Author: Nirbhay Singh, Lovely Professional University
1. Introduction
Legal philosophy the principles that seek to explain the nature, role, function, and justification of law are grouped into several schools of thought. Of all, the Historical School of Jurisprudence is one of the most distinguished frameworks that explain the history and culture of the law. The positivist school of thought came to light as a result of criticism of rationalist and natural law theories that were prominent in the 18th century and the initial half of the 19th century. The supporters of the Historical School have contended that law is not the creation from reason or theological fiat, but it is a living growth of the civilization and the community.
This article aims to explain what the historical school of jurisprudence looks like, its origins, philosophers, and significance for contemporary legal science. The discussion will be divided into several sections: In this context, they described the background of the formation of the school, major figures supporting the Historical School, basic premises of historical jurisprudence, main criticisms of other legal theories, and the influence of Historical School over the contemporary legal theory.
2. Keywords – Natural Law Critique, Legal Positivism, Volkgeists, Legal History, Customary Law
3. The Emergence of the Historical School
Historicism as a method of studying law appeared in the second half of the 18th and the first half of the 19th centuries, as a reaction to rationalism and the Enlightenment. The main concepts of the Enlightenment included individualism, reason, the social contract, and natural law, the last of which led to the proposition that law is natural and universal. However, the Historical School introduced the cultural specificity of these systems and stated that they are being formed in records of historical progress as the formation of legal traditions is based on and pertinent to the cultural and social practices of the specific nation.
Stemming from these conditions the Historical School arose as a genuine sociopolitical movement emanating from the French Revolution and the Napoleonic Wars. Such events just underlined the importance of not applying legal ideas to nations disregarding their history and culture. The placing of the Napoleonic Code all through Europe caused much resentment and demonstrated that social norms and culture should be taken into consideration when promulgating laws.
4. Key Figures of the Historical School
The Historical School of Jurisprudence was shaped by several essential personalities due to their specific ways of thinking and contributions.
1. Friedrich Carl von Savigny (1779-1861): Savigny is claimed to be the historical school of law founder. Savigny rejected the codification of the laws based on concepts in his work “On the Vocation of Our Age for Legislation and Jurisprudence” written in 1814 ‘. He opined for the legal development from the traditions of the “Volkgeists” or the spirit of the people. Savigny believes that the law is a part of a nation’s historical experience and any intervention with a foreign law would disturb the process of growth of the legal system.
2. Gustav Hugo (1764-1844): Hugo was another of the representatives of the Historical School who actively contributed to the analysis of the history of the formation of Roman law. He stressed that historical precedent ought to be taken into account when analyzing legal development; legal institutions should be viewed historically. As such, even if at present, it is not easy to fully appreciate Hugo’s contributions to the study of law, it can be inferred that his scholarly achievements have paved the way for future generations of legal historians.
3. Georg Friedrich Puchta (1798-1846): Puchta continued the ideas of Savigny and partially advanced the ideas of the Historical School, more specifically, the doctrine of custom. Speaking of the nature of law, he stated that law grows out of practices and beliefs of the society, the development of which is historically conditioned. It has been still commented on and adapted by many generations of legal theorists mostly concerning the topic of the connection between law and custom and Puchta’s contribution is still pertinent to the contemporary debates in property law and legal anthropology.
5. Philosophical Foundations of the Historical School
The Historical School of Jurisprudence is grounded in several key philosophical principles, which distinguish it from other legal theories.
1. Law as a Product of Historical Development: A main postulate of the Historical School is that the annals of legal systems’ experience cannot be encompassed by rationalistic postulates or divine revelations, but the law is a historical organism. In this view, the law grows and develops from the practices, conventions, and norms that a particular society deems fit. This greatly differs from the natural law theories where law is said to have its foundation on rational principles.
2. The Concept of Volkgeists: Volkgeists which translates to “spirit of the people” is an important feature of the Historical School. It relates to the notion that a law is a reflection of a certain population’s consciousness as the result of its history. Thus, following the ideas of Savigny, the Volkgeists regulate all legal norms and the attempt to impose certain external legal standards contradicts the historical evolution of the community.
