Philosophy of Law

Historical School: - Savigny and Maine

By:
Vansh Lalwani (20213250)
MISSION VISION CORE VALUES
CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 CHRIST
Deemed to be University

INTRODUCTION:
The Jurisprudence Historical School argued that the law is an exaggerated form of social
culture, economic necessity, common religious principles, and social relations. The historical
school does not believe in or support the idea of ​a natural law school that believes that the
origin of the law comes from a higher authority and has some divine relation. Two jurists
researched extensively in this area – Friedrich Carl Von Savigny (1799-1861) and Sir
Henry Maine (1822-1888) will be the subject of examination in this section. The history
school follows the concept of man-made rules. ‘Law set for people and people’ means that the
law must be in line with the changing needs of the people. The primary source of the
Historical School of Jurisprudence practices the culture of the people which changes
according to their needs and requirements. It is also called the mainland school of
Jurisprudence. This school rejects the notion of law enforcement by judges and the origin of
some divine relationship. In the words of Salmond, “That branch of legal philosophy called
legalism is a common part of legal history. It contains the same relationship with general legal
history as the law of analysis has a systematic disclosure of the legal system. It addresses,
first, the general principles governing the origin and development of the law, as well as the
influences affecting the law. It deals with the second place in the origin and development of
those ideologies and legal principles that are so important to their nature as to qualify for a
place in the legal philosophy - the same concepts and principles, namely to be dealt with
differently and in another way through analytical law. Legal law is the history of the original
principles and ideas of the legal system. ”

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 CHRIST
Deemed to be University

Historical School of Law

Savigny - Savigny is regarded as the father of History School. He pointed out that the
cohesive nature of the legal system is often the result of a failure to understand its history and
origins. According to him, the law “is a product of the times when the virus, like the State
virus, exists in the form of men who have been exposed to the virus in a variety of ways,
according to the nature of the influences that play on it.” Savigny believes the law cannot be
borrowed. And the greatest source of law is human knowledge. He was of the opinion that the
law of the land grows with the strengthening of state citizenship and that the law dies or
withers when nationalism develops its power in the state.
Maine - Sir Henry Maine was the founder of the English Historical School of Law. Savigny's
ideas for the School of History were further developed in England by Sir Henry Maine.
Maine's deep knowledge of early society led her to focus on the deepest human instincts,
feelings and habits in the development of history. According to Maine, "Law can be
understood as the latest phase of a slow-growing growth pattern." He believes that there are
four stages to the development of the rule of law in early societies - the law as a human order
and the judgment of a particular ruler; law as a tradition kept by judgments; and the law as a
code. Maine’s ideas were incorporated by the best things in the theories of Savigny and
Montesquieu and he avoided what was abstract and unreal Romanticism. Maine’s theory
certainly holds good in case of capitalist countries which have transformed into socialist
states.

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 Analysis
This implication of historical school in terms of approach to law has been far-
reaching. Some of the practical contributions of the historical school have
had a long-lasting effect. It provided a great stimulus to the historical study
of law and legal institution which has ingrained a sense of historical
perspective. It highlighted the perils of an over-hasty legislative experiment
and has taught a lesson that development should flow, in some spheres at
any rate, within the channels of tradition. It also tried to show some
connection between cultural evolution and some parts of the law, and the
need to look into the past in order to get a proper understanding of the law
in modern times.

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Conclusion
The School of Law History explains the origin of the law. The school says the
law was found to be ineligible. According to Sir Henry Maine,
Montesquieu was the first attorney in the history school. Sir Henry Maine
was an attorney for the English Historical School. He was rational and
accepted the concept of Codification and law.

Savigny was the father of a history school. He argued that the law was like a
language and had a national identity. The law is not universal. While
Puchta developed Savigny’s views and argued that both the country and the
people are equally important and a source of law.

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence