Historical school of jurisprudence

This school believes that the emergence of law is from the evolution of social practices,
intrinsically linked with customs, moral principles, spiritual codes, economic interests, and
Rules of etiquette. It argues that law is the fruitful outcome of the evolutionary process that
society has gone through ever since its origin and not just exists as an upshot of royal
command or command of the sovereign in a trice. Here is the subject that controverts the
notion of the natural school of law, which argues that law originated from the command of
supreme power and has some divine references. Since being the product of the past, it
resulted in historical progression and developments. “The Historical school of Jurisprudence
manifests the belief that like men has past so does the law[1].”

This school of jurisprudence further holds that the law is based on the collective conscience
of mankind since the societal outset and rests upon the notion of laws are the established
facts.

It counted the idea of manmade laws by agreeing on the fact that the law is dynamic, not
static, and evolves overtimes in accordance with the societal changes and needs. They
substantiate it with the principle of ‘Formulation of the law is for the people and by the
people. Salmond considers the historical school as, “That branch of legal philosophy which is
termed historical jurisprudence is the general portion of legal history.

This school is also known as the continental school of jurisprudence, as it relies on the
customs and beliefs of the people that vary over time but not on the commands of judges or
any other superior powers.

The historical school of jurisprudence wholly rejected the definition of law propounded by
analytical jurists. For instance, Austin and Bentham opined, ‘a law may be resolved into a
general command, one emanating from a sovereign or lawgivers and imposing an obligation
upon citizens, which obligation is enforced by a sanction or penalty, threatened in the case of
disobedience’. The aforesaid definition was rejected as untrue, unsatisfactory, and not
applicable or impracticable.

What, then, is Law?

To gather the collective definition of law in the lights of the historical school of
jurisprudence, it is a prerequisite to figuring out the theoretical framework of this school laid
by its jurists. The prominent thinkers of this school include,

• Montesquieu
• Von Savigny
• George Friedrich Puchta
• Sir Henry Maine

Their thoughts and contemplations are as follows,

Montesquieu:

Charles-Louis de Secondat, baron de La Brède et de Montesquieu is the 1st jurist who

endorsed the historical school approach in understanding the concept of law, said Sir Henry
Maine. Montesquieu was a French judge, philosopher, politician and intellectual, who
researched and construed laws of various societies and concluded that the ‘law is the creation
of the climate, local situation, accident or imposture’. Hence, there is no point in arguing
whether or not the law is good since it depends on the social milieu.

He further alluded that the law should be dynamic as, like society, it changes in accordance
with the needs and demands of the civilization. However, he did not go further in explaining
his perception of law and society or historical school by establishing a detailed theory. He
prescribed that the law should be capable of meeting the demands of hoi polloi. Indeed, he
suggested the same in his book ‘The Spirit of laws’.

Savigny:

Friedrich Karl von Savigny, a German jurist, and historian, considered to be the father of the
historical school of jurisprudence. He was pointing the ideas of natural and positive laws and
rejected the same. He believed that the law is not universal as it varies with the time, place,
and conscience of the people, thus, it cannot be employed abruptly.

Von Savigny

Key perceptions of Savigny:

• Law is sui generis.

• Law develops with people’s life and conscience not made or invented.
• Law is relatable to language, which bears its own country’s customs and cultures,
hence cannot be applied universally.
• Law grows with nations and dies with its dissolution.
• Law is found as a societal principle nevertheless later, developed by jurists.

What is law according to Savigny?, “ it is a 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 the influences which play upon it.” Lucidly,
the law is the outcome of the historical course, which has manifested the customary laws.
Thus, the law isn’t a product of enacted legislation but is the replica of national spirit. As
mentioned, in Savigny’s opinion, the legal system is a reflection of the national
consciousness, he named it volkgeist.

Law as the product of ‘volkgeist’:

In common parlance, volkgeist is the collective consciousness of the people in a society.

Generally, a specific set of people always resembles a particular genre of culture, morals,
beliefs, and intellectual conscience as a community or nation, later such traits and customs of
society form the legal bedrock, depends on which the future legal decisions will be made.
Thus, the sense volkgeist becomes the part and source of law.
Savigny added that volkgeist is the outgrowth of the developing spirit of the national hood.
Thereby, he advised the legislators to think before opting for reforms since reforms are the
end of a national sense of continuity. Thus, according to him, the law is an integral part of the
nation, which is an organism that grows and dies with time.

Criticisms on Savigny’s theory:

His idea of volkgeist was lambasted for its abstruseness. Firstly, he argued that the law is the
product of volkgeist, per contra, on the other side; he stated that Roman principles have
universal applicability.

