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THE OXFORD

INTERNATIONAL ENCYCLOPEDIA

OF

G HI STANLEY N. KATZ EDITOR IN CHIEF

VOLUME 5

Prussian Allgemeines Landrecht-Torture

OXFORD UNIVERSITY PRESS

2009

194 SALE: Sale of Land in Medieval and Post-Medieval Roman Law

even on closing the sale in court. In addition, the more modem jurists accorded greater effect to the local customs than to traditio; the buyer was not merely an owner to whom the property had been handed o ver. After the Prussian Allgemeines Landrecht abandoned the system of legal recording of transactions, a system of land registry was established in Germany and Austria in the nineteenth cen­tury, whereby property was transferred by agreement and by being recorded in the registry. In the German Bürgerliches Gesetzbuch §873, the process of recording is an indepen­dent legal transaction, one component of the transfer of property according to the principle o f separation.

[See also Notary and Property, subentry on Medieval and Post-Medieval Roman Law.]

BIBLIOGRAPHY

Besta, Enrico. Le obbligazioni nella storia deZ diritto Italiano. Padua, Italy: A. Milani, 1936.

Coing, Helmut. Europaisches Privatrecht. Vol. 1, Alteres gemeines Recht, 1500 bis 1800. Munich, Germany: Beck, 1985.

Coing, Helmut. Europaisches Privatrecht. Vol. 2, 19. Jahrhundert: Überblick über die Entwicklung des Privatrechts in den ehemals gemeinrechtlichen Liindem. Munich, Germany: Beck, 1989.

Gordon, William M. Studies in the Transfer of Property by Tradition. Aberdeen, Scotland: University of Aberdeen, 1970.

Jolowicz, H. F. Roman Foundations of Modem Law. Oxford, U.K.: Clarendon Press, 1957.

Levy, Emst. Westromisches Vulgarrecht: Das Obligationenrecht. Weimar, Germany: H. Bohlaus Nachfolger, 1956.

Ourliac, Paul, and J. de Malafosse. Histoire du droit privé. I, Les obliga­tions. 2d ed. Paris: Presses Universitaires de France, 1969.

Ourliac, Paul, and J. de Malafosse. Histoire du droit privé. II, Les biens. 2d ed. Paris: Presses Universitaires de France, 1971.

Scherner, Karl Otto. "Kauf." In Handworterbuch zur deutschen Rechtsgeschichte (HRG), edited by Adalbert Erler and Ekkehard Kaufmann, vol. 2, pp. 675-686. Berlin: E. Schmidt, 1978.

Wesenberg, Gerhard, and Gunter Wesener. Neuere deutsche Privatrechtsgeschichte im Rahmen der europaischen Rechts­entwicklung. 4th ed. Vienna: Bohlau, 1985.

Zimmermann, Reinhard. The Law of Obligations: Roman Foundations of the Civilian Tradition. Cape Town: Juta, 1990.

KARL Orro ScHERNER

Translated from the German by Johanna M. Baboukis

SARAKHSI, MUHAMMAD IBN AHMAD IBN ABI SAHL (d. A.H. 483/1090 c.E.). A preeminent Muslim jurist of the Hanafi school-one of the legal schools of orthodox Sunni Islam-and the author of authoritative legal works. He was educated in Bukhara under Muhammad ibn 'Abd al-'Aziz al-Halwa'i (d. 1056) and succeeded al-Halwa'i as leader of the local Hanafis, becoming a distinguished Transoxian Hanafi scholar. As a result of an infelicitous piece of advice that al-Sarakhsi gave to the ruler, he was imprisoned in Uzjand, north of the Syr Dar'ya in Central Asia. He is said to have compiled some o f his works while in prison by dictating them to his students from memory.

Al-Sarakhsi's major compilation is the Kitab al-mabsut (The Comprehensive Book)-thirty parts published in fifteen volumes in Cairo in 1906-1913-an enormous commentary on a tenth-century epitome of the rnain legal works attributed to Muhammad ibn al-Hasan al-Shaybani (d. 803 or 805), one of the Hanafi school's founding figures. Al-Sarakhsi dwells in the Kitab al-mabsut on the diverse opinions existing in the Hanafi school and in the other Muslim schools of law, and he presents in unprecedented detail the evidence supporting each opinion; he also exposes the legal principies underlying various rulings, considerably expanding these rulings by way of analogy. The impor­tance of the Kitab al-mabsut was not eclipsed by later Hanafi legal works.

