사비니(F. C. v. Savigny)와 역사법학

Abstract

Historical jurisprudence came to prominence during the German debate between Anton Friedrich Justus Thibaut and F. C. v. Savigny over the proposed codification of German law. It emphasized the historical limitations of the law seeking to improving legal life through innovation of Jurisprudence. It stood in opposition to an earlier movement called rational Natural Law codifying non-historical and abstract speculation, and everlasting legal principal. Friedrich Carl von Savigny addressed historical study in the science of law based on the belief that the law originates with society evolved in an organic manner over time without interference from the authorities. He argued that law should be discovered in the judicial and social life as traditions, customs, language, practices and beliefs of the people. Historical jurisprudence, however, provoked criticism that it considered the source of law as the professional duty of lawyers to base their academic work on law on ascertaining the will of the people in the development of a legal system. The German Historical School has had considerable influence on the academic study of law in Germany continuing development of so called Pandektenwissenshaft and Begriffsjurisprudenz (conceptual jurisprudence) by Georg Friedrich Puchta and Bernhard Windscheid, and leading to the enactment of German Civil Law(1900).