HISTORICAL SCHOOL OF JURISPRUDENCE

Introduction

The word Jurisprudence had its origin from a Latin word ‘Jurisprudentia’ which means ‘the knowledge of law’. Jurisprudence deals with the origin and meaning of law. As law is differ from society to society and even man to man. The meaning of law for a Lawyer may be different from that of a non-legal background person.

Historical school of Jurisprudence deals with the history and evolution of law. It believes that law is an outcome of development of the society because it originates from the conventions, customs, religious principle, economic needs of the people.

Basic Concept and Meaning of Historical School of Law

According to Historical School, law is found and not made. The evolution of law is an organic progress and not just based upon the command of a sovereign or dictator. Law is not abstract notion of justice imposed by way of rules, but its roots are imbibed in social and economic conditions of past and present. The essence of law is the acceptance, regulation and observance by the people.

Reasons for Evolution of Historical School

• Reaction to Natural School of Law

It originates as a reaction to the Natural School of Law which believes that law is originated from a divine power. But the Historical School believes that the formation of law is by people themselves.

• Oppose Analytical School of Law

It is in contradiction with Analytical School of Law with focuses upon the concept of Positive Law. The law is command of sovereign and the sources of law are legislation, commands, state and judges. Custom has no place inn law. But Historical jurists believe that law is based on the customs, habits and general will of the public. Customs are superior to positive law.

JURISTS OF HISTORICAL SCHOOL

Montesquieu (1689-1755)

Charles-Louis de Secondat, baron de La Brède et de Montesquieu was a French judge, intellectual and a political philosopher. According to Sir Henry Maine, he was the first jurist who proceeded on the historical method. He researched upon various institutions and laws of various societies. He concluded that ‘laws are the creation of climate, local situations, accident or imposture’

He did not propounded any theory of philosophy of law and society but he suggested that law should be according to the changing needs of the society by time and place.

Savigny (1779-1861)

• Early Life and Works

Friedrich Karl von Savigny, popularly known as Savigny was a German Jurist and Historian. He is regarded as the father of Historical School of Jurisprudence. His works are:-

Ø The law of Possession.

Ø The History of Roman Law in Middle Ages

Ø Thee system of Modern Roman Law-testify his genius

• Legal Philosophy

Savigny historical philosophical theory was the reaction against the political conditions at German which were related to the codification of its laws. There was a moment for the codification of a single law system in the whole Germany. Savigny opposed this idea of codification and his expressed views forms his theory.

• ‘Volksgeist’ as the Source of Law

‘Volksgeist’ (folk or national spirit) is the set of mental, intellectual, moral and cultural traits that define particular human groups represented as ‘people’ or ‘nation’. In simple words it is the general consciousness of the people.

According to Savigny, every society has its own general consciousness which is expressed in their custom and traits. Later these customs and traits became the basis of their judicial decisions and part of law. Thus law has its source in ‘Volksgeist’.

• Key points Savigny of his theory

Ø Law, language, customs and government have no separate existence and develop with the life of people.

Ø Law grows with a nation, increases with it, and dies at its dissolution and is a characteristics of it.

Ø In earlier stages, law develop spontaneously according to the principle of society and later on it is developed by the jurists.

Ø Law is not a universal aspect. It varies from place, people and time.

Ø Law is based on the general consciousness, custom, traits and belief of the people.

• Criticism of Savigny’s Theory

Ø There is inconsistency in his theory as on hand he said that origin of law is in the popular consciousness and on the other hand, he argued that some Roman principles has universal application.

Ø ‘Volksgeist’ is not the only source of law, as some laws are adopted from other country, some by influence of great personality and some rules which were never being in connection with the popular consciousness.

Ø There are differences in the views of people of the same community. Thus the customs are not based on the popular consciousness of the whole community e.g. Sati.

Ø He ignored the factors which influenced the law e.g. role of judiciary etc.

Ø He did not reflect the evolution in a comparative way.

Ø He placed popular consciousness at a superior position which encouraged juristic pessimism. The illegal and unreasonable customs cannot be justified because they are the collective will of people.

Puchta (1798-1846)

Georg Friedrich Puchta was a great historical jurist and disciple of Savigny. He enhanced the study of historical evolution of law in an improved and logical way. He begin with the origin of human race and constructs a spiritual unity of men which constituted a General will. He focused upon the situation of conflict between Self Interest and General will. This brings out the idea of law. It lead to the formation of State to resolve such conflicts.

His theory states that neither the people nor the state itself is the source of law. Both of them collectively becomes the source of law.

• Puchta’s Contribution

Ø Puchta gave the twofold aspects of the human will and origin of state.

Ø In spite of some distinctions with the Savigny theory, Puchta made improvement to his theory and made it more logical.

Sir Henry James Sumner Maine (1822-1888)

Sir Henry Maine was a British Jurist and a legal historian. Maine compare legal institution of various societies and communities and form a comparative theory of evolution of law (step by step development of law).

• Life of Sir Maine

Ø Civil law Professor at University of Cambridge (1847-54).

Ø Member of the Council of the Governor General of India (1861-1869).

Ø He was knighted in 1871 (Knighthood is a title given to a person by the King or queen for great achievements or rendering their services to the country. That person can use Sir instead of Mr. before his name. That’s why we regard him as Sir Henry Maine).

Ø He occupied the chair of historical and comparative jurisprudence in Corpus Christ College, Oxford (1869-1877).

• Works of Sir Maine

Ø His first work ‘Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas’ (1861).

Ø He also wrote Village Communities (1871),

Ø His another work ‘Early History of Institutions’ (1875).

Ø Dissertations of Early Law and Custom (1883).

• Stages of Development of Law

Maine describes the development of law in four stages as follows:-

1. Law made by ruler: In the beginning, the laws are in the command of the ruler. He believes to be acting under the divine inspiration of God. The decisions rendered by them were considered as order of God.
2. Customary Laws: The command of the ruler were later take the shape of customary laws. These laws were formed like a law from precedents by courts.
3. Knowledge of Law to Minority (Priests): Later the power of rulers and original law maker weaken and the minorities especially religious, took the knowledge of administration and customs in their own hand. The law was controlled by these minorities like priests.
4. Codification: At the fourth stage, the law was codified. Example- Salon’s Attic Code.

Conclusion

The Historical School of Law deals with the past and present events. It is based on customs, King’s judgments and traits followed by the people. Montesquieu was the first jurist of Historical School. Various jurists gave different theories regarding historical schools The Historical School helps in study and understanding of law and delivering decisions by the judges.

The author, YOJIT KAUSHIK is a law student pursuing BA LLB from Institute of Law, Kurukshetra University, Kurukshetra, Haryana

References

1. Saurav Bhola ‘Historical School of Jurisprudence’ (iPleaders, 11 Janurary 2019) <https://blog.ipleaders.in/historical-school-of-jurisprudence/> accessed 13 April 2020.
2. B.N. Mani Tripathi, ‘Jurisprudence – The Legal Theory’ (19th edn, Allahabad Law Agency 2013) 4-38.
3. Dr. Shahab Shabbir, ‘The Historical and Anthropological School of Jurisprudence, (SlideShare, 20 April 2017) <https://www.slideshare.net/ShahabShabbir1/the-historical-and-anthropological-school-of-jurisprudence> accessed 14 April 2020.
4. Shubhi, ‘Schools of Jurisprudence’ (Legal Bites, 27 November 2016) <https://www.legalbites.in/schools-of-jurisprudence-notes/> accessed 14 April 2020.
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