Historical school - Lecture notes 3 PDF

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HISTORICAL SCHOOL (SAVIGNY, SIR HENRY MAINE) The revolutionary ideas of positive legal thinking had a very devastating effect as they failed to meet the needs of the people which led to the emergence of a new approach to the study of jurisprudence based on history and historic conception of law. The Austinian theory rejected historical growth and concentrated on the law as it is, without bothering the historic values and moral precepts. The view of Historical school is that it does not attach importance to the relation of law to the state but gives primacy to the social institutions in which law develops itself. Montesquieu in France, Vico in Italy, Burke and Henry Maine in England, Hugo, Herder and Savigny in Germany started a new era in the development of legal theory and viewed the law as a legacy of the past and a product of customs, traditions, and beliefs prevalent in different communities. This school believes that law, in general, is an outcome of years of historical development. Thus, the jurists who advocate growth of law in the name of traditions, customs etc., as against conscious law making are said to belong to Historical school. This school is largely the product of German juristic thought. Edmund Burke emphasisied the importance of history and Hegal propounded the view that the constitution of the state is determined by the political consciousness of the people. But it is the Montesquieu who is regarded as the first jurist to follow the “Historical Method”. He studied the laws of various societies and came to the conclusion that “laws are the creation of climate, local situations, accident or imposture”. Reasons for the Origin of 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.

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.

The subject matter of Analytical school of Jurisprudence is positive law i.e., law enacted by the sovereign. Historical School laid emphasis on the formation of law by people through customs and habits, not by any superior authority.

Basic principles of Historical school of law 1. It views the law as a legacy of the past and the product of customs, traditions, and beliefs prevalent in different communities. 2. The jurists of the historical schools believe that law has biological growth and it has not evolved in an arbitrary and erratic manner. This school of jurisprudence provided a valid foundation to trace the nature of contemporary law in evolutionary processes by adopting a biological approach. The classic work of Darwin on the Origin of Species in 1859 led legal thinkers and reformers to believe that law is never lost but it is only transformed and thus law is the product of evolutionary forces. Darwin in his thesis stated that evolution was a struggle for existence in which those creatures that are able to adapt themselves to the changing conditions survive. This generalization is equally applicable to human beings according to the principle of survival of the fittest. This theory was further carried by Herbert Spencer who drew similarities between social organisms and biological organisms. He argued that an individual adapts himself to social conditions by heredity. He inherits a social instinct from his ancestors including ideas of morality, right, and justice, obligations. 3. Law is the abstract set of rules imposed on society but has deep roots in social, economic factors and the attitude of its past and present members of its society. 4. Law is not of universal validity or application. Each community develops its own legal habits, as it has its peculiar language, manners, and constitution. Eminent Jurists of Historical School of Jurisprudence F.K. Von Savigny

Friedrich Karl Von Savigny is considered as the founder of the historical school of law. Savigny had rejected natural law theory as the natural law principles of liberty, equity and fraternity were no more sacrosanct as they were being violated by French revolutionaries themselves by enslaving different communities of Europe. So was the fate of Germans and Germany which was being attacked by French revolutionaries. So Savigny’s work has been an open revolt and a reaction against the abstract, unhistorical natural law. Accordingly, he was totally opposed to the said ideals of French Revolution which were a variant of natural law principles. It was these principles that Napoleon was violating to enslave Germany under French politico-legal domination. There were numerous factors which led Savigny to undertake historical analysis of law and legal institutions. Professor Thibaut, natural law jurist, wanted to accelerate political unification of divided Germany through the process of legal unification. Thibaut wanted to give Germany a code perfect and complete in all respect and natural law thinking. Undoubtedly, Thibaut was also imbued by the feeling of Patriotism and nationalism but his perception of German legal code was conditioned by the Napoleonic Code. The hypothesis of complete and perfect code for the whole Germany invited instant strong reactions from Savigny and provoked him to profound his Immortal thesis of the origin and development of law and its relationship to society; this thesis became the basis of historical Law School. According to Savigny, the central purpose of this school was to establish that a nation’s customary law is its truly living law. And, moreover, the task of jurisprudence is only to uncover and expose this law. VOLKSGEIST Savigny is known for his concept of volksgeist, which is made up of two words, volks meaning people and geist meaning their common will. Thus it implies that volkgeist is common will or common consciousness of the people. The main idea of Savigny behind this theory is that law is an expression of will of the people and it doesn’t come from deliberate legislation. Legal system of a nation is largely influenced by historical culture and traditions of the people and its growth is located in their acceptance. Basic postulates of Savigny’s Volksgeist:

