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HISTORICAL SCHOOL
QUESTION BANK
Q.1 Define ‘Jurisprudence’ and salient state features of the Historical school.
Q.2 Critically examine the scope of the Historical school of jurisprudence.
SHORT NOTES
- Volkgeist.
- Savigny
I. Introduction-
Historical Schools emerged in Germany at the beginning of the 19th century. The main propounders of the Historical School are Montesquieu, Hugo, Savigny, Henry Maine and Puchta.
Historical School was developed as a reaction against natural law theory and positive law theory. According to historical jurists, ‘law has biological growth, and it has not evolved in an arbitrary and erratic manner[1].
According to Montesquieu, ‘laws are the creation of climate and local situation. According to him, ‘law should change with changing society.
According to Hugo, a law, like a language and habits (of the people), forms itself and develops to suit the circumstances. It is because the essence of law is its acceptance, regulation and observance by society.
According to Fredrick Pollock, Historical School studies the evolution of Human institutions and societies[2]. According to Burke, customs and traditions play an important role in the growth of law.
II. Savigny (1779 to 1861)-
Savigny is the main exponent of the Historical School. According to him, ‘law is a historical perception which evolves according to customs, traditions, culture and sentiments of the people[3]. For him, the development of law is an evolutionary process[4]. Savigny propounded the theory of evolution of law before Darwin’s theory of evolution of human beings in 1861.
i) Volksgeist as a Source of Law[5]–
According to Savigny, ‘law is a product of general consciences of the people and a manifestation of their spirit[6]’. According to him, while making effective laws, the historical past, culture and traditions of the community are to be taken into consideration. According to Savigny, the ‘origin of law lies in the popular spirit of the people, which he calls Volksgeist.
ii) Law develops like language.
Savigny pointed out that the law grows with the growth of society and gains its strength from the society itself, and finally, it dies as the nation loses its nationality. Therefore, he remarks that ‘law develops like a language’.
iii) Early development of law is spontaneous[7]–
According to Savigny early development of the law was spontaneous according to the needs of the community; however, after a certain stage of civilization, further development in law is caused by jurists, linguists, scientists etc.
iv) Development of law is a continuous and unbreakable process-
Savigny considers the growth of law as a continuous and unbreakable process with changes in traditions and beliefs of society. According to him, the codification of laws may hamper the growth of law.
v) Adoption of Roman law-
According to Savigny, Roman Law is developed law as per his concept of Volksgeist. Therefore, he suggests to adopt it in Germany.
vi) Criticism of Savigny’s Theory-
1) Inconsistency in the Theory-
One time Savigny asserts that the origin of law is in Volkgeist (i.e. popular consciousness); at the other, he argues that some of the principles of Roman law are of universal application and suggests them to be applied in Germany. Thus, it seems contradictory.
2) Volksgeist not the exclusive source of law-
According to Savigny, ‘volkgeist’ is the source of all laws. However, it is not true. Sometimes an alien legal system is successfully transplanted into another country, e.g. British Legal System in India. Sometimes a single person may greatly influence the legal system, e.g. Code of Napoleon. Sometimes laws even against volkgeist need to be passed, e.g. reservation to backward classes and minorities, tax laws etc.
3) Custom not always based on popular consciousness-
Savigny’s view that customs are based on the popular consciousness of the community as a whole is not true. Many customs, such as slavery, bonded labour, untouchability, Devdasi etc., were, originated to serve the interests of the powerful.
4) He ignored other factors that influence law-
Savigny ignored other sources of law before volkeist, e.g. contributions of jurists and judges are the important sources of law.
5) Many things unexplained-
Savigny did not give heed to a number of other factors which influence and determine the growth of law. He left many things unexplained.
6) Justified racial ideologies-
Savigny’s theory helped many to preserve their anti-social ideologies in the name of Volkgest. For e.g. the Nazi gave racial colour to Volkgist, Marxists used it to give an economic interpretation of history and totally used it to justify fascism.
III. Puchta (1798 to 1856)-
Puchta was Savigny’s disciple. He was a great jurist of the Historical School. According to him, neither the state nor the people alone are the source of law, but the law comes into existence by the conflict between ‘general’ and ‘individual’ will. He went into the historical origin of the human race and analysed the growth of law from its historical perspective. According to him, man always lived in unity. It causes unanimity among the members of the society and constitutes the general will of the people. According to him, the state, through the instrumentality of law, restrains the individual will.
- Sir Henry Maine (1822 to 1888)-
Due to his views, Sir Henry Maine is called as ‘Social Darwinist’. According to him, the development of law and other social institutions in all ancient societies like Hindu, Roman, and Greek more or less have been on an identical pattern.
Development of Law-
Maine divided the development of law into the following four stages viz-
1) Divine Law-
According to Maine, law originated from Themes, i.e. the Goddess of justice. It was generally believed that during the pronouncement of judgments, the king acted under the divine inspiration of the Goddess of justice. The king was believed to be the executor of the judgments of God.
2) Customary Law-
According to Maine ‘custom is to society what law is to state’. Regular application of judgments leads to uniform practice, which crystallizes into customary law. In primitive law, customary law was being followed.
3) Priestly Class as an interpreter[8]–
In this stage, the authority of law went into the hands of the priestly class. The priestly class learned law as well as religion. Priestly class used to memories and interpreted customary law.
4) Codification-
The last and foremost important stage of the development of law is codification. According to Maine, further development in law is caused by legal fiction, equity and legislation.
- Conclusion-
Thus, the historical school has some noteworthy contributions to the development of law.
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[1] कायदयची निर्मिती ही अहेतुक किंवा अनियंत्रीत नसुन ती सजिवाप्रमाने वृध्दींगत होणारी आहे [कानून का निर्माण मनमाना या मनमाना नहीं है, बल्कि व्यवस्थित रूप से विकसित हो रहा है। ]
[2] समाजशास्त्रीय अभ्यास शाखा/ समाजीक घटकातुन कायदयाचा अभ्यास करनारे शास्त्र [ समाजशास्त्रीय अध्ययन शाखा/ विज्ञान जो सामाजिक संदर्भ से कानून का अध्ययन करता है ]
[3] कायदा हा ऐतिहासिक पध्दतीने समजून घेणे गरजेचे आहे की जो (कायदा), रुढी, परंपरा, संस्कृती व लोकभावना यांच्या बरोबर उत्क्रांत होते [कानून को एक ऐतिहासिक तरीके से समझने की जरूरत है जो (कानून), प्रथा, परंपरा, संस्कृति और भावना के साथ विकसित होती है।]
[4] उत्क्रांती होणारी प्रक्रिया [एक विकासवादी प्रक्रिया ]
[5] लेाक इच्छा किंवा लोकमत [इच्छाशक्ति या लोकप्रिय राय का अभाव ]
[6] कायदा हा सर्वसामान्य लोकांच्या सदसदविवेक बुध्दीची उत्पती असुन त्यांचे व्यक्त केलेले मत आहे. [कानून सामान्य ज्ञान और आम लोगों की व्यक्त राय का उत्पाद है। ]
[7] कायदयाची प्राथमिक सुधारणा ही स्वयंमस्फूर्तीने झालेली आहे [अधिनियम का प्राथमिक संशोधन आत्मनिर्भर है ]
[8] कायदयच्या स्पष्टीकरण / मिमांसा पुरोहीत करत [विधि का सूक्ष्मीकरण करना/मीमांसा पुरोही ]