The Historical School of Jurisprudence

Nobody legislated the grammar of your mother tongue. No committee decided where the verb goes in a Hindi sentence; the rules grew over centuries out of the way people spoke, and a child absorbs them without a rule book. A government that imposed a new grammar by decree would fail, because language lives in the people. The historical school says that law is like language. It is not the invention of a sovereign or the conclusion of abstract reason but a product of the history and character of a particular people, and the lawyer's task is to find it, not to invent it.

Figure: Maine's movement from status to contract, with the three agencies that bring law into harmony with a progressive society: legal fictions, equity and legislation, in that order

1. Meaning and Features of the Historical School

The historical school studies law as a product of historical development. Four features define it. Law is found, not made: it exists in the consciousness of the people before any lawgiver states it. Custom is the primary source; legislation comes late and should follow, not force, the popular consciousness. Law is national and relative: each people has its own law, as it has its own language, and there is no universal law for all times and places. And the school is evolutionary: law passes through stages and can be understood only by tracing them. Against the natural law school it denied that reason alone can discover a universal law; against the analytical school it denied that law is the command of a present sovereign.

2. Background and Forerunners

The school was born in early nineteenth-century Germany, in reaction to the French Revolution and the Napoleonic Code of 1804, which embodied the belief that a rational legislator could draft a perfect code for any people. Montesquieu, in The Spirit of the Laws (1748), had argued that laws must suit the people for whom they are made and be related to climate, soil, religion, commerce and manners; both the historical and sociological schools claim him. Edmund Burke, in his Reflections on the Revolution in France (1790), attacked abstract rights and defended inherited institutions as the wisdom of generations, society being a partnership between the living, the dead and those yet to be born. Gustav Hugo, a Göttingen professor of Roman law, had already argued that law, like language and manners, develops without a legislator.

3. Savigny and the Codification Controversy of 1814

Friedrich Carl von Savigny (1779 to 1861) is the founder of the historical school. In 1814, after Napoleon's defeat, the Heidelberg professor Thibaut urged a single civil code for all the German States on the French model. Savigny replied the same year with On the Vocation of Our Age for Legislation and Jurisprudence (Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft). Law, he argued, is not made by the arbitrary will of a lawgiver but grows out of the internal, silently operating powers of the people. A code drafted before German legal science understood its own law would freeze an immature law and cut it off from the nation's living consciousness. Savigny did not reject codification for ever, only until legal science was ripe. Germany's civil code, the BGB, came into force in 1900.

4. Savigny's Theory of the Volksgeist

Law, for Savigny, like language, manners and constitution, has a character peculiar to each people, springing from their common consciousness. This common consciousness came to be called the Volksgeist. The idea is Savigny's; the word was brought into wide use by his follower Puchta, a point examiners like to test. Because law is bound up with the nation's life, it cannot be borrowed or imposed from outside.

Savigny traced two stages. At first law lives directly in the people's consciousness as custom. As society grows complex, it passes into the keeping of lawyers, who represent the people in this function and give it technical form. Law then has a political element (rooted in the general life of the nation) and a technical element (worked out by jurists). Legislation comes last and should only consolidate what custom and juristic science have produced.

5. The Roman Law Paradox

If each people's law springs from its own Volksgeist, German law should have been sought in native Germanic custom. Yet Savigny was above all a Romanist. His History of Roman Law in the Middle Ages and his System of Modern Roman Law (System des heutigen römischen Rechts, first volume 1840) championed the reception of Roman law as the basis of German legal science. His answer was that Roman law, received over centuries, had become part of German legal consciousness. Critics, including the Germanists within the school, replied that this concedes what Savigny denied: a people can adopt law from another civilisation. His early classic, The Law of Possession (1803), is discussed in Note 30.

6. Puchta: Developing the Volksgeist

Georg Friedrich Puchta (1798 to 1846), Savigny's leading disciple and successor in the Berlin chair, systematised the school. He made the term Volksgeist current and developed the theory of customary law as the direct expression of the people's conviction. He gave a fuller place to the State, explaining law as emerging from the relation between the individual will and the general will of the community, and a larger role to the jurist, who draws legal rules out of the national conviction and arranges them in a logical system. That system, a 'genealogy of concepts', became the jurisprudence of concepts (Begriffsjurisprudenz), deducing answers from abstract concepts rather than social needs. Jhering later turned against it and founded the sociological approach (Note 14). So the school that began by rooting law in the people's life ended in an abstract conceptualism far from that life.

7. Sir Henry Maine and the Comparative Method

Sir Henry Maine (1822 to 1888) brought the historical approach to England and transformed it. Where Savigny looked inward at one nation, Maine's Ancient Law (1861) used the comparative method, studying the early law of Rome, Greece, the Germanic peoples, England and above all India, to find common patterns of development. He was Law Member of the Governor-General's Council in India from 1862 to 1869, during the great codifying era; his Oxford lectures comparing Indian and European village life appeared as Village Communities in the East and West (1871); and his Early History of Institutions (1875) contains his Ranjit Singh objection to Austin (Note 11).

