Tuesday, 31 May 2022

Historical School of Jurisprudence

 


Historical school advocated that law is developed from social custom , economic needs, convention religious principle , and relations of the people living in a state. The advocates of this school argued that law is not made but is advanced from the pre-existence materials like customs and religious principles , unlike the natural school , which believed that law originates from superior authority or sovereignty .


Historical School Of Jurisprudence- Concept and Meaning

The jurist of this school believed that law should be changed with the changing need and nature of the person and they followed concept of man-made laws. Therefore, It would be seen that historical school developed as a stimuli to legal theories propounded by analytical positivists and the natural law philosophers. The latter states that the law was founded on the abstract notion of the human conscience and reason.


The school rejected the idea of formation of law by judges and the origin from some divine relevance. Historical school banished ethical consideration from jurisprudence and rejected all creative participation of judge and jurist or law-giver in the making of law. Fredrick Pollock was one of the supporter of historical school , he believed that morals, as such were out of the domain of judge or jurist.


Background

The revolutionary ideas that were born by positivistic legal thinking had a devastating effect as they failed to meet the needs of the people due to which new approach was propounded, known as Historical conception of law. The advocates of this school believed that law has biological growth and it has not evolved in an arbitrary and prompt manner.


Montesquieu (1689-1755) was the first jurist to adopt historical method of pursuing the study of legal institutions and came to the conclusion that �laws are the creation of climate and local situation�. He did not briefed further into the co-relation of between law and society but certainly pointed out that law must keep pace with the changing needs of the society.


 





James Carter, an American jurist argued that law came to the existence even before the political revolution or consciousness , therefore , it has to be traced and identified with the customs followed in a given society. And so he focused on the historical evolution and development of law. However, identifying law with custom alone will not be a correct proposition. Custom at its best can be one of the many source of development of law.


As per English Legal Historian Holdsworth pointed two major factor that are responsible for the emergence of historical school of jurisprudence namely , i) The French Revolution and its aftermaths ,and ii) Darwinian theory evolution which altered the character of scientific speculation during that period concerned. This was even supported by apex court of India, i.e. Supreme Court of India in case Byram Pestonji Vs. Union Of India 1991, where court quoted justice Thomen as, 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.


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