Senado Federal

Secretaria de Gesto da Informao e Documentao

Coordenao de Biblioteca

Pesquisa realizada pela

Biblioteca do Senado Federal

Praa dos Trs Poderes | Senado Federal

Anexo II | Trreo | Biblioteca
CEP: 70165-900 | Braslia - DF | Brasil
Telefone: + 55 (61) 3303-1268 | (61) 3303-1267
E-mail: biblioteca@senado.gov.br

THE OXFORD
INTERNATIONAL ENCYCLOPEDIA
OF

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 over. 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 Brgerliches
Gesetzbuch 873, the process of recording is an independent legal transaction, one component of the transfer of
property according to the principle of 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:
berblick ber 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 priv. I, Les obligations. 2d ed. Paris: Presses Universitaires de France, 1969.
Ourliac, Paul, and J. de Malafosse. Histoire du droit priv. 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 (18171848), 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

SAVIGNY, FRIEDRICH CARL VON 195

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 rgime 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 later 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 18341851) 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 fr
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

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 Rckert,
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 poltica! 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 adequate for data mining,

see Adolf Stoll, Friedrich Karl v. Savigny, Ein Bild seines Lebens mit
einer Sammlung seiner Briefe, 3 vols. (Berlin: C. Heymann, 19271939). 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 Rckert, 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 pense juridique en Allemagne
(1800-1918). Paris: Presses Universitaires de France, 2005. See
part 1.
Mazzacane, Aldo. "Jurisprudenz ais Wissenschaft." In Vorlesungen
ber 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, Voi.
22, pp. 470-473. Berlin: Duncker & Humblot, 2006. Contains many
of the most recent supporting references.
Rckert, 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.
Rckert, Joachim, ed. Savignyana: Texte und Studien. Frankfurt am
Main, Germany: Klostermann, 1995-2000. Presently 8 vols.: including
Pandekten, Methodologie, Preussisches Landrecht, Politik, and
Gesetzgebung.
Rckert, 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

RCKERT

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