1. Law develops like a language – According to Savigny, law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs, and convictions. Law, language, customs, and government have no separate existence from the people who follow them. The common conviction of the people makes all these as a single whole. He further states that law isn’t a fake, selfassertive, life less mechanical gadget planned by a legal scholar to be forced from above. It is a complex, quiet and undetectable yet unique experience showing itself in the ‘basic sentiment of the internal need’ with which individuals respect it. 2. Early development of law is spontaneous, thereafter jurists develop it -Savigny believes that law develops spontaneously according to the internal needs of the community but after the community reaches a certain level of civilization, it is developed further by lawyers and legal jurists. 3. Savigny was opposed to the codification of German Law– Savigny opposed the codification of the German law on the French (Napoleonic Code) pattern at that time when Germany was divided into several smaller states and its law was primitive, immature and lacked uniformity. He opined that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the country. He emphasized that codification of German law without having jurists of sufficient genius and adequate expertise in Roman law would not serve the desired purpose as Roman law formed an integral part of the German legal system at that time. According to Savigny lawyers and jurists are true representatives of the popular consciousness of the people rather than the legislators whose role is limited to law-making only. 4. Law is a continuous and unbreakable process– Savigny considered the growth of law as a continuous and unbreakable process bound by common cultural traditions and beliefs. Its roots are embodied in the historical processes which constitute the subject of study for jurists. Savigny stated that codification of law may hamper its continuous growth and therefore, it should be resorted to when the legal system has fully developed and established. Summary of Savigny’s Theory

1. The law is a matter of unconscious and organic growth, therefore the law is found and not made. 2. Law is not universal in its nature. Like language, it varies with people and age. 3. Customs not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness. 4. As law grows into complexity, the common consciousness is represented by lawyers who formulate legal principles. Savigny’s Contribution to Historical School of law 1. Savigny’s theory came as a powerful reaction against rationalism and principles of natural law. The idea of his theory that the will of the people is the ultimate source of law negated the conception of the unitary sovereign whose command is law. 2. The great truth that the theory of Volksgeist contains is that a nation’s legal system is influenced by the culture and character of the people, this thesis in this respect still substantially holds good. 3. One of the major contributions of Savigny was that it influenced many jurists. It was only after Savigny that the value of the historical method was fully understood. His method was not only followed in Germany but it was also followed by Maine in England. Savigny’s theory traced the course of the evolution of law in various societies. 4. Savigny’s theory lays the seeds for the development of sociological and evolutionary theories. The view that law is closely connected with people is one of the main principles of the sociological and evolutionary theory. Therefore Savigny is called by some as “Darwinian before Darwin and sociologist before sociologists”.

Criticism of Savigny’s Theory Inconsistency in the theory He emphasized the national character of law but at the same time, he recommended a method by which the Roman law could be adapted to modern conditions and advocated for the acceptance of Roman law as the law of Germany. Savigny, on the one hand, asserted that the origin of law is

in the popular consciousness but he also argued that some principles of Roman law were universally applicable. Volksgeist not the exclusive source of law Savigny was of the view that people’s consciousness is the most important source of law he also went on saying that it precedes all other sources of law which are not true always. Sometimes a country might blindly adopt a particular law suiting its society, sometimes a single personality influences lawmaking in the country. There are various sources of law that have no connection with people’s consciousness or their will. Lord Lloyd also stated that Savigny underrated the significance of legislation in the modern legal systems. Customs not always based on popular consciousness Savigny advocates that customs are based on the popular consciousness of the community as a whole which is not true in all cases in some cases customs are adopted due to imitation and not because it is right or any conviction of the community to follow it. Sometimes customs completely opposed to each other exist in different parts of the same country which can not be said to be reflecting the true spirit of people. Dias says that many institutions like slavery have not originated in the volkgeist but for the convenience of the ruling class.

Juristic Pessimism According to Savigny legislation made must accord with popular consciousness, however, such a view is not popular among modern societies. It is rightly said that the legal process can not be made to compromise the abuse just because people are accustomed to it.

