The Struggle for Law/Translator's Note
Translator’s Note
HE following extract is from the preface to the French translation of Dr. von Jhering’s essay. The author, in the course of his work, refutes the Savigny-Puchta theory of the origin of the law. To explain that theory more fully, he furnished the following to the French translator:
“Scarcely was Germany free from the wars of Napoleon I, than the desire to see the laws of the nation reduced to a code was manifested, and Thibaut, one of the most renowned legists of the period, publicly employed his eloquence to promote that end. There was nothing surprising in the fact that this wish did not find the least favor among the princes and governments of Germany. They were only too well aware of the necessity in which their interest placed them to preserve, as far as possible, the existing confusion, both political and judicial, of the country. What was most to be wondered at, was that German lawyers who, it seems, should have had only one opinion on this subject, protested against this attempt, through the agency of one of their most illustrious representatives, Savigny, who, in support of this protest, published under the title: ‘Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft,’ (Berlin: 1814; 3d edition, 1840), a work not, indeed, very voluminous, but one of the most important in the history of German jurisprudence. Savigny’s object was to represent as unreasonable the desire of reducing the laws to a code. Collections of that kind, Savigny said, were after all more of an evil than a good. They are not thought of in happy times, because they are not necessary. Rome is an example of this (as if the laws of the XII. Tables and the Praetorian Edicts never had existed), and in unhappy times (like those in which he lived), people possess neither the necessary political education nor the ability required for such an enterprise; and he endeavored to prove his assertion by isolated passages drawn from Prussian, Austrian and French legislation of that period.
“The irony of fate decreed that the coronation of his pupil and protector, William IV, should afford him the opportunity to exchange the professor’s chair for the chief position in the Department of Justice, especially created for him. Savigny, the theorizer and opponent of legislation, had the weakness to accept the post, and he found the means to demonstrate fully what he called: ‘the want of calling of our own time for legislation,’ when the regulations relating to letters of exchange, and the German commercial code which appeared almost in the same epoch, strikingly disproved his assertion.
“The theory which he advanced on this occasion on customary law and legislation was not entirely new, but it is Savigny’s merit to have presented it in its scientific light, and thus to have given it a claim to be called science. According to this theory, the earliest law has been, the world over, the law of custom. This law has neither been created nor sought for. It came into existence of itself, just as language came, and developed internally, in the convictions of the people, externally in the order of life. This law of custom is the natural form of all law, in the presence of which legislation is something artificial, mechanical, an encroachment into the order of nature. The legislator is, so to speak, to the law of custom what the physician is to nature. Nature should help itself; the physician should interfere as seldom as possible; for his very presence shows that the normal condition is disturbed and that disease exists.
“Thus Savigny entirely reverses the true relation established by the old teaching between legislation and the law of custom. With him, the law of custom comes first, and legislation afterwards. Why?—we ask in wonder. The author gives us no reason but his preconceived opinion, according to which such was the primitive condition of things. As the ancient institutions of the Romans could not be traced to legislative acts, Savigny concludes that they came into existence of themselves. Might we not with equal reason, maintain that the man who cannot tell who his great-grandparents were, had none? Here is the cause of this error. The memory of the origin of legal principles is lost in the course of centuries. That which, at first, it was necessary to go in search of, to obtain by struggling for, acquires by long use, a moral authority over minds, so great, and an external fixedness such, that it seems quite natural that it should have been always in force. Such is the mirage which deceived Savigny. His theory has no other basis, and it has been possible only because the earliest time does not tell us how the principles of law came into existence. If, as became the representative of the Historical School, Savigny had framed his theory of the relation of legislation to the law of custom in accordance with history which affords certain information on this question, he would have seen that the opinion then admitted, and to which he attached so little importance, was entirely true, that legislation is the normal source of law, and that the law of custom is simply a secondary and limited source of action. This opinion went too far only in the sense that it ascribed too much to the power of legislation. And, indeed, the omnipotence of the legislator was an article of the creed of the absolutism which governed in the seventeenth and eighteenth centuries. It was believed that all that was needed to change the very nature of things was a decree from high places, and jurisprudence itself shared this belief in the omnipotence of legislation. In this sense, Savigny’s opposition to the admitted doctrine was most legitimate and beneficent, but this was not sufficient warrant to ignore the possibility and efficiency of a codification, and that great man in combatting an exaggerated doctrine fell into another and contrary exaggeration.
“His theory was developed and presented in detail in a work written in 1828, by Puchta, one of his most illustrious partisans.”That what Dr. von Jhering says of the origin of the law in general is true of the origin of the common law will scarcely be questioned; and we may therefore venture to say that this little work is likely to prove as instructive to the common law lawyer as to the student of Roman law. The “practico-ethical” question which it discusses is one not of times or places. It is as urgent in America as in Austria, and especially deserving of attention in the United States at the present time.