HISTORICAL AND ANALYTICAL SCHOOL OF LAW: A

COMPARISON

Research submission submitted in fulfillment for the course

JURISPRUDENCE-I for obtaining the degree of B.A.LL.B. (Hons.)

SUBMITTED BY:
Anugrah Aaron Thomas
B.A.LL. B (Hons.)
Roll no. 1716 (5THsemester)

SUBMITTED TO:
DR. MANORANJAN KUMAR
(ASSOCIATE PROFESSOR OF LAW)

CHANAKYA NATIONAL LAW UNIVERSITY,

NYAYA NAGAR, MITHAPUR, PATNA, BIHAR (800001)

August, 2019
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A.LL. B (Hons.) Project Report entitled
“HISTORICAL AND ANALYITCAL SCHOOL OF JURISPRUDENCE A

COMPARISON” submitted at Chanakya National Law University is an authentic record of

my work carried out under the supervision of DR. MANORANJAN KUMAR. I have not
submitted this work elsewhere for any other work. I am fully responsible for the contents of my
Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: ANUGRAH AARON THOMAS
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.
 ACKNOWLEDGEMENT

I would like to thank my faculty DR. MANORANJAN KUMAR whose guidance helped
me a lot with structuring my project. This Project has reached its fruition because of many
factors which were my constant support and muse whose considerations helped me in channeling
my thought and efforts towards creating a self contained analysis on Philosophical pillars of
Jurisprudence.

THANK YOU,
NAME: ANUGRAH AARON THOMAS
COURSE: B.A., LL.B (Hons.)
ROLL NO: 1716
SEMESTER: 5TH

TABLE OF CONTENTS
1.INTRODUCTION

 AIMS AND OBJECTIVES

  RESEARCH QUESTIONS

 HYPOTHESIS

 RESEARCH METHODOLOGY

 SOURCES OF DATA

 LIMITATION OF STUDY
2. HISTORICAL SCHOOL OF JURISPRUDENCE
3. ANALYTICAL SCHOOL OF JURISPRUDENCE
4 . COMPARITIVE ANALYSIS
5. CRITICAL ANALYSIS
6. CONCLUSION

INTRODUCTION
School of thought is a principle or body of principles accepted as authoritative and advocated by
one or more scholars belonging to a specific discipline. Schools are groups of thoughts that are
based on broadly the same fundamental premise. As a theory or philosophy of Law, Salmond
dividend Schools of Jurisprudence into three types: Analytical School, Historical School and
Philosophical School while others have suggested different number of schools of thoughts.
Schools of jurisprudence have attempted to the questions: formalism proposes that law is a
science; realism holds that law is just another name for politics; Positivism suggests that law
must be confined to the written rules and regulations enacted or recognized by the government;
and naturalism maintains that the law must reflect eternal principles of justice and morality that
exist independent of governmental recognition. Each school of jurisprudence is not a self-
contained body of thought. The lines separating positivism from realism and natural law from
formalism often become blur. It is a known fact that the legal philosophy of Justice Holmes, for
example, borrowed from the realist, positivist, pragmatic, and historical strains of thought. In this
regard, some scholars have observed that it is more appropriate to think of jurisprudence as a
spectrum of legal thought, where the nuances of one thinker delicately blend with those of the
next.1
AIMS AND OBJECTIVES:
1. The researcher tends to critically analyze Historical and analytical law in context of
jurisprudence
2. The researcher tends to analyze the contemporary usage of historical and analytical
jurisprudence in law
RESEARCH QUESTIONS
1. What is the doctrine of Historical Jurisprudence
2. What is law according to analytical Jurisprudence scholars

HYPOTHESIS:
The researcher tends to presume that Historical and Analytical jurisprudence are part of the same
philosophical school of thought with same underlying connotation.

RESEARCH METHODOLOGY:
The researcher will be relying on Doctrinal method of research to complete the project.

