In his early Marburg lectures on methodology – Juristische Methodenlehre – of 1802-03, Savigny first propounded his conception of jurisprudence as an historical science, by defining the subject matter of jurisprudence as the legislative function of the state (227, 228). For the state lays down positive law and not natural law, which latter is the business of philosophy rather than history (228). It was Savigny’s early stress on what Beiser calls ‘the close connection between jurisprudence and the history of the state’ – which also features in Savigny’s introduction to his summer 1809 lectures on the Pandects (the sixth-century compendium of Roman law) – that explains how, as Beiser argues, ‘to some extent […] Savigny’s later historicist doctrine is already fully developed in his early 1802 lectures’. His growing emphasis on the connection between law and political (constitutional) history ‘doomed’ Savigny’s ‘narrow conception’ of jurisprudence. But although his earlier thinking ‘limits jurisprudence to the realm of positive law instituted by legislative power’, it already insists that the ’central task’ of jurisprudence is to provide a historical account of that positive law. Study of state law thus defined Savigny’s methodology of jurisprudence as an intrinsically historical methodology. ‘“The aim of jurisprudence,” he states, “is to present historically (historisch darzustellen) the legislative function of the state.”’ (229, quoting Savigny’s 1802 lectures)

In terms of Savigny’s political ideals, Beiser stresses how they were typical of the thinking of the early romantic movement or Frühromantik, which was most prominent from 1797 to 1802 (222). Savigny was nostalgic for the old mediaeval constitution of the Holy Roman Empire, whose enabling of institutional pluralism and varied sources of authority, such as an independent judiciary, was held to promote local autonomy, diversity and liberty. The early romantics were opposed to political centralization – or ‘the amassing of all power in a single executive and bureaucracy’ (223), in Beiser’s words – which they identified with both eighteenth-century absolutisms and the French revolutionary government (224). The Napoleonic armies were seen to threaten the old mediaeval constitution with ‘utter destruction’ (Beiser, 223). 

Savigny’s founding of the Zeitschrift für geschichtliche Rechtswissenschaft, which instituted the historical school of law as an ‘organized and recognized force in German intellectual life’, had occurred in the aftermath of the Kodifikationsstreit or ‘codification controversy’ that began in 1814. The ‘immediate question’, as Beiser summarizes, behind the Kodifikationsstreit was ‘whether Germany, after the defeat of Napoleon, should have a new civil code or whether it should return to its old constitution, the collage of Roman, canon and customary law of the Holy Roman Empire’. Whereas Savigny advocated the old system, his chief opponent in the debate, Heidelberg professor Anton Friedrich Thibaut, argued for a new civil code and even recommended the abolition of the Roman law in which he was expert (233, 235-37).    

The Kodifikationsstreit had a political aspect. For the advocates of codification, who thought that all legal questions could be solved through consultation of the new legal code, the single source of political sovereignty would be the legislative power of the state. But state sovereignty would be limited by the work of an independent judiciary interpreting the law. For advocates of the old constitution however, the maintenance of the sole right of learned jurists to interpret the law within the old system would protect the national customs and values within which the law was sourced, and enable the independent judiciary to function as a ‘bulwark of ancient liberties against tyranny’ (234-35). Beiser notes how, in his attachment to the latter viewpoint – as expressed in his 1814 tract Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft [On the Vocation of our Time for Codification and Legal Scholarship] – Savigny departed from his early emphasis on the subject matter of jurisprudence as the legislative function of the state, and limiting of jurisprudence to the realm of positive law instituted by legislative power.[ii] For On the Vocation of our Time for Codification and Legal Scholarship criticizes the conception of positive law as deriving from the prescriptions of legislative power which was assumed by the proposal for a new civil code. It maintains that the law is the product not of legislative power, but instead of the beliefs and ways of life of a people. ‘“The proper seat of the law,” Savigny concludes, “lies in the common consciousness of the nation”’ (238). Beiser notes too, however, that in his eight-volume study of Roman law published from 1840 to 1848, the System des heutigen Römischen Rechts, Savigny returned to an emphasis on the importance of the state by arguing for the state as ‘the highest stage in the creation of right’ (246, 249 (quoting Savigny)).

Savigny’s inconsistent emphasis on the importance of the state as the legal source of political sovereignty itself suggests his lack of commitment to either an obviously ‘revolutionary’ position or an obviously ‘conservative’ position. Beiser in fact observes that ‘the conflict between Thibaut and Savigny was not that between a revolutionary and a conservative, as so often believed, but between two competing conceptions of moderate reform’. He relates the two jurists’ conservative liberalism to their shared advocacy of ‘the Rechtsstaat, government according to law, which they regarded as a safe via media between Fürst [prince] and Volk [people], the extremes of absolutism and popular democracy’. For they were really debating whether moderate constitutional reform ‘should be imposed wholesale from above by a legislative power, or evolved piecemeal from below by jurists interpreting the will of the people’. This meant, of course, that the civil code of the intended state governed by law – the Rechtsstaat – was to be formed ‘not by the people themselves but by an elite that represented them, whether legislators (Thibaut) or jurists (Savigny)’ (237-38).

