By: Maria A. Chhabria, Director of Academic Programs,
International Judicial Academy
Friedrich Carl von Savigny was the most prominent jurist of the 19th century and is considered by many the father of modern jurisprudence. He was a
a member of the historical school of law, founded by Gustav Hugo, which
advocated that law is an historical process and the product of the customs and
traditions of a community, as opposed to a legal system imposed arbitrarily by
a given authority. Through his famous writings and teachings, Savigny
contributed to the consolidation of the historical school of law and redefined
relevant concepts of Roman law, developing new methodologies for the
interpretation and analysis of legal systems.
Savigny authored various treatises and pamphlets that were considered
important landmarks in the history of jurisprudence. In 1803, Savigny published
the treatise entitled Das Recht des Besitzes (the law of possession)
divided in six books in which he provided a detailed analysis of the right of
possession (ius possessionis) as a separate notion compared to the right
to possess (ius possidendi). In addition, he stressed the importance of
analyzing the right of possession in its historical context, considering that
the notion of right of possession was extended by canon law and German law to
include not only property but also personal status and obligations. According
to Professor Jhering “with the Recht des Besitzes the juridical method
of the Romans was regained, and modern jurisprudence born”. In 1814, Savigny
wrote his famous pamphlet Vom Berufunserer Zeit für Gesetzgebung und
Rechtswissenschaft
(On the Vocation of Our Age for Legislation and Jurisprudence) as a
critical response to the pamphlet by the famous Heilderberg jurist A.F.J.
Thibaut entitled On the Necessity of a General Code for Germany. In his
pamphlet, Savigny opposed the creation of a German code on the following
grounds: first, the judicial language was not adequately developed, due almost
exclusively to the lack of eminent jurists in Germany in the previous century;
second the codes in existence at that time − the Code Napoléon, the
Prussian Landrecht, and the Austrian Gesetzbuch − did not achieve a great
success. In addition, Savigny stressed the importance of considering the
history and evolution of German law before embarking in a codification, and
asserted that he was in favor of introducing new laws.