The Law To Know

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Classical and early modern

The Historical School

Law grows out of a people's history and spirit, and cannot be invented from above.

Early 19th century · Germany, with an echo in Britain. Spotted a mistake? Tell us.

Read this first. This is a first map of a large subject. Each school is a family of views, and its thinkers often disagree with one another, so every summary simplifies. We describe each school in terms its own followers would accept and give the strongest criticism beside it. Read the original works before you cite anyone, and check your own course's reading list. This is general information, not legal advice.

What is law?

Law is a product of a people's shared consciousness (the Volksgeist), growing like language, first through custom and then through scholars and jurists, not an act of will by a legislator.

Law and morality

Law mirrors the culture and values of a community, and is judged by how well it fits that development rather than by abstract reason.

Where does its authority come from?

Custom and tradition, then legal science: the scholars who gather and organise the law.

How should judges decide?

Judges and scholars should respect the historical development, return to the sources (above all Roman law) and avoid hasty codification.

The question it asks

Should law be written into a code, or left to grow?

Main criticism

Critics said the 'spirit of the people' is vague and conservative, that it hid lawyers' own choices, and that it resisted needed reform.

Legacy today

Comparative law and legal history, the idea of law as culture, the debate about codification, and the German science of legal concepts.

Key thinkers

Friedrich Carl von Savigny, Georg Friedrich Puchta, Karl Friedrich Eichhorn, Henry Maine.

Key works

  • Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (1814)
  • Maine, Ancient Law (1861)

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Read further

Stanford Encyclopedia of Philosophy: philosophy of law (an overview). For the exact arguments, go to the original works above.

TheLawToKnow Tools’s guide to schools of legal thought is an educational overview. It is not legal advice. Report a mistake.