Investigations into the Method of the Social Sciences

The Historical School of German Economists Has Failed to Recognize the Decisive Reform Thought of the Historical School of Jurists and Only Through Misunderstanding Considers Itself a Historical School in the Sense of the Latter

1.

What Adam Smith and even those of his followers who have most successfully developed political economy can actually be charged with is not the failure to recognize the obvious significance of the study of history for the politician. Nor is it failure to recognize the just as obvious principle that various economic institutions and governmental measures correspond to various temporal and spatial conditions of economy. It is their defective understanding of the unintentionally created social institutions and their significance for economy. It is the opinion appearing chiefly in their writings that the institutions of economy are always the intended product of the common will of society as such, results of expressed agreement of members of society or of positive legislation. In this one-sidedly pragmatic view of the nature of social institutions, the sphere of ideas of A. Smith and his closest followers comes into contact with that of the writers of the French Age of Enlightenment in general and of the French physiocrats in particular. Adam Smith, also, and his school predominantly strive for the pragmatic understanding of economy, even where such understanding is not adequate for the objective state of affairs. The result is that the broad realm of unintentionally created social structures remains closed to their theoretical comprehension.

This one-sidedness and these defects in the view of problems of economic policy on the part of A. Smith and his followers offered enough points of attack for a scientific reaction. However, one did not make itself felt in the field of political economy, at least not decisively. The scientific opponents of Smith attacked single theories and views of his, but not the above error in principle. And they could not keep the pragmatism of his theory from gradually attaining uncontested sway.

A reaction of a more principled nature was not to develop against Smith’s theories from the ranks of the economists, but was to take place late enough through mechanical application of ideas and methods from other related fields of knowledge to economic policy. This was a process in which, moreover, many sorts of misunderstanding played no slight role.

2.

Pragmatism in the views of the nature and origin of middle-class society and its institutions has found outstanding opponents first in the field of constitutional law.

Burke was probably the first,1 who, trained for it by the spirit of English jurisprudence, emphasized with full awareness the significance of the organic structures of social life and the partly unintended origin of these. He taught most convincingly that numerous institutions of his country, which were to a high degree of common benefit and filled every Briton with pride, were not the result of positive legislation or of the conscious common will of society directed toward establishing this, but the unintended result of historical development. He first taught that what existed and had stood the test, what had developed historically, was again to be respected, in contrast to the projects of immature desire for innovation. Herewith he made the first breach in the one-sided rationalism and pragmatism of the Anglo-French Age of Enlightenment.2

3.

Burke’s ideas became in Germany first of all the occasion for an attack on pragmatism in jurisprudence, which had one-sidedly come into play both in the treatment of positive law and in the philosophy of law. Hugo had also paved the way for the reaction against the pragmatic orientation by his studies in the field of the history of law. Savigny and Niebuhr with full awareness of the task took their places at the head of the movement. For them law is thought of only as a special aspect of the life of the people as a unit, inseparably connected with all its other aspects and expressions. For them law, like language, is at least originally not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations. Indeed, they deny to the pure abstract understanding either the competence for or—with special reference to their own time—the task of comprehensive construction of the law. The further development of law, too, they say, like that of language,3 does not occur by arbitrary intention, but organically, by inner historical necessity, even if in the course of cultural development and for a variety of reasons legislation does enter in beneficially. Even in the latter case the lawgiver is to be regarded only as a representative of the people, as the representative of the true spirit of the people, and the continuity of law is to be respected by him.4

The essence of the school of jurists started by Savigny and Niebuhr5 is to be found in these views analogous to Burke’s point of view in the field of state law, in contrast to pragmatism and rationalism in the field of jurisprudence, but not, for instance, in the principle of the relativity of law6 nor in the significance, stressed long ago by French jurists, of historical studies for the understanding of law.

In what way now have the founders of the historical school of German economists realized their expressed intention of applying the basic thought of this school of jurists to political economy?

Adam Smith and his followers had by no means failed to recognize the significance of the study of history for political economy and the relativity of social institutions and their necessary differences (according to differences of temporary and local conditions). What they can justly be charged with, as already stated, is their pragmatism, which in the main had only an understanding for positive creations of public authorities. It, therefore, did not know how to value the significance of “organic” social structures for society in general and economy in particular and therefore was nowhere concerned to preserve them. What characterizes the theories of A. Smith and his followers is the one-sided rationalistic liberalism, the not infrequently impetuous effort to do away with what exists, with what is not always sufficiently understood, the just as impetuous urge to create something new in the realm of political institutions—often enough without sufficient knowledge and experience.

