1. Law and history
The relationship between law and history is a fundamental problem for any ‘scientific’ approach to law and legal practice. Every source of law is already a text from the past when it is first used to decide a case. There is, of course, a difference between laws that were made thousands of years ago and the products of modern or recent legislation, but the difference is one of degree, not of quality. Whenever a practical issue has to be resolved, the legal practitioner is confronted with the question of whether it is possible to determine the original meaning of an ancient legal text in its historical context, and of the extent to which he is free to assign modern meanings to the old text which may be more fitting for the current situation.
This dilemma constituted the starting point for the theory of law and legal evolution developed by the German historical school of law (Historische Rechtsschule). Its leading exponents took the view that no legal issue can be resolved unless the historical roots of the applicable provisions have been fully explored. The members of the historical school were optimistic that with sufficient care and effort it would be possible genuinely to understand the ancient texts—and to draw valid conclusions for their application to modern cases. On the other hand, they considered it impossible to apply the law and to develop it further without due consideration of its history. Even a legislature which had the intention to create a new legal system from scratch would in fact react to perceived deficiencies of the previous system and thus be dependent on historical influences.
The historical school developed in Germany at the beginning of the 19th century. It soon dominated legal thinking in Germany and exercised a huge influence on legal scholarship in many other countries. Due to its enormous success the historical school became an important factor in the legal history of the 19th century. German legal thinking during that period, especially in the field of private law, can only be understood against the background of the legal theory of the historical school. However, the interest in the historical school is not merely antiquarian in nature. The determination of the relationship ‘between past and present’ (Friedrich Carl von Savigny), and the question of what—if any—importance the historical foundations of current law have for its future development, are important issues also for modern legal scholarship. It is therefore not surprising that various attempts have been made to found a new historical school and to create a legal theory for today based on its ideas.
2. Savigny and the project of the historical school
This entry will give an overview of the school’s fundamental teachings which will be based primarily on the writings of Savigny (1779–1861). This is not intended to minimize the importance of other scholars for the emergence of the historical school. For example, it is well known that Savigny was inspired by concepts that were first developed by Gustav Hugo (1764–1844). Later, Savigny’s theory of the emergence of law was refined and further developed by Georg Friedrich Puchta (1798–1864). There is no doubt, however, that Savigny made the thinking of the historical school popular. The teachings of the historical school would never have come to dominate legal scholarship in great parts of Europe but for Savigny’s spirited programmatic statements. It is Savigny’s version of the theories of the historical school which had the greatest influence in the 19th century. Savigny is also the starting point of all modern attempts to revitalize the ideas of the historical school.
Since 1802, Savigny had been giving in his lectures accounts of his legal theory and the consequences for legal methodology that followed from that theory. His teachings were first made available to a larger public in printed form in the famous programmatic essay Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (‘Of the Vocation of Our Age for Legislation and Jurisprudence’) published in 1814. A more concise version is to be found in the short essay Über den Zweck dieser Zeitschrift (‘On the Purpose of this Journal’) which appeared in 1815 as the editorial of the first issue of the Zeitschrift für geschichtliche Rechtswissenschaft, founded and edited by Savigny and his colleagues Karl Friedrich Eichhorn (1781–1854) and Johann Friedrich Ludwig Göschen (1778–1837), who shared Savigny’s convictions. A more detailed outline was published by Savigny in the first volume of his chef d’oeuvre, System des heutigen römischen Rechts (System of Contemporary Roman Law) in 1840.
a) The domination of the past over the present
According to Savigny, the legal subject matter (der Stoff des Rechts) is constituted by the history of the nation in its entirety. This sentence is an adequate summary of Savigny’s thinking. By saying that the law is constituted (gegeben) by the nation’s past, Savigny not only wants to say that each legal system is the product of a certain historical development—that would be trivial. Savigny also asserts that it is impossible to break with history and reinvent the law without any consideration of the law as it was before. This is impossible because ‘the direction of thinking, the questions and the issues’ are ‘determined by the previous situation’ even when a completely new system has been created. The legislature cannot create a new legal system without referring to the previous system—and if it is by negating it. It is also impossible for the practising lawyer completely to divorce himself from the problems and issues of the past.
Since it is impossible to break with history, and the present is necessarily dominated by the past, it is crucial to accept the dependency of law on history and to transform legal scholarship into a historical legal science (geschichtliche Rechtswissenschaft). According to Savigny, it is the task of legal scholarship to ‘understand the given material, to rejuvenate it and to keep it fresh’. He deems it possible, on the basis of historical learning, not only to understand the law better, but also to further its organic development.