The concept of volkgeist only has limited applicability, but Savigny unjustifiably exaggerated
its scope to universal.

Somewhere he ignored that even people who belong to the same community have a
difference in opinions.

He overlooked the significant role played by the judiciary, which has been a powerful
influencer of law. Prof. Stone stated the same and added that Savigny ignored legislation and
law as an instrument of social change by focusing more on the spirit of the people. E.g.
abolition of sati, widow remarriage, so on.

Critics claimed that volkgeist can never be the only source of law as Savigny propounded,
since we have certain laws, which are inspired or adopted from other countries, and history
had shown, some enacted laws were directly opposite to the people’s spirit. Charles Allen
pointed the same; it is pointless to consider customs as the only source of law since customs
are not the sole product of people’s consciousness. He claims that customs are the by-product
of few societal superiors. In particular, he invoked the slavery practices that prevailed in
some societies by highlighting who had driven such practices? It is the public knowledge that
it was in the interest of few powerful classes.

Sir Henry Maine:

Sir Henry Maine, a British jurist, had analyzed the legal system of various societies and
propounded the detailed theory on the evolution of law by comparing them. His ideas have
traces of Montesquieu and Savigny’s theories, but he never annulled the concept of codified
laws and legislations. With the help of comparative study on legal evolution, he concluded
that law has four stages of development, are as follows,
henry-maine

Stage I- Rulers as lawmakers:

A ruler derives his authority from God and acts under divine inspiration. His judgments and
decisions are believed to be an order rendered by God. Thus, he is an executor of God’s
orders.

Stage II- Customary laws:

Privileged class people provide the impetus for customary laws. It is merely the accomplished
commands of the ruler or commands crystallize into customs. In specific it is the precedents.

Stage III- Administration of customary laws by minorities:

Minorities take control over those customary laws after when the original lawmaker went
powerless. The knowledge and administration of customs go into the hand of minority
especially religious.

Stage IV- Codification of law:

In this stage, the law gets codified.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This
school laid more emphasis on the legal perspective of every problem and every change that
take place in society. Law is a social phenomenon and law has some direct or indirect relation
to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of
legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology.
Every problem or concept has two different aspects. One is sociological view and other is a
legal aspect. For example Sati.

Legal and Sociological aspect of Sati

Sati was the ancient Indian practice of burning the widow on her husband’s funeral pyre.

The legal aspect:

Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under the British
jurisdiction. A ban on Sati was imposed in 1829 in the British territories in India. In today’s
time, the practice of Sati is banned under the Prevention Of Sati Act (1987) which makes it
illegal to force or encourage anyone to commit Sati.

The sociological aspect:

In today’s era of escalating feminism and focus on equality and human rights, it is difficult
and amiss to digest the ruthless Hindu practice of Sati. Indeed, the practice is outlawed and
illegal in today’s India.

Reason for the emergence of Sociological School of Jurisprudence

What is Laissez-Faire?

According to the Britannia dictionary, “ Laissez-faire is the policy of minimum governmental

interference in the economic affairs of individuals and society.”

Laissez-Faire is the unrestricted freedom given to people by the government. It is a

governmental policy in which the government and law will not interfere in the economic
matter of people. In the Laissez-Faire economy, the only role of government and law is to
prevent any conflict and coercion against individuals like theft, fraud etc

The sociological approach to jurisprudence which resulted out of the change in the political
shift from the doctrine of the laissez-faire, the industrial and technological revolution and
finally the historical school bringing into focus the relationship between the law and social
welfare State of the modern century, has attempted to study law as seeking social origin of
law and legal institutions, testing law as a given social phenomenon and lastly judging law by
its social utility.

Due to Laissez-Faire, all people are giving more importance to the individual interest and
ignored the general interest or state interest and welfare of the state. The Sociological school
came out as a reaction against the laissez-faire because sociological school advocates the
balance between the welfare of the state and individual interest.

Jurist of the Sociological School of Jurisprudence

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of
jurisprudence. He was of the view that the legal process is somehow influenced by the social
condition of society. He also recognized the importance of history as a means for
understanding the structure of society. And explained the importance of studying the history
of society before formulating the law for that society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics
of a nation so that they should be in relation to the climate of each country, to the quality of
each soul, to its situation and extent, to the principal occupations of the natives, whether
husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty which
the constitution will bear, to the religion of the inhabitants, to their inclinations, riches,
numbers, commerce, manners, and customs.”

