The German Historical School in Spain? Puchta’s concept of customary law and its reception in Spanish Jurisprudence. During the 19th century, German Jurisprudence, through the work of the Historical School of Law and the Pandectist Studies, had a decisive influence on Spanish legal science as well as in other surrounding countries. However, the introduction of the doctrines of the Historical School in Spain has generally been regarded with skepticism by legal historians: the common conclusion is that in Spain there is no reception of the Rechtsschule. After a critical review of this traditional understanding of the reception of the School, I offer an analysis of the mid-century introduction of the concept of customary law developed within the Historical School, based on the doctrine of the Überzeugungstheorie (Puchta). The German doctrine of customary law was well received by the jurists who, from the first codification projects, privileged legal custom as the primary source of law. I maintain that one can speak on the one hand of the ‘projection’ in Spain of a philosophy – the vague legal historicism condensed in the notion of the Volksgeist –, and on the other hand of a clearer ‘reception’ of the doctrinal concept of legal custom elaborated within the Historical School.
*) Ich bin dankbar für die bereichernden Kommentare der Professoren Joachim Rückert und Hans-Peter Haferkamp sowie für die Hilfe von Tim Knoche. Sämtliche Übertragungen ins Deutsche erfolgten durch den Verfasser.
Published in Print:
Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung, Volume 136, Issue 1, Pages 187–228, eISSN 2304-4861, ISSN 0323-4045, DOI: https://doi.org/10.1515/zrgg-2019-0007.
The Zeitschrift für Rechtsgeschichte (ZRG, also known as the Savigny Journal) represents an integral part of European legal history research, having made a significant contribution to the current state of the discipline.
01 Aug 1861
German, French, Spanish, English, Italian
Hans-Peter Haferkamp, Peter Oestmann and Joachim Rückert