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The Germanists and the Historical School of Law
Historical Background
The Holy Roman Empire fell in 1806 during the Napoleonic Wars. The question of a German
nation came up after this, as well as a need for a political constitution, a common legal order
and an identity, for the sake of political legitimation1.
Code Civil was rejected in the German states which regained their independence following
the Napoleonic Wars. A debate arose on whether the gap in the law should be filled by new
local codes or if there should be a return to the Gemeines Recht based on Roman law. There
were also voices raised that wanted a general civil code for all Germany. Savigny, founder of
the Historical School, opposed a codification2. A codification, Savigny argued, is not suitable
for development. If a code is one day to actually to be found useful, it should build on a
historical understanding of Germany’s legal history3. The historical background is, according
to Dilcher, of great importance as to understanding The Historical School and its influence.
Gerhard Dilcher’s Report
Dilcher specifically analyses the development of scientific innovations in law rather than
legal methodology, the concept of law, the politics of law or the social background. He states
that these different concepts do not create a single legal principle but must, instead, be taken
independently in their own contexts, hence why he has only focused on one of them. In his
analysis, he recognises that German legal science was influenced by the European scientific
enterprise as a whole whilst also taking into account the Romanist element. He touches on the
battle between theories that consider the romanticism of German culture and those that
respect the rationalism of its Roman law origins. The whole report revolves around Savigny’s
Historical School which is the theory he begins with. From there he discusses legal systems,
the movement from enlightenment to modernity, and the rationalisation of systems, linking
everything back to the influence of the Historical School. His analysis shows the background
to National Socialism and the German welfare state and gives us the foundations behind the
West’s acceptance of a large spectrum of cultures. Weber’s rationalisation theory and the
impact of revolutions both allow this way of life although they are incapable of working
together towards that aim.
Savigny and the Historical School of Law
1
Dilcher, Gerhard. The Germanists and the Historical School of Law: German Legal Science between
Romanticism, Realism, and Rationalization. Journal of the Max Planck Institute for European Legal History,
2016, p. 23ff.
2
Robinson, O. F., Fergus, T. D. & Gordon, William M., European legal history: sources and institutions, 3. ed.,
Butterworth, London, 2000, p. 269.
3
Ibid.
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Dilcher places the founding of the Historical School of Law at 1815, after Savigny’s
publication of Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft and the
creation
of
the
Zeitschrift
für
geschichtliche
Rechtswissenschaft.
Dilcher sees in Savigny’s work six fundamental ideas that links the work to Romanticism:
1.
2.
3.
4.
5.
Recourse to the historical beginnings as origin, nature.
Law exists at first in unity with language, morals, and order as an emanation of folk
belief.
The organic connection between people and law exists within a more universal
concept of culture, founded on language, morals, order.
Culture is a collective product in all aspects.
Law as part of culture is depicted as a unitary phenomenon; and it can only be
understood as such.
6.
The connection to people’s consciousness and life, to nature and culture meant a
“Romanticizing” of the law in its basic definition developed by Novalis.
The development from the state of nature means that morals and people’s belief no longer
create law, jurisprudence does. Savigny didn’t agree with Enlightenment thought and wanted
the creation of law to continue through internal forces acting quietly. In the “Specialists’
doctrine” Savigny reassigns the responsibility for the continued development of law “under
advanced cultural conditions” from the mind of the people to the jurist. Jurists are, as Dilcher
points out, law’s executive agents.
As mentioned before, there was in the German states at the time surrounding the founding of
the Historical School a problem with the legitimation of law. Neither the historical
legitimation of ius commune in Usus modernus Pandectarum or the legitimation of natural
law was longer applicable. Savigny didn’t see the legitimacy issue being solved through
legislation. Savigny’s scheme of legitimacy built on Antiquity. In this scheme, the Roman ius
commune and the Germanic-German particular law are two pillars that together should
provide the foundations of a new German legal science, and thus legitimacy.
The Historical School of Law later developed into two branches, The Romanists and The
Germanists. These branches were already constituted because of the two bodies of the
legitimacy of law. Since they had different provisions, they developed in two directions
concerning subject matter, methods and political school, but the foundation for The
Romanists and The Germanists were still the same. The Romanists followed Savigny’s path
and thought learned Roman law essential for German law while The Germanists thought that
German law needed to be found in Germanic law.
