HISTORICAL SCHOOL OF JURISPRUDENCE
Author: Zainul Rizvi
Reason for the emergence of Historical School of Jurisprudence
The revolutionary ideas of positive legal thinking had a very devastating effect as they failed to meet the needs of the people which led to the emergence of a new approach to the study of jurisprudence based on history and historic conception of law. The Austinian theory rejected historical growth and concentrated on the law as it is, without bothering the historic values and moral precepts. The view of Historical school is that it does not attach importance to the relation of law to the state but gives primacy to the social institutions in which law develops itself. Historical School task is to deal with the general principles governing the origin and development of law and with the influences that affect the law.
Montesquieu in France, Vico in Italy, Burke in England, Hugo, and Herder in Germany started a new era in the development of legal theory and viewed the law as a legacy of the past and a product of customs, traditions, and beliefs prevalent in different communities.
Another reason for the emergence of this school of jurisprudence is that the historical school of jurisprudence came as a reaction to the natural school of law. The view of natural law school is that law originates from a divine power. Natural law is associated with the intention of God and on the other hand historical jurisprudence believes that the formation of law is by the people and not by some divine origin. Historical jurists rejected all creative participation of a Judge and Jurist or law-giver in the making of law and banished ethical considerations from jurisprudence.
Holdsworth stated two major factors that are responsible for the emergence of the historical school of jurisprudence namely : (1) The French Revolution and the consequent upheavals, and (2) Darwinian theory of evolution . This view is supported by the Supreme Court of India in Byram Pestonji Gariwala v. Union of India, wherein the Court quoting Justice Thommen:
“Indian legal system is the product of history. It is rooted in our soil, nurtured and nourished by our culture, languages, and traditions, fostered and sharpened by our genius and quest for social justice, reinforced by history and culture”.
Historical School of Jurisprudence deals with Biological Intervention
The jurists of the historical schools believe that law has biological growth and it has not evolved in an arbitrary and erratic manner. This school of jurisprudence provided a valid foundation to trace the nature of contemporary law in evolutionary processes by adopting a biological approach.
The classic work of Darwin On the Origin of Species in 1859 led legal thinkers and reformers to believe that law is never lost but it is only transformed and thus law is the product of evolutionary forces. Darwin in his thesis stated that evolution was a struggle for existence in which those creatures that are able to adapt themselves to the changing conditions survive. This generalization is equally applicable to human beings according to the principle of survival of the fittest. This theory was further carried by Herbert Spencer (1820-1903) who drew similarities between social organisms and biological organisms. He argued that an individual adopts himself to social conditions by heredity. He inherits a social instinct from his ancestors including ideas of morality, right, and justice, obligations.
Eminent Jurists of Historical School of Jurisprudence
F.K. Von Savigny Contribution to Historical School of Jurisprudence
Friedrich Karl Von Savigny was born in Frankfurt (Germany) in 1779. He was educated at the University of Marburg and was appointed as the Professor of Civil Law at the University of Marburg from 1801 to 1804. He was appointed as a Minister of Justice in Prussia Some of his works were History of Roman Law in the Middle Ages (1815-1831), in six volumes, and also wrote System of Modern Roman Law (1840-1849). The major belief of Savigny was that law is the manifestation of the common consciousness of the people and it grows with the growth and strengthens with the strength of people and dies away as the nation loses its nationality.
Savigny was considered the propounder of historical jurisprudence. According to Savigny, a law made without taking into consideration the past historical culture and tradition of the community is likely to create more confusion rather than solving the problems because ‘law’ is not an ‘artificial lifeless mechanical device’. Savigny is of that belief that the origin of law lies in the popular spirit of the people which is Savigny termed as Volksgeist.
Savigny’s contribution to the development of historical school may be briefly stated under the following heads:-
- Law develops like a language – According to Savigny law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs, and convictions. Law, language, customs, and government have no separate existence from the people who follow them. The common conviction of the people makes all these as a single whole. Thus he opined that law is not universal in nature like language, it varies with people and ages.
- Early development of law is spontaneous; thereafter jurists develop it -Savigny believes that law develops spontaneously according to the internal needs of the community but after the community reaches a certain level of civilization, the different kinds of national activities. He stated that law has to play a dual role, namely as a regulator of General national life and as a distinct discipline for study
- Savigny was opposed to the codification of German Law– Savigny opposed the codification of the German law on the French (Napoleonic Code) pattern at that time when Germany was divided into several smaller states and its law was primitive, immature and lacked uniformity. He opined that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the country. He emphasized that codification of German law without having jurists of sufficient genius and adequate expertise in Roman law would not serve the desired purpose as Roman law formed an integral part of the German legal system at that time. According to Savigny lawyers and jurists are true representatives of the popular consciousness of the people rather than the legislators whose role is limited to law-making only.