Eugen Ehrlich (1862-1922)

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the
study of law from the sociological perspective. Ehrlich considered society as a main source of
the law. And by society, he means “association of men”.

Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or
judicial decisions but in society itself.”

He argued that society is the main source of law and better source of law than legislation or
judicial decision.
Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual
working and not as it stands in the book. He was one of the most leading and important jurists
who developed American sociological jurisprudence is a systematic manner. His major works
are:

• Spirit of the common law.

• An introduction to the philosophy of law.
• Interpretation of legal history.
• Law and morals.
• The formative era of American law.
• Administrative law.
• Social contract through law.
• The task of law.
• He treated law as a means of affecting social control and his contribution to
jurisprudence is great.

The functional aspect of the law.

Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the
rules, principles, conceptions and standard of conduct as a developed technique of social
engineering. The main function of law is to satisfy the maximum number of people. Not only
this function but also to reconcile the conflict in the interest of individuals and society.

Theory of Social Engineering

Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which
provides maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the
competing interests in society,” in which applied science is used for resolving individual and
social problems.

Social Engineering is the balancing the conflicting interest of Individual and the state with the
help of law. Law is a body of knowledge with the help of law the large part of Social
engineering is carried on. Law is used to solve the conflicting interest and problems in
society.

He mentioned that everybody has its own individual interest and considered it supreme over
all other interest. The objective of the law is to create a balance between the interests of the
people. For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and
expression’ but on the other side, State put some restriction on this right. And when the
conflict arises between Individual right and State’s restriction, then the law comes to play its
part. And solve the conflict between the interests.
He describes that there are various kinds of interests in society and the main task of law is to
make all possible efforts to avoid conflict between them. Thus, courts, legislature,
administrators and jurists must work with a plan and make efforts to balance these three
categories: Public, Private and Social Interests.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the
overlapping of the interests, he put boundaries and divide the kinds of interests.

Individual/ Private Interest

These are claims or demands involved from the standpoint of the individual life which
consists of interest of personality, interest in domestic relations and interest of substance. The
individual’s interest is known as private interest like physical integrity, reputation, etc. and
they’re protected by the law of crime, torts and Contract Law, etc.

Domestic relations of a person such as a husband and a wife, parents and children, etc. are
protected by Personal Law.

The interest of the property, succession, contractual relations, testamentary relations, etc. are
protected by Property Laws.

Public Interest

These are the claims or desires asserted by the individual from the standpoint of political life
which means every individual in a society has a responsibility towards each other and to
make the use of things which are open to public use. Main public interest is interest in the
preservation of States.

Administration of trust, charitable contracts, protection of the environment, regulation of

public employment, etc. are being protected by the States.
Social Interest

These are the claims or demands in terms of social life which means to fulfil all the needs of
society as a whole for the proper functioning and maintenance of it. Interest in the
preservation of general peace, health, security of transaction’s, preserving social institutions
like religion, politics, economic.

Interest in preservation of peace and health.

Preserving social institutions of religion, politics and economics.
Preserving certain prohibiting acts like prostitution, gambling, etc.
Conservation of social and natural resources.
General progress including economic, political and cultural areas. For e.g.- Freedom of Trade
and Commerce, Speech and Expression, etc.
Interest to make a political, physical, social and economic life to promote personality.

Jural Postulates by Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions for proper order and
balance in society. These assumptions are implied and not in expressed form and are called as
Jural Postulates of the legal system of that society. These assumptions of man related to the
reference for what they want from the law or legal system or we can say that it is the
expectation of a man from the law. He has mentioned five kinds of jural postulates:

• In a civilised society, man must be able to assume that others will not commit any
intentional aggression on him.
• In a civilised society, man must be able to assume that they must control for beneficial
purposes. E.g.- control on whatever they discover or create by their own labour.
• In a civilised society, man must be able to assume that those with whom they deal as a
number of societies will act in good faith.
• In a civilised society, man must be able to assume that the people will act with due
care and will not cast unreasonable risks of injury on others.
• In a civilised society, man must be able to assume that certain people must restrain
from doing harmful acts under their employment and agencies which are otherwise
harmless to them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for
civilised life and with the changes in society, the jural postulates may emerge or originate in
society.

Criminal
An interest of protection from any intentional aggression. For Example, Assault, Wrongful
restraint, Battery, etc.

Law of Patent
An interest of securing his own created property by his own labour and hard work. E.g.
agricultural land, any music or artistic things.

Contract
The interest in making the contract and getting of reasonable remedy or compensation when
his right violate

Torts
Protection against Defamation and unreasonable injury caused by the negligent act of another
person.

