Friedrich Carl Von Savigny's Beruf and Volksgeistlehre

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Friedrich Carl von Savigny's

Beruf and Volksgeistlehre
Andreas Rahmatian
Published online: 03 Apr 2007.
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Beruf and Volksgeistlehre , The Journal of Legal History, 28:1, 1-29, DOI:
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Friedrich Carl von Savigny’s Beruf and
Volksgeistlehre
ANDREAS RAHMATIAN
In the Anglo-Saxon world the nineteenth-century German jurist Friedrich

Carl von Savigny is known mostly for his Volksgeistlehre (‘spirit of the
people doctrine’), a speculative and anti-rationalist theory of the evolution
of law, which he set out comprehensively in 1814 in a pamphlet, Vom Beruf
unserer Zeit für Gesetzgebung und Rechtswissenschaft. This article explains
in more detail the main ideas expressed in this famous pamphlet of German
legal history, and examines the relevance of the Volksgeist doctrine and its
underlying historical method to discussions concerning a European civil
code based on a European ius commune, as well as to law and legal
history in England and Scotland. The article also shows that surprisingly
much of Savigny’s thinking still exercises its influence and even experiences
a certain renaissance today.
I. INTRODUCTION
For the German lawyer – or, perhaps more realistically, for the German legal
historian – the German jurist Friedrich Carl von Savigny (1779 – 1861) has a
status in German legal science not dissimilar to that of Johann Wolfgang von
Goethe (1749 –1832) in German literature. Savigny himself referred to Goethe in
his writings and lectures in relation to the idea and interpretation of philosophical
and legal systems,1 and in respect of their classicist viewpoints2 there are indeed
remarkable parallels. Savigny was a towering figure among the German jurists,
extremely influential upon German legal science to the present day,3 and, at least
1
A. Mazzacane, ‘Jurisprudenz als Wissenschaft’, in A. Mazzacane, ed., Friedrich Carl von Savigny,
Vorlesungen über juristische Methodologie 1802–1842, Frankfurt/Main, 1993, 41; F.C. v. Savigny,
‘Vorlesung über Methodologie 1809’, in Mazzacane, ed., Friedrich Carl von Savigny, 169 (Savigny’s
personal lecture notes). On Goethe’s influence on Savigny, and the intellectual relationship between
both, see D. Nörr, ‘Geist und Buchstabe: ein Goethe-Zitat bei Savigny’, 100 SavignyZ (Romanistische
Abteilung) (RA) (1983), 20–45, at 41.
2
F. Wieacker, ‘Friedrich Carl von Savigny’, 72 SavignyZ (RA) (1955), 1– 38, at 16.
3
For an overview of scholarly positions on Savigny see J. Rückert, Idealismus, Jurisprudenz und Politik bei
Friedrich Carl von Savigny, Ebelsbach, 1984, 22. Especially the recent emergence of many new primary
sources (correspondence, notes etc.) has called for a re-assessment of the traditional Savigny image, see
ibid., 7, 11ff. The material and literature on Savigny are vast, see e.g. sources at the University Library,
Marburg, Germany, under <http://www.ub.uni-marburg.de/sondsam/savigny.html> (accessed 10 Sept.
2006).
The Journal of Legal History, Vol. 28, No. 1, April 2007, pp. 1–29
ISSN 0144-0365 print=1744-0564 online
DOI: 10.1080=01440360701237327 # 2007 Taylor & Francis
2 LE GAL HIS TORY
indirectly – through the reception of nineteenth-century German Pandectist legal

science4 – in Austria, Switzerland, The Netherlands, Greece, and, to a certain
extent, France and Italy, on legal scholarship in these countries.5 Savigny was
also referred to in the codification discussions in nineteenth-century Quebec.6
Even in English academic discussions in the mid-nineteenth century some very
limited influence of his theories can be detected.7 Savigny is referred to in nine-
teenth century and modern academic writings on Scots law.8
Savigny was, together with the older Gustav Hugo (1764–1844), a founder of the
German historical school of law and its most important representative.9 The programme
of this intellectual movement is set out comprehensively for the first time in Savigny’s
pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (On the
Calling of our Age for Legislation and Legal Science),10 his most famous work,
which appeared in 1814 and remained influential throughout the nineteenth century,
although it came to be eclipsed by his later writings on Roman law and legal history,
and especially by his systematic works of legal doctrine. The Beruf was the response
to a piece by the Heidelberg law professor A.F.J. Thibaut, Über die Nothwendigkeit
eines allgemeinen bürgerlichen Rechts für Deutschland (On the Need for a Civil
Code for all Germany), also published in 1814, but Savigny included many important
parts which were written earlier and were close to publication in 1814. In the Beruf
Savigny emphatically rejected the idea of codification of private law and particularly
Thibaut’s suggestion that a civil code be enacted for the whole of Germany as a
means of unifying the nation. This exchange of programmatic writings became
known as the famous codification controversy in early nineteenth-century Germany.11
4
Savigny’s teachings led to Pandectism, the German nineteenth-century legal school which, deriving from Roman
law and based on legal positivism, created a logically consistent system of the law (especially private law) by
developing abstract and coherent concepts which, together as a whole, form a law that is supposed to be free
from gaps. See F. Wieacker, A History of Private Law in Europe, trans. T. Weir, Oxford, 1995, 341ff.
5
Ibid., 350.
6
E.H. Reiter, ‘Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth-
Century Quebec’, 22,3 Law and History Review (2004), paras.63–72.
7
E.g. A. Brown, An Epitome and Analysis of Savigny’s Treatise on Obligations in Roman Law, London,
1872; F. Pollock and F.W. Maitland, The History of English Law before the Time of Edward I, 2nd ed.,
Cambridge, 1898, vol.2, 42. See P. Stein, ‘Continental Influences on English Legal Thought 1600–
1900’, in P. Stein, The Character and Influence of the Roman Civil Law: historical essays, London,
1988, 209–229, at 225–227.
8
In the 1820s, especially by John Reddie, see J.W. Cairns, ‘The Influence of the German Historical School
in Early Nineteenth Century Edinburgh’, 20 Syracuse Journal of International Law and Commerce (1994),
191– 203, at 198, and below under section IV.2. Today Savigny is referred to e.g. by K.G.C. Reid, The Law
of Property in Scotland, Edinburgh, 1996, para.608; G. Gretton, ‘Trusts’, in K. Reid and R. Zimmermann,
eds., A History of Private Law in Scotland, vol.1, Oxford, 2000, 480–517, at 511; D.L. Carey Miller,
‘Systems of Property: Grotius and Stair’, in D.L. Carey Miller and D.W. Meyers, eds., Comparative and
Historical Essays in Scots Law: a tribute to Professor Sir Thomas Smith QC, Edinburgh, 1992, 13, at 29.
9
Wieacker, History of Private Law, 301, 303.
10
F.C. v. Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814, repr. in the
series 100 Jahre Bürgerliches Gesetzbuch: Pandektenrecht, no.54, Goldbach bei Aschaffenburg, 1997.
This facsimile-reprinted edition has been used and is referred to in the text. Another edition containing
both Thibaut’s and Savigny’s texts is H. Hattenauer, ed., Thibaut und Savigny: Ihre programmatischen
Schriften, Munich, 1973.
11
The controversy between Thibaut and Savigny, which has very frequently been discussed, is not the focus
of the present article and will not be dealt with further. On this conflict see e.g. Wieacker, History of Private
VON SAVIGNY’S BERUF AND VOLKSGEISTLEHRE 3
Today, many of the thoughts expressed in Savigny’s Beruf are experiencing a

certain renaissance, and it appears that Savigny’s impact even increases. Savigny
developed, especially in his Beruf, the Volksgeistlehre (‘spirit of the people doc-
trine’), a speculative and anti-rationalist theory of the evolution of law, which under-
pinned his interpretation of classical Roman law, and which still exercises its
influence on widely held views about the idea of a European ius commune and on
the attitude of European (especially German) scholars towards a European civil
code based on the Roman law legacy of that ius commune.12 Savigny obviously
remained of central importance in the German legal family, and he has had some
enduring impact in Scotland, though he seems to have very little relevance in

England.
It is therefore worth looking at the Beruf again to highlight modern parallels in the
intellectual history and to trace influences of some of Savigny’s ideas and doctrines in
Germany and both in Scotland and England. Savigny’s Beruf may be ‘one of the finest
contributions any legal writer has ever made to the treasury of German prose’,13 but it
is not always written in the lucid and concise style of, say, the British and French
writers of the Enlightenment, and appears in a few places as a text of almost
mystic obscurity. In section two of this article I have endeavoured to paraphrase
and summarise most of Savigny’s major thoughts and examples as far as necessary
for the subsequent discussion14 (and also as I understand them), but I have rarely
translated the text exactly. Admittedly, both the choice of text passages and their rep-
resentations may be open to criticism.15 However, in the English-speaking world, the
Beruf is virtually only known in severely abridged and paraphrased versions,16
usually combined with a tendency to a rather critical assessment in the accompanying
commentary.17 The critical view of the Volksgeist doctrine is acceptable, but the
Law, 309; K. Zweigert and H. Kötz, An Introduction to Comparative Law, 3rd ed., trans. T. Weir, Oxford,
1998, 139; P. Caroni, ‘Savigny und die Kodifikation. Versuch einer Neudeutung des “Berufes”’, 86
SavignyZ (Germanistische Abteilung) (GA) (1969), 97– 176, at 119; P. Stein, Legal Evolution: the story
of an Idea, Cambridge, 1980, 59.
12
On this movement and its link with Savigny, most instructive is R. Zimmermann, ‘Savigny’s Legacy.
Legal History, Comparative Law, and the Emergence of a European Legal Science’, 112 Law Quarterly
Review (1996), 576. See also below under section III.4. Zimmermann’s article also appeared in Austria
as ‘Savignys Vermächtnis. Rechtsgeschichte, Rechtsvergleichung und die Begründung einer Europäischen
Rechtswissenschaft’, 120 Juristische Blätter (1998), 273.
13
Wieacker, History of Private Law, 309.
14
This entailed significant abridgements and the omission of many of Savigny’s otherwise interesting theor-
etical discussions, especially on the (then new) Code Civil, ALR and ABGB in chapter 7.
15
It has however been suggested that an English explanation or translation may sometimes be clearer than
the German original (compare preface in Zweigert and Kötz, Introduction to Comparative Law, vi).
16
The only full translation into English appeared in 1831 by A. Hayward, Of the Vocation of our Age for
Legislation and Jurisprudence, London, 1831.
17
H. Kantorowicz, ‘Savigny and the Historical School of Law’, 53 Law Quarterly Review (1937), 326–343;
W. Friedmann, Legal Theory, 5th ed., London, 1967, 210–211; Stein, Legal Evolution, 63 –64; an extract of
a translation of Savigny’s System des heutigen Römischen Rechts (1840) on the Volksgeistlehre in M.D.A.
Freeman, Lloyd’s Introduction to Jurisprudence, 7th ed., London, 2001, 921–925 (commentary at pp.905–
908); R.W.M. Dias, Jurisprudence, 5th ed., London, 1985, 377– 383; G.W. Paton and D.P. Derham, A Text-
book of Jurisprudence, 4th ed., Oxford, 1972, 19–21. Sympathetic to Savigny, but slightly oversimplifying,
J.Q. Whitman, ‘The Neo-Romantic Turn’, in P. Legrand and R. Munday, eds., Comparative Legal Studies:
traditions and transitions, 312, 316.
4 LE GAL HIS TORY
reasons given are not always convincing, and therefore a more extensive exposition of
the original text may be beneficial.
Section three provides a history of the influence of the Volksgeist theory in
Germany and a survey of critical commentary by legal historians in relation to
Savigny’s idealist concept of legal evolution, his view of the purposes of legal
science, and as regards his classicist and effectively ahistorical view of Roman
law. It also contains a discussion, by way of the example of the ‘abstract real con-
tract’, of the manner in which Savigny and, under his influence, the Pandectists,
created new legal doctrines by applying the methods professed by the German histori-
cal school. These methods seem to recur in the present debate and academic research
concerning a possible European civil code based on a Romanist or pandectistic notion
of a European ius commune, which will be dealt with in the last part of section three.
Section four discusses Savigny’s influence in England and Scotland, whereby in
Scotland his Volksgeistlehre appears to be surprisingly relevant today.
II. SAVIGNY’S VOM BERUF UNSERER ZEIT FÜR GESETZGEBUNG UND

