Historical School of Jurisprudence

Introduction

Jurisprudence is known as the theory or the philosophy of law. During the years  1779-1861 the founder of the Historical School of Jurisprudence was Friedrich Carl  Von Savigny[1], he was also considered to be the father of the Historical School of Jurisprudence. According to him, the central motive of the historical school was to initiate that a  Nation’s customary law is purely it’s living law. However, the work of jurisprudence is only to reveal, uncover or expose this customary law. The jurists of this particular school supposed that laws should transform or simply evolve with the changing requirements and nature of the people and they also followed the concept of man made laws. Consequently, It would be seen that historical school developed as a stimuli to legal theories propounded by natural law philosophers and the analytical positivists. The latter refers that the law was being founded on the theoretical idea of the human compunction and reason.

This school refused the notion of the formation of laws by the judges and the inception from certain divine relevance. The historical school took out ethical consideration from the subject of jurisprudence and refused all creative involvement of jurists, judges and law givers in constructing law. The philosopher Fredrick Pollock was among the supporters of the historical school, he considered that morals were out of the domain of a jurist or a judge. The Historical  School of Jurisprudence is among the schools of law and comes after the Natural Law. This particular law has the opinion that law in the common sense, is  a consequence of decades of historical development. The study is not only related to the origin of law but also to the concepts of law. Although, this law has extremely complex concepts. The subject’s understanding differs from situation to situation and depends on every individual. Therefore, every person has a varied belief of the law.

Illustration :- An Advocate and a law student both has a belief that the law is a solution to all disputes. Anyhow, a layman presumes law with the ground to inflict or impose punishments.

Formation of the Historical Law School

The Historical School of Jurisprudence considers that this law is obtained from the changing requirements of people in the society. Consequently, Customs, habits and history are the chief sources of  the  Historical  School. However, according to professor Dias, ‘Historical school formed as a reaction against most of the natural law theories’.

There are certain reasons for the inauguration of this school:-

• It’s the sequel of the  Natural  School of  Law.

The Natural school of law considers that the law was derived from a divine superior power. Another expression for Natural Law is  the eternal law. And it is thought to be present since the very inception of the world as people know it. Thus, it firmly associates with morality, ideologies, intention and teachings of Almighty and God. Altogether, it is prudent to suppose that the Constitution of India has significant relevance of natural  law in its respective dissemination. Contrarily, the historical school of Jurisprudence pivots on the creation of law by the people and not by certain divine origin.

• It proceeds against the notion of the  Analytical  School of  Jurisprudence.

Another term for the analytical school of jurisprudence is Austinian School. The creator and founder of this School of Jurisprudence was John Austin[2]. In other way, the subject matter is the positive law of the Analytical  School of Jurisprudence. By the term positive law, it alludes to its extensive pivot on the genesis of law of the state, judges and legislators. The Historical School emphasized on the formation of law by the individuals. All the way, this creation is through habits, customs and history and not by the judges or any supreme authorities. According to the theory, this Historical School of Jurisprudence, the law is the ultimate consequence of any past forces or past influences. However, law is formulated and grown on the common discernment of the people. Such discernment, somehow initiates from the very inception of the society. Additionally, the factors which influence this lengthy historical evolution are :-

• Society and social customs.
• Many customary, religious and convention principles.
• The economic requirements of the society play an important role.
• Lastly, the desires and requirements of the citizens.

The  historical  school of jurisprudence is one of the pioneer school of law which existed after the  natural law. This law approves that law at large, is a sequel of decades of historical evolution. This studied the ideology, concept and also the genesis of law. Besides, this particular law has an uncommonly complex hypothesis. Its management rely and differs along every individual. Additionally, the law is constituted and developed on the basis of overall awareness of  individuals. This awareness in any of the case, begins from the most primal starting point of the general citizens. A different expression for Regular Law is the Unceasing law. Accordingly, it is accepted to be in the presence as the inception of the world as far as people might be concerned.

Consequently, it attentively joins with the ethical quality, goal and lessons of God. Herein, it is secured to tell that the constitution of India has immense importance of the  Regular law in its discrete distributions. It had a conflict with the convictions  of  the Analytical  School of  Jurisprudence.

By positive law, it alludes to its wide spotlight on the inception of law of the officials, adjudicators, and the state. Historical School exceptionally lays accentuation on the arrangement of law by individuals. Therefore, this arrangement is through propensities or traditions and not by the adjudicators or supreme powers.

Friedrich Carl Von Savigny

He was regarded as the founder and father of the Historical School of Jurisprudence. He proposed his arguments both for and against of codification of the German law, about which he later wrote an essay titled Vom Beruf. He was not only the founder of the historical school of jurisprudence but he was also known as a Roman  Law expert, he pioneered the popular Volkgeist theory. In a more common sense, the principle incorporates the connotation that volk referred to people and geist pertains to their collective will so it mentions to the people’s basic will.

According to his view, law has a national role and character, which also interprets that it doesn’t have any universal application, it is a mere representation of any country’s requirements, conditions, and customs and it is only applicable to a country.