The organically developed institutions of economy had usually cared so wisely for the living, for things already existing, for what was close and immediate. Pragmatism in economy was concerned about the welfare of man in the abstract, about remote things, about things which did not yet exist, about future things. In this effort it only all too often overlooked the living, justified interests of the present.

Against these efforts of the Smithian school there was revealed to our science a vast realm of fruitful activity in the sense of the orientation of Burke-Savigny—not in the sense of simply maintaining what had organically developed as unassailable, as if it were the higher wisdom in human affairs as opposed to the intended ordering of social conditions. The aim of the efforts under discussion here had to be, on the contrary, the full understanding of existing social institutions in general and of organically created institutions in particular, the retention of what had proved its worth against the one-sidedly rationalistic mania for innovation in the field of economy. The object was to prevent the dissolution of the organically developed economy by means of a partially superficial pragmatism, a pragmatism that contrary to the intention of its representatives inexorably leads to socialism.

However, scarcely a trace of all that is found in the writings of the historical school of economists that arose in Germany in the 1840’s—a belated straggler among the “historical” schools in other fields of the political sciences. And therefore it wrongly points to the historical school of jurists as its model; only wrongly does it call itself “historical” in the sense of the school of Burke and Savigny. It does not share the virtues of the latter, nor, to be sure, the one-sidedness and shortcomings. It has its own virtues, its very special one-sidedness, misunderstandings, and errors. As far as it has come to light in the works of its spokesmen, it is essentially different from the school treated above. It is, to be sure, historical, but in an entirely different sense from that of Burke-Savigny.

 

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7 Montesquieu already expresses the opinion that social and state institutions in their concrete form are not simply the result of arbitrary statutes (of positive legislation), but rather the consequence of natural and cultural conditions and of the historical evolution of nations: “Les êtres particuliers intelligents—he says —peuvent avoir des lois qu’ils ont faites; mais ils en ont aussi qu’ils n’ont pas faites…. Avant qu’il y eût des lois faites, il y avait des rapports de justice possible. Dire qu’il n’y a rien de juste ni d’injuste que ce qu’ordonnent ou défendent les lois positives, c’est dire qu’avant qu’on eût tracé de cercle tous les rayons n’étaient pas égaux” (De l’esprit des lois [1748] Liv. I, Chap. I). “J’ai d’abord examiné les hommes, et j’ai cru que, dans cette infinie diversité de lois et de moeurs, ils n’étaient pas uniquement conduits par leurs fantaisies. J’ai posé les principes, et j’ai vu les cas particuliers s’y plier comme d’eux-mêmes, les histoires de toutes les nations n’en être que les suites et chaque loi particulière liée avec une autre loi ou dépendre d’une autre plus générale” (Ibid., pref.).

8 Burke stresses the organic, unintended genesis of English constitutional law in the following way: “From magna charta to the declaration of right, it has been uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity…. This policy appears to me to be the result of profound reflection, or rather the happy effect of following nature, which is wisdom without reflection and above it” (Reflections on the Revol. in France. Works [London, 1792], III, 58 ff.). One-sided rationalism he attacks with the following words, “I cannot stand forward and give praise or blame to anything which relates to human actions and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing colour and discriminating effect. The circumstances are what render every political scheme beneficial or noxious to mankind” (Ibid., III, p. 28). And in another place: “Old establishments are tried by their effects. If the people are happy, united, wealthy and powerful, we presume the rest. We conclude that to be good, from whence good is derived. In old establishments various correctives have been found for their aberrations from theory. Indeed they are the results of various necessities and experiences. They are not often constructed after any theory; theories are rather drawn from them. In them we often see the end best obtained, where the means seem not perfectly reconcileable to what we may fancy was the original scheme. The means taught by experience may be better suited to political ends than those contrived in the original project. They again react upon the primitive constitution and sometimes improve the design itself from which they seem to have departed” (Reflect, on the Revol. in France. Works, III, 227 ff.). Necker writes in the same sense: “On a consideré les principes comme une spiritualité qui trouvait place partout, et l’on n’a pas fait attention, que les conséquences de ces principes tenaient un espace réel. Les abstractions, sans doute, ont une application universelle, c’est un large compas qui s’ouvre à volonté et qui réunit figurativement les divers points de l’étendue; mais tout se touche en pratique, tout se meut terre à terre, et c’est alors qu’on fait l’épreuve des obstacles franchis en spéculation et des nombreuses difficultés dedaignées par la théorie” (Du pouvoir exécutif dans les grands états [1792], s. 1. II, p. 72). Le Maistre’s tracing back the existing authorities or rather the prerevolutionary authorities to divine appointment and Haller’s conception of political powers from the point of view of properly obtained private rights likewise have a counter-revolutionary purpose. They nevertheless are so clearly based on false presuppositions that they can scarcely be considered beside Burke’s expositions, which have an objective foundation, even if they are one-sided.

