H
Hugo, Gustav
Joaquín Garrido
Roman Law, University of Seville, Seville, Spain
Introduction
Gustav Hugo was born on November 23, 1764, in
Lörrach, Wiesental, into a well-to-do family. He
grew up under the guidance of his father, who, as a
jurist, introduced him to the study of law in his
early childhood through Heineccius’s Institutes.
This would be his first contact with Roman law
and its long scientific history, an intellectual tra-
dition that would accompany him until the end of
his life at the age of 80. After going to school in
his hometown, young Hugo began his studies in
the town of “Montbeliard” (then belonging to
Württemberg) between 1776 and 1779. He later
wrote that such a time spent in a French-speaking
area would be decisive in his life, among other
things, because he had read Voltaire, Corneille, or
Racine before Goethe’s Werther. That way, he was
able to access, in their original language, the texts
of Montesquieu, a fundamental author in the shap-
ing of his historical sensibility.
Still a student, Hugo approached English and
Scottish moral and political philosophy carefully
reading John Locke, David Hume, or Adam
Smith. This cultural contrast could have been a
primary reason for his empirical sensibility that
prone him to pay attention to the peculiarities and
© Springer Nature B.V. 2021
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
https://doi.org/10.1007/978-94-007-6730-0_770-1
history of each culture. Young Hugo continued his
studies in Karlsruhe. After completing the Gym-
nasium, he attended the prestigious University of
the Kingdom of Hannover, Göttingen, where he
studied Law. He received classes from Georg
Ludwig Böhmer, a Romanist and canonist, from
Justus Friedrich Runde, a well-known specialist in
Private Law, and from Johann Stephan Pütter,
who admittedly became his most influential pro-
fessor and scholarly inspiration.
During this formative period, he became close
to philosopher Georg Heinrich Feder, jurist
Johann Friedrich Reitemeier, and historian and
theologian Ludwig Thimotheus Spittler, with
whom he developed a close friendship throughout
his life. Hugo did not finish his studies with a
degree exam, as was usual, but with a paper enti-
tled De fundamento succesionis ab intestato ex
iure Romano antiquo et novo (1785), for which
he received the First Prize of the Faculty of Law.
After this first success and at Pütter’s suggestion,
he began a doctoral thesis on Roman bonorum
possessio. During these years, he combined his
research with his work as a tutor for the Crown
Prince of Dessau (a job that provided him with
important contacts among the high society) and
the meticulous reading of Immanuel Kant’s
Grundlegung zur Metaphysik der Sitten. The epis-
temological principles of the German philosopher
accompanied him throughout his life.
In 1788, he defended his doctoral thesis in
Halle (De bonorum possesionibus commentatio)
and was awarded the position of
2 Hugo, Gustav
“ausserordentliche Professor” in Göttingen. Four
years later, at the age of 28, he became “Professor
Ordinarius” at the same university. He remained
in Göttingen until the end of his life, rejecting
various chairs at several prestigious universities,
such as Heidelberg (1804), Halle (1805), Berlin
(1810), or Bonn (1818). Gustav Hugo was one
of the most illustrious representatives of the cast
of universal jurists linked to the University of
Göttingen. He received many honors during his
fruitful career, which ended with his death on
September 15, 1844. It was 6 years after the cel-
ebration of the golden anniversary of his chair in
1838, an event that summoned top German legal
scholars lead by Friedrich Carl von Savigny, who
in a memorable text written for the occasion, Der
zehente Mai, declared Hugo to be the master of
historical studies. For Georg Friedrich Puchta, he
was “the Professor of the 19th century.”
Hugo’s Work Plan
The critical angle of Hugo’s work plan is com-
monly regarded as the most prominent aspect of
his work. From an early date, Hugo’s scientific
efforts were directed toward dismantling rational-
ist Natural Law and Usus modernus pandectarum,
which were the dominant trends in the Germanic
area in the fields of theoretical and practical juris-
prudence, respectively. Young Hugo resorted to
Kant’s epistemology, which represented a harsh
critique of Natural Law dogmas, to contest ius-
rationalism (Christian Wolff, Daniel Nettelbladt,
Joachim Georg Darjes). Before the Usus
modernus (Samuel Stryk), which mixed the con-
tents of Roman and Germanic law with practical
purposes, Hugo responded with a rigorous philo-
logical and historical delimitation of the elements
that possessed a Roman origin, distinguishing
them from those that had a diverse basis. To this
thematic separation, Hugo added, following his
master Pütter, a chronological delimitation that
clearly differentiated what was no longer in force
from what was still enforceable, inaugurating the
German tradition of “modern Roman law” (Hugo
1789a), a doctrinal trend firmly established with
Savigny’s System of the Modern Roman
Law (1840).
