Monday, 24 January 2022

HISTORICAL SCHOOL OF JURISPRUDENCE

 HISTORICAL SCHOOL OF JURISPRUDENCE


  • Introduction

Jurisprudence is the concept and analysis of law. It examines the origin and idea of law. Law has a very complicated concept. Its explanation differs from person to person. Everyone has a distinct understanding of the law. 

The historical school of Jurisprudence debated that the law is the embellished form of economic needs, social custom, conventions religious principles, and relations between the people and society. The followers of this school debated that law is found not formed. The historical school doesn't obey and promote the idea of the natural school of law which believes that the origin of law is from the higher authority and has some prominent relevance.


  • Reasons for the Origin of Historical School of Jurisprudence

The Historical School agrees that the law is created by the people in accordance with their developing requirements. Customs and Habits are the major sources of the Historical School of Jurisprudence. As per Dias, the Historical school came in reaction against the natural law theories. The reasons for the rise of this school are:

  • It came as a reaction to the natural school of law

The natural school of law regarded that the law has emerged from some superior power. Natural Law is also known as the eternal law. It has been there since the starting of the world. It is intently related to the intention and morality of God. Indian Constitution has some pertinence of the natural law in its articles. The historical school of Jurisprudence intended on the creation of law by people not by some superior origin.


  • It challenges the ideology of the analytical school of jurisprudence

The analytical school of jurisprudence is also known as Austinian School. It is formed by John Austin. The subject matter of the Analytical school of jurisprudence is positive law. It's important to the origin of law the state, judges, and legislators. The historical school put focus on the creation of law by people through habits and customs, not by the superior authority or judges.


  • Jurists of Historical School of Jurisprudence

  1. Montesquieu

As per Sir Henry Maine, the first jurist to exercise the historical method of analyzing the legal institution was Montesquieu. He settled the foundation of a historical school in France. According to him, it is worthless to discuss whether the law is bad or good because the law relies on political, social, and environmental situations happening in society. Montesquieu held that the law is the creation of a local situation, climate, accident or imposture." He was of the idea that law must modify as per the changing requirement of society. He did not form any philosophy or theory in the relationship between society and the law. He suggested that the law should answer the requirements of the place and should modify as per the time and needs of the people.

One of the well-known works of Montesquieu was his book 'The spirit of Law'. In the book, he highlighted his beliefs in political enlightenment thoughts and gave ideas about how the law is needed to change according to the needs of society and people.

  1. Savigny

Savigny is considered a father of the Historical school. He debated that the consistent nature of the legal system is normally because of the failure to understand its origin and history. Savigny believes that the law cannot be taken from outside. And the major source of law is the knowledge of people. He has the idea that the law of the state rises with the empowering of the state nationality and law fades or dies down when nationality becomes weak in the state.

Basic Concept of Savigny's Volksgeist

Volksgeist measures "national character". As per Savigny's Volksgeist, the law is the result of the general knowledge of the people or will. The concept of Volksgeist was given as a warning from the hasty legislation and emergence of revolutionary abstract thoughts on the legal system. Unless they promoted the common will of the people.

Basically, Savigny was of the idea that the law should not be created from intentional legislation but should be created and emerged out of the normal knowledge of the people.



  1. Sir Henry Maine

Founder of the English Historical School of Law was founded by Sir Henry Maine. Savigny's thoughts of Historical school were taken forward in England by Sir Henry Maine.

Notable Works by Sir Henry Maine 

'Ancient Law' which was published in 1861 was Maine's first work. He also wrote 'Early History of Institutions' (1875), 'Village Communities' (1871), and 'Dissertations of Early Law and Custom (1883).

Maine also studies the Indian legal system in-depth as he was a law member in the Council of the Governor-General of India between the years 1861 to 1869. Maine's views were integrated by the good things in the theories of Montesquieu and Savigny and he prevented what was unreal and abstract Romanticism.

Maine determined the development of law in four stages:

First Stage

Rulers are considered to be working under supreme inspiration. And the laws are formed on the orders of the rulers. 

Second Stage

Then the orders of the king turned into customary law. The custom came in the majority ot ruler class. Customs seem to have achieved the right and authority of the king.

Third Stage

The administration and knowledge of customs go along with the minority. Due to the lowering of the law-making power of the real law-makers like Priests, the education of customs goes along with minority or common class. And the ruler is overpowered by a minority who holds control over the law.

Fourth stage

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



  1. Georg Friedrich Puchta

Puchta was a German jurist of the Historical school of jurisprudence and a disciple of Savigny. Friedrich Puchta's views were more reasonable and modified than Savigny's ideas. He tracked the evolution and development of law from the very start. His thoughts mainly emphasized the situation when a dispute arose between the general will and individual will. In the dispute between the individual will and the general will, the state came into the picture. And find out a midway to solve the dispute. 

The major topic of Puchta's views was that "neither the state nor the people can make and formulate laws". Both individual and state are the sources of law.


  • Conclusion

Historical School of Jurisprudence determines the origin of law. This school debates that law was found not formed. The major source of law was Customs, King's Judgement, and habits. Jurists like Savigny, Sir Henry Maine, Montesquieu, and Georg Friedrich Puchta are the supporter of the Historical School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist of the school while Maine was the jurist of the English Historical School. He was more reasonable and admitted the concept of legislation and Codification.


Savigny was the father of the historical school. He stated that law is like language and has a national character. Puchta enhanced the views of Savigny and argued that both people and state are an equally important sources of law.

 



Written by Parul Sharma.


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