val thought of cant Ie see eee of this choot is mig the main en stand stare discussit may easily ¥ that one ical at, Hefor 1 of it $0 istor xponent. Ry histor ered ta be the exPone } backgroun' Savigny, the iit y to give a brief " 1 of the schoo! jration from Background .d its inspiral ives man law law deri Ro ach to tator: ny. Historical approach, commen (2) Study of Roman “reorient Glossa the study of Roman law in the the gro) erated th his acce receiver Ik the problems of their day. MS this form Was attempted to relate Roman law to rian ° : | approach of Rot Historica! fe branches of law. The study This contained ae th and sixteenth centuries. im Germany in the fifteenth and si in its embroynic form, tury of s the cen i century wa (2) Eighteenth century rationalism. Eighteenth whole legal se eatism’ pervaded the Ea ‘rationalism’. As observed earlier, a spirit of ean of governments, thought of this century. ‘Revolution’ brought changes of the 18th and the early p: The mushroom growth of codes took place in the later par of laws by deliberations of the 19th centuries. Thinkers and philosophers thought of icati use | application becar which they considered would be unchangeable and having universal app) they were based on natural law principles. i i developed by (3) Science of Economies. Science of Economics, which had much lop’ A 1 i yhilosophers Row, influenced other branches of knowledge including jurisprudence. Social philosop! had started preaching for the emancipation of the labouring classes. (4) Nationalism. The French con quest, under Napoleon gave birth to the idea of ‘nationalism’ in Europe in the end of the 18th century, described by Dr. Berolzhmeir in the followi “The object was the emancipation of the fourth estate—t class and particularly of the ind lustrial labourer, While the emancipation of the third estate, the establishment of a free class of citizens was essentially a political Movement and proceeded by overcoming the dominance of the Catholic Church, by abolishing the feudal system and by giving all citizens a share in the Sovernment. The issue in the former was primarily that of a Political, in the latter that of an economic enfranchisement. The motive of the civil emancipation was the desire for Power, the €mancipation f labour, at least in its origins, brew out of the Struggle for existence, : The several Political the liberation of labouring (22) Scanned with CamScenlightment. Even here 2 directions may be traced Tegarded as comple; Montesquieu. Maine describes method. He made researches came to the conclusion “that __ Hugo. Hugo’s view as that law, like bnguage and mmess of che people, foams itself and develops, as suited to the cicumsances. The essence of nw is Se aecepince, regulation, and observance by the people. study and method. Controversy on the codification in Germany. Now we come to the thesis end main philosophers of Historical School. The issue which caused the expounding of the thesis of the Historical School was the problem of codification in Germany which had arisen due to the political changes brought about by Napoleonic wars. During French domination “Code Napoleon’ remained in force in many pars of Germany. After restoration of the national government, the problem of codification drew the attention of the people, Many’ jurists were in favour of promulgating a new code incorporating the excellences from foreign laws also because neither the old code nor the customary laws were adequate enough to fulfil and suit the present needs and conditions of the society. Thibaut. The main supporter of Codification was Thibaut (1771-1840) —a Heidelberg Professor. He was inspired by French Code, At the same time, the movement for national unification in Germany also gave him impetus. His project involved two assumptions: (1) That the law should be made by enactment just as the legislator wills it to be. (2) That a code could be framed enunciating legal principles which would not 1. Berolzhmeir, Legal Philosophies,p.261 WIL: Scshall be cE ave and a JURISPRUDEN omprehensiv© Ile and a osed Tequite any modification and would be perfec oe eS applicable to all places and times yp 1814) Ser tne thesis cs ay, Vom Beruf (1814) th he tap ne eens Ie assumptions and laid dow historical school. , her Savigny , He was 2 teal d. His is as profound. © Savigny, his life and works: The source of at of Roman law idle ‘Ages (in in the University of Bertin, His study and scholarship 1 or yw it He attacked works — (1) The Law of Possession, (2) The History oy —testify his genius. 