INTRODUCTION

Law is a very complex phenomenon. To define with substance what is

law, what is its source and nature, how it operate in the society and
regulate the action of its members is not an easy task. Every individual
has its own understanding of law, for example, an ordinary citizen may
think that it is something which he must obey, a policemen or
administrator may think that it is something which gives him power to
do certain things or actions and a lawyer may think that it is something
which is applied to settle the disputes between man and man, so it is
difficult to have a generalize view or an agreeable explanation of law.
Many jurist at different places and time have made their approaches to
the study of law from different angles. They have defined law,
determined its sources and nature and discussed its purpose and ends.
For clarity and better understanding of their points, jurists are divided
into different schools on basis of their approaches to law. One of the
approaches to the study of law is historical school. The basic tenet of the
school is that law in its essence is not something imposed on a
community from above or from without, but is an inherent part of its
ongoing life, an emanation of the spirit of the people. This school
emerge as a reaction to analytical school and natural law.
The project aims to analyze the historical school of jurisprudence and its
applicability in the society.

Two Main Reasons for The Evolution of

Historical School:
1. Historical school came as a reaction against natural law, which
relied on reason as the basis of law and believed that certain
principles of universal application can be rationally derived
without taking into consideration social, historical and other
factors. Historical school is of the view that law has no universal
application as every country have distinct custom, traditions
,culture etc which shape the law of that country and cannot be
applied on other nations.
2. Historical school came as a reaction against analytical positivism
which regard law as an arbitrary command of the sovereign and the
deliberate product of legislation whereas historical school is of the
view that law is found and not made. Law is self existent and
legislation derive its authority from custom.

F.K. VON SAVIGNY

Savigny is regarded as the founder of the historical school of law. He
was born in 1779 in Frankfurt, Germany and was one of the most
respected and influential 19th-century jurists. He studied at the
universities of Marburg and gottingen and taught at the university of
Berlin. He acquired deep knowledge of Roman law, which greatly
influenced his work. He advocated that the meaning and content of
existing bodies of law be analyzed through research into their historical
origins and modes of transformation. He traced the development of law
as a evolutionary process much before Charles Darwin gave his theory
of evolution. It is for this reason, he is even said as Darwinian before
Darwin for his contribution to apply the evolutionary principle to the
development of legal system.
According to savigny, law is product of times the germ of which like
the germ of state, exists in the nature of men as being made for society
and which develops from this germ various forms, according to the
environing influences which play upon it. The essence of his thesis is
found in his work entitled on the vocation of our time for legislation and
jurisprudence, in which he write as: In the earliest time to which
authentic history extends, the law will be found to have already attained
a fixed character, peculiar to the people, like their languages, manners
and constitutions. Nay, these phenomena have no separate existence;
they are but peculiar faculties and tendencies of an individual people,
inseparably united in nature and only wearing the semblance of distinct
attire to our views. That which binds them into one whole is the common
conviction of the people, the kindered consciousness of an inward
necessity , excluding all notion of an accidental and arbitrary origin.
Thus according to savigny law develop in the same manner as the

language develops. Law grows with the growth and strengthens with the
strength of the people, and finally dies away as the nation loses its
nationality. Therefore, summary of this theory is that all law is originally
formed in the manner in which language, customary law is said to have
formed i.e., that it is first developed by custom and popular faith, next by
judicial decisions- everywhere, therefore, by internal silently operating
powers, not by arbitrary will of a lawgiver.
Savigny believes there are three elements to a law namely the political
element where the principle of the law is founded on the national
convictions and not the found in legislation. Secondly, the stage of
technical elements or juristic skills where the codification of law will be
developed. And lastly the stage where the nationality identity was lost.