An organic development is a development which conforms to the nature and innate structure of a given national law. The nature and innate structure of each national legal system are determined by the spirit of the people (Volksgeist) of that nation. Originally, the law is created by the people as a whole through the emergence of customary rules. Later, as the nation reaches new cultural and civilizatory levels, the development of the law becomes the task of a specialized professional class, the jurists. The spirit of the people now becomes effective through the work of legal scholars who produce systematic accounts of the law, develop new legal rules and drop old provisions which have lost their importance. In this way, the jurists become representatives of the people. They represent the entire nation as far as the law and its development are concerned. The task of promoting legal progress in this way falls on academic teachers and legal practitioners on the bench and at the bar alike. To Savigny, the work of legal practitioners is no less ‘scientific’ or scholarly than that of a law professor.
Since the organic development of the law is not to be disturbed, academics and practitioners should contribute to legal scholarship, but they are not supposed consciously to design a new legal system. As Joachim Rückert remarks, Savigny conceives the development of the law as a process of spontaneous order. The law develops gradually and organically in accordance with the spirit of the nation which becomes operative through the collective but uncoordinated efforts of the jurists. While the concept of spontaneous order is of recent coinage, the basic idea is already discernible in the writings of David Hume (1711–76) and of Gustav Hugo.
b) Historical method and legal conceptualism
Savigny’s programmatic writings do not contain a precise answer to the question of which methodology needs to be followed in order to understand the law and to develop it further in keeping with the spirit of the people. In his essay ‘Of the Vocation’, Savigny mentions the necessity to ‘follow every given subject matter to its root and thus to detect its organic principle’. This ‘organic principle’ can be identified with the ‘guiding principles’ of the legal system from which—as Savigny puts it—the single legal rules can be deduced with mathematical certainty. Savigny notes that the art of the classical Roman jurists was characterized by their perfect mastery of these guiding principles of Roman law. Later, in the System des heutigen römischen Rechts, Savigny’s methodological guidelines become more concrete. It becomes clear that the study of individual legal institutions and their development is the key to the historical understanding which Savigny wants to achieve. Savigny still does not explain in detail, however, how the organic principle, or guiding principles, can be identified.
Followers of the historical school like—in particular—Rudolf von Jhering (1818–92) in his early works sought to give a more complete explanation of the way in which new legal rules should be derived from existing norms and institutions. According to Jhering, the decisive step was to formulate concepts capable of grasping the essence of a legal institution. Such well-formed concepts facilitate the ‘procreation of the law from inside’ (die Vermehrung des Rechts von innen heraus). New concepts and new legal rules can be created by combining the basic concepts distilled from the law and its history. The focus on concepts and logical derivations which characterizes this reformulation of the historical school’s approach made German legal scholarship in the second half of the 19th century liable to the charge of lifeless conceptualism. This charge was made first and foremost by Jhering himself after he had turned away from Savigny’s historical legal science and developed his own approach. It is subject to debate among modern scholars to what extent this criticism is justified with regard to other scholars of Jhering’s generation, and to earlier authors like Puchta (to whom Jhering had referred as a model and source of inspiration before the fundamental change of his scholarly convictions) or to Savigny himself.
c) Historical law and natural law
It follows directly from Savigny’s emphasis on the law as a product of a historical development and the emergence of spontaneous order that his new theory was in stark contrast to the methodological convictions of the preceding era, which had been characterized by the prevalence of natural law and the usus modernus. Savigny’s criticism of these two approaches ties in with Gustav Hugo’s work.
The methodology of natural law is based on the conviction that legal rules can be derived from rational principles even in the absence of positive sources of law. Savigny denied the possibility of designing a legal system from scratch without regard to the pre-existing legal structures which had developed in the course of history. He was convinced that any attempt to break with the history of the law would lead to a disturbance of the law’s organic development that might be detrimental to the functioning of the legal system. Regarding the usus modernus, Savigny’s judgment was equally negative due to the syncretistic way in which the lawyers of the usus modernus mixed elements coming from the Roman tradition and from German customary law without regard to the historical context from which these elements were taken.
As a consequence of his rejection of the theoretical approach of natural law and of the usus modernus, Savigny rarely used the writings of this period in his own doctrinal works. Rather, Savigny and his followers resorted directly to the sources of ancient Roman law. By skipping over the historical period immediately preceding his own and the developments of the law that had occurred during this period, Savigny himself violated the principle that the law can only be fully understood through the study of its entire history.
d) Legal scholarship and legislation
Savigny’s opposition against the proposal to codify (codification) German law in a civil code and his dispute with Anton Friedrich Justus Thibaut (1772–1840) are well known. They are another immediate consequence of Savigny’s theory of the emergence of law. By making a codification without sufficient knowledge of the entire legal development, the legislature interferes with the law’s organic development which —according to Savigny—will necessarily be detrimental to legal progress. Since Savigny was convinced that legal scholars still had not sufficiently penetrated the legal past, he deemed his own time to be incapable of producing a useful code. It is clear from Savigny’s writings that he doubted whether it would ever be possible to gain an understanding of the legal system in its entirety that would be sufficiently thorough to permit the enactment of a codification. It seems likely that Savigny tended to think that the risk of disturbing legal development by codification should never be taken. However, later followers of the historical school like Bernhard Windscheid (1817–92) at the end of the 19th century felt that the time was now ripe to start the project of codification, without breaking allegiance to Savigny.
