Historical Jurisprudence

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Jeffrey Thayne

gavel on a book
What is the purpose of law? Legal philosophers have given different answers over the years.

A few months ago, I took a philosophy of law class. During this class, I decided to write a series about the things I was learning. I wrote a few posts, but then got stuck on a post about Thomas Hobbes. I was having a hard time encapsulating his ideas. I wrote most of the rest of the series, but never posted them, because I wanted to post them in historical order. However, I decided to postpone finishing my thoughts on Hobbes until a later date. I’ll be posting the rest of my “Philosophy of Law Notes” series.

Here is a short summary of some legal philosophers who focused their writings on jurisprudence. Jurisprudence is the study of how judges make legal decisions in the courtroom. This is an important aspect of the philosophy of law, because the way judges interpret and treat law has significant implications in how we define what law is, what purposes it serves, and the source of legal obligation.


The bulk of Friedrich Karl von Savigny’s writings on law was a reaction against a movement known as legal formalism or mechanical jurisprudence. Letwin explains that what he opposed was “the disposition to liken law to a system of mathematics that can be deduced from axioms.”

Many theorists at the time were enamored by attempts to codify law, and to rectify any weaknesses in law by further codification. This bothered Savigny. He was not opposed to the traditional idea of law, only attempts to mechanize it to the point that judicial decisions simply become (to use a modern metaphor unfamiliar to Savigny) comparable to a computer running a long text of code. The outcome is inevitable, but also inhuman and cold. According to Letwin, Savigny’s

thesis was that the law, like all human institutions, had been made by thinkers and statesmen who knew which way to turn their feet without knowing the final destination. The law of the present had been developed over many centuries by men working in a variety of circumstances for a variety of purposes. The unintended consequence of numerous acts with more particular intentions was the blending of rules of law into an organic whole that could not be deduced from any simple set of principles. Therefore, both in its structure and in its mode of change, law is not like mathematics or logic, Savigny argues, but rather like language.

… Any attempt to reduce to a systematic unity what had developed over centuries would necessarily ignore and destroy the complexity that had made the legal inheritance so rich and valuable.

Savigny did not wish to attack attempts to formulate or legislate law, only the movement to codify law to the point that it becomes an inhuman mechanism, detached from and alien to the rich historical context from which it developed. Savigny’s philosophy was part of a movement today known as historical jurisprudence, which focuses on law’s formation through historical circumstance.


Rudolf von Jhering understood and appreciated Savigny’s claim that law is developed out of historical circumstances. Jhering’s central argument against Savigny and other followers of historical jurisprudence is that they treated the ideal formulation of law as an end to be achieved, and legislation and adjudication as means of achieving that goal. He saw in most legal theorists a kind of neo-platonic philosophy that the ideal law was the embodiment of perfect reason, and the goals of legislators should be to codify that reason into legislation. Jhering would bring this criticism against any natural law theorist, or any theorist that tried to describe what the ideal regime of law would be like.

Instead, Jhering claimed that law is not an end to be achieved, but a tool to achieve other goals. Law is created by people to achieve a particular goal. The goal or purpose of law is not determined by any one person, but society as a whole. Letwin explains that according to Jhering, “Law is not to be understood as the product of reason but of will, and this will is not that of any individual, but of a social whole seeking to perfect itself as a whole.”


Jhering’s philosophy was adopted by a French legal philosopher named Leon Duguit. According to Letwin, Duguit

argues more directly than Jhering against the traditional idea of law as the bond that unites an association whose purpose consists in enabling the individual members to pursue their diverse activities in peace. That idea, Duguit says bluntly, has become obsolete. Evolution has made it evident that the state exists to provide a variety of public services, and that the law is the means for organizing those services effectively.

Duguit accordingly describes the law unequivocally as an instrument for achieving the purposes of a productive enterprise. Legal rules, then, have the same character as the rules of an army, a hospital, or a factory, all of which are designed to promote certain substantive results. Far from being a set of rules designed to make it possible for people to associate in peace while pursuing a variety of projects, the law becomes the means for directing the members of the society to contribute to the same project. In this picture, a legal order is the contrary not of the reign of arbitrary will, but of a regime that allows multiplicity and diversity; order becomes synonymous with unity of purpose, and law is the means for enrolling every individual in the pursuit of this purpose.


