Historical school of law
The historical school of law (or historical school of jurisprudence ) is a legal curriculum that was primarily founded at the beginning of the 19th century by Friedrich Carl von Savigny . It took place against the background of the cultural-historical epochs of Romanticism and Classicism and turned away from the enlightened law of reason that had dominated the previous two centuries. The school discovered the historicity of law, which mainly had an impact on working with the received Roman law . As a conception of a philosophical science, it also stands in the field of tension between natural law and positive law , insofar as it also positioned itself in defense against state legislation. In terms of the legal system, the school primarily followed the Pandect Law , the scientific starting point of today's German Civil Code (BGB) .
The pioneers and protagonists of the historical school of law were on the one hand the dominant Romanists with Savigny, Hugo and Puchta , on the other hand the Germanists with Eichhorn , Grimm and Beseler . The dispute between the two wings over Roman law was of a national political nature. Resistance to the school arose from the camps of the Hegelians and the practitioners.
Concept and meaning
At the center of the idea of the historical school of law was a legal development that was based on a communal culture and history-dependent consciousness, which Savigny called the Volksgeist - a term that Hegel already used in his view of world history. Savigny expressed his discomfort with the dogmatics of the law of reason, shaped by natural law, which had shaped the two preceding Centennies, the 17th and 18th centuries, in the form of authoritarian mechanical legislation. This means that he turned away from the knowledge that law is timeless and absolutely valid. Rather, law must be understood as a historical product, the source of which is the “will of the people”. The awakening of the awareness of the historicity of one's own existence meant for jurisprudence that the relationship of a legal norm (the “ought”) to the social reality (the “historical being”) became aware. The discovery of the understanding of people as a cultural nation and its epochal creations as part of the overall culture, called Beseler the popular law , Hugo the jurists' law . Both were important pioneers and co-founders of the historical school of law.
Wieacker interprets the law as part of overall culture and legal history as part of the history of overall culture in the light of Savigny's commitment to Herder's philosophy of history . According to both views, the peoples carried out a "development plan for human history" which aims at the "development of full humanity". The evolutionary theoretical character of a “training” and a “development plan” leads Wesel to the realization that for Savigny law is the product of “the silent work of a folk spirit” which develops “organically” - like a language. He describes this approach, which is revolutionary for law, as evolutionary theory, typical of the 19th century insofar as Darwin , Marx and Durkheim approached and proceeded methodologically similar for their respective disciplines. Since law is Savigny's culture and culture is “spiritual tradition” and, with regard to Roman law, even “literary tradition”, Wieacker warns against considering Savigny's concept of folk spirit outside of the cultural context in order to prevent misunderstandings . A (ostensibly obvious) biological or sociological contextualization of the term would fail and lead to programmatic inconsistencies.
According to Savigny, customary law forms the base of a popular belief . It is supported by science and legal practice , but only in an accompanying sense. Savigny was particularly contentious about the importance of legislation for the legal consciousness of a people, in particular with an intimate confidante of the Weimar classics and (anti-tradition) rationalist , Thibaut . By means of a pamphlet directed against Thibaut, Savigny campaigned in 1814 for understanding not to want to answer the impending political restoration with a codification under civil law and still believing that a catalog of laws fulfilled “the living political possession of the nation” ( codification dispute ). The will of the people should not be interpreted from a democratic and thus socially anchored understanding of law, but pushed for the supporting role of the law-making lawyer who had to use the freedom of action that opened up. With this, Savigny expressed his disconcertment with state (especially social) legislation and emphasized that legal positivist ideas should not replace the legislature as a source of law. Positive state law is precisely not free from state arbitrariness and also requires legislation as a necessity.
According to the basic statement of the historical school of law, the law is not an arbitrary set of provisions created by the legislature, but a bundle of convictions that are “alive in the consciousness of the people”, similar to the language or the customs and traditions of a people. Such legal beliefs can indeed be upheld by a legislator, but developed and changed "organically over time" and without his intervention. The practical necessities and needs of the affected people, which are subject to change, are decisive. In a developed legal system - in the sense of a social division of labor - the legal profession would have the task of representing the people's consciousness by scientifically explaining the applicable law and adapting it to change in order to be able to be applied.
