historical school

The historical school arose in Germany in the early nineteenth century. Its leader, Friedrich Carl von Savigny, opposed Thibaut's proposal (1814) to codify German law, arguing that law, like language, is found and not made: it grows out of the common consciousness of a people (Volksgeist). Legislation should come late and only record what custom has already formed. Puchta developed these ideas.

In England, Sir Henry Maine applied a comparative historical method; in Ancient Law (1861) he observed that the movement of progressive societies has been from status to contract. The school is criticised for overrating custom, ignoring legislation as an instrument of reform, and lending itself to nationalism. Indian students can contrast it with codification of Hindu law in the 1950s, which deliberately changed custom.

Example

A follower of the historical school would see the recognition of custom as a source of Hindu law as an example of law growing from the people.

See also

volksgeist · custom · legal positivism · sociological school

Read more in the study notes

• The historical school: Savigny, Puchta and Maine (Jurisprudence)
• Legal reasoning, the growth of law and the balance of stability and change (Judicial and Legislative Process)
• Law and public opinion (Judicial and Legislative Process)
• Legislation as a source of law: supreme and subordinate legislation, other sources, and social welfare (Judicial and Legislative Process)
• Jurisprudence: meaning, nature, scope, purpose and value (Jurisprudence)
• The natural law school (Jurisprudence)