From the profession of our time

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From the profession of our time for legislation and jurisprudence is a famous pamphlet by Friedrich Carl von Savignys from 1814 , in which he opposed Thibaut's work On the Necessity of a General Civil Law for Germany and thus against a quick codification of German private law . The controversy went down in legal history as the “codification dispute”.

Historical background

Both writings appeared in 1814 against the background of the legal uncertainty at the time after the end of the Holy Roman Empire and before the establishment of the German Confederation and the ruling small states . Thibaut wanted to promote German unity through a general German code of law and thus represented the democratic-liberal direction.

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Savigny countered Thibaut's demand and justified this with the fact that it was not the legislature's task to create justice; rather, the legislature thereby inhibits the further development of the law.

As a justification, Savigny represented a doctrine of folk spirit based on Herder . According to this, every people has always had its own right with its culture, just like its special language. This lives in the folk spirit and shows itself in the practiced customary law.

Every people is therefore subject to a three-stage process in its cultural development. At first, young peoples lived the customary law directly, without the need for legal processing. As culture rises, peoples in the middle phase experience a division of labor in the course of the increasing complexity of living conditions . The common law, which is still lived by the people, is now being technically and logically trained by lawyers. In doing so, these should only be based on historical legal sources and the existing folk spirit. In the third phase, with a declining culture, the equivalence of law existing in the folk spirit and legally created law is lost. The law of jurists becomes independent; the necessary knowledge of the sources and the techniques for studying them were lost.

Savigny placed the legislature and legal profession of his time in the third phase of cultural development. He denied them the ability, that is, the “profession” for “legislation and jurisprudence”. In order to create a uniform German code of law, a thorough study of the legal sources is necessary. These are customary law, the great codifications and especially the Roman legal culture. Only when the legal principles behind them have been found based on the individual legal norms can a German code of law be codified using them.

Savigny thus implicitly campaigned for the restoration of the status quo before the introduction of the Code Napoléon in Germany and rejects any legislation that argues natural law . Because the only source of law is ultimately the customary law that has always existed in norms and its fixings in law books. It is the task of the jurist, contrary to the natural law method, to expose the general principles of law based on the special legal principles. Natural law scholars and in part also the codifications rejected by Savigny, on the other hand, proceed from general principles given by nature or reason and derive corresponding special legal propositions from them.

Result

Savigny prevailed with the view represented in this publication. The historical law school was founded by his impulse . The result was the postponement of the creation of a general German code of law until the entry into force of the BGB on January 1, 1900, in which the Roman legal culture idealized by Savigny and the pundect science prevailing in 19th century German jurisprudence were reflected .

reception

"From the profession of our time" has become a common phrase that lawyers use for the titles of publications to point out legislative deficiencies or deficiencies, for example an article by Werner Flume in which he criticized the changes to the BGB by the Distance Selling Act ( in: ZIP 2000, p. 1427).

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literature

  • Christoph Mährlein: Volksgeist and Law. Hegel's philosophy of unity and its meaning in jurisprudence. Königshausen & Neumann, Würzburg 2000, ISBN 3-8260-1906-7 , chapter “Savigny and the Codification Debate”, pp. 116–129 ( preview ).
  • Claudia Schöler: German legal unity. Particular and national legislation (1780–1866) (= research on German legal history. Vol. 22). Böhlau, Köln / Weimar / Wien 2004, ISBN 3-412-12503-2 , Chapter 3: “The Codification Dispute (1813–1815)”, pp. 86–131, especially pp. 106–112 (with references to further literature on p 86, footnote 398 ).