萨维尼的历史法哲学及其法律关系本座说——对两者之间矛盾的反思

Savigny’s Historical Legal Philosophy and His Doctrine of Legal Relationship’s Seat——Reconsideration on Their Contradiction

萨维尼倡导法是民族精神的产物,各个民族都拥有自己特有的法律,并且主张用历史的方法研究民族的法律,追本溯源,寻求隐藏在法律制度和法律规则背后的原理原则。但是,萨维尼却致力研究古典罗马法,而且,在国际私法领域中,他又创造出一个富有普遍主义思想的法律关系本座说。表面看来,萨维尼是一个自相矛盾的法学家,因为法律关系本座说无法与他作为历史法学派代表人物的法学思想相统一。不过,这其实是对萨维尼法学思想的一种误解。

Savigny argues that law originates from the national spirit, each nation respectively owns its particular law, which is always somewhat different from that of others, and the law of a nation shall be studied with history method to trace back to the origination of the rules, and to discover the doctrines camouflaged in the legal systems and rules. Nevertheless, Savigny devoted himself to the classical Roman Law, and created the Doctrine of Legal Relationship’s Seat, which is deemed brimful of idea of multilateralism in the field of Private International Law. Seemly, Savigny is a jurist with contradictory ideas, because the Doctrine of Legal Relationship’s Seat is inconsistent with his historical legal philosophy, for which he is well known as a representative of the school of historical legal philosophy. However, it’s really a misunderstanding of his thought.