Historical School & its Anthropological

Approach

Relevance of Historical
School to the study of
Modern Indian
Jurisprudence

Presented by:
NAVNEET KAUR
16121
GROUP: 13
 Introduction
 Jurisprudence derived from Latin terms ‘Juris’ & ‘Prudentia.’
 Juris means ‘Law’ & Prudentia means ‘Skill.’
 Consequently, Jurisprudence means ‘Knowledge of Law’ or ‘Skill of Law.’
 Study of general legal principles upon which actual rules of law are based.
 Dynamic in nature as it is for the society.
 Different approaches to the study of jurisprudence.
 These are represented by different schools of thought.
 3 main schools of thought of jurisprudence
 Analytical School
 Historical School
 Ethical School
 Historical School
 Believes that law is a result of a long historical development of the society.
 It originates from the social customs, traditions, religious principles &
relations of the people.
 Does not attach significance to the relation of law to the state rather gives primacy
to the social institutions.
 Main Advocates: Savigny, Sir Henry Maine, Montesquieu & Edmund Burke.
 Savigny is viewed as the originator of the Historical School.
 According to him, law is the result of general consciousness of people.
 Historical School go to the primitive society to explain the nature &source of law.
 Evolution of Indian Jurisprudence
 The perception of law in ancient Hindu society was different from today.
 Law was a part of ‘Dharma’ which implied rightful conduct.
 All law was initially customary law.
 Main Sources of Law: Shruti, Smriti, Vedas & long established customs.
 They teach the principles governing human life.
 Ancient Hindu law believed in divine origin of the institution of King.
 Idea of Dharma & law ended with the advent of British Rule.
 A new era for Indian jurisprudence began with the Indian independence.
 Dharma incorporated in the Constitution through Fundamental Rights.
 Reservation
 Reservation Policy: A process of reserving some seats for certain classes.
 Its origin has its roots scattered in the ancient times.
 Untouchability, caste system &Varna system was dominant in the society.
 Concept of reservation was introduced by the Britishers.
 Provisions of reservation in Indian Constitution :
 Article 15(4)
 Article 15(5)
 Article 16(3)
 Article 16(4)
 Evolution of reservation policy from the Varna system proves the belief of Historical
School.
 Conclusion
 According to Historical School, Law is
 A result of the process of evolution rather than a command of the sovereign.
 Evolved from social customs & traditions.
 This viewpoint has been accepted by most of the scholars.
 However, it also has been criticized by some.
 But the viewpoint of Historical School is not without any basis.
 As it is clear from the example of development of Reservation Policy.
 Thus, Historical School has played a prominent role in understanding the
concept of Law.
Thank You