9 Wilhelm von Humboldt’s writings have paved the way in Germany for similar efforts in the field of linguistics. He traced back the formation of language to a direct creative instinct, to an intellectual linguistic instinct of the human mind, and recognized in its structure a regularity which is analogous to that of organic nature. Savigny (Vom Berufe unserer Zeit [1814], p. 9) and his followers frequently appeal to the analogy of the genesis of law and language formation. Something similar is also found later in the economists of the historical school, especially in Hildebrand (cf. in this connection especially Humboldt, Ueber die Verschiedenheit des menschlichen Sprachbaues und ihren Einfluss auf die geistige Entwickelung des Menschengeschlechtes [Berlin, 1836]; Schasler’s Elemente der philos. Sprachwissenschaft W. v. Humboldt’s [Berlin, 1847], and Steinthal’s Der Ursprung der Sprache im Zusammenhange mit den letzten Fragen alles Wissens [Berlin, 1852]).

10 Cf. Savigny’s three works, Ueber den Beruf unserer Zeit zur Gesetzgebung (Heidelberg, 1814), pp. 8–15, Programmaufsatz in the Zeitschrift für geschichtliche Rechtswissenschaft (1815), I, pp. 1–17 and III, pp. 1–52, System, I, pp. 13–21, 34–57; Eichhorn, Deutsche Staats- und Rechtsgeschichte (1808), preface and introduction, p. 1 ff. Of older writers cf. especially Hugo, Encyclopädie, 4th ed., §§21, 22, and Naturrecht, 1st ed. (1798), 3.A., §130, and in the Civilistischen Magazin (1813), IV, pp. 117–136. J. Moser is mentioned most honorably by Savigny in his Beruf (1st ed., p. 15) along with Hugo: “High honor is also due to the memory of J. Moser, who with magnificent intelligence tried to interpret history everywhere, often even in respect to civil law.” Schelling’s theory of the organic nature of political life has not been without influence on the development of the historical school of jurists. This is also true of his theory that the original development in all cultural realms is a subconscious one and that in general everything conscious has its presupposition and basis in a subconscious working of the human mind and the mind of the nation. Plato, moreover, has already said in a place (Leges, IV, 4) which as far as I know has remained unnoticed that no human being could (arbitrarily) create any law. All legal institutions, rather, were produced by many chance happenings and circumstances.… No mortal could make a law; all mortal dispositions are, rather, the result of conditions. To be sure, it would reasonably have to be granted that human ability is joined to this (cf. the passage from Montesquieu quoted on p. 173).

11 “The essence of the historical school of jurists is a view of the genesis of law. Law is one aspect of the total life of a nation, inseparably connected with its other aspects and activities, like language, custom, art. Therefore, like these it comes into being originally not by choice and reflection, but by an inherent sense and instinct, by a consciousness of necessity…. The basic doctrines of the historical school are accordingly: the involvement of law with the nation and national consciousness, its originally unintended genesis, the requirement of continuity in its further development” (Stahl, Geschichte der Rechtsphilosophie, 3rd ed. [Heidelberg, 1856], p. 572 ff.). Since the founding of the historical school the knowledge has again been gained that “law is not merely something presented from above,” “but has grown out of the spirit of the nation, as its form.” It is not something arbitrary that could be this way today and that way tomorrow. On the contrary, the past is closely connected with the present and future. It is not the result of chance, but of inner determination. “This insight into the nature of positive law is the sole thing characteristic for the historical school. Only from this point of view are its accomplishments to be judged, as well as the transformation which jurisprudence has since then undergone through them.” (Thus Bluntschli, Die neueren Rechtsschulen der deutschen Juristen, 2nd ed. [Zürich, 1862], p. 18.) E. Kuntze characterizes the basic thought of the historical school of law by noting that “law was not devised, but was born; it is not a consciously arbitrary production of finite, limited understanding, but joined to the laws of all organic genesis and growth” (Der Wendepunkt in der Rechtswissenschaft [Leipzig, 1856], p. 53).