Views of other Jurists

Montesquieu

Charles Louis de Secondat  Montesquieu is known as the first jurist to endorse the approach of the historical school in order to understand the theory of law, mentioned Sir Henry Maine. Montesquieu being a French philosopher, judge, intellectual and politician, laws of various societies was researched as well as interpreted by him and he also winded up by stating that ‘law varies because of the factors like local situation, climate, imposture or accident’. Therefore, it is not worthy to argue if the law is satisfactory or not as it depends on the basis of the social milieu. He also implied, the law should be dynamic in nature as like the society, it transforms according to the demands and requirements of the very civilization. He advised that the law must be capable enough to meet the requirements of hoi polloi. In fact, in his book ‘The Spirit of laws’ he mentioned the same.

Puchta

Georg Friedrich Puchta known to be the discipline of Friedrich Carl Von Savigny, just to make Savigny’s theory more logically influential structured, Puchta fortified the study of historical school alongside detailed research concentrating on the interconnection among people’s interests and concerted will of society. As per him, neither nation nor citizens is a source of law, in spite of that combined societal approaches which identifies the law. He further considered that the quarrel between the interests of the people guided to the rise of the law, also by settling the arisen brawls such law has raised the state.

Sir Henry Maine

Sir Henry Maine was a popular British Jurist, who had observed the domain of legal system of different societies also suggested the detailed hypothesis by comparing the evolution of law. His ideologies have traces of Savigny and Montesquieu’s theories, though he never invalidated the theory of codified legislations and laws. With the support of relative studies on the topic of legal evolution, his conclusion was that the law has total four stages of evolution.

Criticisms of Savigny’s Theory

• Savigny’s idea of volkgeist was severely criticised for its obscureness. First and foremost, he asserted that the law is the result or consequence of volkgeist, however, on the other hand, he mentioned that the Roman principles have universal pertinence.
• Volkgeist is not always regarded as law. According to Dias[3] several institutions such as slavery originated not in Volkgeist but in comfort of a ruling oligarchy. It isn’t very prominent that who the Volk are and whose geist determines the law, additionally it’s also unclear that whether the Volksgeist might have shaped by the law rather than vice versa.
• Paston[4] mentioned that the creative effort of the jurists and the judges was treated too lightly by Savigny.
• Lord Lloyd[5] mentioned that Savigny underrated the importance of the legislation for modern Societies.
• The theory of volkgeist has only restricted pertinence, whereas Savigny indefensibly overemphasized its extent to universal.
• At some point he disregarded that even individuals belonging to the similar community have a variation in opinions.
• He disdained the important part that was being played by the judiciary, that has been a strong influencer of law. Professor Julius Stone[6] mentioned the similar also appended that Savigny disregarded law and legislation as a crucial tool of societal change by emphasizing more on the pneuma of the individuals.
• Critics asserted that volkgeist could never be the one only source of law as Savigny proposed, as people have some laws, that are adopted or inspired from other countries as the history has evidently proved, some laws which was passed were straight away opposite to the people’s pneuma. Charles Allen[7] indicated the same, it’s needless to contemplate customary norms as the one and only source of law as the customs aren’t the only result of individual’s consciousness. Further, he asserts that customary rules are the by product of Society’s few superiors. Specifically, he invoked the practices of slavery that existed in many societies by spotlighting who had induced these practices. It’s the citizens knowledge that it has to be in the interest of a few superior classes.

Conclusion

Historical School of Jurisprudence states the very inception of law.  This school confronts that the law was being found and not made. The principle wellspring of law is Lords Judgment, propensities and customs. Jurists  like Savigny, Montesquieu[8], Sir Henry Maine[9], and Georg Friedrich Puchta[10] are the amalgamate of the  recorded school of law. According to Sir Henry Maine, Montesquieu was the first jurist of historical school. Sir Henry Maine was the legal scholar of English Historical School. He was more acknowledge and legitimate the notion of Codification and enactment.

Savigny being father of the Historical school, confronted that law resembles language  and has a  national  character, it is not universal. While Puchta upgraded the thoughts of Savigny and confronted that both individuals and the state are equally significant and both are the sources of law.

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References:

[1] Friedrich Carl Von Savigny (German Jurist and Historian, February 1779 – October 1861);

[2] John Austin (English Legal Theorist, March 1790 – December 1859);

[3] Jose Dias Ferreira (Portuguese lawyer, jurist and politician, November 1837 – September 1909);

[4] John Paston (Jurist);

[5] Dennis Lloyd, Baron Lloyd Hampstead (British Jurist, October 1915 – December 1992);

[6] Julius Stone (Professor, July 1907 – 1985);

[7] Charles Allen ( American Jurist, April 1827 – January 1913;

[8] Charles Louis de Secondat, Baron de La Brede et de Montesquieu ( French Judge, Historian, and Political Philosopher, January 1689 – February 1755);

[9] Sir Henry James Summer Maine ( British Jurist and Historian, August 1822 – February 1888);

[10] Georg Friedrich Puchta ( German Jurist, August 1798 – January).