Historical School of Jurisprudence

Laws should change to match the changing needs of people. The Historical School of Jurisprudence believes that laws are made by people and should adapt to the evolving needs of society. People know their needs better than anyone else.

Historical School of Jurisprudence relies on the customs and habits of people, which change as their needs change. It’s also known as the Continental School of Jurisprudence.

The Historical School rejects the idea that judges create laws or that laws have a divine origin. To quote Salmond, “Historical jurisprudence is the part of legal history that deals with the general principles governing the origin and development of law and how various influences shape it. It also covers the origins and development of essential legal ideas and principles, which are fundamental to the philosophy of law. These same ideas and principles are explored from a different perspective by analytical jurisprudence. Historical jurisprudence is essentially the history of the foundational principles and concepts of the legal system.”

What is the Historical School of Jurisprudence?

The Historical School of Jurisprudence is a legal philosophy that emerged in the 19th century, emphasising the significance of historical and societal context in understanding and shaping legal systems. This school of thought contends that laws are not abstract, universal principles but are intricately connected to the customs, traditions and evolving consciousness of a society.

Key figures such as Friedrich Carl von Savigny, Montesquieu and Georg Friedrich Puchta played pivotal roles in developing this jurisprudential approach. Savigny’s concept of “Volksgeist” highlighted the collective will of the people in moulding the law, while Montesquieu emphasised the necessity of adapting laws to changing social and environmental conditions. Puchta refined and rationalised these ideas.

The Historical School of Jurisprudence acknowledges the value of legislation and codification while stressing the continuous evolution of laws to meet the needs of a progressing society. It has significantly enriched our comprehension of law as a dynamic reflection of the human experience across time, providing valuable insights into the development and transformation of legal systems.

Reasons for the Origin of Historical School of Jurisprudence

The Historical School of Jurisprudence believes that laws are created by people to meet their changing needs. This school primarily draws its ideas from the customs and habits of a society. It emerged as a response to the natural law theories.

There are a few reasons for the development of this school of thought:

Reaction to Natural Law

The Historical School arose as a reaction to the natural law perspective. The natural law theory asserts that laws originate from a divine power and have existed since the beginning of the world. It’s closely linked to moral and divine intentions. Some aspects of India’s constitution also reflect the influence of natural law.

People-Cantered Law

The Historical School of Jurisprudence emphasises that laws are formed by people themselves, not through divine origins. It opposes the ideas of the Analytical School of Jurisprudence, also known as the Austinian School, which was established by John Austin. The Analytical School focuses on positive law, examining its origins in judges, the state and legislators. In contrast, the Historical School underscores that law is shaped by people’s customs and habits, not by judges or higher authorities.

Jurists of Historical School of Jurisprudence

Montesquieu

According to Sir Henry Maine, the first legal scholar to use the Historical School of Jurisprudence in understanding legal institutions was Montesquieu. Montesquieu laid the groundwork for the historical school of thought in France. He believed that it was not meaningful to debate whether a law was good or bad in isolation, as the quality of a law depended on the social, political and environmental conditions of a society.

Montesquieu’s conclusion was that laws were shaped by factors such as climate, local circumstances, accidents, or even deceit. He argued that laws should adapt to the changing needs of society. However, Montesquieu did not establish a specific theory or philosophy regarding the relationship between law and society. Instead, he proposed that laws should be responsive to the unique requirements of a place and should evolve over time to meet the changing needs of the people.

One of Montesquieu’s most well-known works is his book ‘The Spirit of Laws,’ in which he expressed his belief in Enlightenment political ideas and advocated for the adaptation of laws to suit the evolving needs of both individuals and society.

Savigny

Savigny is often credited as the pioneer of the Historical School of Jurisprudence. He argued that the coherence of a legal system is frequently misunderstood due to a lack of understanding of its history and origins. According to Savigny, the law is a product of its time, with its origins rooted in human nature’s predisposition to form societies. It evolves into various forms based on the influences it encounters.

Savigny believed that the law could not be borrowed from external sources; instead, it primarily stems from the collective consciousness of the people. He held the view that a state’s law thrives as its national identity strengthens and withers when national identity weakens within the state.

Friedmann summarised Savigny’s theory on Historical School of Jurisprudence as follows:

Law Grows Like Language: Law, like language, naturally evolves over time.

• Not Universally Valid: Law cannot have universal applicability or be constructed solely on rational or eternal principles.
• Sui Generis: Law is unique and has its own national character. It cannot be universally applied and varies according to the people it governs.
• Discovered, Not Made: Law is discovered based on the consciousness, customs and beliefs of the people.

Savigny’s concept of “Volksgeist” or “national character” implies that law is the result of the general consciousness and will of the people. It serves as a caution against hasty legislation and the introduction of radical, abstract ideas into the legal system unless they align with the general will of the populace.

