Historical School | Jurisprudence

                                          Historical School | Jurisprudence

By Dr. Jaba Shadrack, University of Dar es Salaam, Department of Public Law

           1. Introduction: timeline and conceptual issues  

• The historical school is also known as the evolutionary or continental, or genetic school of jurisprudence or comparative ethnological jurisprudence
• The historical school first arose in the German romantic era between 1880 (the nineteenth century) and 1920 (after World War I). Then, it was succeeded by the sociological school.
• Romanticism/romantic period (1798-1837) was influenced by the French Revolution (5 May 1789 – 9 November 1799) – characterised, among other things, by massive social changes, intellectual movements and the emergence of research universities (as opposed to teaching universities).
• The historical school was part of that century’s turn to history in legal scholarship and across most humanities, whereby law was treated as a product of the past (history) or evolution process. Therefore, historical jurisprudence was the legal version of this broader trend.
•  According to Peter Stein (Cambridge Professor), historical school is the title given to a group of theories that explain law as the product of predetermined patterns of change based on socio-economic change.
• In other words, historical jurisprudence is ‘concerned with theories of legal evolution’. As Stein also points out, legal evolution was closely associated with Roman law.
• Historical jurisprudence was founded on the connection between law and socio-economic circumstances.

These theories of legal evolution hold that law develops on predetermined lines from its internal forces. The implication was that changes should be left to these natural social mechanisms and that reform legislation and codification were contrary to the nature of law.

•   The law does not fall from the sky. It tends to develop as an expression of a society’s peculiar culture and values.
•   The followers of this school argued that law is found, not made.
•   The law is the exaggerative form of social, custom, economic needs, conventions, religious principles, and relations of the people with society.

Section 2(3) of the Judicature and Application of Laws (Cap. 358) provides: “… said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary.”

•   James Carter, an American jurist, argued that law existed before the political revolution or consciousness. Therefore, it must be traced and identified with the customs in a given society.
•    The law is thought to be not merely ongoing; it has a history; it constitutes a tradition.
•    Society is the centre of gravity of law, and both evolve in sync.

Reimann notes, “Historical jurisprudence treated the law as inevitably a product of the past. Of course, jurists have recognised that the law, like other social phenomena, has a history. But for historical jurisprudence, that history was not merely the background of the status quo; instead, it was an integral part of its present State. And, of course, all legal historians have explored the law’s past. But for historical jurisprudence, legal history was not an end in itself; instead, it was the principal means through which even present-day law must be understood.”

•     The (past) history of a legal system embodies basic norms which not only do govern but also, because of their historicity, should govern subsequent developments and which bind the sovereign political authority itself.

 2.       Origins of the historical school | Why the historical school?  

• · Before the seventeenth century, Western philosophers remained adherents either of natural law theory, positivism, or an uneasy mixture of the two. Below is the context for the emergence of the historical school:
•     The historical school emerged as a reaction against new legal theories that had occurred with the so-called the Age of Enlightenment or Age of Reason that found expression in the French Revolution, i.e., the revolt against traditions, among other things. These theories included:

-    Rationalism and individualism, and utilitarianism (philosophical level)

-   Democracy and public opinion as the source of governmental legitimacy (political level)

-   Primacy of legislation as a source of law and the priority of human rights over traditional legal rights and duties (constitutional and legal levels)

•   · The historical school came as a reaction toward natural law and legal positivism (analytical School of jurisprudence/Austinian School - established by John Austin). Historical jurisprudence rejected the notion that law is either a timeless and logical system (natural law) or simply a command of the sovereign (analytical jurisprudence/legal positivism).
• · The historical School of Jurisprudence focuses on the formation of law by people through customs and habits and not by some divine origin or superior authority (God, judges, State and legislators). 
• · The eighteenth-century natural law tradition relied on abstract reason and metaphysical speculation. For instance, natural law relied on reasoning/sense as the basis of law and believed that certain principles of universal application could be rationally derived without considering social, historical and other factors.
• · The historical school was based on the concept of science, which renounced philosophical speculation and deductive reasoning from absolutes and which required that knowledge be inductively derived from the observation of positive data/historical data.  
•  · The historical school attacked the ‘Analytical positivism’, which constructed a soul-less barren sovereign-made-coercive law devoid of moral and cultural values.
•   · The Historical School opposed the French Revolution because it was a product of natural law philosophy, which advocated for liberty, equality and fraternity of men and nations.
• ·  The historical school was partly a result of the surge of nationalism at the end of the eighteenth century.

-   Napoleon Bonaparte had conquered many parts of German States and had imposed Napoleon Code - the French system on alien Germans. Thus, French Legal System based on French Legal History and requirement was irritating and inconvenient to German people, whose law and legal system was different from that of the French. The slogan ‘Germany for the Germans’ became popular against foreign domination. It gave the German people a sense of unity and identity for legal and political unification.

- Hence, a movement grew up which was romantic, irrational and strongly nationalistic and which found its expression in art, literature, history, political theory and law.

•     The historical school emerged to partly embrace Darwin’s evolutionary theory in the “Origin of Species”, which altered the character of scientific speculation during that period.
• As it ultimately developed, the historical school of jurisprudence viewed the law as an evolutionary process. It essentially adopted an evolutionary perspective to unravel the history of particular legal institutions or dissect the nature of law itself.
•      Some of Friedrich Carl von Savigny’s successors embraced an evolutionary understanding of law more openly, especially in the closing decades of the nineteenth century under the influence of Charles Darwin.

 3.       Development of the historical school in continental Europe and America

Historical jurisprudence was not monolithic but came in a variety of forms. From its first appearance in Germany, it soon spread to the US and other continental European countries (Austria, France, Hungary, Italy, and Russia).

France

• ·  In the sixteenth century, most prominently in France, a historicist school of legal thought started to evolve in its nascent stage. 
• ·  The movement held up the ancient Frankish customary law as a model to be opposed to "foreign" Romanist and Canonist legal traditions (Roman Code and Cannon Law). This nationalist historicism was invoked against royal innovations.

Frankish customary law, a by-product of the Francia/franks/Frankish Kingdom or Frankland, the largest post-Roman Realm in Western Europe. The franks, Germanic-speaking people/barbaric tribe along the Rhine River, which invaded the Western Roman Empire in the fifteenth century.

England

• · Traditional historical jurisprudence, which attempted to discover the nature of the legal institutions produced by successive stages of social development, is associated with English scholars.
• ·   The turn to history worked its way slowly to England. Although work by Edward Gibbons, Edmund Burke, and William Jones had inspired the German turn, it was not until the 1860s that history became a distinct field of serious inquiry in England.
• ·  Sir Henry Maine’s Ancient Law initiated the British turn to history in legal scholarship.
• ·  Maine advocated for historical jurisprudence as an alternative to natural law and positivism (the dominant schools at the time).
• ·  His characterisation of historical change as a progressive movement from “status to contract” would significantly influence historical legal thought and history more generally.
• ·   To him, the course of legal history could be explained as progress from “status to contract”.
• ·  Supporters of absolute monarchy invoked ancient English traditions and precedents to support their royalist position in the sixteenth century.
• ·  In the seventeenth century, some English common lawyers had a strong conviction that the primary source of the validity of law - including its moral and political validity - is its historical character, its source in the customs and traditions of the community whose law it is.
• ·  This conviction was forcefully expressed by Sir Edward Coke (1552-1634) in the century's first decades. It was developed further by Coke's protégé, John Selden (1584-1654).
• ·  In the middle and later decades, Sir Matthew Hale (1609-1676), who consciously built on the work of both Coke and Selden, presented a systematic theory of the historical character of law and integrated that theory with both natural law theory and positivism.'