RECHTSWISSENSCHAFT
The Beruf comprises twelve chapters, but one can organise Savigny’s ideas under four
major headings which will be discussed in turn: (1) Savigny’s theory of the emer-
gence of law: the Volksgeist doctrine, (2) the nature of Roman law, (3) the legal situ-
ation in Germany and the (then) existing civil codes, (4) the tasks and purposes of a
legal science.
1. Savigny’s theory of the nature and evolution of law: the Volksgeist doctrine
Savigny’s objection to the codification of private law according to the models of the
Enlightenment, the French Code Civil, the Prussian Allgemeines Landrecht für die
preussischen Staaten (ALR) and the Austrian Allgemeines Bürgerliches Gesetzbuch
(ABGB), is based mainly on two grounds: first, a codification in his view inevitably
represents an ahistoric approach to the law and therefore lacks sensitivity to the char-
acter of different historic epochs, a lack of sensitivity which is also typical of the
nature of education in the Enlightenment (‘an entirely unenlightened drive for edu-
cation’ throughout Europe in the eighteenth century which has led to a loss of ‘an
understanding and feeling of the greatness and peculiarity of different times’18). Sec-
ondly, and in connection with the first argument, a codification does not reflect the
fact that the private law of a people has grown out of, and is characteristic of, a
given people, like its language, customs and constitution.19 Rather, according to
Savigny, a code contains artificial legal rules that are severed from any historical
roots of a certain civilisation, and can therefore be arbitrary and variable,20 without
a justification through tradition, because the purpose of a codification is merely
18
Savigny, Beruf, 4. Savigny’s comment about the ‘entirely unenlightened drive for education’ (‘völlig
unerleuchteter Bildungstrieb’) in the Enlightenment is obviously polemic.
19
Ibid., 8.
20
Ibid., 6.
directed at a mechanical certainty of the law and its application by way of abstract and
comprehensive rules.21 Such an unsatisfactory situation that ignores legal traditions
and characteristics would be created if a single code following the model of the
(then new) French Code Civil were enacted in all German states, as Thibaut and
others had suggested.22
Savigny looked at the evolution of law in a given society and elaborated further on
his idea that the law is the product of history and an organic development which
embodies the culture, tradition and character of a people.23 Private law is peculiar
to a people because it is, like language or customs, inseparably linked with the
nature, powers and acts of the people, and born of the people’s common convictions.
Therefore, according to Savigny, the law cannot have developed accidentally and
arbitrarily.24
During the ‘younger days of the peoples’ (‘Jugendzeit der Völker’), the rules of
private law are part of a people’s belief, and even at this early ‘natural’ phase of evol-
ution (‘naturgemäßer Zustand’) family relations and landownership have gained
importance. But these abstract relations need a means to be fixed in some material
form. Nowadays, this is achieved by legal principles expressed in written and
spoken language. At the earlier cultural stages such a high level of abstraction was
not possible, so the people expressed these legal principles and relations by way of
symbolic acts, which in this way constituted the law in a perceptible manner.
These symbolic acts are not to be regarded as a barbaric superstition, but were
earlier forms of the law which was clearer and more vivid than the modern abstract
law, and which represented the common belief of the people far better than the
modern law.25 The organic connection of law with the nature and character of a
people (‘organischer Zusammenhang des Rechts mit dem Wesen und Charakter
des Volkes’) remains with the evolution of the people through the course of
history, in a similar way to the development of language, and in this way the devel-
opment of law grows with the (cultural) evolution of the people, and eventually dies
when the people loses its individual characteristics (‘Das Recht wächst also mit dem
Volke fort, bildet sich aus mit diesem, und stirbt endlich ab, so wie das Volk seine
Eigentümlichkeit verliert’). The actual foundation of the law is the common con-
sciousness or understanding of the people (‘der eigentliche Sitz des Rechts [ist] das
gemeinsame Bewußtsein des Volkes’).26 The more highly a given culture develops,
the more sophisticated the law grows and it will increasingly be specialists,
lawyers, who deal with the law. Thus a legal science emerges and a specialist legal
terminology; and while in earlier times the law was embedded in the consciousness
of the people as a whole, it is now the lawyers and jurists who represent the
people’s consciousness as to the law. Thus today the existence of the law is
21
Ibid., 5 and 6.
22
Ibid., 4.
23
Ibid., 8ff. (ch.2).
24
Ibid., 8.
25
Ibid., 10.
26
Ibid., 11. See also F.C. v. Savigny, System des heutigen Römischen Rechts, vol.1, Berlin, 1840– 49,
13–18, 20 and generally §§(chs.) 7–9.
6 LE GAL HIS TORY
divided into a political element, in that the law is still essential to the lives of the
people in general (‘natural law’, ‘natürliches Recht’, as Savigny put it, but not to
be understood in the sense of natural law in the Age of Reason of the eighteenth
century), and into a technical element, in that the law is subject to a specialist legal
science pursued by jurists (‘scientific law’, ‘gelehrtes Recht’).27 The law originates
first from a people’s beliefs and customs (‘customary law’ in common parlance),
and then from legal science, but generally not from arbitrary acts of a legislator.28
It is noteworthy that in Savigny’s view not only the ‘natural’ law arising from
common beliefs and customs, but also the science of the law (Rechtswissenschaft),
are the products of a people’s cultural development.
2. The nature of Roman law

Savigny gives the example of Roman law to illustrate his discussion of the emergence
of law.29 In his opinion, law has no existence on its own, but its nature is human life,
looked at from a particular angle. If a legal science does not take this into consider-
ation it will become out of touch with reality, irrespective of its perhaps highly devel-
oped system. Roman law is, in Savigny’s view, a very good model of a law which
combines a sense of realism with a highly developed scientific method.30 For the
Roman jurists, theory and practice are interrelated: they see in every principle a prac-
tical example of its application and in every concrete case the representation of a
general rule.31 The Roman jurists pragmatically retained traditional legal rules
without, however, committing themselves to these if they no longer reflected the
prevalent view of the people. Thus new legal concepts were linked to existing
ones and then developed further.32 The Roman law developed as a customary
law,33 and the science and methods of the Roman jurists show a characteristic
uniformity when interpreting it: the writers were not individualists but shared the
same methods and designed together ‘the same great work’.34 This explains why
the Roman jurists concerned themselves little with the creation of exact definitions,
but they had a clear and precise understanding of legal concepts and developed a
precise legal language which forms an undivided whole with the science of the
law.35 The period in which to appreciate the value of the science of Roman law is
the time of the classical Roman jurists, Papinian and Ulpian; but even if texts from
older periods were available (Cicero, Augustus), one would have to acknowledge
the scientific imperfection of such texts in comparison.36
27
Savigny, Beruf, 12–13. Compare also S. Vogenauer, ‘An Empire of Light? Learning and Lawmaking in
the History of German Law’, 64 Cambridge Law Journal (2005), 481 at 497.
28
Ibid., 14. See also Savigny, System, vol.1, 45 (§(ch.) 14).
29
Savigny, Beruf, 27ff. (ch.4).
30
Ibid., 30.
31
Ibid., 31.
32
Ibid., 32.
33
Ibid., 33.
34
Ibid., 29.
35
Ibid., 29–30.
36
Ibid., 33.
In Savigny’s opinion, legislation had little influence on the evolution of Roman

law, and in the golden age of Roman jurisprudence the Roman jurists apparently
showed little interest in a codification of Roman law.37
3. The laws and their codification: the situation in Germany in 1814 and the (then)
existing civil codes
The example of Roman law shows that, according to Savigny, codification of a legal
system is an indicator of the decline of the organic development of the living body of
the law and its legal science in the course of history.38 The codification movement of
Savigny’s time was, in his opinion, driven by artificial concepts of Reason that disre-
garded the existing laws, and it was detached from the people’s consciousness and
history. Instead, a lawyer must first be able to understand the history which gave every
age and legal institution (Rechtsform) their peculiar shape; and, secondly, to appreciate
their place in the broader systematic context. This systematic aspect means that ‘each
concept and each rule’ must be regarded ‘in the living connection and interaction with
the whole’ (‘um jeden Begriff und jeden Satz in lebendiger Verbindung und Wechselwir-
kung mit dem Ganzen anzusehen’). The eighteenth century in particular, in Savigny’s
view, rarely recognised this two-fold historic and systematic scientific meaning.39
Savigny then discusses the existing, and rather new, civil codes of his time, the
French Code Civil of 1804, the Prussian ALR of 1794, and the Austrian ABGB of
1811, to prove the point that all three codes were produced on the basis of a legal
knowledge and education ( juristische Bildung) which was devoid of the pre-requi-
sites for making a good code.40 This examination of the three civil codes41 showed
that, in Savigny’s opinion, his age was not ready to claim a calling to pass a civil
code for Germany.42
A code should be regarded as a record of the whole existing law, sanctioned by the
state.43 But in Savigny’s view the situation in the German states before the
Napoleonic wars showed that, until the (then) very recent codifications, the ius
commune (gemeines Recht) generally applied in the whole of Germany. According
to Savigny, the older Germanic laws only existed in vestiges after the establishment
of a feudal system, and after the reception Roman law had become part of the German
laws and was no longer an alien element of German law, as had sometimes been
claimed.44 Unlike ancient Rome, Germany did not have a strong central power
which could ensure a unity of the law, and, in any case, the plan of harmonising or
levelling out the then many different German state laws was, in Savigny’s opinion,
for a different purpose. The real reason was that the mere idea of uniformity had
37
Ibid., 34.
38
Ibid., 28, 34 –35.
39
Ibid., 47–48.
40
Ibid., 54.
41
This section in the Beruf (chapter 7, the longest chapter, but arguably also the weakest) has not been dealt
with here, despite many interesting points which Savigny makes, because it is not sufficiently relevant to the
present discussion.
42
Savigny, Beruf, 108.
43
Ibid., 18–19.
44
Ibid., 37–39.
8 LE GAL HIS TORY
already exercised an indescribable power in every direction in Europe for a long time;
Montesquieu had already warned of the misuse of that power (‘der wahre Grund . . .
besteht in der unbeschreiblichen Gewalt, welche die bloße Idee der Gleichförmigkeit
nach allen Richtungen nun schon so lange in Europa ausübt: eine Gewalt, gegen deren
Mißbrauch schon Montesquieu warnt’).45 Furthermore, if the individual laws of the
different provinces and cities were preserved, that would not stand against love for
one’s country as a whole. According to Savigny it is erroneous to believe that the uni-
versal will be promoted by the destruction of the individual.46
4. The tasks and purposes of a legal science

Savigny had a clear understanding of what legal science should achieve: only after a
serious study of legal history, through which the awareness of historical and political
matters would also be improved, would scholars be able to appreciate the law and the
legal tradition as it had been handed down.47 Furthermore, the appreciation of history
(‘der geschichtliche Sinn’) is the only safeguard against a certain self-deception,
common among individuals and whole peoples, which perceives one’s own present
condition as something that applies to everyone and in general. Thus Justinian’s Institutes
cannot be regarded as the expression of ‘Natural Law’ based on Reason as the eighteenth
century saw it.48 Rather, it is necessary to research the historical sources and the origin
and historical evolution of legal institutions and rules. Furthermore, such research will
emphasise the individuality of a given people among all others. Otherwise the
consciousness of a people’s characteristics may be lost (‘das Bewusstsein der
Volkseigentümlichkeit [kann] verlorengehen’).49 This is the purpose of the strict histori-
cal method of legal science (‘die strenge historische Methode der Rechtswissenschaft’).
However, the application of this method does not involve the unconditional and unaltered
acceptance of Roman law; on the contrary, the legal material should be traced back to its
historical origin, because in this way, the ‘organic’ principles can be ascertained, and the
still viable elements can be separated from the obsolete ones. The substance which
constitutes the research material of legal science in Germany is Roman law, Germanic
law, and the modifications of both.50 In this way, a legal science will come into existence
45
Ibid., 41. This passage is central to Savigny’s argument, but unfortunately rather obscurely worded. What
Savigny means can be extracted from the following passages (Savigny, Beruf, 41–44) and the Beruf as a
whole: a uniform codification out of a false sense of ‘national’ unity leads to the destruction of the cultural
difference of organically developing legal systems and their legal science. The German word Gewalt which
Savigny uses can be translated as ‘power’ but also as ‘force’ and ‘violence’ and all three meanings are rel-
evant in this context. In a footnote (at p.41) Savigny refers to book 29, chapter 18 of Montesquieu’s De
L’Esprit des Lois. The cited chapter (‘Of the Ideas of Uniformity’) includes the passages: ‘There are
certain ideas of uniformity, which sometimes strike great geniuses (for they even affected Charlemagne),
but infallibly make an impression on the little souls . . . does not the greatness of genius consist rather in
distinguishing between these cases in which uniformity is requisite, and those in which there is a necessity
for differences? . . . If people observe the laws, what signifies it whether these laws are the same?’, see Ch.
de Montesquieu, The Spirit of Laws, trans. T. Nugent, 1750, repr. New York, 1966, 170.
46
Savigny, Beruf, 42.
47
Ibid., 114.
48
Ibid., 115.
49
Ibid., 116.
50
Ibid., 117 –118. This transformation of the Roman law (of Justinian) into the ius commune by the
Commentators, and its application to the local ius speciale (Germanic customary laws) is the characteristic
which pervades the historic substance of law, and, as a result, a separate national law and
an accurate legal terminology will emerge.51
III. CRITIQUE OF SAVIGNY’S VOLKSGEIST DOCTRINE AND THE FURTHER

