The historical school of law is one that can be traced back to the civil law in Rome and Common Law in England – which is not codified. Civil Law follows the principle of – ‘where there is a right there is a remedy whereas common law follows the principle of- where there is a remedy, there exists a right. The historical school of law believes that law is something of an outcome of many years of historical development. It is a result of different past forces and past influences. This school is one that is very complex in the sense that it varies with every individual and many have a different understanding of the subject. This school is of the opinion that law comes from the varying changing needs of the people and society, so habits and customs that are followed by people play a significant role. Dias, however believes that this school has arisen as a reaction to the theories put forward by the natural school of law
Some of the factors that play an important role in the historical development is social and societal customs, different religious and conventional principles, the economic needs and desires of society, as well as that of an individual citizen.
Response to the natural school of jurisprudence
Response to the analytical school – founded by Austin, the subject matter is positive law which gives extensive impetus to the origin of law of the judges, legislators and state. Historical school again rejects this and gives importance to habits, customs not superior authority and judges.
Freidrich karl on Savigny – he is someone who believed that law was located in the way that people live their life. Law has no definite source, but in fact evolves with the different cultures, traditions and the customs of the people. It is more of a spontaneous. this is why he propagates the term of ‘volksgeist’ which means ‘spirit of the people’ and represents the common or general consciousness or the popular spirit of the people. He believed that law was a product of the general consciousness of the people and a manifestation of their spirit. He believes that the consistent nature of the legal system is because of the failure to understand its origin and history. Law was not something that can be borrowed from outside and the consciousness of the people is of paramount importance. the strengthening of the state nationality results in the growth of the state and when nationality loses its strength, the state tends to fade away. Freidmann concludes savigny’s theory –
Law is discovered or found, not made; law, like language eventually grows; it cannot be of an universal validity and cannot be applied universally; law is sui generis
Savigny’s concept of Volksgeist – it means national character. This concept was served as a warning against hasty legislations and introduction the revolutionary abstract ideas on the legal system unless it was something that arose out of the will of the people. Deliberate legislation should not be the origin of law.
He was in fact criticized by many jurists who believed that his theory of Volksgeist was too wide and ambiguous to have any definitive value. In the scenario where there are many cultures, it becomes difficult to decide exactly which culture embodies the spirit of the people. This theory doesn’t take into consideration the minorities. Charles Allen was of the view that customs were not the outcome of common consciousness of the people, but the result of the interest of a strong and powerful ruling class. Stone believed that the efficiency of the legislation was ignored by Savigny.
Henry Maine – he was famous for his publication of his book “ancient Law” and was the first empirical philosopher of law and the founder of the English historical school of law. Savigny’s views were later carried on by henry Maine. He favored the codification and legislation of law. He has described the development of law into 4 stages-
- First stage
- Rulers are understood to be acting divine inspiration; the laws being made on the command of the rulers. The judgement pronounced by the king was considered to bt the very judgement given God or some divine body. The king was not the law maker but merely an executor of the judgements given by god.
- Second stage
- The commands given by the ruler was then converted into customary law of that region. The custom would prevail in the majority of ruling class. Customs seemed to have succeeded to the right and the authority of the king
- Third stage
- The administration and knowledge of the customs goes into the hands of the minority. The knowledge of customs would go into the hands of a minority class because the weakening of the lawmaking power of the priests who were the original law-makers
- Fourth stage
- In the last stage, the law would be codified and promulgated
But sadly, this type of evolution was also criticized because the sources were questioned. Law was looked at from an authoritative perspective and not obedience. An Elitist point of view had been given to law and did not give much importance to the people who were part of remote areas and even did not care about the evolution of law
Montesquieu – according to Maine, the first jurist to adopt the historical school was Montesquieu. He believes that it is irrelevant to discuss whether the law was bad or good because it depended on political, social, environmental conditions prevailing in society. He even concluded that law was the creation of the climate, accident, local situation or imposture. He believed that law had to change along with the changing needs of society. He believed that law should change with needs of the people. One of his well- known books was ‘the spirit of laws’. He represented his beliefs in political enlightenment ideas and suggested the laws that would be required to modify according to needs of people.
Author: Palguna M,
School of Law Christ University 2 year