Table of Contents
- Introduction
- Reasons for Development
- Friedrich Karl von Savigny
- Volksgeist Theory
- Contribution of Savigny
- Criticism Against Savigny’s Theory
- George Puchta
- Sir Henry Maine
Introduction
The Historical School of Jurisprudence views law as a living, evolving entity that grows naturally within society. It emphasizes the importance of customs, traditions, and social institutions in shaping legal systems over time.
This school doesn’t treat law as something suddenly created by legislatures or rulers. Instead, it sees law as a social language—one that adapts from culture to culture and evolves through the ages.
🧠 Key Insight: According to this school, law is not static. It’s deeply rooted in the collective consciousness and traditions of the people.
The main objective of the Historical School is to uncover and explain the general principles that govern the origin and development of law in different societies. Montesquieu is credited as the first jurist who systematically applied the Historical Method in legal thought. He recognized that law must be understood within the context of the culture and history from which it emerges
Reasons for Development of Historical School
- Emphasis on tradition and custom
- Critique of codification
- Legal evolution over time
- Influence of German romanticism
Friedrich Karl von Savigny
Freidrich Karl Von Savigny was the main exponent of the historical interpretation of law and also considered as the propounder of Historical Jurisprudence. He considered the development of law as the evolutionary process. Dr. Allen described him as ‘Darwinian before Darwin’ because of his thinking about the evolutionary process.
Famous Works by Savigny: On the Vocation of Our Time for Legislation and Jurisprudence, Jus Possessionis of the Civil Law, The Roman Law of Persons as Subjects of Jural Relations.
Volksgeist Theory of Savigny
- This theory is based on the general consciousness of the people and manifestation of the spirit.
- The origin of law is found in Volksgeist (“Volks” = people, “Geist” = spirit/common will).
- Law grows with the growth of people, strengthens with them, and dies as the nation loses its nationality.
- Law develops like language and binds people through shared beliefs and convictions.
- In earlier stages, law develops spontaneously.
- Law has unconscious, organic growth and cannot be artificially made.
Contribution of Savigny
- Beginning of Modern Jurisprudence: Savigny paved the way for sociological approach linking law with society.
- Foundation of Historical Jurisprudence: The essence of theory of Savigny was that the nation `s legal system is greatly influenced by the historical culture and traditions of the people and growth of law is to be located in their popular acceptance and this laid to the foundation of Historical Jurisprudence.
- Warning Against Hasty Legislation: The theory of Savigny gives the sound warning against the hasty legislation and introduction of abstract ideas in the legal system unless the mustered support of the popular will i.e. Volkegeist.
Criticism Against Savigny’s Theory of Law
- Contradictory Statements: Savigny emphasized national character but supported adopting Roman law in Germany.
- Obscure Theory: This theory is too focused on customs, ignoring needed reforms.
- Overlooks Other Sources: This theory neglected legislation and precedent in law’s evolution.
- Encourages National Ideologies: The theory was later misused, such as by the Nazis for racial ideology.
George Puchta
Puchta, a disciple of Savigny, was a firm supporter of Historical Jurisprudence. He believed law arises from a conflict between general and individual will and has a historical evolution. He improved and logically structured Savigny’s theories.
“What is visible to us is only the product, law, as it has emerged from dark laboratory in which it was prepared and by which it became real.”
Sir Henry Maine
Henry Maine, often called a Social Darwinist, contributed significantly to Historical Jurisprudence. He studied various legal systems to trace the evolution of law.
Famous Works: Ancient Law, Popular Government
Four Stages of Legal Development as defined by Sir Henry Maine are:
- Divine Law: According to him first stage of development of law is that it is made by the command of ruler who is believed to be acting under divine inspiration. It was generally believed earlier that while pronouncing the judgments, the King was acting as a custodian of justice under divine inspiration.
- Customary Law: Next stage of development of law is that the recurring application of judgments by rulers led to uniform practice and gets crystallized into the customary law.
- Administration of Custom: The third stage of development of law provides that, when the customs are made, the knowledge and administration of custom goes into the hands of minority usually of religious nature for examples priests. The priestly class memorized the rules of customary law because the art of writing was not developed till then.
- Codification: The last stage in the administration is the codification of the laws. With the discovery of art of writing, a class of learned men and jurists used to denounce the authority of priests and wants for the codification of law.
According to Maine after these 4 stages of development, there are two societies:
Static Societies: In the static societies law remains based on status and person’s position is determined by family hierarchy. These societies do not develop after the 4th Stage.
Progressive Societies: Progressive societies are those societies which develops after fourth stage of development. In these societies rights are based on contract; three tools of evolution in progressive societies are:
- Legal Fiction: Legal fiction changes the law according to the changing needs of the society without making change in the letter of law, Maine defines the legal fiction as any assumption which conceals or effects to conceal the fact that a rule of law has undergome alteration, its letter becomes unchanged, its operation being modified
- Equity: It consists of those principles which appeal to the conscience of human being. These principles are invoked in order to remove defects in common law of England.
- Legislation: It is the most effective method of law making. It is considered to be the most systematic and direct method of introducing reforms through new laws. The power of legislature has been widely accepted by the courts and people all around the world.
According to Maine, progressive societies evolve from status-based rights to contract-based rights.
References:
- Studies in Jurisprudence by Dr. N.V. Paranjape