Even though Savigny was strictly against the idea of comprehensive codification, he did not reject all forms of legislative interference. He even served for some time as Prussian minister of legislation. Legislation plays an important role in Savigny’s theory. According to Savigny, the legislature is called upon whenever there is a need for an authoritative decision. For example, the duration of limitation periods cannot be determined by scholarly research. It must be fixed by statute. However, the legislature’s role is not limited to deciding such technical points. The legislature also has the task to innovate and to adapt the law to new situations. To do this, it needs to have full knowledge of the ‘legal institution’ which is the concern of the proposed legislation, and of its organic development (vollständige Anschauung des organischen Rechtsinstituts). The legislature thus needs the same historical understanding which according to Savigny is a necessary requirement for the work of legal academics and practitioners alike.
3. General philosophical and cultural background
There is no room here for a detailed analysis of the importance of individual philosophers like Kant, Hegel, Fichte, Schelling, or Herder for the formation of the historical school of law. It seems clear, however, that the leading figures of the historical school were inspired by the general ideas and tendencies that dominated the intellectual discourse in Europe at the beginning of the 19th century. More specifically, Savigny’s theory of law and history was obviously influenced by the philosophy of German Idealism and by the historical thinking of Romanticism. Savigny had personal connections with the circle of poets and scholars who led the Romantic movement in Germany through his wife Kunigunde née Brentano, who was a sister of Clemens Brentano and Bettina von Arnim.
There are also connections to the historical schools of other disciplines which shared the emphasis on historical research as the primary key to understanding the present and the future of their respective subjects. Suffice it to note, for example, the historical school of economics, which had followers in Germany, England and France, and the historically oriented group of German philologists led by the brothers Jakob (1785–1863) and Wilhelm Grimm (1786–1859). There was also an important historical school among German historians which counted eminent scholars like Leopold von Ranke (1795–1886), Johann Gustav Droysen (1808–84) and Theodor Mommsen (1817–1903) among its followers.
4. Further development and afterlife of the historical school in Germany
Nearly all German legal scholars of importance in the 19th century defined themselves as followers of the historical school and of Savigny. There was, however, a split among the members of the school which became visible even before the middle of the 19th century. This split was caused by dissent over the question whether the Roman law or Germanic customary law should be the focus of historical research. The Romanist wing held the former position, while the Germanists wanted to shift attention away from the foreign law of the Romans and towards the national legal tradition of the Germans. Savigny himself had taken the view that the reception of Roman law (reception) had incorporated the history of Roman law in the German tradition. As Savigny discarded much of the scholarship of the ius commune, ancient Roman law became the focus of his research interest. Later exponents of the Romanist wing of the historical school concentrated even more exclusively on Roman law. The fact that the majority of eminent legal scholars in the second half of the 19th century put a strong emphasis on the importance of Roman law and especially on the Digest, or Pandects, of Justinian (Corpus Juris Civilis) as the most important source of Roman law earned these scholars the name ‘pandectists’ (Pandektensystem), although they saw themselves as true followers of Savigny and the historical school.
The Germanists, among whose protagonists was Georg Beseler (1809–88), viewed the reception of Roman law as a disturbance of the organic development of German law—a view that arguably was more easily reconcilable with Savigny’s teachings than Savigny’s own emphasis on Roman law. Beseler did not follow Savigny’s theory according to which from a certain point in history onwards the development of law becomes the exclusive domain of jurists. According to Beseler, it was more important to study the ‘people’s law’ (Volksrecht) of the Germanic peoples in order to find a true expression of the spirit of the German nation than to ponder the sources of Roman ‘jurist’s law’ (Juristenrecht).
In spite of the efforts of the Germanist wing, the Romanists dominated legal practice, since the legal systems of all German states were based either directly on the sources of Roman law or on codes which, in turn, were inspired by the civilian tradition.
