|dc.description.abstract||In my thesis, I examine how German jurists, beginning with Carl Friedrich Savigny, at the
dawn of the 19th century, to Rudolf von Jhering, towards the end of it, interpreted the Roman
sources on possessio, thus, constructing the German concept of possession (Besitz); a development
that was to be adopted by the two major civil codifications of the German-speaking world, namely
the Austrian ABGB and the German BGB.
Influenced by German idealism, notably the views of Kant, but also driven by
contemporary considerations regarding the place and usefulness of Roman law in the German-speaking countries, leading German jurists of the nineteenth century radically pursued a new
approach towards Roman sources and simultaneously informed their interpretation with notions
of German idealism, while always pledging their faith towards the historical material.
This motley group included noted jurists like Puchta, Keller, Windscheid, Brinz, Bekker,
Kuntze, Dernburg, Loehr, Huschke, Sintenis, Arndts, Böcking, Bethman-Hollweg, Regelsberger
and Unger. They called themselves members of the ‘Historical school’ because they believed it to
be their task to trace Roman law back to its classical roots, by ‘cleaning it’ from ‘medieval
contamination.’ I also included Rudolf von Jhering in my discussion because he holds an
ambiguous position, he is both considered part of the ‘Historical School’ and its opponent.
Since they all looked at Savigny as the founder of their school, it comes as no surprise that
the scholars all reacted in various ways to Savigny’s seminal monograph on possession Das Recht
des Besitzes, which appeared in six editions with slight modifications from 1801 to 1836.
In my examination, I draw on a limited circle of jurists that participated in the debate on
possession, but I also include scholars who were not considered as part of the group, such as
Maximilian Theodor Zachariä, but who engaged with the group extensively on the matter of
In my treatment of the discussion of the concept of possession and possessory interdicts
(interdicta possessionis), I trace the different lines of thought of various members of the ‘Historical
School.’ I compare the points where they agree, or disagree and, I am trying to trace their influence
on others, and eventually on the German civil code, the Bürgerliches Gesetzbuch. My treatment
will show that the ‘Historical School’ was not as homogenous as it is often assumed even today
For this, the movement must be placed in its historical context. The rising citizen class in
Germany would seek to terminate the old feudal order in Germany, which represented an agrarian,
land-based economy, and society. For this aim, they needed a different private law, namely, one
that perceived both the contract and ownership as central. This becomes obvious when we
compare the Preußisches Allgemeines Landrecht of 1794, or the Austrian civil code, of 1812
though enlightened codes, still preserving the old feudal order with different degrees of possession
and ownership (Gewere), with the Bürgerliches Gesetzbuch of 1900, which was strongly
influenced by Savigny and his disciples.
I will dispute the commonly held notion that ‘Pandektists’ tried to mould Roman law,
which was perceived as casuistic and not systematic, into a theoretic, abstract one by showing that,
on the one hand, ‘Pandektists’ themselves were less prone to abstracting as Jhering held them to
be, and, on the other, that Jhering himself might be more given to theorizing than he would have
us believe he did, thus, Jhering cannot be seen as the antipode of the ‘Historical School’ but his
contribution to the discussion of possession is seminal as we will see.
In discussing the treatment of possessio, I will examine two separate questions, namely,
how possession is created, and why is it protected? These two questions are often intermingled in
the argument, but a crucial as they live on in both the German and Austrian civil codifications
(Possessorischer Besitzschutz, §859 BGB, petitorischer Besitzschutz, §1007 BGB; §372ff ABGB),
and only the latter goes back to the Roman sources, (actio publiciana). The debate on the nature
of possession, and its ramifications, ushered in by Savigny, and continued by followers and
opponents, still informs the legal discourse in Germany and Austria today.
I leave the Latin word possessio untranslated throughout my work and render only the
German Besitz as ‘possession’ since possessio and possession are often false friends. I also left the
term detentio untranslated. I either quote it in its Latin form or as the German rendition Detention,
I do this because the English ‘detention’ does not render the meaning of either the Latin or the
German. The term ‘detentor’ is equally problematic as it is rendered as ‘Inhaber’ in the Austrian
civil code and can include the possession of rights. In the German civil code, the ‘Inhaber’ is
strictly separated from the possessor; the former referring to a holder of rights, the latter only to a
holder of physical objects.||en