Chapter 9 Chapter Five Historical Jurisprudence and Evolutionary Jurisprudence

Natural law philosophers of the 17th and 18th centuries saw reason as a guide for identifying the ideal and most perfect form of law.They are concerned with the purpose and intent of the law, not with its history and development.They attempted to construct a new legal order on the basis of certain principles of liberty and equality, which they declared to be the eternal requirements of reason and justice. European rationalism and natural jurisprudence reached their zenith during the French Revolution of 1789.When the Revolution failed to achieve what it had set out to achieve in a dogmatic manner and had to be content with partial results, a certain tendency had begun to appear throughout Europe against the rationalist premises established by the Revolution.Especially in Germany and England the movement against the ahistorical rationalism advocated by the forerunners of the Revolution gained considerable strength.These two countries resisted and to some extent thwarted attempts to spread the ideas of the French Revolution throughout the continent.Conservative ideas based on history and tradition began to be emphasized and widely publicized.In the field of law and legal philosophy, this means emphasizing the history and tradition of law, and thus opposing attempts to establish natural law from a speculative perspective.The history of law is thoroughly studied, while the zeal of legal reformers is thwarted.During this period, the scientific study of the forces that shape the law has begun to supersede the rational inquiry into its ideal nature, intentions, and social goals.

In England, Edmund Burke, in his Reflections on the Revolution in France (1790), condemned the radicalization of the Revolution and emphasized The value of tradition and progressive development.He opposed what he considered a reckless change in the political and legal order of the French people by the French Revolution, and believed that history, custom, and religion were the true guides to social action.In Germany there was an even stronger reaction against the rationalist principles and cosmopolitan ideas of the French Revolution, and an influential movement arose.The movement was romantic, irrational, and nationalistic in nature and found expression in literature, art, and political theory.In the field of law, the representative of this movement is the historical school of law, and the most famous representative of this school is Friedrich Carl von Savigny (1779-1861 AD) and his proud The disciple George Friedrich Puchta (Georg Friedrich Puchta, AD 1798-1846).

Savigny put forward his legal view for the first time in his masterpiece "On the Vocation of Our Age for Legislation and Jurisprudence" (of the Vocation of Our Age for Legislation and Jurisprudence, 1814).This treatise was Savigny's answer to a proposal made by A. F. J. Thibaut, professor of civil law at the University of Heidelberg.The content of the proposal was roughly that the laws and customs of the Germanic states should be codified in a consistent manner on the basis of Roman law and the Code Napoleon.Savigny lashed out at the suggestion.In his view, law is never something that should be made in an arbitrary and deliberate manner by legislators.Law, he said, is the product of "those forces that operate inwardly and silently."It is deeply rooted in the history of a people, and its true source is the general beliefs, habits, and "the common consciousness of the people."Just like the language, composition and manners of a nation, the law is first and foremost determined by the character of a nation, that is, the "ethnic spirit" (Volksgeist).Savigny pointed out that every nation has gradually formed some traditions and habits, and through the continuous use of these traditions and habits, they gradually become legal rules.Only by serious study of these traditions and customs can we discover the true content of the law.Laws, in their original sense, correspond to a people's conception of justice and justice.To paraphrase Savigny:

One can see that from the earliest period of recorded historical development the law has taken on a character inherent to a people, just as their language, manners, and constitution have their own.Moreover, these phenomena are by no means isolated.They are nothing but the naturally and inseparably linked talents and orientations peculiar to a people, they are only the appearance of certain attributes.What binds them together is the common belief and common consciousness of inherent necessity, and not ideas born of accidental and arbitrary reasons. Therefore, Savigny believes that law, like language, is neither the product of arbitrary will nor deliberate design, but the result of slow, gradual and organic development.Law does not exist in isolation, but is a function in the life of the nation as a whole. "The law grows with the growth of the nation, grows stronger with the strength of the nation, and finally dies with the demise of the national personality."

