Formalism vs. Instrumentalism = Savigny vs. Jhering? at Law & Society Blog

Formalism vs. Instrumentalism = Savigny vs. Jhering?

Published by Manfred Gabriel July 5th, 2005 in Jurisprudence

In response to my thoughts on the historical context of Formalism and Instrumentalism, I received the following interesting question about Karl Friedrich von Savigny (1779 - 1861) and Rudolph von Jhering (1818 - 1892): Can Savigny be seen as a formalist and Jhering as an instrumentalist? Jhering’s famous work Der Zweck im Recht (1877 - 1883) appeared around the same time as Holmes’ Common Law (1888), and influenced Pound and Felix Cohen. (Remember the Heaven of Legal Concepts, that farce with which Cohen begins his article on Transcendental Nonsense? It’s taken from Jhering.)

When in the early 19th century a call went up for a German national code of law, Savigny responded that now was not the time for a national codification; he warned against the “infinite arrogance” of enlightenment codes that went against the grain of the customary and grown traditions of the law.

Savigny was a reactionary: He explicitly was not against legislation (or even new legal systems), but against a new social order. Germany in 1814 was emerging from the Napoleonic wars, as a result of the which things had been shaken up in Germany: Napoleon had created new combined kingdoms and coalitions, had divided some states and principalities, and had installed the Code Civil in several places in Germany. An enthusiasm for the new egalitarian ideas of the French Revolution and a desire for cultural (if not political) unity swept through Germany. Unlike France or England, Germany had seen an early weakening of the feudal crown and had splintered into many kingdoms, duchies, principalities, and city-states: a motley and disparate order that had existed basically unchanged since the end of the Thirty-Years War in 1648. Seeing the success of the Code Civil, Thibaut called for a German codification that would still the yearning for civil liberty and German cultural unity. By successfully forestalling such a movement for codification, Savigny played into the hands of the Restoration and preserved the pre-Napoleonic German legal order. You could call him the Metternich of the law. (The irony is that the French Code Civil by no means represented a radical break from the past, but codified the Germanic customary law of the North and the Roman traditions of the South of France.)

The interesting and puzzling thing is what Savigny suggested instead of codification: Although he called it “customary law” and the “grown legal traditions of the people,” he meant the Roman law. Roman law at the time was also known as the “common law” (Gemeines Recht) , because it was common to the 471 or so German states, and it was in effect only by default where there wasn’t particular (local) law on point. The reception of Roman law in Europe had started with the rise of the universities in the 12th century. In the two hundred years before Savigny, the Roman law had in fact developed to include indigenous and local laws and usages, as well as various medieval codifications and had evolved from detached and scholastic principles to the flexible and practical usus modernus, which preserved the spirit and form of the Roman law more than its substance. Savigny wasn’t interested. He restricted his historical inquiry to the ancient Roman law, preaching that to understand, one must go to the root (the codex iustinianus). In fact, Savigny’s book on the history of the Roman law stops before the 17th century and its religious wars. This makes clear that when Savigny refers to the customs and the grown traditions as the expression of the will of the people, he is not speaking of the people literally, he is referring to a cultural and idealized community. “Historical,” if you will, means conceptual for Savigny. There are two effects of this virtual conception of the people: an apology of the political restoration in Germany after 1815, and the creation of a positive science of law, an inquiry into the internal logic and elegance of Roman law (and in this endeavor Savigny is an early and marked follower of Immanuel Kant, alongside Gustav Hugo and Anselm von Feuerbach).

Positive science of the law is another word for formalism, and in this sense Savigny is a formalist: The law has internal rhyme and reason and is more than a haphazard collection of disparate royal commands. Savigny’s legacy in Germany was abstract legal thought, the distilling of principles from separate legal rules to build an interlocking system of legal concepts called Dogmatik and Begriffsjurisprudenz (conceptual jurisprudence). The result was not an increased sense for the historical (and social) contingency of law, but rather a rigor of detached concepts and a stifling taxonomy that soon became a caricature of itself.

And that is where Jhering comes in: Excelling in his youth the game of conceptual jurisprudence, he became disillusioned with it. First, Jhering began writing anonymous satire on post-Savigny conceptual jurisprudence (such as quoted by Felix Cohen), and then, in what must have seemed open rebellion, he published Der Zweck im Recht (which remained incomplete), arguing that law serves the purpose of protecting individuals and society, by minimizing social conflicts. Reading Jhering you cannot help feeling that he is having a harder time convincing himself than anyone else: no one ever really believed that law was completely logical, neutral, and detached (didn’t the Romans themselves at every turn ask cui bono?). And stating that law is instrumental doesn’t explain anything, either. Jhering’s influence therefore lasted only a few years in Germany before it was replaced by Philip Heck’s Interessenjurisprudenz, which posited every legal norm as the resolution of a specific social or economic conflict, and gave judges the mandate to look to the specific contemplated resolution of the conflict rather than the letter of the law (thereby explaining the task and power of judges).

In the US in the meantime, lawyers never went to the extreme lengths of 19th-century German law professors to distill logic, consistency, and conceptual purity from ancient Roman sources (the Germans did get the world’s greatest civil code, the B??rgerliche Gesetzbuch of 1896, out of it). Common law, after all, has always been practical and never very academic. Lochner-era formalism and “mechanical jurisprudence” is a far cry from conceptual jurisprudence, and while Jhering’s elegant prose resonated in the US, it meant something different here. Holmes, in The Path of the Law, had no problem presenting the Bad Man and stating (in the same breath, so to speak) that “[w]e have too little theory in the law rather than too much.”

The formalism/instrumentalism dichotomy as presented by Tamanaha therefore doesn’t quite fit the Savigny/Jhering dichotomy. In Germany, the view in the nineteenth century was at the same time more instrumental and less instrumental than in the U.S. On the one hand, the notion of legislation and codification, the purposeful and instrumental shaping of society by the law-giver, was more acceptable than it was in common-law countries (where Bentham’s call for codification remained marginal). On the other hand, law was regarded as having such strong internal, conceptual logic that jurisprudence imposed limits on what a law-giver could regulate. In this sense, Savigny objected to codification because he realized that law was instrumental (and he took sides in a political struggle), and Jhering was a formalist because his Kampf Ums Recht (1872) and Zweck im Recht are detached theoretical inquiries into the nature of law without apparent political agenda and without significant social effects.