Law Is Found and Cannot Be Made – In Light of Historical School of Jurisprudence

The statement “law is found and cannot be made” reflects the central idea of the Historical School of Jurisprudence that law develops naturally from the customs, traditions, history and common consciousness of society. It is most closely associated with Friedrich Carl von Savigny. According to this approach, law is not simply created by legislators; it evolves gradually with society and is later recognised, organised and enforced by legal institutions.

What Does “Law Is Found and Cannot Be Made” Mean?

The expression “law is found and cannot be made” means that law does not originate only from the deliberate commands of a legislature or sovereign authority. According to the Historical School of Jurisprudence, law already exists in the social life of a community through its customs, usages, traditions, beliefs and accepted practices.

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In this sense, lawmakers do not always create law from nothing. They often discover, recognise and formalise rules that have already developed within society.

The statement therefore highlights the difference between the social origin of law and its formal legal recognition.

A rule may first develop as a social practice. It may then become a custom, acquire a sense of obligation and eventually receive recognition from courts or legislatures. The legal rule is therefore “found” within society before it becomes formally expressed through the legal system.

This idea forms one of the most important principles of the Historical School of Jurisprudence.

What Is the Historical School of Jurisprudence?

The Historical School of Jurisprudence is a school of legal thought which explains law through its historical development.

It argues that law cannot be properly understood merely by examining statutes, commands or judicial decisions. Law must also be studied in the context of the society in which it developed.

According to the Historical School, law is influenced by:

• customs and traditions followed by the community;
• political and social institutions;
• historical experiences;
• religious and cultural beliefs;
• economic conditions;
• collective social consciousness; and
• gradual development of legal institutions.

The Historical School became particularly influential in Europe during the eighteenth and nineteenth centuries.

Its major thinkers include:

• Gustav Hugo
• Friedrich Carl von Savigny
• Georg Friedrich Puchta
• Sir Henry Maine

Among them, Savigny is most strongly associated with the proposition that law develops organically from society.

Why Did the Historical School of Jurisprudence Develop?

The Historical School developed partly as a reaction against theories which treated law as something that could be created purely through reason or legislative authority.

During the eighteenth and nineteenth centuries, several thinkers believed that universal legal principles could be developed through reason and then imposed through codification.

Historical jurists disagreed with this approach.

They argued that every society develops differently. Its laws are shaped by its own history, customs, political development and social institutions. Therefore, a legal system cannot simply be designed in isolation from the society in which it operates.

The Historical School consequently shifted attention from the question:

“Who makes law?”

to the broader question:

“How does law develop?”

Its answer was that law develops gradually through the historical life of a community.

Savigny and the Idea That Law Is Found

Friedrich Carl von Savigny was one of the most influential thinkers of the Historical School of Jurisprudence.

Savigny rejected the idea that law is merely the product of legislative will. According to him, law develops naturally from the collective consciousness of the people.

He believed that legal institutions are closely connected with the history, culture and traditions of society.

Law does not suddenly appear when a legislature passes an enactment. Its foundations often exist much earlier in social practices and commonly accepted norms.

Savigny therefore regarded law as an organic product of social development.

His theory may be understood through three basic propositions:

1. Law develops naturally within society.
2. Law reflects the common consciousness of the people.
3. Legislation should generally recognise and develop existing legal principles rather than arbitrarily impose rules disconnected from society.

What Is Volksgeist in Savigny’s Theory?

The concept of Volksgeist is central to Savigny’s Historical School of Jurisprudence.

Volksgeist is a German expression commonly translated as the “spirit of the people” or “common consciousness of the people.”

According to Savigny, every community develops certain shared traditions, values, customs and ways of organising social life. These collective characteristics influence the development of law.

Law therefore emerges from the Volksgeist.

It is not necessarily created by one individual, monarch, judge or legislature. Instead, it develops gradually as part of the common life of the community.

For Savigny, law was closely connected with national character.