Also important are al-Sarakhsi's compilation of legal theory, Usul al-Sarakhsi (Al-Sarakhsi's [Book of] Foundations [of Jurisprudence], published in two vol­umes in Cairo in 1953-1954), and his Sharh kitab al­siyar al-kabir (A Commentary of the Great Book [of Law of] Military Expeditions, published in three volumes in Cairo in 1957-1960)-a commentary of a limited extent on a work attributed to al-Shaybani, which is the basis of Muslim international law. The commentary com­prises al-Shaybani's original text-even if incomplete and not always distinguishable from the commentary­which is not otherwise extant. A number of al-Sarakhsi's works remain in manuscript, and others have not survived.

[See also Intemational Law, subentry Islamic Public Law; Islamic Schools of Sacred Law: Sunni Schools, sub­entry on The Hanafi School of Law; and Shaybani, Muhammad ibn al-Hasan.]

BIBLIOGRAPHY

Calder, N. "Sarakhsi, al-." The Encyclopaedia of Islam. 2d ed. Leiden, Netherlands: E. J. Brill, 1960-2004, Vol. 9, pp. 35-36. The most inclusive information on al-Sarakhsi in secondary literature, with bibliography.

Laknawi, Muhammad 'Abd al-Hayy, al-. Al-Fawa 'id al-bahiyya fi tara­jim al-Hanafiyya. Beirut: Sharikat Dar al-Arqam ibn Abi al-Arqam, 1998. See pages 261-262. A nineteenth-century biographical dic­tionary that brings together, under al-Sarakhsi's entry, information on him from earlier sources; references by the editor to these sources appear in a footnote.

NuRIT TsAFRIR

SAVIGNY, FRIEDRICH CARL VON (1779-1861). Professor of Roman Law, Prussian Councillor (1817-1848), Minister for Legal Reform (1842-1848).

In all three professions, Savigny was one of the most important figures of Western legal culture: as a professor of a major university subject, as the only academic mem­ber o f the highest political advisory organ of Prussia, and

as professor of law in the lawgiver's chair. He began his professorial career in Marburg (1800-1803/04), following bis studies there (1795-1799), then moved to Landshut (1808/09-1809/10) and then to Berlin (1810/11-1842). From 1804 to 1806, he undertook carefully planned trav­els throughout Europe in order to study the history of Roman law during the Middle Ages. Around 1800 it was unusual for an aristocrat by birth to choose a scientific career, rather than military or diplomatic service; simi­larly unconventional was his deliberate choice of law-a science and a learned but not a practical profession; the depth of his knowledge of philosophy and literature was also unusual. This was significant, for he lived during the European Achsenzeit (axial age), during the transition from the ancien régime to modern times and during the apogee of German culture. The editions ofthe Minnesiinger in Savigny's extensive library inspired the Grimm brothers' enthusiasm forthe Middle Ages which they la ter researched as leading linguists. From 1799, his friendship with the famous poet Clemens von Brentano and his dose poet

Achim von Arnim brought him into dose contact with Romanticism. In 1804, Savigny married Brentano's sister Kunigunda; Arnim also became his brother-in-law by marrying the famous Bettine von Brentano in 1811.

Savigny wrote three exemplary works: the dogmatic monograph Das Recht des Besitzes (The law of possession, 1803; 6th ed. 1837), the unsurpassed Geschichte des Romischen Rechts im Mittelalter (History of Roman law dming the Middle Ages; VI 1815-1831; 2d ed., VII 1834-1851) and the masterful System des Heutigen Romischen Rechts (System of modem Roman law, VIII 1840-1849) including the Obligationsrecht (Obligations in Roman law, II 1851-1853), essentially a general science of jurispru­dence, but focusing especially on civil law. Even more famous was his pamphlet Der Beruf Unserer Zeit für Gesetzgebung und Rechtswissenschaft (Of the vocation of our age for legislation and jurisprudence, 1814; 3d ed. 1840), whose many reprintings and translations testify to its success.

