1.

Introduction

 This school does not attach importance to the relation of law to the states, but gives primacy
to the social institutions in which the law develops itself.
 They inquiries into the past, especially into primitive and undeveloped communities, which
are conducted for their own sake in order to discover what ‘law’ might appropriately be
taken to mean in them.
 Generally speaking, Historical School is the product of German juristic thought.
 Earlier Edmund Burke had emphasized the importance of history and Hegal had propounded
the view that state is an organism whose constitution is determined by the political
consciousness (Volk) of the people.
 Each institutions viz., law, state, etc, are, he had said constituted a part of a nations’ spirit
and the destiny of the state was determined by history.
 It was, however, Savigny who in the nineteenth century developed the ideas of Burke and
also of Herder, and others. He thus became the founder of the Historical School. Other
factors which contributed to this stream of thought were: ---
i.) Reaction against natural law and the French Revolution.
ii.) Sprit of nationalism and Post-Revolutionary Romantic Revival in Europe.

2.) Montesquieu (1689-1755)

 He laid the foundation of historical school in France through his classic work spirit of law
published in 1748.
 He attributed evolution and development of law to the effect of cause and effect in a given
social surrounding and biological environment.
 He held that laws should be adopted to suit the people, for whom they are framed, keeping
in view the degree of liberty which constitution desires to grant to its people.
 According to him, there is nothing like good or bad in law, as it essentially depends on
political and social conditions and environment prevailing in society. While he was opposed
to natural law, he laid the foundations of comparative and sociological jurisprudence.

3.) Edmund Burke (1729-1797)

 He considered evolution of law as an organic process and an expression of common beliefs,

faiths and practices of community as a whole.
 In his book “Reflections on the Revolution in France”, published in 1790, Burke highlighted
the importance of customs and traditions in the growth of law.
 He upheld the significance of English customs, habits and religion in the evolution of law and
denounced the French revolution for its catastrophic consequences.

4.) F.K. Von Savigny

4.1) Law develops like Language

 In all societies, it is found already established like their language, manners and political
organisation. These all are stamped with a national character.
 They are the natural manifestations of popular life and by no means product of man's free
will. Law, language, customs and government have no separate existence.
 The organic evolution of law with the life and character of the people develops with the ages
and in this it resembles language.
  As in the latter, there can be no instance of rest; there is always movement and
development of law governed by the same power of internal necessity as simple
phenomenon.
 Law grows with nation, increases with it and dies at its dissolution and is a characteristic of
it.

4.2) Early Development of Law is Spontaneous

 About the development of law, Savigny says that in the earlier stages law develops
spontaneously according to the principle of internal necessity.
 After the society has reached a certain stage of civilization, the different sides of national
activities, hitherto developing as a whole, divide in different branches and are taken up by
specialists and jurists, linguists and scientists. In the hands of specialists, these subjects
become richer in ideas, more complete and technical.

4.3) Savigny was opposed to Codification of German Law

 Savigny’s contention is that codification is highly dangerous because it checks the natural
and unconscious growth of law. Instead of the law being changed by a spirit operating
silently and almost imperceptibly, we have the violent and capricious act of a law giver.
 He quotes with approval the hard saying of Bacon that codification should not be
undertaken except in an age in which civilization and knowledge surpasses that in which the
laws were made which it is now proposed to codify.

4.4) Law is a Continuous and Unbreakable Process

 Savigny sees a nation and its state as organism which takes birth, matures, declines and dies.
Law is a vital part of that organism.
 Law grows with the growth and strengthens with the strength of the people. It dies away as
the nation loses its nationality. Nations and their law go through three development stages.
 There are principles of law which are not found in legislation but are a part of “national
conviction”.
 These principles are implicitly present in formal symbolic transactions which command the
high respect of the population, form a grammar of the legal system of a young nation and
constitute one of the system’s major characteristics.

4.5) Criticism of Savigny’s view

 Savigny’s view has been criticized by many jurists. Allen is of the view that some customs are
not the outcome of common consciousness of people rather are the outcome of the interest
or convenience of a strong and powerful minority of a ruling class. A typical example of this
is slavery which was recognized and prevailed in certain societies. Moreover, some rules of
customary law may not reflect the spirit of the whole population e.g., local custom. On the
other hand, some customs e.g., the law of merchant may be cosmopolitan in origin. The law
merchant was not the creatures of any particular nations or race. In short, in the case of law
merchant it is not clear who the ‘volk’ is and whose ‘geist’ determined the law.
 While criticizing Savigny’s view Prof. Stone says ‘he (Savigny) laid excessive emphasis upon
the unconscious forces which determine the law of a nation and ignored the efficiency of
legislation as an instrument of deliberate, conscious and planned social change. In all
modern developing societies legislation is an important instrument of social change and
social reform. Abolition of Sati pratha, introduction of divorce, the Child Marriage Restraint
 Act, etc, are some of the many examples in India where gradual change by legislation has
been brought in even though it meant change in the age old custom and traditions.
 Dias and Hughes, point out that the Volkgeist theory minimizes the influence which
individuals sometimes of alien race, have exercised upon legal development. Every man is a
product of his time but occasionally there are men who by their supreme genius are able to
give legal development a new direction. The works of classical jurists of Rome of
Littleton ,Coke may be cited as examples.

5.) George Puchta

 Another important exponent of historical school is Puchta. He agreed with Savigny that the
genesis and unfolding of law out of the spirit of the people was an invisible process. He says,
 “What is visible to us is only the product, law, as it has emerged from the dark laboratory in
which it was prepared and by which it became real”.

6.) Sir Henry Maine

Maine’s theory of ‘status to contract’ does not have mush force in the twentieth century. Today a
counter move towards status is more apparent in the sense that individual bargaining freedom is
substituted by collective group interest, collective bargaining standardized contracts etc. With the
emergence of the idea i.e., social pattern of state, much concentration is being paid to the point viz.,
social control and social relations of all the activities of individual in groups for common interest. In
India, the policy of ‘mixed economy’ had assumed greater control over individual liberty and
freedom. The state can impose reasonable restriction in the interest of the public.