This article is written by Saba Banu, a 3rd year law student, from Pendekanti Law College, Hyderabad.
The study of jurisprudence, as other branches of law, was started among Romans first. The word ‘jurisprudence’ springs from the Latin word ‘jurisprudentia’ which suggests the knowledge of law. Jurisprudence is that the theory and therefore the study of law. Law is a very complex subject. The understanding of an idea differs from one person to different person.
Historical school of jurisprudence deals with the origin and development of the overall principles of law. The origin of the law is a continuous process and it does not stop by any command or anything.
Reasons for the Evolution of Historical School
The reasons for the origination of the historical school are that;
a) Reaction to the natural school: As the believers of the natural school believes that the origin of law is by the divine power. The believers say that it has been already in existence, and it is not the same as of the historical school of law. Under, the historical school of law, the believers think that it is not originated by the divine power, but has formulated by the people, which is not as same to the natural school.
b) The historical school of law, opposes the ideology of the analytical school of law.
Austin is considered to be the father of analytical school of thought, the method which Austin applied, and he confined his field of study only to be the positive law. On the basis of Austin’s conception of law. It shall be convenient to discuss Austin’s theory under two main heads:-
1) Austin’s conception of law.
2) His method.
Jurists of Historical School of Law
Montesquieu: Maine described him as the first jurist who proceeded on the historical school of law. This particular jurist made researches into the institutions and laws of the various societies and made a conclusion on the researches made by him that “that laws are the creation of climate, local situations, accident or imposture”. The suggestion of relativity of law, and that the law should answer the needs as according to the time and place, is a step in the directions of new thinking.
Savigny: Savigny is considered as the father of the historical school of law. The Law has source within the general consciousness of the people. He said that Law develops like language and Law features a national character. Law, language, customs and government haven’t any separate existence. There’s one force and power in people and it underlies all the institutions. The law, language, develops with the lifetime of people.
Savigny’s theory is often summarized as follows:
1) That law may be a matter of unconscious and organic growth. Therefore, according to him law is found and not made.
2) The law is universal in nature, like language, people and lots of other things within the world.
3) Custom not only precedes legislation, but it’s superior thereto. The Law should conform the favored consciousness
4) Legislation is that the last stage of law-making and thus, the lawyer or the jurist is more important than the legislator.
Criticism of Savigny’s theory
1) Inconsistency within the theory: He emphasized the national character of law, but at the equivalent time he recommended a way how the Roman law are often adapted.
2) Customs not always supported on popular consciousness: Savigny’s view is whole not perfectly sound, because many customs originated just for the convenience of a powerful minority. Sometimes, customs completely against one another exist within the different parts of the country which can’t be reflecting the spirit of the whole community.
3) He ignored other factors that influence law: Another criticism against him was ‘so occupied with the source of law that nearly forgot the stream’. The creative function of the judge was also ignored by the Savigny’s theory.
4) Many things were unexplained: Certain traits, like mode of evolution and development weren’t explained by the Savigny.
Savigny’s Influence Very Wide
The theory of school, later on, influenced many jurists. It had been after Savigny that the worth of historical method was fully understood. His method was followed in England by Maine, Lord Bryce, and lots of others who made studies of various legal systems on historical lines.
Puchta made a valuable contribution to jurisprudence by giving the two-fold aspects of the human will and origin of the state. On some points, Puchta made improvements upon the ideas of Savigny and made it more logical.
Main Doctrines of Historical School
The principle doctrines of the school, by Savigny’s and a number of his followers, maybe summarized as follows:
(1) ‘Law is found, not made’. A special view is taken of the facility of act. The evolution of law is actually biological process.
(2) As law develops from a couple of easily grasped legal relations within the communities to the greater complexity of law in modern society. The lawyer, is therefore a comparatively more important law-making agency than the legislator.
(3) Laws aren’t of universal validity or application. Each individual develops its own legal habits, because it has language, manners and a constitution. Savigny insists on the parallel between language and law.
Stages of Evolution of Law
1) Law made by the ruler: Laws are the command of the ruler, back in those days. The decisions rendered by them are the decisions of god.
2) Customary laws: The laws were used as precedents as ordered by the courts.
3) Knowledge of law in minorities: The law was controlled by the priests, the power of the ruler weakened and the believe in the priests and customs took in their hand.
4) Codification: The law was codified.
The historical school deals with the past and the present, Historical school of jurisprudence describes the origin of law. Many jurists like, Montesiqueu, Puchta, Savigny were the supporters of the historical school.
According to maine, Montesquiue was the first jurist of the school.
Savigny was the father of the historical school. He told that law is like a language which develops and have a national character. Puchta made improvements in the Savigny’s theory and made it more logical.
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