law overshadowed customary law.138 Savigny meant that a great national private law codification, like the FrenchCode Civil,would interfere with the organic and natural growth of law out of the national Volksgeist.Thus it must be postponed until trained jurists, as spokesmen and representatives of the people, had discovered and perfected the law residing in the collective mind.139 The relationship between natural law and positive law had been a tricky question for the European legal scholars of previous centuries.140 Savigny, himself, contemptuously rejected natural law as a legal source and asserted that a legal scholar must distinguish between politics and jurisprudence. Still, his conclusions concerning the relationship between master and servant, as well as between husband and wife, seem to have more than one point in common with the natural law and veiled legal policy which he alleged to have rejected. Some parts of positive law, Savigny argued, did not have the same value as others.These rules could be considered as temporary, positive, political or even “historical” (in a pejorative sense) and without inner value, while others were worth preserving because they represented the “natural”, genuine and necessary core of the law.141 (iii) From status to personal autonomy. According to the Roman law-influenced doctrine on status, which was predominant in European legal science until the beginning of the19th century, the legal position of every individual was dependent upon the corporation or group of persons to which he or she belonged.142The doctrine reflected the reality of a strictly differentiated society and did not even theoretically presuppose any equality among human beings. During the period 1820-40, German legal science p a r t 1 i i , c h a p t e r 3 74 138 Björne 1998, pp. 275-278. 139 Dawson 1968, p. 441. 140 Björne 1995, p 261. See also Part II on David Nehrman-Ehrenstråhle. 141 Sometimes he used “das innereWesen” and “der historishe Character” as opposites. Björne 1998, p. 233; Björne 1984, pp. 170-171 with reference to Savigny SystemII, p. 23; III, p. 90; IV, p. 18;V, p. 158;V, p. 249. 142 Kaser 1966, pp. 59-60, 67; Borkowski 1994, pp. 48, 86; Samuel 1994, pp. 172-175; Peterson, C, 1982, pp. 141-142.
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