In the seventeenth century, leading English jurists introduced a new philosophy of law into the Western legal tradition. Both competed with and complemented the two major schools of legal philosophy that had opposed each other in earlier centuries, namely, natural law theory and legal positivism. The new philosophy eventually came to be refined in Germany and called historical jurisprudence. It predominated in some countries of Europe (continental Europe) and the United States in the late nineteenth and early twentieth centuries.

Germany:

• · Despite the Frenchmen and Englishmen’s earlier efforts to defend the old order and position law in the historical context, the founding of the ‘historical school’ is credited to Friedrich Carl von Savigny.

The historical school was also influenced by Johann Gottfried Herder (1744-1803) and the romantic notions of folk culture, by the emphasis on tradition in the work of Edmund Burke by the stress on historical continuity in the work of Gustav Hugo (1764-1844), and by the Hegelian conception of spirit. 

• ·  Even though Savigny did not cite Englishmen such as Burke in his scholarly writings, he was undoubtedly influenced by their political philosophy, which was well-known and greatly appreciated in Germany at the time.
• · Like Burke, Savigny fought the new rationalism that located the source of law in public opinion and the will of the legislature.

Burke emphasised the older Germanic (Germanische) tradition of popular participation in law-making and adjudication and the more modem German (Deutsche) tradition of professional scholarly interpretation and systematisation of the jus commune. He also stressed the (European) common law, which had been developed over the centuries by learned jurists based on the ancient texts of the Roman law of Justinian and the canon law of the Church.

Below is the context for the development of the historical School in Germany:

• ·  In the 1800s, Germany was not unified and had 41 states, each of which had a different law.
• ·  Napoleon Bonaparte (Napoleon I) conquered many of the German states and sought to enforce the French Civil Code in these states.
• ·   Napoleon I was defeated in 1813, and the French Civil Code was seen as part of the conqueror’s instruments. Thus, many German States started to reject the French Civil Code and evolve a law more suited to Germany.
• ·  The wave of research universities and the sense of nationalism became predominant, giving rise to the urge for legal and political unification.
• ·   In 1814, Professor Anton Friedrich Justus Thibaut (a natural law jurist at Heidelberg University) started producing pamphlets.
• ·   He attempted to provide a single code for the German nation on the model of the French Civil Code.
• ·  Thibaut published a plan for a single unifying Code to be prepared by an interstate committee of jurists and practitioners. Thibaut’s proposal was promoted by the almost bewildering State of the law in Germany in the early nineteenth century.
• ·  In the Post-Napoleon era, the French Civil Code had been voluntarily or involuntarily adopted in some states. Roman law had taken such deep roots in other states that it was accepted as the common law. In the absence of any express enactment in addition to that common law, German imperial statutes and customary law prevailed.
• ·  There was no uniform body of law which applied to all German states. Thibaut, therefore, advocated the adoption of a uniform Code for Germany that could replace the diverse systems of laws and which could incorporate the revived Roman doctrines as also native customs.
• ·  Savigny’s ‘vocation’ was an answer to this proposal of Thibaut’s plan of codifying the law and customs of German people who were not politically united as a nation. Savigny vehemently opposed Thibaut’s plan.
• ·  As noted earlier, given the patriotic and nationalistic sentiments, the turn to history (the historical school) began in Germany partly as a response to the rationalism and universalism of the French Enlightenment.
• ·  Over the first half of the nineteenth century, German historical science moved across the channel to England, then to the US. The three jurisdictions had an important impact on the production of the new legal history and the emergence of historical jurisprudence.
• · The chief characteristics of the German historical school included “the organic development of law, the continuity of national traditions, parallels between law and language and the defect of statutes”.

United States:

•  ·  The historical turn in the United States combined the experiences of both England and Germany.
• ·  Like in Germany, it was supported by the rise of research universities, which enabled a “scientific” approach to history that supplanted the patrician amateurs who had been responsible for most of the history written in the United States before the American Civil War.
• ·  The new American research universities were often based on German models, and many faculty members had been trained in German universities.
• ·  The American turn began in the 1870s with the work of Henry Adams, who had studied law in Germany. While Adams was the “founder” of modern legal history, his work influenced jurisprudence, especially that of Oliver Wendell Holmes, James Bradley Thayer, and Melville Madison Bigelow. Adams’ work also influenced Frederic Maitland’s widely celebrated work on English legal history.
• · Adams grew frustrated about whether history offered anything instructive for law; he certainly did not see any principles springing out of legal history like Maine’s progression “from status to contract.”
• ·  Melville Madison Bigelow was another scholar who produced important works on legal history but later questioned history’s utility for jurisprudence. Unlike Adams, who traced the origins of American legal principles to the Saxons, Bigelow traced them to the Normans, pointing particularly to the Domesday Book (1085–1086) as the most significant Norman work on law.
• ·  Bigelow re-emphasised the value of history, endorsing it chiefly “to evaluate whether or not survivals of past law served useful functions in the present”.
• ·  Oliver Wendell Holmes’ The Common Law, which was published five years after Adams’ work, attempted a systematic historical jurisprudence.
• ·  For Holmes, history was a tool of legal analysis specifically directed towards the development of jurisprudence; “he subordinated historical explanation to legal analysis.”

4.       Key ideas of the historical school

•   Law develops with society and dies with society.
• ·  Law changes over time and differs from one society to another, i.e., it rejects the universality of laws and favours legal relativism.
• ·  The people formulate law and for the people, which means that the law should be according to the changing needs of the people (people-oriented/bottom-up as opposed to top-down approach).
• ·   It views law as a legacy of the past and a product of customs, traditions and beliefs prevalent in different communities.
• ·  Custom is the most important source of law, i.e., the basic law source is the people's habits and customs that change according to their needs and requirements.
• ·  A nation's customary law is its truly living law, and the task of jurisprudence is to uncover this law and describe in historical studies its social provenience.
• ·    It opposes the codification of laws (top-down legislation).
• ·  Law is "found" by the jurist and not "made" by the State or its organs.
• ·  Law is a national or folk and not a political phenomenon, i.e., it is a social and not an individual production.
• ·   Only history could establish a true cognition of the human condition.
• ·    It identifies law with the consciousness or spirit of a specific people. Law evolved as the “national spirit of the people” or is grounded in the form of popular consciousness called the Volksgeist.
• ·     Law reflects the society in which it exists by reflecting widely shared norms or the views and interests (primarily or exclusively) of the most powerful groups within that society.
• ·   This school rejects the ideas of the formation of law by judges and the origin from some divine relevance (natural law).
• ·   Laws are the expression of the convictions of the people in the same manner as language, customs and practices. In other words, it is not an abstract set of rules imposed on society but has deep roots in social and economic factors and the attitudes of its past and present members of society.
• ·    Law is a historical necessity and not an expression of will or reason; therefore, it cannot be transplanted or imported. It views law as a biological growth, an evolutionary phenomenon and not an arbitrary, fanciful, artificial creation or mechanical device.
• ·  It rejects the notion of law as the State or sovereign’s command.
• ·  Judges must consider history, tradition, and custom when deciding on a legal dispute.
• ·  Law derives its legitimacy and authority from standards that have withstood the test of time.

