Cultural/Historical Jurisprudence

The traditional schools of Jurisprudence which predated the school of Cultural/Historical Jurisprudence asked the question "What is law?" and attempted to review such law in a philosophical form. Law was held as an icon unto itself. Thus, the school of Cultural/Historical Jurisprudence represented a major shift in the continuum of legal theory. The focus of this school, and those which came after it, was the question "Why does law exist, and where does it come from?"

This focus led to the use of historical law and anecdotal evidence, allowig a review of past policies to be made in the light of the history and culture which existed when they were framed. Proponents of this theory state that any such review must be done in the context, both historical and cultural, in which they were formed. One might argue with a fair degree of facility that even "bad law" had to have originated somewhere. Thus, the historical review is indispensible.

The converse of this theory is easily shown: one can argue easily that there is then no "bad law." Should a law be enacted and enforced, insofar as the culture and history either warrant or permit it, the law is good. That its ultimate effects may be evil, or that it is possibly ineffective, in no way invalidates its being. Thus, even the atrocities of the Nazi regime can be understood as "good law" based in the proper cultural and historical context.

Definitions and Works of Cultural/Historical Proponents

Cultural/Historical Jurisprudence: A History of the School

Sir Henry Maine Biographical Information
   
Friedrich Karl von Savigny Biographical Information
   

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This page last updated 1 May 2002 by John Stradling

Copyright John Stradling 2002. All rights reserved.