6 volumes), and (3) The System of Modem Roman aes of the coueee. of German the idea of codification in Germany as he knew the t for the developm' fits spirit. According to him , code was not a suitable instrument is a manifestation 0} Jaw at that time, Law is a product of the people’s life—i le. ist)of the peop! Shp Law has its source in the general consciousness (Volksgeist) ster, In all societies, itis Law develops like language: Law has a national cer olitcal organisation. These found already established like their language, manners, aN P) manifestations of popular all are stamped with a national character, They are the natural customs and government life and by no means product of man’s free will. Law, language, ople and it underlies Biv ho separate existence. There is but one force and power in 8 P life of people. The all these institutions, The law, like language, develops with the fundamental thought " following passage in his essay, ‘Vom Beruf’ states in nutshell the Of the historical school: ce, “These phenomena—Law, language, custom, government have no ee there is but one force and Power in a people bound together by its nature, an¢ y on minds give them separate existences. What makes it a single whole in the comm« Conviction of the people, the like feeling of inner necessity which all attribute a contingent and arbitrary origin....... The organic evolution of Law with the life and character of a People develops with the ages, and in this it resembles language. As in the latter, as in Law, there can be no instant of. Test, there is always movement, and development of Law is governed by the same power of internal Necessity as simple phenomena. Law grows with a nation, increases with it, and dies at its dissolution and is a characteristic of it.” is developed by jurists. arlier stages law develops Early development of law is spontaneous: Later on it x OUAIINICU WILT Val IoCaay The he HISTORICAL SCHOOL a © histo presents the histo, Roman taw an example. As on illustration of this process he Product of the gemeay ROM? law, a comparison of its early simple foundations (a © Reneral e¢ Of the Pandecte nt SOmsCiONsness of the people) with the complex and technical law Summary. § a) Avigny’s 'eny’s theory can be summarized as follows That lawisa Matter of unconscion wth. Therefore, law is fou ot cious and organic growth. Therefore, law is found and (2) Law is not univ 3) Ctstom ne Yet in its nature, Like language, it varies with people and age. confor Cnty precedes legislation but it is superior to it. Law should always rm to the popular consciousness, (4) Aslaws grow Who foe into complexity, the common consciousnessis represented by lawyers Po} ae mute legal principles. But the lawyers remain only the mouthpiece of Fhlar consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-maki -making and, therefore, the lawyer or the jurist is more ‘important than the legislator. Criticism of Savigny's Theory Savigny’s thesis has been criticised on a number of grounds: th () Inconsistency in the theory. He emphasised the national character of law but at fe same time he r he recommended a method by which the roman law could be adapted to ‘modem conditions and advocated for the acceptance of Roman law as the law of Germany. On the one hand, he asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Savigny’s view of adopting principles of Roman law was vehemently opposed by Besclor, Eichorn, and Gierke. Later on, the national consciousness grew and the code, which was promulgated afterwards, incorporated more and more German ideas and principles. (2) ‘Volksgeist’ not the exclusive source of law. Savigny’s view that popular consciousness is the source of all law is not true, Sometimes, an alien legal system is successfully transplanted in another country. Sometimes, single personality greatly influences a legal system who, in no way, can be said to be a representative of popular consciousness. There are many technical legal rules which never existed in nor has any connection with popular consciousness. (3) Customs not always based on popular consciousness. Savigny's view that customs are based on the popular consciousness of community as a whole is also not perfectly sound., many customs originated only for the convenience of a powerful minority, as slavery. Many customs are adopted due to imitation and not.on the ground of their righteousness or any conviction of the community. Sometimes, customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community. (4) He ignored other factors that influence law. Another criticism against Savigny is that he was “so occupied with the source of the law that he almost forgot the stream". He overlooked the forces and factors which influence and determine the growth of law. The creative function of the judge has also been ignored in Savigny's theory and the contribution of the jurist has been taken very lightly, Many rules, in modem time, area the TOMI OF a gy JURISPRUDENCE SutCoMe of a Toop neta effort, For example, ie Mery a lolent atte between onl stat development noticerhte te este Certain invariable Md ate SHvIRNY'S theory Te Hal the Fea sytem af HEH oy Which he ital developmenty in variant count Paid no heed, Prof, Korkinove mys ‘It docs between yw "What ix motional andl what bv anslveraal" : () Juristle pessimism, Ave cording, to Pound, SaviBlY vp [esttinison.Accoreing tw his theory, lll mul Ae sored with Such a vie 8 em w ch view will not find favour in mdevn timex, No legs #98 Compromise with abns iwomed (0H wet only be cope are acest" that Savigny® ly beemtise that people are 1 c g hands 0 * theory tended to hang, traditions like Fetters po? the on comterprise, "It discon trig statement ‘I discouraged erentive nc pal reform. As to wateh the netvity and legal 00 ded