Jurisprudence

Assignment Topic: Historical School Of Jurisprudence

Submitted to: Mr. Hakim Yasir Abbas

By: Md. Ahad Ali

4th Semester, Sec-B

Faculty of Law,

Jamia Millia Islamia

Student ID-20140820

Enrolment No.-0306
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Acknowledgement

Firstly, I would like to express my profound sense of gratitude towards the

almighty for providing me with the authentic circumstances which were
mandatory for the completion of my project.

Secondly, I am highly indebted to Mr. Hakim Yasir Abbas at Faculty of Law,

Jamia Millia Islamia University, New Delhi for providing me options to choose
the Topic which paved an easier path for the completion of Project Work.

I would also like to thanks some of my friends for providing me his books and
the very cooperative and friendly staff members in the Central and Law Library
who were instrumental in finding the necessary books without wasting much
time. It has to be noted that their contribution is essential as our University is
yet to get a fully functional centralised database for its libraries.
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Index
1. Introduction to Historical School.04
2. Prime reasons for the Evolution of Historical School.04
3. The Basic Tenets of Historical School..04
4. Introduction to Savigny05
5. Volksgiest..07
6. Criticism..09
7. Applicability of Savignys Theory to India..10
8. Analysis..11
9. Sir Henry Maine.12
10. Maine in India12
11. Classification of Development of Law in Stages14
12. Static & Progressive Societies..14
13. Difference between Historical & Analytical School.16
14. Conclusion.17
15. Bibliography..18
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Introduction to Historical School:

The Two Prime Reasons for The Evolution of Historical School:

i. It 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.1

ii. It came as a reaction against analytical positivism which constructed a soul-less

barren sovereign-made-coercive law devoid of moral and cultural values described as gun-
men-situation.

The Basic Tenets of Historical School can be Summarized as:

I. Historical jurisprudence is marked by judges who consider history, tradition, and

custom when deciding a legal dispute.2

II. It views law as a legacy of the past and product of customs, traditions and beliefs
prevalent in different communities. 3

III. It views law as a biological growth, an evolutionary phenomena and not an

arbitrary,fanciful and artificial creation.4

1
Agrawal Nomita,Jurisprudence(Legal theory),7th edi., Central Law Agency,Allahabad,2008 p.g. 305.

2
http://legal-dictionary.thefreedictionary.com/jurisprudence

3
Ibid.
4
Ibid.
 5

IV. 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

V. The essence of law is the acceptance, regulation and observance by the members of
the society.6

VI. Law derives its legitimacy and authority from standards that have withstood the test
of time.7

VII. The law is grounded in a form of popular consciousness called the Volksgeist.8

VIII. Law develops with society and dies with society.9

IX. Custom is the most important source of law.10

Introduction to Friedrich Carl Von Savigny: (21 February 1779 25 October 1861)

Savigny, the pioneer of historical school was born on February 21, 1779 in Frankfurt,
Germany and was one of the most respected and influential 19th-century jurists.11 He
advocated that the meaning and content of existing bodies of law be analyzed through
research into their historical origins and modes of transformation.12 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.13

He studied at the Universities of Marburg and Gottingen and acquired a deep knowledge on
the Roman law during his lifetime. He worked as a Professor of University of Berlin in 1810
and later was also appointed as the Prussian Minister of Justice in 1848. His major
contributions are

i. Law of Possession( das recht des bestiges), 1803.

5
Ibid.
6
Ibid.
7
Ibid.
8
Ibid.
9
Ibid.
10
Ibid.
11
http://en.wikipedia.org/wiki/Friedrich_Carl_von_Savigny
12
http://www.britannica.com/EBchecked/topic/525746/Friedrich-Karl-von-Savigny
13
Paranjape N.V., Studies in Jurisprudence and Legal Theory,7th edi., Central Law Agency, Allahabad,2013 , p.g.
51
 6

ii. The History of Roman law in Middle Ages in six volumes, 1818-31.

iii. System of Modern Roman law, 1840- 49.

iv. Contracts, 1853.14

In 1814, Professor Thibaut of the University of Heidelberg a natural law jurist put forward
a plan before German people for the legal unification of Germany on the pattern of
Napoleonic Code 1802 which would accelerate the process of political unification of
Germany as she was still politically divided.