Savigny in particular criticized the statics of positive legislation. Based on his model of the largely unlawful classical Roman jurisprudence, he objected to the most recent large-scale natural law codifications, such as the Code civil , which he considered to be contemporary and inferior due to its fundamental revolutionary attitude, slightly higher than the old Prussian land law , because he opposed it they incorporate the usefulness of the Enlightenment , hindering the new spirit of (university) renewal. The historical school of law was ultimately caught in the area of tension in the duel between Thibaut and Savigny, whose basic decisions differed. One was a representative of democratic politics in the spirit of a young national feeling, the other a representative of aristocratic culture, which has grown out of European tradition and is repeated in the literature of the Weimar classics.
Romanists and Germanists
Within the historical school of law, the Romanists competed with the Germanists . The Romanists took the view that the reception of Roman law corresponded to the popular spirit . The orientation to the traditional ancient Roman law makes it possible to follow legal principles that have not been practiced so far . The representation of private law took place in pandect textbooks. Important pandectists were Rudolf von Jhering , Georg Arnold Heise , Adolph von Vangerow and Bernhard Windscheid . The Germanists like Karl Friedrich Eichhorn , Jacob Grimm , Georg Beseler or Otto von Gierke saw medieval German law as being in line with the German national spirit even before it was received.
The historical school of law had a decisive influence on German law in the 19th century. Historically, it followed on from the usus modernus pandectarum , whose first scientific efforts in the 18th century sought solutions that sought to reconcile a whole mixture of legal influences; So from the very differently received Roman law, the canon law and local customary law. The school of law turned against this as well as against currents in natural law. Savigny preferred Roman law in its pure and unadulterated form, because due to its high authority it was supposed to do justice to the educational standards of the time and the value system of the Weimar Classics . He felt that the Usus modernus was too influenced by the medieval post-glossators and their mos italicus . Under Savigny's successors Georg Friedrich Puchta and Bernhard Windscheid, the Romance branch developed into pandect science, which was based on a methodical minutiae on the definitions of terms ( term jurisprudence ). Rudolf von Jhering, in turn, turned away from this method in order to examine the real social requirements in legal analysis. Often his work is summarized under the term “sociological law school”.
Hegel's philosophy of state and law was a powerful opponent of the historical school in the areas of public law; powerful because Hegel's “right” had become the state philosophy of the Prussian monarchy and, through its state business intimate Julius Stahl, dominated the theory of the constitutional state and canon law in the Vormärz and in the Prussian reaction. If it also managed to assert itself in the dogmatics of criminal law - in particular against the Kantianism that ultimately prevailed there - it was not able to counter the strength of the civil law theory of Savigny's legal school (especially in the lining by Puchta). Nevertheless, through the influence of the Lübeck appellate court president J. Kierulff, the criticism of the Hegelians was able to exhort the teachers of the historical law school to "practical responsibility". Even Julius von Kirchmann held in the revolutionary year of 1848 a highly acclaimed speech that was directed against him as consumed deemed Pandectist entitled: The worthlessness of jurisprudence as a science . This speech ultimately stood at the end of the historical school of law, which, with its romantic-scientific aspects, was increasingly viewed as speculative and incompatible with judicial policy practice. The national unity movement went beyond Kirchmann's demand for minimal legislation with the greatest possible discretion and postulated once again codifications until a uniform code of law with the BGB became a reality at the end of the century.
While the jurisprudence based on the historical school of law was still of great influence and benefit for the civil code completed in 1896, its direct influence increasingly disappeared in the 20th century. The question of how the law develops out of the people's spirit was discussed again in 1910 by lawyers. Hans Kelsen derived his “Allgemeine Staatslehre” as a purely legal theory of the positive state from the historical school of the first third of the 19th century.