CONCEPT OF VOLKGEIST
In a simple term, Volksgeist means the general or common
consciousness or the popular spirit of the people. Savigny believed that
law is the product of the general consciousness of the people and a
manifestation of their spirit. The basis of origin of law is to be found in
Volksgeist which means peoples consciousness or will and consists of
traditions, habits, practice and beliefs of the people. The concept of
Volksgeist in German legal science states that law can only be
understood as a manifestation of the spirit and consciousness of the
German people. His theory served as a warning against hasty legislation
and introduction of revolutionary abstract ideas on the legal system
unless they mustered support of the popular will, Volksgeist.
Savignys central idea was that law is an expression of will of the
people. It doesnt come from deliberate legislation but arises as a gradual
development of common consciousness of the nation. The essence of
Savignys Volksgeist was that a nations legal system is greatly
influenced by the historical culture and traditions of the people and
growth of law is to be located in their popular acceptance. Since law
should always confirm to the popular consciousness i.e. Volksgeist,
custom not only precedes legislation but is also superior to it. Hence,
law wasnt the result of an arbitrary act of a legislation but developed as
a response to the impersonal powers to be found in the peoples national
spirit.
Laws arent of universal validity or application. Each people develops
its own legal habits, as it has peculiar language, manners and
constitution. He insists on the parallel between language and law.
Neither is capable of application to other peoples and countries. The

Volksgeist manifests itself in the law of the people: it is therefore

essential to follow up the evolution of the Volksgeist by legal research.
Savigny felt that a proper code [of law could only] be an organic
system based on the true fundamental principles of the law as they had
developed over time. Savigny method stated that law is the product of
the Volksgeist, embodying the whole history of a nations culture and
reflecting inner convictions that are rooted in the societys common
experience. The Volksgeist drives the law to slowly develop over the
course of history, thus, according to Savigny, a thorough understanding
of the history of a people is necessary for studying the law accurately.
Savigny successfully used his volksgeist theory to reject the napoleon
code and the move to codify law the Germany. The result was that
german law remained, until 1900, roman law adapted to german
conditions with the injunctions of certain local ideas.
Savigny in his own words view Volksgeist as, The foundation of the
law has its existence, its reality in the common consciousness of the
people. We become acquainted with it as it manifests itself in external
acts, as appears in practice, manners and customs. Custom is the sign of
positive law.- Savigny.
Hence, Savigny clearly believes that Volksgeist (common
consciousness) is the foundation of law.

CRITICISM OF THE SAVIGNY

The following are the criticisms of Savignys Volksgeist:
1. Savigny was a protagonist of the volkgeist doctrine, he worked for
the acceptance of a purified Roman law as the law of Germany
whereas at that time in Germany a vigorous school of jurists who
strongly advocated the revival of ancient German law and custom
as the foundation of a modernized german legal system. Savignys
opposition to the expulsion of the Roman law and its adoption as
the law of Germany was inconsistent with his idea of the volkgeist
of the German nation.
2. According to savigny, the only person who talked of the volkgeist
were academic jurists who were not versed in the practical problem
of legal administration. The volkgeist resolved itself into what
these academic jurists imagined it to be. Professor Dias says that it
is possible that there is a very limited sense in which the contention
of savigny is acceptable. The volkgeist manifest itself, if at all,
only in few branches of law and even then by way of modifying
and adapting any innovations that may be introduced
3. Pound points out that savigny encouraged juristic pessimism
which mean that legislation must accord with instinctive sense of
right or it was doomed to failure. Conscious law reform was to be
discouraged.
4. Savigny was so occupied with the source of the law that he almost
forgot the stream. He overlooked the forces and factor which
influences and determine the growth of law.
5. Dias maintains that many institutions like slavery have originated
not in Volksgeist but in the convenience of a ruling oligarchy.
6. It is not clear who the volk are and whose geist determines the law
nor it is clear whether the Volksgeist may have shaped by the law
rather than vice-versa.

7. In pluralist societies such as exist in most parts of the world it

really seems somewhat irrelevant to use the concept of Volksgeist
as the test of validity.
8. Important rules of law sometimes develop as a result of conscious
and violent struggle between conflicting interests within the nation
and not as a result of imperceptible growth. That applies to the law
relating to trade unions and industry.
9. Lord Lloyd also points out that Savigny underrated the
significance of legislation for modern society. Sir Henry Maine
rightly pointed out that a progressive society has to keep adapting
the law to fresh social and economic conditions and legislation has
proved in modern times the essential means of attaining that end.
10.
Paton states that the creative work of the judge and jurist was
treated rather too lightly by Savigny.
11.
A survey of the contemporary scene shows that the German
Civil Code has been adopted in Japan, the Swiss Code in Turkey
and the French Code in Egypt without violence to popular
propensity.
12.
It was unfortunate that the doctrine of Volksgeist was used by
the National Socialist in Germany for an entirely different purpose
which led to the passing of brutal laws against the Jews during the
regime of Hitler in Germany.

