Thibaut and Savigny - this line up has been adopted in the historical books as one oft he most re- marquable and pathbreaking academical disputes in the history of Germany’s jurisprudence. These two highly respected and famous jurists fought about the necessity of a general civil law for the German Empire. Thibaut published his ideas on this matter of dispute in his pamphlet „On the necessity of a General Civil Law in Germany“ in 1814 on which Savigny responded in the very same year putting his outstanding argumentation against the need of a general civil law in his pamphlet „On the Vocation of our Age for Legislation and Jurisprudence". Such being the case will make it also necessary to review the proceedings in the deepness of the 19th century to be aware of the importance of the controversy for the legal development in Germany. Regarding the fact that a general civil code in Germany wasn’t published until 1900 Savigny might be seen as the winner of the dispute since he achieved to delay the unification for more than 80 years alt- hough the number of supporters on Thibaut’s opinion was noticeably larger. A more particular investigation on this shall follow later.
The controversy was also the initial point for theories and doctrines that manifestly influenced the jurisprudence in the 19th century and in this way also the legislation of the private law codificati- on in Germany. On this occasion the following term paper will also enlighten the complex ideas of both sides under consideration of the relevant indicents in jurisprudence, history and the political situation of Germany in the 19th century. The author will then give a comprehensive overview
of the progresses in the subsequent time of the controversy and resume the given information in a
final judgement on the final realization of the German Civil Code.
Table of Contents
I. Introduction
II. An historical overview on law, jurisdiction and jurisprudence in „Germany“ in the 19th century
- The historical situation and the fragmentation of law
III. The Thibaut-Savigny Controversy, 1814
1. The disputing parties
a) Anthon Justus Friedrich Thibaut
b) Friedrich Carl von Savigny
2. The different approaches on the controversy
a) „On the necessity of a General Civil Law in Germany“
- Thibaut’s demand
b) „On the Vocation of our Age for Legislation and Jurisprudence"
- Savignys scathing criticism
c) Savigny and the historical school of law
3. Critics on Savigny’s historical school of law
4. The practical and economic need for general civil law code
IV. „Das Bürgerliche Gesetzbuch“ - the final realization of the legal unification
1. Savigny’s pandectistic and its influence in the subsequent time
2. The first draft and the first commission
3. The work of the second commission
4. The third draft and the proclamation
V. The essence of the „BGB“ and a brief judgement
Research Objectives and Themes
This work examines the historical development of legal unification in Germany during the 19th century, focusing specifically on the intellectual conflict between Thibaut and Savigny and its eventual impact on the codification of the German Civil Code (BGB).
- The socio-political context of the early 19th-century German legal landscape.
- The core arguments of the Thibaut-Savigny controversy regarding the necessity of a general civil code.
- The influence of the "Historical School of Law" on legal methodology.
- The procedural stages and commission work leading to the final realization of the BGB.
- Critical perspectives on the final codification and its long-term significance.
Excerpt from the Book
b) „On the Vocation of our Age for Legislation and Jurisprudence" - Savignys scathing criticism
The one who has been brave enough to oppose thibaut's arguments was Savigny. He knew that there was a huge group of followers on Thibaut's thesis but nevertheless he took the risk of being misunderstood and heavily criticized in his " On the Vocation of our Age for Legislation and Jurisprudence ". Savigny was rich and belonged to the aristocracy thus he was one of the privileged Thibaut warned about and who would lose the most of their wealth and richdom if the unification would have gone through. This is the first obvious reason that could explain Savignys movement. Though it might be a litte too brief to say we have the following constellation. There was burgeois Thibaut fighting the aristocrat Savigny. Whereas Thibaut fought for democracy with passionate young nationalism we have Savigny on the other side fighting for his aristocratic followers and the wellbeing of his passion: the jurisprudence. Some scholars even go so far and say that Savigny's vanity was his driving force in the controversy. In his view he was the leading figure in german jurisprudence and now there was Thibaut pushing forward to achieve the codification. If that had taken place Thibaut would always be the one who would be anticipated with when talking about the civil code. So probably it was just a genius’ selfish act who wanted to stop a colleague from getting more reputation than he could ever achieve ? But why else would Savigny be against a unified legislation in Germany ?
Accurately Savigny's pamphlet is way more than just the answer on Thibaut's interpretations. Though Savingy directly critizices Thibaut saying that two, three even four years like Thibaut expected would in no casse be enough to establish the codificitation. Whereas Thibaut demanded to take the recently published codes as a template Savigny uses them to show how defective a unified civil codifcation is and that it would always collapse. he mainly presents his own view and his solution on the issue. The draft of the pamphlet was finished way before Thibaut published his own book.
Summary of Chapters
I. Introduction: This chapter introduces the famous legal dispute between Thibaut and Savigny regarding the need for a unified civil code and outlines the paper's scope.
II. An historical overview on law, jurisdiction and jurisprudence in „Germany“ in the 19th century: Provides context on the fragmented state of German law in the early 19th century and the geopolitical situation following the Napoleonic era.
III. The Thibaut-Savigny Controversy, 1814: Detailed analysis of the opposing arguments between Thibaut and Savigny, focusing on the Historical School of Law and the practical versus theoretical debate.
IV. „Das Bürgerliche Gesetzbuch“ - the final realization of the legal unification: Traces the long legislative process from early commission work to the final proclamation of the BGB in 1896.
V. The essence of the „BGB“ and a brief judgement: Evaluates the finished BGB as a product of Savigny's pandectistic approach and analyzes its impact and criticisms.
Keywords
Thibaut, Savigny, BGB, German Civil Code, Legal Unification, Historical School of Law, Volksgeist, Pandectistic, 19th Century, Codification, Jurisprudence, Roman Law, Legislation, Private Autonomy, Otto von Gierke.
Frequently Asked Questions
What is the primary focus of this work?
The work focuses on the historical formation of legal unification in Germany during the 19th century, with a central emphasis on the famous intellectual confrontation between Thibaut and Savigny.
What are the main thematic fields?
Key fields include legal history, the development of legal methodology, the political fragmentation of 19th-century Germany, and the evolution of civil law codification.
What is the central research objective?
The objective is to analyze the necessity of a civil code for Germany and to trace how the debate between Thibaut and Savigny influenced the eventual realization of the BGB in 1900.
Which scientific method is applied?
The author uses a historical-analytical approach, reviewing academic literature, original pamphlets, and the legislative history of the BGB to evaluate the impact of the historical school of law.
What is covered in the main section?
The main section covers the "Thibaut-Savigny controversy," the development of the "Historical School of Law," and the step-by-step progress of the BGB commissions.
Which keywords best characterize the work?
The work is characterized by terms such as Legal Unification, Thibaut, Savigny, BGB, Historical School of Law, and Pandectistic.
How did Savigny's personal life influence his stance?
The author suggests that Savigny's tragic childhood experiences and his status within the aristocracy shaped his isolated worldview and his defense of traditional legal frameworks.
Why does the author consider the BGB a "paradox"?
It is viewed as a paradox because Savigny, who fought vehemently against the establishment of a code, became the intellectual forefather of the BGB through his students and the reliance on Roman Law terminology.
What was Gierke's primary criticism of the BGB?
Gierke argued that the code was too doctrinaire, favored professionals over the common folk, and lacked a genuine connection to German legal philosophy.
- Quote paper
- Gökhan Kosak (Author), 2013, The formation of legal unification in Germany in the 19th century, Munich, GRIN Verlag, https://www.grin.com/document/269990