INFLUENCE OF THE BERUF IN GERMANY
1. Savigny’s Volksgeist doctrine and legal history
Savigny’s statements on the origin of the law of a people were an important aspect of
what would become the movement of the German historical school of law, for which
Savigny postulated a legal science consisting of a historical and a philosophical (later:
systematic) element.52 The historical factor is part of a wider cultural element parallel
to which the law should evolve.53 There is little doubt that Savigny conceived (legal)
culture also as (legal) literature,54 and when Savigny uses in the Beruf the terms
‘people’ and their ‘consciousness’, or, in other words, their ‘spirit’ (Volksgeist),55
he employs an idealistic notion: for him ‘people’ is not necessarily any actual individ-
ual nation or society, but an idealist cultural concept,56 the idealised intellectual and
cultural community57 bound together by a common education, and also a literary edu-
cation, very much in the sense of Herder and Goethe.58
Savigny’s theory of the Volksgeist, currently perhaps the best-known part of his
writings outside Germany,59 has generally been rejected by legal historians.60 The
reasons are manifold. First, the rather mystical Volksgeist theory sits uneasily with
Savigny’s striving for a systematic, scientific approach to law and the development
legal legacy of Germany in particular, see Wieacker, History of Private Law, 57. The German term for ius
commune is gemeines Recht, which literally translates as ‘common law’, but this translation would be
confusing.
51
Savigny, Beruf, 133. This passage is to some extent my interpretation, Savigny’s original wording is
slightly more obscure. It says, approximately: ‘The historic substance of the law, which hampers us every-
where now, will then be penetrated by us and enrich us. We will then have a national law of our own, and it
will not lack a powerfully effective language.’
52
Wieacker, ‘Savigny’, 31, 33.
53
Ibid., 6, 36.
54
E.g. Savigny, Beruf, 119; Wieacker ‘Savigny’, 25; Savigny, ‘Methodologie’, 153 (‘Literarische Metho-
dik’), 169 (‘Akademische Methodik’).
55
Savigny speaks in the Beruf of a ‘common conviction/belief of the people’ (‘gemeinsame Überzeugung
des Volkes’), but does not (yet) use the word Volksgeist, which makes it difficult to determine the exact
meaning he envisaged, Caroni, ‘Savigny und die Kodifikation’, 134, n.221.
56
See also Savigny, System, vol.1, 18, 30–31. On Savigny’s ‘idealism’ and its meaning see Rückert, Idea-
lismus, 2.
57
Wieacker, ‘Savigny’, 36; Wieacker, History of Private Law, 311; Rückert, Idealismus, 393.
58
Rückert, 197, 298. On Goethe’s influence on Savigny, especially in relation to the Wilhelm Meister, see
Nörr, ‘Geist und Buchstabe’, 20.
59
This is for example illustrated by the fact that in Freeman, Lloyd’s Introduction to Jurisprudence, 921–
925, only the relevant extract on the Volksgeistlehre of the translated System (1840) is reprinted. See also
discussion of the Beruf (and not much else of Savigny’s writings) by Stein, Legal Evolution, 59–64, and by
A. Watson, Legal Transplants: an approach to comparative law, Edinburgh, 1974, 21.
60
Caroni, ‘Savigny und die Kodifikation’, 100– 101; J. Rückert, ‘Das “gesunde Volksempfinden” – eine
Erbschaft Savignys?’, 103 SavignyZ (GA) (1986), 199–247, at 203; H. Hammen, Die Bedeutung Friedrich
Carl v. Savignys für die allgemeinen dogmatischen Grundlagen des Deutschen Bürgerlichen Gesetzbuches,
Berlin, 1983, 62.
10 LE GAL HIS TORY
of a consistent and logical legal methodology in his other works,61 especially the Law
of Possession,62 the System des heutigen römischen Rechts,63 the Law of
Obligations,64 and his lectures on methodology.65 It is the legacy of the systema-
tic-methodological Savigny66 which shaped legal scholarship and the laws in the
German-speaking world,67 not his vague, historicising, but actually contradictory,68
and scientifically unacceptable, idea that laws are not passed but originate, as custom-
ary law,69 from a people’s common spirit.70 The Volksgeist doctrine effectively
opposes any kind of enactment of laws through a lawgiver71 because of the defiance
of historical cultural development such an act seemingly involves, but the Volksgeist
doctrine could not explain away the already evidently existing Code Civil, ALR and
ABGB.72 Savigny never discarded his Volksgeist theory and consequently opposed
the introduction of lectures on the ALR at the University of Berlin in 1810,73 and,
in his function as Prussian state councillor, advised (unsuccessfully) against the
introduction of the ALR in the Rhine provinces in the 1820s.74 Later, however,
Savigny yielded to reality, perhaps also because he realised that the methodological
and systematic writings of the historical school provided a very apt framework on
which legislation, perhaps even a future civil code, could be built:75 in his System
he declared that the state was entitled to enact laws because he considered the state
as an organ and representative of the law (being the expression of the common
61
On Savigny’s doctrine of the system in (or: of) the law, see e.g. Hammen, Die Bedeutung, 24. This aspect
of Savigny’s legacy is indeed scientifically the strongest, most important and most enduring one within the
German legal family.
62
F.C. v. Savigny, Das Recht des Besitzes, Gießen, 1803.
63
F.C. v. Savigny, System des heutigen römischen Rechts, vols.1–8, Berlin, 1840–49.
64
F.C. v. Savigny, Das Obligationenrecht als Theil des heutigen römischen Rechts, vols.1–2, Berlin, 1851
and 1853.
65
See the recent editions of his lecture notes on methodology of 1802/03 and 1809 in Mazzacane, ed.,
Friedrich Carl von Savigny, 86, 138.
66
The philosophical influences on which Savigny’s legal methods are founded are disputed; some tend to
see Savigny as a follower of Kant, at least in relation to the latter’s Critique of Pure Reason, perhaps not in
relation to his moral philosophy (Metaphysics of Morals), H. Kiefner, ‘Deus in Nobis – “Objektiver
Idealismus” bei Savigny’, 112 SavignyZ (RA) (1995), 428 –460, at 441, 444, Wieacker, History of
Private Law, 306, 315; others stress Savigny’s anti-Kantian position, not only with regard to Kant’s
moral philosophy, but generally, Rückert, Idealismus, 240, 249. Mazzacane, ‘Jurisprudenz als Wis-
senschaft’, 40, is of the opinion that Savigny’s methodology is eclectic and cannot be rooted clearly in
any of the then existing philosophical schools.
67
Caroni, ‘Savigny und die Kodifikation’, 109–110; Hammen, Die Bedeutung, 50.
68
Especially Savigny’s opinion of the absolute position of Roman law at the beginning of the development
of laws and, at the same time, Roman law as being the most perfect example of a law, which precludes any
other law evolving in a creative way, is effectively ahistoric and against his own tenets on the necessary
awareness of history, see Caroni, ‘Savigny und die Kodifikation’, 108– 110.
69
See also quotation from Savigny’s lectures (1837) in Hammen, Die Bedeutung, 63.
70
Caroni, ‘Savigny und die Kodifikation’, 133.
71
Ibid., 135.
72
Hammen, Die Bedeutung, 62. The Code Civil and the ABGB are still in force.
73
The second most comprehensive statement of the Volksgeist doctrine is in Savigny’s System, vol.1,
§§(chs.) 7–9. On the opposition to ALR lectures, see Hammen, Die Bedeutung, 63.
74
See W. v. Hall, ‘Friedrich Carl von Savigny als Praktiker. Die Staatsratsgutachten (1817–1842)’, 99
SavignyZ (GA) (1982), 285 –297, at 290.
75
Hammen, Die Bedeutung, 68, 209–211 (overview of the relevance of Savigny’s doctrines for the German
BGB). By the 1820s–30s Savigny and his disciples and other representatives of the historical school were
already in high official positions within the Prussian state. See Hall, ‘Friedrich Carl von Savigny’ 288 n.22.
understanding) of the people.76 The back door for this device which seeks to reconcile
the Volksgeist doctrine with legislation (though not codification77) can already be
detected in the Beruf, when Savigny explains that in its evolution law becomes
more specialist and needs to be handed over to lawyers/jurists who then act as the
people’s representatives.78 This fairly twisted argument not only illustrates Savigny’s
essentially restorative-conservative stance,79 but renders the Volksgeist doctrine
meaningless in its consequences,80 for any legislative act can in this way be
deemed to express the people’s consciousness or understanding as the source of
their law’s origin.
As a consequence of the Volksgeist doctrine in the Beruf, Savigny’s position is

unequivocally against codification because that would interfere prejudicially with
the organic development of law.81 Nevertheless it has been maintained that this
rejection is not to be considered as absolute, because in the Beruf Savigny under-
stood codification only in the limited way as a means to collect, organise and
restate already existing customary law.82 Thus, contrary to the natural law position
in the Enlightenment which viewed codification as an opportunity for legal reform,
Savigny saw codification as a methodologically sound organisation of existing law,
without a law-creating element (which would be impossible under the Volksgeist
doctrine); and the latter point is the motivation of Savigny’s criticism of the civil
codes of his time, as they changed law without historical awareness. Therefore,
one could say that Savigny does not discuss the case of a new codification which
indeed takes into account the legal historical development and ascertains the histori-
cal making of law in order to restate its status quo (once a legal science has evolved
which is capable of taking on the task of historical and philosophical/systematic
research83): thus the Volksgeist doctrine does not preclude every codification per
se, and this explains why some representatives of the historical school did not
object to codification.84 Not everyone may find this subtle argumentation convin-
cing, because such high and idealist demands on a code and legal science may in
fact have been designed to remove any realistic chance of a successful codification
altogether and were therefore only a disguised complete rejection.85 All this shows
that the Beruf cannot be brushed aside as a mere programmatic pamphlet with little
bearing on the rest of Savigny’s work. The Beruf is rather important to the under-
standing of Savigny’s attitude to law in general, particularly if one takes into
76
Savigny, System, vol.1, 14–15, 22, 39; Hall, ‘Friedrich Carl von Savigny’ 288.
77
Hammen, Die Bedeutung, 59.
78
Savigny, Beruf, 12– 13.
79
See also Wieacker, ‘Savigny’, 15, with some qualifications.
80
Hammen, Die Bedeutung, 65.
81
Summary of his view in the Beruf, 161.
82
Caroni, ‘Savigny und die Kodifikation’, 139, 142.
83
Compare Wieacker, History of Private Law, 314.
84
Caroni, ‘Savigny und die Kodifikation’, 143–144, 163, 172.
85
Compare Hammen, Die Bedeutung, 59 n.46. When the drafts of the BGB were prepared, Savigny’s influ-
ence was still strong enough that the draftsmen, with reference to Savigny, felt the need to declare that the
time was now ripe for the enactment of a civil code, because both a legal science of high quality and
national unity as requirements of codification had been established in the meantime, see Hammen, Die
Bedeutung, 67.
12 LE GAL HIS TORY
account that essential parts of the Beruf were conceived long before Thibaut’s pub-
lication.86 In addition, in the discussion about codification in the Beruf and else-
where, Savigny developed a still valid definition of a code in a civil law system
(which lawyers of common law – or mixed – systems sometimes tend to overlook
in codification debates87): a codification is the comprehensive and consistent sys-
tematic regulation of a certain area of the law enacted by the legislature of a state.88
Several reasons may have contributed to the fact that legal historians in the past
reduced the importance of Savigny’s Beruf 89 in comparison to his doctrinal and
systematic works, or omitted it from discussion almost completely.90 Especially
when the Beruf with its Volksgeist doctrine was viewed more and more as a
result of the increasingly dated German romantic period,91 jurists of the latter
part of the nineteenth century started concentrating on Savigny’s systematic
works only.92 After 1945, a new aversion to the Beruf became apparent, prompted
by the experience of National Socialist legislation and case law which seemed to
show a similarity with the Volksgeist doctrine.93 Sometimes it was even said that
National Socialism followed the historical school in respect of the Volksgeist doc-
trine.94 Certain associations or ‘affinities’ are not unfounded, because a vague and
elusive romantic – mystic notion is common to the ideas of Savigny’s Volksgeist and
the ‘gesundes Volksempfinden’95 of Nazi ideology.96 A functional comparison of
these two concepts shows that both share the non-empirical, idealist – metaphysical
concept of a ‘people’ which does not attach to a real people (and consequently, a
real people would not itself have any practical law-making power as an expression
of its common consciousness, which was then indeed the case in Nazi Germany97).
Therefore both doctrines are elitist ideologies,98 but whether the conceptual parallel
is also supported by a historical evolution from one to the other is highly uncer-
tain.99 In any case, the Volksgeist doctrine is protected by its own elusiveness: as
Savigny claimed in later years, particularly in his System,100 the Volksgeist doctrine
86
Caroni, ‘Savigny und die Kodifikation’, 99, 129–131; Mazzacane, ‘Jurisprudenz als Wissenschaft’, 47.
87
Compare discussion in A. Rahmatian, ‘Codification of Private Law in Scotland: Observations by a Civil
Lawyer’, 8 Edinburgh Law Review (2004), 31.
88
Savigny, Beruf, 18–19. Savigny does not mention the ‘systematic’ element in this particular passage, but
his emphasis on a systematic approach is ubiquitous in his writings. Compare Caroni, ‘Savigny und die
Kodifikation’, 103, 175; Hammen, Die Bedeutung, 15, 58, 59 n.43; compare also Rahmatian, ‘Codification
of Private Law in Scotland’, 50, in which essentially the same definition of a ‘code’ is used (the element of
enactment by a legislature was in that context impliedly included).
89
E.g. Wieacker, ‘Savigny’, 19–20.
90
Further references in Caroni, ‘Savigny und die Kodifikation’, 99 –100; Rückert, ‘Volksempfinden’, 203.
91
The romanticism in Savigny’s works should however not be overemphasised, see e.g. Wieacker,
‘Savigny’, 16, with further references; Rückert, Idealismus, 95, 124.
92
Caroni, ‘Savigny und die Kodifikation’, 101.
93
References in Rückert, ‘Volksempfinden’, 202.
94
Friedmann, Legal Theory, 213.
95
Actually ‘healthy feeling/sentiment of the people’, but this typical term of National Socialist ideology
really escapes a meaningful translation into English.
96
Rückert, ‘Volksempfinden’, 211, 242.
97
Rückert, ‘Volksempfinden’, 246.
98
On Savigny’s elitism, see Rückert, Idealismus, 200.
99
Rückert, ‘Volksempfinden’, 239, 242 –243.
100
Savigny, System, vol.1, 14, 22, 29, 39.
allows legislation through the state as the representative of the Volksgeist and
especially also the development of systematic and comprehensive legal methods
by jurists, thus (effectively) a positivist legal science.101 In this way, the Volksgeist
doctrine is able to serve as a retrospective justification for legislation and legal
science.102 But, in contrast with the indefinable National Socialist formula of the
‘gesundes Volksempfinden’, Savigny’s Volksgeist doctrine is not a vague force
for forthcoming legal reforms in the spirit of an ideology, and cannot simply be con-
sidered as a pre-fascist doctrine.103
2. Savigny’s understanding of Roman law and legal science (Rechtswissenschaft)

