Lecture 5 – Historical, Marxist, Anthropological Sociological Schools
Today we will be looking at some “ideological” ways of looking at the law. Which means that. The
person who is writing is committed to a particular kind of world view which they believe explains every
aspect, that is to say that they're looking, as it were, through a pair of spectacles of a particular colour
which is associated with their political, particular political or other worldview. So they will frequently
ignore or discount anything that's not consistent with their particular way of looking at the world.
Sociological views, particularly Marxist ones, are subject to this materially.
By “ideology” I mean doctrines, myths or beliefs which guide or explain the law. Very often this
involves explaining the nature of social or class movements or political policy. Sometimes these
involve reactions to the law viewed in a particular way.
Four different types will be looked at in this and the next lecture:
• Historical (historical school) – seeing the law as a product of a gradual historical evolution and
trying to explain the mysterious causal forces which move society.
• Marxist – the view that the law is a tool of oppression used by the bourgoisie class to keep
down the proletariat and predicting the ultimate outcome for us.
• Anthropological – the law is a necessary part of normal human social interaction which is best
revealed by examining the law of (say) small tribal units as they battle to survive in a hostile
environment. Our society is too complex to understand clearly.
• Sociological – similar to anthropological but it is an attempt to analyse human social behaviour
in complex societies using social scientific methods.
Notice that the first two believe in progressive processes as we move through time towards Utopia.
So you've got to bear in mind that it has a particular ideological view that sees the end of the society
as the perfect communist state, as being the thing that is they set out to achieve. So a Marxist looks
at all the stages up to that point as being necessary mechanisms in attaining that ultimate utopia. So
in a sense, the historical view shows us the development and collapse of a state with Marx.
The latter two do not. They look at societies just as they are, but as dynamic social systems which exist
to serve our needs.
1. Historical School
We shall look at a German and then a British version.
Friedrich Carl von Savigny (1799-1861) (German)
• Background: French influence in Germany, French Civil Code, historical and cultural belief
He had witnessed the rise of the French Revolution and then even worse, Napoleon Bonaparte, who
made his way across Europe trying to impose the French civil system upon people who were very far
from the French people in France. At that time, the Germans really didn't have a sense of connection,
Germany was made up of a large number of lenda, as they're known lands, some of which were
principalities, some of which were smaller units, some of which were almost Democratic, and the only
thing that they had in common, they were probably about 30 of these, was that German was spoken.
So for the Germans (Germany itself only came into existence in 1871 or so). Interestingly, Italy was
, very much the same, it was a whole range of different lands which were effectively independent and
only formed in Italy in 1871 or 1872. Some of the German areas were actually areas where German
was spoken. But until then, they didn't have an awful lot in common. So if you lived in Rome, you
would regard yourself as a Roman and you would regard people who came from Milan as being
somewhat foreign from you. The only thing that would have connected you together was the Italian
language. the way that that language was expressed in different areas, the culture was really quite
different. So Roman culture was different from Milanes culture. And to some extent, this idea is still
pertains today, that people who live in Milan regard themselves as having their loyalties towards the
area of Milan. And they don't feel they've got a lot in common with the people in Rome and elsewhere
in Italy. In Germany, it’s slightly different because for some reason related to the use of language,
German speaking people regard themselves as having an awful lot more in common with other
German areas than the Italians feel to greater Italy, although there is still quite a lot of identity in a
local area.
The reason why I mentioned this is because Carl von Savigny considered that the French influence in
his part of Germany was something that was alien and strange to the Germans because it didn't take
into account the history, traditions and language and culture and institutions of the German speaking
areas. So the French had to be repelled. The civil code that the French wished to impose was
something alien, it was imposed by them using force where they had managed to overthrow the
German rulers. And so it didn't fit with the way the Germans regarded their lives, purposes and culture.
So von Savigny developed the ideas that a person's language and culture was extremely important in
the development of traditions and even in the development of laws, because law is a product of
history, traditions, language and culture. And as a result, the imposition of the code civil by the French
was unacceptable and ultimately unsuccessful in winning the German peoples around in the Rhineland
and in onsets and so on to the way of thinking of the French. It didn't work. His view was that the
reason for this is that people's history, traditions, language, culture and institutions was an expression
of their underlying spirit. In the case of the Germans, they had a people's spirit, which meant that the
culture, traditions, laws, etc would develop in line with their values, had to develop in line with their
values.
He believed that history should be about the life of the society as a whole and not about the exploits
of individual kings and generals. Societies develop their own values rooted in the lives of the people
that compose them, in their shared history, traditions, culture and institutions. Law is a product of this
– it is Roman law adapted to German needs and cultural conditions.
• Motive:
He had a deep hostility to the French revolution and the imposition of the Code Civil by the victors.
How could you overtrow all the existing law and simply impose a set of new rules. Worse still, the
Code Civil is French in origin and not German!
• Volksgeist (literally: people's spirit) – a term coined by Savigny meaning the distinctive
customs and popular feeling of the German people.
Most importantly, law is not static but evolving. It is a process – the Volksgeist has an influence
on the development of the law. Law grows with the growth of a people, strengthens with the
peoples’ strength, and dies away when the nation loses its identity. Nations and their law go
through stages hand-in-hand, evolving together to form greater and greater connexions and
