ARTICLE: ON THE HISTORICAL SCHOOL OF JURISPRUDENCE

Jul 4th, 2015
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But what Savigny and his followers really were was a school of jurisprudence -- a way of looking at the enterprise of making and applying law. As is the case with other schools, we can learn things about jurisprudence from considering carefully what they have to say, even if we cannot follow them all the way.

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Copyright (c) 2004 The University of Notre Dame The American Journal ofJurisprudenceARTICLE: ON THE HISTORICAL SCHOOL OF JURISPRUDENCE200449 Am. J. Juris. 165AuthorROBERT E. RODES, JR.ExcerptAmong schools of jurisprudence, the Historical School is like a poor and slightly eccentricrelation. Everyone is polite to it, and no one explicitly disowns it, but no one really takes itseriously. Some writers mention its contribution to historical scholarship or its role in buildingup the intellectual life of nineteenth century German universities. Others have found it aforerunner of sociological jurisprudence on the one hand and Nazism on the other. Sir CarletonKemp Allen, in his classical Law in the Making, says of Friedrich Karl von Savigny (1779-1861),the founder of the school:If Savigny was an evolutionist before the evolutionists, so he was a sociologist before thesociologists. Without disrespect to their scholarly genius, it is difficult not to feel thatunconsciously (for they could hardly guess what would be built on the foundations which theylaid) Savigny and his followers were National Socialists before the National Socialists. 1But what Savigny and his followers really were was a school of jurisprudence -- a way oflooking at the enterprise of making and applying law. As is the case with other schools, we canlearn things about jurisprudence from considering carefully what they have to say, even if wecannot follow them all the way.The basic tenet of the

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