The historical school: Savigny, Puchta and Maine

1. Origin

The historical school arose in Germany at the start of the nineteenth century as a reaction against two ideas of the eighteenth: natural law, which claimed universal rules valid for all peoples, and the belief, inspired by the French Revolution and the Code Napoleon, that a legislator could make a complete and rational code. Montesquieu had earlier argued that laws must suit the climate, religion and customs of each nation, and Burke had defended institutions that grew over time.

2. Savigny

Friedrich Carl von Savigny (1779–1861) wrote his pamphlet On the Vocation of Our Age for Legislation and Jurisprudence (1814) in reply to Thibaut, who proposed a single civil code for the German states on the French model. Savigny opposed codification at that time, and in doing so stated his theory.

• Law is found, not made. It is the product of the Volksgeist, the common consciousness or spirit of the people. It grows with the people, strengthens with them, and dies when the nation loses its individuality.
• Law is like language. Neither is invented by any one person; both arise from the life of the community and differ from one people to another.
• Custom precedes legislation. Custom is the purest expression of the popular spirit and is superior to legislation. Legislation should only give form to what the people already accept.
• Law is not universal. Because it reflects a particular people, it cannot be transplanted from one nation to another.
• The role of the jurist. In a developed society the jurists become the representatives of the popular consciousness; they refine and systematise law. Codification should wait until the law has been fully studied.

3. Puchta

Georg Friedrich Puchta, Savigny’s pupil, developed the theory. He traced the growth of law from the individual’s idea of right to the general will of the community, and gave more room than Savigny to the State, which arises from the people and through which the popular spirit finds expression in law. He thus partly bridged the gap between the historical school and legislation.

4. Sir Henry Maine

Maine (1822–1888) brought the historical method to England in Ancient Law (1861). He then served as Law Member of the Governor-General’s Council in India (1862–1869), and in later works, such as Village Communities in the East and West, used Indian village life and Hindu law as evidence. Unlike Savigny he used the comparative method, studying many legal systems to find common patterns of growth.

Four stages of legal development (for progressive societies):

• law by personal commands of a ruler believed to act under divine inspiration (themistes);
• customary law, known to and administered by a privileged minority such as priests;
• codes, when writing spread and the customs were recorded (the Twelve Tables, the code of Manu);
• in progressive societies, further growth through legal fictions, equity and legislation, in that order. Static societies stop at the code.

From status to contract. Maine’s best-known conclusion: “the movement of the progressive societies has hitherto been a movement from Status to Contract.” In early law a person’s rights and duties were fixed by his birth into a family, caste or class. In modern law they are increasingly the result of his own free agreement. The proposition must be qualified for the twentieth century, when labour, consumer and tenancy legislation again fixed rights by status (worker, consumer, tenant) regardless of contract.

5. Savigny and Maine compared

• Method. Savigny studied the law of one people, German and Roman law; Maine compared many systems, Roman, English, Hindu and early Germanic.
• Outlook. Savigny was a nationalist who stressed the uniqueness of each people’s law. Maine looked for patterns common to all progressive societies.
• Legislation. Savigny distrusted it. Maine accepted it as the last and most powerful stage of legal development in a progressive society.
• Common ground. Both held that law grows out of the life of a society over time and cannot be understood without its history.

6. Criticisms

• The Volksgeist is vague. A nation has many groups with different customs; there is rarely one popular consciousness.
• Much law did not arise from popular feeling: reception of Roman law in Germany, and English law in India, were the work of rulers and jurists.
• The school undervalues legislation, which is today the main instrument of reform. Savigny would have frozen law at the level of popular custom.
• Custom can be bad: sati and untouchability were customs, and were abolished by legislation.
• Savigny’s nationalism was later used to support racial theories of law.

7. Merits and Indian illustration

The school taught that law must be studied in its setting, and that a law out of step with the habits of a people will not be obeyed. Indian personal law illustrates both sides. Hindu and Muslim law grew over centuries from scripture and custom, and the courts continue to give effect to proved custom against the text; Article 13(3)(a) treats custom and usage having the force of law as “law”. But the Hindu Code legislation of 1955–56 and the abolition of untouchability by Article 17 show legislation leading popular sentiment rather than following it, which Savigny would not have accepted.

How this is examined

As an essay: “Explain the historical school of jurisprudence” or “Discuss Savigny’s theory of Volksgeist.” As a short note: Volksgeist, or “From status to contract.” Open with the codification controversy, set out Savigny’s propositions, give Maine’s stages and formula, and end with criticisms and the Indian example. The status-to-contract formula needs its twentieth-century qualification for full marks.