PHILOSOPHY OF LAW

THE HISTORICAL SCHOOL

Group 1
Lopena, Kyla Ardene
Villanueva, Synara Mile
Alaba, Jan Emmanuel

The Concept of Historical School

Historical school believes that law is an outcome of years of historical development

which studies not only the concept but also the origin of law. The basic tenet of historical school
is that law in its essence is not something imposed on a community from above or from without,
but is an inherent part of its ongoing life, an emanation of the spirit of the people.

The historical school believes that the law has a past and a progression which develops in
a gradual and evolutionary process and cannot be separated from its national or indigenous
character. Raises the question of how the law originated. Reading the law is not enough. One
should also read the historic struggles and the national profile or identity that colored the law.

The Historical School follows the concept of man-made laws. It promoted the notion that
social custom, economic necessity, religious principle, and relationships among people of a state
all contribute to the development of law.

Historical school developed legal theories propounded by analytical positivists and the
natural law philosophers. The law was founded on the abstract notion of the human conscience
and reason.

Basic Sources of Historical School

Law operates in a specific language, impressed by cultural beliefs, traditions, customs,

temperaments, and the common experiences and consciousness of people.

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 The Sources of law are epics, folklores, religion, and political developments that provide
a window in the sentiments, archetypes, and pass-on ideals. Law is a product of national genius.
For example, the existence of lupon and barangay in our legal system - in reference to historical
value.

The historical school believes in the principle that “law is formulated for the people and
by the people”, hence law must be in accordance with the changing needs of the people.

Origin of Historical School

“Law is founded and not made” - basis of the historical school of law founded by
Friedrich Karl von Savigny. According to this school, the law is the creation of interactions
between the local situations and conditions of the people, it is not founded by any political
superiors but found and given by people.

As a result of the revolutionary concepts that positivistic legal thinking gave rise to
failing to suit the demands of the people, a new method known as Historical conception of law
was proposed. Historical school believes that the emergence of law is related to the social
custom, economic needs, conventions, religious principles, Rules of etiquette, and relations of
the people with society.

This historical school challenges the idea of the natural school of law, which maintains
that the rule of law derives from divine inspiration and contains some heavenly allusions.
Because it was a byproduct of the past, it led to historical advancements and developments.

“Manifests the belief that like men has past so does the law”

Basic Principles of Historical School

1. Views law as a legacy of the past and product of customs, traditions, and beliefs prevalent
in different communities.
2. Views the law as biological growth, not an arbitrary, fanciful, and artificial creation.
3. Law is the abstract set of rules imposed on society but has deep roots in social, economic
factors, and the attitude of its past and present members of its society.
4. Law is not of universal validity or application. Each community develops its own legal
habits, as it has its different language, manners, and constitution.

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The Jurists

Montesquieu (1689-1755)
● First jurist who adopted the historical method.
● Came to an idea that “laws are the creation of climate and local situation”
● Concluded that law must be according to the changing needs of the society.
● Believed that is no “Good and Bad”, law depends on the political, social, and
environmental factors that are present in the community
● Known for the book “Spirit of laws”

Friedrich Karl von Savigny (1779–1861)

● Regarded as the father of historical school
● Developed that law is the product of “Volksgeist”. Driven by the general consciousness
of the people and manifestation of spirit or the will.
● Savigny’s central idea was that law is an expression of the will of the people; it doesn’t
come from deliberate legislation but arises as a gradual development of the common
consciousness of the nation.
● Essence of “Volksgeist” was that a nation’s legal system is greatly influenced by the
historical culture and traditions of the people and the growth of law is to be located in
their popular acceptance.
● Savigny concentrated on the idea that the law has a national character, developed like a
language, and unites people through their shared views, values, and religious practices.
● Law is linguistic by nature that differs with people, time and needs of the community.
● Against the codification of law.

Criticism (Savigny’s Exposition)

Inconsistency of theory. Savigny argued that the law is the product of consciousness and
also asserted that some principles of Roman Law were universally applicable. Overlooks the
impacts of other sources of law such as legislation, precedents etc. According to Charles Allen, it
is pointless to consider customs as the only source of law since customs are not the sole product
of people’s consciousness. He asserted that customs are the outcome of the common
consciousness of people but the result of the interest of a powerful and strong ruling class.

