Historical school advocated that law is developed from social custom , economic
needs, convention religious principle , and relations of the people living in a
state. The advocates of this school argued that law is not made but is advanced
from the pre-existence materials like customs and religious principles , unlike
the natural school , which believed that law originates from superior authority
or sovereignty .
Historical School Of Jurisprudence- Concept and Meaning
The jurist of this school believed that law should be changed with the changing
need and nature of the person and they followed concept of man-made laws.
Therefore, It would be seen that historical school developed as a stimuli to
legal theories propounded by analytical positivists and the natural law
philosophers. The latter states that the law was founded on the abstract notion
of the human conscience and reason.
The school rejected the idea of formation of law by judges and the origin from
some divine relevance. Historical school banished ethical consideration from
jurisprudence and rejected all creative participation of judge and jurist or
law-giver in the making of law. Fredrick Pollock was one of the supporter of
historical school , he believed that morals, as such were out of the domain of
judge or jurist.
The revolutionary ideas that were born by positivistic legal thinking had a
devastating effect as they failed to meet the needs of the people due to which
new approach was propounded, known as Historical conception of law. The
advocates of this school believed that law has biological growth and it has not
evolved in an arbitrary and prompt manner.
Montesquieu (1689-1755) was the first jurist to adopt historical method of
pursuing the study of legal institutions and came to the conclusion that ‘laws
are the creation of climate and local situation’. He did not briefed further
into the co-relation of between law and society but certainly pointed out that
law must keep pace with the changing needs of the society.
James Carter, an American jurist argued that law came to the existence even
before the political revolution or consciousness , therefore , it has to be
traced and identified with the customs followed in a given society. And so he
focused on the historical evolution and development of law. However, identifying
law with custom alone will not be a correct proposition. Custom at its best can
be one of the many source of development of law.
As per English Legal Historian Holdsworth pointed two major factor that are
responsible for the emergence of historical school of jurisprudence namely , i)
The French Revolution and its aftermaths ,and ii) Darwinian theory evolution
which altered the character of scientific speculation during that period
concerned. This was even supported by apex court of India, i.e. Supreme Court of
India in case Byram Pestonji Vs. Union Of India 1991
, where court quoted justice Thomen as, Indian legal system is the product of history. It is rooted in our soil ,
nurtured and nourished by our culture , languages and traditions , fostered and
sharpened by our genius and quest for social justice , reinforced by history and
Difference between Historical Jurisprudence and Legal History
It is certainly important to distinguish the legal history before discussing the
in-depth content of Historical Jurisprudence. Legal history merely deals with
the factual narration of the development of law and various legal institutions
of a community in a particular order. Whereas, historical jurisprudence, on the
other hand , went to the extant of examination of manner, circumstances and
factors responsible for the growth of law and takes account of the social forces
significantly which operates in the process of the evolution of law.
In words of Dr. C.K. Allen:
When, in order to apprehend the nature or an idea of
any legal institution or system of institution, it is necessary to determine the
actual circumstances of the development , then we must involve the aid of legal
history…when our chief aim is to abstract the idea itself rather than actual
matter of fact which surround it, then it is perhaps correct to say that we are
engaged in the study of historical jurisprudence rather then legal history.
However, it is doubtful whether any rigid line of demarcation can ever bed drawn
between historical jurisprudence and legal history..they differ only in degree
and not in kind.
The major spotlight that historical school throws is upon , how racial, ethnic
or linguistic traits of law are embedded in the culture and heritage of a
As far as France is concerned , Montesquieu is said to be the founder of
historical school of jurisprudence through his classic work Spirit of Laws in
1748. He focused on the evolution and development of law to the effect of cause
and effect in a given social surrounding and biological environment. He
contrasted that , laws should be adopted to suit the people for whom they are
framed keeping in view the degree of liberty which constitution desires to grant
to its people.
As per his learnings, there is nothing like good or bad in law, as it
essentially depends on political and social conditions and environment
prevailing in the society. Although , he was opposed to natural law , he laid
the foundation of comparative and sociological jurisprudence.
Volksgeist as a Source of Law
It was firmly believed by Savigny and Georg Friedrich Puchta (1798-1846) that,
Law is a product of of the general consciousness of the people and a
manifestation of their spirit. And so , codification of law of German land was
not seen as desirable action for its smooth development at that period of time,
which lead to delay in codification of German law by fifty years.
Some of the great words that I recall of Savigny are that:
When a law is made without taking into consideration the past historical
culture and tradition of community is likely to create more confusion rather
than solving the problem because ‘law’ is not an ‘artificial lifeless mechanical
device’ merely .
As per theory of Savigny, origin of law lies in the popular spirit of the
people which he termed as Volksgeist . While learning about the contribution of
Savigny , Friedmann observed that Savigny and his followers interpreted history
in the name of tradition , custom and nation against the belief along with the
four corners of conscious and rational law making. He propounded legal
philosophy from the evolution of history.