Theoretical approaches to criticism
Karl Marx criticized Gustav von Hugo as the "grandfather" of the historical school of law. He accused him of replacing the criticism of reason of the existing conditions by trying to justify the positive through its unreasonableness.
Max Weber criticizes Savigny, insofar as he was taken as a model by the economist Wilhelm Roscher , in particular for the formation of the term “ Volksgeist ” as a hypostatization of the necessary individual character of every truly popular right into a unified metaphysical essence and real reason for all individual cultural expressions of a people.
Franz Wieacker notes critically that the historical school “remained committed to the age of reason in system and method” and “in its legal ethics to Kant,” which is why it “could not be a truly historical legal conception.” The problem is that the popular term used ( Volksgeist ) is not used empirically-sociologically, but metaphysically and culturally-philosophically. Thus the school of law itself was "an expression and means of the break with history", "which is characteristic of the 19th century."
- Gustav von Hugo: Textbook of a civilistic course , I: Enc., 1792, 81835, II: Natural law, 1798, 41819, III: Gesch. d. Rom. Right, 1790, 111832, IV: Today's Rom. Law, 1790, 71826, V: Phil. Enc. 1802, VI: Civilist. Litterair Gesch. 1812, 31830, VII: Chrestomathie, 1802, textbook a. Chrestomathy d. Classical Pandect Law, 1st (only) volume, 1790.
- Friedrich Carl von Savigny: From the profession of our time for legislation and jurisprudence , Mohr and Zimmer, Heidelberg, 1814.
- Hans-Peter Haferkamp : The Historical School of Law , Frankfurt (Main) 2018, ISBN 978-3-465-04332-4 .
- Hans Hattenhauer : Thibaut and Savigny. Your programmatic writings. Vahlen, Munich 1973; 2nd edition 2002, ISBN 3-8006-2783-3 .
- Paul Koschaker : Europe and Roman law . 4th edition, Munich 1966. pp. 254-290.
- Hans Schlosser : Fundamentals of the modern history of private law. Legal developments in a European context . 10th edition. Heidelberg 2005. pp. 143-169.
- Jan Schröder : Law as a science. History of legal methodology in modern times (1500–1933). 2nd edition, Beck, Munich 2012, ISBN 978-3-406-63011-8 .
- Jan Schröder: Law as a science. History of the legal method from humanism to the historical school (1500–1850). Beck, Munich 2001, ISBN 978-3-406-47944-1 . P. 191 ff.
- Gunter Wesener : On the beginnings of the historical school of law in the Romanesque direction in Austria, primarily on Ludwig Arndts von Arnesberg (1803–1878) , in: Fundamentals of Austrian legal culture. Festschrift for Werner Ogris on his 75th birthday (Vienna-Cologne-Weimar 2010) pp. 577–599.
- Franz Wieacker : History of private law in modern times with special consideration of the German development . 2nd Edition. Göttingen 1967. pp. 348-430.
- Literature from and about historical law schools in the catalog of the German National Library
- Hasso Hofmann: Civil law at the beginning of Radbruch's studies. From “today's Roman law” to the emergence of the BGB , pp. 1–12.
- Thomas Rüfner : Concise Dictionary of European Private Law, 2009: Historical School of Law . Retrieved June 6, 2020.
- Friedrich Carl von Savigny : From the profession of our time for legislation and jurisprudence , Heidelberg 1814
- Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 344. Short summary afterwards: Hegel develops the law as a form of the “objective spirit” in three stages - 1.) thesis, 2.) antithesis, 3.) synthesis. Stage 1 (thesis): formally objective, abstract law (such as property, contract, offense). In a contemporary context, this is based on ancient Roman law. Stage 2 (antithesis): the people's spirit becomes pious in Christianity, the law becomes moral. From this opposition to one another a togetherness emerges, 3.) Stage 3 (synthesis): Morality (family, society, state). See Basics of the Philosophy of Law .