Hugo proposed three fundamental questions to
which the science of law should respond: a
three-fold approach in which some scholars see a
resemblance with Kant’s three Critiques. The first
question is practical and reads: “What is right?”;
the second question is historical and reads: “How
did it get that way?”; and the third question is
philosophical and reads: “Is it reasonable that it
is so?” (Hugo 1799: §16). The three
corresponding disciplines are identified as Dog-
matics, History of Law, and Philosophy of Law,
respectively.
These three disciplines were conceived as
independent for the first time and worked in a
coordinated manner, without being integrated
into a unitary idea of law. This is a clear difference
from Savigny’s approach, for whom legal science
was reduced to the (philosophical or idealistic)
History of Law. Hugo addressed these three issues
in his famous Lehrbuch eines civilistischen
Cursus, a textbook designed for his lectures that
integrated the various parts of his courses (Natural
Law as a Philosophy of Positive Law, History of
Roman Law, Modern Roman law, Classical
Roman Law, and the Enzyklopädie). As part of
this project to both criticize and renew Jurispru-
dence, Hugo undertook an impressive revision of
all the scientific production of his time, which was
analyzed in detail in his famous Göttingische
Gelehrte Anzeigen. This collection contains
more than 420 book reviews dating from 1788 to
1844, and was later published in a triple volume
entitled Beyträge zur civilischen Bücherkenntniss
(I/II: 1828; III: 1844).
This whole process of review and criticism
would leave the way open for the development
of the Historical School of Law.
Legal Philosophy
Gustav Hugo’s contribution to contemporary Phi-
losophy of Law is essential. We owe him the
establishment of the conditions for a philosophi-
cal study of positive law.
Hugo, Gustav
His most famous work on the subject is his
Lehrbuch des Naturrechts, als einer Philosophie
des positiven Rechts (1798), which constituted a
decisive contribution to the discrediting of Natural
Law and legal apriorism. Natural law here dis-
solves into positive law (as the title of the work
indicates), and positive law (the adjective became
redundant) ceases to be a derivation of the abstract
postulates of Natural Law and becomes an aspect
of life, which is historical and mutable. This is
because the ongoing nature of reality is incompat-
ible with the dogma of the immobility of law. That
is why Hugo understood that the Philosophy
of Law should be considered to belong to legal
studies rather than to philosophy. The focus was
no longer on the principles of the metaphysics
of law, but on its empirical contents, developed
based on a “science of men” (“Lehren vom
Menschen”) or “legal anthropology” (“juristische
Anthropologie”), which analyzed the individual
in his triple dimension as an “animal,” a “rational
being,” and a “citizen.” This three-fold distinction
is related to the three branches of Roman private
law: ius naturale, ius gentium, and ius civile.
Thus, Law abandoned its position within Philos-
ophy syllabi to end up in the hands of jurists.
Hugo has been labelled as politically reaction-
ary by philosophers like Karl Marx, in his well-
known Das philosophische Manifest der
historischen Rechtsschule, and Georg Wilhelm
Friedrich Hegel, in the famous section §3 of his
Grundlinien der Philosophie des Rechts. The rea-
sons usually invoked relate to his rejection of any
metaphysical or aprioristic value judgment and
his consideration of law existing in history as
rational, since positive law finds its very justifica-
tion in its historical existence. Significantly, some
of his contemporaries called his theory “indiffer-
ent Natural Law” (“indifferentistisches
Naturrecht”).
Nevertheless, his methodological approach
can be considered revolutionary, since the situa-
tion of law within the realm of facts was an inno-
vative element in a scientific context in which,
following Leibniz and Wolff, the study of law
consisted of the analysis of a set of propositions
systematically ordered according to deductive
logics, which operates by means of
3
demonstration. Hugo thus recovered the topical
or dialectical nature (in the Aristotelian sense) of
legal postulates, which are neither true nor false,
but probable or possible, and as such defensible.
This harsh critique of legal rationalism also had
significant implications for the scientific character
of law. The collapse of ius-rationalism led to the
positivistic consideration of the contingent nature
of law, which is historical in an empirical sense.
Therefore, it was no longer possible to deduce
logically positive law from natural law
(as ius-naturalism postulated instead). In this
way, the scientific character of Jurisprudence
(i.e., “Dogmatics” in this context) was put into
question, given the arbitrary nature of its object,
which could not be deduced from necessary or
apodictic reasons (as Kantian critical epistemol-
ogy required). Only later, thanks to the Historical
School, which had an essential affinity with post-
Kantianism and early Romanticism (currents to
which Hugo did not adhere), was law no longer
considered “contingent” (“zufällig”) but defined
in terms of “necessity” (“notwendig”), as some-
thing historically “given” or “objectified”
(i.e., “innere Notwendigkeit” in Savigny’s
words). This step, which associates the empirical
knowledge of law with the idea of “rationality,”
until then referring only to non-empirical ele-
ments, allowed the Historical School to recognize
the scientific character of Legal Dogmatics. Nev-
ertheless, this idea of objectified historical neces-
sity, which expresses the German Volksgeist’s
dogma, the core of the School’s postulates, cannot
be found in Hugo. So, strictly speaking, he cannot
be referred to as the “founder” of the Historical
School of Law.
