Analytical School versus Historical School

A botanist can cut a cross-section of an old banyan and label every layer of the trunk as it exists today. A village elder can tell you when it was planted and which storms bent it. One gives structure, the other biography. The analytical jurist is the botanist, cutting the law of a developed State into sovereign, command, duty, right and sanction. The historical jurist is the elder, insisting that today's law cannot be understood without the custom and national life behind it. The schools are treated in Note 11 and Note 13; this note is about where and why they collide.

Figure: The analytical school's snapshot of present legal concepts (right and duty, ownership, sovereign and command) set beside the historical school's timeline of law growing from custom towards statute

1. Two Reactions to the Same Age

Both schools arose in the early nineteenth century against the Enlightenment belief that a universal code could be deduced from reason and imposed on any nation. They turned away in opposite directions. Bentham and Austin said the jurist should study only positive law, set by a determinate human superior; whether it is good belongs to the science of legislation. Austin's Province of Jurisprudence Determined (1832) became the programme of English legal thought, refined by Holland (Elements of Jurisprudence, 1880) and Salmond (Jurisprudence, 1902). Savigny also rejected the rationalist code, but not because it confused law with morals. His objection was that it treated law as something a legislator could invent at his desk, when law, like language, belongs to a particular people and grows unconsciously. The analytical jurist replaced reason with the sovereign; the historical jurist replaced it with the people.

The analytical programme deserves a closer look, because it explains why history had no place in it. Austin wanted a general jurisprudence: the principles, notions and distinctions common to the ampler and maturer systems of law, such as right, duty, sanction, person and property. Such a study needs precise definitions, and precision is easiest if law is taken as a finished product at one moment. Holland narrowed the subject further to a formal science of the relations that law regulates. Salmond softened the command theory by defining law as the body of principles recognised and applied by the State in the administration of justice, which shifts attention from the sovereign to the courts. None of the three denied that law has a history. They simply held that history is a different inquiry from analysis.

2. Forerunners and Two Branches

Precursors

Montesquieu, in The Spirit of the Laws (1748), argued that laws must suit the climate, religion, customs and character of the nation. Edmund Burke, in his Reflections on the Revolution in France (1790), defended inherited institutions against abstract schemes of reform. Gustav Hugo at Göttingen had already compared law to language and manners.

The German branch: Savigny and Puchta

The trigger was the codification controversy of 1814. After Napoleon's defeat, A.F.J. Thibaut of Heidelberg proposed a single civil code for the German states. Savigny replied in On the Vocation of Our Age for Legislation and Jurisprudence (1814): Germany was not ready, legal science had not yet understood its inherited law, and a premature code would freeze errors and cut law off from its living source in the common consciousness of the people. Georg Friedrich Puchta, his pupil, popularised the term Volksgeist, treated customary law as the primary expression of the people's spirit, and built a tightly ordered system of concepts. Ironically, the German school that began by attacking abstract reason produced the Pandectist jurisprudence of concepts, as analytical as Austin.

The English branch: Maine

Sir Henry Maine shares the historical method but not the German distrust of legislation. Ancient Law (1861) used a comparative method across Roman, Hindu and early English law. Maine distinguished static societies, which never move beyond codified custom, from progressive ones, which keep law in step with society through three agencies in historical order: legal fictions, equity and legislation. As Law Member in India from 1862 to 1869 he took part in Indian codification himself. Grouping Maine with Savigny as an enemy of legislation is a serious error (see Note 67).

Maine also traced how early law developed before any legislature existed. In the first stage, rulers pronounced judgments believed to be divinely inspired, which he called themistes. These hardened into customary law, whose knowledge then passed into the hands of a privileged minority, a priestly or aristocratic class. Finally came the ancient codes, such as the Roman Twelve Tables, which published the custom. Static societies stopped at this point; progressive societies moved on through fictions, equity and legislation. This sequence is a historical account of law, yet it is built from comparison and evidence rather than from a mystical national spirit, which is why Maine is also read as a forerunner of the sociological approach.

3. Where the Schools Collide

Notice what is not on the list. The schools do not divide into pro-legislation and anti-legislation camps, since Maine favoured legislation. Nor is the historical school a school of 'ought': Savigny and Maine described law rather than measuring it against justice, which is why Salmond could treat analytical and historical jurisprudence as two branches of one science.

4. Classic Definitions

5. The Two Schools Compared

6. Indian Illustrations

No Indian court has adopted either school; the following only illustrate the tension.

The Hindu Code debate is a second illustration. Opponents of the Hindu Code Bill argued that personal law had grown from centuries of usage and should not be remade by a legislature, a Savignian argument. The reformers treated legislation as the engine of social progress, closer to Bentham and to Maine. The reform was enacted in parts: the Hindu Marriage Act 1955 and the Hindu Succession, Minority and Guardianship, and Adoptions and Maintenance Acts of 1956.

7. Criticisms of Each School

Against the analytical school: it freezes the legal system at one moment and cannot explain where ownership or contract came from. Its command model struggles with custom, with early societies that had no determinate sovereign (Maine himself pointed to rulers who took taxes but made no laws), and with constitutional and international law. By excluding history it also loses the best guide to the purpose of an old rule, which is often what a court needs when it interprets that rule.

Against the historical school: the Volksgeist is vague and romantic; a people rarely has one consciousness, and customs often reflect the interests of a dominant group. Savigny's own field undercuts him, because Germany had received Roman law, hardly a product of the German spirit. The German branch was conservative, while much reform, from abolishing slavery to women's rights, came by legislation against custom. And Maine's trend, qualified by his careful 'hitherto', has been partly reversed: labour law, consumer protection and standard-form contracts attach rights to status once again.

What each got right. The analytical school gave lawyers a precise vocabulary that every later theory, from Hohfeld to Hart, has used. The historical school established that law cannot be understood as the arbitrary will of a ruler, that custom and social habit shape the law that actually works, and that a code imposed without regard to a people's institutions is likely to fail. Later jurists kept both lessons rather than choosing one school.

8. Frequently Asked Questions

Q. Did the historical school oppose all legislation?
A. No. Savigny and Puchta opposed a premature German code in 1814. Maine, the English representative of the school, treated legislation as one of the three agencies by which progressive societies bring law into line with social needs.

Q. What is the key weakness of the Volksgeist theory?
A. It assumes a single, unified consciousness of the people. Customs are often shaped by powerful groups, and Germany itself had adopted Roman law, which did not spring from the German national spirit.

Q. How did Austin treat custom?
A. As positive morality until it is adopted by the sovereign or by courts acting under his authority; only then does it become positive law. The historical school reverses this: custom is law first, and legislation only states it.

See also: Note 11 (analytical school), Note 13 (historical school), Note 25 (custom), Note 53 (law versus custom), Note 58 (analytical versus sociological), Note 67 (Savigny versus Maine).