Name: Parinishtha Sharma

Course: BA.LLB, 3ndyear

Subject: Jurisprudence
Topic: Historical School of Jurisprudence
Teacher’s Name: Ms. Ayushi Sarkar
Institution’s Name: Delhi Institution of Rural
Development

Introduction
 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. 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.

Concept of Historical School of Jurisprudence

o With the changing needs and nature of persons, the law should be
changed. The historical school follows the concept of man-made laws.
o ‘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 understands their own need better than anyone else.
o The basic source of the Historical School of Jurisprudence is the habits
a custom of people which changes according to their needs and
requirement.
o 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.
o In the words of Salmond, That branch of legal philosophy which is
termed historical jurisprudence is the general portion of legal history.
o It bears the same relation of to legal history at large as analytical
jurisprudence bears the systematic exposition of the legal system.
o 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.
o It deals 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.
o 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:

1. 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.
2. 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.
3. 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.  
4. 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.
 5. 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.

Savigny

 Savigny is regarded as a father of the Historical school. He argued that

the coherent nature of the legal system is the usually due to the failure
to understand its history and origin.
 According to him, the law 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.”
  Savigny believes that the law cannot be borrowed from outside. And
the main source of law is the consciousness of the people.
 He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away when
nationality loosens its strength in the state.

Friedmann concludes the Savigny’s theory

 Law is like language which eventually grows.

 Law cannot be of universal validity nor be constructed on the basis
of certain rational principles or eternal principles.
 Law is sui generis. Savigny argued that law is like the language
having its own national character.
 So, it can’t be universally applied and varies according to the
people.  
 Law is found or discovered not made. It can’t be made artificially
like the invention of an object.
 Law is found on the basis of consciousness, customs and beliefs of
the people.

Basic Concept of Savigny’s Volksgeist

o Volksgeist means “national character”. According to Savignty’s

Volksgesit, the law is the product of general consciousness of the
people or will.
o The concept of Volksgeist was served as a warning against the hasty
legislation and introduce the revolutionary abstract ideas on the legal
system.
o Unless they support the general will of the people. Basically, Savigny
was of the view that law should not be found from deliberate
legislation but should be made and arises out of the general
consciousness of the people.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

Charles Allen

Charles Allen criticized Savigny’s view that law should be found or based on
the customs.  Allen was of the view that customs are not the outcome of
common consciousness of people. But they are the outcome of the interest of
a powerful and strong of a ruling class. For example, slavery which was
recognized and prevailed in certain societies by the powerful classes of
society.

Prof. Stone

Prof. Stone criticized the Savigny and says that he (Savigny) ignored the
efficiency of the legislation and planned law and social change.  And over
emphasized on the consciousness of people.

For example, In India, the abolition of Sati and widow’s remarriage are
brought in to change because of powerful and effective legislation.

Sir Henry Maine

o Sir Henry Maine was the founder of the English Historical School of
Law. Savigny’s views of Historical school was carried forward in
England by Sir Henry Maine.

Major Works by Sir Henry Maine

 The first work of Maine ‘Ancient Law’ was published in 1861.  

 He also wrote Village Communities (1871),
 Early History of Institutions (1875)  
 Dissertations of Early Law and Custom (1883).  

o Maine studied the Indian legal system deeply as he was law member in
the Council of the Governor–General of India b/w 1861 to 1869.
o Maine’s ideas were incorporated by the best things in the theories of
Savigny and Montesquieu and he avoided what was abstract and
unreal Romanticism. Maine favoured legislation and codification of law,
unlike Savigny.
Maine describes the development of law in four stages:

 First stage: Rulers are believed to be acting under divine

inspiration. And the laws are made on the commands of the rulers.
For example, Themistes of ancient Greek. The judgment of the king
was considered to be the judgment of God or some divine body.
King was merely an executor of judgments of God, not the law-
maker.

 Second stage: Then the commands of King converted into

customary law. The custom prevails in the ruler or majority class.
Customs seems to have succeeded to the right and authorities of
the king.

 Third stage: The knowledge & administration of customs goes into

the hands of a minority, Due to the weakening of the Law making
power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class.
And the ruler is superseded by a minority who obtain control over
the law.