But the same year Savigny issued a protest pamphlet, Vom Berufunserer Zeit fr
Gesetzgebung and Rechtswissenschaft (On the Vocation of Our Age for Legislation and
Jurisprudence), where he spoke out against the pamphlet by the famous Heidelberg jurist A.
F. J. Thibaut entitled On the Necessity of a General Code for Germany (1814)15 . So powerful
was his influence that the move towards codification was effectively halted and it was not
until 1900, after many years of sustained agitation, that Germany ultimately acquired her
code, the Burgeriches Gesetzbuch.16

He was not opposed to reform but maintained that reforms which were against the streams of
nations continuity were doomed. The essential prerequisite to the reform of German law was
a deep knowledge of its history.17

14
Dyan S.N., Fundamentals of Jurisprudence, The Indian Approach, Central Law Agency, Allahabad, 2004
p.g.245
15
http://findarticles.com/p/articles/mi_gx5229/is_2003/ai_n19150038/
16
Dias RWM, Dias Jurisprudence, 5th edi, Aditya Books, Butterworths, Delhi, 1995, p.g. 377
17
Mahajan VD, Jurisprudence and Legal Theory, 5th edi, Eastern Book Company, Lucknow, 1998, pg.560
 7

VOLKSGEIST:

Volksgeist (also Volksseele, Nationalgeist or Geist der Nation, Volkscharakter, and in

Englishnational character) is a term connoting the productive principle of a spiritual or
psychic character operating in different national entities and manifesting itself in various
creations like language, folklore, mores, and legal order.10

According to Savigny, the nature of any particular system of law, was the reflection of the
spirit of the people who evolved it. This was later characterized as the Volksgeist by
Puchta, Savignys most devoted disciple.18 Hence, 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.19

As already discussed, 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.13 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.
To him, legal system was a part of culture of a people. 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 develop its own legal habits, as
it has peculiar language, manners and constitution. He insists on the parallel between

18
http://www.jahsonic.com/Volksgeist.html

19
Dias RWM, (n6) pg. 378
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language and law. Neither is capable of application to other people 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.20 The view of Savigny was that codification
should be preceded by an organic, progressive, scientific study of the law by which he
meant a historical study of law and reform was to wait for the results of the historians.21

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. Savignys 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 people is necessary for studying the law
accurately.

In the words of Savigny,

In the earliest times to which authentic history extends the law will be found to have already
attained a fixed character, peculiar to the people, like their language, manners, and
constitution,. Nay, these phenomena have a separate existence, they are but the particular
faculties and tendencies of an individual people, inseparably united in nature, and only
wearing the semblance of distinct attributes to our view. That which binds them into one
whole is the common conviction of the people, the kindred consciousness of an inward
necessity, excluding all notion of an accidental and arbitrary origin.

Thus, in view of Savigny, law, like language, is a product not of an arbitrary and deliberate
will but of a slow, gradual, and organic growth.

Similarly, he also states that

20
Friedmann W., Legal Theory, 5th edi., Universal Law Publishing Co. Pvt. Ltd.,Delhi,2002, p.g. 213.
21
Mahajan VD, (n 7) pg.567
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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 custom as the source of law and Volksgeist (common
consciousness) as the ultimate foundation of any legal system.

Criticism:

As already stated, a precise and flawless definition of law is far from reality, and Savignys

Volksgeist is no exception. The following are the criticisms of Savignys Volksgeist:

1. Dias maintains that many institutions like slavery have originated not in Volksgeist
but in the convenience of a ruling oligarchy.22

2. 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.23

3. 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.24

4. 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.25

22
Dias RWM, Dias Jurisprudence, 5th edi, Aditya Books, Butterworths, Delhi, 1995, p.g. 391
23
Ibid
24
Ibid at 392
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5. 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.26

6. Paton states that the creative work of the judge and jurist was treated rather too lightly
by Savigny.27

7. 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.28

8. 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. 29

Applicability of Savingys Theory to India :

(i) Federal Constitution : In a federal Constitution (there is a division of powers b/w the
federal/Central & the State Govts. & both r independent in their own spheres), law lacks a
national character as envisaged by Savigny.

