Copyright (c) 2004 The University of Notre Dame The American Journal of Jurisprudence ARTICLE: ON THE HISTORICAL SCHOOL

OF JURISPRUDENCE
2004 49 Am. J. Juris. 165

Author
ROBERT E. RODES, JR.

Excerpt
Among schools of jurisprudence, the Historical School is like a poor and slightly eccentric relation. Everyone is polite to it, and no one explicitly disowns it, but no one really takes it seriously. Some writers mention its contribution to historical scholarship or its role in building up the intellectual life of nineteenth century German universities. Others have found it a forerunner of sociological jurisprudence on the one hand and Nazism on the other. Sir Carleton Kemp Allen, in his classical Law in the Making, says of Friedrich Karl von Savigny (1779-1861), the founder of the school: If Savigny was an evolutionist before the evolutionists, so he was a sociologist before the sociologists. Without disrespect to their scholarly genius, it is difficult not to feel that unconsciously (for they could hardly guess what would be built on the foundations which they laid) Savigny and his followers were National Socialists before the National Socialists. 1 But what Savigny and his followers really were was a school of jurisprudence -- a way of looking at the enterprise of making and applying law. As is the case with other schools, we can learn things about jurisprudence from considering carefully what they have to say, even if we cannot follow them all the way. The basic tenet of the school is that law in its essence is not something imposed on a community from above or from without, but is an inherent part of its ongoing life, an emanation of the spirit of ...

From the Latin term juris prudentia, which means "the study, knowledge, or science of law"; in the United States, more broadly associated with the philosophy of law. Legal philosophy has many branches, with four types being the most common. The most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to Constitutional Law. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The purpose of this type of study is to enlighten each field of knowledge by sharing insights that have proven to be important in advancing essential features of the compared discipline. The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by oliver wendell holmes jr., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal

responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness. The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, What is law? How does a trial or appellate court judge decide a case? Is a judge similar to a mathematician or a scientist applying autonomous and determinate rules and principles? Or is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? Must a judge base a decision only on the written rules and regulations that have been enacted by the government? Or may a judge also be influenced by unwritten principles derived from theology, moral philosophy, and historical practice? Four schools of jurisprudence have attempted to answer these questions: formalism proposes that law is a science; realism holds that law is just another name for politics; Positivism suggests that law must be confined to the written rules and regulations enacted or recognized by the government; and naturalism maintains that the law must reflect eternal principles of justice and morality that exist independent of governmental recognition. Modern U.S. legal thought began in 1870. In that year, Holmes, the father of the U.S. legal realist movement, wrote his first major essay for the American Law Review, and Christopher Columbus Langdell, the father of U.S. legal formalism, joined the faculty at Harvard Law School.

Formalism
Legal formalism, also known as conceptualism, treats law like a math or science. Formalists believe that in the same way a mathematician or scientist identifies the relevant axioms, applies them to given data, and systematically reaches a demonstrable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority, including state and federal constitutions, statutes, regulations, and case law. For example, most states have enacted legislation that prohibits courts from probating a will that was not signed by two witnesses. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been witnessed by at least two persons, the court can quickly deduce the correct legal conclusion in a formalistic fashion: each will that has been signed by fewer than two witnesses will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated. Formalists also rely on inductive reasoning to settle legal disputes. Whereas deductive reasoning involves the application of general principles that will yield a specific rule when applied to the facts of a case, inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes

in the future. griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example. In Griswold, the Supreme Court ruled that although no express provision of the federal Constitution guarantees the right to privacy, and although no precedent had established such a right, an individual's right to privacy can be inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments and the cases interpreting them. English jurist Sir Edward Coke was among the first to popularize the formalistic approach to law in Anglo-American history. Coke believed that the Common Law was "the peculiar science of judges." The common law, Coke said, represented the "artificial perfection of reason" obtained through "long study, observation, and experience." Coke also believed that only lawyers, judges, and others trained in the law could fully comprehend and apply this highest method of reasoning. The rest of society, including the king or queen of England, was not sufficiently learned to do so. Langdell invigorated Coke's jurisprudence of artificial reason in the United States during the second half of the nineteenth century. Langdell compared the study of law to the study of science, and suggested that law school classrooms were the laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the reasoning used in geometric proofs. He urged professors of law to classify and arrange legal principles much as a taxonomist organizes plant and animal life. Langdell articulated what has remained the orthodox school of thought in U.S. jurisprudence throughout the twentieth century. Since the early 1970s, Professor ronald m. dworkin has been the foremost advocate of the formalist approach with some subtle variations. Although Dworkin stops short of explicitly comparing law to science and math, he maintains that law is best explained as a rational and cohesive system of principles that judges must apply with integrity. The principle of integrity requires that judges provide equal treatment to all litigants presenting legal claims that cannot honestly be distinguished. Application of this principle, Dworkin contends, will produce a "right answer" in all cases, even cases presenting knotty and polemical political questions.

