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