Savigny emphasised that family law in contrast to the law of obligations had “an ethical element” (Ge. ein sittliches Element). The object150 of the obligation was an isolated action, but the relationship of family concerned the person in total (die Person als ganzes) to that extent that it was a limb of the entire humanity’s organic context. On the one hand, the substance151 of the obligations was of an arbitrary152 and temporary153 nature, while an obligation could cover one action now, and another action later.The substance of the family relationship, on the other hand, was determined to a continuing existence by mankind’s organic nature, and thus bore the character of necessity in itself. Hence all individual family relationships developed into complex associations (Gesellschaften), which carried the general name of the families. In the family, the germ of the state was embodied, and the developed state had the families, not the individuals, as constituent parts.154 The family relationship was determined to be a complement to the deficient self, and family law was located close to the archetypal rights (Urrechten). Like them, the family had in every respect been excluded from the field of the positive law.155 It is worth accentuating the way that the historical school separated family law into a field within private law, which was independent from the law of obligations. Savigny expressed an aversion to the view, developed by different adherents of the rational natural law, that freedom of contract should be a central legal principle concerning marriage as well and thus facilitate divorce and the emancipation of women.Was his reason for a separation of family law of a political or of a legal character?156 c o n t i n u i t y a n d c o n t r ac t 77 150 Ge. Gegenstand. 151 Ge. “Stoff”. 152 Ge. “willkürlicher”. 153 Ge. s “vorübergehenden”. 154 Savigny SystemI, p. 343. 155 Savigny SystemI, pp. 346, 356. 156 Björne 1998, pp. 233, 252.
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