Different societies have different historical experiences. Therefore, their legal systems may also develop differently.

A rule suitable for one society may not automatically be suitable for another because legal institutions grow within particular historical and cultural conditions.

How Does Law Develop According to Savigny?

Savigny believed that law develops gradually rather than through sudden creation.

The development can broadly be understood in stages.

Law Begins With Social Practices

Members of a community repeatedly follow certain practices in dealing with one another.

These practices may concern matters such as:

• family relations;
• property;
• inheritance;
• trade;
• community obligations; and
• settlement of disputes.

At this stage, the rules may not exist in written form.

Practices Develop Into Customs

When a practice is consistently followed over a long period and is accepted by the community as binding, it may develop into a custom.

Custom is therefore extremely important in the Historical School.

Historical jurists considered customs among the earliest forms through which law develops.

Customs Acquire Legal Recognition

Courts or other institutions may later recognise established customs as legally enforceable.

At this stage, an existing social practice acquires formal legal authority.

Jurists Systematise the Law

As society becomes more complex, legal experts study, interpret and organise existing legal principles.

Jurists give technical form to legal rules that originally emerged from social life.

Legislation May Formally Express the Law

Eventually, a legislature may enact statutes incorporating principles that already exist in customary or judicial law.

From the Historical School’s perspective, such legislation does not necessarily represent the original birth of the legal principle.

It may simply give formal expression to an existing rule.

Why Did Savigny Compare Law With Language?

Savigny famously explained the development of law by comparing it with the development of language.

Language is generally not invented by a legislature or ruler. It develops naturally over generations.

Words, meanings, expressions and grammatical practices gradually evolve through social usage.

Savigny believed that law develops in a similar manner.

Both law and language:

• develop gradually;
• arise from collective social life;
• reflect historical development;
• change as society changes; and
• cannot always be artificially imposed.

This comparison makes the meaning of “law is found and cannot be made” easier to understand.

A legislature may regulate language in certain contexts, but it does not ordinarily create the entire language used by society.

Similarly, legislators may enact statutes, but the underlying legal ideas often arise from social development.

Why Is Custom Important in the Historical School?

Custom occupies a central position in the Historical School of Jurisprudence because it demonstrates how law can emerge without deliberate legislation.

A custom begins with repeated conduct.

When a community consistently follows a particular practice and considers that practice obligatory, it may acquire normative force.

Over time, courts may recognise such customs as legal rules.

Historical jurists therefore argued that law existed even before organised legislatures emerged.

Ancient communities were regulated by customs relating to:

• marriage;
• succession;
• property;
• family obligations;
• community leadership; and
• dispute settlement.

These rules were not necessarily enacted through written statutes.

They developed through collective social acceptance.

This historical reality supports the argument that law may be “found” in society rather than entirely “made” by political authority.

What Is the Role of the Legislature According to the Historical School?

The Historical School does not necessarily suggest that legislatures have no role.

Its main argument is that legislative power should not be viewed as the only source of legal development.

A legislature may perform several important functions.

Giving Formal Recognition to Existing Rules

Legislation may convert long-established customs or judicial principles into statutory rules.

Clarifying Uncertain Law

Where different customs or judicial decisions create uncertainty, legislation may provide a clear legal rule.

Systematising Legal Principles

Legislatures may organise scattered legal principles into a coherent statute or code.

Reforming Existing Law

Modern legal systems also recognise that legislation may reform outdated social practices.

This is where the strict historical proposition requires qualification.

Although law often develops through historical forces, modern legislatures are also capable of deliberately creating new legal rules.

Savigny’s Opposition to Codification

Savigny’s ideas became especially prominent during the nineteenth-century debate over the codification of German law.

German jurist Anton Friedrich Justus Thibaut supported the creation of a unified German civil code.

Savigny opposed immediate codification.

His objection was not necessarily that codification was always undesirable. Rather, he believed that Germany was not yet ready for such codification.