For Savigny, not codification, but only an ‘organically advancing legal science’
(‘organisch fortschreitende Rechtswissenschaft’) common to the whole nation104
could lead to the improvement of the law and protect from injustice. He expressed,
arguably for the first time in Germany,105 the need for an established legal
science,106 and legal scholarship separate from the courts’ and advocates’ practice.
Such a legal science should consist of a historical and a ‘philosophical’
(‘systematic’107) component, and the combination of both within the scientific
legal method.108 Savigny’s emphasis on the independent scientific aspect of law,
perhaps influenced by his interest in mathematics in his youth,109 was not new,
however, but continued a trend of the eighteenth century.110 The extraordinary
importance of Savigny’s systematic theories on German law and legal doctrine
until today, including on statutory interpretation, definitions and categorisations of
legal institutions, and on the development of general legal rules as a result of abstrac-
tion and reduction, cannot be discussed here.111
Savigny saw the ideal of a legal science which presented a historical understand-
ing and a systematic treatment of the law exemplified in classical Roman law, as he
viewed it.112 For him, Roman law, his declared love that remained central to his
research interests throughout his life113 (at the expense of e.g. the old German(ic)
101
This would then result in Pandectism, see Wieacker, History of Private Law, 312–313, 318, 333, 341.
102
Rückert, ‘Volksempfinden’, 241 –242.
103
Rückert, ‘Volksempfinden’, 206.
104
Savigny, Beruf, 161.
105
Wieacker, History of Private Law, 305, 308.
106
Also the term ‘legal science’ (Rechtswissenschaft) emerged in the 1810s in Germany, see Caroni,
‘Savigny und die Kodifikation’, 119.
107
Whereby philosophy (in the proper sense) serves as a theoretical basis of systematic legal doctrine,
Mazzacane, ‘Jurisprudenz als Wissenschaft’, 33.
108
Savigny, ‘Methodologie’, 139; Hammen, Die Bedeutung, 33; Caroni, ‘Savigny und die Kodifikation’,
112, 114; Mazzacane, ‘Jurisprudenz als Wissenschaft’, 11, 31, 33, 37; Wieacker, ‘Savigny’, 31–32.
109
Kiefner, ‘Deus in Nobis’, 444–445. See also Savigny’s statement that the Roman jurists ‘did calcu-
lations’ using legal concepts, Savigny, Beruf, 29.
110
See e.g. Henry Home, Lord Kames, Elucidations respecting the Common and Statute Law of Scotland,
Edinburgh, 1777, vii; Mazzacane, ‘Jurisprudenz als Wissenschaft’, 26, also points out that Savigny’s
emphasis on systematisation was in accordance, rather than in contrast, with eighteenth-century thought.
111
See e.g. Hammen, Die Bedeutung, 24, 42 –45, 50 with further references.
112
Savigny, Beruf, 27–36; Caroni, ‘Savigny und die Kodifikation’, 117 –118; Mazzacane, ‘Jurisprudenz als
Wissenschaft’, 47, 50, 52–54.
113
Caroni, ‘Savigny und die Kodifikation’, 105; Hammen, Die Bedeutung, 32.
14 LE GAL HIS TORY
customary law which then still applied to many geographic and social sectors), was
the classicist and absolute ideal of an organised and systematic, though living and
practical, legal order, maintained by highly knowledgeable jurists who had developed
uniform scientific legal methods.114 It has often been emphasised, and need not be
repeated here at length, that his view is exaggerated, in many cases incorrect, and,
against his own teachings, ahistorical.115 In particular, Roman law is not much sys-
tematised, but is generally case law116 (and, incidentally, propaedeutically useful
for teaching English common law), and Roman jurists actually discussed individual
cases with little interest in creating abstract overarching principles.117
However, Savigny’s stance underpins his treatment of the sources of Roman law
and his creation of legal doctrines, which were subsequently extremely influential.
One doctrine that Savigny developed from Roman law, as he perceived it, and
which was crucial to the further development of German private law, was his
concept of the abstract real contract extracted from certain passages in the Digest.
Far more than common law systems, civilian systems, following Roman
law,118 emphasise the difference between (a) the contract (titulus), a contract of
sale or any other contract directed at the transfer of real rights which creates the
obligation to transfer, and (b) the conveyance (modus) or actual transfer of a pro-
prietary right (especially ownership) in a thing (res) which effects the passing of
the real right from transferor to transferee. In modern German law, the division
of the transfer of real rights into the two separate acts of ‘contract’ (Verpflich-
tungsgeschäft, ‘bargain of obligation’) and ‘conveyance’ (Verfügungsgeschäft,
‘bargain of disposition’) is particularly strongly developed, as this division
into contract and conveyance, or ‘principle of separation’ (Trennungsprinzip), is
complemented by a second ‘principle of abstract conveyance’ (transfer, traditio)
or ‘principle of abstraction’ (Abstraktionsprinzip).119 The central question
determining the existence of an abstract conveyance is whether a conveyance is
only valid if there is an underlying legally recognised reason or iusta causa tradi-
tionis to pass the real right. This iusta causa (Rechtsgrund ) is typically a contract
(titulus) which is in its nature able, or designed, to transfer real rights: a sale, a loan
(if a mutuum, not a commodatum 120), etc. If real rights can be transferred
independently of such an underlying iusta causa traditionis, then the system of
transfer of real rights is abstract, as is the case in Germany; if a valid iusta
causa is required, then the system of transfer is causal, as it is in Austria,121
114
Savigny, Beruf, 27ff.
115
Caroni, ‘Savigny und die Kodifikation’, 108, 110.
116
M. Kaser, Das Römische Privatrecht, vol.1, 2nd ed., Munich, 1971, 2, 4.
117
Caroni, ‘Savigny und die Kodifikation’, 118; P. Stein, Roman Law in European History, Cambridge,
1999, 16–17.
118
B. Nicholas, An Introduction to Roman Law, Oxford, 1975, 117.
119
J.F. Baur and R. Stürner, Sachenrecht, 17th ed., Munich, 1999, §(ch.)5 nn.40–41.
120
The Roman law equivalent mutuum is the loan for consumption, as opposed to the commodatum, loan for
use, see e.g. Nicholas, Introduction, 167 –168.
121
§380 Austrian ABGB: no ownership can be acquired without a cause (Titel, titulus) and a legally recog-
nised mode of transfer (rechtliche Erwerbungsart, modus). See also F. Bydlinski, ‘Die rechtsgeschäftlichen
Voraussetzungen der Eigentumsübertragung nach österreichischem Recht’, in G. Paulus et al., eds.,
Festschrift für Karl Larenz, Munich, 1973, 1027–1028.
Switzerland,122 or The Netherlands.123 Section 929 BGB (Bürgerliches Gesetzbuch)

