Historical School

The Historical and Anthropological Approach

Analytical and Historical Schools
Distinguished
Analytical school
• Study of law as it is
• Learning from the present
• Concentrates on matured legal systems
• Ubi civitas ibi lex = where there is State there
is law
• Law is deliberate product of sovereign/state.
• Enforcement by sanction or force.
• Legislation is the chief source of law.
• Judge must go by the letter of the law.
Historical school
• Study of law as it was
• Learning from the past
• Concentrates on primitive legal systems
• Ubi societas ibi lex = where there is society there
is law
• Law is found and not made.
• Social recognition and reception are the criteria.
• Custom is the chief source of law.
• Judge must go by the purpose and spirit which
can be ascertained from the history of
legislation.
Historical School: Exponents

• Savigny (1779 – 1861)

• Henry Maine (1822 – 1888)
• Vinogradoff (1854 – 1925)
• Puchta (1798 – 1856)
• Carter (1798 – 1846)
Montesquieu
(A forerunner of Historical School)

“Laws should be adopted in such a manner to the people for whom

they are framed that it should be a great chance if those of one nation
suit another. They should be in relation to the climate of each country,
to the quality of its soil, to its situation and extent, to the principal
occupation of the natives … they should be in relation to the degree of
liberty which Constitution will bear, to the religion of the inhabitants,
riches, numbers, commerce, manners and customs.”
Savigny’s Works
• Of the Vocation of Our Age for Legislation and Jurisprudence (1814)
• The Law of Possession
• The History of Roman Law in the Middle Ages(1831)
• The System of Modern Roman Law
• The Law of Obligations
Savigny’s Theory of Volksgeist
Historical background of the theory:
French Revolution, Napoleonic conquests, Imposition of French Civil Code in some German
States, Defeat of Napoleon at Waterloo, Unification of German States, Codification of German
Law, Germany for the Germans, Nationalism …
Rejection of Prof. Thaibaut’s proposal:
• A law made without understanding of a community’s deep roots of history and culture is
likely to create more problems and difficulties. French civil code cannot be a good model for
German people.
• Law is not an artificial, arbitrary, lifeless mechanical device designed by master jurists to be
imposed from above. Law is an internal silently operating process without any break or gap.
• Law grows with the growth and strengthens with the strength of the people, and finally
dies away as the nation loses its nationality.
Continued..
• Law resembles language and culture in some respects.
• Law should reflect nationality.
• Law is found. It cannot be made.
• Law like language is a product of a slow, gradual and organic growth.
• Law is identical with the opinion of the people in the matters of right and justice.
• Law cannot be of universal validity.
• Law is sui generis.
• Custom is the typical form of law.
• Law originates in custom and ‘popular feeling’ i.e., common consciousness of the
people.
Continued …
• Legislation, as source of law, has a subordinate place.
• Precedent and legislation derive their force from custom.
• Law primarily relies on common consciousness of the people, popularly known as
volksgeist.
• Volksgeist means spitit of the people.
• Ultimate source of law is volksgeist.
• Law comes from the people, not from the State.
• Volksgeist formulates the rudimentary principles of a legal system.
• Lawyers are trustees of the people.
• Legislation will be effective only when it is in harmony with the people’s voice and
their deep aspirations.
Criticism
• Some customs are not the outcome of common consciousness of the
people.
• Irrational customs are many.
• Local customs may not reflect national spirit.
• Law is sometimes used deliberately to change existing customs.
• Ignored the importance of legislation as an instrument of social change.
• The creative work of jurists, sometimes of alien race, undermined.
• Legal scholars, judges and lawyers play an active part in shaping of legal
system.
Criticism
• The contemporary scene is inconsistent with ‘volksgeist’.
• Savigny extrapolated his volksgeist into a sweeping universal.
• All laws do not reflect popular spirit.
• The national character of law seems to manifest itself more strongly in some
branches of law.
• The reception of Roman Law in Germany is contrary to the theory of
volksgeist.
• Fundamentalists may invoke the help of this theory for separate statehood
on ethnic, linguistic and religious basis.
• Volksgeist is not a verifiable phenomena.
Henry Maine
• Ancient Law: Its connection with the Early History of Society, and its
Relation to Modern Ideas (1861)
• Village Communities in the East and the West(1871)
• Early History of Institutions(1875)
• Early Law and Custom(1883)
• International Law(1888)
Henry Maine made a comparative study of the various legal systems
and traced the course of their evolution.
Stages in the early development of law
The early development of law was in three successive stages:
• First stage: Commands/Themistes
• Second stage: Customs
• Third stage: Codes
Two types of society: stationary and progressive.
The stationary societies do not move beyond the code-based law. Law
is stable and society is static.
The progressive societies possessed a dynamism in modification of the
law.
The dynamic stage of legal development
In a progressive society, law proceeds to develop through three
agencies (in the historical order):
• Legal fictions
• Equity
• Legislation
These are the three instrumentalities by which law is brought into
harmony with society.
These three instrumentalities constitute a machinery of change.
Legal fictions
• Any assumption which conceals or affects to conceal, the fact that a
rule of law has undergone alteration, its letter remaining unchanged,
its operation being modified.
• According to Julius Stone fictions are the ‘swaddling clothes of legal
change’.
Equity
• Any body of rules existing by the side of the original civil law, founded
on distinct principles and claiming incidentally to supercede the civil
law in virtue of a superior sanctity inherent in those principles.

• Exclusive jurisdiction – absence of remedy

• Concurrent jurisdiction – inadequacy of remedy
• Auxiliary jurisdiction – excessive formalism
From status to contract
The movement of progressive societies has hitherto been a movement from status to
contract.

• The unit of ancient society was family , but individual is unit of the present society.
• Individual is unit of society in place of family
• Liberation from slavery
• Emancipation of married women’s personality
• Adult franchise
• Human Rights Conventions and Charters
• Modern Constitutions contain a bill of rights
• The movement from collectivism to individualism