SOURCES OF DATA:
The researcher will be relying only on secondary sources to complete the project.
*Secondary Sources: Book, websites.
1 grkarelawlibrary.yolasite.com
LIMITATIONS OF THE STUDY:
The researcher has time limitations in completing the project.

2. HISTORICAL JURISPRUDENCE
The historical school of jurists was founded by Friedrich Karl von Savigny (1779–1861). Its
central idea was that a nation's customary law is its truly living law and that the task of
jurisprudence is to uncover this law and describe in historical studies its social provenience. As
in other schools of thought, acceptance of this approach did not necessarily mean agreement on
its theoretical or practical consequences. To followers of Savigny the identification of law with
custom and tradition and the Volksgeist, or genius peculiar to a nation or folk, generally meant a
rejection of rationalism and natural law; a rejection of the notion of law as the command of the
state or sovereign, and therefore a disparagement of legislation and codification; and a denial of
the possibility of universally valid rights and duties and of the individual. The German Historical
School of Law was a 19th-century intellectual movement in the study of German law. The
Historical School is based on the writings and teaching of Gustav Hugo and especially Friedrich
Carl von Savigny. Natural lawyers held that law could be discovered only by rational deduction
from the nature of man. The basic premise of the German Historical School was that law is not to
be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those
regulations are to be seen as the expression of the convictions of the people, in the same manner
as language, customs and practices are expressions of the people. The law is grounded in a form
of popular consciousness called the Volksgeist. Laws can stem from regulations by the
authorities, but more commonly they evolve in an organic manner over time without interference
from the authorities. The ever-changing practical needs of the people play a very important role
in this continual organic development. The German Historical School was divided into
Romanists and the Germanists. The Romantists, to whom Savigny also belonged, held that the
Volksgeist springs from the reception of the Roman law. While the Germanists (Karl Friedrich
Eichhorn, Jakob Grimm, Georg Beseler, Otto von Gierke) saw medieval German Law as the
expression of the German Volksgeist. The German Historical School has had considerable
influence on the academic study of law in Germany. Georg Friedrich Puchta and Bernhard
Windscheid continued the Romanist vein founded by Savigny, leading to the so-called
Pandektenwissenschaft which is seen as Begriffsjurisprudenz (conceptual jurisprudence).
Positivists and naturalists tend to converge in the area of historical jurisprudence. Strictly
speaking, history does not completely fall within the definition of either positivism or natural
law. Historical events, like the Civil War, are not legislative enactments, although they may be
the product of governmental policy. Nor do historical events embody eternal principles of
morality, although they may be the product of clashing moral views. Yet, historical events shape
both morality and law. Thus, many positivists and naturalists find a place for historical
jurisprudence in their legal philosophy.2
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

2 Austin, John (1832/1995),The Province of Jurisprudence Determined , W. Rumble (ed.),

Cambridge University Press
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 so 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.”3

3. ANALYTICAL JURISPRUDENCE
“Analysis” is breaking down a problem into smaller problems so they can be solved individually.
Analytical Approach in general parlance is a method through which a broad subject is broken
down into smaller topics and subtopics in order to solve problems, conduct studies or resolve
uncertainties.
In Austin’s Analytical Approach, his effort is to gain a precise and in-depth understanding of
Fundamental Concepts of legal reasoning. He chooses to exclude all external influence or even
history and completely indulges in gaining access to first principles of law as it is, regardless of
its “goodness” or “badness” or “moral worthiness”. This approach leads to reading of “Law as it
is” or “Positum” (and not the ideal law) also called “Positive Law”, advocated by Austin in his
Theory of Legal Positivism. From now, we have a fair idea of what is Austin’s analytical
approach which gives us the theory of legal positivism.
Positive law is basically human-made law. It includes statutes laid down by legislatures or rules
and regulations by the human institution. Black’s law dictionary defines positive law as “Law
actually and specifically enacted or adopted by proper authority for the government of an
organized society.” This is principally how Austin frames his notion of Law, which
fundamentally constitutes Positive Laws for him.4
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning
is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists
who first pointed out that legal formalism is fundamentally mistaken as a theory of law. Analytic,
or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when
referring to the aspects of legal systems. This was a philosophical development that rejected
natural law's fusing of what law is and what it ought to be. David Hume famously argued in A
Treatise of Human Nature that people invariably slip between describing that the world is a
certain way to saying therefore we ought to conclude on a particular course of action. But as a
matter of pure logic, one cannot conclude that we ought to do something merely because
something is the case. So analysing and clarifying the way the world is must be treated as a
strictly separate question to normative and evaluative ought questions. The most important
questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the

