to exactly what mandate this positive character of law gave to the current political leadership. It could be taken to mean that law could simply be made up anew on the basis of scientific reason, much as Napoleon’s lawyers presumably had done. German law could thus be rethought and fashioned on the basis of modern science and rationality. One cannot help but think here of the position of some of the more radical religious reformers concerning the positive nature of Jewish law.
But there was a strong reaction against this, which brings me back to what has come to be called the historical school, the acknowledged intellectual light of which was Friederich Karl Savigny. In his 1814 pamphlet, penned in answer to Anton Thibaut , Vom Berufe unserer Zeit fiir Gesetzgebung und Rechtswissenschaft, von Savigny set forth the groundwork for a different view of law. Here he claimed that sudden and arbitrary legislative enactments by politically motivated legislative bodies could never produce true law for the people.” Rather, all authentic law had to conform with what he called the Volkseele(national soul), which is the source of inspiration of all national characteristics. In other words, law always in the end had to unfold along lines laid down and maintained by the inherent genius of the culture as it underwent historical development. Thus, while new German law could of course be posited willy-nilly, it would be authentic German law only if it grew out of a continuity with the historical law and traditions of the German people. What Savigny called for was a thorough examination of the legal heritage of Germany from Roman times forward as the intellectual basis for any future revision of basic German law. One cannot help but think here of Zacharias Frankel ’s call for historical positivism in Jewish law. In all events, Savigny went on to make his own contributions to this massive project, publishing studies of both medieval and present-day Roman law.* The historical study of the origin and development of folk law that he launched continued to occupy legal scholars in German universities for the greater part of the nineteenth century.