The Historical Approach to Law: Learning from the Past

When we study law, it is tempting to think of it as something invented by lawmakers sitting in parliaments and courthouses – a rational, deliberate product of human will. But one of the most influential legal thinkers of the 19th century challenged that assumption entirely. Friedrich Carl von Savigny, a German jurist born in 1779, argued that law is not made – it is found. His historical approach to jurisprudence reshaped how legal scholars understood the relationship between a society and its legal system, placing culture, memory, and tradition at the very heart of law. Understanding this perspective is essential for anyone studying how laws are shaped – and for questioning whether the laws that exist truly serve everyone they govern.

Law as a reflection of national spirit 🔗

At the core of Savigny’s theory is a German concept: Volksgeist. The word combines Volk (people) and Geist (spirit), and it translates roughly as the “spirit of the people” or “national spirit.” According to Savigny, law is not an abstract concept but a product of the people’s collective life within a specific society. It embodies the entire history and culture of a nation and reflects the inner convictions rooted in the common experience of its members.

This was a direct challenge to two dominant schools of legal thought in his time. The first was natural law theory, which held that universal, rational principles of law existed independently of any particular society – timeless rules applicable to all humans everywhere. The second was the positivist command theory, which saw law simply as the command of a sovereign authority. Savigny rejected both. His central idea was that law is an expression of the will of the people – it does not come from deliberate legislation but develops as the consciousness of the nation gradually arises.

To illustrate how this organic development works, Savigny drew a direct parallel between law and language. Just as a language grows naturally within a community – shaped by shared stories, common needs, and cultural identity – law too evolves from within society rather than being imposed from above. Both law and language develop hand in hand with a nation, bind people together through shared beliefs and convictions, and have no separate existence from the community that produces them.

Roman law as Savigny’s model 🔗

Savigny’s admiration for Roman law was foundational to his thinking. He spent years studying it – earning his doctorate at the University of Marburg and later being appointed professor of Roman law at the University of Berlin in 1810, largely at the insistence of the philosopher Wilhelm von Humboldt. His 1803 work on the law of possession quickly obtained a European reputation and remains a prominent landmark in the history of jurisprudence.

For Savigny, the Roman legal system represented the ideal of what Volksgeist looked like in practice. Roman law had not been artificially constructed by a single ruler or legislature – it had developed across centuries from the customs, disputes, and moral convictions of the Roman people. It was, in his view, a living expression of Roman civilization’s spirit. He later produced a monumental multi-volume work, the History of Roman Law in the Middle Ages, tracing how Roman legal traditions had persisted and evolved through centuries of European history.

This deep focus on Roman law did, however, create a notable tension in Savigny’s own theory – a point critics would later press hard. He highlighted the legal system’s national character, yet completely avoided studying German customary law, instead drawing his inspiration from Roman law – a foreign legal tradition. His followers, including jurists like Beseler, Eichhorn, and Gierke, openly opposed this inconsistency.

Law is found, not made 🔗

Savigny’s most memorable contribution to legal philosophy is often summed up in a single phrase: law is found, not made. Law is not something arbitrarily created by a legislator or ruler but is instead discovered within the general, common consciousness of the people – an organic, unconscious, and spontaneous growth that evolves with the nation.

This position had a very practical implication in Savigny’s time. When there was political momentum in early 19th-century Germany to create a unified national legal code (similar to Napoleon’s French Code), Savigny wrote his famous pamphlet On the Vocation of Our Age for Legislation and Jurisprudence (1814) to oppose it. He argued that a hasty legal codification was something to be avoided, since the one essential prerequisite for such a codification was a deep and far-reaching appreciation of the spirit of the particular community. Imposing a code before the people’s legal consciousness had fully matured would, in his view, freeze and distort the law’s natural development.

Customs and traditions in lawmaking 🔗

If law grows from a nation’s spirit, then customs and traditions are its soil. Savigny placed the long-standing practices of a community – social conventions, moral codes, inherited rules of property and family life – at the very foundation of any legitimate legal system. According to Savigny, law should always conform to popular consciousness, meaning customs and historical tradition as sources of law not only precede legislation but are also superior to it.

This view had significant implications for how legal professionals were understood. Rather than seeing legislators as the primary shapers of law, Savigny considered lawyers and jurists the true representatives of popular consciousness, whose role was to study and articulate the law already embedded in the people’s customs – not to invent it from scratch.

Custom as living evidence of law 🔗

Savigny saw customary practices as more than mere habits – they were evidence that law already existed within the community, waiting to be recognized and articulated. Custom may be evidence of law, but its real source lies deeper in the minds of men. What this means is that the visible practice – a community’s way of dealing with property disputes or family obligations – points to something deeper: a shared moral and social conviction that has binding force even before it is written into any statute.

The practical consequence of this view is that the historical method becomes indispensable for legal study. To understand what the law truly is, a jurist must trace its historical development – examining how customs formed, how they were tested and refined over generations, and how they reflect the evolving values of a people. Savigny believed that the evolution of law could only be guided by taking past considerations into account, and that ignoring history creates more confusion rather than solving problems.

Savigny and codification: a necessary caution 🔗

Savigny’s commitment to customary law also made him deeply skeptical of hasty legal codification. He raised several concrete objections to it. First, he pointed to the defects in existing legal codes of his era. Second, he argued that a code might introduce provisions that had no basis in the people’s actual consciousness. Third, he contended that no code could anticipate every legal problem that future generations would face. Fourth, he warned that codification tends to expose the gaps and weaknesses in the law, potentially encouraging people to exploit those gaps. In Savigny’s view, codification should only be preceded by an organic, progressive, scientific study of the law – meaning rigorous historical investigation first.