ha Wwololding of laws from popular conscious ‘ontributlon Savigny 1 jurist of rk ‘Das » be the greates! jiest WO! 8 sh avi tributions, Savigny is considered by many © DE" Rhee des re tethe suid that with the appearance of Savigny’s eee in 1803 modern jurisprudence was born. ae theory § Fenetion agaist natural law theorl ine ‘rationalism and Universal apple it th vents of which wed t estabil E y ightly 8 ation without any consideration of time and place. eat of fact Says that “the historical movement in jurisprudence may be called the FeV eg ‘against faney."" ‘The view that the source of law isthe instinetive sense of right possi - by the community negatived the conception of the unitary sovereign Whose commant i. low, He made the ‘juristie world perpetually conscious of the iecberg quality of law, “i its present pinnacle concealing and denying the hidden nine-tenths of its past. The Only defect with the theory was that it exaggerated this aspect. His main thesis still unimpaired, ‘The great truth that the theory of Volksgeist contains is that « nation’s legal system is greatly influenced by the culture and character of the people. Savigny was mainly occupied with how law becomes and whether it tends, or what the conscious effort can make it to tend, and his thesis in this respect still substantially holds good, ‘Theory in hands of National Soctalists. It was the misfortune of this theory that National Socialists used the doctrine of Volksgeist for an entiely different purpose. To them nation means a racial group and the function of the law was to keep it pure and to protect it, This view led to the passing of most ruthless and brutal laws against the jews in Nazi Germany, Savigny’s influence very wide. ‘The theory of historical school, later on, influenced many jurists. It was after Savigny that the value of the historical method was fully understood. Apart from hjs followers in his own country and in the Continent, his 1, Lawinthe Making.Lhe HISTORICAL SCHOOL cord Bryce, and many others rnd purgett of many of Ihe flaw in various ingland by Maine, Vinogeadof F otto was followed in who tide studies of various legal systems on historical exaggerations of Savigny's theory and traced the course of evolution & societies, Pollock, Maitland, Holdsworth and Holmes in th 1 works pointed out that the course of development of Common Law was determined by soc! nd political conditions of particular time, Seeds of tionary and Soclologleal theories: Warning against hasty ‘ed with the people and it closely evolves called by nw that law is et why Savigny is legistation, The siologists,’ After Savigny, contained the germs of future soe: some as Darwinian before ‘Darwin and a Bhtlich stressed the importance of the study of ‘living law’, which, he said, is different from the dry skeleton of lay, that is, law, in ils formal shape. Savigny sounded a note on troduction of revolutionary ideas and fat and the warning agai st hasty legislation and the lon abstract principle, His influence in Germany was Bre delayed for a long time. Puchta .en general and individual will : Conflict betwes is source of law. Puchta (1798-1856). His bring law into existence: Neither the people, nor the state alone i Savigny's disciple and his countryman Puchta was also a great jurist of the historical School, His ideas ate more logical and improved. He started from the origin of human face (based on Biblical account) and traced the development and evolution of law. Men Always lived in unity. This unity is not only physical but spiritual also. Tt causes linanimity among the members of society and constitutes the General Will of the people. Self-interest causes a conflict between individual will and General Will. This brings out the idea of law. Then state comes into existence. The state delimits the sphere of the Individual and it develops into a tangible and workable system. Neither the people (as nic unit) alone is the source of law. The first is the natural unit) nor the state (as the orga the cause instrumentalis and the second is the causa principalis of law. The origin of law is antecedent to the State, but there is no law before the creation of the state. Puchta’s Contribution Puchta made a valuable contribution to jurisprudence by giving the two-fold aspects of the human will and the origin of state. There are some points of distinction between theories of Savigny and Puchta, but mostly they are similar. On some points Puchta made improvements upon the theory of Savigny and has made it more logical. This method was followed by many jurists in later time. Main doctrines of Historical School ‘The principle doctrines of the historical school, as expounded by Savigny and some of his followers, may thus be summarized as follows: “(1) Law is found, not made. A pessimistic view is taken of the power of human action. The growth of law is essentially an unconscious and organic process; legislation is therefore of subordinate importance as compared with custom. ocdiiicu Will vaiis¢30 Imp JURISPRUDENCE Hegel has an ' ortan : i ises, tho tc.» he Tight upon macy 4 Philosophical school. From his premise’ shen Ca ee esse ny legal concepts and has