HISTORICAL SCHOOL OF JURISPRUDENCE6 min read

By– Vedant Kukreja

INTRODUCTION-

Jurisprudence is the hypothesis and study of law. It contemplates the beginning and idea of law. Law has an exceptionally intricate idea. Its arrangement shifts from one individuals to another. Everybody has an different comprehension of the law. For example, a law student and a legal advisor comprehend the law as an answer of every dispute. A common man comprehends that the purpose of the law is to punish them.

The Historical School of Jurisprudence is one of the important school of law that came after the Natural Law. This law accepts that law, by and large, is a result of years and years of historical development. This studies the ideas, concept as well as the origin of law. Besides, this law has an exceptionally complex concept. Its arrangement depends and differs with each individual. As such, everybody has an alternate understanding of the law. the historical school of law, the law is the aftereffect of past powers and past influencers. In addition, the law is assembled and developed on the overall awareness of individuals. The awareness, in any case, begins from the earliest starting point of the general public. Likewise, a portion of the components that influence this long historical development are as per the following:

  • Society and social customs.
  • Many religious and convention principles.
  • Also, the economic needs of society play a crucial role.
  • Last but not the lease, the needs, and desires of the citizens.

Creation of Historical School of Jurisprudence

Historical School of Law accepts that this law comes from the changing necessities of individuals in the society. In this way, propensities and customs are the fundamental sources of the Historical School. In any case, as indicated by Dias, “Historical School emerged as a response against the normal law theories”.

Here are a portion of the purposes behind the development of this school is:

  • It is the consequence of the natural school of law.

Natural school of law believes that the law begins from a divine supreme power. Another expression for Regular Law is Unceasing law. What’s more, it is likewise accepted to be in presence since the start of the world as far as we might be concerned.

Consequently, it intently connects with the ethical quality, lessons and goal of God. Henceforth, it is protected to say that the Indian constitution has huge importance of the regular law in its separate distributions.

On the contrary, historical school of Jurisprudence focuses on the formation of law by people not by some divine origin.

It conflicts with the convictions of the Analytical school of jurisprudence.

Another name for the Analytical school of jurisprudence is the Austinian School. John Austin was the maker and originator of this School of Jurisprudence. Further, the topic of the Analytical school of jurisprudence is positive law.

By positive law, it alludes to its broad spotlight on the beginning of law of the adjudicators, state and officials. Historical School additionally lays accentuation on the arrangement of law by individuals. Further, this arrangement is through traditions and propensities, and not by the adjudicators and superior power.

Jurists of Historical School of Jurisprudence

Montesquieu-

  • He was the most prominent jurist of the historical school of jurisprudence, and he was the one who first introduced the school. In his key contribution, titled “The Spirit of Law,” he explained that the law must change, but that it must do so while keeping society in mind and meeting its needs.
  • He depicted the law in relation to society, claiming that it is a blend or combination of climate, locality, and law. situation, accidents, or impostor.

Savigny

  • He is regarded as the founder of the historical school of law. He outlined his arguments for and against the codification of German law, which he later turned into an essay titled Vom Beruf.
  • He was not only the founder of the historical school of jurisprudence, but he was also a Roman law expert who pioneered the famous Volkgeist theory. In a simple sense, the principle incorporates the meaning that volk refers to people and geist refers to their collective will, so it refers to the people’s general will.
  • In his view, the law has a national character, which means that it does not have universal application, but rather is a representation of the country’s customs, condition, and needs, and it is only applied to the country.

Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school was carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine

  • The first work of Maine ‘Ancient Law’ was published in 1861.  
  • He also wrote Village Communities (1871),
  • Early History of Institutions (1875)  
  • Dissertations of Early Law and Custom (1883).

Maine researched the Indian legal system extensively while serving on the Governor–General of India’s Council from 1861 to 1869. Maine’s ideas were influenced by the best aspects of Savigny and Montesquieu’s theories, and he resisted the abstract and unreal Romanticism. Maine favored legislation and codification of law, unlike Savigny.

Stages of Development of Law

These laws were formed by Maine divides the divides of law into four stages:

  1. Law made by ruler: At first, the laws are under the ruler’s power. He claims he is working on God’s divine inspiration. The decisions they made were regarded as divine decrees.
  2. Customary Laws: The ruler’s orders were later transformed into customary laws. These laws were crafted like  a law from precedents by courts.
  3. Knowledge of Law to Minority (Priests): Later the power of rulers and original law maker weaken and the minorities especially religious, took the knowledge of administration and customs in their own hand. The law was controlled by these minorities like priests.
  4. Codification: At the fourth stage, the law was codified.

Georg Friedrich Puchta

Puchta was a jurist from Germany. He was a great jurist of the Historical School of Jurisprudence and a disciple of Savigny. The theories of Georg Friedrich Puchta were more realistic and improved than those of Savigny. From the beginning, he followed the creation and evolution of law. His theories were primarily concerned with situations in which there is a tension between general and individual will. When it comes to the conflict between general will and individual will, the state came into existence.  And find out the midway to resolve the conflict.

The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and formulate laws”. Both State and individual are the sources of law.

Contribution of Puchta

  • Puchta gave twofold aspects of human will and origin of the state.
  • Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.

 

 

Conclusion

Historical School of Jurisprudence describes the origin of law.  This school contends that the law was found not made. The principle wellspring of law is Lords Judgment, Customs and propensities. Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the ally of the Recorded School of Law. As per Sir Henry Maine, Montesquieu was the first jurist of historical school. Sir Henry Maine was the legal scholar of English Historical School. He was more legitimate and acknowledge the idea of Codification and enactment.

Savigny was the father of Historical school. He contended that Law resembles language and have a national character. Law isn’t universal. While Puchta improved the thoughts of Savigny and contended that both state and individuals are similarly significant and source of law.

READ ALSO- Customs and Precedent as a source of the law under Jurisprudence