This article is written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the views of various philosophers on Historical school of law and its evolution.
Background of Historical School of Law
Study of Roman Law
The historical approach to law derived its inspiration from Roman law. Commentators of the Roman law attempted to relate roman law to the problems of their day. This accelerated the growth of various other branches of law. The study of Roman law was received in Germany in the fifteenth and sixteenth centuries. This contained the historical approach in its embryonic.
The eighteenth century was the century of rationalism. The spirit of individualism pervaded the whole legal thought of this century. Revolution brought changes in the modes of governments. Thinkers and philosophers thought of framing laws by deliberations which they considered would be unchangeable and having universal application because they were based on Natural law principles.
Science of Economics
Science of Economics influenced other branches of law, social philosophers had started preaching for the emancipation of the classes.
Formation of a new class
All these factors made the philosophers think in a new way for the solutions to the problems that arose. They turned to history and historic conception for guidance and enlightenment and this led to the birth of a school of thought known as Historical school of law.
“Law is founded and not made”, the famous quote is the basis of the historical school of law. The historical school of law was founded by Friedrich Karl and Von Savigny. According to this school, the law is the creation of interactions between the local situations and conditions of people, the law is not founded by any political superior but found and given by people. Proponents of Historical schools place the customs of the people as the major source of law which should not be overlooked.
The historical school of law owes its development to the historical school of jurisprudence which believes that as customs and habits of people change, the law should also develop accordingly. The historical school of law rejects the natural school of law and realist school of law which gives emphasis on God and judges as the major source of law.
Reasons for the development of the historical school of law:
It came as a reaction against the natural school of law which believed that there are certain principles that are universally applicable without taking into consideration any social, historical or any other factors.
It also came as a reaction against the positivist school of law which believed that law is created by the sovereign and the people are bound to obey the laws even if the law made is oppressive.
Basic principles of Historical school of law
It views the law as a legacy of the past and the product of customs, traditions, and beliefs prevalent in different communities.
It views the law as biological growth, not an arbitrary, fanciful and artificial creation.
Law is the abstract set of rules imposed on society but has deep roots in social, economic factors and the attitude of its past and present members of its society.
Law is not of universal validity or application. Each community develops its own legal habits, as it has its peculiar language, manners, and constitution.
Proponents of Historical School of Law
Savigny was a German philosopher who is considered to be one of the founding fathers of the Historical school of law. According to him, the law is the product of people’s life and it is a manifestation of its spirit. Law has its source in the general consciousness of the people. He termed this as Volksgeist.
Savigny’s Concept of Volkgeist
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 characterized as the Volksgeist, hence in simple terms, Volksgeist means the general or common consciousness of the people and manifestation of their spirit. The basis of the origin of law is to be found in Volksgeist which means people’s consciousness or will and consists of traditions, habits, and beliefs of the people.
Savigny’s central idea was that law is an expression of the will of the people, it doesn’t come from deliberate legislation but arises as a gradual development of common consciousness of the nation. The essence of Savigny’s Volksgeist was that a nation’s legal system is greatly influenced by the historical culture and traditions of the people and the growth of law is to be located in their popular acceptance. According to Savigny law should always conform to the popular consciousness i.e Volksgeist, therefore customs and historical tradition as a source of law not precede legislation but also is superior to it.
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 have developed over time”. Savigny’s method stated that law is the product of Volksgeist embodying the whole history of a nation reflecting inner convictions that are rooted in society’s common experience. The Volksgeist derives 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.
“Law is like a language, it has a national character”
In Savigny’s understanding in all societies, the law is established like a language. These laws are stamped with a national character. These are the natural manifestations of popular life and by no means a product of man’s free will. Law, language, customs, and government has no separate existence. There is only one force that is the people and they underline all these institutions. Thus “law is like a language which develops with the life of people”.
“Early development of law is spontaneous later on it is developed by jurists”
About the development of law Savigny says that in early stages law develops spontaneously according to the principles of internal necessity. Later when a society has reached a certain level of civilization these are taken up by specialists, jurists, and scientists under whom these laws become much richer in ideas and more complete and technical. Therefore the law has assumed a double role on the one side it is the general national life on the other side it is the distinct science for jurists.