(ii) Source of Indian Constitution : The framers of Indian Constitution incorporated

various provisions of the Constitutions of world in order to avoid defects & loopholes that
might come in future such as (i) Chapter on F.R.s U.S.A.; (ii) Parliamentary System of
Govt. U.K.; (iii) Directive Principles Ireland; & (iv) Emergency Provisions Germany.
Since it has many features borrowed from other nations, it does not fit properly in the
Savignys scheme.

25
Ibid at 393
26
ibid
27
Ibid at 394
28
ibid
29
Ibid at 396
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(iii) Common law in India : The process of reception of English law through the agency of
the judiciary continued unabated law of torts, doctrine of cruelty, etc.

(iv) Deliberate legislationmaking : In modern times, many new doctrines dont always
reflect the popular consciousness, e.g., reservations for backward classes, uniform civil code,
etc.

(v) Judicial activism : Savigny ignored the creative function of the judges. Judge-made
law (precedents) or judicial legislation is a common feature today.

Analysis:

Volksgeist or the general will of the people was much prioritized by Savigny, the pioneer of
historical school. Savigny viewed Volksgeist i.e. common consciousness of the people as the
base of legal system. . In his view law was not something that should be made arbitrarily and
deliberately by a lawmaker. Law he said was a product of internal, silently- operating
forces30

It was deeply rooted in the past of the nation and its true sources were popular faith, customs
andthe common consciousness of the people. The concept of Volksgeist is in fact a much
needed element for the proper growth and functioning of law. A law cannot be law unless
accepted by the people. Since law is always for the betterment of the people hence it should
also be supported and accepted by them.

The concept of common consciousness has to some extent influenced every legal system and
Nepalese legal system is no exception. Acts like Samajik Vyabahar Sudhar Ain,2033
which20 Timalsina Ram Krishna, Some Landmark Decisions of the Supreme Court of Nepal,
Shakti Offset Press, New Banseswor, 2003, pg. 164. was in contrary to the social practices of
the people could never be implemented. More than three decades have passed but still the act
is in no use. The provisions laid down by it is not consistent with the customs and traditions

30
On The Vocation Of Our Age For Legislation and Jurisprudence, trans. A. Hyward (London, 1831) p 30 cited in
Bodenheimer Edgar, Jurisprudence: The Philosophy and Method of the Law, Rev. edi, Universal Law Publishing
Co. Pvt. Ltd, Delhi, 2006, pg, 71
 12

of people. So its enactment has been proved to be a total failure. Moreover the above
mentioned case also has clearly proved the impact of Savignys theory in the Nepalese legal
system.

But still, it isnt sufficient. It is just the half part and the other half is unexplained. In todays
world it is not always the custom or will of the people that counts. In order to be law need of
legislature act is a must. The creative work of the judge and jurist also play a crucial role in
defining law in the present era. Just a mere acceptance of people cannot be termed as law.
Law today seems something official and has gained much formal norms for its validity.
Savignys work on the whole, was salutary, however he ruined a large part of it due to
overemphasis. However , the importance of Volksgeist still remains matchless as it regarded
people as the centre of law rather than fanciful reason or the arbitrary will of supreme
legislature.

SIR HENRY MAINE (1882 1888) :

Sir Henry James Sumner Maine, KCSI (15 August 1822 3 February 1888), was a British
comparative jurist[1] and historian. He is famous for the thesis outlined in his book Ancient
Law that law and society developed "from status to contract."[2] According to the thesis, in
the ancient world individuals were tightly bound by status to traditional groups, while in the
modern one, in which individuals are viewed as autonomous agents, they are free to make
contracts and form associations with whomever they choose. Because of this thesis, Maine
can be seen as one of the forefathers of modern sociology of law.31

IN INDIA

The post of legal member of council in India was offered to Maine; he declined it once, on
grounds of health. The following year Maine was persuaded to accept, and it turned out that
India suited him much better than Cambridge or London. He was asked to prolong his
services beyond the regular term of five years, and he returned to England in 1869.32

The subjects on which it was Maine's duty to advise the government of India were as much
political as legal. They ranged from such problems as the land settlement of the Punjab, or the
31
https://en.wikipedia.org/wiki/Henry_James_Sumner_Maine
32
Ibid.
 13

introduction of civil marriage to provide for the needs of unorthodox Hindus, to the question
of how far the study of Persian should be required or encouraged among European civil
servants. Plans of codification were prepared, and largely shaped, under Maine's direction,
which were implemented by his successors, Sir James Fitzjames Stephen and Dr Whitley
Stokes.33
Maine became a member of the secretary of state's council in 1871, and remained so for the rest
of his life. In the same year he was gazetted a K.C.S.I

