Historical School of Jurisprudence

HISTORICAL
SCHOOL OF
JURISPRUDENCE
DR. PARMILA DHIMAN
ASST. PROFFESSOR
CONTENT CREDIT- DR. N.V. PARANJAPE
Kirit P. Mehta School of Law,NMIMS
MONTESQUIE PUCHTA SAVIGNY HENRY MAINE
HISTORICAL SCHOOL EXPONENTS

HISTORICAL SCHOOL:
CONCEPTION OF LAW
The revolutionary ideas generated by positivistic legal thinking had a devastating effect as
they failed to meet the needs of the people.
 Consequently, it led to the emergence of new approach to the study of jurisprudence
based on history and historic conception of law.
Jurists like Vico in Italy, Montesquieu in France, Burke in England and Hugo and Herder in
Germany announced a new era in the development of legal theory and viewed law as a
legacy of the past and product of customs, traditions and beliefs prevalent in different
communities.
Cont.….
The Historical jurists believe that law has biological growth and it has
not evolved in an arbitrary and erratic manner
The exponents of Historical School of jurisprudence take social
institutions in their sequence with primacy to primitive legal

institutions of the society.
The Historical school concentrates on the evolution of law from the
primitive legal institutions of the communities.

Cont
…..
The task of historical school is to deal with the general principles
governing the origin and development of law and with the influences
that affect the law.
The school does not attach importance to relation of law t the state
but gives primacy to the social institutions in which the law develops
itself.
SAVIGNY
(1779-1861)
SAVIGNY
Savigny was the main exponent of the Historical interpretation of law
and is considered to be the propounder of the historical jurisprudence.
He traced the development of law as evolutionary process much before
Darwin gave his theory of evolution.
It is for this reason that Dr. Allen described savigny as ‘Darwinian before
Darwin’ for his contribution to apply the evolutionary principle to the
development to the legal system.
Cont….
Savigny’s theory of law evoked mixed reaction as it inspired people
to struggle against foreign dominations but at the same time
encouraged fascism and Nazism in Italy and Germany which
eventually led to disastrous world wars.
Some jurists alleged that savigny’s fundamentalist ideology boosted
racial discrimination in Asia and Africa and led to ethnic communal
tensions and religious conflicts.
Volkgeist as a
source of law
Savigny firmly believed that law is a product of the general
consciousness of the people and a manifestation of their spirit.
Therefore, codification of German law was not desirable for its
smooth development at that time which eventually delayed
codification of German law for another fifty years.
The origin of law lies in the popular spirit of the people which savigny
termed as VOLKGEIST
Cont.….
According to Savigny a law made without taking into consideration

the past historical culture and tradition of community is likely to
create more confusion rather than solving the problems because ‘law’
is not an ‘artificial lifeless mechanical device’.
Savigny’s Contribution to the
development of Historical School
Law develops like language
Early development of law is spontaneous; thereafter jurists

developed it.
Savigny was opposed to the codification of German law.
Law is a continuous and unbreakable process.
Admiration for Roman Law

MAIN TENETS OF SAVIGNY’S
THEORY
Law has an unconscious organic growth, it is neither found not
artificially made.
The basis of the law is to be found in VOLKGEIST which means
people’s will and consists of traditions, customs, habits, practices and

beliefs of the people.
Law is not universal in nature but like language, it varies with people,
time and needs of the community.

Cont.…
Since law should always conform to popular consciousness i.e.

volkgeist, custom not only precedes legislation but is superior to it.
Lawyers and jurists are more important than the legislators in the
process of development of a legal system as the popular
consciousness is represented by the lawyers who are nothing but the
mouthpiece of the popular consciousness.
CRITICISM AGAINST SAVIGNY’S
THEORY OF LAW
Savigny emphasized on the national character of law but at the same
time suggested to adopt Roman law model in Germany.
He located origin of law in the volkgeist but at the same time
asserted that certain customary principles of Roman law had universal
application.
Savigny’s undue importance to Roman law has been bitterly criticized
by Eichhorn, Baselor and Gierke and it was because of their
intervention that the German code was drafted in subsequent years.
Cont….
Jurists alleged that savigny’s theory of law is negative, obscure and
suffers from narrow sectarian outlook as he was against the
codification of law which is one of the most accepted forms of
modern progressive legislation.
Savigny’s view that customs are always based on the popular
consciousness is also not accepted as many customs such as slavery,
bonded labour etc. are originated to accomplish the selfish interest of
those who were in power.
Cont….
The theory of volkgeist overlooks the impact of other sources of law
such as legislation, precedent etc. in the evolution of law.
Roscoe Pound criticized Savigny’s theory that it hindered legal
reforms and modernization of law in the name of volkgeist.
Roscoe Pound also observed that no legal system would like to stick
to the prevalent abuses and baneful customs only because people are
accustomed to them.
Sir Henry Maine
(1822-1888)
Sir Henry Maine
Maine’s contribution to historical jurisprudence is so great that he is labelled as

‘Social Darwinist’ for he envisaged a social order wherein the individual is finally
liberated from the feudalistic primitive bondage.
Maine was the Law member of the central legislative council in India during
1863-1869 as a successor of of lord Macaulay.
He studied ancient law in India and drew a comparison between the Indian law
and the laws of western societies.
Cont.…
Maine, through his comparative researches came to a conclusion that the
development of law and other social institutions have been more or less on an
identical pattern in almost all the ancient societies belonging to Hindu, Roman
and Germanic communities.
Most of these communities are founded on patriarchal pattern wherein the
eldest male parent called the pater familias dominated the entire family
includes all its male and female members, children and slaves as also the
property.
It is because of his kinship namely blood relationship with the family that a ha
person acquired a status. Thus the law of person was to be determined on the
basis of his Status.
He also explained the movement of the Progressive societies from status to
contract.
FOUR STAGES OF DEVELOPMENT OF LAW
Devine Law
Customary Law
Priestly class as a sole repository of Customary law
Codification
THREE METHODS BY WHICH PROGRESSIVE
SOCIETIES DEVELOP THEIR LAWS
Legal Fiction
Equity
Legislation
Historical And Analytical Distinguished
 Discussed points of difference in Historical approach which relates
law with state and Historical approach which relates law with customs
and traditions.
Indian Perspective
 Discuss Indian Legal System in reference to Historical approach.
Thankyou!

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HISTORICAL

HISTORICAL SCHOOL EXPONENTS

they failed to meet the needs of the people.

 Consequently, it led to the emergence of new approach to the study of jurisprudence

based on history and historic conception of law.

not evolved in an arbitrary and erratic manner

The exponents of Historical School of jurisprudence take social

institutions in their sequence with primacy to primitive legal

The Historical school concentrates on the evolution of law from the

primitive legal institutions of the communities.

According to Savigny a law made without taking into consideration

Early development of law is spontaneous; thereafter jurists

Law is a continuous and unbreakable process.

Admiration for Roman Law

The basis of the law is to be found in VOLKGEIST which means

people’s will and consists of traditions, customs, habits, practices and

time and needs of the community.

Since law should always conform to popular consciousness i.e.

Maine’s contribution to historical jurisprudence is so great that he is labelled as

Priestly class as a sole repository of Customary law

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