This does not mean Savigny was opposed to all legal reform. His own career included work as Prussian Minister of Justice, during which he carried out reforms relating to bills of exchange and divorce law. His argument was more precisely about sequence: understand the people’s legal spirit deeply before attempting to codify or reform it.

Critiques of historical rigidity 🔗

Savigny’s historical approach attracted serious and sustained criticism – both from his contemporaries and from later legal scholars. The central objection is that treating customs and traditions as the supreme source of law can easily become a mechanism for preserving inequality rather than promoting justice.

Whose “spirit of the people”? 🔗

The most fundamental critique is a question of representation: whose customs count as the Volksgeist? Historically, the norms and practices encoded in law have often reflected the values of dominant groups – landowning classes, male heads of household, religious majorities – rather than the full spectrum of a society’s people. Some of the criticism of the Volksgeist theory has been based on the fact that dominant minority groups many times have been more influential in molding the law than the common feeling of a nation as a whole.

This is not a minor technical objection. For scholars of gender and law, it is particularly significant. If the “spirit of the people” in a patriarchal society reflects norms of male dominance – in property ownership, marriage, inheritance, and legal personhood – then treating those norms as the authentic foundation of law means that discrimination becomes legally entrenched, not as an aberration but as an expression of national identity. Legal reforms that aim to protect women’s rights, recognize gender diversity, or address historical discrimination would, under a strict historical approach, be suspect precisely because they disrupt inherited custom.

The problem of social progress through legislation 🔗

A connected critique concerns the role of deliberate legislative reform. Modern legal systems, particularly in societies committed to equality and human rights, rely heavily on purposeful legislation as a tool for social change. Anti-discrimination laws, gender equality statutes, and constitutional protections for marginalized groups do not grow organically from centuries of custom – they are often enacted specifically to override customary practices that had caused harm.

Savigny placed an excessive emphasis on unconscious forces that shape a nation’s law, ignoring the efficacy of legislation as a tool for deliberate, conscious, and planned social change. In modern developing societies, legislation has been enacted as a significant instrument of social reform – and real-world examples demonstrate this clearly. In India, for instance, the abolition of Sati, the introduction of divorce rights, and the Child Marriage Restraint Act are examples where legislative reform brought social change even when it meant overturning long-standing customs – precisely the kind of intervention Savigny’s framework would have resisted.

The danger of legitimizing harmful traditions 🔗

Critics also point to a darker historical consequence of the Volksgeist doctrine. The National Socialists in Germany later appropriated the doctrine of Volksgeist for an entirely different purpose, which contributed to the enactment of brutal discriminatory laws. This appropriation was not inevitable from Savigny’s original theory, but it illustrated a genuine structural vulnerability: when a theory places the “spirit of the people” above universal principles of human rights, it can be exploited to justify exclusion, persecution, and systemic violence against groups deemed outside that spirit.

Additionally, one can just as often explain the content of a country’s law by reference to the exploitation of the masses by an elite or a conquering power as by the immemorial customs of the people – meaning that what looks like organic national tradition may actually be the product of conquest, coercion, or elite power projection. Savigny’s framework has limited tools to distinguish between the two.

What the historical approach still offers 🔗

Despite these valid criticisms, Savigny’s contribution to legal thought remains significant. His insistence that law cannot be understood outside of its historical and cultural context is a lasting methodological insight. It reminds us that laws carry the weight of the societies that produced them – their inequalities as well as their values. Historical jurisprudence identified law with the consciousness of a specific people, viewing it as a social and not merely a political phenomenon – a perspective that continues to inform sociology of law, legal anthropology, and critical legal studies.

The historical approach is also a useful corrective to the opposite extreme: the idea that law can be designed from scratch using pure reason, with no regard for the society it will govern. Transplanting legal frameworks without attention to local conditions, cultural context, or existing customary practices has produced poor outcomes in many post-colonial settings – a fact that bears out Savigny’s core intuition, even if his prescriptions were too conservative.

What Savigny’s historical school ultimately demands of us is not uncritical reverence for tradition, but historical literacy – the habit of asking where a law came from, whose values it reflects, and whose interests it has historically served. That question is just as necessary for challenging unjust laws as it is for preserving just ones.

What do you think? If law genuinely reflects the “spirit of the people,” how do we ensure that the voices of marginalized groups – women, minorities, and historically excluded communities – are part of that spirit? And when a society’s longstanding customs contradict principles of equality and human rights, should those customs carry legal weight simply because of their age and cultural depth?

References

1. https://www.britannica.com/biography/Friedrich-Karl-von-Savigny
2. https://lawbhoomi.com/volksgeist-theory/
3. https://blog.ipleaders.in/historical-school-of-law/
4. https://www.legalserviceindia.com/legal/article-10306-savigny-s-theory-of-volksgeist-historical-school-jurisprudence.html
5. https://lawsforum.com/du-llb/semester-1/jurisprudence/historical-school-of-jurisprudence-savigny-montesquieu-puchta/
6. https://www.dhyeyalaw.in/the-genesis-of-law-exploring-savignys-volksgeist
7. https://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/savigny-friedrich-carl-von
8. https://www.studocu.com/row/document/university-of-cape-coast/jurisprudence/historical-school-of-jurisprudence/76238935
9. https://www.ramauniversity.ac.in/online-study-material/law/ballb/iisemester/jurisprudence/leacture-12.pdf
10. https://scholarship.law.tamu.edu/context/facscholar/article/1276/viewcontent/Elliott_1963_VolksgeistandaPieceofSulphur.pdf
11. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1629&context=faculty_articles
12. https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/historical-school-jurisprudence