Die Geschichtlichkeit des Rechts und die „geschichtliche Rechtswissenschaft”︁

The historic dimension of right was never bigger than in the period of prescriptive right. But it has been doubted, that medieval German law was dominated by prescriptive right as classical scholars from J. Grimm to Fritz Kern had assumed. Nevertheless methodical anthropological reflexions seem to be sure that originally all right was prescriptive right. Its dominance does not exclude contracts, that means a cooperative kind of right, which must be considered original as a kind of ordered law, ordered by a paramount leader. The idea of right by custom everywhere presupposes the idea of a mythical or religious legislator, to whom the transmitted prescriptive right is ascribed. The dominance of prescriptive right with the early Germans has been proved by the absence of this idea before Christianization. The reception of Roman law by the medieval Germans was also promoted from Justinian as a “mythical” predecessor of the rulers of the Sacrum imperium Romanum . Like a Trojanic horse Roman law contained the rule “ lex posterior derogat legi priori” which makes an end to presriptive right. Under the rule of ordered law the quality of right separated from its validity; the idea of natural right was born. In the 19th century Savigny, the founder of the Historische Rechtsschule , founded all right on custom, but regarded the romanistic jurisprudence as prescriptive right. In his famous controversy with Thibaut he rejected the project of a codification (1814) and favoured the traditioned romanistic right. In reality his theory is less historic than dogmatic.