The Historical School of Jurisprudence

In the 19th century, the historical approach, which aimed to reveal the laws and patterns of historical changes, deeply inf luenced all social sciences, in­cluding political economy in the German territories.

Karl Friedrich Eichhorn (1781-1854), Johann Friedrich Goβchen (1778— 1837), and Leopold von Ranke (1795—1886) also played major roles in the development and spread of the HSJ. All three were professors in the faculty of law at the University of Berlin. It was actually the publication of ‘the first volume’ of the Zeitschrift fur geschichtliche Rechtswissenschaft (Journal of Histori­cal Jurisprudence) by Savigny, Eichorn, and Goschen in 1815 that marked ‘the official beginning’ of the HSJ (Beiser 2011, 214). Additionally, Savigny’s book Vom Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft (Of the Vocation of Our Age for Legislation and Jurisprudence), which was published in 1814, was accepted as one of the most important books among adherents of the HSJ.

The views, principles, goals, and methods of the HSJ were not accepted by all legal theorists in the German territories. Most notably, a famous debate began between the HSJ and the Philosophical School ofJurisprudence (PSJ) in 1814 centered on a disagreement about the codification of law.

Despite the codification in 1794, prominent German legal thinkers be­came preoccupied with finding a suitable structure for the country’s civil laws following the victory of the German resistance movement over the Napo­leonic occupation. Subsequently, in 1814, an intellectual dispute pertaining to the introduction of a new code for all German territories arose between Anton Friedrich Justus Thibaut (1772—1840), a professor of law at Heidelberg who adhered to the PSJ, and Savigny of the historical school. The Thibaut- Savigny debate over codification marked one of the most important chapters in the development of German legal thought in the 19th century.

Thibaut and Savigny publicly expressed their respective views on how laws should be reorganized in Germany in the post-Napoleonic era. In 1838, Thibaut published Uber die sogenannte historische und nichthistorische Rechtsschule, in which he defended a unified legal code for all German states. More specif­ically, he supported the notion of establishing a new standardized code of law for all of Germany by unifying the different systems of law that were already in effect in its various territories, namely Roman law, the Prussian code, the Austrian code, and the Napoleonic code. According to him, ‘the law is the arbitrary result of the will of the legislator, independent of anterior law, and accommodated to the demands and uses of the moment’ (Small 1923B, 732). In other words, the main goal of the PSJ was to establish a rational system of law based on the powers of reason.

In his books, Of the Vocation ofOur Age for Legislation and Jurisprudence (1814) and On the Purpose of the Journal for Historical Jurisprudence (1815), Savigny pro­vided a powerful critique of legal codification based on his rejection of the rationalist aspects of the system of law, and explained why he believed that codification represented an obstacle to the organic progress of laws. He ar­gued that human reason was limited, while emphasizing the importance of history in the development of each generation and their legal systems. In his opposition to Thibaut’s defense of reason as an important element of legal science, Savigny insisted that each society had its own particular law, which ref lected its unique characteristics and changed organically over time. Ac­cording to Savigny’s theory, ‘the law is a spontaneous growth of the entire life of the nation, the real character of which can be revealed only by historical and comparative studies’ (Neff 1950, 356). He further believed that historical studies could help law students, academics, lawyers, and judges comprehend the meaning of prevailing laws and rules, given that law develops accord­ing to the history of each nation.

For law, as for language, there is no moment of absolute cessation; it is subject to the same movement and development as every other popular tendency; and this very development remains under the same law of in­ward necessity, as in its earliest stages. Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.

That means, according to Savigny, the content of the law is not ‘something imposed on a community from above or from without, but is an inherent part of its ongoing life, an emanation of the spirit of the people’ (Rodes 2004, 165). Contrary to Thibaut’s defense of the rational construction of law, Savigny maintained that laws were outcomes of the national spirit (Volksgeist). Therefore, laws developed according to organic changes in the national spirit, which are experienced by the people that make up a particular society. In other words, the laws of any state originally emerged from the specific his­torical experiences, cultures, popular beliefs, languages, traditions, moral and ethical values, and customs of its own people. Hence, law was not originally developed via legislative arbitrariness based on the powers of reason.

