Thailand Law Journal 2012 Fall Issue 1 Volume 15

Savigny' s rejection of the proposal was founded upon his basic understanding that law should be understood as an aspect of social life, which integrates the complex and unique experiences of a particular nation. By saying this, Savigny countered not only the idea of codification but also the very basic assumption of the Natural law philosophy which assumes that law is universal in its character.⁸⁴ There was no such thing as "a self-contained phenomena of collected verbal formulae in some universal body of ideal or 'natural' propositions" of law as Thibaut believed.⁸⁵ Law should, as Savigny noted, grow 'organically' from its root of the "common consciousness of the people" (volkgeist) through a historical process and not through an instant act of legislation.⁸⁶ Savigny understood law as having an intimate and unseparated relationship with a particular life experience of people and because of that, the belief that a universal code could be determined was nonsense since law should reflect unique needs and characters of the people of each nation.⁸⁷ To summarize his theory, Konrad Zweigert and Hein Kotz describe Savigny as follow:

In contrast to the Enlightenment view that the legal order is a deliberately planned purposive creation of an official legislator guided by reason, Savigny and Historical School of Law saw law as a historically determined product of civilization, having its
roots deep in the spirit of the people and maturing there in long processes. Like language, poetry and religion, law is the product not of the formative reason of a particular legislator, but an organic growth, rather like a plant, of the "inner secret
power of the "spirit of people" working through history. For the adherents of the Historical School of Law all true law is customary law, developed, handed down and captured in usage and manners; the law-bearers are the people and, as the people's representative, the lawyers.⁸⁸

With particular regard to rejecting the proposal of codification, Savigny made two specific arguments.⁸⁹ First, during his contemporary time the "state of public mind" of Germany was not yet mature to step into the codification era. To move hasty into a codification stage without any maturity of political element would only lead to a chaotic situation within society. Savigny argued that the very fundamental function of the state is not to determine a universal formulation of law through a legislative act but rather to discover and enforce customary law.⁹⁰ This argument would be echoed around fifty years later by Van Vollenhoven in defending adat law. Second, while the first argument deals with the aspect of social and political ripeness, the second argument points out to the aspect of a juristic maturity. Savigny argued that the codification could not be achieved, even if the political culture is mature enough, unless the juristic maturity of 'technical element' is available to do the task.⁹¹

Codification acts reflect the condition of a highly developed study of law. By this developed and mature juristic culture, codified
laws would be an accurate reflection of the living laws that grow from the bottom of the spirit of the nation through gradual historical processes. This expertise, Savigny believed, was unavailable at his time.

Thus, from these two arguments we can see that Savigny actually did not reject completely the idea of codification; he only rejected any instant codifications that took place not in the right time and right place due to the lack of both the ripeness of political and juristic culture. For Savigny, codification was a part of a whole historical organic development of a nation that gradually grows from a simple rule of customary law to the more developed system. Codification was a reflection of living law that would grow as a historical consequence of a mature society. Probably due to his outstanding influence overcoming the Thibauf s proposal, Germany did not adopt a civil code until 1896 (came into force in January 1900).⁹²

Apparently, this historical precedent would be lingering on the bottom of the formulation of adat law theory. Peter Burn has noted this relation in his book, The Leiden Legacy. When Van Vollenhoven had to deal with the study of colonial law, he
realized that there were similarities and parallels between the matters in hand with the German legal history.⁹³

C. Dutch Academic Position on the Legal Unification

From the middle ages up to, at least, Savigny's era, Germany had no centralized, structured political and judicial organ. Following the decline of Hohenstaufens (the dynasty of German Kings) in 12th century, the central Germanic power was faded while, consequently, the provincial and local rulers were increasing. Since then, for centuries German did not have a tight centralized power which was important for judicial unification. This situation was in contrast to England and France in which in these two countries' centralized political empires were established. Both England and France had the Royal courts organized by solid lawyer organizations. In contrast, due to the lack of centralized political power, Germany had no German common private law or strong central courts endowed with royal authority.⁹⁴

