Introduction to historical jurisprudence

Abstract

The term ‘historical jurisprudence’ acquired a particular meaning during the nineteenth and twentieth centuries. The term is associated with the German Historical School, in particular the German jurist Karl von Savigny (1779-1861), and in England with the work of Sir Henry Maine (1822-88). Peter Stein made the point that historical jurisprudence ‘is understood as being concerned with theories of legal evolution’. This theory had earlier been described by Stein as ‘a group of theories which claim to explain legal change not merely in historical terms but as proceeding according to certain determinate stages, or in a certain pre-determined manner’. As Stein also pointed out, legal evolution was closely associated with Roman law. However, said Stein, historical jurisprudence and legal evolution fell into disrepute because the notion of evolution tended to be associated with the idea both of progress in society and of science and its methods. By the second half of the twentieth century this progress element had been largely debunked by analytical jurisprudence and by post-colonial and cultural thinking. Moreover, the idea that the methods of the natural sciences could be applied to the social and human sciences was being treated with much scepticism. Historical jurisprudence, it seemed, was destined to fall into disuse.