GOD
Let us hear the conclusion of the whole matter: Fear God, and keep His commandments:
for this is the whole duty of man.
Ecclesiastes 12:13
Vs.
"The German School of Historical Law became known throughout Europe at the end of the Napoleonic wars, when many German jurists opposed the introduction of a uniform legal code to the Germanic Confederation.
The leading legal historicist of the time, Friedrich Carl von Savigny (1779–1861), still holds a status in German ‘legal science’ which is akin to Charles Darwin for the ‘science’ of biological
German legal historicism claimed that the evolution of law is linked to the growth of the nation as a living organism. This growth would derive its strength from the inner powers of the Volksgeist.
Rather, the organic evolution of the law was assumed to take place as an evolving process of historical growth, which occurs both naturally and unconsciously, from one age to another. Such idea of natural legal progress was not an argument for the freedom of individuals and small corporations, but it amounted to a justification of the organic power of the state.
Savigny also argued that given the historical limitations of the legal process, law should be grounded in a ‘popular consciousness’ which evolves over time so as to reflect the general ‘spirit of the community’.
History is hereby observed not in terms of the source of tradition and example, but rather as the ongoing path of evolution which leads to the “true knowledge of our own condition”.
Savigny’s magnum opus is his eight-volume History of Roman Law in the Middle Ages (five published in 1840–1841 and the rest in 1847–1849). The work amplifies the views expressed in The Vocation of Our Age for Legislation and Jurisprudence. Thus Savigny explains in more details that the main objective of his historical school is not to “subject the present to the government of the past”.
G.W.F. Hegel (1770–1831) upon the formation of German legal historicist methodology.
The State is approached as a natural entity, based on a complex system of legal institutions.
The followers of Hegel, in absolutising the state, are the National Socialists and the Communists.
The foremost figure among the second generation of German legal historicists, Otto von Gierke (1841–1921), borrowed from Hegelianism the concept that the State comprises a living organism of
Gierke took a strong biological approach to social and legal analysis. In the nature of things, he argued, there are real social groups whose essence is akin to the people who are their individual members. The State was defined as a real group-being just as there is a real human being behind every individual legal person. This was a first step toward the ‘sovereign plenitude’ of the State and its ultimate elevation above all individuals and society. Hence Gierke declared, “The authority of the State is the highest right upon earth.”
Born in Trier in the Rhineland in 1818, Karl Marx was the son of a Jewish lawyer converted to Christianity. In his youth he received systematic university education, initially in Bonn and then in Berlin, between 1835 and 1841. Marx took his legal studies seriously and intended to become a
It is also patently clear from Marx’s letter to his father that he became quite familiar with the famous controversy between Savigny and the Hegelian law professor Eduard Gansy, over the relationship between possession and right.
In a letter to his father, dated 10 November 1836, Marx expressed great appreciation for Savigny’s Right of Possession (1803), a work in which Savigny argues that law is only part of history and not a branch of applied ethics.
Both Marx and Savigny linked law as a product of history and both rejected the premise that the laws of a given society reflected universal normative truths. They held the view that a ‘society’s laws reflect its particular historical situation.
In Right of Possession Savigny also claims that property is not a fundamental right of the individual, and that the great bulk of humanity has lived in societies in which land possession is communal and conditional. “By the possession of a thing”, wrote Savigny, “we always conceive the condition, in which not only one’s own dealing with the thing is physically possible, but every other person’s dealing with it is capable of being excluded”.
Both Marx and Savigny linked law as a product of history and both rejected the premise that the laws of a given society reflected universal normative truths. They held the view that a ‘society’s laws reflect its particular historical situation.
In the 1930s one the most influential jurists in Germany was the Austrian-born Hans Kelsen (1881
Nazi legislation and case law shows a remarkable similarity with the Volksgeist doctrine of German legal historicism. There was an elusive romantic-mystic notion to the notion of Volksgeist which obviously attracted the Nazi leadership.
As for the Germany that came into being in 1933, the nation rapidly descended into a process of homogenization by which individuals and entire social groups were ‘assimilated’ into the organic dimension of the Volksgeist.
SUMMARY:
German legal historicists saw nations and ethnic groups as evolving natural units. They assumed that
