Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THE HISTORICAL SCHOOL OF LAW

Nnamdi Ebo 2Lawyer Zone  | By Nnamdi Ebo | The Historical School of Law.

1. Historical School of Jurisprudence.

The Historical School had an overall German connotation based on the writings and teaching of Gustav Hugo (1764–1844) and especially Friedrich Carl von Savigny (1779–1861). The premise of the 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 German 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 of any legal system. The Historical School was divided into Romanists and the Germanists. The Romantists, to whom Savigny 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 Historical School has had considerable influence on the academic study of law in Germany.

In this famous pamphlet Savigny did not oppose the introduction of new laws, or even a new system of laws, but only objected to the proposed codification on two grounds as follows:

  1. That the damage which had been caused by the neglect of former generations of jurists could not be quickly repaired.
  2. That there was great risk of the so-called natural law, with its “infinite arrogance”

Carl von Savigny’s first volume of Geschichte des römischen Rechts im Mittelalter appeared in 1815 – (“History of Roman Law in the Middle Ages”), the last of which was not published until 1831. This work, to which his early instructor Weiss had first prompted him, was originally intended to be a literary history of Roman law. His design was in some respect narrowed; in others it was widened.

He did not continue the narrative beyond the 16th century, when the separation of nationalities disturbed the foundations of the science of law. His treatment of the subject was not merely that of a bibliographer; it was philosophical. It revealed the history of Roman law, from the breaking up of the empire until the beginning of the 12th century, and showed how, though considered dead, the Roman law lived on in local customs, in towns, in ecclesiastical doctrines and school teachings, until it blossomed out once more in full splendor in Bologna and other Italian cities.

Lawyer zoneThis history was the parent of many valuable works in which Savigny published the result of his investigations. In 1817 he was appointed a member of the commission for organizing the Prussian provincial estates, and also a member of the department of justice in the Staatsrath (“State council”), and in 1819 he became a member of the supreme court of appeal for the Rhine Provinces. In 1820 be was made a member of the commission for revising the Prussian code. In 1853 he published his treatise on Contracts, a supplement to his work on modern Roman law, in which he clearly demonstrates the necessity for the historical treatment of law. (See H. Kantorowicz, ‘Savigny & the Historical School of Law’ (1937) 53 L.Q.R 326

  1. Historical School of Jurisprudence

As mentioned above, the historical school of jurists was founded by Friedrich Karl von Savigny. Its central idea was that a nation’s customary law is its truly living law and that the task of jurisprudence is to uncover this law and describe in historical studies its social provenience. As in other schools of thought, acceptance of this approach did not necessarily mean agreement on its theoretical or practical consequences.

To followers of Savigny the identification of law with To followers of Savigny the identification of law with custom and tradition and the Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism and natural law; a rejection of the notion of law as the command of the state or sovereign, and therefore a disparagement of legislation and codification; and a denial of the possibility of universally valid rights and duties and of the individual’s possession of nonderivable and inalienable rights.86 In positive terms, historical jurisprudence identified law with the consciousness, or spirit, of a specific people.

Law is “found” by the jurist and not “made” by the state or its organs. Law is a national or folk and not a political phenomenon; it is a social and not an individual production; like language, it cannot be abstracted from a particular people and its genius; it is a historical necessity and not an expression of will or reason, and therefore it cannot be transplanted.

Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or natural law. Historical events, like the Nigerian civil war (1967-1970), are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views.

Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for historical jurisprudence in their legal philosophy. Historical jurisprudence predominated in some countries of Europe as well as in the United States in the late nineteenth and early twentieth centuries and has played an important role in the thinking of American judges and lawyers down to the present day, especially in constitutional law and in those areas of the law in which the common law tradition is still taken seriously. Indeed, it is the foundation of the English and American doctrines of precedent. It is pertinent to reiterate that the historical school of jurisprudence with its bent on historical events is the primogenitor of the doctrines of precedent or stare decisis.

__________________________________

86. See: Allen, C. K. Law in the Making, 7th ed. Oxford: Clarendon Press, 1964. 2.

_________________________________________________________________________________________

Legal Method . Book Cover

Culled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012

Buy the book, Legal Method  |  Click  Bookshop

Nnamdi Ebo [email protected]  |  © 2014 Nnamdi Ebo . All Rights Reserved

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*

* Copy This Password *

* Type Or Paste Password Here *

48,361 Spam Comments Blocked so far by Spam Free Wordpress

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>