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Historical School of Jurisprudence 1
Historical School of Jurisprudence 1
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Introduction
Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law
has a very complex concept. Its understanding varies from people to people. Everyone has
a different understanding of the law. For example, a law student and lawyer understand the
law as a solution of every dispute. An ordinary citizen understands the purpose of the law is
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to punish them.
Historical school of Jurisprudence argued that the law is the exaggerative form of social
custom, economic needs, conventions religious principles, and relations of the people with
society. The followers of this school argued that law is found not made. The historical school
doesn’t believe and support the idea of the natural school of law which believe that the
origin of law is from superior authority and have some divine relevance.
The basic source of the Historical School of Jurisprudence is the habits an custom of people
which changes according to their needs and requirement. It is also called the continental
school of Jurisprudence.
This school rejects the ideas of formation of law by judges and the origin from some divine
relevance. In the words of Salmond, “That branch of legal philosophy which is termed
historical jurisprudence is the general portion of legal history. It bears the same relation of
to legal history at large as analytical jurisprudence bears the systematic exposition of the
legal system. It deals, in the first place, with the general principles governing the origin and
development of law, and with the influences that affect the law. It deals, in the second
place, with the origin and development of those legal conceptions and principles which are
so essential in their nature as to deserve a place in the philosophy of law- the same
conceptions and principles, that is to say, which are dealt with in another manner and from
another point of view by analytical jurisprudence. Historical jurisprudence is the history of
the first principles and conceptions of the legal system.”
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The Historical School believe that law is made from people according to their changing
needs. Habits and customs are the main sources of the Historical School of Jurisprudence.
According to Dias, Historical school arose as a reaction against the natural law theories.
Natural school of law believes that the law is originated from some divine power. Natural
law is also called the Eternal law. It exists since the beginning of the world. It is closely
associated with the morality and intention of God. Indian constitution has some relevance of
the natural law in its articles.
Historical school of Jurisprudence focuses on the formation of law by people not by some
divine origin.
Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding
the legal institution was Montesquieu. He laid the foundation of the historical school in
France. According to him, it is irrelevant to discuss whether the law is good or bad because
the law depends on social, political and environmental conditions prevailing in society.
Montesquieu concluded that the “law is the creation of the climate, local situation, accident
or imposture”. He was of the view that law must change according to changing needs of the
society. He did not establish any theory or philosophy of the relation between the law and
society. He suggested that the law should answer the needs of the place and should change
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One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book,
he represents his beliefs in political Enlightenment ideas and suggests how the laws are
required to modify according to the needs of people and society.
Savigny
Savigny is regarded as a father of the Historical school. He argued that the coherent nature
of the legal system is the usually due to the failure to understand its history and origin.
According to him, the law is “ a product of times the germ of which like the germ of State,
exists in the nature of men as being made for society and which develops from this germ
various forms, according to the environing the influences which play upon it.”
Savigny believes that the law cannot be borrowed from outside. And the main source of law
is the consciousness of the people.
He was of the view that the law of the state grows with the strengthening of the state
nationality and law dies or fade away when nationality loosens its strength in the state.
Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the
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product of general consciousness of the people or will. The concept of Volksgeist was served
as a warning against the hasty legislation and introduce the revolutionary abstract ideas on
the legal system. Unless they support the general will of the people.
Basically, Savigny was of the view that law should not be found from deliberate legislation
but should be made and arises out of the general consciousness of the people.
Charles Allen
Charles Allen criticized Savigny’s view that law should be found or based on the customs.
Allen was of the view that customs are not the outcome of common consciousness of
people. But they are the outcome of the interest of a powerful and strong of a ruling class.
For example, slavery which was recognized and prevailed in certain societies by the
powerful classes of society.
Prof. Stone
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the
legislation and planned law and social change. And over emphasized on the consciousness
of people.
For example, In India, the abolition of Sati and widow’s remarriage are brought in to change
because of powerful and effective legislation.
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Maine studied the Indian legal system deeply as he was law member in the Council of the
Governor–General of India b/w 1861 to 1869. Maine’s ideas were incorporated by the best
things in the theories of Savigny and Montesquieu and he avoided what was abstract and
unreal Romanticism.
First stage
Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. For example, Themistes of ancient Greek. The judgment of the
king was considered to be the judgment of God or some divine body. King was merely an
executor of judgments of God, not the law-maker.
Second stage
Then the commands of King converted into customary law. The custom prevails in the ruler
or majority class. Customs seems to have succeeded to the right and authorities of the
king.
Third stage
The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the lawmaking power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is
superseded by a minority who obtain control over the law.
Fourth stage
In the fourth and last stage, the law is codified and promulgated.
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Static societies
Societies which does not progress and develop their legal structure after the fourth stage of
development of law are Static society. Static societies don’t progress beyond the era of
codes.
Progressive Society
Societies which go on progressing after the fourth stage of development of law are
Progressive Societies. They develop their laws with the help of these instruments:
Legal Fiction
Legal Fiction changes the law according to the needs of the society without making any
change in the letters of the law. Legal fiction harmonizes the legal order but made the law
difficult to understand.
Equity
According to Maine, “Equity is a body of rules existing by the side of the original civil law &
founded on distinct principles”. Equity helps to remove rigidity and injustice.
Legislation
The legislation is the most effective and desirable method of legal change. Laws will be
enacted and became operative officially.
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The main concept of Puchta’s ideas was that “neither the people nor the state alone can
make and formulate laws”. Both State and individual are the sources of law.
Contribution of Puchta
Puchta gave twofold aspects of human will and origin of the state.
Despite some points of distinction Puchta and Savigny, he improved the views of Savigny
and made them more logical.
Conclusion
Historical School of Jurisprudence describes the origin of law. This school argues that the
law was found not made. The main source of law is Kings Judgment, Customs and habits.
Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence. According to Sir Henry Maine,
Montesquieu was the first jurist of Historical school. Sir Henry Maine was the jurist of
English Historical School. He was more logical and accept the concept of Codification and
legislation.
Savigny was the father of Historical school. He argued that Law is like language and have a
national character. Law is not universal. While Puchta improved the ideas of Savigny and
argued that both state and people are equally important and source of law.
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