Oxford Professor
In 1869, Maine was appointed to the chair of historical and comparative jurisprudence newly
founded in the University of Oxford by Corpus Christi College.[6] Residence at Oxford was
not required, and the election amounted to an invitation to the new professor to resume and
continue in his own way the work he had begun in Ancient Law.34
In 1877, the mastership of Trinity Hall, Cambridge, where Maine had formerly been tutor,
became vacant. There were two strong candidates whose claims were so nearly equal that it
was difficult to elect either; the difficulty was solved by a unanimous invitation to Maine to
accept the post. His acceptance entailed the resignation of the Oxford chair, though not
continuous residence at Cambridge. Ten years later, he was elected to succeed Sir William
Harcourt as Whewell Professor of International Law at Cambridge.35

Savignys method of the historical school was followed in England by Sir Henry Maine, Lord
Bryce & many others who made studies of various legal systems on historical lines. Maine
published his first work Ancient Law in 1861. This is considered to be the manifesto of his
lifework in which he stated his general doctrines. He also wrote Village Communities (1871),
Early History of Institutions (1875) & Dissertations of Early Law and Custom (1883). He
was law member in the Council of the GovernorGeneral of India b/w 1861 & 1869, which
provided him an opportunity for the study of Indian legal system.

33
Ibid.
34
Ibid.
35
Ibid.
 14

Maine inaugurated both comparative & anthropological approaches to the study of

law. Unlike Savigny, Maine favoured legislation & codification, he did not share Savignys
mystique of the Volksgeist & he used the study of legal history mostly to understand the past
& not to determine the future course & standards.

Maine classified the development of law in the following stages :36

(i) In the beginning, law was made by the commands of the ruler believed to be acting under the
divine inspiration, e.g., Themistes of ancient Greek. When a king decided a dispute by a
sentence, the judgment was assumed to be the result of direct inspiration. The king was not
the maker of law, but merely an executor of judgments of the God.
(ii) In the second stage, the commands crystallise into customary law. Customs seem to have
succeeded to the prerogatives of the king. Hwr, they dont appear to hv pretended to direct
inspiration for each sentence & the progress of thought no longer permits the solution of a
particular dispute to be explained by supposing an extrahuman interposition.
(iii) In the third stage, the knowledge & administration of customs goes into the hands of a
minority, due to the weakening of the power of the original law-makers, usually of a religious
nature, e.g. priests. The ruler is superseded by a minority who obtain control over the law.
(iv) In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :37

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage
of development. The societies, which do not progress beyond the fourth stage & close the
era of spontaneous legal development, r static societies. The stationary/static societies dont
move forward beyond the era of the codes.

The societies, which go on developing their law by new methods, r called progressive
societies. They develop their law with the help of three instruments / methods, namely, legal
fiction, equity & legislation, in order to make law harmonious to social needs & change.

36
Paranjape N.V., Studies in Jurisprudence and Legal Theory,7th edi., Central Law Agency, Allahabad,2013 , p.g.
62-63
37
Paranjape N.V., Studies in Jurisprudence and Legal Theory,7th edi., Central Law Agency, Allahabad,2013 , p.g.
60
 15

(i) By use of legal fictions, law is altered to changing needs of the society, while it is pretended
that it remains what it was. Thus, legal fictions change the law according to the changing
needs of the society without making any change in the letter of law. He thought fictions
should be abandoned in a society because they made the law more difficult to understand &
harmonise legal order.
(ii) Equity is used to modify the law as a set of principles invested with higher sacredness than
those of original law. Equity came to remove the rigidity in law & to remove injustice, delay
& other inconveniences. According to Maine, equity is a body of rules existing by the side of
the original civil law & founded on distinct principles.
(iii) The final stage comes with the legislation, which is the last effective instrumentality of quick
social reform. Law can be enacted by explicit declarations of intention incorporated in the
language of legal enactments. Maine regarded it as the most desirable method of legal
change.