3Bentham, Jeremy (1970),Of Laws in General , (H.L.A. Hart,ed., London).

4 blog.ipleaders.in/john-austins-analytical-approach-positive-law/
relationship between law and power/sociology?"; and, "What is the relationship between law and
morality?" Legal positivism is the dominant theory, although there are a growing number of
critics, who offer their own interpretations. Its Central Idea is that Law as it exists i.e. Law as it
is, regardless of good or bad, past or future. “A law, which actually exists, is a law, though we
happen to dislike it, or though it vary from the text, by which we regulate our approbation and
disapprobation.” (Austin 1832/1995: Lecture V, p. 157) It is called Positive School because it
focused on „ positum (Latin) which means „as it is. It s also termed English School, because this
school was dominant in England. Also called as Austinian School because it was founded by
John Austin. But the imperative concept of law was actually first proposed by Bentham during
his life time (1742-1832) but his work remained unpublished till 1945. But until recently John
Austin used to be styled the “father of the English Jurisprudence”, but it is now clear from a
work of Bentham first published in 1945 that it is he, if anyone, who deserved such a title.
However, John Austin is considered the de facto originator of this school of jurisprudence.5
The Scope of Analytical jurisprudence can be said as below;
(i) Analysis of the legal system and legal concepts such as Right, Duty etc.
(ii) Analysis of the relation between civil law and other forms of law.
(iii) Analysis of the legal structure of a state and administration of justice.
(iv) In depth investigation into the actual sources of law.
(v) Investigation of the theory of legislation, precedents and customary law.
(vi) An inquiry into the scientific arrangement of law into distinctdepartments along with an
analysis of distinctions on which the division isbased.
(vii) An investigation of the theory of legal liability in civil and criminal cases.
(viii) An examination of all other relevant legal concepts.
(ix) Worldwide legal education today
owes its basis to analytical school of jurisprudence

4. COMPARISON
So from the above discussion we understand what is meant by both historical and analytical
jurisprudence as individual and compartmentalized units but we still ought to understand when
both these philosophies when translated in exclusivity and proximity to each other still remains
to be starkly and distinct to each other; for example how both these theory came into existence

5 Bentham, Jeremy, 1789, An Introduction to the Principles of Morals and Legislation, J. H. Burns
& H.L.A. Hart (eds.), Oxford: Oxford University Press, 1996.
and to what extent their application to the contemporary understanding of law ought to be
understood becomes the comparative point of understanding, Historical jurisprudence is defined
as a living organ of the society which is something the society deciphers for itself and not
something which can exist independent to each other the religious views political inclination the
norms and morals which represent the essence of the society is what should be termed the true
source of law and not any other naturally existing laws which was is known as the natural law. In
totality we can also argue that Historical school of law emerged as an ardent critic of Natural
school philosophy of law as the former believed in some universal and divine laws which were to
be given some special attention and translation due to the divine and misunderstood nature of
Many unsubstantiated law, therefore it was historical school was the first empirical and
observational study of what in reality constituted law.
Analytical jurisprudence is the brain child of J. Bentham and John Austin with later being called
the father of Modern Analytical jurisprudence he was the first jurist to approach law from an
independent prism which constituted the objective characteristic of law which exists without
attaching any external meaning to law this constituted the structural model of analytical
jurisprudence he was of the view that law should be view independently of any moral, religious
or normative color as this allowed law to be more pervasive thereby reducing the true nature of
law which ought to be understood in the first place.
By keeping law aloof from all external factors, Analytical Jurisprudence takes for granted, the
history and development of the Legal system and concerns itself with basic concepts as the legal
system is. It spares the reader from redundant information which might cloud his judgement.6
It lays down a systematic explanation of actual facts of law and purely law. The first job is to lay
down a scheme following which analysis is to be performed. Then the laws are broken down to
fragments, each of which is separately explained. By keeping them isolated from ethical
concerns, morality, and justice, an accurate meaning of the law is established.
The approach also helps in the establishment of the relationship between two or more concepts
in a more lucid and fundamental manner.
This approach is often lauded for bringing precision, simplicity, and clarity in legal thinking. It
gives clear, definite and scientific terminology. He removed many false notions which had
obscured the meaning of legal terms He also made it very clear that the law is, after all, at the
mercy of the all-powerful and condescending state and not the god or religion or even morality.7

