The relationship between comparative law and legal history has been a topic of interest for a long time. But reflections on how methods could combine the historical approaches of legal systems around the world with theoretical or jurisprudential points of view really began with Edouard Lambert’s 1903 book La fonction du droit civil comparé. Using the two meanings of ‘jurisprudence’ (as case law in French language and as legal theory in English), Lambert proposed comparing positive rules while bearing in mind the weight of history and its limits. Following this path, this chapter explores critical and constructive approaches to comparative law through legal history. In the first part of this chapter, history is used to criticise simplistic conceptions of comparative law like ‘legal families’ and ‘national spirit’. In the second part, historical-jurisprudential approaches are defended as a means of more clearly delimiting legal phenomena and facilitating a deeper analysis of the dynamics of law. In conclusion, scholars are and should remain open to developing a diversity of historical-jurisprudential approaches.

In several smaller essays written in the late 1760s and the 1770s, Herder discussed German political history. In How the German Bishops Became an Estate of the Realm Herder spelled out his views on the ancient German constitution and the history of the Holy Roman Empire, whilst On the Influence of Governments on the Sciences, and of the Sciences on Governments returned to the political history of wider Europe, including Germany. This chapter discusses these essays as Herder’s contributions to the debate on German national spirit, highlighting the relevance of Möser’s History of Osnabrück to the development of Herder’s views on German history. I argue that Herder sought to understand the causal origins of modern European states, including, most importantly, the Holy Roman Empire. Like Möser, Herder was fascinated by Tacitus’s account of ancient German freedom, while being very critical of the Frankish polity. Both also rejected Montesquieu’s history of modern monarchy. Although Herder acknowledged some advantages of the constitution of the Holy Roman Empire, he was not a Reichspatriot. The 1779 essay restated Herder’s fundamental commitment to modern liberty and trade, whilst arguing that German imperial government was badly in need of reforms.