Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter S.4: Savigny, Friedrich Carl von
Friedrich Carl von Savigny was, alongside Joseph Story (→Story, Joseph) and Pasquale Stanislao Mancini (→Mancini, Pasquale Stanislao) one of the three most significant private international law scholars of the 19th century.
I. Life and work
Friedrich Carl von Savigny was born on 21 February 1779 in Frankfurt am Main. In 1795 he commenced his legal studies at the University of Marburg, graduating in 1799 and obtaining his doctorate on 31 October 1800. Subsequently he lectured as extraordinary professor on criminal law at the University of Marburg and subsequently turned to Roman law, legal history and methodology. In 1808 he accepted a chair at the University of Landshut. In 1810 he moved to the Friedrich-Wilhelm-University of Berlin, where he stayed until 1842. Moreover he became a member of the Prussian Privy Council in 1817. In 1842 he was appointed Minister of State and Minister of Justice as well as in 1847 President of the Privy Council and of the State Ministry. He resigned from the office during the revolution of 1848 (see Mathias Freiherr von Rosenberg, Friedrich Carl von Savigny p. 1610(1779–1861) im Urteil seiner Zeit (Peter Lang 2000) 2). During Savigny’s membership and his eventual presidency of the Privy Council, he probably signed no treaties concerning foreign affairs, and also therefore none concerning private international law (see Fritz Sturm, ‘Savigny und das internationale Privatrecht seiner Zeit’ (1979) VIII Ius Commune 92, 96). Savigny died on 25 October 1861 in Berlin at the age of 82.
Savigny’s seminal work, in which he developed the so-called seat theory (Sitztheorie), was the eighth and final volume of the ‘System des heutigen römischen Rechts’ (System of Modern Roman Law; see William Guthrie, Private International Law. A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time (by Friedrich Carl von Savigny), translation with notes (T & T Clark, Law Publishers, Stevens & Sons 1869) IX, henceforth Guthrie). The eight volumes were published in stages from 1840 to 1849, with volume eight appearing in 1849. This is significant in view of the intense liberalization process taking place at the time, which also found expression in the system of private law, and consequently also in private international law. Taken as a whole, Savigny conceives of the ‘System des heutigen römischen Rechts’ as a general part of private law. Private international law is discussed in the eighth volume under the title ‘Authority of the Rules of Law over the Legal Relations’ (see also Guthrie, 5; ‘Herrschaft der Rechtsregeln über die Rechtsverhältnisse’ (see Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8 (Veit 1849) 1, henceforth von Savigny, vol 8)). In this volume Savigny deals – besides the ‘Limits in Time of the Authority of Rules of Law over Legal Relations’ (Guthrie, 277; von Savigny, vol 8, 368) – especially with ‘Local Limits of the Authority of Rules of Law over the Legal Relations’ (Guthrie, 11; von Savigny, vol 8, 27).
II. Savigny’s contribution to private international law
1. Foundation of the seat theory
Savigny’s doctrine is known as the ‘Copernican revolution’ of private international law (see Paul Heinrich Neuhaus, ‘Savigny und die Rechtsfindung aus der Natur der Sache’ (1949/50) 15 RabelsZ 364, 366). Since the Middle Ages the so-called statute theory (→Unilateralism) had been applied, a theory based on the issue of whether a single legal norm can also be applied to cases involving foreign elements. In individual cases this question is problematic, because the legislature rarely considers cases with foreign elements when promulgating substantive legal norms. The statute theory was based on the →territoriality principle and preferred its own substantive law rules in contrast to foreign law (Marc-Philippe Weller, ‘Anknüpfungsprinzipien im Europäischen Kollisionsrecht: Abschied von der “klassischen” IPR-Dogmatik?’  IPRax 429, 430).