Realism
The realist movement, which began in the late eighteenth century and gained force during the administration of President franklin d. roosevelt, was the first to attack formalism. Realists held a skeptical attitude toward Langdellian legal science. "The life of the law has not been logic, it has been experience," Holmes wrote in 1881. Realists held two things to be true. First, they believed that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by Balancing the interests of the parties and ultimately drawing an Arbitrary line on one side of the dispute. This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge.

For example, when a court is asked to decide whether a harmful business activity is a common-law Nuisance, the judge must ascertain whether the particular activity is reasonable. The judge does not base this determination on a precise algebraic equation. Instead, the judge balances the competing economic and social interests of the parties, and rules in favor of the litigant with the most persuasive case. Realists would thus contend that judges who are ideologically inclined to foster business growth will authorize the continuation of a harmful activity, whereas judges who are ideologically inclined to protect the environment will not. Second, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society's poorest and weakest members, many states began drafting legislation that established a Minimum Wage and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movement, which reflected many of the realists' concerns. The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the Fourteenth Amendment of the U.S. Constitution. U.S. realists claimed that the Supreme Court justices were simply using the freedom-ofcontract doctrine to hide the real basis of their decision, which was their personal adherence to free-market principles and laissez-faire economics. The realists argued that the freemarket system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the employment-at-will doctrine, which permits an employer to discharge an employee for almost any reason. These laws, the realists asserted, promote the interests of the most powerful U.S. citizens, leaving the rest of society to fend for itself. Some realists only sought to demonstrate that law is neither autonomous, apolitical, nor determinate. For example, jerome frank, who coined the term legal realism and later became a judge on the U.S. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what he or she ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. karl llewellyn, another founder of the U.S. Legal Realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases. Since the mid-1960s, this theme has been echoed by the Critical Legal Studies movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic prejudices. For example, feminist legal scholars have pilloried the Supreme Court's decision in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), for offering women less protection against governmental discrimination than is afforded members of other minority groups. Gay legal scholars

similarly assailed the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), for failing to recognize a fundamental constitutional right to engage in homosexual Sodomy. The Supreme Court's 2003 decision in Lawrence v. Texas 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, that overturned the Bowers holding was a vindication for gay rights jurisprudence. Other realists, such as Roscoe Pound, were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurisprudence in the United States. According to Pound, the aim of every lawwhether constitutional, statutory, or caseshould be to enhance the welfare of society. Jeremy Bentham, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society. Bentham's theory, known as Utilitarianism, continues to influence legal thinkers in the United States. Law and economics is one school of thought that traces its lineage to Benthamite jurisprudence. This school, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics exponents, such as richard posner, each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange something they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind. This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society. Another school of thought Bentham influenced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities. Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a "grab bag" of "anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intuition, and induction" to reach the appropriate balance (Posner 1990, 73). Pragmatism, sometimes called instrumentalism, is best exemplified by Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards." This school of thought is associated with result-oriented jurisprudence, which focuses more on the consequences of a judicial decision than on how the relevant legal principles should be applied.

The Realist-Formalist Debate

The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialogue between the positivist and natural-law schools of thought. This dialogue revolves around the classic debate over the appropriate sources of law. Positivists maintain that the only appropriate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law. These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspirational, and may not be legitimately consulted by judges when rendering a decision. Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition. Depending on the particular strain of Natural Law, these principles may be derived from theology, moral philosophy, human reason, historical practice, and individual conscience. The dialogue between positivists and naturalists has a long history. For many centuries, historians, theologians, and philosophers distinguished positivism from naturalism by separating written law from unwritten law. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor Justinian I (a.d. 482565) reduced most of his country's laws to a voluminous written code. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transcended the written law promulgated by human beings. Prior to the American Revolution, English philosophers continued this debate along the same lines. English political thinkers John Austin and Thomas Hobbes were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and police force. First intimated by Italian philosopher Niccol Machiavelli, the "sovereign command" theory of law has been equated in the United States with the idea that might makes right. Contrasted with the writings of Hobbes and Austin were the writings of John Locke in England and Thomas Jefferson in America. In his Second Treatise on Government (1690), Locke established the idea that all people are born with the inalienable right to life, liberty, and property. Locke's ruminations about individual rights that humans possess in the state of nature prior to the creation of government foreshadowed Jefferson's Declaration of Independence. In 1776, the Declaration of Independence announced the self-evident truth that "all men are created equal" and are "endowed by their Creator with certain inalienable Rights," including the right to "Life, Liberty and the pursuit of Happiness." Both positivism and naturalism have had an enormous influence on how U.S. citizens think

about law. The institution of AfricanAmerican Slavery, which was recognized by the U.S. Constitution and legalized by legislation passed in the South prior to the Civil War (1861 65), was attacked by abolitionists who relied on higherlaw principles of religion and conscience to challenge the moral foundations of human bondage. Following World War II, the Allied powers successfully prosecuted German government officials, industrialists, and military leaders in Nuremberg for committing Genocide against European Jewry, even though the Nazi regime had passed laws authorizing such extermination. The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law.

