December 3, 2020

Law is found and cannot be made- In light of Historical school

“The Historical school of Jurisprudence manifests the belief that like men has past so does the law.”

Jurisprudence is a theory and study of law. It lays emphasis on the origin and concept of law. Historical school of Jurisprudence argues that the law is the collaborative outcome of social custom, economic needs, conventions, religious principles, and relations of the people with society over time. It is the outcome of years of historical development. According to this theory, the law is the product of the forces and influence of the past. Law is based on the general consciousness of people which started from the very beginning of the society.

The followers of this school argued that law is found and not made. Whereas on the other hand, the natural school law believes that the origin of law is from superior authority and have some divine relevance. In this fast-growing world, the needs and nature of people change with time. It follows the concept of man-made laws.[1] They believe in the principle that ‘Law is formulated for the people and by the people’. Hence, the law should also evolve according to the changing needs of the people with time and circumstances.

“That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history.”

Salmond

The primary objective of historical Jurisprudence is to deal with the general principles governing the origin and development of law.[2] It further studies the influences that affect the law and its implementation. Secondly, it deals with the origin and development of those legal conceptions and principles which are so fundamental and essential in their nature that they deserve a place in the philosophy of law.[3]

Origin of Historical School of Jurisprudence

The basic source of the Historical School of Jurisprudence is the habits and custom of people which has come around from many years of inheritance. There has been time to time improvisations and changes happening according to the requirements and needs of people. This school rejects the ideas of the formation of law by judges and its origin from some divine relevance.[4]

There were two prominent reasons for the emergence of this school-

1. It came as a reaction to the natural school of law.

The natural school of law believes that the law is originated from some divine power. It is believed to exist since the beginning of the world. It is closely associated with the morality and intention of God. The Indian constitution has also some relevance to the natural law in its constitution.

2. It opposes the ideology of the analytical school of jurisprudence.

The analytical school of jurisprudence was established by John Austin. The subject matter of the analytical school of Jurisprudence is positive law. It focuses on the origin of law which comes from the judges, state, and legislators. Meanwhile historical School emphasize on the law formulation by people through customs and habits, not by the judges and superior authority.

Jurists of Historical School of Jurisprudence

1. Montesquieu

It is said that Montesquieu was the 1st Jurist to adopt the historical method of understanding the legal institution. He laid the foundation of the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad because the law depends on social, political, and environmental conditions prevailing in the society.[5]

“Law is the creation of the climate, local situation, accident or imposture”.[6]

He believed that law must change according to the changing needs of society. However, he did not establish any theory or philosophy of the relation between the law and society.[7] He suggested that the law should answer the needs of the place and should change according to the time, place, and needs of the people.

2. Savigny

Savigny is recognized as the father of the Historical school. He argued that the coherent nature of the legal system is usually due to the failure to understand its history and origin. He believed that the law cannot be borrowed from outside and the main source of law is the consciousness of the people. He was of the view that the law of the state grows with the strengthening of the state nationality and law dies or fades away when nationality loosens its strength in the state.[8]

It was Savigny who made it even clearer that “Law is found or discovered not made.” It can’t be made artificially like the invention of an object. Law is found on the basis of consciousness, customs, and beliefs of the people.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

· Charles Allen

Charles Allen criticized Savigny’s view that law should be found or based on the customs. He asserted that customs are not the outcome of the common consciousness of people but the result of the interest of a powerful and strong ruling class. For example, slavery was recognized and prevailed in certain societies by the powerful classes of society.

· Prof. Stone

Prof. Stone criticized Savigny’s theory and asserted that he ignored the efficiency of the legislation, planned law, and social change and had overemphasized the consciousness of people. For example; in India, the abolition of Sati and the widow’s remarriage are brought in to change because of powerful and effective legislation. If we have relied upon the customs and consciousness of people, then that evil practice will still be in practice.

3. Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school was further promoted in England by Sir Henry Maine.[9] Maine studied the Indian legal system deeply as he was a law member in the Council of the Governor–General of India between the year 1861 to 1869. Maine incorporated the best things in the theories of Savigny and Montesquieu and he avoided the abstract and unreal Romanticism materials. Maine was in favour of legislation and codification of law, unlike Savigny.[10]

He described the development of law in four stages:

  • In the first stage, rulers were believed to be acting under divine inspiration. The laws were made on the command of the rulers. The judgment of the king was considered to be the judgment of God or some divine body. King was considered to be merely an executor of the judgment of God and not the law-maker.
  • In the second stage, the commands of King were converted into customary law. The custom prevails in the nearby land and was administered and governed by the majority class of the royal family.[11]
  • In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the law-making power of the original law-makers. Eventually, the ruler is superseded by the minority class who obtain control over the law.[12]
  • In the Fourth and last stage, the law is codified and promulgated.

4. Georg Friedrich Puchta

Georg Friedrich Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of the Historical school of Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. He traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between the general will and individual will. In the conflict between the 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 equally important for the formulation of the law.

Conclusion

There have been numerous theories in regard to the origin of the law. Every philosopher comes with a new, though logical reasoning about the inception of law formulation. When there is a proposition of a new look at the Historical School of jurisprudence, I am not suggesting that it should displace any of the other schools on the market. What I am suggesting is that it provides explanations and critiques in a number of cases where alternative schools fail to do so.

In short, there is good reason to give the doctrines of the Historical School a respected, although not an exclusive place, among the principles of jurisprudence.

References

[1] Saurav Bhola, Historical School of Jurisprudence, IPleaders, (May 22, 2020 18:09), https://blog.ipleaders.in/historical-school-of-jurisprudence/.

[2] Ibid.

[3] Narayan Gupta, Historical School of Jurisprudence, Toppr,(May 22, 2020 17:45), https://www.toppr.com/guides/legal-aptitude/jurisprudence/historical-school-of-jurisprudence/.

[4] Supra note (3).

[5] Advocate Mr. Ambransh Bhandari, Schools Of Jurisprudence, B & B Associates LLP, (May 23, 2020 18:56), https://bnblegal.com/article/schools-of-jurisprudence/.

[6] Words of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, 1689.

[7] Supra note (5).

[8] F. P. Walton, The Historical School of Jurisprudence and Transplantations of Law, Journal of Comparative Legislation and International Law, Vol. 9, No. 4 (1927), pp. 183-192.

[9] Robert E. Rodes, On the Historical School of Jurisprudence, 49 Am. J. Juris. 165 (2004).

[10] Ibid.

[11] Ibid.

[12] Supra note (9).


Author: Shourya Shubam (CNLU)

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