In contrast to the statute theory, Savigny did not enquire whether a legal norm was applicable to a case with relations to other states, but rather sought the seat of the legal relationship (Sitz der Rechtsverhältnisse; von Savigny, vol 8, 108). He posed the question of the applicability of domestic or foreign law and thereby approached the problem from the opposite direction and formulated the question of the applicable law from the converse standpoint. His approach proceeded not from a single norm, asking which legal relationship is included by that norm, but rather commenced from a legal relationship to examine which legal norm was accordingly applicable. Thus Savigny proceeded not from the law, but from the legal relationship.
This change represents a highly significant achievement on Savigny’s part (see Paul Heinrich Neuhaus, ‘Abschied von Savigny?’ (1982) 46 RabelsZ 4, 8 f). Nevertheless, rather than seeking to revolutionize the private international law system, he intended to remain in conformity with the traditional system. According to Savigny only the starting point (law or legal relationship) should be changed (see Daniel Zimmer, ‘Savigny und das internationale Privatrecht unserer Zeit’ in Faculté de Droit de Lausanne under the direction of Jean-François Gerkens and others (eds), Mélanges Fritz Sturm, vol 2 (Editions Juridiques de l’Université de Liège 1999) 1709, 1710). Accordingly the results of his doctrine remained relatively unchanged in major respects when compared to the conventional method. But this is not crucial, in that Savigny was the first private international law scholar able to describe the system of conflict of laws in such a clear manner that he was designated as the ‘founding father’ of modern private international law (see Giesela Rühl, ‘Methods and Approaches in Choice of Law: An Economic Perspective’ (2006) 24 Berkeley J.Int’l L. 801, 821). The consequence of his theory is that, rather than the legislature deciding whether its legal norm is p. 1611applicable, the actual situation is regarded as decisive for choosing the appropriate legislature (cf Ralf Michaels, ‘Globalizing Savigny? The State in Savigny’s Private International Law and the Challenge of Europeanization and Globalization’ Duke Law School Legal Studies, Research Paper Series, Research Paper No 74, September 2005, 15).
a) Starting point: an international common law of nations
Savigny developed his doctrine from the starting point ‘of an international common law of nations having intercourse with one another’ (‘eine völkerrechtliche Gemeinschaft mit einander verkehrenden Nationen’, von Savigny, vol 8, 27; translation according to Guthrie, 27). This perspective on cooperation among states allowed him to neglect the public (political) interests of different states as he established his system of private international law. Savigny did not deny and reject private law as state law. Rather he rejected the idea of private law – and therefore also private international law – based on politics. For him, private law always has to be apolitical (see Ralf Michaels, ‘Globalizing Savigny? The State in Savigny’s Private International Law and the Challenge of Europeanization and Globalization’ Duke Law School Legal Studies, Research Paper Series, Research Paper No 74, September 2005, 11, 12). In consequence, Savigny based his system not on the superiority of the forum’s legal system but rather on the equality of forum and foreign law. According to Savigny, domestic and foreign law have to be treated equally. Furthermore, Savigny not only considered the various states and legal systems as of equal import, but also the various persons involved, whether domestic or foreign.
b) Seat of the legal relationship
By attempting ‘to discover for every legal relation (case) that legal territory to which, in its proper nature, it belongs or is subject in (in which it has its seat)’, Savigny formulated as a methodological principle the question of the seat of the legal relationship (‘bei jedem Rechtsverhältniß dasjenige Rechtsgebiet aufgesucht werde, welchem dieses Rechtsverhältniß seiner eigenthümlichen Natur nach angehört oder unterworfen ist (worin dasselbe seinen Sitz hat’), von Savigny, vol 8, 108; see also 28; translation according to Guthrie, 89). Savigny utilizes the picture of the ‘seat’ of the legal relationship to connect a real situation (person, thing or action) with the applicable law. For this he applies four elements, ie the domicile of a person, the place of a thing, the place of an act and the place of a court (see von Savigny, vol 8, 120 f; Ralf Michaels, ‘Globalizing Savigny? The State in Savigny’s Private International Law and the Challenge of Europeanization and Globalization’ Duke Law School Legal Studies, Research Paper Series, Research Paper No. 74 September 2005, 17).
