Legal Historicism: Origins, Evolution, and the Historical School

The Historic Weighting of Legal Elements

The weighting of historical elements is essential in the expression of law:

• Legal historicism: A conception based on how the law has been interpreted and legitimized.
• Historical narrative: History serves to explain, interpret, and legitimize legal frameworks.

This approach analyzes the past through specific lenses:

Types of Historical Memory

• Intentionally disinterested: Memory of past events without a specific agenda.
• Intentionally interested (Reason): Providing a concrete and particular interpretation of past events.
• Intentionally interested (Rational and volitional): Searching the past to find justifications for current arguments. This includes the overestimation of historical phenomena and the use of history to support utopian or revolutionary constructions.

Legal Historicism as a 19th-Century Ideology

Legal historicism posits that law is lived in history; only through an analysis of its genesis and development can its peculiar characteristics be understood.

• Emergence: A new ideology arising in the 19th century.
• Significance: Friedrich Meinecke considered it one of the most important spiritual revolutions of the 19th century.
• Roots: Deeply rooted in German Romanticism, emphasizing the opposition between nature and history (Droysen).

The Historical School of Law

In the 19th century, a school of thought emerged that broke the legal and moral unity of the Hegelian pantheistic system, creating a separation between moral and legal spheres. Law, like language or the arts, has its roots in the Volksgeist (spirit of the people).

Savigny vs. Thibaut

• Savigny: The most representative figure of German historicism. He opposed Thibaut’s request for a unified German legal code, arguing that institutions should not be decoupled from their past.
• Legal Evolution: Savigny argued that the process of law is incompatible with the promulgation of a static code; law evolves with the people and declines when the people lose their character.

Conclusion

The concept of legal historicism eventually led to positivism and the "jurisprudence of concepts." As Professor Lorca Navarrete noted, rather than denying the past, romantic historicism seeks within it the reasons for the present. This stands in direct opposition to the abstract and rationalist natural law that drove the codification movement in France.