Historical school of jurisprudence

Introduction

The Historical School of Jurisprudence is an important school of legal thought which explains that law is not created suddenly by the State or legislators. Instead, it develops gradually over time through the customs, traditions, culture, beliefs, and social practices of the people.

This school believes that every society has its own history and way of life, and therefore its legal system also develops according to its historical and social conditions. Laws cannot be imposed artificially; they should reflect the values and customs of the society in which they operate.

The Historical School emerged during the 19th century as a reaction against both the Natural School and the Analytical School. While the Natural School based law on morality and the Analytical School considered law as the command of the sovereign, the Historical School argued that history is the real source of law.

Its ideas greatly influenced the development of customary law, constitutional law, and comparative legal studies. Even today, customs and traditions continue to play an important role in shaping legal systems across the world.

Meaning of the Historical School

The Historical School believes that law is the result of the historical development of society. It is not created by any single person or authority but evolves naturally through the customs, habits, traditions, and collective consciousness of the people.

According to this school, laws become effective only when they reflect the needs, culture, and values of society. Therefore, legislation should respect the historical development of law instead of ignoring it.

Definitions

Friedrich Carl von Savigny stated that:

"Law grows with the growth of the people and strengthens with the strength of the people."

According to Savigny, law develops naturally along with society and reflects the common consciousness of the people.

Sir Henry Maine explained that the development of law is closely connected with the social evolution of society. He described this development through his famous theory of "Status to Contract."

Main Characteristics of the Historical School

The Historical School believes that law develops gradually and is not created overnight. It considers custom as the primary source of law and emphasizes that legal rules should reflect the history, culture, traditions, and social values of the people. According to this school, every nation develops its own legal system based on its historical experiences, and therefore the same laws cannot be applied equally to every society. It also opposes arbitrary legislation and supports the natural growth of law over time.

Major Exponents of the Historical School

The Historical School of Jurisprudence was developed by several eminent jurists who believed that law evolves naturally through the customs, traditions, and historical development of society. The most important exponents of this school are Friedrich Carl von Savigny, Sir Henry Maine, and Georg Friedrich Puchta.

Montesquieu (1689–1755)

Montesquieu was a French philosopher and political thinker whose ideas greatly influenced the Historical School of Jurisprudence. He believed that laws should not be the same for every country because they are shaped by the conditions and character of the society in which they operate.

1. Law Depends on Social Conditions

Montesquieu argued that laws should be framed according to the social, political, economic, and cultural conditions of a country. A law that is suitable for one nation may not be appropriate for another.

2. Influence of Environment

According to Montesquieu, factors such as climate, geography, religion, customs, traditions, and the way of life of the people have a significant impact on the development of law.

3. Law Reflects Society

He believed that law should reflect the nature and needs of society rather than being imposed uniformly on all nations. Therefore, every legal system develops according to its own historical and social background.

4. Contribution

Montesquieu emphasized that law is closely connected with the environment and culture of society. His ideas influenced the Historical School and helped establish the view that law evolves according to the conditions and history of a nation.

Friedrich Carl von Savigny (1779–1861)

Friedrich Carl von Savigny was a German jurist and is regarded as the Founder and Father of the Historical School of Jurisprudence. He strongly opposed the idea that law can be created suddenly by legislation. According to him, law develops gradually with the growth of society.

1. Volksgeist (Spirit of the People)

Savigny's most important contribution is the concept of Volksgeist, which means the "Spirit of the People." According to him, every nation has its own culture, traditions, language, beliefs, and way of life. Law should reflect this collective spirit rather than being imposed by legislators.

2. Law Develops Naturally

Savigny believed that law is not made by lawmakers alone. It grows naturally through customs, traditions, and the continuous practices of society over a long period.

3. Opposition to Codification

Savigny opposed the immediate codification of German law. He argued that laws should not be written into a code until they have fully developed through the customs and traditions of the people.

4. Importance of Custom

According to Savigny, custom is the primary source of law. Customs accepted and followed by society gradually become legal rules and later form part of the legal system.

5. Contribution

Savigny laid the foundation of the Historical School and highlighted the importance of customs, traditions, and the historical development of law. His theory greatly influenced comparative law, customary law, and modern legal philosophy.

Sir Henry Maine (1822–1888)

Sir Henry Maine was an English jurist, legal historian, and one of the leading exponents of the Historical School of Jurisprudence. He studied the historical development of legal systems and explained how law changes with the progress of society. His ideas are mainly expressed in his famous book Ancient Law (1861).

1. Theory of "Status to Contract"

Sir Henry Maine's most important contribution is his theory of "Status to Contract." According to him, ancient societies were based on status, where a person's rights and duties depended upon birth, family, caste, or social position. As society progressed, legal relationships gradually came to depend on contract, where individuals were free to create rights and obligations through mutual agreement.

2. Law Develops with Society

Maine believed that law is not static but changes continuously with the development of society. As social, economic, and political conditions change, the legal system also evolves to meet new needs.

3. Importance of Historical Study

He emphasized that the study of history is essential for understanding the origin and growth of law. According to Maine, the present legal system can be properly understood only by examining its historical development.

4. Comparative Method

Maine compared the legal systems of different countries and societies to explain how law evolves over time. His comparative approach greatly contributed to the study of legal history and comparative jurisprudence.

5. Contribution

Sir Henry Maine explained the historical evolution of law through his famous theory of "Status to Contract." His work made the Historical School more practical and influenced the study of comparative law, legal history, and social development.

