2.2 Historical School of Law

Core claim: law is not made but grown — the organic product of a people's history, its Volkstgeist ("spirit of the people"); codification is at best a photograph of a living process, at worst its murder. Exponents: Friedrich Carl von Savigny — the founder, in the 1814 German codification debate (against Thibaut's call for a code): law grows with the people, "like language"; it is found in custom and in the science of jurists, not decreed by legislators who run ahead of history. Georg Friedrich Puchta — traced law's growth through the people's custom to juristic law; the genealogy of law's descent from the Volksgeist. Sir Henry Maine — the school's English bridge (Ancient Law, 1861): law's course runs from custom through the age of fiction, equity and legislation; the famous trajectory "from Status to Contract" — from identity by birth to obligation by agreement; the patriarchal family as legal embryo; the deception — serious and fertile — that law's history is progressive. Contribution: rescued custom and history from the analytical school's contempt; founded comparative and historical jurisprudence; taught that law is culture — the insight behind legal pluralism. Critique: romantic conservatism — the Volksgeist blessed whatever was ancient (including caste); it underestimated legislation and the deliberate making of new legal worlds (codes, constitutions, human rights); Maine's own data were…