Historical School of Jurisprudence
Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law has a very
complex concept. Its understanding varies from people to people. Everyone has a different
understanding of the law. For example, a law student and lawyer understand the law as a solution of
every dispute. An ordinary citizen understands the purpose of the law is to punish them.
Historical school of Jurisprudence argued that the law is the exaggerative form of social custom,
economic needs, conventions religious principles, and relations of the people with society. The followers
of this school argued that law is found not made. The historical school doesn’t believe and support the
idea of the natural school of law which believe that the origin of law is from superior authority and have
some divine relevance.
The concept and meaning of Historical School of Jurisprudence
With the changing needs and nature of persons, the law should be changed. The historical school
follows the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that
the law should be according to the changing needs of the people. And everyone understand their own
need better than anyone else.
The basic source of the Historical School of Jurisprudence is the habits an custom of people which
changes according to their needs and requirement. It is also called the continental school of
Jurisprudence.
This school rejects the ideas of formation of law by judges and the origin from some divine relevance. In
the words of Salmond, “That branch of legal philosophy which is termed historical jurisprudence is the
general portion of legal history. It bears the same relation of to legal history at large as analytical
jurisprudence bears the systematic exposition of the legal system. It deals, in the first place, with the
general principles governing the origin and development of law, and with the influences that affect the
law. It deals, in the second place, with the origin and development of those legal conceptions and
principles which are so essential in their nature as to deserve a place in the philosophy of law- the same
conceptions and principles, that is to say, which are dealt with in another manner and from another
point of view by analytical jurisprudence. Historical jurisprudence is the history of the first principles and
conceptions of the legal system.”
Reasons for the Origin of Historical School of Jurisprudence
The Historical School believe that law is made from people according to their changing needs. Habits
and customs are the main sources of the Historical School of Jurisprudence. According to Dias, Historical
school arose as a reaction against the natural law theories.
The reasons for the emergence of this school are:
It came as a reaction to the natural school of law.
Natural school of law believes that the law is originated from some divine power. Natural law is also
called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality
and intention of God. Indian constitution has some relevance of the natural law in its articles.
Historical school of Jurisprudence focuses on the formation of law by people not by some divine
origin.
It opposes the ideology of the analytical school of jurisprudence.
Analytical school of jurisprudence is also called Austinian School. It is established by John Austin. The
subject matter of Analytical school of Jurisprudence is positive law. It focuses on the origin of law the
judges, state and legislators. Historical School laid emphasis on the formation of law by people through
customs and habits, not by the judges and superior authority.
Jurists of Historical School of Jurisprudence
Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal
institution was Montesquieu. He laid the foundation of the historical school in France. According to him,
it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and
environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of
the climate, local situation, accident or imposture”. He was of the view that law must change according
to changing needs of the society. He did not establish any theory or philosophy of the relation between
the law and society. He suggested that the law should answer the needs of the place and should change
according to time, place and needs of the people.
One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book, he
represents his beliefs in political Enlightenment ideas and suggests how the laws are required to modify
according to the needs of people and society.
Georg Friedrich Puchta
Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of
Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. He
traced the development and evolution of law from the very beginning. His ideas mainly focused on the
situation when conflict arises between general will and individual will. In the conflict between general
will and individual will, the state came into existence. And find out the midway to resolve the conflict.
The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and
formulate laws”. Both State and individual are the sources of law.
Contribution of Puchta
Puchta gave twofold aspects of human will and origin of the state.
Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made
them more logical.