According to Savigny, law evolved over time, through the aggregate acts of numerous individuals and society as a whole, into its present organic whole, in the same way that languages develop. Thus, the present whole could never be codified completely without losing some of its historical character.

Jhering believed in Savigny’s historical account of law, but went further. Because law is entirely a human invention, it is an act of will, not a manifestation of reason. For this reason, law is a means to an end, not an end in and of itself to be pursued. The social ends for which law is designed are decided by society as a whole.

Duguit took Jhering’s philosophy even further, and also described law as an expression of will. Law is the way in which the ruling body can enlist individual citizens into the service of a communal goal. Uniting a community to this common goal is the purpose of law, and thus there can be no such thing as an “ideal body of law,” because the law is simply a tool that can take on any shape or size.


All quotations taken from Shirley Robin Letwin, On the History of the Idea of Law (Cambridge: Cambridge University Press, 2005).


  1. Thanks for yet again filling gaps that my formal education has left.

    I have become quite familiar with Locke, but not any of these others you have mentioned.

    My first impression is that, among the three philosophers you have discussed, each moves progressively farther down the path of setting up human law (and rulers) as the savior that will bring us together in a perfection of society. As Bastiat teaches us, government can accomplish nothing except by coercion, or the use of force. When you combine this with the idea of saving us, it seems to me quite a bit like a plan that all of us have previously rejected (as evidenced by our presence here on Earth, having possession of bodies). But, it is completely unsurprising to me that many people are persuaded by such ideas.

  2. Capt. Moroni,

    Thanks for your comment! I agree… we see here a movement towards law as a tool that those in power can use to implement their idea of what society should be like. I agree that government is coercion, and that coercion must be avoided in every possible way. I believe we do our neighbors wrong when we attempt to coerce them to live their lives the way we think is best for them, and for that reason I oppose extensive legislation and almost any form of centralized social planning. Perfection should be freely pursued, not coerced by central governments.

    On the other hand, for those same reasons, I agree with Savigny’s critique of formal legalism, as well as Jhering’s extension of that critique. They both claimed that attempts to perfect the legal code by codifying it to the point that legal and judicial decisions can be made in a step-by-step logical process treats law like a rational end to be achieved. George Washington said, “Government is not reason… it is force.” Thus, rather than a platonic ideal discovered among the stars by enlightened leaders, it is a man-made invention used for compelling—forcing—others to live a particular way. It is because Savigny and Jhering are at least partly right that law and coercion must be approached with the utmost care and caution.

    I am particularly intrigued by Savigny’s claims that because law is a man-made invention, it can never be completely codified to the point where it is perfectly internally consistent without destroying it’s historical character. Imagine what would happen to the english language if we tried to reconstruct it so that every grammar rule is perfectly consistent with every other, like a programming language. It would lose its texture and flexibility.

    Savigny’s claim is simply that the body of English Law, as it has formed over the centuries, has evolved much like a language, and that attempts to revamp it would, like it would with language, sterilize the legal process of its historical character. So many of the mechanisms and laws we have in place, Savigny would claim, were implemented for historical and circumstantial reasons that have long been forgotten. To rewrite the system from scratch (as some at the time had suggested) would require us to relearn lessons taught by circumstances long forgotten, but the legal footprints of which are still with us.

    In the end though, I agree with you. I disagree with these philosophers, but at the same time agree with their critique of the movements of their time (if that makes sense).

    On a side note, I’m interested in what you think of one of my earliest posts on this blog:



  3. Also, I just realized that I should clarify the title of this post. When I say, “Historical Jurisprudence,” I don’t mean “the history of jurisprudence.” Rather, I mean a summary of those legal philosophers who emphasize history in their account of the origin of law and judicial precedence.

  4. When I read your three paragraph summary in the original post above, I was okay with Savigny and Jhering, but the second sentence under Duguit (“Law is the way in which the ruling body can enlist individual citizens into the service of a communal goal.”) made me cringe. I wish we had less Duguits in power.

  5. Matthew,

    I agree. Nobody should be forced to participate in a common goal (or, most often, the goals of those in power). Duguit takes things quite a bit to far.

  6. Thanks so much for the resource material, it has given me vast knowledge in the Philosophy of law.I strongly concur with Jhering’s idea that law is entirely a human invention, it is act of will not a manifestation of reason.

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