Savigny believed that since the national spirit is an organic historical de­velopment that manifests itself in the laws of the people, the law must also be an organic historical development. In other words, he believed that the law was a purely historical discipline, and as such, historical studies could help trace the common element of law.

Ultimately, Savigny was of the view that neither human beings nor the development of societies and their institutions could be understood without connecting them with their pasts. This is because antecedent developments are displayed in the essential features and characteristics of people and the institutions of their societies. In defending the importance of historical study, Savigny (1831, 136) stated that:

history, even in the infancy of a people, is ever a noble instructress, but in ages such as ours she has yet another and holier duty to perform. For only through her can a lively connection with the primitive state of the people be kept up; and the loss of this connection must take away from every people the best part of its spiritual life.

For Savigny and the adherents of the HSJ, even if ‘the present is purposely opposed to the past,’ the submissiveness of the present to the past will always exist (Rodes 2004, 167). It is only when people understand that they are part of an ongoing historical process that there can be an improvement of the law. In his defense of historical study, Savigny stressed that when the significance of ‘the national and historical elements in human existence’ are not properly understood, then ‘the conception of life appears sterile and unreal’ in the works of social theorists (Liedke 1958, 377).

According to Savigny, historical study shows that the evolution and progress of society has led to lifestyles, as well as social and economic life, becoming more complex. As a result, the law has become more abstract and technical in order to respond to increasingly complex situations. This development has also necessitated the involvement of trained jurists. In other words, Savigny explained that even though the law originated from the people and was an expression of their cultural characteristics, it had to be managed by jurists after lifestyles and social and economic life became more complex. Savigny (1831, 28) stated that:

With the progress of civilization, national tendencies become more and more distinct, and what otherwise would have remained common, be­comes appropriated to particular classes; the jurists now become more and more a distinct class of the kind; law perfects its language, takes a scientific direction, and, as formerly it existed in the consciousness of the community, it now devolves upon the jurists, who thus, in this depart­ment, represent the community. Law is henceforth more artificial and complex, since it has a twofold life; first, as part of the aggregate exist­ence of the community, which it does not cease to be; and, secondly, as a distinct branch of knowledge in the hands of the jurists.

This evolution of law over time has not been an artificial design based on rational thinking; rather, it has been an organic development. Even though Savigny argued that law first emerged and developed according to the unique spirit of the people, he also recognized that its later evolution was largely attributed to jurisprudence. Despite the emergence of increasingly complex social and economic relationships in advanced societies, as well as the in­creasingly prominent role of jurists in the development of law, Savigny did not think that the law should abandon its historical development or the spirit of the people as it progresses. In other words, he believed that even with the emergence of more complexities in society, the jurists tasked with improv­ing the law could not completely separate it from the national spirit. In fact, Savigny claimed that since the histor y and experiences of the nation played a main role in the formation of the law, it cannot be ‘changed arbitrarily’ by jurists (Kantorowicz 1937, 332).

In his arguments against codification, Savigny claimed that ‘no amount of state authority could produce a real, suitable, or stable code if the political element were not mature’ (Kutner 1972, 287). He emphasized that since the German territories were not yet unified in the early 19th century, efforts to achieve codification based on ‘a sound system of law,’ which aims for ‘the unity of the nation, and the concentration of its scientific efforts,’ would only ‘produce the desired unity for one half of Germany, and separate the rest by a line of demarcation, more strongly marked than before’ (Savigny 1831, 182). He also pointed out that codification efforts in the early 19 th century were premature, because the German territories of that time were occupied by many small states, whose respective laws were at different stages of devel­opment and lacked uniformity. More specifically, the laws of each state were determined by the spirit of their own people. Savigny (1831, 179) argued that ‘a code is a much greater work, and that a higher degree of organic unity [of people] must be required of it.’ He concluded that if the law had been cod­ified in these small German states, it would have subsequently delayed the organic evolution and growth of the law in Germany after unification had taken place. Basically, Savigny rejected Thibaut’s defense of the ahistorical theory of law, as well as his defense of reason as the main element of legal science in codifying the law in German territories.