Strict Liability
Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the
things of another person. It is the duty of other people to keep his/her things with his/her
boundary and should look after that thing to avoid injury to other people.

Leon Duguit (1859-1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He was
greatly influenced by the Auguste Comte and Durkheim. He gave the theory of Social
Solidarity which explain the social cooperation between individuals for their need and
existence. Duguit’s theory was based upon Auguste Compte statement that “the only right
which man can possess is the right towards his duty.”

Social Solidarity

Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength,
cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social
Solidarity explain the interdependence of men on his other fellow men. No one can survive
without the depending on other men. Hence the social interdependence and cooperation are
very important for human existence.

The objective of the law Is to promote Social solidarity between Individuals. And Leon
Duguit considered that law as bad law which does not promote social solidarity.

Further, he also said that every man had the right and duty to promote social solidarity.

For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social
Solidarity.

Importance of Duguit’s theory:

Over emphasises was given on duties rather than rights.

The direction towards mutual cooperation among individuals in society.
Law as an instrument of social solidarity to promote justice.

Ihering:

Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He
was against the theory of individuals welfare and favours the factor that social interest of
society must have a priority over an individual’s interest and the purpose of the law is to
protect the interest of society, that is why his theory is known as ‘Jurisprudence of Interest’
which emphasises on the sociological aspect of Sociological School of Law. He described the
law in following aspects:

• Law as a result of Constant Struggle: Ihering pointed out that the social struggle
gives birth to law and the role of law is to harmonize the conflicting interests of
individuals for the purpose of protection of interest of society. He gave importance to
living law which develops with the struggles of society.
• Law as a means to serve Social Purpose: According to him, the ultimate goal of the
law is to serve a social purpose. It is the duty of the state to promote social interests
by avoiding various clashes between social and individual interests. According to him,
“law is coercion organised in a set form by the state”, which means that he justified
coercion by the state for the purpose of social welfare.
• Law as one of the means to control society: Law alone is not a means to control
society, there are some other factors also like climate, etc. Like Bentham, Ihering
 favours the interest in the achievement of pleasure and avoidance of pain but for the
society, that’s the reason that Ihering theory is also known as the theory of “Social
Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled by the state
by means of coercion, reward and duty for achieving social control for the welfare of society.
Friedman said that “Ihering was declared as the father of modern sociological jurisprudence
because of his concept of law as one of the important effective factors to control social
organisms.”

Understanding Legal Realism

Legal Realism is a jurisprudential movement that seeks to understand the law as it operates
in practice, emphasising the role of judges and their decisions in shaping legal outcomes.

Unlike traditional legal schools of jurisprudence that view the law as a collection of objective
rules and principles, Legal Realism contends that the law is, in fact, subjective and malleable.
It suggests that judges’ personal experiences, biases and societal influences play a significant
role in their decision-making processes.

Notable Jurists of Realist School of Jurisprudence

The Realist School of Jurisprudence boasts a rich array of influential jurists who made
substantial contributions to the development of Legal Realism. Let’s explore some of the key
figures in this movement:

John Chipman Gray (1839-1915)

Often regarded as one of the founding fathers of the Realist movement, Gray was
instrumental in shaping the school’s early principles. Gray believed that the court, rather than
the legislature, constituted the most significant source of law. He argued that judges played a
pivotal role in giving life to the words of statutes.

His work laid the groundwork for a more critical approach to jurisprudence that focused on
non-logical variables affecting judgment, such as judges’ personalities and biases.

Oliver Wendell Holmes, Jr. (1841-1934)

Holmes is renowned for his “bad man’s theory,” which views law from the perspective of
potential wrongdoers. He emphasised that law serves the interests of those who may
potentially violate it, rather than those who follow it obediently.

Holmes separated law from ethics and morality, asserting that understanding the law’s
practical implications required examining it from a realist perspective.
Jerome N. Frank (1889-1957)
Frank categorised Realists into two groups: one skeptical of legal standards ensuring
consistency in the law and the other skeptical of the establishment of facts before trial courts.

He was part of the second group and emphasised the unpredictability of the legal system.

Frank argued that rigid adherence to precedent and defined rules was misguided and he
advocated for lawmaking that considered the evolving societal context.

Carl N. Llewellyn (1893-1962)

Llewellyn expanded on the Realist approach by considering legislation as a tool for achieving
broader social goals. He argued that the law needed to be examined in its entirety, including
its purpose and impact on society.

Llewellyn introduced the concept that law is essentially a prediction of what the court will do
in specific situations, highlighting the pragmatic nature of legal decisions.