12 How little the previously characterized mental sphere of the historical school of German economists agrees with that of Burke-Savigny can already be gathered from the fact that the representatives of the latter orientation designate it as an error that a state institution is excellent just because it suits the nature of the land and the people for which it is destined (cf. Gentz, Politische Abhandlungen zu Burke’s Betrachtungen über die französische Revolution [Hohenzollern, 1794], II, p. 244). This emerges even more clearly from the battle which Savigny and Thibaut fought over the establishment of new law codes in Germany. The latter stresses ceaselessly that the civilian institutions are to be ordered completely according to the needs of the subjects, that they must in particular correspond to the needs of the times (Ueber die Notwendigkeit eines allgemeinen bürgerlichen Rechtes für Deutschland, Civilistiche Abhandlungen (1814), p. 404 ff.). Nonetheless Savigny attacks him in his famous book Vom Berufe unserer Zeit für Gesetzgebung und Rechtswissenschaft because Thibaut did not recognize the organic genesis and development of law and thought that all law resulted from statutes, from express orders and prohibitions of legislative authority.

• 1Montesquieu already expresses the opinion that social and state institutions in their concrete form are not simply the result of arbitrary statutes (of positive legislation), but rather the consequence of natural and cultural conditions and of the historical evolution of nations: “Les êtres particuliers intelligents—he says —peuvent avoir des lois qu’ils ont faites; mais ils en ont aussi qu’ils n’ont pas faites…. Avant qu’il y eût des lois faites, il y avait des rapports de justice possible. Dire qu’il n’y a rien de juste ni d’injuste que ce qu’ordonnent ou défendent les lois positives, c’est dire qu’avant qu’on eût tracé de cercle tous les rayons n’étaient pas égaux” (De l’esprit des lois [1748] Liv. I, Chap. I). “J’ai d’abord examiné les hommes, et j’ai cru que, dans cette infinie diversité de lois et de moeurs, ils n’étaient pas uniquement conduits par leurs fantaisies. J’ai posé les principes, et j’ai vu les cas particuliers s’y plier comme d’eux-mêmes, les histoires de toutes les nations n’en être que les suites et chaque loi particulière liée avec une autre loi ou dépendre d’une autre plus générale” (Ibid., pref.).
• 2Burke stresses the organic, unintended genesis of English constitutional law in the following way: “From magna charta to the declaration of right, it has been uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity…. This policy appears to me to be the result of profound reflection, or rather the happy effect of following nature, which is wisdom without reflection and above it” (Reflections on the Revol. in France. Works [London, 1792], III, 58 ff.). One-sided rationalism he attacks with the following words, “I cannot stand forward and give praise or blame to anything which relates to human actions and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing colour and discriminating effect. The circumstances are what render every political scheme beneficial or noxious to mankind” (Ibid., III, p. 28). And in another place: “Old establishments are tried by their effects. If the people are happy, united, wealthy and powerful, we presume the rest. We conclude that to be good, from whence good is derived. In old establishments various correctives have been found for their aberrations from theory. Indeed they are the results of various necessities and experiences. They are not often constructed after any theory; theories are rather drawn from them. In them we often see the end best obtained, where the means seem not perfectly reconcileable to what we may fancy was the original scheme. The means taught by experience may be better suited to political ends than those contrived in the original project. They again react upon the primitive constitution and sometimes improve the design itself from which they seem to have departed” (Reflect, on the Revol. in France. Works, III, 227 ff.). Necker writes in the same sense: “On a consideré les principes comme une spiritualité qui trouvait place partout, et l’on n’a pas fait attention, que les conséquences de ces principes tenaient un espace réel. Les abstractions, sans doute, ont une application universelle, c’est un large compas qui s’ouvre à volonté et qui réunit figurativement les divers points de l’étendue; mais tout se touche en pratique, tout se meut terre à terre, et c’est alors qu’on fait l’épreuve des obstacles franchis en spéculation et des nombreuses difficultés dedaignées par la théorie” (Du pouvoir exécutif dans les grands états [1792], s. 1. II, p. 72). Le Maistre’s tracing back the existing authorities or rather the prerevolutionary authorities to divine appointment and Haller’s conception of political powers from the point of view of properly obtained private rights likewise have a counter-revolutionary purpose. They nevertheless are so clearly based on false presuppositions that they can scarcely be considered beside Burke’s expositions, which have an objective foundation, even if they are one-sided.
