Historical School of Law

Historical School of Law

 

one of the trends in legal scholarship in the first half of the 19th century. It was particularly influential in Germany.

Unlike the doctrine of natural law, which represented the ideological weapon of the revolutionary bourgeoisie, the tenets of the historical school of law centered on a defense of the feudal order and opposition to the reform of existing relations through new legislation. Custom was proclaimed as the most important source of law, codification was rejected, and law was depicted as being the result of the gradual development of “national spirit”; the development of law was compared to that of language. G. Hugo (1764–1844) and F. J. Stahl (1802–61), adherents of the school, justified the preservation of feudal legal institutions and opposed the codification of law in Germany. To a significant extent the position taken by the school in Germany was a manifestation of the nationalistic reaction to the codification of law that had been carried out in France and had led to a consolidation of the gains of the bourgeois revolution. Criticizing the school for its apologia of the feudal order and conservatism, K. Marx in his article “Toward a Critique of the Hegelian Philosophy of Law: An Introduction” wrote that this was a “school which justifies the baseness of today by the baseness of yesterday, which declares as rebellious any cry of the serfs against the knout, provided this knout is old, derivative, and historical” (K. Marx and F. Engels, Soch., 2nd ed., vol. 1, p. 416).

G. Hugo was the founder of the school, but it became well established after the publication in 1814 of a pamphlet by F. C. von Savigny entitled On the Vocation of Our Age for Legislation and Jurisprudence. In this work Savigny wrote that codification of the law in Germany was inopportune. The journal Zeitschrift fur geschichtliche Rechtswissenschaft (Journal of Historical Jurisprudence), which was published from 1815 to 1850, also contributed to the popularization of the school’s ideas. Among the followers of Savigny were G. F. Puchta and K. F. Eichhorn.

The representatives of the school believed that law passes through three stages in its development: (1) the spontaneous, unconscious emergence of norms of customary law in the soul of a nation through the development of the “national spirit”; (2) the expounding by scholarly legal experts who perfect positive law as applied to increasingly complicated societal relations; and (3) codified law, which represents the union of customary law and the law of legal experts. Legislation can only supplement standing law, it cannot change it. The school believed that in the 19th century the spokesmen for national sentiments in law were legal experts who wished to apply Roman law; thus, the study of “pure Roman law,” with the aim of applying it more broadly to Germany, was seen as the chief task of jurisprudence. In this sense the position taken by the school to a certain extent met the aspirations of the developing German bourgeoisie, for Roman law met the needs of capitalist commodity circulation. With time the school split into two wings, the nationalist “Germanists” and the bourgeois-liberal “pandectists.”

A number of positions of the school, in particular its teachings regarding the primacy of custom over law, exerted an influence on the formation of the sociological tendency in bourgeois jurisprudence. The reactionary nationalist views of its representatives were used extensively by the German fascists.

P. S. GRATSIANSKU

References in periodicals archive ?
One of the many strengths of the book is that it helps us to see the relationship between fields such as German Idealism and Romanticism, the incipient anthropology of Herder and Humboldt, and Savigny's historical school of law in a new light.
Theoretical guidelines of explanation are noticed in time and concentrated on the major current an schools of legal thought (natural law, the German historical school of law, positivism, Marxism), in addition to any such legal thinking and thinking have had over the old ages and all over the world, an effervescent dialectics.
Topics addressed include the contribution of London to English common law, the influence of 13th century legislation on mortmain alienation in Flanders on French and English law, tensions between localism and centralism in the tax administration of 19th century England and the United States, the influence of the will theory of contract in the 19th century, the creation of the default judgment in 19th century English procedural reforms, legal resistance to the English Poor Law Amendment Act of 1834 in the cities of Chester and Liverpool, public morality and copyright law in 19th century Britain, the relationship between legal education in England and the German historical school of law in the 19th century, and law and India at King's College London.

Full browser ?