Historical School of Jurisprudence

Author: Shreya Singh; Amity University, Lucknow.

I. INTRODUCTION

It is the study and theory of law which is referred to as jurisprudence. It investigates the root and meaning of the law. The concept of law is quite complicated. Different interpretations of law are drawn by different people. A lawyer, for example, sees the law as a means of resolving any conflict. Jurisprudence is defined by Rosco Pound as,

“The bundle of principles acknowledged or enforced by common and formal tribunals in the administration of justice is regarded as the science of law”.[1]

The objective of the law, in the eyes of the average citizen, is to punish them. Different schools of jurisprudence, or the study of law, have had a significant schism. Each school examines it from its perspective, emphasizing certain sources of law and their execution.

Historical School is one of the most important schools of legal studies. According to this school, the law is an extreme version of social norms, economic necessities, traditions, religious beliefs, and people’s relationships with society.

This school of thought asserted that law is discovered rather than created. The historical school of law does not believe in or accept the natural school of law’s belief that law comes from a higher authority and has divine significance. As stated by Dias, “ As a reaction to natural law doctrines, the historical school has evolved”.[2]

II. HISTORICAL SCHOOL: IMPORTANCE AND MEANING

The Historical School of Jurisprudence is based on the idea that the law, like men, evolves.[3] This school places a greater emphasis on the social institutions in which law arises rather than the relationship between law and the state. The analytical school, on the other hand, assumes the existence of a well-developed legal system. The historical school focuses on the evolution of law from ancient communities’ basic legal structures. The historical school’s mission is to study the general principles that govern the formation and development of law, as well as the influence that has as an impact on it.

Historical scholars denied all creative participation of judges and jurists or lawgivers in the formulation of law and banned ethical considerations from jurisprudence. They saw the law as standards of customary action rather than moral precepts. The historical school arose in response to the legal ideas of analytical positivists and natural law thinkers. They began a new era in the development of legal theory by seeing law as a legacy of the past and a product of conventions, traditions, and beliefs common in many communities. They felt that the law grew organically.

III. THE BEGINNINGS OF THE HISTORICAL SCHOOL OF LAW

According to the Historical School of Jurisprudence, the main sources of law are habits, traditions, and conventions. The following are the reasons for the establishment of this school:

1. In response to the Natural School of Law, which held that the law came from a divine source.
2. In contrary to the Analytical School of Jurisprudence’s ideology, which has positive law as its subject matter.

Holdsworth attributed the origin of the historical school of jurisprudence to two primary factors:

1. The French Revolution and the subsequent upheavals, and
2. Darwin’s theory of evolution.

The S.C of India, in Byram Pestonji Gariwala v. Union of India[4], agreed with this viewpoint, quoting Justice Thommen:

“The Indian legal system is a historical product. It is embedded in our land, nurtured and nourished by our culture, languages, and customs, cultivated and sharpened by our genius and pursuit of social justice, and reinforced by history and culture.”

IV. HISTORICAL SCHOOL: JURISTS

• MONTESQUIEU

As per Sir Henry Maine, Charles-Louis de Secondat, Baron de La Brede et de Montesquieu was the very first jurist to accept the historical school approach to comprehending the concept of law. Montesquieu was a French judicial, thinker, diplomat, and scholar who studied and interpreted the rules of numerous civilizations and came to the conclusion that “law is the invention of the climate, local conditions, accident, or imposture.” As a result, debating or not the legislation is good is pointless because it is dependent on the social context.

He went on to say that the law, like society, should be dynamic, changing in response to the civilization’s needs and demands. However, despite constructing a precise theory, he did not go any further in expressing his vision of law and society or historical school. He stipulated that the legislation must be capable of addressing the needs of the common people. He even mentioned it in his book, “The Spirit of Laws.”

• FRIEDRICH KARL VON SAVIGNY

Savigny was a leading proponent of this historical interpretation of the law, which he thought to be the most comprehensive of the historical school of jurisprudence. He traced the evolution of law as an evolutionary process long before Darwin published his theory of evolution in biology. And for this reason, only Dr. Allen referred to Savigny as a “Darwinian before Darwin” for his contribution to the creation of the judicial system by using evolutionary principles.

The notion of a specific legal arrangement was an impression of the spirit of those who incorporated it, according to Savigny’s principles.[5]

a) SAVIGNY’S KEY PERCEPTIONS

1. The law is unique.
2. Law emerges from people’s lives and consciences, rather than being imposed or constructed.
3. Law is related to language, which bears the customs and cultures of its own country, and hence cannot be applied generally.
4. Law develops alongside nations and expires with their demise.
5. However, the law is discovered as a societal principle later, constructed by jurists.

b) ACCORDING TO SAVIGNY, WHAT CONSTITUTES LAW?

