Historical School

Arose contemporaneously with Analytical positivism at the beginning of the nineteenth

century as another manifestation of the reaction against natural law theories.

The introduction to the historical approach to law is the study and reception of Roman law
in Europe.

Germany was the cradle of the Historical School where Roman law functioned as the
common law subject to cannon law, imperial enactments and customary law and the Roman
law was assumed to have been accepted as a whole, not in fragments because of which the
panorama of the law as a whole was confusing as local variations were innumerable.

In 1814 Thibaut made a proposal for a code on the lines of the Code of Napolean and this
was answered by Von Savigny in an essay entitled On the Vocation of our Age for
Legislation and Jurisprudence, with which a new jurisprudence was born.
Savigny was born in Frankfurt in 1779 and in 1803 appeared his first major work, The Law of
Possession and The History of Roman Law in the Middle Ages between 1815 and 1831.

• It was his thesis that Roman law had been received into Germany so long ago that her legal soul
had become a mixture of Roman law and local laws. He analysed Roman and local laws.

• He emphasised that muddled and outmoded nature of a legal system was usually due to a failure to
comprehend its history and evolution so the essential prerequisite to the reform of German law
was, for him, a deep knowledge of its history.

• He warned that legislators should look before they leap into reform as to him, the nature of any
particular system of law was a reflection of the spirit of the people who evolved it.
This was later characterised as the VOLKSGEIST by Puchta, Savigny’s most devoted disciple.

• All law is the manifestation of this common consciousness (Volksgeist) “Law grows with the
growth , and strengthens with with strength of the people, and finally dies away as the nation loses
its nationality”.
• Law is a matter of unconscious growth.

• Custom not only precedes legislation but superior to it and legislation should always conform to
the popular consciousness.

• Law is a reflection of people’s spirit and it can only be understood by tracing their history.
 The idea of Volksgeist and its criticism

• The idea of Volksgeist is acceptable in a limited way.

• Savigny extrapolated his Volksgeist into a sweeping universal.
• The transplanting of Roman law in the alien climate of Europe is inconsistent with Savigny’s idea
of a Volksgeist.
• The Volksgeist theory minimises the influence of individuals of alien race.
• The national character of law seems to manifest itself more strongly in some branches than in
others.
• Law is sometimes used deliberately to change existing ideas.
• Some rules of customary law may not reflect the spirit of the whole population
 Conclusion

Savigny’s work, on the whole, was a salutary corrective to the methods of the natural lawyers. He dis
grasp a valuable truth about the nature of law, but ruined it by overemphasis.