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Author=Yang DaixiongSource="Legal Methodology"
Translator's preface
Compared to other parts of legal theory, the history of legal methodology is not very old. This is because only after the law has the reflective consciousness and the ability to reflect will the legal methodology be produced, and the early law did not have such awareness and ability. The great philosopher Leibniz wrote in 1667 A New Method for the Study and Teaching of Law, but it was not published until almost a century later. This work can be regarded as a pioneer of legal methodology, and under its influence, in the late 18th century, some German jurists began to explore legal methods, but Friedrich Karl von Savigny was the first to systematically study it. From 1802 to 1842, Savigny taught more than 30 courses on legal methodology at the University of Marburg, Landshut and Berlin, attracting a large number of students with his clear, fluent, elegant and insightful lectures, many of whom later became famous jurists, such as Vindersha, Homerje, Bloomer and Bourshady. It can be said that Savigny's legal methodology has directly influenced more than one generation of jurists. Carl Larenz's "Methodology of Law" begins with a review of Savigny's legal methodology, which fully demonstrates Savigny's important position in the history of legal methodology.
The most systematic and complete of Savigny's course materials on legal methodology is Jacob Green's "Notes on Legal Methodology for 1802/1803" – which is also the main content of the book. Jacob Greene was born in 1785 and died in 1863, and his brother William Greene were collectively known as the "Brothers Greene". The Brothers Grimm are often known only for their literary and linguistic achievements, especially the well-known Grimm Fairy Tales (published 1812-1815). For more than 100 years, this collection of fairy tales has been a classic for every generation of children. In addition, the German Dictionary co-edited by the Brothers Grimm and the German Grammar written by Jacob Grimm also play an important role in the history of German Chinese linguistics.
In fact, the Brothers Grimm were also jurists, especially Jacob Green, who had a major influence in his time as author of On the Poetry of Law (1816), The German Legal Heritage (1828), Compendium of Jurisprudence (4 volumes, 1840-1863), and Lectures on the German Legal Heritage. With his outstanding research on the history of Germanic law, Jacob Grimm became one of the representatives of the Germanic branch of the historical school of jurisprudence, was appointed professor of law at the Berlin Academy of Sciences in 1840, and was president of the Germanic Jurists Congress in Frankfurt and Lübeck from 1846 to 1847.
Jacob Greene entered the University of Marburg in 1802 to study law, and William Green, a year his junior, studied there the following year, both under Savigny, who was sponsored by Savigny to study Roman law in Paris. Jacob Green, one of the participants in Savigny's 1802/1803 course on legal methodology, made a complete record of Savigny's lectures, which were taught from November 1802 to March 1803, with two hours per week.
As an important historical material, Green's notes have not attracted the attention of scholars for a long time. It wasn't until the 20s of the 20th century that people began to notice it. In 1926, Kontrović received information from the National Library of Prussia that it contained Jacob Green's notes and a copy of William Green. The following year, Fairgen Treig cites a number of unpublished notes on Savigny's curriculum, including Green's notes, to support his assertion: "Savigny's jurisprudential methodology had a more significant and far-reaching influence on the legal profession than the later Contemporary Roman Law System." After that, Kontrović convened a seminar in Kiel in 1932 and announced that his students would soon publish Savigny's lecture notes on legal methodology, but in the end they were not published. It was not until after the end of World War II that Weisenberg published the Green Notes in 1951. Later, the rest of the material was discovered, compiled and published by Aldo Mazzacane in 1993 on the basis of the original manuscript, and revised and republished in 2004. The book is based on Mazakacan's compilation, which includes Green's notes, Savigny's handwritten lectures, and Mazaka's annotations (information about the literature mentioned in the lecture notes).
Because it has not been published and has been buried in the vast collection of documents for a long time, Savigny's lectures on legal methodology have not been sufficiently studied and Chinese scholars are even less aware of them, compared with famous works such as The Contemporary Roman Law System, On Legislation and the Contemporary Mission of Jurisprudence, and On Possession. In fact, the scholarly value of Savigny's lectures on legal methodology is in no way inferior to that of his other works. In this lecture, the most striking are the three basic principles of legal methodology: First, law is a historical science; second, law is also a philosophical science; and third, law is the unity of historical science and philosophical science.