expresses clearly the German principle of abstract transfer of real rights: for the
transfer of ownership in moveable property,124 the owner must deliver the thing
(res) to the acquirer and both must be in agreement that the ownership be trans-
ferred. The validity of such a proprietary transfer under the ‘real contract’ is inde-
pendent from the existence or validity of a contract (obligatorischer Vertrag,
‘obligatory contract’) which is typically the underlying reason for that proprietary
transfer.125
The idea of a conveyance as an independent ‘real contract’, free from a contractual
purpose, and detached from the contractual obligation, was largely the result of legal
doctrines expounded by Savigny126 and the Pandectists,127 who developed the
concept of the abstract real contract from Roman law by a creative reinterpretation
of certain passages in the Digest, for example the debate between Ulpian128 and
Julian.129 This famous controversy deals with a special case: if someone gives
money as a gift, but the recipient erroneously believes that the money was given for
the purpose of a loan for consumption (mutuum), then there is a dissensus in causa,
which, according to Ulpian, prevents the transfer of ownership. Julian nonetheless
accepts the transfer, because presumably, someone who is willing to give money as
a gift, is even more prepared to grant a loan.130 Hence, nineteenth-century scholars con-
cluded, the existence of a iusta causa traditionis is not relevant if there is an agreement
as to the passing of ownership. The traditio in classical Roman law, however, was a
causal conveyance (a transfer of ownership based on a iusta causa traditionis).131
122
Compare Swiss Civil Code (Zivilgesetzbuch) §§974–975 ZGB (regarding land), and court decision BGE
55 II 306 (regarding moveable property). The matter is slightly more complex, in that the parties can decide
not to refer to the cause of the contract (art.17 Obligationenrecht), or exclude certain defences, and thus
give their transaction a higher abstract quality, see A. Koller, in T. Guhl (A. Koller et al. contributors),
Das schweizerische Obligationenrecht, 9th ed., Zürich, 2000, 95, 100 –101.
123
See L.P.W. v. Vliet, Transfer of Movables in German, French, English and Dutch Law, Nijmegen, 2000,
32.
124
As regards immoveable property, the same principles apply, thus there must be an agreement that own-
ership shall pass (independent from a contractual obligation), but the act of delivery is replaced by the (sep-
arate) act of registration in the Grundbuch, comparable to the Land Register (§873 BGB), see K.H. Schwab
and H. Prütting, Sachenrecht, 31st ed., Munich, 2003, §(ch.)16 nn.138–150.
125
Baur and Stürner, Sachenrecht, §(ch.)51 n.1.
126
F.C. v. Savigny, Das Obligationenrecht als Theil des heutigen römischen Rechts, vol.2, Berlin, 1853,
254– 261, especially at 257 and n.(m). See also immediately below.
127
Wieacker, History of Private Law, 341–362; Vliet, Transfer of Moveables, 169, 186.
128
Ulpian D.12,1,18 pr.
129
Julian D.41,1,36.
130
Julian D.41,1,36: ‘If we agree on the thing to be transferred (delivered), but disagree over the true cause
of the transfer, then I see no reason why the transfer should not be effective’ (‘Cum in corpus quidem quod
traditur consentiamus, in causis vero dissentiamus, non animadverto, cur inefficax sit traditio’).
131
Paulus D.41,1,31 pr.: ‘Nobody transfers ownership by way of a bare delivery, ownership is only transferred
if the transfer is preceded by a sale or another ground (of acquisition), as a result of which the delivery follows’
(‘si venditio aut aliqua iusta causa praecesserit, propter quam traditio sequeretur’). See e.g. Kaser, Das
Römische Privatrecht, 416 (the old mancipatio was abstract, but had already disappeared in the post-classical
period, ibid., 414–415); Nicholas, Introduction, 117; A. Borkowski and P. du Plessis, Textbook on Roman
Law, 3rd ed., Oxford, 2005, 196. See, however, qualifications by R. Zimmermann, The Law of Obligations,
paperback, Oxford, 1996, 240; compare discussion of an effectively similar interpretation of iusta causa by
Larenz for the German law (K. Larenz, Lehrbuch des Schuldrechts, 10th ed., vol.2, Munich, 1972, 10ff.),
and for the situation in Austrian law see Bydlinski, ‘Die rechtsgeschäftlichen Voraussetzungen’, 1027.
16 LE GAL HIS TORY
Savigny did not touch on the problem of the separate abstract real contract132 in the
Beruf, but it can be seen from lecture notes taken by his students that he had developed
the basics of this concept at about the same time (1815).133 It was also Savigny’s stu-
dents who were the first to disseminate his theory to a wider audience,134 until Savigny
made his influential assertion in his Law of Obligations (1853),135 following earlier
similar statements,136 that a delivery transfers ownership because of the concordant
will of the parties to that effect, and that ‘the conveyance (Tradition) itself is therefore
a true contract, not an obligatory, but a real [proprietary] one, as opposed to the obli-
gatory contract (sale, barter etc.) which may be the basis of the conveyance and
mostly really is’.137 Interestingly, at this stage Savigny no longer cited passages from
the Digest in support of his theory, although he was of the opinion that it was quite
in accordance with classical Roman law.138 The courts in the German states reacted
inconsistently to the theory of the abstract real contract, but the majority of legal aca-
demics soon endorsed Savigny’s view, and already the first draft of the BGB contained
the principle of the independent conveyance that required only the abstract real agree-
ment that ownership shall pass.139 There may also have been historical and political
reasons, especially the situation of Prussian landownership in the nineteenth century
at the time of the making of the BGB, for favouring this principle.140
Modern German commentators generally agree that the concept of the abstract
real contract is far removed from the reality of business transactions as the acting
parties perceive them.141 This does not prevent some German jurists defending the
German principle of abstraction (and the abstract obligation142) against other possible
solutions, for example the causal system in Austria.143
132
Savigny does not seem to have considered the issue of the abstractness of obligatory contracts (debts
arising from an obligation without reference to a specific cause, which would be in close proximity to
the concept of the abstract real contract) as an independent problem in around 1815–20, but only later
and not very specifically, see H. Kiefner, ‘Der abstrakte obligatorische Vertrag in Praxis und Theorie
des 19. Jahrhunderts’, in H. Coing and W. Wilhelm, eds., Wissenschaft und Kodifikation des Privatrechts
im 19. Jahrhundert, Frankfurt/Main, 1977, 74, 81 –82.
133
F. Ranieri, ‘Die Lehre der abstrakten Übereignung in der deutschen Zivilrechtswissenschaft des 19. Jahr-
hunderts’, in Coing and Wilhelm, eds., Wissenschaft und Kodifikation, 90, 91, 97.
134
Especially L.A. Warnkönig, ‘Bemerkungen über den Begriff der iusta causa bei der Tradition’, 6 Archiv
für die civilistische Praxis (1823), 111–134, at 114, 126, 130 (on Paulus’ contrary view in D.41,1,31 pr.
which he considers as ‘incorrect’), 131.
135
Savigny, Obligationenrecht, 256 –257.
136
Savigny, System, vol.3, 312 –313, and vol.4, 244 –246.
137
Savigny, Obligationenrecht, 257, n.(m).
138
See the interesting discussion in Ranieri, ‘Die Lehre der abstrakten Übereignung’, 97– 99, as to the way
in which Savigny and his disciples dealt with the Roman law sources on this point.
139
Hammen, Die Bedeutung, 156–157, 160.
140
W. Däubler, BGB kompakt, Munich, 2002, 421 with further references.
141
Baur and Stürner, Sachenrecht, §(ch.)5 n.43; Däubler, BGB kompakt, 419, 422; H.-P. Westermann, in
H.-P. Westermann, Sachenrecht, 7th ed., Heidelberg, 1998, §4 I and III.
142
The ‘abstraction as to content’ (inhaltliche Abstraktion) within the abstract transfer of ownership is one
example of the possibility of an abstract obligation (i.e. without any reference to a legal cause) in German
law. One equivalent in English law would be the autonomy of the payment obligation under a bill of
exchange, see e.g. R. Goode, Commercial Law, 3rd ed., London, 2004, 480– 481.
143
See e.g. C.-W. Canaris, ‘Theorienrezeption und Theorienstruktur’, in H.G. Leser and T. Isomura, eds.,
Wege zum japanischen Recht, Festschrift für Zentaro Kitagawa, Berlin, 1992, 59, 85 (abstract conveyance,
The abstract real contract doctrine which found its way into the German BGB is a
famous example of the practical outcome of the workings of the historical school and
the Pandectists as already outlined in Savigny’s Beruf : thorough knowledge of the
historical material of classical Roman law after scholarly research and use of that
material for further systematic improvement of the law through new doctrines.
Obviously, and contrary to Savigny’s professed intentions, such a method is not
fully supported by legal tradition, but, perhaps because of that, permits the creative
development of the law.
3. General reservations as to Savigny’s idea of legal history

Savigny’s anti-rationalist ideas of a historical evolution of law, whether the Roman
law or the ius commune, are as speculative as the rationalist ideas put forward by
the jurists of natural law and other writers of the Enlightenment whom Savigny fier-
cely attacks. Even his view of Roman law is speculative in several areas,144 as is his
concept of the origin of law in general. There is only a difference in content, but not in
justificatory quality, between, say, Locke’s145 or Rousseau’s146 explanations of the
emergence of property rights; Kames’s ideas of the progress of man and human
society and, in connection with these, the evolution of law;147 Adam Smith’s view
that a progressive economy leads to an increase of wealth for all;148 and, on the
other hand, Savigny’s Volksgeist doctrine or some aspects of his interpretation of clas-
sical Roman law. Common to these theories of philosophical history is primarily a
dogmatic approach from a priori principles with a historical element that is more
or less influential on the formulation of these principles: all are nevertheless essen-
tially speculative ideas,149 backed up by calculatingly chosen, and appropriately
fitting, historical examples,150 rather than theories resulting from historical or empiri-
cist research, even if such historical research (as a separate undertaking) may have
been triggered as a consequence. Apart from the renewed interest in historical
research, it is difficult to see any superior benefits of the professed method of the his-
torical school, since the theories of the Enlightenment have at least the advantage that
they are generally more clearly expressed, so their accuracy can be more easily tested
‘external abstraction’), and at 88 (abstraction as to content), emphasising the advantages of the German
system over that of Austria because of its greater systematic consistency and expediency.
144
This can be seen, for example, by the way in which he treats Roman law sources when developing the
concept of the abstract real contract, see above under section III.2.
145
J. Locke, Two Treatises of Government, 1690, P. Laslett, ed., 2nd ed., Cambridge, 1967, 303 (second
treatise, ch.5).
146
E.g. in J.-J. Rousseau, Du Contrat Social, 1762, Oxford, 1972, book 1, ch.9.
147
Henry Home, Lord Kames, Sketches of the History of Man, 2nd ed., Edinburgh, 1778; Historical Law
Tracts, 4th ed., Edinburgh, 1792 (preface). See also Stein, Legal Evolution, 25.
148
E.g. in A. Smith, An Enquiry into the Nature and Causes of the Wealth of Nations, 1776, vol.2, (1811–12
ed.), repr. Aalen, 1963, 123.
149
Compare N.E. Simmonds, ‘Reason, History and Privilege: Blackstone’s Debt to Natural Law (Miszel-
len)’, 105 SavignyZ (GA) (1988), 200 –213, at 208. On the speculative aspect of Savigny’s concept of
history, see Rückert, Idealismus, 117.
150
The texts of the Enlightenment are full of historical examples supporting a priori statements, for
instance, the works of Locke, Montesquieu, Voltaire (!), Hume, Kames and Adam Smith. Compare the
pragmatic way in which Thibaut understood the purpose of history, H. Kiefner, ‘A.F.J. Thibaut’, 77
SavignyZ (RA) (1960), 304–344, at 321 –322.
18 LE GAL HIS TORY
than Savigny’s rather diffuse idea of the role of history in legal evolution. Historical
and antiquarian research151 are important in their own right, but often unable to
remove the speculative attributes of such approaches, if a seemingly exegetic research
is used to make a tradition or establish a pattern of evolution by purporting to explain,
justify or freeze a (perceived) status quo, a danger the historical school and all ‘his-
torical approaches’ invariably face. It is, in retrospect, not surprising that Savigny’s
essentially doctrinal a priori concept of legal history (especially of classical
Roman law) was an ideal breeding ground for nineteenth-century Pandectism as a
highly abstract and conceptual ahistorical system152 which used legal history, an
otherwise effectively separate discipline, as an ornamental explanation. In this way