“It is a result of times, the seed of which, like the germ of state, resides in the character of man as being designed for society, and which develops from this germ various shapes, depending on the surrounding influences.” To put it another way, the law is the result of the historical process that has revealed the customary laws. As a result, the law is a duplicate of national spirit rather than a product of established legislation. As previously stated, Savigny believes that the legal system is a reflection of national consciousness, which he refers to as volkgeist.

c) SAVIGNY’S VOLKSGEIST BASIC CONCEPT

The term Volksgeist refers to a person’s “national character”. The law, according to Savigny’s Volksgeist, is the result of the people’s collective awareness or will. The concept of Volksgeist was created to serve as a caution against hasty legislation as well as to propose new abstract legal ideas. Unless they support the people’s will in general. Essentially, Savigny believed that law should not be discovered by purposeful legislation, but rather should be created and emerge from the broad consciousness of the people.

d) OPPOSITION TO SAVIGNY’S THEORY

While advocating for the role of evolution and growth in the development of law, Savigny’s approach to the law was tainted in the following ways:

1. He placed an excessive emphasis on the unconscious forces that shape a nations’ law, ignoring the efficacy of legislation as a tool for deliberate, conscious, and planned social change. Legislation is being written, enacted, and used as a significant instrument of social change and reform in modern developing societies like India. He was chastised for his legal pessimism because he underestimated the relevance of legislation and held a negative view of human power’s ability to create a law to effect social change.
2. Savigny highlighted the legal system’s national character. While promoting the national character of law, he completely avoided studying German law and instead drew inspiration from Roman law.
3. Volksgeist is an ephemeral concept as indeterminable and hazy as natural law itself.
4. Even if Savigny was not opposed to legislative reform through the codification of laws, his attitude toward codification was cold and pessimistic, as he believed that codification could never solve all of the problems that would arise in the future and that an imperfect code would create more problems by “perpetuating follies”[6] underpinning it, he was a fervent believer that codification should be preceded by a thorough scientific examination of the law, which should take into account the law’s historical context.
5. As most sociologists like Durkheim, Ehrlich, Kohler, Weber, and others were perplexed by Savigny’s Volksgeist, which postponed the study of scientific assessment of society in terms of its purposes and goals, his theory of law and society delayed the formation of the modern sociological school.

• GEORG FRIEDRICH PUCHTA (1798-1846)

Puchta, a German jurist, was Savigny’s most popular student. He was convinced that the law was the result of people’s collective consciousness and the manifestation of their spirits. Law will not evolve in this way, according to Puchta, if it is formed without prior considerations of the past, historic culture, and traditional practices. This would have established a clear situation rather than solving an issue.

Puchta’s ideas were acknowledged as more reasonable and enhanced after a period of progress. He began by stating that men have always lived in oneness since the dawn of time. This unity could be physical as well as spiritual, focused on people’s collective will.

Self-interest, according to Puchta, caused conflicts. For the sake of maintaining peace and actual evolution law, he argued that general will should take precedence over individual will.

Furthermore, the state’s position was discussed, which is extremely important. The state prioritized the general will and interest of the people while downplaying individual interests, resulting in a functional system.

“Neither the people nor the state alone can make and formulate laws,” was Puchta’s main thought.

a) PUCHTA’S CONTRIBUTION

• He discussed two dimensions of human will, as well as the origins of the state.
• Even though Georg Friedrich Puchta was Savigny’s student, Puchta improved Savigny’s views and gave them a better logical interpretation.

• SIR HENRY MAINE (1882-1888)

The English Historical School of Law was founded by him. Sir Henry Maine disseminated Savigny’s thoughts and ideology in England in this way.

Maine used Savigny’s best concepts while avoiding the abstracts of false Romanticism. He, unlike Savigny, believed that law and legislation should be codified.

Maine’s ideology described the evolution of law in 4 states:

• The Initial Stage

Rulers and kings functioned with divine inspiration, and their decisions were regarded as divine. However, the king was only an executor of God’s judgments, not a lawmaker.

• The Second Phase

The directives of the kings were transformed into customary laws that were followed by the dominant class.

• The Third Stage

The customary practice falls into the hands of a small group of people who have little knowledge of it. As a result, the king is supplanted by a majority with legal authority.

• Stage Four

In the last stage, the law is codified and promulgated.

V. WHAT IS THE DIFFERENCE BETWEEN THE HISTORICAL AND ANALYTICAL SCHOOLS OF JURISPRUDENCE?

S.NO	BASIS	HISTORICAL SCHOOL	ANALYTICAL SCHOOL
	JURISTS	Friedrich Karl von Savigny is credited with founding the Historical School. Sir Henry Maine and Georg Friedrich Puchta are two other notable jurists.	The Analytical School’s major jurist was Salmond. Bentham, Austin, and Holland were among the other backers.
	IDEA	Addresses the broad principles that govern the creation and development of legislation from the perspective of the general public.	This course examines the basic and early principles of law.
	IDEOLOGY	Law does not exist. It is discovered rather than created.	The law is made by the state.
	FACTORS THAT INFLUENCE	The foundation of law is social pressure.	The rule of law is based on political pressure.
	SOURCE	Typical legislation is based on custom.	A statute is a common type of law.

VI. CONCLUSION

In a wider sense, the Historical School of jurisprudence investigates the evolution of law and asserts that individuals cannot comprehend law without first understanding its evolutionary theory. This school’s theories include the origins of law, the reasons for its growth, society as a tool for legal change, and vice versa. Even though different jurists have varied theories for understanding the historical component they both have a positive impact on one another.

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[1] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition, 2014) Central Law Agency, Pg. 3-7

[2] Saurav Bhola, Historical School of Jurisprudence, ipleaders, (September 12^th, 2019)

[3] Law is found and cannot be made- In Light of Historical School, LAW BHOOMI (Jun 5, 2020)

https://lawbhoomi.com/law-is-found-and-cannot-be-made-in-light-of-historical-school/.

[4] AIR 1991 SC 2234 (2243)

[5] Doherty Michele, Jurisprudence: The Philosophy of Law, 2^nd, edi, Old Bairy Press, London, pg. 233.

[6] DIAS R.M.W. JURISPRUDENCE 383 (5^TH Ed 1994)