Many essential key concepts of legal terminology are associated with Savigny, especially "historical jurispru­dence" as the key to "inner necessity"; his departure from the law of reason; his "strictly scientific" attitude; and his criticism of codification and doctrine of the spirit of the people (Volksgeistlehre), national and gen­eral elements of law, hermeneutics and reconstruction of sense in laws, as well as criticism as formalistic and legal jargon. Savigny's following dogmatic principies deserve mention: legal institutes/legal relationship, sources of law, positive law as essentially autonomous popular law, law as the limit of the "safe free realm" of the individual, the state as the "corporeal form of the spiritual society of the people," the "idea of law" as the Primary purpose of the state, the dichotomy between

SAVIGNY, FRIEDRICH CARL VON 195

public law and civillaw, internationallaw as an "intel­lectual community," laws as the "organ of popular law," customary law as "natural law," scientific law rather than communis opinion (common opinion), subjective law as the rule of volition, legal capacity, capacity to act, legal facts, nominal value theory, "seat of the legal relationship" in international private law, real contract, principie of abstraction, conditions as a general princi­pie, and res judicata of decisions.

Calling on his exceptional historie knowledge and sys­tematic talent, Savigny's ability to reduce myriad details to a "principie," that is, general rules with strictly limited exceptions, continues to remain impressive. Moreover, he always established these basic concepts thoroughly sys­tematically, starting out from dichotomies. This system is neither deductive nor theoretical, but rather derived from positive law, of course from a permanent civillaw held to be nonpolitical by nature. This is a rich general jurispru­dence which reflected, for the first time, postfeudal, mod­em, and generally liberal conditions. Roman civillaw was necessarily its main constituent, as it had been widely adopted on the Continent. Savigny contributed decisively to its decline by examining its current validity in each case and often denying it.

His writings also deal with political matters, some of them directly (Vermischte Schriften) (Miscellaneous works, Vol. V). In principie, his considerations of positive civil law were liberal, less so in public law. He welcomed and pursued codification in penallaw (as minister). Savigny's position seems "reformed-conservative" (Epstein), not simply liberal or conservative, but he was strongly against revolution.

For many generations of jurists, Savigny was the most celebrated teacher. In order to claim his authority, there were continuous arguments about the correct interpreta­tion of his works. Did he follow Kant or not? Was he unphilosophical? Was he a romaniticist, a classicist, or a humanist? Or eclectic? Formalistic? Legalistic and posi­tivistic? Or, in truth, unhistoric? Reactionary or not? Debates continue about dogmatic positions such as the doctrine of error, representation, action for restitution, and so on. For more than twenty years, his voluminous scientific estate in Marburg has produced new sources and arguments, and the Savigny edition (see Rückert, Savignyana) and research continue to flourish. Much could and can be analyzed from a differentiated point of view. Savigny's philosophy and structure of basic con­cepts is especially subject to differing positions. On the one hand, there are convincing arguments that both follow the assumptions of post-Kantian and thus a gen­eral objective-idealistic metaphysics, as was shared by many, including Schelling and Hegel, after 1800. Sollen und Sein ("is and ought") should be considered as one from an ontological and epistomological point of view,

196 SAVIGNY, FRIEDRICH CARL VON

with many consequences for legal concepts and political theory. Other writers limited his philosophical interests to his early period up to 1803/04 or merely saw manifold interests without defini te commitment. Today, Savigny is rarely considered as "positivistic," "legalistic," and "unhis­torical." A better understanding of German idealism (see Henrich) and the multiple polemic interests after 1880, 1920, and 1933 will be required. In any event, many dogmatic and política! questions require more careful investigation.

[See also Codes and Codification, subentry on Medieval and Post-Medieval Roman Law: Private Law.]

BIBLIOGRAPHY

BIOGRAPHY

For want of an authoritative biography, but adequa te for data mining, see Adolf Stoll, Friedrich Karl v. Savigny, Ein Bild seines Lebens mit einer Sammlung seiner Briefe, 3 vols. (Berlin: C. Heymann, 1927-1939). Savigny's literary estate in Marburg is largely digitized and can be accessed at http://savigny.ub.uni-marburg.de/.

OTHER SOURCES

Akamatsu, Hidetake. "Einleitung." In Politik und neuere Legislationen: Materialien zum "Geist der Gesetzgebung," by Friedrich Carl von Sav­igny, edited by Hidetake Akamatsu and Joachim Rückert, pp. xvii-lxix. Frankfurt am Main, Germany: V. Klostermann, 2000.

Epstein, Klaus. The Genesis ofGerman Conservatism. Princeton, N.J.: Princeton University Press, 1966. Not directly on Savigny, but still essentia] for political categories.

Henrich, Dieter. Between Kant and Hegel: Lectures on German Jdealism. Edited by David S. Pacini. Cambridge, Mass.: Harvard University Press, 2003.