Savigny essentially advocated that law should not be created through deliberate legislation but should naturally arise from the collective consciousness of the people.

However, Savigny’s views faced criticism:

• Charles Allen: Allen argued against Savigny’s notion that law should be based on customs, asserting that customs are often driven by the interests of powerful ruling classes rather than the collective consciousness of the people. For example, the practice of slavery in certain societies was upheld by powerful classes, not a reflection of common consciousness.
• Prof. Stone: Prof. Stone criticised Savigny for neglecting the effectiveness of legislation and planned legal and social changes. He believed that Savigny placed too much emphasis on the consciousness of the people. In some cases, effective legislation is necessary to bring about significant social change, as seen in India’s abolition of Sati and promotion of widow’s remarriage, which were driven by powerful and effective legislation.

Sir Henry Maine

Sir Henry Maine is recognised as the founder of the English Historical School of Law and he continued the ideas of the Historical School of Jurisprudence, as established by Savigny and Montesquieu, in England.

Some of his major works include:

• Ancient Law (1861): This was Maine’s first significant work, which explored the development of legal systems over time.
• Village Communities (1871): In this work, Maine delved into the concept of village communities and their legal and social structures.
• Early History of Institutions (1875): This book examined the historical evolution of various institutions, including legal ones.
• Dissertations on Early Law and Custom (1883): Maine’s dissertations further explored the evolution of early legal systems and customs.

Maine had a deep understanding of the Indian legal system because he served as a law member in the Council of the Governor-General of India from 1861 to 1869. His ideas incorporated elements from the theories of Savigny and Montesquieu, while avoiding the abstract and unrealistic aspects of Romanticism.

Unlike Savigny, Maine favoured legislation and the codification of law. He described the development of law in four stages:

• First Stage: Rulers are believed to act under divine inspiration and laws are made based on their commands. The king’s judgment is seen as the judgment of God and the king is an executor of divine judgments rather than a law-maker.
• Second Stage: The king’s commands gradually transform into customary law, which prevails among the ruler or majority class. Custom takes precedence over the king’s authority.
• Third Stage: The knowledge and administration of customs shift to a minority class due to the weakening of the original law-making power. The ruler is replaced by this minority class, which gains control over the law.
• Fourth Stage: In the final stage, the law is codified and officially promulgated.

Maine classified societies into two categories:

• Static Societies: These societies do not progress beyond the era of codified laws. They do not evolve their legal structures further.
• Progressive Societies: These societies continue to progress beyond the codification stage. They develop their legal systems using instruments such as legal fiction, equity and legislation:

Legal Fiction: Legal fiction allows changes in the law to align with societal needs without altering the letter of the law. However, it can make the law complex and challenging to understand.

Equity: Maine described equity as a set of rules existing alongside the original civil law, founded on distinct principles. Equity helps to address rigidity and injustice in the legal system.

Legislation: According to Maine, legislation is the most effective and desirable method of legal change. Laws are enacted officially and become operative through legislation.

Georg Friedrich Puchta

Georg Friedrich Puchta was a prominent German jurist who belonged to the Historical School of Jurisprudence and was a disciple of Savigny. Puchta is often recognised for refining and enhancing the ideas of Savigny. His focus lay in tracing the development and evolution of law right from its inception. His primary concern revolved around situations where conflicts arose between the general will of society and individual will, leading to the emergence of the state as a means to reconcile these conflicts.

One of the central concepts of Puchta’s ideas was that “neither the people nor the state alone can create and formulate laws.” He emphasised that both the state and individuals contribute to the formation of law.

Puchta’s contributions can be summarised as follows:

• Two Aspects of Human Will and the Origin of the State: Puchta explored the duality of human will, highlighting the tension between the general will of society and the individual will. He argued that the state’s existence is a result of attempting to find a middle ground to resolve these conflicts.
• Refinement of Savigny’s Ideas: While Puchta was a disciple of Savigny, he improved upon Savigny’s views and made them more logically coherent. His contributions built upon the foundation laid by Savigny, enhancing and refining the concepts of the Historical School of Jurisprudence.

Conclusion

The Historical School of Jurisprudence, spearheaded by influential thinkers such as Savigny, Montesquieu and Puchta, has left an indelible mark on legal philosophy. Historical School of Jurisprudence emphasises the historical and societal context in which laws develop and evolve. It asserts that laws are not abstract principles but are deeply rooted in the customs, traditions and consciousness of the people.

Savigny’s concept of “Volksgeist” underscored the importance of the collective will of the people in shaping the law. Montesquieu highlighted the need for legal adaptation to changing social and environmental conditions. Puchta’s contributions refined and rationalised these ideas.

The Historical School of Jurisprudence’s influence extends to recognising the value of legislation and codification while stressing the ongoing evolution of laws to meet the needs of a progressing society. In essence, this school has enriched our understanding of law as a dynamic reflection of the human experience throughout history.