it can also be explained why a highly technical and formalistic codification of
private law, the BGB, after the extraction of ahistorical general principles from the
old ius commune by the Pandectists following Savigny’s teachings,153 could even-
tually grow out of the historical school, much against Savigny’s views on
codification.154
4. Revival of Savigny’s and the Pandectistic notions of the purpose of legal history:
the idea of a new ius commune
A striking parallel to the nineteenth-century situation can be seen today in the discus-
sions concerning a European civil code that originates from an also essentially specu-
lative notion of a Roman-law-based tradition of a ius commune across Europe,
seemingly legitimised by existing legal historical research. For example, one of the
most prominent representatives of the ‘ius commune seekers’,155 Zimmermann,
stresses that there was once a European legal culture centred around a common
legal science that used the same Europe-wide sources of Roman –Canon law. It devel-
oped a ius commune based largely on received Roman law which contained common
legal principles. In a similar fashion to Savigny’s historical school it is argued that
doctrinal law needs to re-establish the link with history, and such historical
investigation will reveal the general intellectual undercurrents that shaped common
legal ideas and concepts as a characteristic emanation of European culture. The exist-
ing codifications, the ABGB, the Code Civil and even the BGB were in their outlook
also universalistic and were not intended to be codes of national law only. In this way
a common core of European law can be found.156 As a next step, this common core
could be the basis of a European civil code.157 Leaving aside the surprising suggestion
151
Wieacker, ‘Savigny’, 22, 24. The jurisprudence of classical humanism or ‘elegant jurisprudence’, influ-
enced the German antiquarian movement of the late eighteenth century, which was, in turn, influential on
the German historical school of law, see Wieacker, History of Private Law, 123, 173–174.
152
Wieacker, History of Private Law, 312–313, 318, 341.
153
Especially Savigny’s pupil Friedrich Puchta, see Wieacker, History of Private Law, 316 –318.
154
Ibid., 292, 296, 298, 341, 363.
155
E. Örücü, ‘Unde Venit, Quo Tendit Comparative Law?’, in A. Harding and E. Örücü, eds., Comparative
Law in the 21st Century, London, 2002, 1, 3, 6–11.
156
Zimmermann, ‘Savigny’s Legacy’, 600– 602.
157
Nation-wide codification was eventually the outcome of the German historical school, against Savigny’s
intentions, see the overview of the present situation in R. Zimmermann, Roman Law, Contemporary Law,
European Law: the civilian tradition today, Oxford, 2001, 108.
that the major civil codes were not simply enacted in order to codify national laws,158
one can indeed argue, with Savigny, that a historical legal science needs to be estab-
lished that would prepare a European legal integration founded on an already existing
Romanist ius commune across Europe, which historically aware legal research would
unearth.159
Zimmermann’s view summarises well a current movement which critics have
called ‘neo-pandectism’.160 It assumes the existence of a Europe-wide ius
commune (in the sense of a law common to Europe as a whole), generally based
on Roman law (or Roman – Canon law) and its later legal developments (especially
the usus modernus),161 and fostered and developed further by a European legal
science. A new European legal science, it is said, will continue where the old one
left off with the advent of the first natural law codifications at the end of the eighteenth
century. However, neither of these postulated elements is correct in this degree of
generality. In a similar fashion to Savigny’s historical school, the research of the
ius commune movement assumes a partly ahistorical interpretation of Roman law
and instrumentalises it for modern legal doctrines. This is the result of a claimed
increased awareness of the common historical roots and evolution of private law insti-
tutions as a result of historical research,162 but with a partly speculative angle. Con-
trary to apologetic views that also squeeze English law and legal scholarship into a
European Romanist tradition (because England forms – unquestionably – a part of
European culture),163 English law is not based on Roman law, and that by itself
does not constitute a loss of quality. Even if some English legal writers (such as
Bracton,164 and Blackstone165) were influenced by Roman law, learned legal
writers generally – and through them, Roman law – had very little substantial
impact on the development of the common law. The idea of tying English common
law to the trellis of Roman law is artificial.166 It would also mean that common
law countries such as Australia, Canada and the United States would become part
of a European legal tradition (in this particular interpretation), but, in reality, these
countries, together with England and Ireland, form a far less fragmented ‘ius
commune’ among themselves than continental ‘Roman’ or Civilian Europe.167
158
For the more prevalent view see e.g. Wieacker, History of Private Law, 371; Zweigert and Kötz,
Introduction to Comparative Law, 86, 141, 144.
159
See recently a good complete overview of this theory by R. Zimmermann, ‘Ius Commune and the Prin-
ciples of European Contract Law: Contemporary Renewal of an Old Idea’, in H. MacQueen and
R. Zimmermann, eds., European Contract Law: Scots and South African perspectives, Edinburgh, 2006,
1, 8 –12, 18, 25, 33–42 passim.
160
P. Caroni, ‘Der Schiffbruch der Geschichtlichkeit. Anmerkungen zum Neo-Pandektismus’, 16 Zeitschrift
für Neuere Rechtsgeschichte (1994), 85–100.
161
See e.g. H. Coing, ‘Roman Law as Ius Commune on the Continent’, 89 Law Quarterly Review (1973),
505, at 515; H. Coing, Europäisches Privatrecht, vol.1, Munich, 1985, 7; Zimmermann, Roman Law, 107.
162
Compare Savigny, Beruf, 116.
163
Zimmermann, ‘Savigny’s Legacy’, 587– 588, 601.
164
For example in relation to the Lex Aquilia, see N. Jansen, ‘Duties and Rights in Negligence: a Compara-
tive and Historical Perspective on the European law of Extracontractual Liability’, 24 Oxford Journal of
Legal Studies (2004), 443 –469, at 450.
165
Simmonds, ‘Reason, History and Privilege’, 206.
166
On the limited influence of Roman law on English law see Stein, ‘Continental Influences’, 209.
167
Zweigert and Kötz, Introduction to Comparative Law, 239.
20 LE GAL HIS TORY
For within the Romanist tradition in Europe the situation is a patchwork. To take
the already discussed civilian systems of transfer of ownership as an example, French
law has a consensual system of transfer,168 Austrian law has a causal system,169 as
does Switzerland, but with certain limitations,170 while German law has an abstract
system,171 and all are rooted in Roman law to a greater or lesser extent.172 The
idea that the natural law codifications have nationalised and broken up the ius
commune and legal science is a familiar overstatement already made by
Savigny,173 while, in fact, the opinion of eighteenth-century jurists was rather that
natural law provided rules of general and universal, not national, application.174
The codes emerged from the ius commune in their respective geographical areas at
the time, and that was not at all uniform. Furthermore, it is a Savignyian idea, but
untrue, that virtually only Roman law (in the form of the usus modernus) applied
to everyone in Europe before the codifications around 1800: the law applicable to a
person (e.g. customary law) depended on his/her origin and status, the region
(city) in question, the type of contract concluded (marriage, purchase of land) etc.175
As to the existence of a European legal science in a Savignyian spirit,176 one
should not neglect the importance of the dissimilar epistemological frameworks of
different cultures in Europe, such as France or Germany, and England,177 which
affect law-making and legal interpretation, both in respect of statutory law178 and
case law, and their scholarly discussion. It is commendable to ‘devise a set of sys-
tematic, conceptual and doctrinal tools of rules and principles facilitating inter-
national communication’179 between legal scholars, but this should not become the
groundwork of a Europe-wide codification grinding down the fruitful differences.
168
Art.1138 Code Civil.
169
§§380, 425 ABGB.
170
§§974– 975 ZGB (regarding land), and BGE 55 II 306 (regarding moveable property). However, unlike
in Austria, the transfer of choses in action, i.e. the assignment, is abstract, see Koller, in Guhl, Das schwei-
zerische Obligationenrecht, 265, 266. On that issue see also A. Rahmatian, Der Bereicherungsausgleich in
Zessionslagen, Frankfurt/Main, 1996, 51.
171
§§929, 873 BGB. See also above under section III.2.
172
See in this respect, Zweigert and Kötz, Introduction to Comparative Law, 88 (Code Civil), 160, 163
(ABGB), 168 (ZGB).
173
Savigny, Beruf, 45ff. See now e.g. Coing, Europäisches Privatrecht, 79 –80; Zimmermann, ‘Savigny’s
Legacy’, 596.
174
This ‘historic approach detached from the realities of a given people’ is what Savigny attacks, see
Savigny, Beruf, 17–18, 45.
175
See e.g. H. Mitteis and H. Lieberich, Deutsche Rechtsgeschichte, 15th ed., Munich, 1978, 232ff, 256ff;
O.F. Robinson et al., European Legal History, 3rd ed., London, 2000, 188, 192; Stein, Roman Law, 90.
Savigny, Beruf, 37– 39, and with him the Romanists play down the role of German(ic) customary laws
in favour of Roman law.
176
Savigny himself had rather strong misgivings in relation to foreign jurists, especially the French legal
science of his day, see Savigny, Beruf, 60–65.
177
P. Legrand, ‘Against a European Civil Code’, 60 Modern Law Review (1997), 44, 47, contains, to my
knowledge, the best concise discussion of this problem. On English common law, see also W.T.
Murphy, ‘The Oldest Social Science? The Epistemic Properties of the Common Law Tradition’, 54
Modern Law Review (1991), 182, 192, 198.
178
See e.g. the difference of statutory drafting and interpretation between common law and civil law
systems demonstrated by the example of the law of mistake/error in Rahmatian, ‘Codification’, 31, 47, 52.
179
Zimmermann, ‘Savigny’s Legacy’, 596.
In addition, there may be good reasons why British or French academics, for
example, may prefer not to get trapped in the often impenetrable and thorny ramifica-
tions which German legal scholarship is capable of producing,180 and may wish to look
to the often more pragmatic approaches in Austria, and especially Switzerland, for
inspiration. But these two jurisdictions are tellingly often missing in more detailed
treatises on ‘European’ private law (perhaps more appropriately: ‘private laws in
Europe’ or even ‘in the European Union’), as well as the whole of Scandinavia and
Eastern Europe. This reveals another aspect of the ‘European’ idea in this context:
what is termed ‘European’ and evokes internationalist connotations, is the concept of
a uniform and synchronised, thus more easily administrable and governable, legal
Europe, especially at the expense of the smaller or commercially less relevant jurisdic-
tions. Savigny makes a good point in the Beruf when he warns of the perilous effects of
the forceful unification of the different German state laws by a nation-wide civil
code.181 Although Savigny’s pluralist view probably emanated from the conservatism
of the Prussian landed classes against the emerging national-liberal bourgeoisie,182 and
had therefore a remarkably less progressive (or even proto-postmodernist) pedigree
than one may think today, that alone should not be a reason to dismiss his nonetheless
internationalist perspective183 in opposition to the dangers of nationalism.
Today, the movement of Europe-wide legal unification, especially its German
version, shows certain historical parallels to the unification of Germany under
Bismarck in the nineteenth century. The forceful unification of the North German
states under Prussian hegemony and of the South German states through treaties
with Prussia after 1866 led to the German empire in 1871.184 The German empire
obtained legislative competence for the whole of private law in 1873,185 and this
provided the basis for a highly nationalistically charged legal unification process,
of which the BGB in 1896 was the most important outcome.186 But the BGB is a con-
servative code; it reflects the spirit and the social fabric of nineteenth-century
Germany and represents a point d’arriveé rather than a point de départ.187 The
BGB aimed at a scholarly, technically perfect codification of the law for the
national-liberal grande bourgeoisie which had little interest in a code responding to
the social and economic challenges of the time. Due to the historical school and
Pandectism, of which the BGB is a product, it became also more Roman than the
German ius commune was then.188
180
On this point, see the instructive controversy between Kötz and Canaris in Canaris, ‘Theorienrezeption
und Theorienstruktur’, in Leser and Isomura, eds., Wege zum Japanischen Recht, 59, 78.
181
Savigny, Beruf, 41, and above under section II.3.
182
R.M. Berdahl, ‘The Stände and the Origins of Conservativism in Prussia’, 6 Eighteenth-Century Studies
(1973), 298, 312–313.
183
Wieacker, ‘Savigny’, 36.
184
Th. Schieder, Vom Deutschen Bund zum Deutschen Reich (Gebhardt, Handbuch der deutschen
Geschichte 15), Munich, 1975, 176, 180, 206–209.
185
186
Zimmermann, Roman Law, 53.
187
P. Legrand, ‘Civil Codification in Quebec: a Case of Decivilianization’, Zeitschrift für Europäisches Pri-
vatrecht (1993), 574–591, at 589.
188
Wieacker, History of Private Law, 372, 380– 382; Zweigert and Kötz, Introduction to Comparative Law,
88, 142 –144, 148.
22 LE GAL HIS TORY
Given the scholarly fairly close starting point of a European codification project,
as it appears at present, a European civil code may also be similar: conservative,
scholarly-detached, backward-looking and consolidating the (perceived) European
Romanist ius commune (of which period: before 1800?), without a law-reforming
force and without much noticing the social and economic realities of the twenty-
first century, and being essentially a symbol of a modern form of nationalism.189
For the notion of ‘Europe’ used in the European codification (and even ius
commune) debate, with the legal imperialism it effectively entails, is in fact a nation-
alist concept in a version for the twenty-first century, and in its nature and spirit in many
ways comparable to the nationalistic movements of the nineteenth century in central

and eastern Europe (German nationalism, pan-Slavism), particularly if one gives
Savigny’s Volksgeist doctrine a ‘European’ interpretation as a Europe constituting a
common cultural concept which links certain peoples or cultures and laws together.190
If for the purpose of a European civil code a ‘common European cultural identity
and legal tradition’ is conjured up, exemplified by the ius commune founded on the
common legacy of Roman law (in relation to most European countries, notably not
England), then one should not ignore the fact that the creation of a European corporate
feeling is invariably designed to leave out major areas of civilisation, otherwise the
whole concept would be rather meaningless. On the basis of European general and
legal history it is not difficult to associate, in various degrees of looseness, the histori-
cal Christian Europe which received Roman law, initially through the clerics and
scholars of canon law,191 with modern concepts of a Europe united by a common
Christian (ius commune) legacy that is apparently still with us and shares similarities
with the old Holy Roman empire and its laws192 – in clear antithesis especially to the
Jewish and Islamic legal cultures. But if universal fundamental legal principles in
private law were extracted from Rabbinic law and the classical Islamic law, one
would find many similarities with Western (or at least Christian) legal principles,193
particularly in the obvious area of contract law, but also in tort and unjust enrich-
ment.194 Thus on the level of fundamental legal principles, the separation of legal
189
The fact that a number of German academics support the idea of a ‘European private law’ and perhaps its
codification (see also J. Blackie and N. Whitty, ‘Scots Law and the New Ius Commune’, in H.L. MacQueen,
ed., Scots Law into the 21st Century: essays in honour of W.A. Wilson, Edinburgh 1996, 65–81, at 71)
seems to complete the picture, but that is probably too simplistic a conclusion. The more convincing
reason seems to be that more German than, for example, British academics speak foreign languages and
show an interest in foreign laws.
190
See discussion in M. Gradziadei, ‘The Functionalist Heritage’, in P. Legrand and R. Munday, eds., Com-
parative Legal Studies: traditions and transitions, Cambridge, 2003, 100, 119.
191
Roman and canon law were in principle separate laws but started interpenetrating each other as from the
High Middle Ages, see e.g. Wieacker, History of Private Law, 53, 84.
192
On the reception of Roman private law, see Wieacker, History of Private Law, 100, and on the doctrinal
integration of Roman, German and canon law in the usus modernus, at 178. Imperial (public) law was
equated with Roman law as from about the fifteenth century, see ibid., 101, on the use of the ‘Lothar
legend’ to legitimise Roman law as imperial (public) law, at 107.
193
The relevant principles (leaving aside the problem of the definition of ‘principle’) would actually be
Christian legal principles (which is obviously not the same), for religious laws would be compared.
194
These are only a few examples without any claim to completeness, e.g. Judaism: L. Jacobs, The Tamudic
Argument, Cambridge, 1984, 144 (Heyzek she-eyno-nikar: indiscernible damage to property). The influence
of the Christian tradition and canon law is well known, see e.g. the prohibition of enrichment (Thomas
Europe from much of the rest of the world is unfounded, and the reason for such a
division is mainly a political195 rather than scientific one. The European ius
commune conception is political internationalism within the small ambit of Europe,
but nationalistic separatism within the greater ambit of the world, like the unification
of the German states into a German nation against France and Britain in the nineteenth
century. Despite his conservative-restorative outlook, Savigny was still a more con-
vincing internationalist than the representatives of the ius commune movement are
today.
While the European legal unification debate196 relies to a great extent on a roman-
tic and idealist image of a European ‘nation’ and identity,197 its universalistic appear-
ance seems to prevent lawyers in Europe from understanding its nationalist aspects.
IV. THE INFLUENCE OF SAVIGNY’S VOLKSGEISTLEHRE AND HISTORICAL