given a theory Of PX’ : ee Philosopher and his discussion of legal philosoPhY cone under on ames to be MOVER hold such diverse views that HHeY Te uo Firstly, we Goo ke OF 88 4 school. But their works are imPOrt™ gy Ce between oti them a revival of natural law and in this TSP bistorical shoe acted an) sind BOW thoughts. Secondly, the philosophical schoo! ; View utd teacted upon each other and new theories came into aiparative eee ettting the philosophy of history inspired further studies 19 oe ; ropounded. historical philosophy of law and many new theories of legal evolution wer PI p Historic Comparative method fssoeial the histo Comparative study of legal institutions. The interest in history a sory various schools had created inspired further legal researchers. By the study OF MOL ater (teories of legal evolution were propounded by many jurists. The WOK OO find T{uSts is mostly directed towards a comparative legal science. In Montes jh century a ems ofthe comparative study (we have discussed him earlier). Im ae a of the Dahn, Fouillee and mai ceneaeecgeeny™ : legal institutions of vaious comeention & erat bol a rious communities. A great English jurist, Sit adopted this mea wnities. A great Eng! nee 2i0e’S theory of evolution of law. Maine made a comparative study institutions of various communities and laid down a theory of evolution of 1 ‘method was a great improvement upon historical school and yielded fruitful results. of legal Jaw. His Maine (1822-1888) Maine made very valuable contribution to legal philosophy by way of historic Comparative method. He was an erudite scholar of law. He started his career as Regius Professor of Civil Law in the University of Cambridge at an early age of twenty five. He was law Member in the Council of the Governor General of India between 1861 and 1869. This provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the Master of Trinity Hall Cambridge. ‘Ancient Law’, Village ‘Communities,’ ‘Early history of institutions’, ‘Dissertation on Early Law and Customs’, are the important contributions made by him to legal thought and legal philosophy. Stages of development of Law (1) Law made by the ruler under divine inspiration, In the beginning law was made by the commands of the ruler believed to be acting under the divine inspiration, as, the inspiration by Themistes in the Homeric poems. (2) Customary Law. In the second stage the commands crystallise into customary law. . mScat SCHOot nd administration HISTORICAL. ature, due to the omeawledge of law in the hands of priests, The knowledge an of a minority, usually of a religio’ ! the third stage. of customs gocs into the han Now faw is promulgated in the form weakening of the power of ginal Iaw-makers. Thi the era of codes. (9) Codification. Then & or the Twelve Tables in Rome, of a code, as Solon’s Attic Cov Satie and Progressive Societies: Further development by legal fiction, equity 2nd letislation. The socicties which do not progress beyond the fourth stage whic Sleses the cta of spontancous legal development are static societies (as Maine calls them). The societies which go on developing their Inw by new methods are called by three methods: legal fiction, Progressive. Progressive societies develop their law ion, equity and legislation, Legal fictions change the law according to the changing needs o the society without making any change in the letter of the law. There are innumerable examples of it in English and Roman law. Equity consists of those principles which are considered to be invested with a higher sacredness than those of the positive law. It is to modify the rigour of law. Legislation comes in the last which is most direct and jematic method of law making. Status disintegrated. As to the legal conditions prevailing at the end of general course of evolution, i.e., of static societies, Maine calls them ‘status’. The rights and habilitics of a member of the community depend on his belonging to a particular group in the community, for example, the rights and duties of an individual in the family depend on his being a pater familias or a dependent, etc. In progressive societies the idea of status is disintegrated. There is a ‘gradual dissolution of family dependency and the growth of individual obligation comes at its place. The individual is steadily substituted for the family, as the unit of which civil laws take account.’ Growth of the idea of contract. Gradually the institution of pater familias withers away. Slave gets more and more freedom, and now rights and obligations depend on contract or free negotiations of the individuals. After tracing this course of development, Maine propounds his important thesis: ‘The movement of progressive societies has hitherto been a movement from status to contract.” Maine’s thesis true in his time. Maine was perfectly right when he propounded this thesis. Apart from the instances from ancient Roman law, during his own time he saw the emancipation of individual from status in England and in the Continent. In England, the position of married women improved. Many a civic disabilities on the ground of religion were removed by statutes. More freedom was given to