The Germanists and the Historical School of Law: German Legal Science between Romanticism, Realism, and Rationalization

Abstract

The essay, originally written in German as an introduction to a volume of collected papers, shows the influence of the Historical School of Law on legal, historical and social sciences in Germany throughout the 19^th and even 20^th centuries – a time span running contrary to the dominate view that sees the end of the School in the middle of the 19^th century. In my view the School constitutes not only a method for developing norms of private law out of the historical materials of Roman and German-Germanic laws, but is based on a wider conception of culture, law and history that is also connected to the political positions of that time. In Savigny’s founding pamphlet, »The vocation of our time ...«, two major theoretical topics for this long-lasting influence can be found: The Romantic one, which views law as a part of culture and parallel to language and custom, based on the »spirit of the people«, and, on the other side, the rationality of the European tradition of Roman law, which was developed and administered by jurists. These two basic points, in part standing in contradiction to one another, form a fertile tension that provides an impulse to the intellectual discussions and new movements in jurisprudence and history analysed in the text. Realism, founded in the connection of both sciences to political and social life, builds a kind of  »basso continuo« and acts as a counterbalance to the former two. And it is in this context that the works of Jacob Grimm, Puchta and Beseler, Heinrich Brunner, Georg von Below and others are analysed, in particular the works of Otto von Gierke and Max Weber. Finally, evidence is furnished that a new image of the medieval period, and its impact on law, as a centre of Western identity was outlined in the 20th century by authors like Ernst Kantorowicz, Fritz Kern, Otto Brunner and, last but not least, by Harold J. Berman (walking in the footsteps of Eugen Rosenstock-Huessy), all of whom were situated in different ways within the tradition of the broader, cultural-based Romantic view.