 Fourth stage: In the fourth and last stage, the law is codified and
promulgated.

Static and Progressive Society

Static societies

Societies which does not progress and develop their legal structure after the
fourth stage of development of law are Static society. Static societies don’t
progress beyond the era of codes.  

Progressive Society

Societies which go on progressing after the fourth stage of development of

law are Progressive Societies. They develop their laws with the help of these
instruments:
  Legal Fiction

Legal Fiction changes the law according to the needs of the society without
making any change in the letters of the law. Legal fiction harmonizes the
legal order but made the law difficult to understand.  

 Equity

According to Maine, “Equity is a body of rules existing by the side of the

original civil law & founded on distinct principles”. Equity helps to remove
rigidity and injustice.

 Legislation

The legislation is the most effective and desirable method of legal change.
Laws will be enacted and became operative officially.

Four Stages of Development of Law

The supporters of the historical school of jurisprudence are of that view

that evolution and development of law have been done through four stages.
They are as follows:-

1. Divine Law– Law originated from Themes, which meant the

Goddess of justice. Generally, it was believed that while pronouncing
judgments the King was acting under the divine inspiration of
Goddess of Justice. Themestes were awards pronounced by Goddess
of Justice (themes), Thus the king was merely the executor of the
judgment of God.
2. Customary Law- Next, the recurring application of judgments led to
uniform practice while crystallized into customary law to be followed
in the primitive societies. Sir Henry Maine underlined the importance
of customs as a source of law and observed that ‘custom is to society
like the law is to State’.
3. Priestly class a sole repository of customary law- The next
stage of development of law stated that the authority of the King to
enforce and execute law was usurped by the priestly class who
claimed themselves to be learned in law as well as religion. It was
the priestly class who memorized the rules of customary law because
the art of writing had not developed till then. They applied and
enforced the customary law.
4. Codification- The last stage of development of law marks the era of
codification. The discovery of the art of writing helped a class of
learned men and jurists to come forward to denounce the authority
of priests as law-givers. They advocated codification of law to make
 it accessible and easily knowable. This broke the monopoly of the
priestly class in matters of administration of law. The ancient Hindu
Code of Manu, Hebrew Code, Solon’s Attic Code, Twelve Tables in
Rome, the Codes of Hammurabi, etc, are some of the examples of
such law codes.

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.

Conclusion
The foundation of the historical approach to law is based on the
assumption that “the past often explains the present most vividly”.
The historical method provides an answer to the question as to why a
particular statute or law was framed in the form in which it presently
exists.
It would be therefore seen that the historical school emerged as a
reaction to legal theories propounded by the analytical positivists and
the natural law philosophers.
The aim of historical jurisprudence has been to demonstrate how racial,
ethnic, or linguistic traits of law are embedded in the culture and
heritage of a particular community.
It guards us to draw generalizations concerning universality and
permanence of legal institutions and isolate law from social and
historical moorings.
Even Adolf Hitler sought to use the historical theory of law to support his
dictatorial power. He argued that law was by blood and its roots lay in
the past.
He believed that the state as a group has no identity without a leader
who represents people’s unity and strength. He demanded that
unquestionable obedience of law is nothing but the will of the leader.
The framers of the Indian constitution are also greatly influenced by the
historical school of jurisprudence and customs are recognized as a major
source of law under the Indian legal system. The Indian constitution
defines “law” to include “custom or usage having in the territory of India
the force of law.
The Courts of India have recognized Custom as a source of law only if the
custom is (1) “ancient or immemorial” in origin (2) “reasonable in nature
and continuous in use” and (3) “certain”. 
In the case of Hurpurshad v. Sheo Dayal, The Privy Council observed
that custom is a rule which is a particular family, or a particular caste, or
community or in a particular district has from long usage obtained the
force of law.
It must be “ancient, certain and reasonable” Moreover such a custom
should not be immoral or opposed to public policy, or expressly
forbidden by law, Also article 244, 244-A, 371-A of the Indian
Constitution provides protection of tribal indigenous communities and
also their customs.