In the process of this evolution, what role did Savigny give to the legal profession?Savigny is clearly aware of the fact that in an advanced legal system, jurists, judges and lawyers play an active role in the construction of the legal system.He knew that popular opinion did not form a code of procedure, rules of evidence, and bankruptcy law.But he sees lawyers less as members of a specialized profession and more as trustees of the people and "representatives of the spirit of society empowered to deal exclusively with the law . . . " Puchta agrees with his mentor that the process of law generation and development from the national spirit is an invisible process. "For us, what is visible is only the result—the law, as if it had emerged from a dark laboratory that conceived it and made it a reality."His studies of the general origin of law convinced him that customary law was the truest expression of the common beliefs of a people, and that it was therefore superior to statutory law.In his view, a well-defined statute is useful only if it embodies general national customs and usages.

It is obvious that the theories of the historical jurisprudence school are sharply opposed to those of the classical natural law philosophers.Thinkers in the Age of Enlightenment believed that as long as they appealed to human reason, people could discover legal rules and formulate them into legal codes.The historical school, on the other hand, loathes statute law and emphasizes the less rational, almost mystical notion of a "national spirit" rooted in the traditions of the distant past.Whereas the classical natural law school held that the fundamental principles of law were ubiquitous and constant, the historical school of law held that legal institutions had a distinctly national character; classical natural law - basically as a revolutionary theory - oriented The future, while historical jurisprudence - as a theory against revolution - is oriented towards the past.The defeat of Napoleon and the convening of the Congress of Vienna brought about a period of political reaction in Europe, in which the "holy alliance" of the imperial dynasty was the manifestation, and the historical jurisprudence school was actually the manifestation of this reaction in jurisprudence.When evaluating the historical school of law, we should not forget that Savigny was a conservative aristocrat who hated the egalitarian rationalism of the French Revolution.Furthermore, he was a Germanic nationalist who opposed the theory of French cosmopolitanism.He strongly opposed the "Napoleonic Code" and tried to prevent Germany from enacting a similar code.These facts explain why he dislikes statutes, and emphasizes instead that silent, nameless, and unconscious forces are the real elements of legal development—elements that no legislator must interfere with.

The historical jurisprudence school was perhaps the most important factor in the renewed attention to history that characterized nineteenth-century jurisprudence.At that time, countries around the world, especially Germany, conducted exhaustive research on the legal history of primitive and early societies.Scholars often write books detailing the smaller details of an ancient legal system.In some respects the labor expended on this historical study is disproportionate to the results it has achieved, but in many cases it has also greatly enriched our knowledge necessary for understanding the development of early legal institutions. .

The founder and main representative of the British Historical School of Law is Sir Henry Maine (AD 1822-1888).Savigny's historical approach to jurisprudence had a strong influence on Maine.But he surpassed Savigny in his extensive comparative study of the development of legal institutions in primitive and progressive societies.These studies convinced him that the history of the legal development of various peoples shows that some evolutionary patterns will be repeated in different social orders and under similar historical situations.There are no infinite possibilities in constructing and governing human societies; some political, social, and legal forms repeat under seemingly different guises, and when they do, they manifest in typical ways.The legal rules and legal system established by Roman feudalism are very similar to British feudalism, although there are some differences and differences between them.

In his famous book, Ancient Law, Maine states one of the general laws of legal evolution that he thought he had discovered: Movements for social progress are identical in one respect.Most notable throughout the movement was the gradual disappearance of personal attachment to the family and the growth of personal responsibility in its place.The individual steadily replaced the family as the unit concerned with domestic law; this progress, of course, took place at different speeds.There are no absolutely static societies, but the process of disintegration of ancient organizational structures can only be appreciated by a careful study of what these societies reveal.But whatever the speed of the changes, they met no resistance or retrogression, and it was found to be markedly slowed down by the assimilation of ancient ideas and habits from some entirely foreign sources. , is only a very accidental thing.Again, it is not difficult to find that relations between persons gradually replace, to varying degrees, those forms which arise from mutual relations in family rights and duties.This relationship is a contract.Starting from one pole of history, that is, from a social situation in which all personal relations are subsumed into family relations, we seem to have moved steadily towards a stage of a social order in which all personal relations arise from free agreement.

From this, Maine draws an oft-quoted conclusion that "the progressive social movement so far is a movement from identity to contract."Identity is a fixed state in which an individual does not take his place of will and which he cannot negate by his own efforts.It is a symbol of a social order in which groups—rather than individuals—are the basic units of social life.Every individual is bound by family networks and group ties.As civilization progressed, this state gradually gave way to a social system based on contracts.This system is characterized by individual liberty, since "rights, duties, and responsibilities are derived from voluntary acts and are the result of the exercise of the will of man." According to Maine, the hallmark of a progressive civilization is independence The free and self-determining individual emerges as the basic unit of social life.