Key takeaways (i) law cannot be universal; (ii) law cannot be uniform; (iii) law cannot be isolated from social and historical factors.

 5.   Historical school distinguished from natural law and positivist schools of jurisprudence, and legal history

Generally, historical jurisprudence takes an empirical angle (historical data/statistics/verifiable by observation or experience) on the law as opposed to:

• ·  The "normative" angle of natural law theory (descriptive standard/pure logic/theoretical or unpractical/deductive reasoning/value position); and
• ·   The "conceptual or analytical" angle of legal positivism (doctrinal/ideas or concepts formed in mind).  

Natural law theory treats law as the embodiment of rules and concepts of moral principles derived from reason and conscience. Positivism treats law as a body of rules laid down ("posited") and enforced by the supreme law-making authority, the sovereign. The former theory views law as rooted primarily in morality ("reason and conscience"); the latter views law as rooted primarily in politics ("the will of the lawmaker"). Most positivists do not deny that law should serve moral ends, the ends of justice. Still, they argue that law is a political instrument, a body of rules manifesting the policies of the legitimately constituted political authorities. 

In particular:

Natural law school

• · The historical school challenges natural law/moral theories that see the law as an expression of principles that are part of man’s nature and so applicable in any society.
• · To them, the law is neither a vernunftrecht (rational law) nor universal but something relative to the people, i.e., grounded in the form of popular consciousness called the Volksgeist.
• ·  While the historical school look at the law as a by-product of history, the natural law school understands the law as something that could be discovered by rational deduction from the nature of man.
• ·  Unlike the natural school of law, the historical school rejects the notion that the origin of law is superior authority and has some divine relevance.

Positivist School

• ·  The historical school opposes positivist/political theories that see the law as an expression of the will of those holding political power or an arbitrary grouping of regulations laid down by some authority.
• · To them, laws are the expression of the convictions of the people in the same manner as language, customs and practices.
• · Although some laws stem from regulations by the authorities, more commonly, laws evolve organically over time without interference from the authorities. The ever-changing practical needs of the people play a vital role in this continual organic development.
• ·  Lawyers ascertain the people's will in making, interpreting and enforcing the law. Thus, lawyers embody the popular will.
• ·In the historical school, the foundation of law is social pressure. The rule of law is based on political pressure in the analytical or positivist school.

Legal history

• · Historical jurisprudence and legal history differ only in degree and not in kind.
• ·  Legal history is not historical jurisprudence (two sides of a coin).
• ·  Savigny’s objective was not the pursuit of ‘legal history’, but establishing a ‘historical legal science’.
• ·   According to Reimann, historical jurisprudence existed between the 1880s and World War I; thus, by 1920, it became legal history.
• ·   To Roscoe Pound, legal history is the discovery and exposition of the actual development course of a particular legal system or doctrine in a particular system.
• · Legal history details or records past events that occurred in specific legal systems. In contrast, historical jurisprudence operates at a higher level of generality, formulating broadly applicable claims about law (philosophises or hypothesises the past) – make sense of the legal history/historical records.
• ·  Legal history merely deals with the factual narration of the development of law and various legal institutions of a community in a particular order. In contrast, historical jurisprudence examines the manner, circumstances and factors responsible for the growth of law. It takes account of the social forces that significantly operate in the evolution of law.
• ·Legal history apprehends the nature or an idea of any legal institution or system of institutions and determination of the actual circumstances of the development. On the other hand, historical jurisprudence involves the aid of legal history to abstract the idea rather than the actual matter of fact surrounding it (use/apply legal history to understand legal thoughts).

 6.       Key historical Jurisprudents

 (a)    French jurists 

Charles-Louis Montesquieu (1689-1755)

• ·  He was a Judge, Historian, and Philosopher.
• ·  He laid the foundation of a historical school in France
• ·   He describes his idea about the historical approach in his book “The Spirits of Laws”
• ·   He has frequently been described as the forerunner of the historical school, i.e., the first jurist to adopt the historical method of understanding the legal institution. Thus, the law must change according to the changing needs of society.

In The Spirit of the Laws (1748), Montesquieu first showed the connection between law and the circumstances of society. He accepted the natural lawyers´ view that law must reflect the nature of things but insisted that the nature of things is not the same in every society. Rather law reflects the spirit of each society, which is an amalgam of various components, some physical, such as its climate and the qualities of its land, and some moral, such as religion and social customs. He recognised that some societies were more developed than others and that their laws had to be more sophisticated, but he imposed no scheme of historical progression on his material.

• ·  He suggests that laws are social phenomena that vary in countries depending on their history, national spirit, and other factors.
• · He asserted that law matches surrounding circumstances, including climate, geography, local customs, terrain, quality of soil, mode of cultivation and food acquisition, occupations, political system, “the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners.”

No one best form of State or constitution exists: no law is good or bad in the abstract. Every civil and political law must be considered in its relation to the environment, and by adapting to that environment, its excellence must be judged.

• ·    Law should be adopted to suit the people for whom they are framed, keeping in view the degree of liberty the constitution desires to grant to its people.
• ·    To him, there is nothing like good or bad in law, as it depends on the prevailing political and social conditions and environment in the society.
• ·   He opposed natural law; he laid the foundation of comparative and sociological jurisprudence.
• ·   William Blackstone learned from Montesquieu that laws differ from one society to another because these have different natures. Each development may be equally natural as they develop according to their climates, geographies, and historical pasts. Robert Willman writes:

“What is distinctive and important in Blackstone's method is a view of the law which embeds it firmly in the social and political conditions of its time, which sees law responding to the changing needs and circumstances of the social environment, and which considers the process and institutions of legal change to be as much a part of "the law" as specific substantive doctrines, procedures, and remedies. Law is presented by Blackstone, not as a speculative.”

• ·  Montesquieu's argument did not deny that there were universal truths found in natural law theory.
• ·  He asserted that applying these universal principles might need to be different where the physical or social circumstances differ.

 (b)   The German historical school

The German Historical School of Jurisprudence is an intellectual movement studying German law. It was divided into Romanists (looked at the classical Roman sources) and Germanists (focused on indigenous law).

• ·      Romanists contended that the Volksgeist springs from the reception of the Roman law (e.g., Friedrich Carl von Savigny, Georg Friedrich Puchta and Bernhard Windscheid). This approach revolved around ‘Romanticism’ notions and conceived law as the organic expression of national consciousness (Volksgeist).
• ·   Germanists saw medieval German law as the expression of the German Volksgeist (e.g., Karl Friedrich Eichhorn, Jakob Grimm, Georg Beseler, Otto von Gierke).

