After all the ink that has been spilled on the Historical School, can one still justify an entire new book? Perhaps surprisingly, the answer is yes. This book is particularly noteworthy because the focus of Haferkamp's study is narrow: it does not deal with the Historical School as a transnational phenomenon (see David Rabban, Law's History, 2013; and Mathias Reimann, Historische Schule und Common Law, 1993), but merely with its German side; even here, it looks only at the hard core; that is, the Romanist scholars in the first half of the nineteenth century. As Haferkamp notes, the literature on this hard core has focused on Friedrich Carl von Savigny and his ideas; that is, his anticodification campaign, organic-romantic conception of law, and his program of a “legal science.” (An exception to this narrow focus is James Q. Whitman, The Legacy of Roman Law in the German Romantic Era, 1990.) As a result, we have actually known amazingly little about the Historical School beyond Savigny. Haferkamp fills that void by looking at the movement as a whole, in particular at its larger membership (thirty-two scholars, all with portraits) and its principal agendas. His study makes two important contributions.
One is a much broader, richer, and more detailed picture of the Historical School than we have had so far. Seeking to grasp its essence, Haferkamp presents two complementary perspectives. First, he views the School as a form of communication about particular topics, positions, and arguments (16–17). Second, he portrays it as a personal network characterized by a pronounced hierarchical structure, with the acknowledged leaders Gustav Hugo and Savigny at the top and their disciples below (18–23, 325–27). The glue that held the School together was a combination of elements: submission to the founding fathers’ leadership, personal friendships, academic reputation and influence, political positions, and religious affiliation (which largely excluded Jews).
The other, ultimately more important, contribution is a new view of the Historical School's major agendas. The movement was not primarily concerned with the ideas for which Savigny became famous. Instead, it was largely constituted by three other, hitherto often overlooked, themes.
First, among its primary goals was the reform of legal education (31–110). When Hugo, Savigny and others postulated a return to the classical Roman sources, they were criticized for trying to turn the legal clock back to antiquity. Yet, they invoked the Digest not mainly as positive law for the present age but primarily as a training device for legal minds. After all, most of these scholars spent the majority of their time in the classroom. Most of their treatises on Roman law were not handbooks of contemporary law but study guides (110). Therefore, the ultimate goal of delving into the classical sources was to endow a new generation of jurists with the skills to critically analyze, rationally interpret, and justly apply legal texts and norms generally (269). Here, the Historical School was truly a “school.” Haferkamp sees this pedagogical program as the movement's most enduring common commitment (326).
The second major agenda was closely connected to the first: the Historical School also sought to reform the judiciary (269–312). (Haferkamp turns to this agenda last, which is unfortunate, because that severs its close connection with the first.) At the beginning of the nineteenth century, the German judiciary suffered from poor training, frequent incompetence, and a bad reputation. In educating jurists as “legal scientists,” the Historical School endeavored to put “scholars on the bench” (273). In fact, many members, including Savigny himself, worked as part-time appellate judges. Their models were, of course, the classical Roman jurists who often performed judicial functions.
Foregrounding these two agendas sheds new light on the Historical School. Its turn to the classical Roman sources reflected neither a purely antiquarian interest nor a purely academic pursuit. Instead, it served the eminently practical needs of improving legal education and staffing the courts with skilled and capable jurists. These agendas also generated the Historical School's most lasting practical success: legal education in nineteenth-century Germany advanced significantly and therefore substantially raised the quality of the bench and the bar.
The third major theme was academic: the Historical School struggled to establish coherent theoretical underpinnings (111–268). In particular, it sought to defend itself against the critique of being “unphilosophical,” as the remaining adherents of a natural law approach and the Hegelian jurists often claimed. In spite of Savigny's early argument that jurisprudence can be studied without philosophy (Juristische Methodenlehre, 1951, orig. 1802–3, 50), the School eventually did manage to develop a philosophical foundation of sorts. It combined elements of (historical) experience and (human) reason with religious precepts, resulting in a “Christian-historical school” (264–68). Although the movement was, therefore, not entirely devoid of an underlying metaphysics, its philosophical side was not as influential as its pedagogical and judicial reform programs.
Die Historische Rechtsschule may not satisfy an American reader's expectations of politically contextualized historiography. Although Haferkamp is not blind to the School's political role in the Prussian state, he does not seriously engage with its ideological function in the highly conservative, and often outright reactionary, climate of the decades before the 1848–49 revolution.
This book will be a standard reference on the German Historical School. Because it is written in German, however, few outside of continental Europe will be able to read it. Haferkamp should publish a summary of his findings in English to make them more broadly accessible to an international audience.