Hugo believed in Kantian gnoseological dual-
ism, while Savigny instead opened the way to a
historically-based empirical monism. It thus may
be stated that historicism as a method was born
with Hugo, but as a doctrine it started with
Savigny. For Hugo, the creator of Law is the
individual, while for Savigny (and the Historical
School) it is the collective conscience. It is under-
standable why Hugo did not want to be confused
with Savigny’s supporters.
4 Hugo, Gustav
Legal History
The figure of Hugo has been equally central to the
development of modern legal history. Hugo’s
methodology was characterized by a fidelity to
historical data that demanded a philological rigor
in the reading of legal sources hitherto unknown.
Of course, there existed a historical sensibility in
the study of law predating the historicist environ-
ment of Hugo and Pütter’s Göttingen. Particularly,
Roman law was received in Germany in the six-
teenth century, where it was both the law in force
and the undisputable main subject in law faculties
until the end of the nineteenth century.
A paradigmatic example was the Antiquitatum
Romanarum Syntagma written by Johann
Gottlieb Heineccius, which had up to twenty edi-
tions since its publication in 1719. But these
works, which demonstrated an in-depth scholarly
knowledge of legal antiquities, did not address
legal concepts at the various stages of their histor-
ical development. They could be referred to as
examples of “elegant jurisprudence,” or of history
of legal antiquities, but not as legal history prop-
erly speaking. This means that they did not
advance a pragmatic history enquiring – as
would be undertaken from Hugo on – about the
development of legal institutions from their gene-
sis to the present, exploring their contemporary
relevance. Although for Hugo – partially unlike
Savigny – the historical study of Roman law was
more oriented toward the jurist’s formative aspect
than to actual legal application.
As historical law, Rome’s law had been the
basis of the legal precepts and concepts in force.
“Roman Law is our Natural Law,” he said in a
well-known statement. That is why its historical
knowledge became a milestone for accessing the
essence of current law. Hugo implemented this
distinctly historical part of his project in his
Lehrbuch der Geschichte des Römischen Rechts
(1790a). There he applied, following Reitemeier’s
path, the synchronic method, dividing the legal
past in historical periods that still inform Roman
law periodizations used today. Therein classical
law stands out for its superior unquestionable
value, as opposed to the Roman Justinian law,
the one that has been made known to us through
the Digest. Hugo dedicated works such as his
Ulpian-Fragment (1788), the Sentenzen-Paulus
(1795), or the Lehrbuch und Chrestomathie des
klassischen Pandektenrechts (1790b) to Pre-
Justinian Law.
In his preference for the classical Roman past,
Hugo was influenced by Edward Gibbon, from
whom he translated the famous Chapter 44 of
The Decline and Fall of the Roman Empire,
which was to become a landmark in the history
of jurisprudence regarding the development of
Roman law from the early days of the monarchy
in the sixth century BC to Justinian’s sixth century
AD (Hugo 1789b). Gibbon distinguished three
periods, similar in length but distinguishable by
the mode of instruction and character of the
jurists. In line with Gibbon, Hugo recalled the
central role that jurists had played in the Roman
times of greatest legal splendor, and defended a
strictly scientific model against the approach
employed in Modern Enlightenment circles,
which condensed all sources of legal production
in the law-giver. Thus, against the statutory law
defended by the Codification movement, Hugo
opposed a customary and doctrinairely rooted
law, as exemplified in his famous work Die
Gesetze sind nicht die einzige Quelle der
juristischen Wahrheiten (1815).
Legal Education
Hugo defended a scientific model where the jurist
followed the example of classical Roman juris-
prudence, which was based on the fundamental
idea that auctoritas-holders or intellectuals were
to be heard by potestas-holders or institutional
authorities. The jurist would recover that way his
historical function of interpretatio by assisting,
supplementing, and correcting existing law, as
Papinian had already defended in Severian times
(D. 1, 1, 7, 1). A fundamental aspect for the
achievement of this model of jurists with a
Roman (and medieval) profile was legal educa-
tion, which, with the support of ancient texts
should still consist of the studia humanitatis.
Such a Bildung, supported by the careful reading
of sources, provided legal insight to the jurist-to-
Hugo, Gustav
be. Hugo’s classes in Göttingen were the para-
digm of this study of Roman legal sources,
based on the method of exegesis. A method that
did not reduce methodological knowledge of law
to concrete and external rules, as proposed by
modern hermeneutics, but instead sought to inte-
riorize the concepts upon slow reading of the
texts. This autonomous interpretation of sources
found support in the Enlightenment’s motto of
Selbstdenken.