6 www.sociologyguide.com

7 www.jstor.org
Sr.
N
o. Analytical School
(ii) The main founder of this school
is John Austin and other
supporters are Bentham,
Salmond, Holland, H.L.A. Hart.
(iii) The main concept of this
school is “law is command of
the sovereign”.
(iv) It deals with the analysis of the
first principles of law as they
exist in a legal system.
(v) This school confines itself to
mature legal system.
(vi) Law is an arbitrary command
of the sovereign. It is the
creation of the state.
(vii) There can be no law without a
sovereign.
(viii) This school strongly in the
favour of that legislation is
superior to custom, and that
legislation is the result of the
command of the sovereign.
(ix) The law rests on the force of a
politically organized society.
(x) The command of the sovereign
is the source of law.
(xi) This school concentrates on
civil law.
(xii) It is also called as “imperative
school”, as it has “command”
in it by the sovereign.
(xiii) Approach of this school
depends upon present and
future.
Historical School
Father of this School is Friedrich Karlvon
Savigny and other Supporters are Sir
Henry Maine, Montesquieu and Hugo.
The main concept of this school is “Law is
the spirit of people (Volksgeist), custom”.
It deals with the general principles
governing the origin and development of
legal conceptions and principles found in
the philosophy.
This school concentrates its attention on
the primitive legal institutions of the
society
Law is found and not made. It is self-
existent.
Law is antecedent to the State and it
existed even before States came into
being.
This school is in favour of that custom is
superior to legislation.
Law rests on social pressure behind the
rules of conduct, which implements it.
The custom is the formal source of law.
This transcendental law and other methods
of legal development, e.g. precedent and
legislation, derive their authority from
custom. At any rate, the custom derives its
binding power from its own internal
vitality, not to follow a judicial precedent or
legislation or to make it legislation.
This school deals with all branches of law.
There is an offshoot of this school, known
as ‘anthropological approach’.
Approach of this school depends upon
present and past.
 5. CRITICAL ANALYSIS
When Austin comments that sovereign is the creator of laws, he ignores the fact that foundation
of law lies in common consciousness of the people which manifests themselves in customs and
thus also overlooks Customary law which has always been widely respected and followed.

Personal laws like Hindu Law, Canon Law or Muslim law, existed long before a sovereign began
to legislate, and yet, these laws were not only acknowledged but followed with immense
devotion.

Secondly, Legal character of the law becomes obvious when it is applied by a Court of Law in
the administration of Justice. Even Legal Sanctions, though created by the “sovereign” but are
used through the courts. Courts may misinterpret a statue or reject a custom. In this process, the
court often lays down Precedents or Case-Laws which are often religiously followed in future
cases.

2. Austin’s theory does not apply to Constitutional law. The sovereign, no matter how strong will
always be subjected to the Constitution and the latter cannot be equated with a “command” of a
state. It will be an absurd idea to say that Constitution, which is a command of the sovereign,
will, in turn, direct the sovereign. Further, the Constitution is primarily the highest law and
essentially comes before the state. It defeats Austin’s preposition that Sovereign creates the law
laid by the constitution.

