The Methods Of Scientific Jurisprudence Of Savigny And The Development Of Early Modern German Legal Science

Many jurists believe that Savigny has revolutionized jurisprudence through historical and philosophical methods and pioneered modern legal science.This means that on the one hand,Savigny overturned the transcendental tradition of rational natural law and the purely practical skillfulness of jurisprudence through his methods,and made jurisprudence become independent positive and normative;on the other hand,Savigny profoundly influenced and created German legal science in the following 19 th and 20 th century.Savigny’s historical and philosophical methods do not refer to the methodology of jurisprudence in the sense of the application of contemporary law,but refer to the methods of scientific jurisprudence in the sense of ontology and epistemology.The theoretical backgrounds of his proposed methods include Kant’s legal philosophy’s critique of the rational natural law,the rise of historicism of jurisprudence,and "legal renewal",which was aimed at positivism and scientificalness of jurisprudence.On this basis,Savigny mainly merged the legal ideas of historicism and objective idealism,absorbed and developed the concept of scientificalness of jurisprudence in Kant’s legal philosophy,and thus proposed a combination of historical and philosophical(systematic)methods.Savigny’s historical method has double meanings.One is to explain and systematically study the material of legal history,and the other is to regard legal history as a history of legal ideas,and then discover a live legal institution.Historical methods have made it possible for the "intuition" of objective idealism as a way of understanding the law.The systematic method draws on the intuition formed by historical methods,connecting organic legal system and legal relations,and non-organic legal rules.In this way the organic dynamic legal system and the non-organic legal doctrine system are formed,and the two systems can be connected and transformed with each other through intuition and legal institutions.Through the unification of history and systematic methods,Savigny conceived an "organic legal doctrine" that combines formal logic and intuitive ways of understanding law,and formed an independent positive legal science with both normative and practical aspects.But on the one hand,the key deficiency of Savigny’s methods of scientific jurisprudence is that it fails to elaborate how to systematically and practically present the "intuition" as a way of understanding law based on "legal history" without formal logic.On the other hand,in the era when jurisprudence was just getting rid of purely practical skillfulness and transcendental dependence,Savigny’s ideas about legal science formed by the methods of Savigny was undoubtedly "unusuality" ahead of time.As a result,many criticisms and misunderstandings about Savigny have arisen,which can be summarized as anti-historicism and hidden natural law.Out of the priority of pursuit of the "dreams of legal axiom system" that has lasted for hundreds of years,the school of Pandect did not implement Savigny’s advanced ideas of legal science,but only developed his systematic method to the extreme,creating a radical system of formalistic legal doctrine.During this period there were method of Puchta’s "conceptual genealogy" and earlier Jhering’s method of "natural history".Thus,the formal systematic legal science replaced Savigny and dominated German legal science after the middle of 19 th century.At the same time,the school of germanistic law,which opposed the purely formal systematic method,continued to amplify the sociological factors of Savigny’s historical methods and advocated a direct connection between law and social reality,such as Beseler’s "law of national people".This method of understanding the law,which takes social reality as its direct consideration,replaced the intuition,and thus constituted the origin of the free law movement.In addition,under the influence of sociological positivism,Jhering explicitly replaced the formal logic with the measurement of social interests in the later period,forming the jurisprudence of purpose and opening the door to the free law movement in the early 20 th century.As a result,the idea of not formal-systematic legal science rose in the late 19 th century,which constantly impacted the independence and normativity of jurisprudence.Faced with the scientificalness of jurisprudence being gradually dissipated in the dispute over different methods,jurists since the 20 th century seem to have recognized Savigny’s prophetic vision,then adopt similar approaches and ideas,and thus try to regain his idea of legal science,such as Larenz’s jurisprudence of value,Heck’s jurisprudence of interest,and Luhmann’s theory of "autopoietic system".At present,the reference and enlightenment that Chinese legal studies may obtain from it is under the premise of adhering to the independence and normativity of jurisprudence,abandoning the dispute of paradigms and single perspective,and pursuing the legal science shaped by methods of Savigny.