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Chapter 3 Historical School : Frederick Karl Von Savigny, Sir Henry Sumner Maine.

LLB Historical School : Frederick Karl Von Savigny, Sir Henry Sumner Maine.

Historical School Of Jurisprudence


Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates from the social custom, conventions religious principles, economic needs and relations of the people.
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. The consciousness started from the very beginning of the society.  There was no person like sovereign for the creation of law. Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.
Savigny is regarded as the founder of the historical school. He has given the Volksgeist theory. According to this theory, the law is based upon the general will or free will of common people. He says that law grows with the growth of Nations increases with it and dies with the dissolution of the nations. In this way law is a national character. The consciousness of people.

This theory has some defects. Being conservative in its outlook it relies on past, however, its merit is that it shows that law must change with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way, it supplemented the analytical school of law.

Meaning  and Importance

This school does not attach much importance to the relation of law to the state but gives importance to the social institutions in which the law develops itself. While the analytical school pre-supposes the existence of a well developed legal system. The historical school concentrates on the evolution of law from the primitive legal institutions of the ancient communities. The task of the historical school is to deal with the general principles governing the origin and development of law and with influence that affects the law.
Historical jurists banished the ethical consideration from jurisprudence and rejected all creative participation of judge and jurist or lawgivers in the making of law. They viewed the law, not as principles of morals but principles of customary action. Historical school emerged as a reaction to legal theories propounded by analytical positivists and the natural law philosophers. Vico in Italy, Montesquieu in France, Burke in England and Hugo and Herder in Germany started a new era in the development of legal theory and viewed the law as the legacy of past and product of customs and traditions and beliefs prevalent in different communities. They believed that law has biological growth.

Juristic views

According to Sir Henry Maine, Montesquieu was the 1st jurist who adopted the historical method of pursuing the study of legal institutions and concluded that “law is the creation of the climate and local situation.” And the law must keep pace with the changing needs of the society.
Hugo pointed out that law is like the language and habits of the people which forms and develops itself as suited to the circumstances. The essence of law is in its acceptance, observance, and regulations by the members of the society.

The credit of laying down the foundation of the historical school in France goes to Montesquieu through his classical work ‘Spirit of Laws’. He held that law should be adapted to suit the people, for whom they are framed, keeping in view the degree of liberty which the constitution desires to grant to its people. There is nothing like good or bad in law, as it essentially depends on political and social conditions and environment prevailing in the society. Montesquieu was opposed to natural law and he laid the foundation of comparative and sociological jurisprudence.
Whereas, Edmund Burke considered the evolution of law as an organic process and an expression of common beliefs, faiths, and practices of the community as a whole.
Sir Fedrick Pollock aptly remarked that historical method is nothing but the Doctrine of Evolution applied to human institutions and societies.
Schelling and Hugo supported the view that law is a historical thought which evolved according to customs, traditions, culture, and sentiments of the people.
Savigny has been the main exponent of this historical interpretation of the law and considered it to be the profounder of the historical school of jurisprudence. He traced the development of law as an evolutionary process much before Darwin gave the theory of evolution in the field of biological science. And this is why Dr. Allen described Savigny as ‘Darwinian before Darwin’ for his contribution of applying the evolutionary principle to the development of the legal system.

Volksgeist as a source of law

Savigny works on the law of possession (Das Recht Des Vestiges) which was published in 1803 is said to be the starting point of Savigny’s historical jurisprudence. He firmly believed that all law is the proof of common awareness (manifestation of common consciousness) of the people and it grows with the growth and strengthens with the strength of the people and dies away as the nation loses its nationality.

According to Savigny and his most popular pupil George Friedrich Puchta firmly believed that law is the product of General Consciousness of the people and manifestation of their spirit. He stated that a law made without taking into consideration the past historical culture and traditions of community is likely to create more confusion rather than solving the problem.
The origin of law lies in the popular spirit of the people which Savigny termed as ‘Volksgeist’.
Savigny’s contribution to the historical school may be briefly stated as-
  1. Law develops like language-
Law has a national character and it develops like a language and binds people into one whole because of their common faiths, beliefs, and convictions.
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 its nationality.
Law, language, custom, and government have no separate existence from the people who follow them.
  1. Early development of law is automatic thereafter jurists develop it-

At the earliest stage law develops automatically according to the internal needs of the community. But after a certain level when it reaches civilization it has a great role to play.
As a duet role model between the regulator of general national life and as a distinct discipline for study i.e., performing, controlling and regulating the national activities as well as studying it by specialists as jurists, linguistics, anthropologists, scientists etc. In simple terms, it can be termed as the political element of law and juristic element and both play a significant role in the development of law.
  1. Savigny who opposed the codification of German law-
Savigny was not totally against the codification of the German law on the French pattern at that time because Germany was then divided into several small states and its laws were primitive, immature and lacked uniformity.
He stated that the German law could be codified when there is a prevalence of one law and one language throughout the country.
Since Volksgeist had not adequately developed at that time, therefore codification would have troubled the evolution and growth of law.
He has considered lawyers and jurists to be the true representatives of the popular consciousness rather than the legislators whose power has been united to lawmaking only.
  1. Law is a continuous and unbreakable process-

Tracking out the evolution of law from Volksgeist, Savigny considered its growth as a continuous and unbreakable process bound by common culture, traditions, and beliefs.
He wanted German law to be developed on the pattern of Roman law. According to him, the codification of law may hamper its continuous growth, and when the legal system gets fully developed and established then the codification may take place.
  1. Administration for the Roman law-

He has been known for the admiration of Roman law. According to him the Roman law is very systematic and developed on the right principle of customs and justice and is based upon the Volksgeist of the people.
Hence the German law should be based on the similar pattern of Roman law to evolve as proper law.
  1. Savigny’s Volksgeist helped many nations to promote its ideologies where Nazi twisted it by giving a racial colour. Marxists used it giving economic interpretations whereas; Italy used it to justify fascism.
  2. His attitude towards anti-codification of German law frustrated the growth of German law for several decades.
  3. He believes that customs are the best source of law, which is not correct as there are many customs like slavery, anti-woman custom, labour which are originated to accomplish the selfish interest of those in power.
  4. His force on Volksgeist as the only source of law is not true, as he ignores the other major sources of like precedents, legislation and other external affairs.

Despite the above criticisms, Savigny’s legal theory marked the beginning of the modern jurisprudence. His theory of Volksgeist interpreted jurisprudence in terms of people’s will as it laid greater emphasis on the relation of law and society. And this theory came as a revolt against the 18th-century natural law theory and analytical positivism.
The essence of Savigny’s Volksgeist theory was that a nation’s legal system is greatly influenced by the historical culture and traditions of the people and the growth of law is to be located in their popular acceptance.
Savigny’s approach to law gave birth to comparative jurisprudence which has been accepted as one of the most important branches of legal studies in modern times.

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