METHOD IN ENGLAND AND SCOTLAND
The misuse of Savigny’s Volksgeist doctrine in nineteenth-century German national-

ism and by the National Socialists in the twentieth century may have contributed to
the fairly poor opinion about Savigny in the common law world, where Savigny’s
eminent writings in doctrinal law and theory, which might have helped correct this
image, had little importance. This negative tendency can be traced back to
Kantorowicz198 and Friedmann,199 and certain misgivings can also be found in the
work of Stein200 and in Freeman’s edition of Lloyd’s Introduction to Jurispru-
dence.201 In England, this is of little relevance, as Savigny had almost no influence
there, but in Scotland certain parallels to a notion of the Volksgeist can be detected,
which interestingly prompts commentators to attentively accentuate the difference
between a good ‘spirit’ of Scots law and a bad Savignyian Volksgeist.
Aquinas), which had an Aristotelian root and was also echoed in Roman law (Ulpian D.12,7,1,3), see
N. Jansen, ‘Die Korrektur grundloser Vermögensverschiebungen?’, 120 SavignyZ (RA) (2003), 106 –
162, at 120 n.82, and 132. Islam: J. Schacht, An Introduction to Islamic Law, Oxford, 1964, 116, 144.
On the influence of Islamic law on the medieval European law merchant (which is frequently overlooked),
see briefly J. Schacht, ‘Law and the State. Islamic Religious Law’, in J. Schacht and C.E. Bosworth, eds.,
The Legacy of Islam, 2nd ed., Oxford, 1979, 401. See also generally J. Neusner and T. Sonn, Comparing
Religions through Law: Judaism and Islam, London, 1999, 103, 240.
195
That is probably one reason why the European Union supports the unification of private laws of its
member states (see resolutions of the European Parliament OJ 1989 C158/400, OJ 1994 C205/518, OJ
2000 C377/323, 326), an otherwise rather academic and scholarly project which would not normally be
interesting enough to gain the support from politicians.
196
In opposition to a European legal unification P. Legrand, ‘The Same and the Different’, in Legrand and
Munday, eds., Comparative Legal Studies, 240, 298, has rightly pointed out that prioritisation of difference
does not connote nationalism, racism, isolationism, or a ‘cultural fundamentalism’, but rather stresses com-
parison and relations.
197
See discussion in N. Jansen, ‘Europäisches Privatrecht und europäische Identität. Zwölf Thesen zur Ver-
einheitlichung des europäischen Privatrechts’, in A. Labisch, ed., Jahrbuch der Heinrich-Heine-Universität
Düsseldorf 2003, Düsseldorf, 2004, 417, 420, also available at <http://www.uni-duesseldorf.de/home/
Jahrbuch/2003/Jansen> (accessed 10 Sept. 2006).
198
Kantorowicz, ‘Savigny’, 326.
199
Friedmann, Legal Theory, 211 –213.
200
Stein, Legal Evolution, 63–65.
201
Freeman, Lloyd’s Introduction, 905–908.
24 LE GAL HIS TORY
1. England
In England, the German historical school influenced John Austin to some extent, but
Austin apparently did not realise the fundamental differences in the positions of
Thibaut and Savigny in the German codification debate.202 One would expect some
impact of Savigny’s Volksgeist theory on Sir Henry Maine’s Ancient Law, but his
few references to Savigny are only in passing to Savigny’s writings on possession
in Roman law.203 This also applies to Pollock and Maitland’s History of English
Law.204 Maitland praised Savigny elsewhere for having advanced the investigation
of ‘the growth of law and institutions with scientific accuracy and scientific
zeal’,205 and this static image of Savigny as the eminent legal historian of the past
still seems to be prevalent in England, at least at present.
2. Scotland
Herder’s idea of a permanently developing history and philosophy of a people and
culture according to a moral design demonstrably influenced Savigny,206 but the
idea of a cultural evolution and history with which the development of law is inter-
twined also echoes certain aspects of Rousseau’s,207 Montesquieu’s,208 and, with
regard to Scotland, Lord Kames’s theories.209 Savigny’s Volksgeist or ‘spirit of the
people’ somewhat resembles Montesquieu’s ‘spirit’ of a nation, but Montesquieu’s
‘spirit’ consists of physical and cultural components such as geographical location,
climate, religion, social customs etc.,210 unlike Savigny’s idealistic, and rather
elusive, concept.211 Lord Kames, who is of particular interest not only to Scotland,
but to the Anglo-Saxon world generally, especially because of his influence on the
202
M. Lobban, The Common Law and English Jurisprudence 1760– 1850, Oxford, 1991, 227, 229, 232.
203
H.S. Maine, Ancient Law, 1861, 10th ed., London, 1885, ch.8 (‘Early history of property’), 254, at 290–
291. In chapter 5, ‘Primitive society and ancient law’, at 113, he discusses Blackstone, Locke, Montesquieu,
Bentham and Austin, but not Savigny. See, however, discussions of parallels between Maine and Savigny
by P. Stein, ‘The Tasks of Historical Jurisprudence’, in N. MacCormick and P. Birks, eds., The Legal Mind:
essays for Tony Honoré, Oxford, 1986, 293–305, at 296. See recently on the indirect influence of Savigny
on Maine through Niebuhr, N. O’Brien, ‘“Something Older than Law Itself”: Sir Henry Maine, Niebuhr,
and “the Path not Chosen”’, 26 Journal of Legal History (2005), 229–251, at 238 –241.
204
Pollock and Maitland, vol.1, 42.
205
H.A.L. Fisher, ed., The Collected Papers of Frederic William Maitland, vol.3, Cambridge, 1911, 455.
206
Caroni, ‘Savigny und die Kodifikation’, 111, with further references. Rückert, Idealismus, 75, 201; see
also Stein, Legal Evolution, 58.
207
However, Rousseau would more properly be the negative image of an evolutionist cultural theory, see
e.g. his ‘Discourse on the Origin and the Foundations of Inequality among Men’ (1755), in J.-J. Rousseau,
The Discourses and Other Early Political Writings, ed. by V. Gourevitch, Cambridge, 1997. See also his
note (ix) and passim.
208
Compare Savigny’s reference to Montesquieu in the Beruf, 41.
209
For passages relevant to law see especially Kames, Sketches (especially on commerce, on property) (a
German translation by U.C. Klausing appeared in Leipzig 1774–84), Henry Home, Lord Kames, Essays
upon Several Subjects concerning British Antiquities, Edinburgh, 1747, 127 (origin of property), Kames,
Historical Law Tracts, preface, and ‘Tract III’ (‘Property’), 89. The emphasis on the origin of property
in the evolution of society and law is a more British characteristic, when compared to Savigny’s Beruf.
On Kames’s property theory, see A. Rahmatian, ‘The Property Theory of Lord Kames (Henry Home)’,
2,2 International Journal of Law in Context (2006), 177–205.
210
See especially, Ch. de Montesquieu, The Spirit of Laws, book 14ff. His ideas are not entirely new; they
can be traced back to Aristotle, Ibn Chaldun (al-Muqaddima) and Jean Bodin.
211
Stein, Legal Evolution, 64.
intellectual history of the United States in the late eighteenth century,212 shares
certain similarities with Savigny, as he emphasised strongly and repeatedly the
need for a historical and comparative element within legal research,213 and he is
also known for his thundering criticism of the unworldly and antiquarian academic
teaching of Roman law of his time.214 This is noteworthy, for Savigny sees legal
science in the historical school in clear opposition to the phenomenon of ‘natural
law’, the seemingly speculative and ahistorical rationalist treatment of law in the
Enlightenment215 – an age of which Lord Kames was a significant representative.
Perhaps Savigny would have omitted his mordant comment in the Beruf about the
‘entirely unenlightened drive for education’216 and the ‘enlightened’ ignorance of