servants to make contracts. The Industrial Revolution turned many peasant communities into an industrial proletariat who had freedom to enter into contract with the employer. Maine witnessed also the triumph of the industrial North, a community more based on free contract, over the agricultural and feudal South, more favouring status and retaining the institution of slavery, in the American Civil War, These all made him to come to the conclusion that a progressive society moves from status to contract. Theory no Jonger holds good: Individual freedom of contract curtailed. But then there came a counter-move the signs of which were apparent in the time of Maine himself. It was realized that the idea of freedom of contract between a powerful capitalist and a starving workman was ridiculous and hollow. The organisations to protect th , Scanned with CamScra Worl JURISPRUDENCE tions. Ni en came cir 0850 From thes nes OF individual 9 itenee. The employers (00 formed oe ming Hou Social 1, 1 teedom of contract there came a BFOUP Yn and other and minimum /2Slation has been passed which have fixed . Conditions op yp 2° And have laid down the rues regadiné n great a Changs Service and the individual is bound by them: cre have been changes in then, {Ue Concept and functions of the State: NOW growin erferene into the sctiviags oe and functions ofthe state which have caused ® 217-4, an indivs © activities of th racy enters into j ie individual by the State. Even the co! ter, OF Supply, = can ay life, have been standardized, 35 conta es cannot ce : ct for a cari Indi vembe ariage with a railway compa: Hcy a5 MET ot any of th Social class ant of these contracts, Parties enter into thes¢ °°, een Bt departments 4 MO! 88 individuals. In modern times, contracts Bett dard contacs and the way Private firms have become important which als0 2% st ry is in favour Seta fixed before hand. The progressive opinion Im °°" tract is malisati : : 7 fied his theory Im tora ace £2F the theory in totalitarian states: Maine himself 4™¢ fe out To contract in ofa there has been a strong shift to the status 280i", spate plans Oy i otherwise haar oWe4 which isin any way not in consonance with the State PI igen sf Ito the society, From these observations and examples si become sotitis have not remained progressive (according t0 Maine's "rene word “hither. GeTessve. But Maine himself qualified his statement BY # Ong of the indies s, HeOFY as true during his time, and it was rather ded freedom of contract levelopment and the formation of a capitalist class which demant tioned Be that i gau labour. Another limitation of Maine's theory which he himself tn bY as not i wis ites tnt to apply to personal conditions imposed othe! 7 Maine's view correct in one sense. In one sense Maine's theory still Holds good: ‘he trend of legislation in countries which are undeveloped is till to remove personal disabilities which arise due to the membership ofa class (status). Hindu Acts of 1955-56 in India are an example of it. In the same way, labour laws and land recent years have helped in emancipation of workmen and peasants. After looking into the history of legal development of various communities, one can easily say that the trend has not been uniform everywhere. So long as capitalism has stronghold, Maine’s theory holds good, but when its forces start withering away, there is just a contrary movement. In totalitarian states the freedom of contract is confined to narrowest limits and Maine's theory does not apply there. Jaws passed during Contribution of Maine In Maine we find a very balanced the law but between the developments of both and Improved upon the theory of historical school. view of history. Savigny explained the relation between community and Maine went further and pointed out the link purged out many of the éxaggerations which Savigny had made, eeHISTORICAL SCHOOL a histernParative study: Importance of Legislatio istorical jurists of the Continent confined their stu a balanced view. ies only to Roman law but Maine studied the legal systems of various communities and by their analysis laid down 2 Sombrchensive theory of the development of law. On the one hand. differing from Savigny, Maine recognised legislation as a very potent source of law, and on the other ‘and, he avoided the excesses of philosophical school of Germany. He used the study of legal history mostly to understand the past and not to determine the furure course and Standards, and in this field he made valuable contributions to legal theory. Though many of the statements of Maine about primitive societies and the course of development of ancient law have been falsified by modem researches, modern anthropologists have had the advantage of following the trial blazed by Maine and by others after him with the added advantage of being able to profit from the researches of fellow workers in many directions.' He inspired later jurists. Maine's theory preaches a belief in progress and it emai the germs of sociological approach. Jurists like Maitland, Vinogradoff anc ryce were inspired by Maine and they applied his historical and comparative method t the study of law. Scanned with CamSc