Summary of Savigny’s Theory
The law is a matter of unconscious and organic growth, therefore the law is found and not made.
Law is not universal in its nature. Like language, it varies with people and age.
Customs not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness.
As law grows into complexity, the common consciousness is represented by lawyers who formulate legal principles.
Savigny’s Contribution to Historical School of law
Savigny’s theory came as a powerful reaction against rationalism and principles of natural law. The idea of his theory that the will of the people is the ultimate source of law negated the conception of the unitary sovereign whose command is law.
The great truth that the theory of Volksgeist contains is that a nation’s legal system is influenced by the culture and character of the people, this thesis in this respect still substantially holds good.
One of the major contributions of Savigny was that it influenced many jurists. It was only after Savigny that the value of the historical method was fully understood. His method was not only followed in Germany but it was also followed by Maine in England. Savigny’s theory traced the course of the evolution of law in various societies.
Savigny’s theory lays the seeds for the development of sociological and evolutionary theories. The view that law is closely connected with people is one of the main principles of the sociological and evolutionary theory. Therefore Savigny is called by some as “Darwinian before Darwin and sociologist before sociologists”.
Criticism of Savigny’s Theory
Inconsistency in the theory
He emphasized the national character of law but at the same time, he recommended a method by which the Roman law could be adapted to modern conditions and advocated for the acceptance of Roman law as the law of Germany. Savigny, on the one hand, asserted that the origin of law is in the popular consciousness but he also argued that some principles of Roman law were universally applicable.
Volksgeist not the exclusive source of law
Savigny was of the view that people’s consciousness is the most important source of law he also went on saying that it precedes all other sources of law which are not true always. Sometimes a country might blindly adopt a particular law suiting their societies, sometimes a single personality influences lawmaking in the country. There are various sources of law that have no connection with people’s consciousness or their will.
Customs not always based on popular consciousness
Savigny advocates that customs are based on the popular consciousness of the community as a whole which is not true in all cases in some cases customs are adopted due to imitation and not because it is right or any conviction of the community to follow it. Sometimes customs completely opposed to each other exist in different parts of the same country which can not be said to be reflecting the true spirit of people.
According to Savigny legislation made must accord with popular consciousness, however, such a view is not popular among modern societies. It is rightly said that the legal process can not be made to compromise the abuse just because people are accustomed to it.
Maine made a comparative study of the legal institution of various communities, his method was a great improvement upon the historical school and yielded fruitful results.
According to Maine law develops through stages. There are 4 stages to the development of law-
Law made by ruler under divine inspiration
Under the first stage law is made by the ruler, he pronounces law in the form of commands. The ruler is supposed to be acting on behalf of god and it is believed that all the commands issued by the king have a divine sanction.
In the second stage, the commands crystallize into customary law.
Knowledge of the law in the hands of the priest
In the third stage, the knowledge and administration of law go into the hands of the minority, usually of religious nature, because the original lawmakers have lost their power. This is the third stage.
The last stage is the codification stage, in this stage, all the earlier laws which were promulgated are now codified.
Contribution of Henry Maine to Historical school
Improved upon the theory of historical school
Maine’s theory is very much balanced as compared to Savigny’s theory as Savigny explained the relation between community and law but Maine went on further to point out the link between the development of both and purged out the exaggerations which Savigny had made.
Importance is given to legislation
One difference which can be noted in Maine’s theory from Savigny’s theory is that Maine recognized the importance of legislation but Savigny did not. Unlike Savigny who used the past to understand the law in the present and to determine the law for future Maine used the study of legal history mostly to understand the past but not to determine the future.
Inspired the later jurist
Maine’s theory preaches a belief in progress and it contained the seeds for the development of the sociological theory of law.
This implication of historical school in terms of approach to law has been far-reaching. Some of the practical contributions of the historical school have had a long-lasting effect. It provided a great stimulus to the historical study of law and legal institution which has ingrained a sense of historical perspective. It highlighted the perils of an over-hasty legislative experiment and has taught a lesson that development should flow, in some spheres at any rate, within the channels of tradition. It also tried to show some connection between cultural evolution and some parts of the law, and the need to look into the past in order to get a proper understanding of the law in modern times.
- Jurisprudence and legal theory by B.N.Mani Tripathi