Philosophy of Law, Coquia

CHAPTER III

HISTORICAL SCHOOL

SAVIGNY, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE

Origin of Positive Law

The law will be found to have already particular faculties and tendencies of an individual people,
inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which
binds them into one whole is the common conviction of the people, the kindred consciousness of an
inward necessity.

For law, as for language, there is no moment of absolute rest; it is subject to the same movement and
development as every other popular tendency; and this very development remains under the same law of
inward necessity, as in its earliest stages. Law grows with growth, and strengthens with the strength of
the people, and finally dies away as the nation loses its nationality.

With progress of civilization, national tendencies become more and more distinct… law perfects its
language, takes a scientific direction, and as formerly it existed in the consciousness of the community, it
now devolves upon the jurists, who thus, in this respect, represent the community.

Law and Law Books

Requisites of a really good code:

Young nations, it is true, have the clearest perception of their law, but their codes are defective in
language and logical skill, and they generally incapable of expressing what is best, so that they frequently
produce no individual image...

Comments by Paton on Savigny

In opposition to the pure science of law, the historical school considered law in direct relationship to the
life of the community and thus laid the foundation on which the modern sociological school has built.

How did law came to be? Law evolved, as did language, by a slow process and, and just as language is a
peculiar product of a nation’s genius, so is the law. The source of the law is not the command of the
sovereign, not even the habits of the community, but the instinctive sense of right possessed by every
race.

Such is the approach of the historical school, and it naturally led to a distrust of any deliberate attempt to
reform the law. Legislation can succeed only if it is in harmony with the internal convictions of the race to
which it is addressed.

The contribution of the historical school to the problem of the boundaries of jurisprudence is that law
cannot be understood without an appreciation of the social milieu in which it has developed. The slow
evolution of law was stressed and its intimate connection with the particular characteristics of a people.
Philosophy of Law, Coquia

But in Savigny’s particular presentation there were exaggerations of which the historical method must be
freed if it is to play its true part:

Some customs are not based on an instinctive sense of right in the community as a whole but on the
interests of a strong minority, e,g, slavery.

While some rules may develop almost unconsciously, others are the result of conscious effort. Law has
been used to plan the future deliberately and not merely to express and order the results of past growth.

The creative work of the judge and jurist was treated too lightly. The life of a people may supply the rough
material, but the judge must hew the block and make precise the form of law.

Imitation plays a greater part than the historical school would admit.

Savigny encouraged what Pound has termed as “juristic pessimism”- legislation must accord with the
instinctive sense of right or it was doomed to failure. Hence conscious law reform was to be discouraged.