- Law is a continuous and unbreakable process– Savigny considered the growth of law as a continuous and unbreakable process bound by common cultural traditions and beliefs.
Its roots are embodied in the historical processes which constitute the subject of study for jurists. Savigny stated that codification of law may hamper its continuous growth and therefore, it should be reported to when the legal system has fully developed and established.
Henry Maine’s Contribution to Historical School of Jurisprudence.
Sir Henry James Summer Maine was a student at the University of Cambridge and was appointed as the Professor of Civil law in that University in 1847. He was appointed as the Law Member of the Central Legislative Council in India from 1863-1869 as a successor of Lord Macaulay. He occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford from 1869 to 1877.
Henry Maine is labeled as ‘Social Darwnist’ for he envisaged a social order wherein the individual is finally liberated from the feudalistic primitive bondage and Historical Jurisprudence would always remain indebted to Sir Henry Maine for his substantial contribution to juristic thought. He improved Savigny’s legal theory which explained the interrelationship between the community and the law and also recognized the role of legal fictions, equity, and legislation in the evolution of law.
Four Stages of Development of Law
The supporters of the historical school of jurisprudence are of that view that evolution and development of law have been done through four stages. They are as follows:-
- Divine Law– Law originated from Themes, which meant the Goddess of justice. Generally, it was believed that while pronouncing judgments the King was acting under the divine inspiration of Goddess of Justice. Themestes were awards pronounced by Goddess of Justice (themes), Thus the king was merely the executor of the judgment of God.
- Customary Law- Next, the recurring application of judgments led to uniform practice while crystallized into customary law to be followed in the primitive societies. Sir Henry Maine underlined the importance of customs as a source of law and observed that ‘custom is to society like the law is to State’.
- Priestly class a sole repository of customary law- The next stage of development of law stated that the authority of the King to enforce and execute law was usurped by the priestly class who claimed themselves to be learned in law as well as religion. It was the priestly class who memorized the rules of customary law because the art of writing had not developed till then. They applied and enforced the customary law.
- Codification- The last stage of development of law marks the era of codification. The discovery of the art of writing helped a class of learned men and jurists to come forward to denounce the authority of priests as law-givers. They advocated
codification of law to make it accessible and easily knowable. This broke the monopoly of the priestly class in matters of administration of law. The ancient Hindu Code of Manu, Hebrew Code, Solon’s Attic Code, Twelve Tables in Rome, the Codes of Hammurabi, etc, are some of the examples of such law codes.
The foundation of the historical approach to law is based on the assumption that “the past often explains the present most vividly”. The historical method provides an answer to the question as to why a particular statute or law was framed in the form in which it presently exists. It would be therefore seen that the historical school emerged as a reaction to legal theories propounded by the analytical positivists and the natural law philosophers.
The aim of historical jurisprudence has been to demonstrate how racial, ethnic, or linguistic traits of law are embedded in the culture and heritage of a particular community. It guards us to draw generalizations concerning universality and permanence of legal institutions and isolate law from social and historical moorings. Even Adolf Hitler sought to use the historical theory of law to support his dictatorial power. He argued that law was by blood and its roots lay in the past. He believed that the state as a group has no identity without a leader who represents people’s unity and strength.. He demanded that unquestionable obedience of law is nothing but the will of the leader. The framers of the Indian constitution are also greatly influenced by the historical school of jurisprudence and customs are recognized as a major source of law under the Indian legal system. The Indian constitution defines “law” to include “custom or usage having in the territory of India the force of law.
The Courts of India have recognized Custom as a source of law only if the custom is (1) “ancient or immemorial” in origin (2) “reasonable in nature and continuous in use” and (3) “certain”.
In the case of Hurpurshad v. Sheo Dayal, The Privy Council observed that “custom is a rule which is a particular family, or a particular caste, or community or in a particular district has from long usage obtained the force of law. It must be “ancient, certain and reasonable” Moreover such a custom should not be immoral or opposed to public policy, or expressly forbidden by law, Also article 244, 244-A, 371-A of the Indian Constitution provides protection of tribal indigenous communities and also their customs.
 AIR 19991 SC 2234 (2243)
 Id. art.13(3)(a)
 B.J Krishnan , Customary Law in Seminar (Aug,2000) available at http://www.india-seminar.com/2000/492/492%20b.%20j.%20krishnan.htm
 1876, 3 I.A. 259