3. Customary Law: The Historical School pays a lot of regard to customary law, being completely convinced that it is the key source of legal norms. Customary law, however, can be defined as the practice and the traditions of the people which over time acquire the force of law. This emphasis on custom sets the Historical School as a doctrine different from other legal theories that tend to rely on codes and written laws.
4. Historical Continuity: Historical School pays particular attention to the historically conditioned evolution of legislation. Therefore, legal institutions are regarded as being a progressive growth process, with every generation adding to the existing legal systems. This focus on stasis differs in some ways from systems of other theories of law, which call for the radical overhaul of legal structures according to principle.
6. Critique of Other Legal Theories
The historical School of Jurisprudence arose due to the main styles in jurisprudential science such as natural law and positivism.
1. Critique of Natural Law: The Historical School does not accept the view of the natural law theory that law originates from rational principles that mankind is capable of discovering. As much as has been pointed out by proponents of the Historical School, this view is myopic, and it does not take into consideration that every legal system is historical. They oppose the notion that law is a rational construct and is historical growth that is inextricably linked to the specifics of the society in which it is used. Anti-formalists argue that the application of principles inherent in the legal system of other countries would upset the proper development of the legal system, as well as provoke social tension.
2. Critique of Legal Positivism: The Historical School also rejects legal positivism which postulates that law is the set of rules that exist and are implemented by the state. While the positivism theory states that legal systems need to have written statutes and legal codes, the Historical School says this view is not correct as it does not explain the role of custom and history in legal systems. Thus, the work of the Historical School, legal positivism disregards the organic nature of law and tends to venerate the role of the state in a manner that dislocates the law away from the community it is supposed to serve.
7. The Enduring Influence of the Historical School
The Historical School has also substantially shaped legal theory and practice and has influenced multiple legal systems and disciplines.
1. Influence on Legal Anthropology: It is Imperialism which is the reflection of the methodology of the Historical School that focused on the connection between law and custom. Legal anthropologists consider the institutional contexts of law and secure the knowledge of the historical school on the conduct of legal customs.
2. Impact on Comparative Law: Several other branches of legal scholarship, out of which the branch of comparative law that deals with comparing various legal systems also emanates from the Historical School due to its emphasis on the specificity of legal systems. Comparative lawyers use the ideas of the Historical school to analyze legal systems and their configuration in different historical and cultural contexts.
3. Contribution to the Development of Legal History: The Historical School can be cited as the pioneer of legal history as most of its representatives stressed a historical approach to the study of law. Historicism and its concepts and techniques are adopted by legal historians to examine the origins and the evolution process of the legal systems with an orientation toward the influence of cultural history.
4. Influence on Modern Legal Thought: The concept of the Historical School that focuses more on the organically evolved legal system has continued to influence modern thinking on laws, especially the constitution and legal reasoning. This approach of the Historical School is still in force in today’s practice: legal scholars and judges use it to interpret the content of legal texts based on their historical background, relying on the principles of continuity and tradition for legal systems.
8. Conclusion
The Historical School of Jurisprudence, championed by figures like Friedrich Carl von Savigny, Gustav Hugo, and Georg Friedrich Puchta, emphasizes the importance of historical development, custom, and tradition in shaping legal systems. It highlights the role of the Volkgeists, or national spirit, in the evolution of law and serves as a counterpoint to other legal theories such as natural law and positivism. This school of thought has significantly influenced fields like legal anthropology, comparative law, and legal history, offering valuable insights into the law’s historical and cultural context. Its relevance endures in contemporary legal scholarship and practice, underscoring the importance of understanding law as a product of human history and social practices.
References
J M Kelly, “The Historical School of Jurisprudence and the Role of Customary Law” (2007) 18 German Law Journal 123.
T Nentwig, “Savigny’s Historical School: An Overview” (2011) 29 Legal History Review 145.
G L Harcourt, “Georg Friedrich Puchta and the Historical School of Jurisprudence” (2014) 30 Journal of Legal Studies 202.
S R Haigh, “Critiques of the Historical School: Natural Law and Positivism” (2012) 27 International Journal of Law 67.
E Hagan, “The Legacy of Gustav Hugo: Historical Jurisprudence and Its Modern Impact” (2015) 22 Comparative Legal Studies 94.
