Priya A Jagadish

Course Teacher: Jurisprudence

JSS Law College, Autonomous

Mysuru.
Introduction:
• Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law has a
very complex concept. Its understanding varies from people to people. Everyone has a different
understanding of the law. For example, a law student and lawyer understand the law as a solution
of every dispute. An ordinary citizen understands the purpose of the law is to punish them.

• Historical school of Jurisprudence argued that the law is the exaggerative form of social custom,
economic needs, conventions religious principles, and relations of the people with society. The
followers of this school argued that law is found not made.
The concept and meaning of Historical School of Jurisprudence

The basic source of the Historical School of Jurisprudence is the habits an custom of people which changes
according to their needs and requirement. It is also called the continental school of Jurisprudence.

This school rejects the ideas of formation of law by judges and the origin from some divine relevance.

In the words of Salmond:

“That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history.
It bears the same relation of to legal history at large as analytical jurisprudence bears the systematic exposition
of the legal system. It deals, in the first place, with the general principles governing the origin and development
of law, and with the influences that affect the law. It deals, in the second place, with the origin and development
of those legal conceptions and principles which are so essential in their nature as to deserve a place in the
philosophy of law- the same conceptions and principles, that is to say, which are dealt with in another manner
and from another point of view by analytical jurisprudence. Historical jurisprudence is the history of the first
principles and conceptions of the legal system.”
Prof Dias points out that the Historical School arose more or less contemporaneously
with the Analytical School at the beginning of the 19 th century.

The Historical School was a reaction against a prior notion of natural philosophy.

Historical approach to law derived its inspiration from the study of

Roman law on the continent.

Post Glossators commentators of Roman law attempted to relate Roman law to the
problems of law. That accelerated the growth of many branches of law. The study of
Roman law in this form was received in Germany in the 15 th and 16th centuries. That
contained the historic approach in its embryonic form.
Jurists of Historical School of Jurisprudence

Montesquieu

According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal
institution was Montesquieu. He laid the foundation of the historical school in France. According to
him, it is irrelevant to discuss whether the law is good or bad because the law depends on social,
political and environmental conditions prevailing in society. Montesquieu concluded that the

“law is the creation of the climate, local situation, accident or imposture”. He was of the view that law
must change according to changing needs of the society. He did not establish any theory or philosophy
of the relation between the law and society. He suggested that the law should answer the needs of the
place and should change according to time, place and needs of the people.
Hugo: The view of Hugo was that law, like language and manners of the people, forms itself and develops as suited to the
circumstances. The essence of law is its acceptance, regulation and observance by the people.
Friedrich Karl von Savigny (1779-1861):

Savigny was born in Frankfrut in 1779. His first major work was in the year 1803, The Law of Possession, in which he
traced the process by which the original Roman doctrines of possession had developed into the doctrines and actions
prevailing in contemporary Europe.

He studied the development of Roman law in medieval Europe and published between 1815 and 1831 in six volumes, The
History of Roman Law in the Middle Ages. In the system he analysed the Roman and local laws.

Savigny is regarded as the founder of historical school

According to him, “The law is a product of times, the germ of which like the germ of State, exists in the nature of men as being
made for society and which develops from this germ various forms, according to the environing influences which play upon it.”
“Law grows with the growth and strengthens with the strength of the people, and finally dies away
as the nation loses its nationality”.

The law and people are a part of society and therefore these should simultaneously grow with the
development of society. He believed that the law of state grew with the strengthening of the state and
law loses its essence and fades away when nationality loosens its strength in State.

According to Savigny, the nature of any particular system of law was a reflection of the spirit of the
people who evolved it.

This was later characterised as the Volksgeist by Puchta, a disciple of Savigny. All law is the
manifestation of the common consciousness.

