132 



PHILOSOPHICAL THOUGHT. 



out. Accordingly, we find in all the different fields into 

 which the stimulating, and frequently destructive, waters 

 of criticism have flowed, a growing differentiation of 

 the historical and the philosophical points of view. In 

 theology, and what has more recently been called the 

 science of religion, we have the historical school and the 

 philosophical school. The first tries to find its sanction, 

 the justification of its doctrines, in their historical origins ; 

 the latter looks for their philosophical meaning and 

 value. In the study of law, termed in Germany juris- 

 prudence, we have early in the century the opposition 

 of the historical school founded by Savigny to the 

 older philosophical school represented by Thibaut. 1 



1 Nowhere has the critical spirit 

 in its quest for leading principles 

 of research or for the origin and 

 genesis of existing doctrines been 

 more evident in Germany than in 

 the older science of jurisprudence 

 and the more modern science of 

 sociology. To the latter, as a crea- 

 tion of European thought during 

 the nineteenth century, I shall have 

 special opportunity to refer in a 

 subsequent chapter ; the former 

 may be mentioned here as a strik- 

 ing example of the working of the 

 critical spirit, exhibiting an enor- 

 mous amount of learning little 

 known in this country, though not 

 wanting in dramatic incidents. 

 Among the latter I may mention a 

 controversy which began in the early 

 years, and reached something like 

 a conclusion at the end of the cen- 

 tury. The beginning is connected 

 with the celebrated names of 

 Thibaut (1772-1840) and Savigny 

 (1779-1861); the end with the 

 completion and introduction of 

 the German Civil Code (1888). 

 Thibaut belonged, as one of the 

 latest representatives, to the school 



of legal studies of which Samuel 

 PufFendorf, of European renown, is 

 considered the founder. It aimed 

 at establishing the so-called " Na- 

 turrecht " or Natural Law, " the 

 principles of which were taken to 

 be a measure for the value of the 

 existing Roman Law " (E. Eck, in 

 Lexis, loc. cit., p. 301). "When, 

 after the conclusion of the War 

 of Liberation and of the French 

 supremacy, a feeling of German 

 unity was kindled, many, and among 

 them not the least patriotic, saw 

 in the establishment of a German 

 national code of law a desirable 

 object, and one which was at the 

 time also attainable. This move- 

 ment found its most prominent 

 spokesman in the Heidelberg pro- 

 fessor of Roman Law, Thibaut, who 

 gave it emphatic and eloquent ex- 

 pression in his pamphlet on 'The 

 Necessity of a General Civil Code 

 for Germany ' (1814). He was op- 

 posed by no less an authority than 

 F. C. von Savigny, who in his 

 treatise 'On the Task of our Age 

 for Legislation and Jurisprudence ' 

 furnished the programme of the 