Jakobs, Horst Heinrich. "Der Ursprung der geschichtlichen Rechtswissenschaft in der Abwendung Savignys von der idealis­tischen Philosophie." Tijdschrift voar Rechtsgeschiedenis 57 (1989): 241-273.

Jouanjan, Olivier. Une histoire de la pensée juridique en Allemagne (1800-1918). Paris: Presses Universitaires de France, 2005. See part 1.

Mazzacane, Aldo. "Jurisprudenz ais Wissenschaft." In Vorlesungen über juristische Methodologie, 1802-1842 by Friedrich Carl von Savigny, edited by Aldo Mazzacane, pp. 1-56. 2d ed. Frankfurt am Main, Germany: V. Klostermann, 2004.

Norr, Dieter. "Savigny, v., Friedrich." In Neue deutsche Biographie, V oi. 22, pp. 470-473. Berlin: Duncker & Humblot, 2006. Contains many of the most recent supporting references.

Rückert, Joachim. Idealismus, Jurisprudenz und Politik bei Friedrich Carl von Savigny. Ebelsbach, Germany: R. Gremer, 1984. Very com­plete up to 1984, a]so for unpublished works.

Rückert, Joachim, ed. Savignyana: Texte und Studien. Frankfurt am Main, Germany: Klostermann, 1995-2000. Presently 8 vols.: including Pandekten, Methodologie, Preussisches Landrecht, Politik, and Gesetzgebung.

Rückert, Joachim. "The Unrecognized Legacy: Savigny's Influence on German Jurisprudence after 1900." American lournal of Compara­tive Law 37 (1989): 121-137.

Savigny, Friedrich Karl von. Pandekten: Obligationenrecht, allgemeiner Teil. Edited by Martin Avenarius. Frankfurt am Main, Germany: Klostermann, 2008.

J OACHIM RüCKERT

Translated from the German by Alexa Nieschlag

SCOTLAND. Until the late 1990s, the United Kingdom was a highly centralized state. It is therefore remarkable that in Great Britain, united since 1707, two quite separate legal systems, with separate laws, courts and legal professions, have survived. Such difference~ were not unusual in early modem states, and no doubt the period at which Scotland and England united and the nature of that union explains this fact. The result is that both England and Scotland have lengthy, continuous, and independent legal histories.

The Middle Ages. By European standards, Scotland was a precocious kingdom, which had largely assumed its present geographical shape, on the mainland, by 1100 c.E.

This was the achievement of the kings of Alba or Scotia, who had ruled over a kingdom that was based between the two great firths of Forth and Moray. By 1100, the Scottish dynasty had also achieved political dominance over Lothian-settled by Angles-down to the Tweed and over Strathclyde in the west. Further north and west, however, it took time to consolidate the kingdom, to gain sure pos­session of Ross and Caithness, Argyll and Galloway; the Westem and Northem Isles were acquired from Scandinavian rule in the mid-thirteenth and mid-fifteenth centuries, the latter originally as a pledge for the unpaid dowry of the Danish princess who married James III (r. 1460-1488) in 1469.

For administration, Alba was divided into a number of provinces, mostly under mormaers, with some directly under the king. Each was divided into thanages or shires managed by a thane or toiseach on behalf o f the lord of the province, be he mormaer or king. The structure of govem­ment in Strathclyde is obscure. Shires in Lothian, similar to those of Northumbria, were held by thanes in their own right; until the creation o f the earldom of Dunbar in the late eleventh century, there were no provinces after the manner of Alba, although some shires were grouped into larger units under officers sometimes described as "sheriffs."

This primarily Gaelic-speaking kingdom was to be transformed over the next two hundred years through the impact of three events: first, the Norman conquest of England in 1066; second, the great Gregorian reforms in the church and the development of canon law; and third, the revival and teaching of Roman law (ius civile, or civil law) in Bologna.

The creation of the medieval state and law. In 1072, Malcolm IH, King of Scots (r. 1058-1093), made some form of submission to William I (the Conqueror) of Eng­land at Abemethy. The nature of this submission is dis­puted, but the Norman kings tried to treat the kings of Scots as clients, with varying degrees of success. They also intermarried with the Scottish royal h ouse, which, through the marriage of Malcolm with Princess Margaret, carried the blood of the Saxon royal dynasty. Strife over the suc­cession to Malcolm in 1093 allowed William II (Rufus) of