The shift away from support of popular influence underlying Savigny and Thibaut’s vision of the Rechtsstaat can be seen to reflect the recognition of the tyrannical tendencies of the people made by advocates of the Rechtsstaat in the romantic Germany of the 1820s and 1830s, who defined – in the words of the legal historian James Q. Whitman – ‘their “rule of law” as a third way between Volkssouveränität [popular sovereignty] and Absolutismus [absolutism], between the absolutism of the popular revolutionaries and that of the princes’. For Whitman, it is important to stress the potential absolutism of tendencies of democratic reform – of ‘popular revolutionaries’ – in order to question ‘the occasional tendency to dramatize post-Napoleonic German political life as a great conflict between the forward drive of history and the reactionary tug of society’, which characterizes discussions of the philosophy of the Rechtsstaat.[iii] For such a forward drive of history, or nonabsolutist ‘forward-looking liberalism’, was in fact quite ‘unknown’, Whitman contends, ‘in the twenty or so years after 1815’. Historians working after Nazism are wrong to ‘trace the roots of the failure of German liberalism’ to the romantic period.[iv]  

As Whitman observed in his The Legacy of Roman Law in the German Romantic Era (1990), Savigny’s school of followers was ‘centred at Prussian Berlin but drawing its ideas from Hannover and Hesse, the heartlands of philosophical romanticism’. The Rechtsstaat envisioned by Savigny was a ‘Hannoverian Rechtsstaat’.[v] In addition to the typically identified ‘two Germanies’ of the early nineteenth-century – ‘the Prussian North and the constitutionalist South’ – Whitman located ‘a neglected third Germany as well: the world of Hannover and Hesse in central and northern Germany, where neither Prussian state reformism nor Western constitutionalism had succeeded in displacing the old legal order’. It was this third Germany which had shaped Savigny’s thinking, ‘in the universities of Göttingen and Marburg, where scholarly romanticism grew up in the middle of a countryside in which the pre-absolutist world still survived’.[vi]

Savigny drew his upholding of an independent judiciary from the legal order of the Hannoverian Rechtsstaat. Whitman relates the existence of this pre-absolutist order to the way in which ‘in his Vom Beruf unserer Zeit, he accounted for the predominance of learned treatises in court customary law-finding’ by ‘postulating that the Volk, the original source of custom, had ceased to be the principal maker of law as culture evolved; jurists had accordingly stepped in and carried on the task of developing customary law’.[vii] But interestingly, Savigny’s emphasis on an independent judiciary also relates his thought to that of contemporaneous southern German lawyers. Though ‘not committed to the existing order in the way Savigny and [G. F.] Puchta were’ (as members of the historical school), the ‘southern Romanists’ – Whitman writes – were nonetheless traditionalists in that by them ‘Holy Roman Imperial tradition was transformed into classical nineteenth-century constitutionalist thought, as professors attempted to build a new ethic of judicial independence on the strength of their own corporate tradition’. Whilst Savigny’s thinking derived from the ‘neglected third Germany’, the ‘southern Rechtsstaat program, as developed pre-eminently in Baden,’ represented ‘the centre of Rechtsstaat thought, of the new constitutionalism of the nineteenth century’.[viii] For the southern thinkers, within a state ‘built on an independent officialdom with independent corporate ethics’, an independent judiciary ‘would work alongside an independent, legally trained bureaucracy’, Whitman noted. Thus ‘the basis of the southern Rechtsstaat was to be the old feudal corporate sensibility’. Hegel from Württemberg, ‘with his highly corporatized society and his insistence on the importance of bureaucratic spirit, was the characteristic philosopher of this romantic movement’.[ix] Its independent officials were kin to Savigny’s jurists.

2.12.22

 

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[i] Frederick C. Beiser, The German Historicist Tradition (Oxford: Oxford University Press, 2015; first publ. 2011), p. 214 (further references to Beiser’s book are given after quotations in my text); in p. 214 n. 1, Beiser recommends, as a ‘still valuable’ treatment of the historical school of law, ‘Erich Landsberg’s Geschichte der deutschen Rechtswissenschaft (Munich: Oldenbourg, 1910), Abteilung III, Halbband 2, 186-586’.

[ii] My translation of the title of Savigny’s 1814 tract represents a slightly modified version of the translation offered by James Q. Whitman in his The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (Princeton: Princeton University Press, 1990), p. 101.

[iii] Whitman, p. 95.

[iv] Whitman, p. 94.

[v] Whitman, pp. 98, 120.

[vi] Whitman, p. 113.

[vii] Whitman, p. 120.

[viii] Whitman, p. 132.

[ix] Whitman, p. 133.