Max Weber and Rationalisation
Pandectism, the development of bringing together conflicting elements of law, received
criticism in the second half of the 19th century towards the way jurisprudence withdrew into
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a state of legal-scientific autonomy and its lack of connection with the people in terms of
language and content. These points led to the elaboration of rationalisation in law.
Max Weber, as a student, found Roman legal history more interesting than the systematic
lectures of Pandectist theory and he went on to apply rationalisation to German legal science
of the 19th century. His methodology is plagued with misunderstandings so Dilcher
emphasises that it is a concept constructed on the basis of an exaggeration of empirical
observations used for the precise analysis of reality. At the time of Weber’s writings, he was
convinced that the modern-day civil doctrine had achieved the highest measure of this
methodological rationality.
Weber was negative in his assessment of the Historical School. Practical demands had been
derived from irrational concerns which were not easy to incorporate into the rationalisation of
law. These practical legal concerns had been neglected during the development of Pandectist
theory in the Historical School and this opened up a pathway for abstract legal logic trying to
form legal systems. A full reorganisation was not possible under these ideals so the work of
the Pandectist theorists remained unfinished. Some of the demands placed on the law, which
Weber felt resulted in expectation, were seen by ideologists as justice and human dignity.
This saw formalism of law, which had developed a system of law, begin to question its
foundation. Weber viewed this as exaggerated rationalisation and unconditional selfcontemplation of legal thought which ultimately led to movement against legal logic and
history. A system of law without gaps to cater for the unexpected was one of the aspects that
he believed the Pandectist theory took too far along with classification of law and the abstract
nature of concepts.
Otto von Gierke and Social Aspects
Germanist and romantic legal historian Otto von Gierke, who considered himself part of
germanist tradition of the Historical school of law, is known for introducing general clauses
in the German begriffsjurisprudenz and elaborating the concept of “Genossenschaft”.
Otto Gierke's legal perspective rests on a germanist considerations of Roman and Canon law
as well as political theory associated with it.
He was also influenced by romanticism, realism and rationalization. Romanticism can be
seen in the attributes to the principle of Genossenschaft which emanates from a spirit unique
to the Germanic people. His focus on German law was how it could be used to realize the
spirit of the German people. Conceptually, the realization would emerge through dialectic
relations between authority and Genossenschaft, where authority came from the imperials and
the genossenschaft from individuals who formed associations. Along with the thematization
of modern themes he could approach a question from a social point of view which allowed
conservative values to be combined with an openness towards society.
Even though Gierke’s primary legal area was in private law he frequently took in standpoints
in the area of public law. In die Grundbegriffe of 1874 he takes a position in-between logical
formalism and metaphysics when criticizing Labands Staatsrecht for reducing legal
methodology to pure logic positivism. Gierke also used the concept of genossenschaft in the
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area of public law e.g. to separate the state from another legal entity.
20th Century Consequences
Although the effects of the Historical School of Law focused on 19th century, the
consequences were extended to 20th century. In his text, Dilcher is dealing with these
consequences in relation to the new political and constitutional situation as well as the
internal and external crises of the 20th century. He pays attention especially to World War I,
the German Revolution and the following Weimar Republic. The legal scholarship of the 19th
century was able to provide a basis for continuity in these difficult times.
Dilcher mentions a few developments in which the 19th century’s Historical School was
impacted: a more open civil law, development of labor contract and a discussion about the
foundation of law in the area of constitutional law. Also the methodological dispute
continued in the form of the famous battle of methodology in the 1920s between
constitutional positivism and humanist methods.
20th century German scholars were inspired by former scholars. In his text Dilcher introduces
many scholars and an extra attention he pays to Fritz Kern, a German historian, who,
according to Dilcher, has a special significance for legal history. In the text, he’s work is
considered to be the basis of the scientific discussion about the concept of law in the Middle
Ages. After World War I German medievalists were developing a new perspective on the
Middle Ages. It was perhaps a way to create a new identity? The modern concept of law was
that way projected back to earlier times when the state did not yet exist. Legal studies were
reshaped by comparing the guiding ideas backward in time. The ideas of the Historical
School of Law had not been forgotten in the 20th century.