Friedrich Carl von Savigny (1779–1861)   

• ·   He is regarded as a father of the Historical School.
• ·    Professor of Roman law at the University of Landshut in Bavaria and the University of Berlin
• ·     On different occasions, he served as a Member of the Prussian Privy Council, the Berlin Court of Appeal and Cassation for the Rhine Provinces, the Commission for Revising the Prussian code and the Head of the Department for Revision of Statutes
• ·  Savigny's main jurisprudential works were Of the Vocation of Our Age for Legislation and Jurisprudence; System of Modern Roman Law; Miscellaneous Writings; History of Roman Law in the Middle Ages; and Journal of Historical Jurisprudence.
• ·         His works focused on the monistic approach to law (as opposed to legal pluralism).
• ·    He traced the development of law as an evolutionary process much before Charles Darwin gave this theory of evolution in the field of biological sciences in 1861 (The Origin of Species).  
• ·  In his legal studies of Roman property rights, Savigny was greatly influenced by Bartold-Georg Niebuhr (German historian), whose History of Rome was first published in three-volume form in 1828-32.
• ·  His doctrines regarding law were represented in his famous pamphlet ‘Of the Vocation of Our Age for Legislation and Jurisprudence 1814.’
• ·     The ‘vocation’ appeared at a critical moment in the history of the German State – the fate of Germany was still uncertain being decided at the Vienna Congress of 1815.
• ·     There was uncertainty in Germany about the German State with its legal diversities and the problem of political unification. These and other factors created a chain of reactions in the minds of German Legal philosophers, resulting in the founding of the historical school.
• ·   When Savigny began his work, Germany was beginning to recover from the trauma of the French Revolution and the Napoleonic wars and achieve political unity.
• ·    He immediately persuaded German legal scholars to abandon their precipitate embrace of the Napoleonic Code (French Law) and explore their law's medieval and Roman roots.
• ·   He became prominent in the struggle opposing the codification of the law in Germany.
• ·   Law is a product of the general consciousness of the people and a manifestation of their spirit.
• ·   Origin of law lies in the popular spirit of the people, which he termed as Volksgeist
• ·  He claimed that law arises from the "spirit" of the people/mind of the people (i.e., Volksgeist). For that reason, it is a serious error to impose a legal code from another country on a community.
• ·     Savigny’s Volksgeist presupposes that the law is the product of the general consciousness of the people or will.
• ·     The concept of Volksgeist served as a warning against hasty legislation and introduced abstract revolutionary ideas on the legal system unless they supported the people's general will.
• ·  Preached about the necessity of understanding the history of law before it was reformed
• ·   Called for conforming the law to people’s needs.
• ·  No system of law, however theoretically good, could be successfully imposed upon a people who had not, by its experience, become prepared for it.
• ·   Law is developed first by custom and popular belief, then by juristic activity-everywhere, therefore, by internal, silently operating powers, not by the arbitrary will of a legislator.

Law is a product of times the germ of which, like the germ of State, exists like men as being made for society and which develops from this germ various forms, according to the environing the influences which play upon it.

• ·He believed that the law could not be borrowed from outside. Thus, the main source of law is the consciousness of the people.
• · He believed that the law of the State grows with the strengthening of the state nationality and law dies or fades away when nationality loosens its strength in the State.

Savigny´s followers in the German Historical School accepted the organic and inevitable connection between the special character of a people and its language and law. For them, the spirit of a particular people (Volksgeist) was more than Montesquieu´s spirit. The latter comprised several quantifiable components.

• · Law develops like a language - Savigny focused that the law has a national character. It develops like any language and binds people into one thread through their common faiths, beliefs, and convictions.

Summary:

-     Law is like language, which eventually grows (scheme of legal evolution).

-   Law cannot be of universal validity nor constructed based on certain rational or eternal principles.

-     Law is found or discovered, not made.

-     Law is founded based on the people's consciousness, customs and beliefs.

-    Law has an unconscious natural growth; it is neither found nor artificially made (it cannot be made artificially like the invention of an object)

-    The foundation of law is to be found in Volksgeist, which means people's consciousness or will and consists of tradition, customs, habits, practices and beliefs of the people.

-   Since law should always conform to popular consciousness, custom precedes legislation and is superior to it.

-    Law is not universal, but like linguistic nature, it differs with people, time and community needs.

• · When a law is made without considering the past historical culture and tradition of the community is likely to create more confusion rather than solving the problem because the law is not an artificial, lifeless mechanical device.

Law goes through three periods: growth/infancy, maturity and decline. In the first period, it is manifested directly in the practices of the people. As society grows, some parts of law become more technical and are adapted by expert jurists, acting as delegates of the people. Whether it is based on custom or juristic discussion, it is developed not by legislation but through silent forces within itself. In its infancy, it is not technical enough for legislation, and in its decline, it is not worthy of codification. The only suitable period for codification would be the period of maturity. With the maximum participation of the people and juristic science at its zenith, the legislation would be an unnecessary intrusion.

Georg Fredrick Puchta (1798-1856)

• ·    He was Savigny disciple/follower who improved his ideas - making them more logical.
• ·    Puchta was not only a disciple of Savigny but also a great jurist of the historical school.
• ·    He started with human beings' evolution and traced the law's development since that period.
• ·     According to him, the idea of the law came due to the conflict of interests between the individual and the general will. That automatically forms the State, which delimits the sphere of the individual and develops into a tangible and workable system.
• ·    His ideas mainly focused on when conflict arises between general/common will and individual will or desires (self-interest).
• ·     The State will interfere and control the rule if there is a conflict between general and individual will or overlaps.
• ·    Hence, the State and the individual are the sources of the law because neither the people nor the State alone can make and formulate laws.
• ·    His investigation of the popular origin of law convinced him that customary law was the most genuine expression of the common conviction of the people and, for this reason, far superior to legislation.
• ·    He considered explicit legislation useful only insofar as it embodied the prevailing national customs and usages.
• ·    The contribution of Puchta lies in the fact that he refined Savigny’s views and gave twofold aspects of human will and the origin of the State.

Joseph Kohler (1849-1919)

• ·  He proposed a theory of law that contains components of a sociological character but which may also be explained as an attempt to revive some of Hegel’s ideas
• ·   He claimed that human activity was cultural and that man’s task was “to create and develop a new abundance of forms which shall be as a second creation, in juxtaposition to divine creation.”
• ·  Law plays an important part in the evolution of the cultural life of mankind by taking care that existing values are protected and new ones furthered.
• ·      Each form of civilisation must find the law which best suits its purposes and aims.
• ·    Law must adapt itself to the constantly changing conditions of civilisation, and it is the duty of society, from time to time, to shape the law in conformity to new conditions.
• ·    He conceded to Hegel’s idea of universal civilisation but did not agree with the view that there is an eternal law of a universal body of legal institutions uniformly suited to all societies.
• · He rejected eternal or natural law
• · He emphasised that human society is ever-changing (progressing) and law is a means to respond favourably to these changes.
• ·  He advocated a synthesis and reconciliation of individualism and collectivism in legal control.