In early societiesboth static & progressive, the legal condition of the individual is
determined by status, i.e., his claims, duties, etc. are determined by law. The march of
progressive societies witnessed the disintegration of status & the determination of legal
condition of the individual by free negotiation on his part. The development of societies was
summed up by Maine in the following famous phrase, If we employ status to signify the
conditions only & avoid applying the term to said conditions, we may say that the movement
of the progressive societies has hitherto been a movement from status to contract.

From a condition of society, in which all the relations of persons wr summed up in the
relation of family, we seemed to hv steadily moved towards a phase of social order in which
all these relations arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without
reference to his will and of which he cant divest himself by his own efforts. The group, not
the individual, is the primary unit of social life. With the progress of civilisation, this
condition gradually gives way to a social system based on contract. This is the age of the
standardised contract & of collective bargaining (trade unions, business associations,
etc.). Even the contracts, which an individual enters into in everyday life, have been
standardised as contract for water, electricity or contract for a carriage with a railway
company. The freedom of contract is, thus, being curtailed every day.
 16

Thus, Maines theory of Status to Contract does not have much force in the modern age. In
India, the policy of mixed economy has assumed greater control over individual liberty &
freedom. The State can impose reasonable restrictions in the interest of the public {Art.
19(6)}. Pollock says that this theory is limited only to laws of property because personal
relations like marriage, minors capacity, etc. are still matters of status & not of contract.

However, in one sense, Maines theory still holds good. The trend of legislation in
undeveloped or developing countries is to remove personal disabilities, which arise due to
membership of a class (status).
Difference b/w Historical & Analytical School :

S.No. Analytical School Historical School

1. Law is the command of the sovereign Law is found & not made.
(created by sovereign).
2. Law is enforced by the sovereign. Law is independent of political authority
& its enforcement.
3. Example of typical law is Example of typical law is
statute. Custom isnt law, until its custom. Custom is law by itself. It does
validity has been established by a not require State recognition to become a
judicial decision/by an Act of law.
legislature.
4. Force of politically organised society is Law rests on the social pressure.
the basis of law.
5. Judges find themselves to interpretation Judges to consider only history of
of statute. legislation.
6. Applicable to developed countries Applicable to developing countries
matured legal systems. primitive legal institutions of society.
 17

Conclusion:

The insufficiency of natural law school and analytical school had provided a fertile land
where Savigny sowed seeds of historical school. In his view on law, he emphasized on
Volksgeist, a unique, ultimate and often mystical reality linked to the biological heritage of
a people. For him, law was not the result of arbitrary act of legislature but the result of
certain traditions and customs. Only by a careful study of these traditions the true content of
law was found. He marked the Volksgeist or the national spirit as the criteria for the validity
of any law. Although the concept is insufficient and is subjected to criticism by many jurists,
still its importance in understanding the theory of law is a milestone as it emphasized the
need of peoples acceptance for the formulation of any law, which is a universal principle
today.

On the whole, Maine presented a balanced view of history of law. Savigny had explained the
relation b/w community & law, but Maine went further & pointed out the link b/w the
developments of both. His conclusions are based on comparative study of different systems
& hence their value is greater than other studies based on Roman Law
exclusively. Influenced Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an
important piece of comparative legal research to a legal theory inspired by principles of
historical evolution. His great contribution to legal theory specially lies in the combination
of what is best in the theories of both Montesquieu & Savigny. Maines theory avoids the
danger of an excessive disintegration of theoretical laws of legal evolution. It is also free
from the abstract & unreal romanticism, unlike Savignys theory.
 18

Bibliography

Agrawal Nomita,Jurisprudence(Legal Theory), 7th edi., Central Law

Agency, Allahabad,2008
http://legal-dictionary.thefreedictionary.com
http://en.wikipedia.org
http://www.britannica.com
Pranjape N.V., Studies in Jurisprudence and Legal Theory,7th edi.,
Central Law Agency, Allahabad,2013
Dyan S.N., Fundamentals Of Jurisprudence, The Indian Approach,
Central Law Agency, Allahabad,2004
http://findarticles.com
Dias RWM, Dias Jurisprudence and Legal Theory, 5th edi, Eastern Book
Company, Lucknow,1998
Friedmann., Legal Theory, 5th edi., Universal Law Publishing Co. Pvt.
Ltd., Delhi,2002