Maine's "from identity to contract" theory is not his only outstanding contribution to jurisprudence.He has also advanced our knowledge and understanding of legal history in many ways.For example, his theory of the sequence of phenomena concerning the general development of law and legislation is of great interest.In the earliest stages, he argued, laws were made by the personal dictates of paternalistic rulers whose subjects believed they were acting by divine inspiration.Then came the stage of customary law, when customary law was interpreted and applied by an aristocracy or a privileged few who claimed a monopoly on legal knowledge.The third stage is marked by the codification of customary law (for example, the Twelve Tables in Rome) caused by social conflicts.According to Maine, the fourth stage is the stage of revising the ancient strict laws by means of fiction, equity, legislation, etc.; the adoption of the above means is to harmonize the law with the increasingly progressive society. .The final stage is that of codifying all the above-mentioned different legal forms into a coherent and systematic whole by scientific jurisprudence.Maine believes that not all societies have successfully gone through the above-mentioned stages, and the legal development of each society, from some specific aspects, does not all follow the same trajectory.Of course, Maine just wishes to point out some general directions and trends in the evolution of law.Modern research shows that, on the whole, Maine was extremely successful in exploring some of the basic paths of the "natural history" of law. Maine's comparative analysis of legal evolution was supplemented by the historical research of Sir Paul Vinogradoff in the early 20th century.British historical research has also achieved fruitful results, such as Pollock and Maitland's "History of English Law Before the Time of Edward I" (History of English Law Before the Time of Edward I), Holdsworth (Holdsworth's History of English Law) and numerous monographs and monographs.What is still lacking, however, is a work on the history of English law that analyzes legal developments closely together with the general history of English politics, society, and culture. We shall now turn to the question of the United States. In 1849, Luther S. Cushing gave a series of lectures at Harvard Law School.In these lectures, Cushing trumpeted the German school of historical law, especially the theories of Savigny.Among the students attending this lecture was a student named James Coolidge Carter (James Coolidge Carter, AD 1827-1903), who later became a well-known lawyer in New York State and a leader of the American bar.Cushing's lectures made a deep impression on him and made him a believer in Savigny's theory and a lifelong advocate of it. Carter's basic point is that custom and practice provide rules for regulating people's behavior, while judicial precedent is nothing but "authenticated custom".In essence, it is convention that determines whether an action is right or wrong, and judicial decisions that resolve the issue of right or wrong merely stamp the government's stamp on a social practice and prove its authenticity.Therefore, according to Carter, courts do not make laws, but only discover and search for laws from some existing facts—that is, socially recognized practices.He regarded even the great codes of the Continent as restatements of pre-existing laws rooted in popular consciousness. "The new laws enacted are only a small part of the laws that exist objectively." Like his predecessor Savigny, Carter was involved in a bitter controversy over codification. In the second half of the 19th century, David Dudley Field recommended that New York State pass a comprehensive civil code.He pointed out that judges should not be legislators, since, in his view, in a common law system judges must be legislators; know what rights, duties and responsibilities they have; and codes also make the law systematized and understandable, thereby reducing the burden of legal research.Carter vehemently opposed the suggestion.He also pointed out, among other things, that codes remain the law of judges because they require interpretation and addition; Codes can also hinder the development of law because the harm caused by bad regulations cannot be amended until after the harm has been done.Just as Savigny's crusade against codification succeeded (at least during his lifetime) in preventing the passage of a German civil code, so Carter's arguments against the Field Code were instrumental in foiling plans for such a code in New York State. had a great impact. Herbert Spencer (1820-1903 AD) was an English philosopher and sociologist; strongly influenced by Charles Darwin's book Origin of Species, he developed a Theories about law, justice, and society.Spencer believes that civilization and law are the result of biological and organic evolution, and the competition for survival, natural selection, and "survival of the fittest" are the main determinants of this evolutionary process.Evolution, he argues, manifests itself in differentiation, individualization, and increasing division of labour.According to his theory, civilization is a gradual process of social life from a simple form to a more complex form, from the original homogeneity to the final heterogeneity.He divides this process of civilizational development into two main stages: The first is the primitive or military social formation, characterized by war, coercion, and identity as means of regulating society.The second stage is the higher or industrial social formation, characterized by peace, liberty and contract as the dominant factors. According to Spencer, the second stage of social development is marked by increasing restrictions