The individual should develop independently, but the tremendous advantage of collectivism should not, therefore, be lost.

• · He pointed out that social cohesion is also necessary so that humanity may not fall apart and become a collection of individuals and the community to lose control over its members.

 Other thinkers: Gustav von Hugo, Karl Friedrich Eichhorn, Rudolph von Sohm, Jakob Grimm, Georg Beseler, and Otto von Gierke

 (c)    Anglo-American historical school 

 i.      England:

In England, historical jurisprudence began half a century later than in Germany. While the German model heavily influenced the English movement, it differed in several respects. Most importantly, English historical jurisprudence was not based on a coherent theory of legal science. It rather followed the particular inclinations of individual scholars. These scholars did not form a proper ‘school.’ They were connected simply by their interest in the historical dimension of law. In addition, they formed a much smaller group than in Germany. Never gaining mainstream status, they remained a distinct, though influential, minority in an environment dominated by the analytical school. Below are key English historical jurisprudents:

Edmund Burke (1729-1797)

• ·  A lawyer and statesman.
• ·  He considered the evolution of law as an organic process and an expression of common beliefs, faiths and practices of the community.

Note: organic process – changing gradually from a simple to a more complex level/form. 

• ·   In his book “Reflections on the Revolution in France”, published in 1790, he highlighted the importance of customs and traditions in the growth of law.
• ·    He upheld the significance of English customs, habits and religion in the evolution of law and denounced the French revolution for its catastrophic consequences.
• ·  He used the metaphor of organic growth to describe Britain's unwritten constitution.
• ·  He defended the historical dimension of politics and law against the new rationalism and individualism, and utilitarianism emphasised the historical roots and the historical tasks of the aristocracy, of public spirit. The traditional values embodied in the common law.
• ·He defended an old order and provided a basis for what became in the nineteenth century "the historical school" of legal philosophy, in which the historical jurisprudence that had originated with Coke and Selden and Hale (among others) became separated from the political and moral theories - positivism and natural law - with which they had originally been integrated.

Sir Henry Sumner Maine (1822–1888)

• · Jurist/legal scholar, historian, anthropologist and first Professor of Comparative Jurisprudence at Oxford (1869) and Professor of International Law at Cambridge (1887).
• ·  Maine's chief jurisprudential works were Ancient Law, its Connections with the Early History of Society and its Relation to Modern Ideas; Village Communities in the East and West; Lectures on the Early History of Institutions: and Dissertations on Early Law and Custom.
• ·  He was a law member of the Council of the Governor–General of India (1861 – 1869) and was largely responsible for codifying Indian law.
• · Savigny’s views of historical school were carried forward in England by Maine.

Maine was concerned with providing a theory which would explain the law of 'progressive´ societies (principally ancient Rome and England) and act as a counterweight to the positivism of Bentham and Austin, which held that all true law was the product of legislation by a political sovereign. He was equally concerned with refuting those who based law on a priori abstractions, such as the law of nature and sought to explain the law, which was both empirical and universally true in the sense that natural science was true.

• · He incorporated the best things in the theories of Savigny and Montesquieu and avoided abstract and unreal Romanticism.
• · Maine essentially presented a history of various basic legal institutions, such as wills and succession, property, contract, delict and crime, emphasising their emergence in antiquity (ancient times/before the Middle Ages).
• · He emphasised the study of other societies and legal systems
• ·  Unlike Savigny, Maine favoured legislation and codification of law.
• · Maine saw in law more than a people's customs; he observed and considered Parliament's creative and reforming work, and so he was led to recognise legislation as an instrument of legal growth.

To him, by viewing all law as legislation, Bentham and his followers obscured the nature of legal change. As Maine insisted, the farther back in time we go, the farther we are removed from the Benthamite notion that law is made expressly by legislation. Rather it evolves imperceptibly.

• ·Like Savigny, Maine offered the alternative of a legal science grounded in historical data.
• ·He departed radically from Savigny's monistic approach to law and its sources of legal pluralism.
• ·He found that equity and legal fiction (took into account diverse legal systems) played creative roles in the common law
• ·He differed from Savigny in believing that custom might historically follow/embrace an act of judgment so the jurist could be seen to have had a creative role in making the law, even though he claimed only to have found it.
• ·He asserted, or at least assumed, that there were set patterns of historical change that all societies went through.
• ·Maine rejected the natural law, rationalistic, and a priori approaches to the nature of law.
• ·He saw a people's law as compounded of opinions, beliefs, and superstitions produced by institutions and human nature as they affected one another.
• ·He suggested that similar stages of social development may be correlated with similar stages of legal development in different nations.

Four stages of the development of the law - Stage one: the laws are made and enforced under the commands of the ruler, who is God’s representative on earth; Stage two: a ruler’s commands become customary law; State three: the ruler is superseded by a minority who obtain control over the law (e.g., Magna Carta, Senate, Priests, House of Lords); Stage four: the law is codified and promulgated.

• ·Unlike Savigny, he emphasised progressive evolution from archaic (and collective) to civilised (and individualistic) conceptions of law, especially in his most famous phrase, ‘from Status to Contract’.

Maine’s account of the law of the earliest period of society starts with divinely inspired kings handing down isolated judgments, or 'themistes´. Later they lose their sacred power and are replaced by a small group of aristocrats who have a monopoly of knowledge of the traditional customs. They abuse their power, and popular agitation demands the recording of the customs in 'Ancient Codes´. This is a generalisation of what happened in Rome when the monarchy gave way to the Republic and the plebeians demanded the enactment of the Twelve Tables.

 James Bryce (1838–1922)

• · Like Maine, he focused on antiquity, especially Roman law.
• ·  He provided more direct comparisons between ‘the history and law of Rome and the history and law of England.

Bryce developed the comparative method. For him, the law of any society was always a compromise between tradition and convenience. The study of similarities and differences in different legal systems can lead to the identification of frequently recurring phenomena, which can be treated as universals thus, in turn, elucidating the nature of law in general.

• ·He was interested primarily in constitutional and political history rather than in the institutions of private law; thus, he saw strong parallels between the Roman and the British empires.

 Frederic William Maitland (1850–1906)

• · He left Maine’s and Bryce’s broadly generalising and somewhat amateurish approaches behind and turned to English legal history proper.
• · Maitland dug more deeply into the indigenous medieval sources than anyone before him.
• · His writing, The History of English Law before the Time of Edward I, became the definitive work on the origins and development of medieval English law.
• ·Despite his early death, he professionalised and pushed English legal historiography to a new height.

 Paul Vinogradoff (1854-1925)

•  ·He studied in Berlin, Germany, and his works carried English legal historiography into the twentieth century.
• · He focused not only on the history and institutions of the Common Law but also on the social conditions in medieval England.
• · A distinct feature of this English tradition was its comparative dimension.
• · As opposed to Savigny’s idea of a specific national ‘Volksgeist’, he considered legal systems more broadly and in comparison with each other.

Vinogradoff more ambitiously extrapolated from the history of European societies six stages of legal progress, from totemistic law through medieval law, marked by the tension between feudal and canon law, to individualistic jurisprudence and finally socialist jurisprudence.

