Abstract
This material presents a Ukrainian translation of five articles by the renowned German legal scholar Rudolf von Ihering, published throughout 1844 in the journal Literarische Zeitung.
The articles describe the origins and essence of the Historical School of Jurisprudence, which had a profound impact and dominant influence on the development of German legal thought. They outline the scope and nature of the school’s work, which, through meticulous attention to detail, developed a valuable philosophical and critical method aimed at overcoming rigid legal dogmatism. The author highlights the school’s contributions to the development of positive law.
A separate section is devoted to the shortcomings of the Historical School, including certain exaggerations and the illusory nature of some of its conclusions.
Ihering determines that the primary task the Historical School set for itself was the historical analysis of Roman and German private law. At the same time, it differed from earlier legal scholars with a similar focus, primarily in its purpose—a distinction explored in detail within the articles.
Furthermore, the author identifies the implementation of the organic method as the ultimate goal of the Historical School’s historical-legal work. Regarding the study of legal history, progress is seen not so much in systematic method application, but in the in-depth treatment of specific issues and topics. Certain areas, such as the history of procedure in Roman law or ancient property law in German legal tradition, took on entirely new forms. With his outstanding monographic work, Savigny stood out as the leading figure—his treatises demonstrated both analytical brilliance and clarity of expression.
The Historical School as a distinct movement ceased to exist, largely because the methodological opposition that had sustained it dissolved. Nonetheless, the principles developed by its representatives significantly influenced the evolution of German private law:
The first core principle is that law is not created by the legislator—it originates from and lives within the people, with the legislator’s role being to articulate and adapt it in line with societal changes. The second principle holds that individuals conform to the spirit of their time, which in turn is shaped by past education—meaning that the freedom of any given era is rooted in its prevailing circumstances.
From a political standpoint, the historical approach’s merit lay in its opposition to the belief in the omnipotence and arbitrariness of state power in legal matters, and in rejecting the illusion of historical contingency.