c) International uniformity of decisions
According to Savigny and in line with Kant’s categorical imperative, conflict-of-laws rules should be suitable for standardization, since Savigny pursues an internationalization of private international law. He sees the international uniformity of decisions as essential. He postulates the ideal that ‘in cases of conflict of laws, the same legal relations (cases) have to expect the same decision, whether the judgment be pronounced in this state or in that’ (translation according to Guthrie, 27; von Savigny, vol 8, 27).
International uniformity of decisions is important and one of the principal objectives of private international law to this day. International uniformity of decisions brings two considerable advantages. First, there is a need to decide cases consistently irrespective of which country’s courts have jurisdiction, because it is necessary to prevent limping legal relationships, ie legal relationships which are recognized in one country but not in another. Second, the parties must know which law governs their legal relationship in order to be aware of their rights and obligations.
d) Savigny’s conflict-of-laws rules: an overview
From this basic methodological statement Savigny derives the following conflict-of-laws rules:
Legal capacity (→Capacity and emancipation) and other matters of →personal status are governed by the law of their domicile (von Savigny, vol 8, 134 f; see also Fritz Sturm, ‘Savigny und das internationale Privatrecht seiner Zeit’ (1979) VIII Ius Commune 92, 99).
According to Savigny the legal relationships of the property law, regardless of whether it is personal or real property, are governed by the lex rei sitae (von Savigny, vol 8, 169 ff).
Corresponding to Savigny, the legal relationship of the law of obligations is ruled by the →place of performance. When no determination p. 1612is possible, the debtor’s domicile is decisive (von Savigny, vol 8, 247; see also Ulrike Seif, ‘Savigny und das Internationale Privatrecht des 19. Jahrhunderts’ (2001) 65 RabelsZ 492, 498). Long-term business relationships are connected to the management seat (von Savigny, vol 8, 247).
According to Savigny the form of a legal act is governed by the law of the place where the contract was made (lex loci actus; von Savigny, vol 8, 348 ff, 350 f). Savigny rejects the application of the lex causae, that is the applicable law of the principal issue, on the grounds that the formalities of that law can only be observed if at all with difficulty at the place where the contract is made (von Savigny, vol 8, 350).
Concerning torts/delicts, due to the proximity to criminal law Savigny regards not the place of tort, but rather the →lex fori as decisive (von Savigny, vol 8, 278 ff).
All cases of succession, regardless of whether personal or real property (→Property and proprietary rights) is involved, are governed by the law of the testator’s domicile at the time of death (von Savigny, vol 8, 295 ff, 302 ff).
Concerning family law, Savigny assigns all cases to the law of the husband’s or father’s domicile (von Savigny, vol 8, 324 ff).
2. Exceptions to the equality of domestic and foreign law
Savigny identified two exceptions, accepted to this day, to the principle of the equality of domestic and foreign law: on the one hand →overriding mandatory provisions and on the other hand →public policy (ordre public).
a) Overriding mandatory provisions
The first exception is →overriding mandatory provisions. Savigny labels them as ‘Laws of a strictly positive, imperative nature which are consequently inconsistent with that freedom of application which pays no regard to the limits of particular states’ (Guthrie, 34; see also von Savigny, vol 8, 33). Savigny describes such provisions in more detail as ‘one class of absolute laws [that] has no other reason and end than to secure the administration of justice by fixed rules, so that they are enacted merely for the sake of persons (Gründe ‘des öffentlichen Wohls (publica utilitas)’; von Savigny, vol 8, 35 f) who are the possessors of right’ (translation by Guthrie, 35). According to our contemporary understanding, for example, a ban on exports and the provisions of the protection of cultural objects (→Cultural objects, protection of) constitute overriding mandatory provisions.
