introduction

• “Deals with the general principles governing the origin and development of law.”
- Salmond
• It is the history of the first principles and conceptions of legal system.
• Deals with law as it appears in its various forms at its several stages of development.
• Not synonymous with Legal History which sets forth the historical process by which a
particular legal system has grown and taken its present shape.
• Answers the following questions:
1. What was the source of a particular law?
2. Where from it was derived?
3. What was its shape and scope in past?
4. How and under what influences it came to develop?
5. Through what stages of evolution it passed to assume finally the shape in which it is final
today?
•
 Friedrich Carl von Savigny
• Father of the Historical School.
• Law is found, not made.
• Law is the spontaneous expression of the people and is the results of
organic growth, unconscious in nature.
• Law must be discovered from the customs of the people and not
enunciated by the legislator according to his own wisdom.
• Custom not only preceded legislation, but is also superior to it.
• Law is the emanation of the volksgeist (national spirit) of the people
(popular / common consciousness).
• The volksgeist is the standard by which the law should be justified.
However, it cannot be applied uniformly.
• The lawyer’s task is to bring out the people’s consciousness
correctly to shape, to be adopted by legislation.
• Law grows with the growth and strengthens with the strength of the
people, and finally dies away as the nation loses its nationality.
 Criticisms
• By Prof. Dias:
 Difficult to fix precision.
 Cannot be given universal application in a pluralistic society.
 Relevance is low in the modern society due to influence of volksgeist of one community
over another.
 Minimises the influence of minorities.
 The national character of law manifests more only in some branches, e.g. family law.
 It is not clear who the volk are whose geist is said to be determined.
• By Paton:
 some customs are based on the interests of a strong minority, and not on instinctive
sense of right in a community as a whole.
 Role of judges and jurists undermined.
 Conscious law reform discouraged.
• Lord Lloyd: the significance of legislations for modern society underrated.
 Sir Henry James Sumner Maine
• Founder of English Historical Jurisprudence.
• Development of law underwent 4 stages:
1. Law-making by the ruler believed to be acting under divine inspiration.
2. Crystallisation of habits into customary law.
3. Supersession of the ruler by an aristocratic class (religious in nature) who then
administer customary law.
4. Codification of law.
• The societies which did not progress beyond the 4th stage are called static
societies. The societies which progressed beyond codification, are the
progressive societies.
• After codification, 3 agencies developed in law:
1. Legal fiction (extends or changes law to meet the changing needs of the
society, while it was pretended that law remained unchanged.)
2. Equity (set of principles that are conceived to have a higher sacredness than
the original rule of law, and therefore supersedes law.)
3. Legislation (direct law-making by the authority or State)
 Georg Friedrich Puchta
• A disciple of Savigny, made improvements in the latter’s theory by
giving it a more logical structure.

• Traced the development of law from the evolution of human beings.

• The conflict between individual will and general will led to the need for
law.

• This led to formation of a State that resolved the conflict by

emphasising the general will and delimiting the sphere of individual
will.

• “Neither the people nor the state alone can make and formulate laws”