Historical Jurisprudence
Positivists and naturalists tend to converge in the area of historical jurisprudence. 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 Civil War, 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. For example, Justice Holmes was considered a positivist to the extent that he believed that courts should defer to legislative judgment unless a particular statute clearly violates an express provision of the Constitution. But he qualified this stance when a given statute "infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law" (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justified in striking down a particular written law. benjamin n. cardozo, considered an adherent of sociological jurisprudence by some and a realist by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the due process Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not "implicit in the concept of ordered liberty" and the "principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).

Contemporary Thought
Each school of jurisprudence is not a self-contained body of thought. The lines separating positivism from realism and natural law from formalism often become blurry. The legal philosophy of Justice Holmes, for example, borrowed from the realist, positivist, pragmatic, and historical strains of thought. In this regard, some scholars have observed that it is more appropriate to think of jurisprudence as a spectrum of legal thought, where the nuances of one thinker delicately

blend with those of the next. For example, Harold Berman, a leading authority on comparative Legal History, has advocated the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory. The staying power of any body of legal thought, Berman has suggested, lies not in its name but in its ability to explain the enterprise of law.
http://legal-dictionary.thefreedictionary.com/Historical+Jurisprudence

The historical school of jurists was founded by Friedrich Karl von Savigny (17791861). 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.

Germany
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. 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. In addition to Savigny, the historical school was probably influenced by Johann Gottfried Herder (17441803) and the romantic notions of folk culture, by the emphasis on tradition in the work of Edmund

Burke (17291797), by the stress on historical continuity in the work of Gustav Hugo (17641844), and by the Hegelian conception of Spirit. In Germany, the main proponents of historical jurisprudence were G. F. Puchta, Karl Friedrich Eichhorn, Rudolph von Sohm, and Otto von Gierke.

England
In England Henry Maine (18221888) was closely identified with the historical school, although there is no evidence that he was directly influenced by the German thinkers. Modern historical jurisprudence in England was born with the publication in London of Maine's Ancient Law in 1861, the year of Savigny's death. Until then historical research in law had been neglected, but from that time on, the field was assiduously cultivated. In reaction against natural law and under the influence of Thomas Hobbes, the tendency in England had been to regard law as the command of the state, and the task of the jurist was conceived as a concern with the analysis of positive law without regard to historical or ethical considerations. Maine broke with these traditional attitudes. Probably influenced by Rudolf von Ihering (Der Geist des rmischen Recht, 3 vols., Leipzig, 18521865), Maine was stimulated to apply the historical method to jurisprudence. Charles Darwin's Origin of Species, published two years before Ancient Law, also probably influenced Maine. Maine rejected the natural law, rationalistic, and a priori approaches to the nature of law. In his Early History of Institutions (London, 1875) he saw a people's law as compounded of opinions, beliefs, and superstitions produced by institutions and human nature as they affected one another. Indeed, English common law seemed better to exemplify Savigny's views than did the law of Germany, which drew heavily on Roman law. But as an Englishman, Maine saw in law more than a people's customs; he observed and took into account the creative and reforming work of Parliament, and so he was led to recognize legislation as an instrument of legal growth. And he found

that equity and legal fictions played creative roles in the common law. In these respects he departed radically from Savigny's monistic approach to law and its sources. Maine's comparative historical studies, which took into account diverse legal systems, kept him from a belief in the mystical uniqueness of a people and its genius and its law; he observed uniformities as well as differences in different legal orders, and so he was led to suggest that similar stages of social development may be correlated with similar stages of legal development in different nations. Maine differed from Savigny also in believing that custom might historically follow an act of judgment, so that the jurist could be seen to have had a creative role in making the law, even though he claimed only to have found it. Maine also noted the part played in early societies by the codification of customary law. In revealing the ideals operative in a society at a particular stage of its development and in relating them to social conditions, Maine stimulated the development of the use of the sociological method in jurisprudence. It thus became apparent that just as law cannot be divorced from history, so, too, it cannot be divorced from philosophy and sociology. Thus, if Savigny's historical jurisprudence was mainly conservative in import, Maine's work had a predominantly liberalizing effect. Then too, Maine's work influenced the development of comparative legal studies. Other English scholars associated in varying degree with the historical school of jurisprudence are James Bryce (18381922), Frederic W. Maitland (18501906), Frederick Pollock (18451937), and Paul Vinogradoff (18541925). Perhaps the greatness of historical jurisprudence lay in the fact that it provided its own seed of dissolution; for once it is admitted that law is historically conditioned, it is as impossible to limit the conception of law to a Volksgeist as to the commands of the sovereign; all forms of social control and all sources of law emerge as subjects for legitimate consideration and study.