According to Savigny, law must develop naturally through the historical experiences of the people.

A code prepared prematurely might freeze legal development and impose artificial principles that did not accurately reflect existing social and legal traditions.

Savigny believed that proper codification required:

• mature legal institutions;
• sufficiently developed legal scholarship;
• understanding of existing customary law; and
• careful study of the historical development of legal principles.

Therefore, codification should follow legal development rather than attempt to replace it.

What Role Do Jurists Play in the Development of Law?

Savigny recognised that the character of law changes as society becomes more complex.

In early societies, law may exist mainly through customs and social practices.

As society develops, legal rules become more specialised.

At this stage, jurists and legal scholars play an important role.

They:

• interpret customary rules;
• organise legal principles;
• resolve inconsistencies;
• develop legal concepts;
• explain the relationship between different rules; and
• transform informal law into technically sophisticated legal doctrine.

Savigny therefore recognised two broad dimensions of legal development.

Political Element of Law

The political element consists of law existing within the common consciousness of the people.

It reflects customs, traditions and social beliefs.

Technical Element of Law

The technical element arises when professional jurists develop and refine legal principles.

Law therefore remains connected with society but becomes increasingly specialised through legal scholarship.

Puchta’s Contribution to the Historical School

Georg Friedrich Puchta further developed Savigny’s ideas.

Puchta also regarded law as the product of the collective consciousness of the community.

He believed that law develops through an interaction between social life and legal institutions.

According to this approach, the State is not necessarily the original creator of every legal rule.

Many legal principles exist socially before receiving formal recognition from the State.

Puchta also emphasised the role of jurists in giving systematic form to the law.

His work therefore strengthened the Historical School’s claim that legal development cannot be explained solely through legislation or sovereign commands.

Henry Maine and the Historical Development of Law

Sir Henry Maine brought a comparative and anthropological approach to historical jurisprudence.

Instead of focusing primarily on Volksgeist, Maine studied how legal institutions developed across different societies.

His work examined ancient legal systems and traced the transformation of social relationships over time.

Maine is particularly known for the proposition that progressive societies move “from status to contract.”

What Does “From Status to Contract” Mean?

In early societies, rights and obligations were often determined by a person’s social or family status.

Legal relationships were strongly connected with:

• family membership;
• caste or class;
• kinship;
• patriarchal authority; and
• inherited social position.

As societies became more developed, voluntary agreements became increasingly important.

Individuals acquired greater freedom to create legal relationships through contracts.

Maine therefore demonstrated that legal institutions evolve alongside social structures.

His work supports the broader Historical School idea that law must be understood through historical development.

How Is the Historical School Different From the Analytical School?

The Historical School differs significantly from the Analytical School of Jurisprudence.

Analytical jurists such as John Austin focused strongly on the authority behind law.

Austin famously connected law with the command of the sovereign backed by sanctions.

The Historical School, by contrast, focused on the historical and social origins of law.

The basic distinction can be understood as follows:

The Historical School therefore asks how law grew, while the Analytical School traditionally asks what makes a rule legally valid.

Can Law Really Be Found and Not Made?

The statement “law is found and cannot be made” cannot be treated as an absolute rule in modern jurisprudence.

It accurately explains how many legal principles historically developed.

Customary law, common law principles and long-established social institutions often emerged gradually rather than through deliberate legislation.

However, modern States regularly enact laws dealing with issues that may have little or no historical customary foundation.

Examples include laws concerning:

• cybercrime;
• data protection;
• environmental regulation;
• artificial intelligence;
• securities markets;
• telecommunications;
• competition law; and
• digital commerce.

Such areas often require governments to create detailed legal frameworks in response to new social and technological developments.

Therefore, modern law is both found and made.

Some principles emerge from society and are later recognised by legal institutions. Others are consciously created to address new problems or reform existing conditions.

What Are the Main Criticisms of Savigny’s Theory?