The first principle embodies Savigny's historicist view of law, which has two main implications:
First of all, the law is formed historically and objectively, and is not arbitrarily created by any individual based on his or her will. "The necessity of the existence of the state consists in placing something between individuals, so that the dominance of the will of individuals can limit each other...... The degree of restriction on the [free will] of a particular individual does not depend on the will of others, but on the determination of the extent of such restriction by a third person...... The best solution is that there is something completely objective, completely independent, that excludes any personal opinion, that is, the law. For its original purpose, the law should be completely objective, i.e., it should be so complete that the person applying the law does not need to do anything else. All knowledge about those things that objectively exist is collectively referred to as historical knowledge, and therefore the whole characteristic of the legislative science (jurisprudence) is historicity. Savigny's point is pertinent. Throughout the 18th century, German jurisprudence was under the rule of rational (natural) jurisprudence, and the Bavarian Civil Code of 1756 and the Prussian General Law of 1794 (ALR) were the products of rational (natural) jurisprudence. Until Savigny's youth, the clouds of rational (natural) jurisprudence were still uncleared, and many scholars in the German civil law community were still influenced by it, and Savigny's opponent Tyburg was one of them. The main approach to rational (natural) jurisprudence is to derive the entire system of legal rules from a few ethical-philosophical fundamental principles, many of which deviate from the traditional rules of Roman law. Savigny was extremely disgusted by this, believing that this method was completely arbitrary, arbitrary, and bound to lead to all kinds of fallacies, and he tried to replace the method of rational (natural) law with a historicist approach that pursued objectivity, absoluteness, and science.
Second, the law has a historical development and should be examined in a time series. "Our science is closely linked to the history of the country and the history of the nation. The [legal] system itself must be seen as something in the process of development. "Every piece of legislation is more or less the result of the history of previous legislation. Justinian had no intention of creating a codified law, but rather a mere compilation of the rich legal material that had existed, and the whole of history would be transformed into [new] law. Obviously, in Savigny's eyes, law itself is a historical phenomenon, belonging to the category of time.
The second principle embodies Savigny's systematic methodological orientation. In its early legal methodology, the meaning of "philosophical" and "systematic" was the same. "All systems have access to philosophy. The elaboration of a purely historical system will lead to a certain unity, a certain idea, and this unity and concept form the basis of systematic elaboration, which is philosophy. ”
The third principle describes the highest state of jurisprudence. Savigny argues that historical research should be combined with systematic research, and that "the integrity of jurisprudence is based on this combination."
The above three principles are the soul of Savigny's legal methodology and run through all parts of his methodology. Accordingly, he divided the first part, "The Absolute Research Principles of Law", into three chapters: the linguistic study (interpretation) of law, the historical study of law, and the systematic study of law. It is also emphasized that these three research methods cannot exist completely independently, and each method is only one element of a complete legal science as a whole. At the same time, in the second part, "Documentary Studies in Law" and the third part, "Academic Research Methods in Law", Savini often emphasizes the combination of history and system.
Not only that, but the above three principles have also become the basic guidelines for Savini's lifelong academic career, presupposing the basic direction of his academic development. Published in 1803, his famous work On Possession is a classic that perfectly combines the historical, philological and systematic methods, while the History of Roman Law in the Middle Ages focuses on historical research, while his late masterpiece The System of Contemporary Roman Law focuses on the systematic method, using both historical and philological methods.
One of the unique scholarly merits of the 1802/1803 Lecture Notes on Legal Methodology as Savigny's early work is that it can be compared with Savigny's mid-period works (e.g., On the Contemporary Mission of Legislation and Jurisprudence) and his later works (e.g., The Contemporary Roman Law System) to reveal how the legal thinking of "the greatest jurist raised in Europe" (MacDonnell's phrase) evolved and "genetically decoded".
As an early achievement of legal methodology, Savigny's legal methodology helps us to gain insight into the historical roots of legal methodology in Germany and even in continental Europe, and to grasp the basic context of its development and evolution. In fact, some fragments of Savigny's legal methodology can still be vaguely seen in contemporary legal methodology, for example, his emphasis on the organic integrity of law and the dynamic system and internal system theory in contemporary legal methodology also have certain similarities.
For us Chinese legal scholars, the main significance of Savigny's legal methodology is not that we can learn some practical and specific methods from it, but that we can gain insight into how the "brain" of a nation's jurisprudence develops, learn how to deal with the relationship between change and tradition, rationality and history, local and foreign, politics and science, and comprehend what scholars should do in the growth period of a nation's jurisprudence, how to "produce" the production method of law, and how to make law embark on the road of "science".
Yang Daixiong
Mid-summer 2023
Located in the Suzhou Creek Building
The article represents the author's personal views and positions only
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