Analysis
Civil Law vs Common Law
Dilcher understands that finding national identity depends on the study of legal history so that
we know which aspects are national in origin. Germany is a relatively young nation so relied
on history to construct their legal framework and constitution. Older countries such as Britain
have not required this reliance because the law has developed organically through time. Both
ways have caused issues: Germany’s quest for national identity resulted in ideas which
fuelled the Nazi party, and Britain’s way of allowing the law to develop naturally has meant
that tyrannical kings could act unchecked and confusion has been caused for lawyers and
clients in court.
Systematic development gave law to the people through the system of jurists however, the
laws that they have to follow are created by jurisprudence so only the application of law
belongs to the people and then only to a small number. In Britain, judges are usually
appointed after long service with the bar and have often attended private schools and
prestigious universities. How can this predominantly white, male role properly represent the
whole population? German judges are more representative as they apply for a role in the
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judiciary and work their way upwards rather than being appointed. Judges at the highest
courts have to be elected.
Dilcher’s article revolves around Savigny’s Historical School covering systematisation,
modernity and rationalisation. Even though it is a “Historical School of Law”, it was very
much focused on the current application of law, only using history to understand why it
needed to develop. This is still better than the common law way of applying law without
understanding why when it must be difficult to move forward in the correct manner without
first knowing all of the past issues.
The development of systems led to the Civil Law Code and the idea of systems came from
Justinian law (it was the only aspect of Justinian law that Savigny supported). As Britain did
not take inspiration from Roman law, there was no reason within the common law system to
codify laws in this manner.
Disagreements
Dilcher analyses scientific innovations in law rather than legal methodology, the concept of
law, politics of law or the sociology of law. These concepts, in his view, do not come
together to create a single legal principle but must be taken independently in their own
contexts. However, for a full insight into legal history, we must surely look at every influence
together to properly understand the reasons behind development. For example, we can take
the development of religious freedom in Europe: firstly, the religious issues in Britain at the
start of the Stuart era forced the Puritans to seek a new life in the colonies. Then, the political
issues of representation in government led to the American war of independence and the
drafting of the Bill of Rights. The influence of the war on society, including the French
soldiers, led to them taking the ideas behind fundamental rights to Europe and forming the
French Declaration which issued religious freedom. Politics, religion and sociological effects
all linked together here to bring one very important legal principle to Europe. Taking each
independently would not make us aware of the bigger picture and would not answer the why.
Dilcher praises Savigny’s legitimisation of legal history through his connecting it to the
people. Surely the history of law has always been connected to people through their actions,
religions, culture and, in the common law, through their crimes. Savigny did not need to
“legitimise” it because it already did what he was connecting in the first place.
If there are, as Dilcher says, a lot of misunderstandings in Max Weber’s methodology, how
do we know that Dilcher’s explanation of it is a correct one?
Agreements
Savigny was right not to support more of Roman law despite being surrounded by
Romanticists because much of it no longer applied in civil European society. For example,
the laws on slave-owning were no longer required, making way for laws on liberty and
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equality. Perhaps the European legal philosophers should have taken this development and
applied it to the colonies or looked to Roman law for a way to regulate it which would have
been better than nothing.
Dilcher manages to cover a lot of ground considering he is just discussing the scientific
innovations. He discusses the development over three centuries and includes theories from
socialist scholars, Romanists, Romantics, Germanists, Realists and Rationalists to name a
few.
He doesn’t only discuss the development of legal science but also considers the consequences
that the development had. Everything has consequences, especially developments because,
unless there needed to be change, the developments wouldn’t have been made in the first
place and it is the consequences we see that will prove the success of the developments.
Bibliography
Dilcher, Gerhard. The Germanists and the Historical School of Law: German Legal Science
between Romanticism, Realism, and Rationalization. Journal of the Max Planck Institute for
European Legal History, 2016
Robinson, O. F., Fergus, T. D. & Gordon, William M., European legal history: sources and
institutions, 3. ed., Butterworth, London, 2000
Dilcher manages to cover a lot of ground considering he is just discussing the scientific
innovations. He discusses the development over three centuries and includes theories from
socialist scholars, Romanists, Romantics, Germanists, Realists and Rationalists to name a
few.
He doesn’t only discuss the development of legal science but also considers the consequences
that the development had. Everything has consequences, especially developments because,
unless there needed to be change, the developments wouldn’t have been made in the first
place and it is the consequences we see that will prove the success of the developments.
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