Historical School of Jurisprudence
Historical School of Jurisprudence emerged in Germany during the 19th century.
Its origin was as a result of determined reaction against rationalism,
universalism and individualism of Natural Law. Rather than on the abstract
concepts, it focused on the actual physical nature of law. Therefore, the
historic evolution of jurisprudence was referred as the revolt of fact against
fancy and idealism.
The historical theory of jurisprudence is an approach to law that deals with the
histories and changes in law throughout history. This means that actually
grasping the meaning and significance of a law also entails knowing its history.
The true basis of law are religions, traditions, history, habits and customs.
The Historical school considered law in direct in direct relationship to the
life of the community and thus laid the foundation for building up the
sociological school of law.
According to Salmond, historical jurisprudence deals with the general principles
governing the origin and dev elopement of law and also with the influences which
affect the law.
According to C.G. Leg, Historical Jurisprudence deals with law as it appears in
its various forms at its several stages of development.
According to Friedmann, Law is found and not made. Law is self-existent. All
laws are not of universal validity or of application. People develop legal
habits as to its peculiar language, manners and constitution.
Law is prior to the establishment of the State and thus it existed even before
the State organisations came into existence.
Sovereign is only an enforcing authority of already existing laws. Thus, law is
independent of political authorities.
Historical School concentrates its attention to the primitive legal institutions
of society. Thus, according to this school, a typical law is a customary rule
spontaneously evolved by historical necessity and popular practice.
An essential feature of this theory is that there isn't really any law, only
immutable rules. They don't spring out of the ground. They evolve not simply due
to language itself but as a result in changes of society, culture and the way
that history takes place as the years go by. Hence, if we want to comprehend a
legislation, we need to view the past of its origin.
In this theory, norms, customs, and practices matter a lot when it comes to the
culture of that society. Meaning, that such practices and customaries lay down
the foundation of jurisprudence for a society. They're not meaningless things;
they represent a cumulative accumulation of what has proven appropriate for
There is an attitude in political and legal philosophy tradition that urges
caution when it comes to amending legislation rapidly. Here the law of
unintended consequences will work in reverse because everyone knows that big
jumps are often law-breaking disturbances. So, you have to consider not only the
past but also the situations before making a change.
Within this theory, you're also looking at the comparison of different legal
systems from different societies and times, too. By examining how various
cultures created and modified legal arrangements, we're able to obtain insights
into the trajectory of legal doctrines over time.
In sum, this theory posits that if you want to comprehend and employ law
effectively, then we should study law's evolutionary pathway through its
histories. Reminding us that laws on paper are more than an arbitrary set of
regulations-laws have a tangible relationship with the social and cultural
contexts in which they arise.
Savigny's Volksgeist Theory
It should be understood that Historical School of Law was founded by a renowned
German jurist, Savigny. He urged that there is a need to study law in its entire
course of evolution. For a proper understanding of law and its transformation,
one must possess updated legal knowledge at all times. In the words of Savigny,
law is the embodiment or representation of Volksgeist- meaning that it is the
pure spirit of the nation or soul of the people.
Customs and Usages were the true spirit of the people and law must be discovered
from such Customs and Usages. He stressed 'Law must be found and not to be
made'. According to him laws are not of universal application, as each person
develops his own legal habits in his own environment. The task of lawyers is to
keep a constant vigil and find out periodically the correct consciousness in the
changing habits of people. Volk means the people and Geist means spirit in
German, so Volksgeist theory could be translated as 'the Spirit of the People'.
Because of this he perceived the law as being intertwined with the history and
culture of a country.
Here are the main points of Savigny's theory:Laws Grow Naturally:
He assumed that the law is not invented cleverly by
intelligent people. They don't arise in isolation. But all those ideas and
beliefs shared in secret by the majority also have a right to be reflected in
law because they represent the collective will of the people.
Customs Make Good Laws:
He really enjoyed the thought that customs would be the
base for laws. This implies that what people currently do in practice ought to
shape the principles that they follow.
Laws must change gradually and not abruptly so that the
tethering of a country's history remains intact.
Legal Scholars Are Like Guides:
He thought lawyers ought not to legislate but to
know the law and expound its principles after having considered how it could be
determined through history and usage. They assist in understanding and the
enforcement of the law.
Big Impact in Germany:
Savigny's concepts were significant for the
interpretation of the law and its teaching in Germany. As such, they came to
define the "historicist" school of legal theory, which sees law as inherently
bound up with the peculiarities of its own time and place.
Simply put, Savigny's Volksgeist doctrine is an acknowledgement of the influence
of the national character in law-making. This became a major issue in Germany,
which later left its mark on legal science.
Significance of Savigny's Volksgeist Theory
It invites us to ponder over the environment in which law operates and what
brings about a change in law. It helps us to ascertain how laws operate. This
provides us understanding about their functioning. It indicates that the
society's law is in conformity to its culture.
It underscores the importance of conserving old legal customs. This could make
change slow but it will give the stability as well. This has encouraged scholars
to examine the evolution of the law - thereby helping us better understand our
It can strengthen cultural identification through the law. It provides some sort
of bridge between legal systems and moral systems. It shaped legal education a
great deal especially for instance in Germany. It prompts an inquiry about the
right time and approaches for adapting lawful customs of our era.
Savigny's emphasis on the historical and cultural context in shaping legal
systems was groundbreaking. He helped shift the focus from abstract, universal
laws to the importance of understanding the unique historical and cultural
backgrounds of legal systems.
Savigny's theory introduced the concept of cultural relativism into legal
thought. This idea suggests that each society's values and customs play a
crucial role in shaping its legal framework. It acknowledges that what works in
one culture may not be suitable for another.
Savigny's work laid the foundation for comparative law, which involves studying
different legal systems to find commonalities and differences. This is
particularly valuable in our interconnected world, where legal systems often
interact across borders.
The theory promotes a respect for legal traditions and historical continuity. It
argues that legal systems should evolve organically from a society's historical
development rather than being imposed or radically changed.
Savigny's ideas help us understand how laws change over time. By examining a
society's history and culture, we can gain insights into the evolution of its
In brief, Savigny's theory has shaped our understanding and practice of law -
particularly with respect to history, community, and customs.
Criticism of Savigny's Volksgeist Theory:
- Savigny exaggerated the importance of Volksgeist. For example, the adoption of English Law in India is not due to the popular consciousness (Volksgeist) of the Indian people.
- Certain laws arise not due to the 'correct popular consciousness', but due to the conflict of interests between two classes of people. As for example, trade union laws are made due to the conflict of interests between employers and employees.
- Not all customary rules reflect the true spirit of the people. As for example, when there are two local customs opposite to each other, both have the force of law.
- Savigny's Volksgeist theory does not apply to laws applied by an Empire to its colonies. E.g., English Laws applied in India before 1947.
- Some argue that focusing solely on history and culture may not always engage and retain users' interest effectively.
- There are concerns about ethical values; critics fear that the theory might suggest that all practices and rituals are good, even if they are morally wrong, leading to a lack of laws upholding ethical values.
- The theory is seen as rigid and unsuitable for addressing urgent legal issues that require quick solutions.
- It's criticized for being overly traditionalistic, often neglecting justice and victims' rights in a rapidly changing world.
- Finding and applying the concept of Volksgeist, or the spirit of the people, is challenging both in theory and practice, making consistent application difficult.
Overall, critics argue that this theory may not effectively address contemporary
legal problems and values. However, Savigny's focus on history and culture still
plays a big role in how we understand the law today.
- Jurisprudence, Usha Jaganath Law Series
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565