Overriding mandatory provisions were and remain exceptions to Savigny’s seat theory. In these cases, the question to be answered is not which legal norm is applicable to a legal relationship (in contrast to the application of the seat theory), but rather the question whether a single legal norm of the lex fori has to be applied to a case involving foreign elements and governed by foreign law – apart from the overriding mandatory provision. Referring to a domestic overriding mandatory provision, it has to be scrutinized whether it is also mandatory in cases with foreign elements, even though foreign law is applicable to this legal relation apart from the overriding mandatory provision. It is not sufficient that the provision is mandatory in the state of the forum in cases without relations to other countries, but rather it is necessary that it is mandatory internationally. Consequently it has to be an overriding mandatory provision which is, according to the intention of the legislative authority, intended to be applicable also in cases involving foreign elements and despite the application of foreign law (→Foreign law, application and ascertainment).
Under currently valid European private international law, a regulation concerning overriding mandatory provisions is to be found for example in art 9(1) Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I),  OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)). According to this rule, overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under the Rome I Regulation. According to art 9(2) Rome I Regulation, nothing in the Rome I Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.
b) Ordre public
Moreover Savigny describes, without using the term, another, still accepted today, exception to the equality of domestic and foreign law: an infringement of the →public policy (ordre public). He explains that ‘legal institutions of p. 1613a foreign state, of which the existence is not at all recognised in ours, and which, therefore, have no claim to the protection of our courts’ (translated by Guthrie, 34), are not legally valid in the domestic legal system (von Savigny, vol 8, 33). As a graphic and memorable example Savigny mentioned slavery (von Savigny, vol 8, 37). Another example is the civil death (von Savigny, vol 8, 37).
III. Savigny’s influence on private international law
1. At the time
a) Relevance of the closest connection in continental Europe and in Latin America
Private international law in continental Europe – unharmonized or harmonized as a result of regulations of the European Union as much as treaties, especially by the Hague Academy of International Law – is fundamentally based, until today, on the doctrine of Savigny – by still seeking the law with the closest connection. In Austria, for example, § 1 Austrian Federal Code on Private International Law (Bundesgesetz über das internationale Privatrecht of 15 June 1978, BGBl. No 304/1978, as amended) expressly provides that the law has to be applied of the country to which the strongest connection exists. Other countries, such as →France or →Germany do not regulate this basic principle expressly, but also assume this basic rule. In principle, this also holds true for the conflict-of-laws rules in the Rome I Regulation, →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II),  OJ L 199/40), →Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation,  OJ L 343/10) and the Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession,  OJ L 201/107; →Rome IV Regulation). Also in Latin America, the system of private international law is based on Savigny’s system of conflict of laws.
However, despite the still valid and applicable principle of the closest connection, there have been at times significant changes in the conflict-of-laws rules since Savigny. Thus the basic principle and methodological statement remain the same, while the interests and ideas of justice, essential for answering the question to which legal system the closest connection exists, have changed, in some instances fundamentally, since Savigny’s day. For example, the equality of men and women directs to completely different conflict-of-laws rules in private international family law to those followed under Savigny’s conflict-of-laws system, where the husband’s or father’s domicile were considered as decisive in all cases concerning family law. But the methodological basic statement is still the same.