• ·Despite concentrating largely on indigenous legal history, it also looked across national boundaries. This tendency was most pronounced with Maine and Bryce, who operated as jurists in a multicultural and multi-jurisdictional empire.

 Other thinkers: Sir Edward Coke, John Selden, Sir Matthew Hale, William Blackstone, and Sir Frederick Pollock.

            ii.     United States

On the other hand, the American historical school combined elements of its German and English counterparts, thus occupying a middle ground between these two. Key aspects of the American historical school:

• · The mainstream American historical jurisprudence began with the publication of Henry Baxter Adams’ seminal collection of Essays in Anglo-Saxon Law (1876). Adams studied in Germany
• ·     Oliver Wendell Holmes acquired the most lasting fame, especially as the author of his (only) book, The Common Law (1881), which is still considered a classic of American jurisprudence.
• ·   The most distinctive feature of American historical jurisprudence was its emphasis on law as custom, which in some instances took on a normative dimension with important political implications.

 

7.       Relevancy of the historical school today

• ·  Knowledge of legal history has several important benefits noted by Savigny. Thus, observing law over time makes apparent its gradual, organic development in connection with society.
•    It shows that law often does not develop in isolation but is affected by external influences, like conquest or colonisation (e.g., the importation of Roman and French laws to Germany or the spread of religion from one land to another).
•  Under a broader name like social–legal jurisprudence, theorists have combined the insights of historical and sociological jurisprudence with contemporary social–legal work to articulate a theory of the social nature of law.

Although much of what would once have been called historical jurisprudence is now carried on under such labels as legal anthropology or comparative legal history, there are signs of a revival of the traditional search for general patterns of legal change, but with more modest objectives than those of the nineteenth-century theorists.

•   · Historical knowledge helps jurists (lawyers, judges, scholars) understand the meaning of existing legal rules.
• ·    Writers during the Scottish Enlightenment (18-19^th Centuries – period of scientific and intellectual accomplishments) first connected the law's historical development with economic changes.
• ·    Historical jurisprudence is often said to be a precursor of the twentieth-century discipline of sociology of law or social theories.
• ·    Maine explicitly offered historical jurisprudence as an alternative to natural law and positivism, the dominant jurisprudential schools at the time.
• ·  His characterisation of historical change as a progressive movement “from status to contract” would significantly influence historical legal thought and history more generally.

The notion that a society´s law must be viewed as closely related to its social and economic circumstances and should be studied not in isolation but in comparison with the laws of other societies with similar or different circumstances became permanently rooted in legal thought and is now commonplace.

• ·The twentieth-century modest studies have successfully related particular kinds of law to particular social circumstances.
• ·   Historical jurisprudence is embodied in traditional values, the doctrine of precedent or stare decisis, common law, the law of equity and customary law or the normative character of customs, which are bedrocks of many legal systems in the world. It is the foundation of the English and American doctrines of precedent. Therefore, stare decisis requires a court to consider history: the history or tradition of analogous cases.
• ·  Historical jurisprudence had been "the dominant school of legal theory in the United States in the late nineteenth and into the first decades of the twentieth century, both among legal scholars and the courts
• ·   It offered an important supplement to natural law approaches and legal positivism. For instance, what is morally right in one set of circumstances may be morally wrong in another, e.g., the LGBTQ issue (relativism v/s universalism)
• ·    History often plays a prominent role in constitutional petitions. Litigants assert historical evidence (e.g., Hansards or cabinet paper), which reveals that the framers of a constitutional provision intended to achieve some desired goal.
• ·  The Historical School was one of the prevailing schools in Anglo-American jurisprudence during the nineteenth century. With its weapons, James Coolidge Carter (1827-I905) fought off codification and became the Savigny of America.
• ·   Max Weber introduced a typology of legal authority, contrasting rational authority with traditional and charismatic types of authority (the notion of legitimacy). He popularised the notion of 'ideal´ model types, in the sense of social constructs, not found in reality but useful as hypotheses to enable the scholar to highlight similarities and differences in actual systems.
• ·   Roberto Unger has emphasised the need to identify the different conceptions of the law and what may be expected from it that characterises different types of society. This has enabled him to distinguish various types of society based on such interpretive explanations. Thus in 'savage´ societies, customary patterns of interaction among individuals and groups are based on recognising that such patterns produce reciprocal expectations of conduct. In 'bureaucratic´ societies, the State has become the controlling institution. The dominant hierarchy begins to take a critical attitude to social customs and seeks to control them through the publication of express rules, seen as emanations of the human will. However, the idea that such rules should apply equally to all members of the society only emerges in societies of the 'legal order´, as exemplified by the liberal societies of post-feudal Europe. Such societies are composed of groups with different interests, no one of which is dominant, so the law is seen as a cohesive force, binding all groups equally.

 8.       Criticisms (mostly toward Savigny)

Georg Friedrich Wilhelm Hegel

• ·  Savigny and Maine’s grand evolutionary schemes, which purported to be applicable universally, are discredited because they were based on the development of ancient Roman law and could only be applied to other systems with difficulty.
• ·    In his lecture of 22 October 1818, he asserted that the historical view was proffered because "of the necessity of justifying the existing state of law." That mere habit could not be the source of law because mere habit was only the "external, bad existence" of the spirit.
• ·Hegel excoriated the Historical School of Law, notwithstanding its powerful position in Prussia. He criticised Carl Ludwig von Haller for absurd reasoning, Savigny for insulting the German nation, and Gustav Ritter von Hugo for reducing jurisprudence (the science of reason) to mathematics without reason.

Heinrich Heine

• ·    He sided with those to whom the right to revolution seemed to be implied in the right to life. He attacked Savigny as an abject person who advocated despotism as a customary right in the form of history.

Karl Marx  

• ·    Marx's original contact with the German historical school of law was not happy.
• ·   Marx wrote articles calling for the removal of press censorship as well as the elimination of church control over divorce. Savigny and Hugo were defenders of the Prussian Crown and were opposed to the withdrawal of press censorship and the secularisation of marriage and divorce.
• ·   Marx wrote an article for the Rheinische Zeitung called "The Philosophical Manifesto of the Historical School of Law" in which he denounced and criticised the historical school of law in 1842, calling it the "sole frivolous product" of the eighteenth century.
• ·     In the article mentioned above, Marx also attacked historical jurisprudents as puppets of the Brandenburg monarchy.
• ·    The historical school of law had close ties with the Romantic Movement. Yet Marx himself owed little or nothing to Romanticism, with its nationalist conceptions of societies as products of organic growth. Marx received the notion of the historical foundations of property, but he rejected the Romantic notion of organicism and its attachment to the medieval, agrarian past.
• ·   The Paris Manuscripts were filled with attacks upon those who sought to defend agrarian relations from a romantic idolisation of the feudal past.

 Note:

·    In his early Hegelian stage, Marx refuted a historical interpretation of the law and defended an idealistic one.