Unlike Savigny, Maine did not distrust legislation: he saw it as the most powerful agency of change in a progressive society and was himself a legislator. Nor did he believe in a mysterious national spirit; he looked for observable patterns of evolution. He is the founder of historical and comparative jurisprudence and a forerunner of legal anthropology.

8. Maine's Stages of Legal Development

In the earliest stage law consists of the personal judgments of a king, believed divinely inspired; Maine called them themistes, after Themis, the Greek goddess of justice. Next, power passes to an aristocracy (priestly in the East, political or military in the West), which holds customary law as its monopoly. Then custom is published in codes, such as the Roman Twelve Tables. Here societies divide. Most remain static; a few progressive societies develop their law further through three agencies, in a fixed order.

A legal fiction, for Maine, is any assumption that conceals a change in a rule of law: the words stay the same while their working alters. Maine even treated the doctrine that judges only declare existing law as a fiction. Fictions suit early societies that fear open change. Equity openly claims to override the old law by a higher principle. Legislation is the most candid and powerful agency, deriving its force from the legislature's authority. Because social necessities and opinion always run ahead of law, these agencies keep bringing law back into harmony with society.

9. From Status to Contract

Maine's most famous conclusion ends the fifth chapter of Ancient Law: 'the movement of the progressive societies has hitherto been a movement from Status to Contract'. In early society the unit is the family, and a person's rights and duties are fixed by the position into which he is born: son under the father's power (patria potestas), wife, slave, member of a caste. This is status, assigned not chosen. As society progresses, the individual replaces the family as the legal unit, and his rights and duties come to rest on his own free agreement, on contract. The word hitherto matters: Maine described the movement up to his own time, in progressive societies, and did not lay down a law of history for all time.

10. From Contract Back to Status?

In the twentieth century writers noticed a reverse movement. A worker's position depends less on his individual contract than on labour statutes and collective agreements; a consumer is protected by consumer law whatever the contract says; a tenant by rent control. Most everyday contracts are standard-form contracts dictated by the stronger party. The law responds by assigning a protective status to the weaker party (employee, consumer, tenant), a movement often summarised as from contract to status, though the new status is chosen by law for protection, not assigned by birth.

11. The English Historical Jurists

Maine's method was carried forward by English legal historians. Sir Frederick Pollock and F.W. Maitland wrote The History of English Law before the Time of Edward I (1895), still the classic account; Pollock also edited Maine's Ancient Law. Sir Paul Vinogradoff, a Russian-born scholar who settled in Oxford, wrote Villainage in England (1892) and Outlines of Historical Jurisprudence. Unlike the German school, they were documentary historians, not romantic nationalists.

12. Savigny, Puchta and Maine Compared

For a fuller comparison see Note 67 (Savigny versus Maine), and for the school against its rivals, Notes 56 and 57.

13. Custom in Indian Law

India, with its many communities and personal laws, is the natural laboratory of the historical school. Section 3(a) of the Hindu Marriage Act 1955 recognises a custom continuously and uniformly observed for a long time, provided it is certain, not unreasonable and not opposed to public policy. But under Art. 13(3)(a) 'law' includes any custom or usage having the force of law, so a custom that violates fundamental rights is void.

14. Merits and Criticisms of the Historical School

The school corrected the natural lawyers' belief in a timeless code and the analysts' neglect of history. It rooted law in the life of society, gave custom its proper place, and warned against imposing abstract law on an unready people, a warning still relevant to legal transplants. Maine's comparative method founded legal anthropology.

15. Frequently Asked Questions

Q. What is the central idea of the historical school?
A. That law is found, not made. It grows out of the custom and common consciousness of a people, like their language, and the legislator's task is to declare it, not to invent it.

Q. Why did Savigny oppose codification in 1814?
A. Because German legal science was not yet mature. A premature code would freeze an undeveloped law and cut it off from the living consciousness of the people. He accepted that codification might come when the law was ripe.

Q. What is the contradiction in Savigny's work?
A. He taught that each people's law springs from its own Volksgeist, yet championed the reception of Roman law, a foreign system, as the basis of German law, most fully in his System of Modern Roman Law (1840).

Q. Is the movement from status to contract still true?
A. Maine said the movement had hitherto been from status to contract. In the welfare State the trend has partly reversed: labour, consumer and tenancy laws give protective status to weaker parties, and courts refuse to enforce unconscionable standard-form terms, as in Brojo Nath Ganguly (1986).

See also: Note 11 (analytical school), Note 14 (sociological school), Note 25 (custom), Note 53 (law versus custom), Note 56 (analytical versus historical), Note 57 (historical versus sociological), Note 67 (Savigny versus Maine).