Our contribution aims to recall the main principles of the legal art of interpretation set out by Friedrich Carl von Savigny (1779–1861), founder of the historical school of law, in his System of Modern Roman Law (1840), linking it to the rise of philology and hermeneutics in the early nineteenth century. Savigny defends an epistemological approach to interpretation through a theory of reconstruction that is necessary for any proper understanding of the law: even if interpretation remains an art, it is a method for reconstructing the thinking behind the law by resorting to grammatical, logical, historical and systematic elements, as well as certain auxiliary elements (e.g. ratio legis or merit of the result). At the same time, to avoid arbitrary judgement, he sets clear limits on legal interpretation by distinguishing between the reconstruction and the development of the law, i.e. pure legal interpretation on the one hand and the discovery and application of laws on the other.

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The Theory of Interpretation in the System of the modern Roman Law by Friedrich Carl von Savigny

  • Christian Berner

摘要

Our contribution aims to recall the main principles of the legal art of interpretation set out by Friedrich Carl von Savigny (1779–1861), founder of the historical school of law, in his System of Modern Roman Law (1840), linking it to the rise of philology and hermeneutics in the early nineteenth century. Savigny defends an epistemological approach to interpretation through a theory of reconstruction that is necessary for any proper understanding of the law: even if interpretation remains an art, it is a method for reconstructing the thinking behind the law by resorting to grammatical, logical, historical and systematic elements, as well as certain auxiliary elements (e.g. ratio legis or merit of the result). At the same time, to avoid arbitrary judgement, he sets clear limits on legal interpretation by distinguishing between the reconstruction and the development of the law, i.e. pure legal interpretation on the one hand and the discovery and application of laws on the other.