• ·When Marx attacked the historical school in 1842, he did so from a Hegelian point of view. At the University of Berlin, Marx had taken courses from Eduard Gans, a Professor of Law, a Hegelian, and one of the editors of Hegel's collected works.
• ·  Gans influenced Marx and, in early 1842, was still a Hegelian, so it was to be expected that he would attack Hugo and Savigny from the point of view that their system deviated from the idea of law as found in Hegel.
• ·   By 1846, Marx had abandoned Hegel and moved into a materialist phase, so while in 1842 he was prevented by his Hegelianism from appreciating the German historical school of law, in 1846, he was freed by his surrender of Hegelianism to accept a materialist view of history and was receptive to the insights of the historical school into the sociological nature both of law and property.

Rudolf von Jhering

• ·Savigny has been cited for inherent inconsistency. He advocated the nationalism of laws. As a German, this meant that the German legal system must be based on German customs. Ironically, he recommended a refined system of Roman law for German people. He located the origin of law in people, i.e., Volksgeist, that popular conscience but at the time asserted that certain customary principles of Roman law had universal application.
• ·   He cast aside Savigny’s mystical notion of the “common consciousness” as the underlying source of law. Reflecting on the times, Jhering described legal development as the product of battles between competing individuals and groups seeking legal support for their ends.

Oliver Wendell Holmes

• ·   Holmes, saw legal development no longer as the quiet and peaceful process Savigny had envisaged. It is a struggle between competing interests—a conception reflecting the impact of Charles Darwin’s biology, Herbert Spencer’s (1820–1903) social theory, and eventually Rudolf von Jhering’s (1818–1892) jurisprudence.

Roscoe Pound

• · Progressives who urged reform, like Pound, favoured legislation as the vehicle to implement change.

Tamanaha

• · Over the centuries, there has been at least as much "top-down" law-making imposition on the masses as "bottom-up" emanation from the spirit of a people.
• ·   Historical jurisprudence "faded from the jurisprudential scene"' due to a variety of factors: "No systematic theory was articulated by its founders" and later theorists in the traditional "failed to organise its fundamental propositions.

Charles Allen

• ·    Laws are based on customs because customs are not necessarily the outcome of the common consciousness of people. They could be the outcome of the interest of a powerful member of society, e.g., slave masters/enslavers.

Human Rights

• ·   It rejects the possibility of universally valid rights and duties and the individual's possession of non-derivable and inalienable rights.
• Julius Stone overemphasises that the ‘consciousness of the people’ ignores the efficiency of the legislation or planned law in ensuring social change, e.g., the abolition of child marriage and Female Genital Mutilation (FGM) in Tanzania.
• In heterogeneous societies or pluralistic societies, such as in most parts of the world, it would be an uphill task to locate that “communal conscience”. Perhaps, Savigny’s theory was meant to apply to highly homogenous societies, but he did not clarify this.

 Robert E. Rodes

• ·  A lot of twentieth-century jurisprudence shows how some law aims to change public attitudes and what Karl Llewellyn calls "folkways" by deploying incentives and disincentives. For instance, public attitudes toward racial segregation and abortion have changed in recent years. In addition, the debate over racial or gender preferences - "affirmative action"-- often involves a choice between one-size-fits-all and a more historically nuanced approach.
• ·   Sometimes, imported/transplanted laws serve the community better. It has been pointed out that in Egypt in 1883, Japan in 1898, and Turkey in 1926, longstanding legal traditions were thrown overboard and replaced by Civil Codes imported almost verbatim from Europe. There is no indication that these foreign codes do not serve the ongoing life of the peoples of these countries, at least, as well as the traditional legal systems that grew out of their historical consciousness. They probably serve the ongoing lives of their women a good deal better. India also imported its legal system from the West. It appropriated the English common law system, with suitable Indian material introduced not by the people of India or their juristic surrogates but by English lawyers, most notably Macaulay.
• ·  Practical-minded English has criticised the historical school and American jurists in that one nation cannot have different common consciousness of the people. Gray states the most obvious objection: “by the law of Massachusetts, a contract by letter is not complete until the answer of acceptance is received. By the law of New York, it is complete when the answer is mailed. Is the common consciousness of the people of Massachusetts different on this point from that of the people of New York?... In truth, not one in a hundred people in either State has the slightest notion on the matter”.
• ·     Savigny meets this objection by claiming that judges and legal scholars work out the technical details on behalf of the people. Gray points out that the sophistication and eclecticism of legal scholars make this argument untenable.

Geoffrey MacCormack

• ·Criticisms of traditional historical jurisprudence have been directed principally against the ideas that the history of law and legal institutions can be resolved into a series of evolutionary stages marked by continuous progression, that certain social conditions can meaningfully be said to ‘cause’ certain legal results, and that it is possible to discover universal legal phenomena. Hence the central issues can be considered under the heads of ‘evolution’, ‘causation’ and ‘universals’:

-   Evolution – evolution does not necessarily mean progress or progression. One reason for rejecting the notion of evolution in the context of historical legal studies is its association with the idea of progression in the sense of society itself. Therefore, the law becomes progressively better morally connected with ideas of becoming more civilised, less barbaric and so on.

-   Causation - a problem faced by historical jurisprudence is constituted by its failure always to make precise the meaning assigned to the statement that one set of phenomena is the cause of another set or to face up to the question of what degree of proof is relevant. One may reject a causal explanation in favour of an approach that attempts to grasp the full meaning of social and legal phenomena by decoding the message they present and constructing a ‘scheme of interpretation’. One’s aim is not to arrange the phenomena under scrutiny in a relationship of cause and effect but to understand their meaning as a totality.

-  Universalism – a historical school rejects the universality of law. Yet, the attempt to establish universals may be linked with evolution in the sense that societies everywhere are thought to have evolved in the same way or that social institutions such as the family have undergone the same pattern of evolution everywhere. Also, instead of looking at the evolution of social phenomena or the correspondence between social and legal phenomena, one may look purely at the evolution of legal phenomena and ask whether universal development patterns are to be found.

 Lord Lloyd and other Jurists

•  ·   Savigny underrated the significance of legislation for modern society. Sir Henry Maine rightly pointed out that a progressive society must keep adapting the law to fresh social and economic conditions, and legislation has proved the essential means of attaining that end in modern times.
• ·   Important rules of law sometimes develop due to a conscious and violent struggle between conflicting interests within the nation and not due to imperceptible/invisible growth. That applies to the law relating to trade unions and industry. Many institutions like slavery have originated not in volksgeist but in the convenience of a ruling oligarchy.
• · Savigny overestimated or overrated the potency of custom. It is true that custom, being a mirror of accepted usage, has a role in cementing the country's sections together. But the utility of custom is limited in the face of societal complexities, the challenge of development, etc. Within the context of the African experience, we may ask how customs determine the laws of Anglophone, Francophone and Lusophone Africa. These parts of Africa were colonised by the English, French and Portuguese, respectively. The colonists came with their laws, many of which displaced pre-existing customs. Although indigenous people initially rejected such displacement, they have come to accept or retain any such laws in their legal systems at independence and beyond. In Tanzania, for example, the received English law (common law, equity and statute of general application) has become part and parcel of the Tanzanian legal system.
• ·   In globalisation, there is mutual interdependence so that, based on the needs, countries freely import foreign laws into their legal systems. Provisions in many international conventions signed and domesticated by most countries were originally the customs or the foreign law of very few countries.
• · Savigny's theories are blamed for the fact that Nazi lawyers drew on his concept of "national spirit" (Volksgeist) as an idea of "inexhaustible fertility" and even proponents of racist practice in South Africa, particularly at the Afrikaans-language universities referred to Savigny's "spirit of the Volk".
• ·  Maine’s Ancient Law was concerned with 'the early history of society´ and not with primitive societies, such as Native Americans. It was essentially limited to Indo-European societies and was structured around the development of the institutions of Roman law.
• ·  Maine’s scheme of legal evolution is not readily discernible elsewhere; in particular, it has little application to England.
• ·  Maine´s work fitted the mood of the age of biological evolution, produced by Darwin´s Origin of Species (1859). Still, its ideas were challenged by anthropologists, who showed that they did not apply to early non-Indo-European societies and by legal historians, who objected to the inaccuracies of his generalisations.