5. Influence of the historical school outside Germany
Savigny’s theories had many followers outside Germany. Joseph Unger (1828–1913) spread the ideas of the historical school in Austria. Unger’s plan to reform the teaching and the practice of the law in Austria in accordance with the ideas of the historical school was staunchly supported by Leo von Thun-Hohenstein (1811–88), the Austrian minister responsible for academic education at the time. To the minister, the historical school was essentially a conservative movement (a judgment that was shared by many left-wing critics of the historical school but that does not do justice to the school’s conception of legal progress). The minister hoped that the historical school’s perceived conservatism would provide an antidote against liberal leanings which were widespread among law students at the time. Unger managed to end the dominance of the so-called ‘exegetical school’ which had prevailed in the first decennia after the enactment of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch (ABGB)) and which sought to find the law in the text of the codes alone. An exegetical school existed in France as well. Similar to its Austrian counterpart, the French École de l’exégèse came to dominate legal thinking after the creation of the Code civil and discarded all authorities with the exception of the code. As a reaction to the dominant position of the École de l’exégèse and its sterile rigour, a considerable number of French legal scholars sought to change the methodological basis of French jurisprudence and to implement Savigny’s ideas in France. Savigny vigorously supported his followers in France. In Italy, too, there were followers of the historical school—Savigny’s theories played a prominent role in the debates on the desirability of codification in several Italian states before Italian unity.
The influence of Savigny and the historical school of law even transcended the boundaries of continental Europe which shared the tradition of the ius commune. The idea of a historical legal science gained support in England and in the United States as well. As early as 1848, there were lectures in the Inns of Court in London which showed the heavy influence of Savigny. Henry James Sumner Maine (1822–88) was intellectually close to the German historical school. His main work Ancient Law proposed a model of the evolution of law within society that at once tied in with Savigny’s theory and paved the way for modern sociology of law. The founding fathers of English legal history, Frederic W Maitland (1850–1905) and Frederick Pollock (1845–1937) were also influenced by the thinking of the historical school.
6. Savigny’s legacy
At the beginning of the 20th century, if not earlier, historical legal science lost its appeal. New approaches such as that of the Freirechtsschule and of Philipp Heck’s (1858–1943) interest-based jurisprudence in Germany and legal realism in America emerged. The alleged conceptualism of pandectist scholarship drew increasing criticism. The central role of history and the innate tendencies of organic evolution for the development of the law were no longer accepted.
More recently there have, however, been numerous attempts to take up the ideas of the historical school. Reinhard Zimmermann in particular proposes to take Savigny and the school he founded as models for the evolution of European private law. According to Zimmermann, legal scholarship should play a crucial role in the process that will lead to the emergence of a common system of private law for all European countries. Through historical and comparative research, legal scholarship should increase an awareness of the existing common features of the various national laws in Europe among lawyers, and strive to broaden the common ground.
Zimmermann’s approach is based on Savigny’s postulate that legislation and legal practice must be informed by thorough historical research in order to produce acceptable results. Zimmermann reminds all participants in the process of the unification of European private law of Savigny’s warning that it is dangerous to interfere with the development of the law (eg by enacting a European Civil Code) without sufficient knowledge of the historical background of the legal institutions that are the objects of legislation.
Zimmermann does not, apparently, propose a return to the methodological approach of deriving ‘guiding principles’ from legal history that can be used to form new legal rules. Zimmermann only states that a common European legal science inspired by Savigny’s ideas and combining historical and comparative research will make it possible to discuss legal issues and compare possible solutions across national borders.
This view does not contain an answer to the questions of the extent to which the legal present is dominated by the past, and of the extent to which such a domination might be acceptable. These questions are still of fundamental importance, and no definite answer has yet been given.
Milton R Konvitz, ‘Historical School of Jurisprudence’ in Encyclopedia of Philosophy, vols iii/iv (1967, reprinted 1972) 21; Horst Heinrich Jakobs, Die Begründung der geschichtlichen Rechtswissenschaft (1992); Matthias Reimann, Historische Schule und Common Law (1993); Dieter Nörr, Savignys philosophische Lehrjahre (1994); Alfons Bürge, Das französische Privatrecht im 19. Jahrhundert (2nd edn, 1995) 150 ff; Reinhard Zimmermann, ‘Savigny’s Legacy’ (1996) 112 LQR 576; Ulrich Falk, Ein Gelehrter wie Windscheid (2nd edn, 1999); Hans- Peter Haferkamp, Georg Friedrich Puchta und die Begriffsjurisprudenz (2004); Filippo Ranieri, ‘Savigny e il dibatitto italiano sulla codificazione nell’età del Risorgimento’ in Filippo Ranieri, Das Europäische Privatrecht des 19. und 20. Jahrhunderts (2007) 15 (the volume contains several other pertinent papers); Joachim Rückert, Savigny-Studien (2011).
Friedrich Carl von Savigny, Vorlesungen über juristische Methodologie 1802–1842, ed by Aldo Mazzacane (1993); Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814), reprinted in Hans Hattenhauer (ed), Thibaut und Savigny. Ihre programmatischen Schriften (2nd edn, 2002); Friedrich Carl von Savigny, ‘Über den Zweck dieser Zeitschrift’ (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 1; Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol I (1840); Bernhard Windscheid, ‘Die geschichtliche Schule in der Rechtswissenschaft’ in Bernhard Windscheid, Gesammelte Reden und Abhandlungen (1904) 66.