• 3Wilhelm von Humboldt’s writings have paved the way in Germany for similar efforts in the field of linguistics. He traced back the formation of language to a direct creative instinct, to an intellectual linguistic instinct of the human mind, and recognized in its structure a regularity which is analogous to that of organic nature. Savigny (Vom Berufe unserer Zeit [1814], p. 9) and his followers frequently appeal to the analogy of the genesis of law and language formation. Something similar is also found later in the economists of the historical school, especially in Hildebrand (cf. in this connection especially Humboldt, Ueber die Verschiedenheit des menschlichen Sprachbaues und ihren Einfluss auf die geistige Entwickelung des Menschengeschlechtes [Berlin, 1836]; Schasler’s Elemente der philos. Sprachwissenschaft W. v. Humboldt’s [Berlin, 1847], and Steinthal’s Der Ursprung der Sprache im Zusammenhange mit den letzten Fragen alles Wissens [Berlin, 1852]).
• 4Cf. Savigny’s three works, Ueber den Beruf unserer Zeit zur Gesetzgebung (Heidelberg, 1814), pp. 8–15, Programmaufsatz in the Zeitschrift für geschichtliche Rechtswissenschaft (1815), I, pp. 1–17 and III, pp. 1–52, System, I, pp. 13–21, 34–57; Eichhorn, Deutsche Staats- und Rechtsgeschichte (1808), preface and introduction, p. 1 ff. Of older writers cf. especially Hugo, Encyclopädie, 4th ed., §§21, 22, and Naturrecht, 1st ed. (1798), 3.A., §130, and in the Civilistischen Magazin (1813), IV, pp. 117–136. J. Moser is mentioned most honorably by Savigny in his Beruf (1st ed., p. 15) along with Hugo: “High honor is also due to the memory of J. Moser, who with magnificent intelligence tried to interpret history everywhere, often even in respect to civil law.” Schelling’s theory of the organic nature of political life has not been without influence on the development of the historical school of jurists. This is also true of his theory that the original development in all cultural realms is a subconscious one and that in general everything conscious has its presupposition and basis in a subconscious working of the human mind and the mind of the nation. Plato, moreover, has already said in a place (Leges, IV, 4) which as far as I know has remained unnoticed that no human being could (arbitrarily) create any law. All legal institutions, rather, were produced by many chance happenings and circumstances.… No mortal could make a law; all mortal dispositions are, rather, the result of conditions. To be sure, it would reasonably have to be granted that human ability is joined to this (cf. the passage from Montesquieu quoted on p. 173).
• 5“The essence of the historical school of jurists is a view of the genesis of law. Law is one aspect of the total life of a nation, inseparably connected with its other aspects and activities, like language, custom, art. Therefore, like these it comes into being originally not by choice and reflection, but by an inherent sense and instinct, by a consciousness of necessity…. The basic doctrines of the historical school are accordingly: the involvement of law with the nation and national consciousness, its originally unintended genesis, the requirement of continuity in its further development” (Stahl, Geschichte der Rechtsphilosophie, 3rd ed. [Heidelberg, 1856], p. 572 ff.). Since the founding of the historical school the knowledge has again been gained that “law is not merely something presented from above,” “but has grown out of the spirit of the nation, as its form.” It is not something arbitrary that could be this way today and that way tomorrow. On the contrary, the past is closely connected with the present and future. It is not the result of chance, but of inner determination. “This insight into the nature of positive law is the sole thing characteristic for the historical school. Only from this point of view are its accomplishments to be judged, as well as the transformation which jurisprudence has since then undergone through them.” (Thus Bluntschli, Die neueren Rechtsschulen der deutschen Juristen, 2nd ed. [Zürich, 1862], p. 18.) E. Kuntze characterizes the basic thought of the historical school of law by noting that “law was not devised, but was born; it is not a consciously arbitrary production of finite, limited understanding, but joined to the laws of all organic genesis and growth” (Der Wendepunkt in der Rechtswissenschaft [Leipzig, 1856], p. 53).
• 6How little the previously characterized mental sphere of the historical school of German economists agrees with that of Burke-Savigny can already be gathered from the fact that the representatives of the latter orientation designate it as an error that a state institution is excellent just because it suits the nature of the land and the people for which it is destined (cf. Gentz, Politische Abhandlungen zu Burke’s Betrachtungen über die französische Revolution [Hohenzollern, 1794], II, p. 244). This emerges even more clearly from the battle which Savigny and Thibaut fought over the establishment of new law codes in Germany. The latter stresses ceaselessly that the civilian institutions are to be ordered completely according to the needs of the subjects, that they must in particular correspond to the needs of the times (Ueber die Notwendigkeit eines allgemeinen bürgerlichen Rechtes für Deutschland, Civilistiche Abhandlungen (1814), p. 404 ff.). Nonetheless Savigny attacks him in his famous book Vom Berufe unserer Zeit für Gesetzgebung und Rechtswissenschaft because Thibaut did not recognize the organic genesis and development of law and thought that all law resulted from statutes, from express orders and prohibitions of legislative authority.
