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The exponents of the historical school of jurisprudence take social institutions in their sequence with primacy to primitive legal institutions of the society. While the analytical school pre-supposes the existence of a well developed legal system, the historical school concentrates on evolution of law from the primitive legal institutions of the ancient communities. 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. Such inquiries are distinguishable as an anthropological approach to the evolution and development of law.
The Austinian theory rejected historical growth of law and concentrated on law as it is, without bothering about its historic values and moral precepts. The positive school refused to recognise the impact of legal evolution which meant that existing law and legal institutions can be supported or opposed only when we know the sanction behind them and how they worked in the past and are actually working in the present.
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. The historical jurists believe that law has biological growth and it has not evolved in an arbitrary and erratic manner.
According to Sir Henry Maine, Montesquieu (1689-1755) was the first jurist who adopted the historical method of pursuing the study of legal institutions and came to the conclusion that laws are the creation of climate and local situations. He did not probe further into the relationship between law and society but pointed out that law must keep pace with the changing needs of the society.
Hugo (1768-1844), pointed out that law, like language and habits of the people, forms itself and develops as suited to the circumstances. The essence of law is its acceptance, regulation and observance by the members of the society.
The English Legal historian Holdsworth attributes two major factors which are responsible for the emergence of historical school of jurisprudence, namely: (1) The French Revolution and the consequent upheavals, and (2) Darwinian theory of evolution which altered the character of scientific speculation during that period. This view is supported by the Supreme Court of India in Byram Pestonji Gariwala v. Union of India, wherein the Court quoting Justice Thommen: “Indian legal system is the product of history. It is rooted in our soil, nurtured and nourished by our culture, languages and traditions, fostered and sharpened by our genius and quest for social justice, reinforced by history and culture”.
The credit of laying down the foundation of the historical school of jurisprudence in France goes to Montesquieu through his classic work Spirit of Laws published in 1748. He attributed evolution and development of law to the effect of cause and effect in a given social surrounding and biological environment. He held that laws should be adopted to suit the people for whom they are framed keeping in view the degree of liberty which the Constitution desires to grant to its people. According to him, there is nothing like good or bad in law, as it essentially depends on political and social conditions and environment prevailing in the society.
The forerunners of Savigny, notably, Schelling and Hugo had rejected natural law theory which believed that law is based on an abstract principle of human reason. They supported the view that law is a historical perception which evolves according to customs, traditions, culture and sentiments of the people. Savigny was the main exponent of this historical interpretation of law and is considered to be the propounder of historical jurisprudence.
Savigny and his most popular pupil Georg Friedrich Puchta (1798-1846) firmly believed that law is a product of the general consciousness of the people and a manifestation of their spirit.
According to Savigny, a law made without taking into consideration the past historical culture and tradition of the community is likely to create more confusion rather than solving the problems because 'law' is not an ‘artificial lifeless mechanical device’. The origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist.
Savigny pointed out that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs and convictions. According to him, law grows with the growth of the society and gains its strength from the society itself and finally it withers away as the nation loses its nationality. Thus, he opined that law is not universal in nature like language, it varies with people and ages.
The main tenets of Savigny's theory can be summarised as follows:-
Maine's contribution to historical jurisprudence is so great that he is labeled as 'Social Darwinist' for he envisaged a social order wherein the individual is finally liberated from the feudalistic primitive bondage.
Historical jurisprudence would always remain indebted to Sir Henry Maine for his substantial contribution to the juristic thought. He improved upon Savigny's legal theory which explained inter-relationship between community and the law and also recognised the role of legal fictions, equity and legislation in the evolution of law. While Savigny had confined his study only to Roman law and its applicability in Germany, Maine looked it from a broader perspective and studied the legal systems of different communities for his comparative research on evolution and development of law.
The supporters of the historical school of jurisprudence have traced the evolution and development of law through four major stages. They are as follows-