Applicability in India There is a limited applicability of Savigny’s theory to India. Indian Constitution provides for division of powers between Central and State Governments and both act independently in their

own spheres. This distribution of powers about enactment of laws between central and State Governments is against Savigny’s national character of law. Yet, upto certain degree Savigny’s hypothesis appears to have relevance to India. In the Indian Constitution, the Preamble of the Constitution pronounces India as a “Sovereign, Socialist, Secular, Democratic Republic.” These expressions show that the Constitution has set up a type of government which gets its power from the “will of the individuals”. The Preamble additionally proclaims that the Constitution of India is embraced and adopted by the people of India and they have given this Constitution to themselves. It also shows the force of popular opinion. However, although Indian Constitution indicates that the source of Indian Constitution is the people of India yet there are many provisions which have outer sources, for example, Fundamental rights are borrowed from the American Constitution and emergency provisions are borrowed from German Constitution. Thus, it is clear that it is against Savigny’s theory which states that only Volksgeist is the source of law. The present laws e.g. law of torts, provisions regarding restitution of conjugal rights, Contract Act, and many other important laws are gifts of English who ruled in India and brought and applied their laws in India too. They codified English law in the Indian soil which has been very beneficial for Indians. It was the codification of law which made the law uniform throughout the country. It is against Savigny’s view who believed that a received law can never be effective nor can it acquire national character. He also vehemently opposed codification of law. But the existence of a received Common Law and successful working of the Codes in India proves wrong Savigny’s view. According to Savigny’s theory, law always comes from the popular consciousness of the people. But against it in India, in modern times many doctrines are deliberately introduced by policy makers and they are the result of conscious effort, e.g. Dowry Prohibition Act and the Untouchability Abolition Act. Such laws don’t always reflect the popular consciousness of the country. Further, the development of law by judicial activism in India is against Savigny’s theory. By way of precedents, judges are making laws which are against Savigny’s view who ignored creative functions of the judges.

HENRY MAINE Sir Henry Maine was the founder of the English Historical School of Law. He started his career as Professor of civil law in the University of Cambridge at an early age of 25. He was law member in the council of the Governor General of India between 1861 and 1869. This provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the master of trinity Hall, Cambridge. 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). Maine made a comparative study of the legal institution of various communities, his method was a great improvement upon the historical school and yielded fruitful results. According to Maine law develops through stages: 1. Law made by ruler under divine inspiration Under the first stage law is made by the ruler, Who pronounces law in the form of commands. The ruler is supposed to be acting on behalf of god and it is believed that all the commands issued by the king have a divine sanction. For example, Themistes of ancient Greek. 2. Customary law In the second stage, the commands crystallize into customary law expounded and applied by an aristocracy or small privileged class which claimed a monopoly of legal knowledge. Since the art of writing had not been invented so customs of the community became law for the people 3. Knowledge of the law in the hands of the priest In the third stage, the knowledge and administration of law go into the hands of the minority, usually of religious nature, because the original lawmakers have lost their power. The priestly

class claimed that they memorized the rules of customary law because the art of writing had not developed till then. 4. Codification The last stage is the codification stage and in this stage, all the earlier laws which were promulgated are now codified. With the discovery of the art of writing, a class of learned men and jurists came 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 priest class in matters of administration of law. Most important codes of the era were Twelve Tables of Rome, Manu’s code, Hebrew Code, the Codes of Hammurabi etc.

TYPES OF SOCIETIES According to Maine, there are two types of societies, Progressive Societies and Static societies. When the primitive law has been embodied in a code, there is an end to its spontaneous development and such communities or societies which do not progress or go beyond the fourth stage are called static societies. Those societies which go beyond the fourth stage as developing their laws, by new methods are called progressive societies. There are three methods by which progressive societies develop their laws: A. Legal fiction: legal fictions, changes the law according to the changing needs of the society without aiming any change in the letter of law. Maine defines legal fiction as any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. Legal fiction satisfies the desire for improvement and at a particular stage of social development they are invaluable expedients of social progress for overcoming the rigidity of law. B. Equity: Equity consists of principles which are considered to be invested with a higher sacredness than those of the positive law. Equity belongs to a more advanced stage than fictions. The interference with the law is open and avowed. It is a body of law existing by the side of the original civil law, founded on distinct principles claiming incidentally to supersede the civil law by virtue of a superior sanctity inherent in these principles. C. Legislation is the most effective method of law making, it is considered to be the most systematic and direct method of introducing reform through new laws.

Movement of the progressive societies has hitherto been a movement from Status to Contract.... Maine states that the movement of the progressive societies has been uniform in one respect. Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The individual is steadily substituted for the Family, as the unit of law. He states that, in early societies, both static and progressive, the legal condition of individual used to be determined by his status. However, the progressive societies steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals. He gives the example of Western Europe where the status of the Slave had disappeared and was superseded by the contractual relation of the servant to his master. The child before years of discretion(Minor), the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? The reason may be differently expressed in the conventional language of different systems, but in substance the effect is same, i.e., the classes of persons mentioned above are subject to extrinsic contro...