Internal Assessment I

Jurisprudence

Name: Sana Ahsan

Ba.llb(2021-26)
Lloyd school of law

Historical School of Jurisprudence

According to the historical school of jurisprudence, it is more important for social institutions to
shape the development of law than the relationship between the state and the law. An entirely
new method of studying jurisprudence based on history and the historical conception of law has
emerged as a result of the revolutionary concepts of positive legal thinking's dismal failure to
address the needs of the populace.

Natural law was established in the 18th century and was static, universal, unalterable, and
unchanging. When a sovereign produced coercive law devoid of any moral or cultural values in
the 19th century, this was known as the analytical school of law.

The Indian legal system is a historical creation, according to the Supreme Court in the case of
Byram Pestonji Gariwala v. Union of India1. It is entrenched in our land, nourished by our
history, culture, and languages, developed and honed by our genius and pursuit of social justice,
and strengthened by our languages, cultures, and customs. This school explores the past and
discusses the evolution of the future stance. Numerous illustrious lawyers, including Henry
Maine, Friedrich Karl Von Savigny, and Montesquieu, graduated from this school.

1 Byram Pestonji Gariwala v. union of India AIR 1991 SC 2234.

 Monstesquieu

Charles –Louis de Secondat, baron de La Brede et de Monstesquieu is the first jurist who endorsed
the historical school approach in understanding the concept of law, said Sir Henry Maine.
Montesquieu was a French judge, philosopher, politician and intellectual, who researched and
construed laws of various societies and concluded that the 'law is the creation of the climate, local
situation , accident or Imposture’.
Hence there is no point in arguing whether or not the law is good since it depends on the social
milieu.
Law is shaped by social, economic and historical factor. Thus, the jurists who advocate growth of
law in the name of tradition, customs etc., are said to belong to historical school. This school is
largely the product of German juristic thought.

Therefore, habits and customs are the main sources of the historical school. However, according
to Dias, “Historical School arose as a reaction against the natural law theories.”

Friedrich Karl Von Savigny

He was a German jurist, and historian, considered to be the father of the Historical school of
jurisprudence. He was a professor of jurisprudence in Berlin University. Law should not be verdict
of unforeseen authority. Law should be made by living people.
He believed that the law is not universal as it varies with the time, place, and conscience of the
people, thus it cannot be applied abruptly. Law is nothing but nothing but relationship between law
and society – its customs, people and its history.

Law as the product of ‘volkgeist’:

Savigny’s theory is often summarized as follows: law is found and not made. According to him,
law is Volkesgeist which means collective consciousness of the people in the society. Generally, a
specific set of people always resembles a particular genre of culture, morals, beliefs, and
intellectual conscience as a community or nation, later such traits and customs of society from the
legal bedrock, depends on which the future legal decisions will be made. Thus, the sense volkgeist
becomes the part and source of law.
Savigny’s key perceptions-

The law is unique. Law emerges from the people’s lives and consciences, rather than being imposed
or constructed. Law is related to language, which bears the customs and cultures of its own country,
and hence cannot be applied universally.

Law develops alongside nations and expires with their demise. However, the law is discovered as
a societal principle later constructed by jurists. Law is discovered or found and cannot be
artificially invented or made.

Law is fundamentally organic and developmental in character which can be found both in primitive
and modern communities in varying forms of popular consciousness and beliefs, customs and
traditions, habits and practices which finally contribute to people's law to volksgiest.
Law is sui generis - peculiar to a people like its language and heritage manifestation of its national
ego or spirit so law cannot be of universal validity.

Henry Maine

He was appointed as Prof. Civil law in Cambridge University where in he has deliverd various
lectures and these collection of lectures - Ancient Law 1861 (book).
He was also known as Social Darwanists. He was also appointed as a member of Central legislative
council of India. he was successor of lord Macaulay. He was appointed as VC of Calcutta
university. At that time during tenure of VC he studies the entire legal system and studied
comparative eagle system like Hindu, Muslim law, criminal law etc.

Growth of idea of contract.

The institution of joint families broke- disintegration of family system - society evolved towards
nuclear families. Individuals could take final decision without depending on the head of the family.
So basically the concept of Pater familia withered away.
They got more awareness of their rights, duties and freedom. Even the interest of disabled and
weaker section of the society was safeguarded. Discrimination and stigma was also removed to
some extent.

His thesis was divided into 4 stages-

Law under divine inspiration- law is made by ruler under divine inspiration (King used to
•
get inspiration from God to pass commands and then it is obeyed by the people).

• Commands of rulers- so the those commands of ruler becomes customs or customary laws.

• Knowledge of law under priests (weaker) than the divine rulers- knowledge and
administration of customs given to minority based on religious leader
(priests).

• Codification, final stage of development - 12th table in Rome, Manu code- writing make
makes it easy and accessible.

With the discovery of writing, few jurists and scholars came forward to condemn the authority of
priests as law officials.

Reference of 12 tables, codes of Manu, Hebrew code- which is the blend of religious, morals and
civil laws. it broke the Monopoly of priests class as law officials for administrators.
Society is divided into two parts- static and progressive. Static society is a society that remains
inside these four stages of development of long but when it comes out of these is stages it becomes
progressive society.
History of legal system from primitive to more progressive is a
movement from status to contract

Status (position of person in the family) - it is a way of organising rights and obligations that is a
feature of more simple societies.

Contract is a way of organising rights and obligations that is a feature of advanced societies.
Contract - voluntarily create relationship through act of will.

Shift from status to contract

He is also known as the founder of historical comparative school of jurisprudence - studied not
only German, roman law but also Hindu law.

In ancient world, people were bound by the traditional groups that's why they were governed by
the status in the family (pater familias- karta- oldest living male in a household or owner of family
estate). In modern world, individuals are taken as autonomous agents and they are free to make
contracts and form associations.

He talked about difference between ancient and modern societies. This outlook of law is deeply
inspired by history and by comparative law. The scope of his theory is quite broad as he used
comparative approach to study the development of law.
He improved the theory of historical school.
He studied the analysis of legal system of various communities and laid down their comprehensive
theory on development of law. He was inspired by other jurists. Maine deserves to be considered
one of the first sociologists of law. He is interested between law and society and other kinds of law
that are created by certain kinds of society. According to him, ancient society is structured by status
and relationships and he sees more progressive societies as structured by more voluntary
contractual.