The historical and anthropological school: Savigny, Puchta, Hegel, Maine and Gierke

1. Background

The historical school reacted against two things: the rationalist natural law of the eighteenth century, which claimed universal rules valid everywhere, and the French Revolution and the Napoleonic Code (1804), which suggested that a legislator could remake a society’s law in a single act. Romanticism, with its interest in national character, folk culture and the organic growth of institutions, supplied the method. In England, Burke had made a similar case for tradition against revolutionary reconstruction.

2. Friedrich Karl von Savigny (1779–1861)

The codification controversy. In 1814 A.F.J. Thibaut proposed a common civil code for the German states. Savigny replied in Of the Vocation of Our Age for Legislation and Jurisprudence (1814). Germany, he argued, was not ready: its legal science was too immature and a code made now would freeze a poor understanding of law. His other major works were the History of Roman Law in the Middle Ages and the System of Modern Roman Law, and a treatise on possession (see Legal Concepts, possession).

The main tenets.

1. Law is found, not made. Law, like language, manners and constitution, is a product of the common consciousness of the people; it grows with the people, strengthens with them and dies away when the nation loses its individuality.
2. Volksgeist. The source of law is the spirit of the people (the term was popularised by Puchta). Law is not arbitrary; it reflects shared beliefs.
3. Custom precedes legislation. Law develops first in custom and popular belief, then through jurists, who express it technically. Legislation comes last and should only state what already exists.
4. Law is national, not universal. There is no law valid for all times and places; each people has its own.
5. The jurist’s role. As society becomes complex, jurists represent the people in legal matters and develop the law scientifically; a code should await a mature legal science.

Criticism.

• The paradox of Roman law. Savigny championed the reception of Roman law in Germany, which was hardly the product of the German Volksgeist.
• The Volksgeist is vague and treats a nation as uniform; whose spirit (lord or peasant, majority or minority) counts?
• Legislation can lead. Laws against sati (Bengal Sati Regulation, 1829), the Hindu Widows’ Remarriage Act, 1856, the abolition of untouchability (Article 17), and the Hindu Code statutes of 1955–56 changed social practice rather than recording it.
• Conservatism. The school can be used to block reform; its hostility to codification delayed German codification until the BGB (1900).
• Positive contribution. It taught that law must be understood in its social and historical context, opened the way to the sociological and anthropological schools, and warned legislators against transplanting rules that do not fit.

3. Georg Friedrich Puchta (1798–1846)

Savigny’s pupil, Puchta refined the theory. He traced the Volksgeist to the conflict between the individual will and the general will of the people, and he recognised that the State is the organised expression of the people. He emphasised the “genealogy of concepts”: legal concepts derived from one another in a pyramid, which led towards the conceptual jurisprudence (Begriffsjurisprudenz) that Ihering later mocked. Puchta gave legislation a larger role than Savigny did.

4. Hegel

G.W.F. Hegel (Philosophy of Right, 1820) saw history as the dialectical self-realisation of spirit (Geist) towards freedom: thesis, antithesis, synthesis. Each people expresses a stage in that development; the State is the actuality of the ethical idea and of concrete freedom. Hegel connects the historical school with Marx, who kept the dialectic but replaced spirit with material conditions, and with Kohler’s view of law as an expression of civilisation.

5. Sir Henry Maine (1822–1888)

Maine (Ancient Law, 1861; Village Communities in the East and West, 1871; Early History of Institutions, 1875) was Legal Member of the Governor-General’s Council in India from 1862 to 1869. He applied comparative and historical method to Roman, Hindu and English law, and is the founder of legal anthropology.

Stages of legal development.

1. Themistes: law as the inspired judgments of a king, believed divine.
2. Customary law: an aristocracy (priestly, military or political) holds and administers custom as a monopoly.
3. Codes: custom is written down, as in the Twelve Tables in Rome or the laws of Manu in India.

Static and progressive societies. Most societies stop at codes. Progressive societies (Western Europe, in his view) keep bringing law into harmony with social change through three agencies, in historical order: legal fictions, equity, and legislation.

Status to contract. In early society the unit is the family, and a person’s rights and duties are fixed by status: birth into a family, a caste, servitude. As societies progress, the individual becomes the unit, and relations are increasingly created by free agreement. Maine’s conclusion is often quoted exactly: “the movement of the progressive societies has hitherto been a movement from Status to Contract.”

Assessment. The welfare state reversed part of the movement: labour law, consumer law, tenancy and land reform laws, and reservations fix rights by category rather than agreement. Some call this a movement from contract back to status, or to standard-form relations fixed by statute. Maine also relied on limited and partly second-hand material about India, and his attack on Austin (Ranjit Singh ruled without making law) remains a classic criticism of the command theory.

6. Gierke and the anthropologists

Otto von Gierke (Das deutsche Genossenschaftsrecht, 1868–1913) represented the Germanist wing of the school, which looked to native Germanic law rather than Roman law. He argued that associations (guilds, towns, churches) are real social organisms with a will of their own, not fictions created by the State. This is the realist theory of corporate personality, introduced to English readers by Maitland’s translation of part of the work as Political Theories of the Middle Age (1900). See Legal Concepts, legal personality.

Later anthropologists, notably Bronisław Malinowski (Crime and Custom in Savage Society, 1926), showed that reciprocity rather than sanction secures obedience in societies without courts, and E. Adamson Hoebel and Llewellyn (The Cheyenne Way, 1941) studied law through trouble cases. They extend Maine’s method and support the sociological school.

7. The historical school in India

• Personal laws, custom and usage remain sources of law. Customary rights are recognised if ancient, certain, reasonable and not opposed to public policy, and statutes such as the Hindu Marriage Act, 1955 preserve custom in places.
• Custom does not survive Part III. In Shayara Bano v. Union of India, 2017 INSC 785, a practice of long standing was set aside, and in the Sabarimala case (Indian Young Lawyers Association v. State of Kerala, 2018 INSC 908) the majority held that exclusion of women was not an essential religious practice.
• The debate over a Uniform Civil Code (Article 44) repeats Thibaut and Savigny: codification for national unity against respect for community law. Uttarakhand enacted a Uniform Civil Code in 2024.

How this is examined

For Savigny: background, the codification controversy, the five tenets, Puchta in a paragraph, criticism, and India. For Maine: the three stages, static and progressive societies, the three agencies, status to contract and its reversal. A short note on the historical school should name Savigny, Puchta, Maine and Gierke and give one criticism of each.