the historical context and development, if he had known of Kames, which does not
seem to have been the case. A merely indirect link would be Herder, who was familiar
with Kames’s works, but mostly with his aesthetic and sociological, not legal, writ-
ings, and in relation to the former he was generally less than complimentary.217
However, Hugo, Savigny and the historical school had, in turn, some limited influ-
ence among Scottish legal academics in the 1820s,218 whose susceptibility to this
movement was probably prepared by Kames’s and Millar’s219 works.220 Indeed,
one of the important figures who promoted German scholarship in Scotland, the
Edinburgh University law professor John Reddie, who studied law in Göttingen,
saw himself as a follower of the historical school, especially of Gustav Hugo, and
was clearly influenced by Savigny when he said: ‘Universal uniformity of law [that
is, by way of codifying in one code the laws of England and Scotland] is a sad
mark of the slavery of mind . . . Long habitual customs, incorporated with the national
character, assert a stronger sway than even specious and plausible metaphysics’.221
Reddie also drew parallels with Lord Kames.222 There were similarities in the
212
See A. Hook, Scotland and America: a study of cultural relations, Glasgow, 1975, 19– 21, 35–36, 69.
213
See the prefaces of Kames’s Elucidations, and the Historical Law Tracts, passim.
214
Kames, Elucidations, viii –ix. (He expressly excepts John Millar from his criticism.)
215
Wieacker, ‘Savigny’, 29–30.
216
Savigny, Beruf, 4.
217
J.G. Herder, Sämtliche Werke (B. Suppan, ed.), 1878, repr. Hildesheim, 1967, vol.4 (from Kritische
Wälder. Oder Betrachtungen über die Wißenschaft und Kunst des Schönen, 1769. Viertes Wäldchen),
21, 150 –152. In volume 4, in something which could be described as a News Section in Aus den Königs-
bergschen Gelehrten und Politischen Zeitungen auf das Jahr 1767, he does mention Kames’s Principles of
Equity (which appeared in 1760) and the Historical Law Tracts. In volume 15, 182, in his Vorrede zu des
Lord Monboddo Werk von dem Ursprunge und Fortgange der Sprache, übersetzt von E. A. Schmid, 1784,
he comments on Kames’s writings on the development of man and society: ‘in some sections excellent, as a
whole however quite mediocre’.
218
Cairns, ‘Influence of the German Historical School’, 198.
219
Especially Kames, Sketches, and Historical Law Tracts (1792) (preface); J. Millar, ‘The Origin of the
Distinction of Ranks’, 3rd ed., 1779, reprinted in: W.C. Lehmann, John Millar of Glasgow 1735– 1801,
Cambridge, 1960, 167. See also A. Ferguson, An Essay on the History of Civil Society, 1767, ed. by
D. Forbes, Edinburgh, 1966, 122ff.
220
Cairns, ‘Influence of the German Historical School’, 194.
221
J. Reddie, A Letter to the Lord High Chancellor of Great Britain, on the Expediency of the Proposal to
Form a New Civil Code for England, London, 1828, 85.
222
J. Reddie, Historical Notes of the Roman Law, and of the Recent Progress of its Study, in Germany, Edin-
burgh, 1826, 3–4 (dedication to G. Hugo), 106 (n.8), 125 (n.32). In Reddie’s exposition of the development
of nations and their laws (at pp.7–8), the influence of Savigny’s Beruf (discussed briefly at pp.98–99) can
be assumed.
26 LE GAL HIS TORY
intellectual climates of Germany and Scotland at the time, shown by the influence of
the depiction of the stages of development of Roman law in chapter 44 of Edward
Gibbon’s Decline and Fall of the Roman Empire (also through Hugo’s translation
into German, together with his annotation),223 the romantic-historicist world of Sir
Walter Scott,224 and the like. The recognition of German Romanist legal scholarship
endured to some extent in Scotland,225 but it seems that the long-term effects on Scots
legal doctrine and practice were marginal.226
Nevertheless, prepared in some way by the Scottish Enlightenment, and perhaps
reinforced by the German historical school, Scotland has generally been inclined to
emphasise legal history and to regard Scots law as a significant force in the making
of a Scottish nation.227 Scots law (especially private law), with its individual histori-
cal and cultural roots, is perceived by some as seemingly reflecting a distinct Scottish
character or Volksgeist, and is therefore to be viewed much in contrast to English law,
a theme which has gained a remarkable importance within the increased prominence
of Scottish nationalism in the more recent past.228 A certain similarity between
Savigny’s Volksgeist doctrine and the notion of Scots law held by many Scottish
lawyers today has rightly been noticed,229 and important Scottish nationalistic
lawyers have emphasised that Scots law as ‘the spirit of a people’ must be preserved
if the Scots are to retain their consciousness as a people.230
223
E. Gibbon, Decline and Fall of the Roman Empire, vol.4, ch.44, London, 1910, 374–444 (orig. publ.
London, 1776–88). For instance the passage on the development of the law from symbolic acts to
higher abstractions of form with a more developed cultural stage (at p.387) was certainly influential on
Savigny, see Savigny, Beruf, 9–10. On Hugo’s Geschichte des Römischen Rechts, see Wieacker,
History of Private Law, 303 and n.7; Cairns, ‘Influence of the German Historical School’, 194, 197 (trans-
lation of Hugo’s notes into English). The influence of this text on Savigny’s thinking can be seen from his
reference in his Methodologie of 1809, Savigny, ‘Methodologie’, 151. Reference to Hugo’s translation also
in Reddie, Historical Notes, 88, 96.
224
Compare Savigny’s affinity to Sir Walter Scott’s novels, Wieacker, ‘Savigny’, 23 n.112. The influence of
Scottish eighteenth-century historical philosophy and literature on Scott should however not be ignored, see
e.g. D. Brown, Walter Scott and the Historical Imagination, London, 1979, 3, 195.
225
J.W. Cairns, ‘James Muirhead, Teacher, Scholar, Book-Collector’, in Commission belge de Bibliogra-
phie et de Bibliologie, The Muirhead Collection Catalogue, pt.1, Brussels, 1999, also available at
<http://iuscivile.com/materials/muirhead/index.html> (accessed 10 Sept. 2006).
226
J.W. Cairns, ‘Historical Introduction’, in Reid and Zimmermann, eds., History of Private Law in Scot-
land, vol.1, 14, 167; A. Rodger, ‘Scottish Advocates in the Nineteenth Century: the German Connection’,
110 Law Quarterly Review (1994), 563, 572, 578. The lack of influence is also highlighted by the fact that
D.M. Walker, A Legal History of Scotland, vol.6, The Nineteenth Century, Edinburgh, 2001, 55, discusses
under the heading ‘Historical Jurisprudence’, H.S. Maine, but not Savigny.
227
H. MacQueen, ‘Regiam Majestatem, Scots Law and National Identity’, 74 no.197, The Scottish Histori-
cal Review (1995), 1.
228
C. Kidd, Subverting Scotland’s Past, Cambridge, 1993, 144; Ch.T. Harvie, Scotland and Nationalism,
2nd ed., London, 1994, 139.
229
Watson, Legal Transplants, 21; H.L. MacQueen, ‘Two Toms and an Ideology for Scots Law: T.B. Smith
and Lord Cooper of Culross’, in E. Reid and D.L. Carey Miller, eds., A Mixed Legal System in Transition:
T.B. Smith and the progress of Scots Law, Edinburgh, 2005, 44, 63.
230
Lord Cooper of Culross (Thomas Mackay), ‘The Scottish Legal Tradition’, 1949, repr. in M.C. Meston
et al., The Scottish Legal Tradition, Edinburgh, 1991, 65, 88. Essentially the same thought with T.B. Smith,
A Short Commentary on the Law of Scotland, Edinburgh, 1962, vii (preface). A recent sympathetic account
of Lord Cooper by H.L. MacQueen, ‘Legal Nationalism: Lord Cooper, Legal History and Comparative
Law’, 9 Edinburgh Law Review (2005), 395– 406.
This attempt at the preservation of ‘Scots law’ against the ‘overpowering’ English
law was particularly the concern of the influential (English law-trained) Scottish legal
academic Thomas Broun Smith (1915 –88), one of the founders of Scottish legal
nationalism in the latter part of the twentieth century.231 He essentially maintained
that Scots law was originally civilian until the Union of 1707, after which English
common law increasingly influenced Scots law and turned it into a ‘mixed’ system,
whereby the ‘alien’ English impact was generally perilous. Scots law, which reflects
truly the spirit of the Scottish people, and is, whatever its origin, of superior quality,
could only be ‘saved’ by rediscovering its historical roots and old legal tradition and
by allying with other ‘mixed’ jurisdictions, such as South Africa and Louisiana.232
However, T.B. Smith tried to disassociate himself from the idea of a Volksgeist in
Savigny’s sense, probably because of its negative connotations, in that he stated that
he was suspicious of nationalistic theories, like Savigny’s, which treat a nation’s laws
as a mystical by-product of a national ethos, and that he was ‘sceptical of genetic jur-
isprudence’.233 Current followers of T.B. Smith refer to this passage for their argu-
ment that the ‘good’ spirit of Scots law, as T.B. Smith perceived it, contrasts
considerably with Savigny’s ‘bad’ Volksgeist notion, and also concur with Smith’s
claim that if there was a home of Savigny’s Volksgeist theory in Britain, then it
was England, about English law, not Scotland.234 This startling assertion235 keeps
the villain in the piece, but one should not overlook that Savigny in fact never had
a concept of a genetic Volksgeist or genetic jurisprudence. For Savigny the Volksgeist
was a cultural, intellectual and also literary tradition, idealistic and arguably unsatis-
factory, but not a biological phenomenon.236 The latter represented a crude and primi-
tive interpretation of the later nineteenth century, not only in Germany, but across the
European nations in the age of imperialism, and of the National Socialists. It is not
impossible to think that Savigny between the 1810s and 1840s was far more
removed from the notion of a genetic Volksgeist than T.B. Smith between the
1940s and the 1980s. In any event, the spirit of Savigny, even if only reduced to a
simplistic version of his Volksgeist doctrine and sometimes vilified as a wicked
spectre, is very much alive in the legal world of Scotland today.237
231
For a recent and comprehensive account by various authors see Reid and Carey Miller, eds., A Mixed
Legal System in Transition.
232
This is an oversimplified account, and partly the result of the interpretation of Smith’s writings by his
contemporaries (Ian Willock), which Smith tried to refute, but it does not seem to be too inaccurate if
one looks through T.B. Smith’s writings and the literature on T.B. Smith, even where it seeks to qualify
this account, see e.g. the contributions by various authors in Reid and Carey Miller, eds., A Mixed Legal
System in Transition, 11–13, 16–17 (K.G.C. Reid), 32–33 (G.L. Gretton), 62– 64 (H.L. MacQueen),
261 (V.V. Palmer).
233
T.B. Smith, ‘Scottish Nationalism, Law and Self-government’, in D.N. MacCormick, ed., The Scottish
Debate: essays on Scottish nationalism, London, 1970, 34, 35–36.
234
G.L. Gretton, ‘The Rational and the National: Thomas Broun Smith’, in Reid and Carey Miller, eds., A
Mixed Legal System in Transition, 30, 35 (with quote from T.B. Smith) and n.19.
235
Given Savigny’s almost non-existent impact in England (see above under section IV.1), this view is
untenable already on that ground.
236
Wieacker, History of Private Law, 305–306.
237
In addition, Savigny’s systematic-doctrinal works play a certain role in Scots legal academic writing, see
above under section I for references.
28 LE GAL HIS TORY
V. CONCLUSION
From the perspective of a legal historian, it is without doubt that Savigny’s
Volksgeistlehre as an explanation of the evolution of law is untenable on the basis
of scientific evidence. The speculative and anti-rationalist Volksgeistlehre is the
product of German idealism and classicism of the early 1800s – probably less so
of German romanticism238 – and expresses a counter-movement to the rationalism
of the Enlightenment. It is idealistic and abstract, difficult to pinpoint, elusive, and
mystical at times, but one should not overstate that aspect compared with other
German thinkers. It presupposes an a priori image of history, rather than the idea
of findings based on empirical historical research, although the teachings of the his-
torical school would then prompt the latter. However, Savigny and his Volksgeistlehre
should not be held responsible for what he has not said. The ideas of Savigny as a
proponent of German (legal) nationalism, or as a prophet of European legal unifica-
tion after a proper legal science has done the necessary groundwork, are gross
misrepresentations.
Nevertheless, the somewhat mystical vagueness of the Volksgeist doctrine makes
it difficult to extract concrete solutions from it, but that seems to be its strength, rather
than its weakness, because it can therefore be invoked for different and even contra-
dictory political programmes. The claim of the Volksgeist doctrine that laws of differ-
ent peoples develop differently according to the peoples’ individual history and
national character, seems to have a strong emotional appeal, and certain parallel
phenomena to the Volksgeist can be noticed in other countries, for example in
Scotland. Thus the Volksgeist idea could serve, not as a scientific doctrine on the evol-
ution of law, but as a description of nationalistic phenomena and their influence on the
interpretation of the history and content of existing laws. If the Volksgeist is regarded
as the depiction, not the justification, of a political trend, then one cannot even say that
there can never be an indication of a Volksgeist in a certain law, because if a legal
community behaves according to the belief that there is a Volksgeist, then such a
notion will emerge. Obviously, the concrete appearance of this spirit may often
amount to insular segregationist provincialism, parochial mediocrity of legal art
and science, patronage and exclusion, all of which is not uncommon in legal commu-
nities of all countries. In the worst case, a mysterious notion of a Volksgeist can be
invoked to justify a biologically determined racism. Such effects are much in opposi-
tion to Savigny’s clear humanist intention, and he should not be accused of them ret-
rospectively, but the Volksgeist doctrine is too indefinable to be able to provide
reliable safeguards against such interpretations.
A by-product of the German historical school and also the Volksgeist doctrine is
the emphasis on a legal science which shall consist of a historical and a systematic
component and their combination in a precise scientific method. That is linked
with Savigny’s idealist view of Roman law as an organised and systematic legal
order of the highest quality, an ahistorical interpretation of Roman law, which actu-
ally conflicts with his Volksgeist doctrine. Nevertheless, Savigny’s concept of a legal
238
science, and especially the systematic-doctrinal aspect of it, is the strongest element
of Savigny’s legacy and should not be overlooked in view of the serious shortcomings
of the Volksgeist doctrine from which the concept of Rechtswissenschaft actually
originates in part. The promotion of research into legal history for the improvement
of legal doctrine is commendable, but today, as in the nineteenth century, there is
always the risk of using legal history to justify politically desired results, whether
that was during the nationalist German legal unification following Romanistic Pan-
dectism as it grew out of the historical school, or whether it is now in the project
of a European civil code based on a Romanist concept of a European ius
commune, which seems to be to some extent a revival of the historical school and Pan-
dectism. Without claiming an antagonism between legal history and present law, legal
history cannot provide compelling scientific reasons for or against an act de lege
ferenda. Any potentially nationalist instrumentalisation of Roman law and legal
history is perilous, and its dangers can be seen in the legal history of central
Europe in the later nineteenth and the twentieth centuries. Whether or not Savigny
has unintentionally assisted in bringing about such dangers, he certainly warned
against them.

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This article was downloaded by: [Queen Mary, University of London]

On: 06 October 2014, At: 00:19

The Journal of Legal History

Friedrich Carl von Savigny's

To link to this article: http://dx.doi.org/10.1080/01440360701237327

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In the Anglo-Saxon world the nineteenth-century German jurist Friedrich

indirectly – through the reception of nineteenth-century German Pandectist legal

Today, many of the thoughts expressed in Savigny’s Beruf are experiencing a

enduring impact in Scotland, though he seems to have very little relevance in

II. SAVIGNY’S VOM BERUF UNSERER ZEIT FÜR GESETZGEBUNG UND

are the products of a people’s cultural development.

2. The nature of Roman law

In Savigny’s opinion, legislation had little influence on the evolution of Roman

4. The tasks and purposes of a legal science

III. CRITIQUE OF SAVIGNY’S VOLKSGEIST DOCTRINE AND THE FURTHER

As a consequence of the Volksgeist doctrine in the Beruf, Savigny’s position is

2. Savigny’s understanding of Roman law and legal science (Rechtswissenschaft)

Switzerland,122 or The Netherlands.123 Section 929 BGB (Bürgerliches Gesetzbuch)

3. General reservations as to Savigny’s idea of legal history

otherwise effectively separate discipline, as an ornamental explanation. In this way

ways comparable to the nationalistic movements of the nineteenth century in central

IV. THE INFLUENCE OF SAVIGNY’S VOLKSGEISTLEHRE AND HISTORICAL

The misuse of Savigny’s Volksgeist doctrine in nineteenth-century German national-

‘entirely unenlightened drive for education’216 and the ‘enlightened’ ignorance of

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