 9.       The downfall of the historical school

• ·   In the twentieth century, throughout the West, leading exponents of positivism became triumphant and declared natural law theory illusory and historical jurisprudence dead.
• ·    In the legislature and courts and executive agencies of nearly all countries, laws and judgments and regulations that manifested the policy, or will, of those that made them were also interpreted in the light of their conformity to natural justice, including reason and conscience, and to historical traditions, including custom and precedent. The movement’s decline and fall had several reasons, some of which were country-specific as follows:

Germany:

• ·   Rudolf von Jhering launched a devastating critique against the historical school and pushed jurisprudence towards a sociological approach. The enactment of the Bürgerliches Gesetzbuch (German Civil Code) in 1900, abbreviated BGB cut private law largely off from the past.

England:

• ·   Maitland’s death in 1906 marked the beginning of the erstwhile decline of historical scholarship, as neither he nor Paul Vinogradoff had trained successors who could continue their work.

United States:

• ·  Legal thought turned towards pragmatism and embraced sociological jurisprudence under the leadership of Roscoe Pound (himself influenced by Jhering).
• ·   In addition, the First World War ended the cooperation between German and Anglo-American legal scholars.

Other reasons for the movement’s demise, which were common to all three countries -

The historical school provided its seed of dissolution:

• ·     For once it is admitted that law is historically conditioned, it is as impossible to limit the conception of law to a Volksgeist as to the commands of the sovereign; all forms of social control and all sources of law emerge as subjects for legitimate consideration and study.
• ·  With its backwards-looking conception of law, historical jurisprudence was fundamentally at odds with the forward-looking reform agendas of the twentieth-century regulatory State
• ·    Legal history simply did not provide solutions for the problems of industrialisation, labour conflict, and urbanisation (and legal historians, turning more purely historical, stopped trying).

Rabban and Tamanaha claim: the second factor relates to age. The turn of the century was a period of rapid and sweeping transformation, ushering in urban industrial capitalism and bringing big business, labour unions, and the expansion of government. It was a time of economic depression, social dislocation, and strife. Battles between competing interests were fought out in legal arenas… Given the rapidly dawning modern world and the volumes of the new law being produced to meet the needs of the time, a jurisprudential school with a backward gaze would appear to be a less productive source of insight. The rise of legislation and the administrative State lent an old-fashioned feel to late-nineteenth-century historical jurisprudents who centred their theories of law on the common law.

• ·  With its claim that law as a science belonged to trained legal experts, historical jurisprudence was essentially un-democratic. This rendered it incompatible with a law-making process in which legislatures, not legal scientists, ultimately call the shots.
• ·   According to Rabban and Tamanaha, after the turn of the 20^th century, evolutionary theory, Herbert Spencer’s Social Darwinism in particular, fell into disfavour. Franz Boas launched a sharp critique of comparative analyses of primitive societies—of the sort Maine pioneered— setting off “an anti-evolutionary tide that was to sweep over the whole field of anthropology for more than fifty years.”
• ·  Evolutionary analysis was castigated as ethnocentric and racist, built on smug assumptions that the West was the high point by which all other civilisations were measured.
• · Historical jurisprudence was the victim of a misleading name/labelling.

According to Peter Stein, Labelling can work to the disadvantage of a subject if it cannot free itself from the disfavour a certain line of enquiry has attracted. Something of this kind has happened in the case of historical jurisprudence.

 

 Legal Authorities 

Legislation

Judicature and Application of Laws (Cap. 358)

Local Customary Law (Declaration) Order, G.N. No. 279/1963

Case laws

Gwao bin Kilimo v. Kisunda bin Ifuti (1938) 1 T.L.R. (R.) 403 (Colonial Tanzania/Tanganyika)

Chikumbi Chilomo v. Madaha Mganga [1986] TLR 247 (Mainland Tanzania)

Meera Kumari Dhungana v. His Majesty's Government Ministry of Law, Justice and Parliamentary Affairs and Others, N.K.P 2052, Petition. No. 462 (Nepal).

Quiz

“Each judge is ... like a novelist in the chain. He or she must read through what other judges in the past have written not simply to discover what these judges have said, or their State of mind when they said it, but to reach an opinion about what these judges have collectively done in the way that each of our novelists formed an opinion about the collective novel so far written. Any judge forced to decide a lawsuit will find if he looks in the appropriate books, records of many arguably similar cases decided over decades or even centuries past by many other judges of different styles and judicial and political philosophies in periods of different orthodoxies of procedure and judicial convention. Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day.” Ronald Dworkin (1982) Law as Interpretation, Critical Inquiry (The Politics of Interpretation), Vol. 9:1, p. 193.

• Based on the above quote and the application of the doctrine of stare decisis in the Court of Appeal of Tanzania, differentiate between legal history and historical school, at the same time, consider whether the role of a Justice of Appeal is to package the country’s legal system as the product of history. 

 References

Allen, C.K. (1964) Law in the Making, 7^th ed. Oxford: Clarendon Press.

Beale, J.H., (1905) The Development of Jurisprudence during the Past Century, Harvard Law Review, Vol. 18:4, pp. 271-283

Berman, H.J. (1994) The Origins of Historical Jurisprudence: Coke, Selden, Hale, The Yale Law Journal, Vol. 103, pp. 1651-1738

Bix, B., (2018) A New Historical Jurisprudence? Washington University Law Review, Vol. 95, pp. 1035-1047

Cory, H. (1953) Sukuma Law and Custom, Routledge.

Cory, H. et al., (1945) Customary Law of the Haya Tribe, Routledge;

Hoyos, R.J. (2014) Historicizing Jurisprudence, Reviews in American History, Vol. 42:1, pp. 115-120

Isaacs, N. (1918) The Schools of Jurisprudence: Their Places in History and Their Present Alignment, Harvard Law Review, Vol. 31:3, pp. 373-411

Klenner, H. (1989) Savigny's Research Program of the Historical School of Law and Its Intellectual Impact in 19^th Century Berlin, The American Journal of Comparative Law, Vol. 37:1, pp. 67-80.

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