The broad principles the system are to be found in the spirit of the people and they manifest
themselves in customary rules. Law is a matter of unconscious growth.
 Savigny’s contribution to the historical school may be briefly stated as

1. Law Prevails basically in society:

According to him the is the product of the people’s life living in a particular society and it is the outcome of a culture of a

society. It embodies the whole history of a nation’s culture and reflecting inner convictions that are rooted in society’s common

experience. The Volksgeist gradually drives the law to develop over the course of history. Thus, according to Savigny, a through

understanding of the history of people/society is necessary for studying the law accurately.

2. Law develops like language-

Law has a national character and it develops like a language and binds people into one whole because of their common faiths,

beliefs, and convictions Law grows with the growth of the society and gains its strength from the society itself and finally, it

withers away as the nation loses its nationality. Law, language, custom, and government have no separate existence from the

people who follow them.

3. Early development of law is automatic thereafter jurists develop it-

At the earliest stage law develops automatically according to the internal needs of the community. But

after a certain level when it reaches civilization it has a great role to play. As a duet role model

between the regulator of general national life and as a distinct discipline for study i.e., performing,

controlling and regulating the national activities as well as studying it by specialists as jurists,

linguistics, anthropologists, scientists etc. In simple terms, it can be termed as the political element of

law and juristic element and both play a significant role in the development of law.
4. Savigny who opposed the codification of German law-

Savigny was not totally against the codification of the German law on the French pattern at that time because Germany was

then divided into several small states and its laws were primitive, immature and lacked uniformity. He stated that the German

law could be codified when there is a prevalence of one law and one language throughout the country.

Since Volksgeist had not adequately developed at that time, therefore codification would have troubled the evolution and

growth of law. He has considered lawyers and jurists to be the true representatives of the popular consciousness rather than the

legislators whose power has been united to lawmaking only.

5. Law is a continuous and unbreakable process-

Tracking out the evolution of law from Volksgeist, Savigny considered its growth as a continuous and unbreakable process

bound by common culture, traditions, and beliefs.He wanted German law to be developed on the pattern of Roman law.

According to him, the codification of law may hamper its continuous growth, and and when the legal system gets fully

developed and established then the codification may take place.

6. Administration for the Roman law-

He has been known for the admiration of Roman law. According to him the Roman law is very

systematic and developed on the right principle of customs and justice and is based upon the

Volksgeist of the people.

Hence the German law should be based on the similar pattern of Roman law to evolve as proper law.
Criticisms-

1.
Savigny’s Volksgeist helped many nations to promote its ideologies where Nazi twisted it by giving a racial

colour. Marxists used it giving economic interpretations whereas; Italy used it to justify fascism.

2.
His attitude towards anti-codification of German law frustrated the growth of German law for several

decades.

3.
He believes that customs are the best source of law, which is not correct as there are many customs like

slavery, anti-woman custom, labour which are originated to accomplish the selfish interest of those in power.

4.
His force on Volksgeist as the only source of law is not true, as he ignores the other major sources of like

precedents, legislation and other external affairs.

Puchta (1798-1856)
Puchta was not only a disciple of Savigny but also a great jurist of the Historical
School.

He started from the evolution of human beings and traced the development of law
since that period.

According to him, the idea of law came due to the conflict of interests between the
individual will and general will. That automatically forms the state which delimits
the sphere of the individual and develops into a tangible and workable system.
Sir Henry Maine (1822-1888)
• Maine’s contribution to historical jurisprudence is so great that he is labelled as ‘Social Darwinist’
for the envisaged a social order wherein the individual is finally liberated from the feudalistic
primitive bondage.
• His Work:
Ancient Law (1861)
Village Communities
Early history of Institutions
Dissertation on Early Law and Custom and
Deserve Special Mention.
Maine classified the development of law in the following stages:

(i) Devine Law:

In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, e.g., Themistes of ancient

Greek. When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. The king was not the

maker of law, but merely an executor of judgments of the God.

(ii) Customary Law:

In the second stage, the commands crystallise into customary law. Customs seem to have succeeded to the prerogatives of the king. They don’t

appear to have pretended to direct inspiration for each sentence & the progress of thought no longer permits the solution of a particular dispute

to be explained by supposing an extra–human interposition.