Georg Friedrich Puchta (1798–1846)

Georg Friedrich Puchta was a German jurist, a disciple of Friedrich Carl von Savigny, and one of the leading exponents of the Historical School of Jurisprudence. He accepted Savigny's theory of Volksgeist (Spirit of the People) and further refined and developed it by giving it a more systematic and scientific explanation.

1. Disciple of Savigny

Puchta was a devoted follower of Savigny. He agreed that law originates from the Volksgeist or the common consciousness of the people and expanded Savigny's ideas in a more organised manner.

2. Refinement of Volksgeist Theory

While Savigny explained that law grows naturally from the customs and traditions of society, Puchta refined this theory by explaining how these customs gradually develop into recognised legal principles through jurists and legal institutions.

3. Importance of Customs

Like Savigny, Puchta believed that custom is the primary source of law. According to him, customs accepted by society gradually become legally binding and later receive recognition from the State.

4. Systematic Development of Law

Puchta explained that law develops in a systematic way. It begins with customs, is refined by jurists, and is ultimately recognised through legislation and judicial decisions.

5. Contribution

Puchta strengthened and refined Savigny's Historical School by presenting a clearer and more scientific explanation of the development of law. His work played an important role in establishing the Historical School as one of the major schools of jurisprudence.

Merits of the Historical School

The Historical School has made an important contribution to the development of legal philosophy. Its major merits are as follows:

1. Recognises the Historical Development of Law

The Historical School explains that law develops gradually through the customs, traditions, and historical experiences of society rather than being created suddenly by legislation.

2. Importance of Customs

It recognises custom as one of the primary sources of law. Many modern legal systems still recognise customs as a valid source of law.

3. Reflects Social Values

According to this school, laws should reflect the culture, beliefs, and traditions of the people. This makes laws more acceptable and effective in society.

4. Opposes Arbitrary Legislation

The Historical School discourages the enactment of laws that are against the customs and traditions of society. It believes that legislation should respect the historical development of law.

5. Influenced Modern Jurisprudence

The ideas of Savigny, Maine, and Puchta have greatly influenced comparative law, legal history, customary law, and constitutional development.

6. Practical Approach

The school recognises that law changes with society and develops naturally according to the needs of the people, making its approach realistic and practical.

Demerits of the Historical School

Despite its contributions, the Historical School has been criticised on several grounds.

1. Gives Excessive Importance to Customs

The school places too much emphasis on customs, even though some customs may become outdated, unjust, or harmful over time.

2. Underestimates Legislation

It gives less importance to legislation, although modern societies mainly depend on statutes enacted by the legislature.

3. Slow Development of Law

If law develops only through customs and traditions, legal reforms may become very slow and fail to meet the changing needs of society.

4. Ignores Individual Rights

The Historical School focuses more on society and traditions than on the protection of individual rights and freedoms.

5. Not Suitable for Modern Society

Modern societies require quick legal reforms to deal with technological, economic, and social changes. Depending only on historical development is not always practical.

Criticism of the Historical School

Although the Historical School has made an important contribution to jurisprudence, it has been criticised by many jurists for giving excessive importance to customs and historical development.

1. Excessive Importance to Customs

The Historical School considers customs as the primary source of law. Critics argue that many customs may be outdated, unreasonable, or unjust and therefore should not always be treated as law.

2. Neglect of Legislation

The school gives less importance to legislation. In modern democratic countries, however, most laws are created by the legislature to meet the changing needs of society.

3. Slow Legal Development

If law develops only through customs and traditions, legal reforms become slow. Society changes rapidly, and the law must also change accordingly.

4. Ignores Social Reform

Some customs and traditions may promote discrimination or inequality. Critics argue that such customs should be abolished through legislation rather than preserved in the name of history.

5. Incomplete Theory of Law

The Historical School mainly explains the historical origin of law but does not fully explain the role of justice, morality, or the State in the development of law.

Modern Relevance of the Historical School

The Historical School continues to influence modern legal systems by highlighting the importance of customs, traditions, and the historical development of law. Even today, many legal systems recognise customary law as a valid source of law.

The ideas of this school are particularly important in comparative law, legal history, constitutional law, and personal laws, where customs and long-established practices continue to play a significant role.

Although legislation is now the primary source of law, lawmakers often consider the customs, culture, and traditions of society while framing new laws. This ensures that laws are accepted by the people and remain effective in practice.

Thus, the Historical School reminds us that law should not be separated from the society in which it develops. Its principles continue to help jurists understand the relationship between law, history, and social development.

Conclusion

The Historical School of Jurisprudence explains that law is the product of the historical development of society. It believes that customs, traditions, and the collective consciousness of the people play a vital role in the growth of law.

The contributions of Savigny, Sir Henry Maine, and Puchta have made this school one of the most influential theories of jurisprudence. Although it has been criticised for giving excessive importance to customs, it has significantly contributed to the study of legal history, customary law, and comparative jurisprudence. Even today, its principles continue to influence modern legal systems throughout the world.

Previous Year & Important Questions (PYQs) 

Long Answer Questions

1. Explain the Historical School of Jurisprudence.

2. Discuss Savigny's Theory of Volksgeist.

3. Explain Sir Henry Maine's Theory of Status to Contract.

4. Discuss the contribution of Puchta to the Historical School.

4. Critically examine the Historical School of Jurisprudence.

Short Answer Questions

1. What is the Historical School of Jurisprudence?

2. What is Volksgeist?

3. What do you mean by Status to Contract?

4. Write a short note on Savigny.

5. Write a short note on Sir Henry Maine.

6. Who was Puchta?