19 Pages Posted: 12 Feb 2005
The historical school of jurisprudence needs to be revived in order to reconcile the two other major schools - positivism and natural-law theory - and thus to create an integrative jurisprudence that will respond to the historical challenges that confront the Western legal tradition in the twenty-first century.
Prior to the so-called Enlightenment of the 18th century, the three schools were not sharply separated. It was almost universally presupposed among Western legal philosophers that the tri-une God is the ultimate source of order, of justice, and of human destiny - all three. Thus it was possible to integrate in theological terms - despite differences between Roman Catholic and Protestant jurisprudence - the political, the moral, and the historical dimensions of law.
Today the positivist interprets legal rules according to their plain meaning or, in case of ambiguity, according to the policies they represent, while the naturalist considers also the implicit moral purposes of the rules in the light of the system of justice of which they are a part. Missing in the debate between them is a recognition of the normative significance of the historical dimension of law, which may permit or even compel an accommodation between politics and morality.
The historical school emerged as a separate school of legal philosophy in the early 19th century, after the positivist school had broken off from the natural law school. In arguing that Germany was not historically ready for the adoption of a civil code, Savigny wrote that "law is developed first by custom and belief of the people, then by legal science - everywhere, therefore, by internal, silently operating powers, not by the arbitrary will of the legislator."
In the late 20th century the historical school, which had predominated for almost a century, came under attack in Europe and America partly for exalting the spirit of the nation as the ultimate source of the development of law and partly for demeaning the positive role of the will of the lawmaker.
In the twenty-first century fundamental issues that now confront lawmakers require, for their proper solution, a broad historical perspective. The Western legal tradition is now in crisis partly because of the weakening of the belief system on which it was originally based and partly because it now confronts other legal traditions in the gradual construction of a body of transnational and transcultural world law.
Suggested Citation: Suggested Citation
Berman, Harold, The Historical Foundation of Law. Emory Law Journal, Vol. 54, 2005. Available at SSRN: https://ssrn.com/abstract=666123