Historical School of

Jurisprudence
Dr. Rukhsana Shaheen Waraich
Assistant Professor
Department of Law
Bahria University, Islamabad.
Historical School of Jurisprudence
• 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.
Historical School of Jurisprudence
• 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.
Historical 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.
Historical School of Jurisprudence
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
Historical School of Jurisprudence

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.
Historical School of Jurisprudence

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-Von Savigny-George Friedrich Puchta-Sir Henry Maine
Montesquieu
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.
Montesquieu

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.
Montesquieu
(1689-1755)
Montesquieu

• Probably the first jurist to adopt the historical method of understanding the legal institution.
• Laid the foundation of the historical school in France.
• According to Montesquieu, 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.
• He believed that “law is the creation of the climate, local situation, accident or imposture”.
• He opined that law must change according to changing needs of the society.
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.
Montesquieu

• 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.
Von Savigny
(1779-1861)
Von 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. He mentioned this in the self-written pamphlets “Vom
Berufunserer Zeit für Gesetzgebungand Rechtswissenschaft (On the Vocation of Our Age for Legislation and
Jurisprudence).”

• 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

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

Volksgesit, the law is the product of general consciousness of the
people or will. The concept of Volksgeist was served as a warning
against the hasty legislation and introduce the revolutionary
abstract ideas on the legal system. 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
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).

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 lawmaking 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:
Static and Progressive Society
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.
Georg Friedrich Puchta (1798-
1846)
Static and Progressive Society

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.
George Friedrich Puchta (1798-1846)

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.
George Friedrich Puchta (1798-1846)

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
Historical School of Jurisprudence describes the origin of law. This school argues that the
law was found not made. The main source of law is Kings Judgment, Customs and habits.
Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence. According to Sir Henry Maine,
Montesquieu was the first jurist of Historical school. Sir Henry Maine was the jurist of
English Historical School. He was more logical and accept the concept of Codification and
legislation.
Savigny was the father of Historical school. He argued that Law is like language and have a
national character. Law is not universal. While Puchta improved the ideas of Savigny and
argued that both state and people are equally important and source of law.