Historical School of Jurisprudence

Historical school of Jurisprudence argued that the law is the exaggerative form of social custom,
economic needs, conventions religious principles, and relations of the people with society. The followers
of this school argued that law is found not made. The historical school doesn’t believe and support the
idea of the natural school of law which believes that the origin of law is from superior authority and have
some divine relevance. With the changing needs and nature of persons, the law should be changed. The
historical school follows the concept of man-made laws. ‘Law is formulated for the people and by the
people’ means that the law should be according to the changing needs of the people. And everyone
understand their own need better than anyone else. The basic source of the Historical School of
Jurisprudence is the habits and custom of people which changes according to their needs and requirement.
It is also called the continental school of Jurisprudence.

This school rejects the ideas of formation of law by judges and the origin from some divine relevance. In
the words of Salmond, “That branch of legal philosophy which is termed historical jurisprudence is the
general portion of legal history. It bears the same relation of to legal history at large as analytical
jurisprudence bears the systematic exposition of the legal system. It deals, in the first place, with the
general principles governing the origin and development of law, and with the influences that affect the
law. It deals, in the second place, with the origin and development of those legal conceptions and
principles which are as essential in their nature as to deserve a place in the philosophy of law- the same
conceptions and principles, that is to say, which are dealt with in another manner and from another point
of view by analytical jurisprudence. Historical jurisprudence is the history of the first principles and
conceptions of the legal system.”

The Historical School believes that law is made from people according to their changing needs. Habits
and customs are the main sources of the Historical School of Jurisprudence. According to Dias, Historical
school arose as a reaction against the natural law theories. It came as a reaction to the natural school of
law. Natural school of law believes that the law is originated from some divine power. Natural law is also
called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality
and intention of God. Indian constitution has some relevance of the natural law in its articles. Historical
school of Jurisprudence focuses on the formation of law by people not by some divine origin. It opposes
the ideology of the analytical school of jurisprudence. Analytical school of jurisprudence is also called
Austinian School. It is established by John Austin. The subject matter of Analytical school of
Jurisprudence is positive law. It focuses on the origin of law the judges, state and legislators. Historical
School laid emphasis on the formation of law by people through customs and habits, not by the judges
and superior authority.

Historical jurisprudence provides answers of various following questions:

• What was the source of a particular law

• Where form it was derived.
• What was its shape and scope in past
• How and under what influences it came to develop and
• Through what stages of evolution it passed to assume finally the shape in which it is final today.

The Jurists of the Historical School of Jurisprudence are as follows:

a. Montesquieu

According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal
institution was Montesquieu. He laid the foundation of the historical school in France. According to him,
it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and
environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of the
climate, local situation, accident or imposture”. He was of the view that law must change according to
changing needs of the society. He did not establish any theory or philosophy of the relation between the
law and society. He suggested that the law should answer the needs of the place and should change
according to time, place and needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book, he
represents his beliefs in political Enlightenment ideas and suggests how the laws are required to modify
according to the needs of people and society.

b. Savigny

Savigny is regarded as a father of the Historical school. He argued that the coherent nature of the legal
system is the usually due to the failure to understand its history and origin. According to him, the law is “
a product of times the germ of which like the germ of State, exists in the nature of men as being made for
society and which develops from this germ various forms, according to the environing the influences
which play upon it.” Savigny believes that the law cannot be borrowed from outside. And the main source
of law is the consciousness of the people. He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away when nationality loosens its strength in
the state.

Friedmann concludes the Savigny’s theory

Law is like language which eventually grows.
Law cannot be of universal validity nor be constructed on the basis of certain rational principles or eternal
principles. Law is sui generis. Savigny argued that law is like the language having its own national
character. So, it can’t be universally applied and varies according to the people. He mentioned this in the
self-written pamphlets “Vom Berufunserer Zeit für Gesetzgebungand Rechtswissenschaft (On the
Vocation of Our Age for Legislation and Jurisprudence).”
Law is found or discovered not made. It can’t be made artificially like the invention of an object.
Law is found on the basis of consciousness, customs and beliefs of the people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the product of
general consciousness of the people or will. The concept of Volksgeist was served as a warning against
the hasty legislation and introduce the revolutionary abstract ideas on the legal system. Unless they
support the general will of the people. Basically, Savigny was of the view that law should not be found
from deliberate legislation but should be made and arises out of the general consciousness of the people.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

Charles Allen
Charles Allen criticized Savigny’s view that law should be found or based on the customs. Allen was of
the view that customs are not the outcome of common consciousness of people. But they are the outcome
of the interest of a powerful and strong of a ruling class. For example, slavery which was recognized and
prevailed in certain societies by the powerful classes of society.

Prof. Stone
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the legislation and
planned law and social change. And over emphasized on the consciousness of people. For example, In
India, the abolition of Sati and widow’s remarriage are brought in to change because of powerful and
effective legislation.

c. Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical
school was carried forward in England by Sir Henry Maine.Maine studied the Indian legal system deeply
as he was law member in the Council of the Governor–General of India b/w 1861 to 1869. Maine’s ideas
were incorporated by the best things in the theories of Savigny and Montesquieu and he avoided what was
abstract and unreal Romanticism. Maine favored legislation and codification of law, unlike Savigny.

Maine describes the development of law in four stages:

First stage:
Rulers are believed to be acting under divine inspiration. And the laws are made on the commands of the
rulers. For example, Themistes of ancient Greek. The judgment of the king was considered to be the
judgment of God or some divine body. King was merely an executor of judgments of God, not the law-
maker.

Second stage:
Then the commands of King converted into customary law. The custom prevails in the ruler or majority
class. Customs seems to have succeeded to the right and authorities of the king.

Third stage:
The knowledge & administration of customs goes into the hands of a minority, Due to the weakening of
the lawmaking power of the original law-makers like Priests the knowledge of customs goes into the
hands of a minority class or ordinary class. And the ruler is superseded by a minority who obtain control
over the law.

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

d. Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of
Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. He
traced the development and evolution of law from the very beginning. His ideas mainly focused on the
situation when conflict arises between general will and individual will. In the conflict between general
will and individual will, the state came into existence. And find out the midway to resolve the conflict.
The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and
formulate laws”. Both State and individual are the sources of law.

Difference between Historical jurisprudence and Legal History

Historical Jurisprudence constitutes the general portion of legal history and examines the manner or
growth of system”. It deals with the general principles governing the origin and development of law and
also the origin and development of legal conceptions and principles found in the philosophy of law. It
traces the growth of law from origin with a view to find out the origin of current legal concepts and the
general course of the revolution. Historical jurisprudence should not however be confused with legal
history.

On the other hand legal history records the changes which have occurred in the development of law, and
deals with the historical background of particular law. Legal history is not critical and it main function is
to catalogue the development law, allotting to each phase its true position in the completed narrative. It
indicates the process of changes and is therefore descriptive. Legal history deals with the historical
background of particular law, for instance how and when the Criminal and Penal code came to be passed
is a matter of legal history. Similarly an investigation of how the principles of hearsay evidence came to
be evolved shall fall within the scope of legal history and, also the study of Roman Law would also fall in
the scope of legal history.