HENRY MAINE

Born on Aug. 15, 1822, Henry Maine received his schooling at Christ's
Hospital and Pembroke College, Cambridge. He received his degree in
1844 and the following year was appointed junior tutor at Trinity
College, Cambridge, which position he held until appointed regius
professor of civil law at Cambridge in 1847. In 1850 he was called to the
bar and 2 years later accepted appointment as first reader in Roman law
and jurisprudence at the Inns of Court. He steadily gained in reputation
as a philosopher of law and a brilliant legal antiquary until, with the
publication of his first work, Ancient Law (1861), he emerged on the
Victorian scene as a leading scholar-intellectual.
Maine was a legal member of the Council in India (1863-1869) and
served for a time as vice-chancellor of the University of Calcutta. He
formulated a general scheme for the codification of Indian law and
organized the legislative department of the Indian government. He was
corpus professor of jurisprudence at Oxford from 1869 until 1877, when
he assumed the mastership of Trinity Hall, Cambridge.
Maine believed that ancient law is not the work of any legislator. It is
written by judges. These codes are not only legal rules but all
instructions in order to lead a better life. He believes that customs are
embodied in the codes and people obeyed the law because it is their
habit and not due to fear.
Maine said that an ancient society became more civilized or mature as it
moves from status to contract in relationship in social and legal sphere.
Maine sees legal development as uni-linear evolutionary framework. He
also opined that human and legal history did is not progressive and may
declined after a period of time such as the dark ages in Europe and
Middle Ages.

According to Maine, law develops through four stages. In the beginning,

law was made by the command of the ruler believed to be acting under
divine inspiration. In the second stage, command crystallizes into
customary law. In the third stage, the knowledge and administration of
customs goes into the hands of a minority, usually of a religious nature,
due to the weakening of the power of original law-makers. The fourth
stage was the times of codes. Law is promulgated in the form of a code.
Maine further says that societies which do not progress beyond fourth
stage closes the era of spontaneous legal development and are called
static societies. Maine characterized their legal condition as status.
Maine also refers to societies which progress beyond fourth stage like
the romans and the nations of modern Europe because they are steered
by a conscious desire to improve and develop. The three agents of legal
development responsible for progrees according to maine are legal
fiction, equity and legislation. With the help of legal fiction alterations
are made in the law to satisfy the desire for improvement. It help in
overcoming the rigidity of law. Equity is then used to modify the law ,
equity are sacred principles which enable legal fiction into evolving
society. The final stage is that of legislation.

MOVEMENT FROM STATUS TO CONTRACT

According to henry maine, in progressive societies there has been

movement from status to contract because the agencies of legal
development in progressive societies has resulted in gradual dissolution
of family dependency and the growth of individual obligation in its
place. The indiviual is is steadly substituted for the family as the unit of
which civil laws take account. The roman family, the slave , the caste,
the medival guilds, the feudal nexus, are typical instances of status.
According to maine, the rigid position into which individual is born and
which he cannot leave, gives more freedom of will and movement.
Progressive societies are characterized by increasing legal freedom of
movement by the individual. The development is summed up by maine
in the following celebrated pharse: if we employ status to signify the
personal conditions only and avoid applying the term to said conditions
as are the immediate or remote result of agreement, we may say that the
movement of the progressive societies has hitherto been a movement
from status to contract.1
Sir henry maine did not reject the rationalizing development of law. He
accepted it as inevitable for the small number of progressive societies.
His theory of the development of personal legal conditions from status to
contract was a theoretical corollary to the freedom of labourand contract
demanded by an expanding industrial and capitalist society. The effect of
maines thesis was liberalizing inspite of his personal tendency towards
a conservative interpretation of history.
Example- The formation of trade unions symbolizes the movement of
society from status to contract as labour is free to contract with the
factory owner for work and also put forward his demand through union.
1.

