Savigny

THE HISTORICAL SCHOOL OF JURISPRUDENCE

Introduction to Historical School of Jurisprudence

❏ Deals with general principles and influences affecting law.

❏ Traces the legal history to determine origin.

❏ Major focus on customs, traditions, historical circumstances, etc.

❏ Law directly related to society.

❏ Emerged around the same time as Analytical School (beginning of the 19th
century) as a reaction to Natural School of Jurisprudence.
Contradicting Natural School

❏ Against a priori concept; every law has a history

❏ No universal, unchanging law

❏ Law has no divine origin but is a product of gradual development in time

Differing from Analytical School

Mostly on formation of law

Not by judges, state and legislators but rather, by the people, their customs and
habits

Law is made “not by arbitrary will of a law-giver”

Savigny’s Background

❏ Friedrich Karl von Savigny (1779-1861) born in Germany

❏ Germany divided into 41 territories, each with its own law
❏ Legal Scholar and a student of Roman law
❏ Regarded as founder of the historical school of jurisprudence
❏ Major Works:
1. The law of Possession
2. History of Roman law
3. On the Vocation of Our Time for Legislation and Jurisprudence
Volksgeist Theory (Spirit of the people)

Volk = people; Geist = common will

‘ General Will of the people’

Volksgeist gradually drive law to develop over the course of time

Law is found and discovered and not made

Arise out of general conscience of people

Law has a national character

“Law grows with the growth and strengthens with the strength of the people and
finally dies away as the Nation loses its Nationality”

Treats nation as an organism

Law has no separate existence from society

Law continuous and regular process

Customs precede legislation, also superior to it

Law similar to language

“Peculiar faculties and tendencies of an individual people, inseparably united in

nature”

Gradually grows, both have national character

Binds people with belief and opinion

Grows with the society

No moment of absolute cessation

Criticism
❏ Customs not outcome of common consciousness but of interests of powerful and
strong ruling class. (By Charles Allen)
❏ Ignored efficiency of legislation, planned law and social change. (By Prof.
Stone)
❏ Many laws originated in convenience of ruling oligarchy or dictatorship
❏ Limited extent
❏ Roman law alient climate, many unified code accepted later on
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