- Helmut Schelsky : Loneliness and Freedom. Idea and shape of the German university and its reforms . 2nd edition expanded by a "supplement 1970", Bertelsmann-Universitätsverlag, Düsseldorf 1971, ISBN 978-3-571-09167-7 (first edition: Rowohlt ( rowohlts deutsche enzyklopädie , volume 171/172), Reinbek near Hamburg 1963) . P. 31 ff .; 66 ff.
- Franz Wieacker : History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967. Sections 20, 21.
- Arno Buschmann: Natural law and historical law. Gustav Hugo's legal philosophy and the beginnings of historical jurisprudence , in: Okko Behrends , Dietmar von der Pfordten , Eva Schumann , Christiane Wendehorst (eds.), Elementa iuris , series of publications by the Institute for Legal History, Legal Philosophy and Comparative Law, Nomos, Volume 1, 2009, ISBN 978-3-8329-4473-5 , pp. 17-40.
- Franz Wieacker: History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967. p. 385.
- Uwe Wesel: History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 344.
- Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . Pp. 61-65.
- Friedrich Carl von Savigny: From the profession of our time for legislation and jurisprudence , 1814 ( digitized and full text in the German text archive ), p. 14.
- Joachim Rückert : The historical school of law after 200 years - myth, legend, message. In: JZ 2010, pp. 1 ff. (5).
- strongly emphasized that the historical school of law uses a legal positivist legal term, cf. Jan Schröder : Law as a science. History of legal methodology in modern times (1500-1933). 2nd edition, Beck, Munich 2012, ISBN 978-3-406-63011-8 . P. 194 ff.
- Reinhard Zimmermann : Today's Law, Roman Law and Today's Roman Law . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 1-39 (11).
- Stintzing : History of German Law. Edited and continued by Ernst Landsberg . Volume III 2. Oldenbourg, Munich 1880-1910 a. Reprinted by Scientia, Aalen 1978. p. 492 ff.
- Stintzing: History of German Law. Edited and continued by Ernst Landsberg. Volume III 2. Oldenbourg, Munich 1880-1910 a. Reprinted by Scientia, Aalen 1978. P. 739 ff.
- Hans Welzel : Natural law and material justice . Göttingen, 1951. p. 185.
- Erik Wolf : Great legal thinkers in German intellectual history. 1939, 4th edition Tübingen 1963. P. 625 f.
- H. Kantorowicz: Volksgeist and historical legal school
- Manfred Pascher: Introduction to Neo-Kantianism. Munich 1997. UTB 1962. p. 155.
- Karl Marx : The philosophical manifesto of the historical school of law. P. 4f. Digital Library Volume 11: Marx / Engels, p. 10000 (cf. MEW Vol. 1, p. 79 f.): "Hugo misinterprets the master Kant to the effect that, because we cannot know the true, we consequently the untrue, if it only exists, let it happen for all. Hugo is a skeptic about the essential nature of things in order to be a Hoffmann against their chance appearance. He is therefore by no means trying to prove that the positive is reasonable; he tries to prove that the positive is not reasonable. With self-satisfied industry he brings in reasons from all corners of the world in order to increase the evidence that no reasonable necessity animates the positive institutions, e.g. property, state constitution, marriage, etc., that they even contradict reason, that at most one can talk for and against . One must by no means accuse this method of its accidental individuality; it is rather the method of his principle; it is the frank, the naive, the ruthless method of the historical school. If the positive is to hold because it is positive, then I have to prove that the positive is not because it is reasonable, and how could I be more evident than by showing that the unreasonable is positive and the positive is unreasonable? that the positive does not exist through reason but in spite of reason? If reason were the measure of the positive, the positive would not be the measure of reason. "
- Max Weber : Roscher and Knies and the logical problems of historical economics 1903-06 , In: Collected essays on the science of science. Tübingen 7th edition 1988, UTB1492
- Ernst-Wolfgang Böckenförde : The historical school of law and the problem of the historicity of law . Schwabe, Basel, Stuttgart 1965. p. 24.