on government functions in order to increase individual freedom.The sphere of government activity was gradually limited to enforcing contracts and providing protection to both parties.Spencer opposed all forms of social legislation and collective management as undue interference with the laws of natural selection which, at the highest stages of civilization, should have unlimited authority.He abhorred any social activity conducted by the state, and opposed public education, public communications, public hospitals, national currency, a government-run postal system, and the poor laws. Spencer's concept of justice is based on the concept of freedom and consists of two elements.He argues that the self-interested element of justice requires each individual to derive the greatest benefit from his or her own nature and capabilities; the altruistic element of justice requires an awareness that others with the same claims will necessarily place limits on the exercise of liberty.The combination of these two elements produces the law of "equal liberty".Spencer expressed the law as follows: "Everyone is free to do what he will, provided he does not infringe the equal liberty enjoyed by any other." In other words, justice is that each person's liberty is limited only by the same liberty enjoyed by anyone else. This "law of equal liberty" articulated a conception of justice appropriate to an age of individualism and laissez-faire.A corollary of this notion is the regulation of certain liberties which Spencer calls "rights."These include: the right to inviolability of the person, the right to freedom of movement, the right to use natural resources (light and air), the right to property, the right to freedom of trade and contract, the right to freedom of belief and worship, and the right to freedom of speech and the press Wait.It should be pointed out that his strong individualism led him to believe that the social "rights" that only the state can guarantee and enforce (such as the right to work and the right to social maintenance in poverty) do not have the nature of rights.He was even somewhat reluctant to recognize the political "right" of every citizen to vote as a right.He pointed out that "since votes are distributed 'by the head,' the class with the greater membership inevitably benefits at the expense of the class with the smaller membership." For him, the best constitutional government in an industrial society is a A system that represents group interests rather than individuals.In a word, his commitment to laissez-faire also made him deeply concerned about the political consequences of majority rule. The legal theory of Marxism had a great influence on the jurisprudence thought of the socialist countries.It is generally believed that this theory has the following three basic assumptions: (1) law is the product of continuously developing economic forces; (2) law is a tool used by the ruling class to maintain its power over the lower classes; (3) In the future communist society, the law as a tool of social control will gradually reduce its role and eventually disappear.We must ask the question whether all of the above assumptions represent the views of the founders of the socialist movement, Karl Marx (1818-1883 AD) and Friedrich Engels (1820-1895), or some of them must be seen as dogmatic additions and modifications to Marx's theory that were later made. 1. The idea that law is a reflection of economic conditions is an integral part of the dialectical materialist theory of Marx and Engels.According to this theory, the political, social, religious and cultural institutions of any given era are determined by the production systems that existed at the time and constitute a "superstructure" built upon this economic foundation.Law is considered part of this superstructure, so that its form, content, and conceptual tools are reflections of economic development. "Legal relations and forms of the state are to be understood neither in themselves nor in the so-called progress of the mind of man, but in the material conditions of life in which they are rooted . . . , and the whole great superstructure is more or less transformed". According to this view, law seems to be a function of the economy, not an independent existence in itself.However, Engels revised and explained this point of view in some letters in his later years.He said that economic factors are not the only and all factors in social development.Every component of the superstructure—including the norms and institutions of law—reacts on and, within certain limits, modifies the economic base.For example, states can influence the course of economic development through protective tariffs, free trade policies, or fiscal measures.But economic needs are always the decisive factor in the interaction of the various forces at work in social development. "Men make their own histories, but they do so on the basis of existing real relations within the particular circumstances that condition them. Within these real relations, no other relations—political and Ideological relations--how much they affect economic relations, which in the last analysis are still decisive relations, they constitute a red thread that runs through the whole development process and enables us to understand this development process in its own right ". 