Conclusion
The fundamental legal concepts, “historical”
rather than “logical” in Hugo’s vision, refuse to
be defined, because there is no correspondence
between “precision and clarity.” Only proper
training provided the methodus necessary for
Legal Science, which is primarily historical.
Cross-References
▶ Hegel, Georg Wilhelm Friedrich
▶ Jhering, Rudolf von
▶ Montesquieu
▶ Puchta, Georg Friedrich
▶ Savigny, Friedrich Carl von
References
Becchi P (2008) Gustav Hugo, Friedrich Carl von Savigny
und die Anfänge des Rechtspositivismus in Deutsch-
land. In: Hotz S, Mathis K (eds) Recht, Moral und
Faktizität: Festschrift für Walter Otto. Dike, Zürich,
pp 3–18
Behrends O (ed) (1996) Edward Gibbon. Historische
Übersicht des Römischen Rechts, übersetzt, eingeleitet
und kommentiert von Gustav Hugo. Göttingen,
Wallstein
Blühdorn J (1973) Naturrechtskritik und «Philosophie des
positive Rechts». Zur Begründung der Jurisprudenz als
positiver Fachwissenschaft durch Gustav Hugo.
Tijdschrift voor Rechtsgeschiedenis 41:3–17
Buschmann A (1963) Ursprung und Grundlagen der
geschichtlichen Rechtswissenschaft. Untersuchungen
und Interpretationen zur Rechtslehre Gustav Hugos.
Diss, Münster
5
Cappellini, P (1984/1985) Systema Iuris. I. Genesi del
Sistema e nascita della “scienza” delle pandette,
II. Systema Iuris Dal sistema alla teoría generale,
Giuffrè, Milano
Diesselhorst M (1987) Gustav Hugo (1764–1844): oder
was bedeutet es, wenn ein Jurist Philosoph wird? In:
Loos F (ed) Rechtswissenschaft in Göttingen.
Vandenhoeck & Ruprecht, Göttingen, pp 146–165
Haferkamp H-P (2015) Gustav Hugo zum 250.Geburtstag.
Zeitschrift für europäisches Privatrecht 1:105–127
Hugo G (1785) Commentatio de fundamento successionis
ab intestato, Göttingen
Hugo G (1788) De bonorum possessionibus commentatio.
Hundius, Halae
Hugo G (1789a) Institutionen des heutigen römischen
Rechts. Mylius, Berlin
Hugo G (1789b) Eduard Gibbons historische Übersicht des
römischen Rechts, Übersetzung aus dem Englischen
mit Anmerkungen. Dieterich, Göttingen
Hugo G (1790a) Lehrbuch der Geschichte des römischen
Rechts. Mylius, Berlin
Hugo G (1790b) Lehrbuch und Chrestomathie des
classischen Pandektenrechts. Dieterich, Göttingen
Hugo G (1798) Lehrbuch des Naturrechts als einer
Philosophie des positiven Rechts. Mylius, Berlin
Hugo G (1799) Lehrbuch der juristischen Encyclopädie,
2nd edn. Mylius, Berlin
Hugo G (1815) Die Gesetze sind nicht die einzige Quelle
der juristischen Wahrheiten. Civilistisches Magazin,
IV, pp 90–134
Hugo G (1828–1844) Beyträge zur civilistischen
Bücherkenntnis der letzten vierzig Jahre. Mylius,
Berlin
Landsberg E (1910) Geschichte der Deutschen
Rechtswissenschaft, 3. II. Oldenbourg, München-
Berlin, pp 1–48
Lavranu A (1996) Historizität und Verbindlichkeit von
Werten. Zu Gustav Hugos Rechtsphilosophie und zu
Friedrich Carl von Savignys Rechtslehre, Diss.
Göttingen.
Marini G (1969) L’opera di Gustav Hugo nella crisi del
giusnaturalismo tedesco, Milano
Mejer O (1879) Gustav Hugo, der Begründer der
historischen Juristenschule. Eine göttinger Erinnerung.
Preußische Jahrbücher 44:457–487
Rückert J (1990) “. . . dass dies nicht das Feld war, auf
dem er seine Rosen pflücken konnte . . .”? Gustav
Hugos Beitrag zur juristisch-philosophischen
Grundlagendiskussion nach 1789. In: Dreier R (ed)
Rechtspositivismus und Wertbezug des Rechts. Franz
Steiner, Stuttgart, pp 94–128
Savigny FC von (1838) Der zehente Mai 1788. Beytrag zur
Geschichte der Rechtswissenschaft. Zeitschrift für
geschichtliche Rechtswissenschaft 9:421–432