In brief: Not its work, but its claim. Hegel holds research into legal history to be meritorious and necessary – and the assertion that it can answer the question of what law is valid to be a category mistake. His sharpest sentences are aimed not at Savigny but at his less cautious fellow campaigners.
The dispute
In 1814 Friedrich Carl von Savigny had written against a German civil code in Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft: law grows out of the spirit of a people, it is not made; the age lacks the vocation for codification. Seven years later the Groundlines appear. They return to the question in § 211 and answer it in a single sentence:
To deny to a cultivated nation, or to the legal profession within it, the capacity to make a code of laws … would be one of the greatest insults that could be offered to a nation or to that profession.
Groundlines, § 211 note
The clause Hegel inserts in the middle is the actual argument: it is not a matter of inventing new laws at all, but of „cognizing the existing legal content in its determinate universality, that is, of grasping it thinkingly“. For him codification is no break with tradition, but its comprehension.
Against customary law as a value in itself
He takes the Romantic elevation of the unwritten apart by taking it at its word. Customary rights, he says, are thoughts just as laws are – only more poorly known:
Their difference from laws consists only in this: that they are known in a subjective and contingent manner, and are therefore more indeterminate in themselves … and, besides, the knowledge of the right, in this respect and that, is generally the contingent property of a few.
Groundlines, § 211 note
And the claim that customary law has „passed over into life“ he settles with a parenthesis in which one can hear the lecture hall laugh: one speaks „nowadays, incidentally, … most of life and of passing over into life precisely where one is versed in the deadest material and the deadest thoughts“. His example is English case law, in which the judges „continually act as legislators“.
The real opponent: Gustav Hugo
The longest and most biting passage stands already in § 3 note and is directed against Gustav Hugo’s Textbook of the History of Roman Law. Hugo had disposed of the philosopher Favorinus, who had criticised the Twelve Tables, with the remark that he had simply not understood them. Hegel picks out the law at issue: the creditors’ right to kill the debtor or to cut him into pieces, with the clause that cutting off too much or too little should carry no legal consequence – „a clause which would have benefited Shakespeare’s Shylock in the Merchant of Venice and would have been most gratefully accepted by him“.
What Mr. Hugo means by saying that Favorinus did not understand the law is not apparent; any schoolboy is capable of understanding it … – by understanding, Mr. Hugo must only mean that cultivation of the understanding which is satisfied with a good reason in the face of such a law.
Groundlines, § 3 note
This is more than polemic. Hegel is naming a procedure which he calls „the immortal fraud of the method of the understanding“: to give a good reason for a bad cause and to believe one has thereby justified it.
What he concedes to the historical school
More than one expects. In § 3 note he expressly credits Montesquieu with „the true historical view and the genuinely philosophical standpoint“: laws are not to be considered in isolation but as a moment of a totality. And purely historical research „has its merit and value within its own sphere“. The reservation concerns the boundary alone: so long as explanation from historical grounds „does not confuse itself with development from the concept“.
The famous sentence from § 3 note about positive right is likewise gladly turned against him and yet comes from him: that „force and tyranny can be an element of positive right“. That is no justification of what exists. It is the observation that validity and rightness are two different things – precisely the distinction that the historical school levelled out.
How it turned out
In practice Savigny won: the German civil code came only in 1900, and the historical school dominated the century in between. In substance Hegel’s objection has held. That the genesis of a norm does not ground its validity is methodological common property today – and is renegotiated in every debate on interpretation that turns on the „will of the historical legislator“.
Sources. Groundlines § 3 and note (Montesquieu; Gustav Hugo, Lehrbuch der Geschichte des römischen Rechts, 5th ed. 1818; Gellius, Noctes Atticae XX, 1), § 211 and note (codification; the turn of phrase alludes to Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, Heidelberg 1814), § 212–§ 216. – In the glossary: Positive Right and Natural Law. – On the later history: Hegel and German legal scholarship.