German historical school

Philosophical movement
This is an article about a school of thought in the area of law. For economics, see historical school of economics.
This article is part of a series on
Conservatism in Germany
Ideologies
  • Agrarian
  • Christian democracy
  • Liberal
    • Ordo
    • Ritter School
  • Monarchism
  • Nationalist
    • Neue Rechte
    • Völkisch
  • Paternalistic
    • State Socialism
  • Prussianism
    • Cameralistic
    • Socialist
  • Revolutionary
  • Romanticism
    • Right-Hegelianism
    • Historical School
  •  Conservatism portal
  • flag Germany portal
  • v
  • t
  • e

The German historical school of jurisprudence is a 19th-century intellectual movement in the study of German law. With Romanticism as its background, it conceived of law as the organic expression of a national consciousness (Volksgeist). It stood in opposition to an earlier movement called Vernunftrecht ('rational law').

Overview

The historical school is based on the writings and teachings of Gustav von Hugo and especially Friedrich Carl von Savigny. Natural lawyers held that law could be discovered only by rational deduction from the nature of man.

The basic premise of the German historical school is that law is not to be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people. The law is grounded in a form of popular consciousness called the Volksgeist.

Laws can stem from regulations by the authorities, but more commonly they evolve in an organic manner over time without interference from the authorities. The ever-changing practical needs of the people play a very important role in this continual organic development.

In the development of a legal system, is it the professional duty of lawyers – in the sense of the division of labor in society – to base their academic work on law on ascertaining the will of the people. In this way, lawyers embody the popular will.

The German historical school was divided into Romanists and the Germanists. The Romanists, to whom Savigny also belonged, held that the Volksgeist springs from the reception of the Roman law. While the Germanists (Karl Friedrich Eichhorn, Jakob Grimm, Georg Beseler, Otto von Gierke) saw medieval German law as the expression of the German Volksgeist.

The German historical school has had considerable influence on the academic study of law in Germany. Georg Friedrich Puchta and Bernhard Windscheid continued the Romanist vein founded by Savigny, leading to the so-called Pandektenwissenschaft which is seen as Begriffsjurisprudenz ('conceptual jurisprudence').

Criticism

Karl Marx devoted an 1842 essay "The philosophical manifesto of the historical school of law" to criticizing the historical school of law, calling it the "sole frivolous product" of the eighteenth century.

Hugo misinterprets his teacher Kant by supposing that because we cannot know what is true, we consequently allow the untrue, if it exists at all, to pass as fully valid. He is a sceptic as regards the necessary essence of things, so as to be a courtier as regards their accidental appearance. ... Everything existing serves him as an authority, every authority serves him as an argument.[1]

See also

References

Footnotes

  1. ^ Marx, “The philosophical manifesto of the historical school of law” (1842), Karl Marx Frederick Engels Collected Works (1975), vol. 2, p. 203

Bibliography

  • Alessandro Hirata, Die Vollendung des usus modernus pandectarum: Christian Friedrich von Glück (1755–1831), Savigny Zeitschrift 123 (2006), 330-342.
  • v
  • t
  • e
Countries
Movements
Themes
Writers
Brazil
France
Germany
Great
Britain
Poland
Portugal
Serbia
Spain
Russia
USA
Other
Musicians
Austria
Czechia
France
Germany
Italy
Russia
Serbia
Other
Philosophers
Visual artists
Related topics
Age of Enlightenment
Modernism

Category

  • v
  • t
  • e
Schools
by region
International
North America
Canada
United
States
Latin America
Argentina
Brazil
Chilean
Other
Asia
China
Israel
Japan
South Korea
Turkey
Other
Europe
France
Germany
Italy
Poland
Russia
Spain
United
Kingdom
Other
Oceania
Philosophy
Concepts
Philosophers
Politics
Organisations
Politicians
Religion
Historical
background
Related
Ideologies
  • Conservatism portal
  • Politics portal
  • Authority control databases: National Edit this at Wikidata
    • Germany
    • Israel
    • United States
    • Japan