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Henry Maine (1822–1888)
● Through comparative study on legal evolution, he argued that legal institutions must be
studied historically to be understood. Legal history shows patterns of evolution recurring
in different times in similar circumstances, such as repetitive occurrences of feudalism.
● Maine Henry concluded that law has four stages of development:
○ First stage: Rulers as lawmakers
■ Laws are made by the commands of the rulers and the rulers are believed
to be acting under divine inspiration.
○ Second stage: Customary Law
■ The commands are turned into customary laws.
○ Third Stage: Administration of Customary laws by Minorities
■ A minority now controls the knowledge and administration of customs.
This is because the original law-makers, such as priests, have less
influence over legislation, and therefore the minority or lower class now
controls the knowledge of customs.
○ Fourth stage: Codification of Law
■ The codification and promulgation of the law.

Socrates (470 - 399 B.C.)

He argued that like natural physical law, there is a natural moral law. It is because of the
‘human insight’ that a man has the capacity to distinguish between good and bad and is able to
appreciate moral values. Thus according to Socrates, virtue is knowledge’ and whatever is not
virtuous is sin’. To him, justice may be of two kinds, namely, (1) natural justice; and (2) legal
justice.

St. Thomas Aquinas (1225-1274)

● For Thomas philosophy is ancilla theologiae (handmaiden of theology). Aquinas was
first and foremost a theologian, though he was quite capable of distinguishing philosophy
proper from theology. He held that
● (1) philosophy can prove by means of reason unaided by revelation some truths
proposed by Christian faith;
● (2) it can clarify truths which cannot be proved;
● and (3) it can defend the principles of Christian faith against their detractors.
● (Law in General) Aquinas describes law as "a certain rule and measure of acts whereby
man is induced to act or is restrained from acting." (q90, a1) Because the rule and
measure of human actions is reason, law has an essential relation to reason; in the first

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 place to divine reason; in the second place to human reason, when it acts correctly, i.e., in
accordance with the purpose or final cause implanted in it by God.
● Promulgation--i.e., the application of the law to those to whom it is applied and the
communication of this law to them--is essential to the nature of the law. The natural law
is promulgated by God: "God has instilled it into human minds so as to be known by
them naturally." Divine and human laws can be promulgated by word of mouth or, even
better, by writing.
● (Kinds of Law) Aquinas recognizes four main kinds of law: the eternal, the natural, the
human, and the divine. The last three all depend on the first, but in different ways. Were
we to arrange them in a hierarchy, eternal would be at the top, then natural, then human.
Divine law is not in conflict with natural law, but it reaches human beings by a different
route, revelation.
● (Eternal Law) Eternal law is identical to the mind of God as seen by God himself. It can
be called law because God stands to the universe which he creates as a ruler does to a
community which he rules. When God's reason is considered as it is understood by God
Himself, i.e. in its unchanging, eternal nature, it is eternal law.
● (Divine Law) Divine law is derived from eternal law as it appears historically to humans,
especially through revelation, i.e., when it appears to human beings as divine commands.
It is divided into the Old and New Law. The Old Divine Law commands conduct
externally and reaches humans through their capacity for fear; and that law promised
earthly rewards. New Divine Law on the other hand, reaches the humans by the example
of divine love and promises heavenly reward.
● (Human Law) Thomas' philosophy, as we should expect knowing how much he is
indebted to Aristotle, is pervaded with a sense of teleology. Nowhere is this clearer and
more important than in his discussion of human law.
● Law is directed to the common good, and human law is no exception. The promotion of
virtue is necessary for the common good, and human laws are instruments in the
promotion of virtue. Aristotle already pointed out that most people are kept from crime
by fear of the law.

George Friedrich Puchta (1798-1846)

● German jurist who was a disciple of Savigny and a great jurist of the Historical School of
Jurisprudence.
● Puchta’s ideas were more logical and improved than Savigny’s ideas.
● Traced development and evolution of law from the very beginning.
● He asserted that it is important to keep the general will over individual will for
maintenance of peace and for evolution of law.

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 ● Ideas mainly focused on the situation when conflict arises between the general will and
the individual will. In the conflict between general and individual will, the state came into
existence.
● Main concept of Puchta’s ideas was “Neither the people nor the State alone can make and
formulate laws.” Both State and individual are equally important to formulate a law.

Conclusion

Historical School of Jurisprudence describes the origin of law. This school argues that the
law was found not made. The main source of law is Kings Judgment, Customs and habits. Jurists
like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the supporter of the
Historical School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first
jurist of Historical school. Sir Henry Maine was the jurist of English Historical School. He was
more logical and accept the concept of Codification and legislation.

Savigny was the father of Historical school. He argued that Law is like language and
have a national character. Law is not universal. While Puchta improved the ideas of Savigny and
argued that both state and people are equally important and source of law.

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