Additionally, Savigny was opposed to ‘plans for codification on the ground that the “state of the public mind” of the German people was “deficient” in “the law-making faculty” because it lacked the legal consciousness upon which to base the new legislative formulation’ (Kutner 1972, 287). He ex­plained that the formation of a good code required ‘a highly developed study of law so that the code could be an adequate interpretation of the living law,’ and he believed that German jurists lacked this kind of ‘technical expertise’ (ibid.). That is to say, according to Savigny (1831, 66), German territories lacked that which was ‘necessary to the formation of a good code.’ He also pointed out that Thibaut disregarded all the technical inadequacies of his time in his efforts to bring about codification.

There were also other disagreements between Savigny and Thibaut related to their codification debate. For instance, the HSJ defended ‘communitar­ian anthropology,’ because they held the view that ‘the individual drives its identity entirely from its place in society and history’ (Beiser 2011, 215, 243). According to Savigny, an individual is ‘nothing more than a part of a larger whole,’ which can include being ‘a member of a family, of a people or of a state’ (Small 1923B, 730). To be more precise, he explained that ‘the well­being of every organic being, (consequently of states,) depends on the main­tenance of an equipoise between the whole and its parts-on each having its due’ (Savigny 1831, 58). He also noted that ‘a lively affection for the whole can only proceed from the thorough participation in all particular relations; and he only who takes good care of his own family, will be a truly good citizen’ (ibid.). Contrary to the historical school, the philosophical school supported ‘atomistic anthropology,’ as it regarded the ‘individual as inde­pendent and self-sufficient’ entity (Beiser 2011, 215, 243).

Another major point of contention between the historical school and the philosophical school was the latter’s defense of natural law, which is based on universality principles. Basically, natural law theory relied on reason as the basis of law without taking account of the social and historical backgrounds of people and nations, or their particular spirits. Contrary to the views of the philosophical school, Savigny (1831, 23) did not believe that ‘an ideal legis­lation for all times and all circumstances’ could ever be established. In fact, he claimed that assuming that law was universal was wrong and illusionary. Furthermore, in his critique of the universality principle, Savigny (1831, 135) stated that people saw their ‘thoughts in a false light of universality and orig­inality. There is only the historical sense to protect us against this.’

According to Savigny, law was not fixed forever; rather, it changes with the progress and evolution of society. He explained that ‘legislation itself, and jurisprudence’ are ‘accidental and fluctuating nature; and it is very possible that the law of tomorrow may not at all resemble the law of today’ (Savigny 1831, 23). In other words, laws are not of universal validity, nor can they be applied anywhere or at any time. Savigny (1831, 135) was worried about the ambitious views of the PSJ when it came to the universality of law, particu­larly out of concern that human beings could lose their ‘individual connec­tion with the great entirety of the world and its history’ if a law was accepted and applied universally.

Savigny concluded that implementing the legal code of another country in Germany would be a grave error. He emphasized the point that much like languages, law evolves organically across history based on the particular spirit of people and creates bonds based on common sets of beliefs, values, and convictions. Neither language nor law can be applied to other people and countries, as both develop with the evolution of a nation and disappear with its subsequent destruction. In fact, the diversity of laws between communities based on their particular historical developments is to be expected. Accord­ing to Savigny, imposing the rules of one country in another country is not only imprudent, it is also unsuitable to the spirit of its people. Ultimately, he was successful in convincing ‘German legal scholars to abandon their precipi­tate embrace of the Code Napoleon, and to explore the medieval and Roman roots of their own law’ (Rodes 2004, 166). He maintained that the codifica­tion of the laws of German states via Napoleonic Code was not necessary as long as the law was in dynamic progress. Furthermore, he argued that it was up to each state to determine when the time was right for the codification of its laws.