b) Rejection of Savigny’s system of private international law in the USA
By contrast to its reception in the legal systems in continental Europe and in Latin America, the Savigny doctrine met with criticism in the →USA in the second half of the 20th century (see Fritz Sturm, ‘Savigny und das internationale Privatrecht seiner Zeit’ (1979) VIII Ius Commune 92, 94 f; Daniel Zimmer, ‘Savigny und das internationale Privatrecht unserer Zeit’ in Faculté de Droit de Lausanne under the direction of Jean-François Gerkens and others (eds), Mélanges Fritz Sturm, vol 2 (Editions Juridiques de l’Université de Liège 1999) 1709, 1714; Albert A Ehrenzweig, Private International Law (AW Sijthoff 1967) 50 f). The reason for this development in the USA was the localized understanding of the seat theory, on which the Restatement (First) of Conflict of Laws (American Law Institute, Restatement of the Law, First: Conflict of Laws, St. Paul 1934; →Restatement (First and Second) of Conflict of Laws), created by the American Law Institute (with the reporter Joseph Beale), was based. Instead of seeing Savigny’s doctrine as a basic methodological statement, Savigny’s doctrine was misunderstood. This excessively regional interpretation was the reason why the local reference points to different legal systems implied in the case were analysed and (over)estimated. Some of the obtained results seemed accidental and others arbitrary. The occasion for the denial of Savigny’s doctrine was the landmark case Babcock vs Jackson (191 N.E. 2d 279 (N.Y. Court of Appeals, 9 May 1963)). Subsequently a somewhat confusing theoretical dispute arose in the USA, commonly referred to as the →(American) Conflict of laws revolution. This dispute generated a plurality of p. 1614theories for the determination of the applicable law. According to one body of legal opinion, for example, private international law would be required to realize more legal policy objectives (the so-called ‘governmental interest analysis’ of Brainerd Currie; see Brainerd Currie, Selected Essays on the Conflict of Laws (Duke University Press 1963) 183, 621) (→Currie, Brainerd; →Interest and policy analysis in private international law). According to another legal opinion, the substantive ‘better law’ was to be applied (the so-called →‘better law approach’ of Robert Leflar (see Robert Leflar, ‘Choice-Influencing Considerations in Conflicts Law’ (1966) 41 N.Y.U.L.Rev. 267, 295 ff; Robert Leflar, ‘Conflict Law: More on Choice-Influencing Considerations’ (1966) 54 Cal.L.Rev. 1584, 1587)). Courts often used the confusing multiplicity of approaches to fall back on application of the →lex fori, an approach also supported by legal doctrinal opinion (the so-called ‘lex fori approach’ of Albert A Ehrenzweig, Private International Law (AW Sijthoff 1967) 91 ff) (→Lex fori).
c) Further development of Savigny’s private international law in Europe
The criticism in the USA also provoked discussions in Europe. Unlike in the →USA, however, Savigny’s doctrine was not rejected outright. In fact Europe remained faithful to the traditional method as outlined above, but set out to refine it, recognizing that not only spatial aspects are relevant for the determination of the applicable law, so the seat of the legal relation but, rather, the interests touched by the legal relationship. It was realized that private international law is responsible for the enforcement of the functions of substantive law in cases with foreign elements. In order to implement substantive ideas of justice in private international law, the specific conflict-of-laws rules were partially differentiated in yet more detail, as can be seen for example in art 3 ff Rome I Regulation and in art 4 ff Rome II Regulation. Furthermore, multiple connecting factors such as alternative connecting factors, subsidiary connecting factors and cumulative connecting factors were established in conflict-of-laws rules so as to prefer or avoid a specific substantive objective in several cases. For example, the alternative connecting factors concerning the formal validity of a will reflect the intention of the substantive law to whenever possible realize the intentions of the decedent. Or the formal validity of legal acts should be encouraged by the alternative connection to the lex causae or the lex loci actus. By contrast concerning cumulative connecting factors, the attainment of a specific substantive objective should depend on higher requirements by applying two legal systems to the legal relationship at the same time.