2.A second important principle that is broadly associated with Marxist legal theory is the view of law as a way of class domination.One of the sources of this legal view is an often-quoted passage in Marx's "Communist Manifesto".Marx said to the bourgeoisie at that time, "Your jurisprudence is nothing but the will of your class incorporated into laws applicable to all, and the basic nature and direction of this will depend on your class. Determined by the existing economic life conditions." It should be pointed out that the above paragraph only shows that the laws of bourgeois society are the embodiment of class will, rather than a general evaluation of the nature of laws.Nor, as such, does the text contain the charge that the will of the ruling class is always exercised at the expense of the interests of the non-ruling classes.Engels clearly refuted such a statement. He pointed out: "There are very few legal codes that candidly, completely, and purely express the rule of a class." The legal concept of class rule was most fully expressed in early Soviet legal theory.Shortly after the Russian Revolution, P. I. Stuchka, Commissar of Justice, attempted to define law as "the system of social relations in the interests of the ruling class and protected by the organized forces of that ruling class. (or order)" in 1919, the Council of the People's Commissars of Justice formally adopted this definition and included it in a statute that same year.Some 20 years later, Soviet Justice Minister Andrei Vyshinsky reaffirmed this definition, saying that law is a system designed to "defend, maintain and develop The normative system of social relations and social order. Such an unflattering definition of law can serve its own purpose in a society whose propaganda apparatus repeatedly promotes the temporary nature of the legal system and its premature death in a classless society.The shift in the emphasis of official jurisprudence came after the Soviet government realized that it was impossible for the Soviet Union for a long time not to use law as a tool of social control.In this process of reemphasizing legal theory, we must distinguish two separate stages. In the first phase, the "ruling class" in the Soviet Union was considered the working class, which was claimed to be the majority of the people.It has been suggested that the working masses, organized in the form of the dictatorship of the proletariat, use legal weapons to fight against their class enemies "for the purpose of completely and finally destroying the remnants of capitalism in economic life".The above restatement of the legal concept of class rule still retains the meaning that law is a tool of class struggle and a means of safeguarding class interests. This legal definition lost its meaning after Nikita Khrushchev declared that the USSR had become the state of all the people and should no longer be considered a dictatorship of the proletariat.This announcement had a major impact on the second major shift in official legal ideology.It was declared at the time that Soviet law had merged with the "general will" of the people.To paraphrase the words of the two most important academicians at the time, "In our country, with the disappearance of the historical inevitability of the dictatorship of the proletariat, Soviet law is no longer the embodiment of the will of the working class and the laboring masses under its leadership as described earlier. , but the embodiment of the unified will of the whole people." This view finds little support in orthodox Marxism, but must go to the teachings of Jean-Jacques Rousseau, whom socialists regard as a "bourgeois" philosopher Find its theoretical roots.This change in Soviet legal thought was criticized by the leadership of the People's Republic of China, who pointed out that this change in the Soviet Union was a form of "revisionism" incompatible with the genuine Marxist theory of state and law. 3. Just like the concept of class-ruled law, the prediction of the demise of law failed to find a strong basis in the writings of Marx and Engels.Indeed, Engels once predicted that the future society would replace "rule over people" with "management over things" and that the state would "gradually wither away" in such a society.However, the text does not explicitly refer to the law.Although Engels probably regarded the state and the law as a pair of twin institutions closely linked in development and destiny, Engels never explicitly made such a presupposition. Like the previous two views, this theory was also promoted by early Soviet theorists.Eugene Pashukanis explained the idea of ​​"death" in an original and interesting way.Pashukani was a predecessor of Soviet legal philosophers, and was finally sentenced to death as a traitor to Marxism. The rise and fall of his fate can be said to be an absurd story in the history of legal thought.Pashukani developed the proposition that law is the typical force by which society manages a market economy.In a market economy, independent private producers and commodity owners exchange commodities by contract.He argues that the interests of these producers and owners often conflict, and that the role of the law is to reconcile this conflict of interests.He believed that the unity of purpose of a socialist society would eliminate the need for laws.In such a society, there are only technical rules of society, which are used to achieve collective goals, such as the rules of economic planning, and there is no need for legal rules designed to resolve disputes between individuals and groups with different interests. This theory lost its dominance when the Soviet government decided to restore the rule of law and emphasized the usefulness of the so-called "socialist rule of law." The theory of "death" has not been completely abandoned, but its realization has been postponed until the distant future.Interestingly, Soviet scholars today take the view that in a future perfect society only "coercive" laws would disappear.Existing social rules governing the interrelationships of people are still needed, and it is hoped that the time will come when members of society voluntarily abide by these norms without state coercion.