Key Principles of the Historical School of Jurisprudence

Basic Tenets of the Historical School of Jurisprudence

The Historical School of Jurisprudence, primarily developed in Germany in the 19th century, emphasizes the historical and evolutionary development of law. This school of thought rejects the idea that law is the product of reason or abstract principles, as propounded by the Natural Law School, and instead views law as a product of the customs, traditions, and collective consciousness of a society.

Below are the basic tenets of the Historical School:

1. Law as a Product of History and Tradition:

• The Historical School argues that law is not a creation of legislative enactments or philosophical reasoning but emerges organically from the historical experiences and social practices of a people. Law is shaped by the unique history, customs, and values of a society.

• The exponents of this school believe that legal institutions evolve in accordance with the social, economic, and political conditions of the time and place, making law an expression of the people’s collective spirit or consciousness, which is referred to as Volksgeist.

2. Emphasis on the Volksgeist (National Spirit):

• One of the most crucial concepts in the Historical School is Volksgeist or the "national spirit." According to Friedrich Carl von Savigny, a key figure in the Historical School, law develops from the national consciousness and reflects the values, customs, and traditions of the people. This collective consciousness governs the evolution of legal norms.

• Law is seen as an organic entity that grows, strengthens, and declines along with the people and the culture. As such, law is deeply connected to the national character and should not be imposed from external sources.

3. Rejection of Abstract Theories of Law:

• The Historical School rejects the rationalist and universalistic approach of the Natural Law School, which holds that law can be derived from abstract principles of reason. In contrast, the Historical School believes that law is specific to the customs of a particular society at a given time.

• It argues that law cannot be created by a legislator's will or imposed arbitrarily through intellectual reasoning, as was proposed by the Natural Law thinkers of the Enlightenment era.

4. Gradual Evolution of Law:

• Law, according to the Historical School, is not static but evolves gradually. It grows organically with the development of society. Initially, law develops spontaneously in response to the needs of the community, often in the form of customs and traditions, which eventually become formalized into legal systems.

• The Historical School also emphasizes that law develops in stages, reflecting the stages of societal development—from primitive customary law to more complex legal systems with specialized rules.

5. Law as a Social Institution:

• Law is viewed as an integral part of society and is influenced by the social, economic, and political environment. This perspective places significant importance on the study of legal history and the social forces that shape legal systems.

• The Historical School contends that to understand the law, it is essential to study the historical context in which legal institutions arose and evolved.

6. Role of Jurists and Scholars:

• The Historical School places great importance on jurists, legal scholars, and historians in the development of law. These experts are seen as the custodians of the Volksgeist and the role of the legal profession is to discover, interpret, and preserve the law that arises from the traditions and customs of the people.

• Jurists are regarded not as lawmakers but as interpreters of the law that already exists in the collective consciousness of the people.

7. Critique of Codification:

• Figures like Savigny were opposed to the codification of laws in the early stages of a nation's legal development. Savigny, for instance, opposed the idea of codify in German law based on the French Napoleonic Code, arguing that the law must first mature and be deeply rooted in the nation’s traditions before it can be formally codified.

• Codification, in the view of Historical School jurists, should come only when a nation has reached a certain level of legal and cultural maturity.

8. Historical Jurisprudence versus Legal History:

• It is essential to differentiate between legal history and historical jurisprudence. While legal history merely records the development of legal systems and institutions over time, historical jurisprudence goes a step further by analyzing the factors, circumstances, and social forces responsible for the development of law.

• Historical jurisprudence seeks to understand not just the "what" but also the "why" and "how" of the evolution of legal principles and institutions.

Conclusion:

The Historical School of Jurisprudence brought a significant shift in legal thought by focusing on the organic and historical development of law. It challenged the rationalistic and abstract approaches of previous schools of thought, emphasizing that law is deeply rooted in the traditions, customs, and collective consciousness of the people. Law, according to this school, is an evolving social institution that grows in response to the needs and circumstances of a particular community