(iii) Priestly class as a sole repository of customary law:

In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the power of the

original law-makers, usually of a religious nature, e.g. priests. The ruler is superseded by a minority who obtain control over the law.

(iv) Codification:

In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :
The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of development. The societies, which do not

progress beyond the fourth stage & close the era of spontaneous legal development, are static societies. The stationary/static societies don’t

move forward beyond the era of the codes.

The societies, which go on developing their law by new methods, are called progressive societies. They develop their law with the help of

three instruments / methods, namely, legal fiction, equity & legislation, in order to make law harmonious to social needs & change.

(i) By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it remains what it was. Thus, legal

fictions change the law according to the changing needs of the society without making any change in the letter of law. He thought fictions

should be abandoned in a society because they made the law more difficult to understand & harmonise legal order.

(ii) Equity is used to modify the law as a set of principles invested with higher sacredness than those of original law. Equity came to

remove the rigidity in law & to remove injustice, delay & other inconveniences. According to Maine, equity is a body of rules existing by

the side of the original civil law & founded on distinct principles.

(iii) The final stage comes with the legislation, which is the last effective instrumentality of quick social reform. Law can be enacted by

explicit declarations of intention incorporated in the language of legal enactments. Maine regarded it as the most desirable method of legal

change.
• In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by
status, i.e., his claims, duties, etc. are determined by law.  The march of progressive societies witnessed
the disintegration of status & the determination of legal condition of the individual by free negotiation
on his part.  The development of societies was summed up by Maine in the following famous phrase,
“If we employ status to signify the conditions only & avoid applying the term to said conditions, we
may say that the movement of the progressive societies has hitherto been a movement from status
to contract”.

• From a condition of society, in which all the relations of persons where summed up in the relation of
family, we seemed to have steadily moved towards a phase of social order in which all these relations
arose from free agreement of individuals.
• According to Maine, status is a fixed condition in which an individual finds himself without
reference to his will and of which he can’t divest himself by his own efforts.  The group, not
the individual, is the primary unit of social life.   With the progress of civilisation, this
condition gradually gives way to a social system based on contract.  This is the age of
the standardised contract & of collective bargaining (trade unions, business associations, etc.). 
Even the contracts, which an individual enters into in everyday life, have been standardised as
contract for water, electricity or contract for a carriage with a railway company.  The freedom
of contract is, thus, being curtailed every day.
•Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age. In India, the policy of ‘mixed economy’ has

assumed greater control over individual liberty & freedom. The State can impose reasonable restrictions in the interest of the public

{Art. 19(6)}. Pollock says that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity,

etc. are still matters of status & not of contract.

•However, in one sense, Maine’s theory still holds good. The trend of legislation in undeveloped or developing countries is to remove

personal disabilities, which arise due to membership of a class (status).

•On the whole, Maine presented a balanced view of history of law. Savigny had explained the relation b/w community & law, but Maine

went further & pointed out the link b/w the developments of both. His conclusions are based on comparative study of different systems

& hence their value is greater than other studies based on Roman Law exclusively. Influenced Friedmann, Dicey, etc.

•In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece of comparative legal research to a

legal theory inspired by principles of historical evolution. His great contribution to legal theory specially lies in the combination of what

is best in the theories of both Montesquieu & Savigny. Maine’s theory avoids the danger of an excessive disintegration of theoretical

laws of legal evolution. It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.
Difference b/w Historical & Analytical School :

Analytical School Historical School

1. Law is the command of the sovereign (created by sovereign). Law is found & not made.

2. Law is enforced by the sovereign. Law is independent of political authority & its enforcement.

3.Example of typical law is statute. Custom isn’t law, until its Example of typical law is custom. Custom is law

by itself. It does validity has been established by a judicial decision/by an Act of legislature. not require State

recognition to become a law.

4. Force of politically organised society is the basis of law. Law rests on the social pressure.

5. Judges find themselves to interpretation of statute. Judges to consider only history of legislation.

6. Applicable to developed countries – matured legal systems. Applicable to developing countries – primitive

legal institutions of society.