Some briefly explained contribution of him are as follows:
Law develop like language - Savigny focused that the law has a national
character and it develops like any language and binds people into one thread, by
way of their common faiths, beliefs, and convictions. As per him, law grows with
the growth of the society and gains its strength from the society itself and
finally it withers away as the nation loses it nationality. Common conviction of
the people makes all thee as a single whole.
The central theme of Savigny’s
historical jurisprudence can be summarised as follows:
The evolution of the law with the life and character of the people develops
with the ages , and in this it resembles language. As in the latter, there can
be no instant of rest , there is always movement , and development of law is
governed by the same power of internal necessity as simple phenomena. Law grows
with the nation , increases with the nation and dies at its dissolution and is a
characteristic of it. Thus, he pointed that law is not universal in nature like
language, it varies with people and ages.
Early development of law is spontaneous; thereafter jurist develop it:
Savigny stated that in the earliest stages law develops promptly as per the
internal needs of the community but after the community reaches a certain level
of civilisation , the distinct kinds of national activities , hitherto
developing as a whole , divided in different branches to be taken up for further
study by specialist such as jurist , linguists, anthropologists, scientist ,
etc. Law has to play a duel role, as like regulator of general national life and
as a distinct discipline fro study. The former maybe called the political
element of law while the latter as a juristic element but both have a
significant role in the development of law.
Savigny opposed to codification of German Law:
He as not blindly against the
codification of law , however, opposed the codification of the German Law on the
French pattern at that time due to Germany was then divided into several
smaller states and its law was primitive, immature and lacked uniformity . He
was opinion that Germany law could be codified at a later stage when the
unification of Germany takes place and there is one law and one language
throughout the country. Since Volksgeist i.e. common consciousness had not
adequately developed at that time, therefore, codification would have hindered
the evolution and growth of law. He also focused that codification of German law
without jurists of sufficient genius and adequate expertise in Roman law would
not serve the desired purpose of Roman law formed an integral part of the German
legal system at that time.
Law is a continuous and unbreakable process:
While learning the evolution of law from Volksgeist , i.e. people’s spirit or
consciousness. Savigny considered its growth as a continuous and unsurpassable
process bound by the golden thread of cultural , traditions and beliefs. It has
its roots in the historical process which should constitute the subject of study
for the jurist. According to his work, codification of law may hamper its growth
and therefore, it should be restored to when the legal system has fully
developed and established its great foundation.
The main tenants of Savigny’s theory can be summarised as below:
- Law has an unconscious natural growth , it is neither found nor
- The foundation of law is to be found in Volksgeist which means people’s
consciousness or will, and consists of tradition , customs , habits , practices
and beliefs of the people.
- Law is not universal in nature but like linguistic nature, it differs
with people , time and needs of the community.
- Since aw should always conform to popular consciousness i.e. Volksgeist, custom
not only precedes legislation but is superior to it.
Custom against Savigny’s Theory of LawHis theories has been opposed by his critics on several grounds , the major
among them are as follows:
There are certain non-alignment which are apparently observed in the Savigny’s
theory. He focused upon the national character of law but at the same time
suggested a model by which Roman law could be adopted and accepted as the law of
Germany. By such , he located origin of law in people , i.e. Volksgeist , that
popular conscience but at time asserted that certain customary principles of
Roman law had universal application application.
It is said that Savigny’s theory of law is negative , obscure and suffers from
narrow sectarian outlook. He was against codification of law which is one of the
most accepted forms of modern progressiveness legislation. The following
anti-codification attitude of him delayed the codification of Germany law for
more than fifty years.
Savigny asserted that popular consciousness is the sole source of law is not
wholly true. The theory of Volksgeist , precedent, etc. in the evolution of law.
There are many areas which would have been left without legal rules because
there never existed any popular consciousness about them.
By learning various theories of renowned jurists , we can have certain
understandings and have an insight about the foundation of law of the school
concerned. The historical school has great relevance of Hindu jurisprudence of
ancient India. The perception of law in the ancient Hindu society differs from
what it is today. Law was a part of dharma which meant rightful conduct and an
act with noble intentions. There was miniature difference between two concept ,
namely, dharma and law.
To be more precise , if dharma was a circle and it took
law within its sweep. In other-words, if dharma was a circle , the law an arc of
the circle. Therefore, there was no disharmony between the two. As per the learnings of Manusmriti
, ‘conduct is the basis of dharma’. It is not what you say but what you do which
Henceforth, the Indian independence brought in its wake a new era in the
development of Indian jurisprudence with emphasis on justice , equality, liberty
and individual freedoms and rights. The preamble to the Indian Constitution
along with the chapters on fundamental rights ,fundamental duties and directive
principles of state policy constitute the core Indian constitutional philosophy.
The insertion of words like ‘secular’, ‘unity’, and ‘integrity’
Perhaps the greatest contribution of Historical school of jurisprudence towards
the law making of India , lies in the fact that it helped in abolishing the old
vestiges of discrimination and exploitative laws ensuring people social ,
economic, and political justice by removing their disabilities and
Written By: Siddharth Gupta,
BBA. LL.B (Hons) , Amity Law School ,