2. In the long run
European private international law, be it unharmonized or harmonized by regulations, still cherishes the search for the closest connection in the sense of seeking the seat of a legal relation. Nevertheless, modern European private international law as harmonized by Regulations threatens to depart from Savigny’s theory in another way. Whereas Savigny postulated the equality of all legal systems, that is one’s own legal system is basically no more important than a foreign legal system, the European legislature at times tends to prefer the application of the law of the EU Member States to application of the law of non-EU Member States. This is expressed for example by art 8(d) Rome III Regulation, which for divorce cases (→Divorce and personal separation) provides that, absent a choice of law by the parties, absent a common habitual residence of the spouses at the time of seizing the court or within the last year before seizing the court, and absent a common citizenship of both spouses at the time the court is seized, then the divorce is governed by the law of the state of the seized court (→lex fori). The lex fori is privileged in these cases, although the other spouse (the opposing party) has potentially no connection to this law. This solution is particularly unjust when the plaintiff, according to art 3(1)(a) fifth indent →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000,  OJ L 338/1), can only sue in a EU Member State because he (the plaintiff) has abandoned the →marriage, has had habitual residence in a EU Member State for over one year, whereas the other spouse (the opposing party) has no connection to this EU Member State. In this way a place of jurisdiction is created for the plaintiff, but also the unilateral possibility to choose the applicable law. As a result the law of the p. 1615respective EU Member State is accorded undue preference over the law of the non-EU Member State. A similar preference of the law of the EU Member State arises in cases which deal with →consumer contracts, when the connection to the law of the EU Member State is low, but nevertheless this connection is rated higher than the connection to the law of a non-EU Member State. This danger of the preference for the law of the EU Member States exists because, when framing European private international law, the EU legislature particularly intends the effective functioning of the internal market pursuant to art 81(2) of the TFEU (The Treaty on the Functioning of the European Union (consolidated version),  OJ C 326/47), and tends to rate this interest as overriding the realization of the interests of the parties.
De lege ferenda the European legislature should cherish the equality of the legal systems of EU Member States and non-EU Member States in the sense of Savigny’s theory.
Helmut Coing, ‘Rechtsverhältnis und Rechtsinstitution im Allgemeinen und Internationalen Privatrecht bei Savigny’ in Law Faculty of the University of Athens (ed), Eranion in honorem Georgii S. Maridakis, vol 3 ([Universitas] Athenis 1964) 19;
William Guthrie, Private International Law. A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time (by Friedrich Carl von Savigny), translation with notes (T & T Clark, Law Publishers, Stevens & Sons 1869);
Max Gutzwiller, Der Einfluß Savignys auf die Entwicklung des Internationalprivatrechts (Gschwend, Tschopp & Co 1923);
Max Gutzwiller, ‘Internationalprivatrecht: Die drei Grossen des 19. Jahrhunderts’ in Peter Böckli and others (eds), Festschrift für Frank Vischer zum 60. Geburtstag (Schulthess 1983) 131;
Ralf Michaels, ‘Globalizing Savigny? The State in Savigny’s Private International Law and the Challenge of Europeanization and Globalization’ Duke Law School Legal Studies, Research Paper Series, Research Paper No 74, September 2005; Paul Heinrich Neuhaus, ‘Abschied von Savigny?’ (1982) 46 RabelsZ 4;
Mathias Freiherr von Rosenberg, Friedrich Carl von Savigny (1779–1861) im Urteil seiner Zeit (Peter Lang 2000);
Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8 (Veit 1849);
Ulrike Seif, ‘Savigny und das Internationale Privatrecht des 19. Jahrhunderts’ (2001) 65 RabelsZ 492;
Fritz Sturm, ‘Savigny und das internationale Privatrecht seiner Zeit’ (1979) VIII Ius Commune 92;
Marc-Philippe Weller, ‘Anknüpfungsprinzipien im Europäischen Kollisionsrecht: Abschied von der “klassischen” IPR-Dogmatik?’  IPRax 429;
Daniel Zimmer, ‘Savigny und das internationale Privatrecht unserer Zeit’ in Faculté de Droit de Lausanne under the direction of Jean-François Gerkens and others (eds), Mélanges Fritz Sturm, vol 2 (Editions Juridiques de l’Université de Liège 1999) 1709.