Ancient law, p.170

CRITICISM

1. Henry maine is of the view that a progressive society is marked by

freedom of will and movement of individual but the growth of
trade unions and business association has lead to the replacement
of individual bargaining by collective group agreements which
compel the individual to submit to the group terms. Thus the
worker who join the trade union and the industrialist who join the
cartel sacrifices his freedom to some extent.
2. Nowdays, standardization of the contract terms has replaced the
freedom of contract by status like condition. For example,
insurance, mortgage and tenant contracts etc have largely fixed
terms and parties face each other as member of social classes and
not individuals. In form, they bargain free but in substance they do
not.
3. During the world war two, in fascist as well as non-fascist
countries many limitation were imposed on the freedom of labour
and contract. In totalitarian government, there has been a shift from
contract to status i.e., retrogression. In totalitarian state , the
freedom of contract is confined to the narrowest limits and the
theory of maine does not apply there.
4. Maine ideas that the early development passed through the
successive stages of personal judgement, oligarchy monopoly and
code has been disvredited on the ground that it is too simple a
picture of that period. Primitive societies were more complex and
there were several form of such societies. The degree of
development of social institutions bear some correspondence with
the degree of economic development. The conclusion is that
primitive societies exhibited a wide range of institutions and there
was nothing like a single pattern as supposed by maine.
5. According to maine in progressive societies law is enacted in three
stages, in sequence, legal fiction , equity and legislation but now

deliberate legislation have become an early method of law making

with fiction and equity coming later on.
One of the main difference between Maine and Savigny is that
Maine did not accept the mystical adherence of Savigny to
Volkgeist, the general conscious of the people.

BASIC TENETS OF HISTORICAL SCHOOL

The Basic Tenets of Historical School can be Summarized as:

1. Historical jurisprudence is marked by judges who consider history,

tradition, and custom when deciding a legal dispute.
2. It views law as a legacy of the past and product of customs,
traditions and beliefs prevalent in different communities.
3. It views law as a biological growth, an evolutionary phenomena
and not an arbitrary, fanciful and artificial creation.
4. Law is not an abstract set of rules imposed on society but has deep
roots in social and economic factors and the attitude of its past and
present members of the society.
5. The essence of law is the acceptance, regulation and observance by
the members of the society.
6. Law derives its legitimacy and authority from standards that have
withstood the test of time.
7. The law is grounded in a form of popular consciousness called the
Volksgeist.
8. Law develops with society and dies with society.
9. Custom is the most important source of law

CONCLUSION
Historical school which develop as reaction to natural law school and
analytical school was successful in emphasizing custom as the important
source but savigny was so obsessed with custom that he neglect the

other important factors which contribute to the development of law.

Savigny concept of volkgeist is delusional in many aspects, he was in
support of inclusion of Roman law in Germany which itself was
inconsistent with his concept of volkgeist.
Introduction of law of wills which was alien to Hindus in India by
British show the inapplicability of his theory of volkgiest. Other
example include adoption of code of one by another country like
German civil code has been adopted in Japan.
Sir henry maine tried to present a balanced view of historical school, his
theory of shift of status to contract has applicability in capitalist country
but ceases to exist in fascist countries where there is a reverse trend of
contract to status.
The most invaluable contribution of histirical school is that it is a
movement for fact against fancy, a call for a return from myth to reality.

BIBLOGRAPHY

1. JURUSPUDENCE AND LEGAL THEORY- V.D MAHAJAN

2. STUDIES IN JURISPUDENCE AND LEGAL THEORY

- DR. N.V. PRANJAPE.
3. JURISPUDENCE AND INDIAN LEGAL THEORY
- PROF. S.N. DHYANI

ACKNOWLEDGEMENT

I would like to express my deep gratitude to my teacher

Yasir hakim abbas sir for giving me the topic of my
choice and also for providing guidelines for making it. I
would also like to thank my friends for giving me relevant
materials on the topics.
I would also like to extend my thanks to the librarian for
helping in searching the books on the project topic
Finally, I wish to thank my parents for their support and
encouragement throughout my study.

TABLE OF CONTENTS
1.INTRODUCTION

2.REASONS FOR THE EVOLUTION OF SCHOOL

3.F.K. VON SAVIGNY
-THEORY
-CONCEPT OF VOLKGIEST
-CRITICISM
4.HENRY MAINE
-THEORY
-SHIFT FROM STATUS TO CONTRACT
-CRITICISM
5.BASIC TENENTS OF HISTORICAL SCHOOL
6.CONCLUSION
7.BIBLOGRAPHY

JURISPUDENCE

PROJECT

TOPIC- HISTORICAL SCHOOL

SUBMITTED BYSUBMITTED TOMOHD FAISAL

ABBAS SIR
SECTION-B
ENROLMENT NO.-14-0308

YASIR HAKIM