• 7Burke was probably the first, who, trained for it by the spirit of English jurisprudence, emphasized with full awareness the significance of the organic structures of social life and the partly unintended origin of these. He taught most convincingly that numerous institutions of his country, which were to a high degree of common benefit and filled every Briton with pride, were not the result of positive legislation or of the conscious common will of society directed toward establishing this, but the unintended result of historical development. He first taught that what existed and had stood the test, what had developed historically, was again to be respected, in contrast to the projects of immature desire for innovation. Herewith he made the first breach in the one-sided rationalism and pragmatism of the Anglo-French Age of Enlightenment.
• 8Burke was probably the first, who, trained for it by the spirit of English jurisprudence, emphasized with full awareness the significance of the organic structures of social life and the partly unintended origin of these. He taught most convincingly that numerous institutions of his country, which were to a high degree of common benefit and filled every Briton with pride, were not the result of positive legislation or of the conscious common will of society directed toward establishing this, but the unintended result of historical development. He first taught that what existed and had stood the test, what had developed historically, was again to be respected, in contrast to the projects of immature desire for innovation. Herewith he made the first breach in the one-sided rationalism and pragmatism of the Anglo-French Age of Enlightenment.
• 9Burke’s ideas became in Germany first of all the occasion for an attack on pragmatism in jurisprudence, which had one-sidedly come into play both in the treatment of positive law and in the philosophy of law. Hugo had also paved the way for the reaction against the pragmatic orientation by his studies in the field of the history of law. Savigny and Niebuhr with full awareness of the task took their places at the head of the movement. For them law is thought of only as a special aspect of the life of the people as a unit, inseparably connected with all its other aspects and expressions. For them law, like language, is at least originally not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations. Indeed, they deny to the pure abstract understanding either the competence for or—with special reference to their own time—the task of comprehensive construction of the law. The further development of law, too, they say, like that of language, does not occur by arbitrary intention, but organically, by inner historical necessity, even if in the course of cultural development and for a variety of reasons legislation does enter in beneficially. Even in the latter case the lawgiver is to be regarded only as a representative of the people, as the representative of the true spirit of the people, and the continuity of law is to be respected by him.
• 10Burke’s ideas became in Germany first of all the occasion for an attack on pragmatism in jurisprudence, which had one-sidedly come into play both in the treatment of positive law and in the philosophy of law. Hugo had also paved the way for the reaction against the pragmatic orientation by his studies in the field of the history of law. Savigny and Niebuhr with full awareness of the task took their places at the head of the movement. For them law is thought of only as a special aspect of the life of the people as a unit, inseparably connected with all its other aspects and expressions. For them law, like language, is at least originally not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations. Indeed, they deny to the pure abstract understanding either the competence for or—with special reference to their own time—the task of comprehensive construction of the law. The further development of law, too, they say, like that of language, does not occur by arbitrary intention, but organically, by inner historical necessity, even if in the course of cultural development and for a variety of reasons legislation does enter in beneficially. Even in the latter case the lawgiver is to be regarded only as a representative of the people, as the representative of the true spirit of the people, and the continuity of law is to be respected by him.
• 11The essence of the school of jurists started by Savigny and Niebuhr is to be found in these views analogous to Burke’s point of view in the field of state law, in contrast to pragmatism and rationalism in the field of jurisprudence, but not, for instance, in the principle of the relativity of law nor in the significance, stressed long ago by French jurists, of historical studies for the understanding of law.
• 12The essence of the school of jurists started by Savigny and Niebuhr is to be found in these views analogous to Burke’s point of view in the field of state law, in contrast to pragmatism and rationalism in the field of jurisprudence, but not, for instance, in the principle of the relativity of law nor in the significance, stressed long ago by French jurists, of historical studies for the understanding of law.