Similar to the situation in Germany, for centuries, after the decline of relatively centralized power of Majapahit Empire in the fifteenth century, the NEI archipelago was ruled by separate independent sultanates and kingdoms.⁹⁵ Every kingdoms and
sultanates enforced their own local customary (adat) laws. When Dutchmen came at the first time to the archipelago in the fifteenth century they had to deal with these independent sultanates in relation to, for example, the security and trading
agreements.⁹⁶ In addition, Hugo Grotius, the greatest Dutch legal scholar, in his Mare Liberum stated that: "Java, Sumatra, the Moluccas have their own kings, public institutions, laws and rights and they have always had them."⁹⁷ Dutch occupation of the
archipelago a century afterward which had forced almost all sultanates and kingdoms to subjugate, to some extent, was similar to France, under Napoleon, occupation of Germany (and also Netherland) that compelled all the small states of Germany to form the Rhine confederation under Napoleon. Furthermore, despite German principalities having received the Roman law with all different actualities pursuant to the variety of local customs, Napoleon code had united them under a single system during the Rhine era. This fact had met its resemblance in the context of the NEI where before the Dutch occupation every sultanates and kingdoms had, to some extent, made the reception of some aspects of Islamic law with its local interpretations. Dutch law (which in fact was not a genuine Dutch law since it was heavily shaped by both Roman and French Napoleon law) compelled all these sultanates and kingdoms to subjugate under a single system and only left a small room for both Islamic law and adat (custom) to survive.

84 For discussion on the natural law theory, see supra note 60.
85 Luis Kutner, Savigny: German Lawgiver, 55 MARQL.. REV. 283 (1972).
86 Supra note 74, at 131. See also supra note 85, at 283-291.
87 Specifically related to the debate on legal unification between Savigny and Thibaut, see FRIEDRICCHA RLV ONS AVIGN&Y
ANTON FRIEDRICH JUSTus THIBAUT,T HIBAUTU ND SAVIGNY:Z UM 100 JAHRIGEN GEDACHDETS NKAIMS\ PFESu m EIN EINHEITLICHBEOSR GERLICHERSE CHT FOR DEUTSCHIAND18, 14-1914: DIE ORIGINALSCIIRIFIPNE UNR SPRtNGLICHER FASSUNG MUTN ACHTRAGEUNR, TEILEND ER ZEITGENOSSEUNN D EINERE INLEITUN(GTh ibaut and Savigny: the 100th memorial of the struggle for civil rights for unified Germany, 1814-1914, the original documents in original version with amendments, judgments of contemporaries, and an introduction) (Jacques Stern ed., 1914). I have to admit that even though I found this reference, due to my current limitation in mastering German, I relied mainly on secondary English literatures as follows: Kutner supra note 85; Gale supra note 74; Zweigert & Kotz supra note 72, in dealing with this issue.
88 Supra note 72, at 139.
89 Supra note 85, at 287-289.
90 Id.
91 Id.
92 Id. See also supra note 72, at 140.
93 Supra note 43, at 236. However, Peter Burn only slightly discussed this matter. Hopefully, this paper can add some
information to enrich what Burn has discussed.
94 Supra note 72, at 134-135.
95 For an introduction to this history, see, e.g., M. C. RICKLEFs, A HISTORYO F MODERN INDONESIASI NCEC . 1200 3-59
(3rde d. 2001).
96 G.J. RESINK, INDONESIAH'SI STORYB ETWEETNH E MYTH 197 (1968).
97 Supra note 57, at 194. However, I found a different expression. Grotius said this in the context of rejecting
Portuguese exclusive claim of access to the East Indies (later Southeast Asia/Indonesian archipelago). Grotius
challenged this claim in three constituent points: rejecting Portuguese claim of right of possession, the right of
navigation and the right of trade. For Grotius, Portuguese had no claim of possession by virtue of discovery since the
East Indies were not terra nullius, but in the possession of their native rulers. "These islands we speak of have, and
always had, their kings, their commonwealth, their laws and their liberties." See HUGo GRoTIus, THE FREE SEA XVXVII
& 13-15 (Richad Hakluyt trans., 2004).