To Transcend Roman Law By Roman Law

Friedrich, Karl von Savigny, the founder of German historical school of law, iswell-known in our country for his view “law stems from national life” and fruitful researcheson Roman Law. Why did Savigny show special preference to the Roman Law which has noblood connection with the Germans while putting forward his view “law stems from nationallife”? The author believes that the reason goes to the neglect about Savigny’s other academictheories under his well-known view “law stems from national life” such as his methodologyof jurisprudence. Unlike his other masterpieces, Savigny’s handout on historical jurisprudencemethod is not published during his lifetime with its importance unfamiliar to people and it hasonly attracted people’s attention recently. The historical law method runs through Savigny’sentire academic theory, which plays the basic role in the theory of Savigny. It is just hisresearching methods that determine Savigny’s view “law stems from national life”. Therefore,study on Savigny’s historical jurisprudence method should be the first step to go into hishistorical law views. So the author takes the absolute research methods of jurisprudence as theobject to explore the depths of Savigny’s “spirit of law” and, along the path of his thinking,try to grasp the internal relationship between “law stems from national life” and the Romanlaw in an objective and tridimensional way.Apart from the introduction, this thesis is divided into five parts.Part One talks about the origin of the absolute research methods of jurisprudence. First isthe general introduction about the concept of the absolute research methods of law. Then adiscussion about the historical background, objective reasons and knowledge base of theabsolute research methods of law put forward by Savigny is given.Part Two is about the content of the absolute research methods of jurisprudence. Thispart does a systematic analysis and demonstration about the content of Savigny’s absoluteresearch methods of law and a more systematic discussion on “language research”,“historicalresearch” and “systematic research”. On such a basis, the author thinks that Savigny’sabsolute research methods of law contribute important values to the understanding of thenature of law and how the law possesses the essence of science.Part Three covers “Pandect Text”, the object of the absolute research methods ofjurisprudence.It mainly demonstrates why Savigny took “Pandect Text” as the object of the absolute research methods of jurisprudence. The reason is that “Pandect Text”, i.e.“theDigest”, with its own characteristics, became the historical choice for the successors ofGerman law. Especially in “the Digest”, Roman jurists’ performances on the use of law andinterpretation skills are favored by Savigny. The author thinks that it is because Savigny sawthe value of “the Digest” that he devoted himself to studying the Roman law with the aim toreconstitute the German legal science. Thus it can be seen that Savigny’s legal researchmethods made him know what is law.Part Four mainly tells the absolute research methods of jurisprudence, the textual methodof law and the collegiate method of law. The textual method of jurisprudence and thecollegiate method of law are the inseparable constituents of Savigny’s historical methods ofjurisprudence. They are mutually supportive and complementary. Therefore, in order to havea complete understanding about Savigny’s research methods of jurisprudence, the threeconstituents must be studied together so that the fundamental content and essence of thehistorical method of jurisprudence could be understood.Part Five includes the enlightenment of Savigny’s research methods of jurisprudence. Onthe basis of summarizing the absolute research methods of jurisprudence, this part bringsforward enlightenments this method has on the study of law in our country. The study of lawin China should search for the spirit from the traditional culture of our nationality, developwhat is useful or healthy and discard what is not, and make foreign things serve China toestablish the jurisprudence and the methodology of law which are consistent with our nationalcircumstances.