3. The definition is majorly applicable on Monarchical Police State which authors the law and
has the power to inflict evil on those who do not comply. In the modern era, there are
empowering and enabling laws which confer privileges on the citizens. They are purely of
permissive nature and give discretion to the individual himself. They cannot be called a
command in their true sense.

For e.g. The law which gives me my right to vote does not command me to do so neither tells me
who to vote. The law which gives me a right to write a will does not penalize me if I don’t. There
are laws based on the idea of protection like Laws against untouchability or bigamy.

4. Unlike what is believes, the sanction is not the only motivation behind adherence to the law. It
is also respected out of prudence and morality. One does not normally enter into a second marital
relationship during the lifetime of the first spouse because they are scared of being penalized but
also because of love and respect. Also, if everyone decides to challenge the law given by
sovereign, it is bound to collapse legal sanctions have practical limitations.

5. Austin fails to recognize that International Law is not created by a sovereign and yet is
recognized and appreciated by the majority of states as a law. There is no authority in
International Arena which can enforce international obligations or sanction them. Yet, they are
largely expected to be adhered to.

6. Law is not always “Generally” applicable to all. Many times, it is specially designed to
address certain people or certain situations.

Divorce laws, for example, is only applicable to those who want a divorce. There are laws which
are corporate or position centric. Austin fails to consider such specialized or particular laws in his
definition.

7. Law, most importantly, is an instrument for the attainment of Justice. Any definition is
incomplete if it fails to acknowledge that the end of law is justice.

8. Another limitation is the indifference towards ethical elements which determine the law. The
ethics on which a law is construed are essential in order to truly understand the nature and
requirement of Law.

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.

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.

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.

Major Works by Sir Henry Maine

 The first work of Maine ‘Ancient Law’ was published in 1861.

 He also wrote Village Communities (1871),

 Early History of Institutions (1875)

 Dissertations of Early Law and Custom (1883).

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.8

8 blog.ipleaders.in/historical-school-of-jurisprudence
 6. CONCLUSION
Historical and Analytical School of jurisprudence both evolved as an antithesis to the
conventional model of natural law which included divine intervention and a limited
understanding of law as a natural translation of something abstract rather than something which
can exist independently or correlative within the people it was meant to regulate these school
gave a new direction to Jurisprudence philosophy as it increased the scope and understanding of
the subject by touching upon topics which natural law failed to consider this allowed for and
expansive study of the subject as well as a facilitative function for the empirical nature that
Natural law so avoided, Analytical school explained law as an independent unit which was not
just dependent on some moral or transcendental authority as its guiding light but something
which had an independent translation with its own language and sources, On the contrary but
with a fulcrum on the former the historical school laid more emphasis on treating law as a
correlative and manifestation of the ideals that the law wanted to regulate this is evident by how
law evolved with times and how the religious and moral views of any given society generalized
as well as rationalized any opinion which though objectively and anachronistically diminutive
still found codification and strict enforcement by the way of punishment or sanction this
although was severely criticized by many contemporary jurist but its strongest proponents
staunchly believed in its validity as the only maintainable reality of complete explanation of Law
as a unit and not just subjective expression. Thus even though these philosophies form the basic
pillars of modern jurisprudence we ought to consider them not as the complete exposition of
everything law as an instrument has to offer social manifestation or independent regulation just
form one of the few facets of Law, they are mutually exclusive yet co dependent on each other
for explaining the true nature of law as it is than as it ought to be.
 BIBILIOGRAPHY
 BOOKS: -

1. PARANJAPE, N.V. STUDIES IN JURISPRUDENCE AND LEGAL THEORY, NINTH

EDITION, 2019

2. V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY (5TH ED., EASTERN

BOOKCOMPANY) (2016).

3. JAIN, A.K. JURISPRUDENCE-I , ASCENT PUBLICATIONS 2018

 WEBSITES

1. www.sociologyguide.com

2. www.jstor.org