Historical School of Jurisprudence
HISTORICAL SCHOOL OF JURISPRUDENCE
The historical school of jurists was founded by Friedrich Karl von Savigny (1779–1861). Its central idea was that a nation's customary law is its truly living law and that the task of jurisprudence is to uncover this law and describe in historical studies its social provenience. As in other schools of thought, acceptance of this approach did not necessarily mean agreement on its theoretical or practical consequences.
To followers of Savigny the identification of law with custom and tradition and the Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism and natural law; a rejection of the notion of law as the command of the state or sovereign, and therefore a disparagement of legislation and codification; and a denial of the possibility of universally valid rights and duties and of the individual's possession of nonderivable and inalienable rights. In positive terms, historical jurisprudence identified law with the consciousness, or spirit, of a specific people. Law is "found" by the jurist and not "made" by the state or its organs. Law is a national or folk and not a political phenomenon; it is a social and not an individual production; like language, it cannot be abstracted from a particular people and its genius; it is a historical necessity and not an expression of will or reason, and therefore it cannot be transplanted.
In addition to Savigny, the historical school was probably influenced by Johann Gottfried Herder (1744–1803) and the romantic notions of folk culture, by the emphasis on tradition in the work of Edmund Burke (1729–1797), by the stress on historical continuity in the work of Gustav Hugo (1764–1844), and by the Hegelian conception of Spirit. In Germany, the main proponents of historical jurisprudence were G. F. Puchta, Karl Friedrich Eichhorn, Rudolph von Sohm, and Otto von Gierke.
In England Henry Maine (1822–1888) was closely identified with the historical school, although there is no evidence that he was directly influenced by the German thinkers. Modern historical jurisprudence in England was born with the publication in London of Maine's Ancient Law in 1861, the year of Savigny's death. Until then historical research in law had been neglected, but from that time on, the field was assiduously cultivated. In reaction against natural law and under the influence of Thomas Hobbes, the tendency in England had been to regard law as the command of the state, and the task of the jurist was conceived as a concern with the analysis of positive law without regard to historical or ethical considerations. Maine broke with these traditional attitudes. Probably influenced by Rudolf von Ihering (Der Geist des römischen Recht, 3 vols., Leipzig, 1852–1865), Maine was stimulated to apply the historical method to jurisprudence. Charles Darwin's Origin of Species, published two years before Ancient Law, also probably influenced Maine.
Maine rejected the natural law, rationalistic, and a priori approaches to the nature of law. In his Early History of Institutions (London, 1875) he saw a people's law as compounded of opinions, beliefs, and superstitions produced by institutions and human nature as they affected one another. Indeed, English common law seemed better to exemplify Savigny's views than did the law of Germany, which drew heavily on Roman law. But as an Englishman, Maine saw in law more than a people's customs; he observed and took into account the creative and reforming work of Parliament, and so he was led to recognize legislation as an instrument of legal growth. And he found that equity and legal fictions played creative roles in the common law. In these respects he departed radically from Savigny's monistic approach to law and its sources.
Maine's comparative historical studies, which took into account diverse legal systems, kept him from a belief in the mystical uniqueness of a people and its genius and its law; he observed uniformities as well as differences in different legal orders, and so he was led to suggest that similar stages of social development may be correlated with similar stages of legal development in different nations. Maine differed from Savigny also in believing that custom might historically follow an act of judgment, so that the jurist could be seen to have had a creative role in making the law, even though he claimed only to have found it. Maine also noted the part played in early societies by the codification of customary law. In revealing the ideals operative in a society at a particular stage of its development and in relating them to social conditions, Maine stimulated the development of the use of the sociological method in jurisprudence. It thus became apparent that just as law cannot be divorced from history, so, too, it cannot be divorced from philosophy and sociology. Thus, if Savigny's historical jurisprudence was mainly conservative in import, Maine's work had a predominantly liberalizing effect. Then too, Maine's work influenced the development of comparative legal studies.
Other English scholars associated in varying degree with the historical school of jurisprudence are James Bryce (1838–1922), Frederic W. Maitland (1850–1906), Frederick Pollock (1845–1937), and Paul Vinogradoff (1854–1925).
Perhaps the greatness of historical jurisprudence lay in the fact that it provided its own seed of dissolution; for once it is admitted that law is historically conditioned, it is as impossible to limit the conception of law to a Volksgeist as to the commands of the sovereign; all forms of social control and all sources of law emerge as subjects for legitimate consideration and study.
works of historical jurisprudence
Eichhorn, Karl Friedrich. Deutsche Staats- und Rechtsgeschichte, 4 vols. Göttingen: Vandenhoeck and Ruprecht, 1808–1823.
Gierke, Otto von. Das deutsche Genossenschaftsrecht, 4 vols. Berlin: Weidmann, 1868–1913. Partially translated by Ernest Barker as Natural Law and the Theory of Society. Oxford: Cambridge University Press, 1934.
Puchta, G. F. Das Gewohnheitsrecht, 2 vols. Erlangen: Palm, 1828–1837.
Sohm, Rudolf von. Institutionen des romischen Rechts. Leipzig, 1883. Translated by J. C. Ledlie as Institutes of Roman Law. Oxford: Clarendon Press, 1892; 3rd ed., Oxford, 1907.
Allen, C. K. Law in the Making, 7th ed. Oxford: Clarendon Press, 1964. Ch. 2.
Friedmann, Wolfgang. Legal Theory, 3rd ed. London: Stevens, 1953. Ch. 14, with bibliography.
Friedrich, C. J. The Philosophy of Law in Historical Perspective, 2nd ed. Chicago: University of Chicago Press, 1963. Ch. 15.
Jones, J. W. Historical Introduction to Theory of Law. Oxford, 1940. Ch. 2.
Pound, Roscoe. Interpretations of Legal History. New York: Macmillan, 1923.
Pound, Roscoe. Jurisprudence. St. Paul, MN: West, 1959. Vol. I.
Stammler, Rudolf. "Fundamental Tendencies in Modern Jurisprudence." Michigan Law Review 21 (1923): 623ff.
Stone, Julius. The Province and Function of Law. Cambridge, MA: Harvard University Press, 1950. Ch. 18.
Vinogradoff, Paul. Outlines of Historical Jurisprudence. London: Oxford University Press, 1920. Vol. I.
Walton, F. P. "Historical School of Jurisprudence and Transplantations of Law." Journal of Comparative Legislation & International Law 183 (3rd series, 1927).
Diamond, Alan, ed. The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal. Cambridge, U.K.: Cambridge University Press, 1991.
Stein, Peter. Legal Evolution: The Story of an Idea. Cambridge, U.K.: Cambridge University Press, 1980.
Milton R. Konvitz (1967)
Bibliography updated by Philip Reed (2005)