HISTORICAL SCHOOL

• Reaction against Natural Theory.

• An evolutionary approach which insisted that law of
nation is conditioned by its past customs , traditions,
practices and social and geographical environment
and not by whims of law maker.
• Law cannot be separated from people and society but
it is a product or growth conditioned by peculiar
traditions and culture.
• Montesquieu laid down the foundation of Historical
School. ( SPIRIT OF LAWS).
FRIEDRICH KARL VON SAVIGNY
Born at Famous Works- History of
Roman Law in Middle Ages,
Frankfurt in System of Modern Roman
Law, Law of Possession. (Das
Germany. Recht des Bestiges).
THIBAUT’S GERMAN CODE

NAPOLEONIC CODE ( FRENCH CIVIL CODE).French Revolution.

Napolean wanted to bring Germany under France.

Germans found it insulting.

Unification of Germany.

Germany for Germans.

THIBAUT’S GERMAN CODE

POLITICAL UNIFICATION OR LEGAL UNIFICATION.

PROF. THIBAUT PREPARED GERMAN CODE.

SAVIGNY OPPOSED IT.

PAMHPLET- VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE.

DELAYED CODIFICATION OF LAW IN GERMANY FOR MORE THAN 50 YEARS.

SAVIGNY’S THEORY

• VOLKGEIST ( Law is product of general consciouness and

spirit of people).
• Law is found not made.
• Law grows with society.
• Earlier development of law is because of needs of
community. After reaching certain level of civilisation ,
other activities takes place.
• Favours Roman Law. Considered Roman Law for
development of unified system of law in Germany.
• Importance to Customs.
HISTORICAL COMPARATIVE METHOD

• Sir Henry Maine is the fore runner of this approach.

• The jurists made comparative study of the legal
institutions of different communities to trace
evolution of law.
• Did not believe in mere compilation of
information ,rules , concept etc.
• Analyze variations in existing laws within and
outside the country in order to reform their legal
system.
SIR HENRY MAINE(1822-1888)

• Social Darwinist.
• Professor of Civil Law in University of
Cambridge.
• His famous works are:-
ANCIENT LAW
VILLAGE COMMUNITIES
EARLY HISTORY OF INSTITUTIONS
DISSERTATION ON EARLY LAW AND CUSTOM
EVOLUTION OF EARLY PRIMITIVE SOCITIES.

• Development of law Do Becau

in early societies have
se of
been Pater min pattern.
almost on an identical blood
Familia pattern. ated
• Patriarchal relatio
s(eldes nship
t male enti perso
memb
er)
re n
fami acquir
ed
ly status
 CONTD…
COMMUNI
TY
Individual member
TRIBE
Had no separate
Existence.
GENS

FAMILY
GROUPS

PATER
FAMILIAS
 Status to contract
• Freedom of individual. Contractual relationship
between individuals were formed.
• No dependancy on head of family. Individuals
can take their independent decisions.
• Thus a free society is formed with freedom of
individuals.
• Henry Maine said that ‘movement of progressive
societies has hitherto been from status to
contract.
Contract to status

• With the development new problems arose for

example poverty, unemployment,hunger etc.
• Contract between captialist and labour led to
exploitation of labour class.
• This led to emergence of Trade Unions.
• Power of group bargaining.
• Role of State as Welfare State. Responsibilty of state to
secure justice,equality,liberty and fraternity.
• Greatest interference of State in individual’s activities.
FOUR STAGES OF DEVELOPMENT OF LAW

• DIVINE LAW-THEMES(GODDESS OF JUSTICE)

• CUSTOMARY LAW
• PRIESTLY CLASS
• CODIFICATION
LAW’S DEVELOPMENT THROUGH LEGAL FICTION,EQUITY
AND LEGISLATION
• STATIC SOCIETIES- end to development.
• Changes through conscious desire of development
• Progressive Societies- Development through Legal
Fiction,Equity and Legislation.