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“Law Master’s” Publication
“Historical School”
Prof. S. D. Bhosale
(..5 e..)
HISTORICAL SCHOOL
QUESTION BANK
Q.1
Q.2
Define ‘Jurisprudence’ and salient state features of the Historical school.
Critically examine the scope of the Historical school of jurisprudence.
SHORT NOTES
1. Volkgeist.
2. Savigny
SYNOPSIS
I. Introduction-
II. Savigny (1779 to 1861)-
i) Volksgeist as a Source of Law-
ii) Law develops like language.
iii) Early development of law is spontaneous-
iv) Development of law is a continuous and unbreakable process-
v) Adoption of Roman law-
vi) Criticism of Savigny’s Theory-
1) Inconsistency in the Theory-
2) Volksgeist is not the exclusive source of law-
3) Custom not always based on popular consciousness-
4) He ignored other factors that influence law-
5) Many things unexplained-
6) Justified racial ideologies-
III. Puchta (1798 to 1856)-
IV. Sir Henry Maine (1822 to 1888)-
Development of Law-
1) Divine Law-
2) Customary Law-
3) Priestly Class as an interpreter-
4) Codification-
V. Conclusion-
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
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“Law Master’s” Publication
“Historical School”
Prof. S. D. Bhosale
positive law theory. According to historical jurists, ‘law has biological growth, and it has
not evolved in an arbitrary and erratic manner.
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. 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. For him, the development of law is an evolutionary process.
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-
According to Savigny, ‘law is a product of general consciences of the people and a
manifestation of their spirit’. 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-
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.
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“Law Master’s” Publication
“Historical School”
Prof. S. D. Bhosale
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.
IV. Sir Henry Maine (1822 to 1888)-
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“Law Master’s” Publication
“Historical School”
Prof. S. D. Bhosale
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-
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.
V. Conclusion-
Thus, the historical school has some noteworthy contributions to the development of law.
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