241 law was acknowledged in the Swedish legal literature as well. For Nehrman, customary law could be followed only when it was not unreasonable, and according to Calonius it could be applied only in civil law.''^ None of these authors, however, spoke of a theory of legal sources expressis verbis. In the works of premodern scholars, the allusions to legal sources are sporadic, for premodern legal science did not consider questions of legal sources systematically. Therefore, excessively far-reaching conclusions ought to be avoided when reading the texts of Nehrman, Calonius and Rabenius. In spite of their seeming fidelity to positive law, Calonius, Rabenius or Nehrman cannot be labelled “positivists.” When they say that the sources of positive law include natural and positive law, one should not conclude e contrario that other sources were excluded, or that the scholars necessarily wanted to suppress the law-making activity of the judge. As Calonius’ own writings*^ show, his principal loyalty to the statutory law did not obstruct him from making reference to foreign law, customary law, legal practice, and (foreign) legal literature which could also run counter to the written statute. The development towards positivism is commonly associated with Savigny’s Historical School, for it was Savigny who first wanted to depict law as an autonomous system, and customary law and legal science as separate sources of law. For this purpose, a theory of legal sources was necessary.'^ Besides Savigny, the central figure in the Historical School to formulate its theory of legal sources was Georg Friedrich Puchta, who laid out the prevalent theory of the time, which was followed by judicial practice until Germany’s unification in the 1870s. In Puchta’s theory, law was derived from customary law (Gewohnheitsrecht) and is a product of VolksUberzeugung, interpreted and communicated by legal professionals. In a way, statutory lawwas placed hierarchically belowcustomary law, for written law could never contain all of the legal rules. Additionally, scientific law {Recht der Wissenschaft) was directly lawcreative. Thus, Puchta’s law is not etatist, but it exists before and above the state. In Germany, statutory positivismreplaced the Historical School’s theory of legal sources in the 1870s, after the unification of Germany and the installation of the Bismarck Reich. In the new prevailing theory, statutory, state-originated lawreplaced customary lawas the primary source of law. Instead of Gewohnheitsrecht, nowconceived of as only complementary to statutory law and dependent on a continuity in court practice, Richterrecht was now referred to. As all law was ultimately based on the state and the judicial activity of the state’s judges, scientific law nowlost its independent position in the theory of '•* Ibid. p. 29. Calonius 1829—1836. Nousiainen 1993 pp. 142, 182-187. '7 Landau 1992 pp. 71-72, 76, 78.
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