Savigny’s Historical School has made an important contribution to jurisprudence, but it has also been criticised.

It Overemphasises Custom

Not every law develops from custom.

Many laws are deliberately created through legislation to solve new problems or introduce social reforms.

Modern welfare legislation is an obvious example.

Volksgeist Is Difficult to Identify

The idea of a common national consciousness may be difficult to apply in diverse societies.

Modern States often contain several:

• religions;
• languages;
• communities;
• cultures;
• social groups; and
• competing value systems.

It may therefore be difficult to identify a single Volksgeist.

Customs Can Be Unjust

Not every established custom deserves legal recognition.

Some customs may promote discrimination, inequality or oppression.

A legal system committed to constitutional values may need to reject such practices rather than preserve them.

Law Can Be Used for Social Reform

Savigny largely viewed law as the product of social development.

However, legislation can also influence society.

Laws may intentionally change existing practices in areas such as:

• social equality;
• labour welfare;
• education;
• gender justice;
• child protection; and
• environmental protection.

In such situations, law does not merely follow society. It may actively transform society.

Foreign Legal Ideas Can Be Adopted

Legal systems often borrow principles from other jurisdictions.

Such borrowing challenges the claim that law must always arise organically from the unique historical consciousness of one community.

Many modern legal systems contain doctrines influenced by comparative law and international developments.

What Is the Importance of the Historical School Today?

The Historical School remains important because it demonstrates that law cannot be understood completely in isolation from society.

Its influence can still be seen in the study of:

• customary law;
• constitutional development;
• personal laws;
• common law doctrines;
• legal history;
• family law;
• property law; and
• traditional community practices.

Historical jurisprudence also encourages courts and scholars to examine the historical background of legal institutions.

This becomes particularly useful when interpreting legal concepts that have developed over long periods.

Relevance of the Historical School in India

The Historical School has particular relevance in the Indian legal context because Indian law has developed through multiple historical sources.

Indian law reflects the influence of:

• ancient customs;
• religious traditions;
• community practices;
• colonial legislation;
• judicial precedent;
• constitutional principles; and
• modern parliamentary legislation.

Custom continues to have legal importance in certain areas, particularly where recognised by personal laws or specific statutory provisions.

At the same time, the Indian legal system demonstrates the limitations of Savigny’s proposition.

The Constitution and Parliament have often been used to reform social institutions even when established customs supported a different position.

Therefore, Indian legal development demonstrates that law may arise from historical practice but can also be consciously changed in accordance with constitutional values and social needs.

Law Is Found and Cannot Be Made: A Balanced Understanding

The Historical School’s proposition should be understood as an explanation of the historical foundations of law, rather than a literal denial of legislative law-making.

The expression highlights several important truths:

• law often begins before legislation;
• customs can become sources of legal principles;
• legal institutions are shaped by social history;
• law generally develops alongside society;
• legislators should understand social conditions before introducing major reforms; and
• historical context is important for understanding legal rules.

However, modern legal systems also demonstrate that deliberate law-making is essential.

Legislatures must respond to new technologies, social problems, constitutional requirements and changing economic conditions.

Therefore, the more accurate modern position is that law can be both found and made.

Conclusion

The statement “law is found and cannot be made” captures the essence of the Historical School of Jurisprudence, particularly Savigny’s theory of Volksgeist. It explains law as an organic product of history, custom, social practice and collective consciousness. Savigny’s comparison of law with language and his opposition to premature codification emphasised that legal systems must remain connected with the societies from which they emerge.

However, the proposition is not absolute. Modern legislatures frequently create new laws, reform unjust customs and regulate areas where no historical legal tradition exists. The lasting importance of the Historical School lies in its reminder that law is not merely a collection of enacted rules. It is also a historical institution shaped by society, culture, customs and changing human relationships.

Note: This article was originally written by Shourya Shubam (CNLU) and published on 05 June 2020. It was subsequently updated by the LawBhoomi team on 11 Aug 2026.