Historical school of law Legal method Module -I Historical school of law

Historical School of Law K.F. Von Savigny (1779-1861) Founder of Historical School He traced development of law as a evolutionary process much before Darwin have his theory of evolution in the field of biological science in 1861. Dr. Allen described Savigny as “Darwinian before Darwin.”

Historical School of Law According to him “law is a product of times 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 influences which play upon it.” “Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality”

Historical School of Law Law is the product of the “Volksgeist”, the national spirit or the genius of the people. Law is found and not made as it devops as a matter of unconscious and organic growth. Custom is the main source of law and it precedes legislation. Savigny rejected ‘natural law’.

Criticism He located origin of law in the Volksgeist, that is popular conscience but at the same time asserted that certain principles of customary law of Rome as universal application. He was against codification of laws which is one of the most accepted form of modern progressive legislation.

Criticism Savigny’s theory of Volkgeist overlooks the impact of the other sources of law such as legislation, precedent etc. in the evolution of law. His view that customs are always based on the popular consciousness is not acceptable. Eg: slavery, bonded labour etc. Originated to accomplish the selfish interests of those who were in power.

Criticism Roscoe Pound has criticised for his juristic pessimism. Savigny’s theory inhered legal reforms and modernization of law in the name of Volkgeist. Pound observed that no legal system would like to stick to the prevalent abuses and bareful customs only because people are accustomed to them.

Views of Puchta He was Savigny’s disciple and supported his theory. In his view, neither the state nor the people alone are a source of law but law comes into existence as a result of conflict between general and individual will.

Views of Gustav Hugo A german exponent of historical jurisprudence. He observed the law is not the result of legislation or it is in no way a command of the sovereign nor a matter of social contract, but it is the outcome of the habits and traditions of the people which they follow voluntarily as a member of community. These habbits and customs are acquired through necessity, accident and other processes.

Sir Henry Maine He is labeled as “Social Darwinist”. He through his comparative researches of different communities (roman, Hindu etc.) came to a conclusion that law develops through four stages: In the beginning, law was made by the commands of the ruler believed to be acting under divine inspiration. In second stage , commands crystallize into customary law.

Sir Henry Maine In the third stage, the knowledge and administration of customs goes into the hands of a minority, usually of a religious nature, due to the weakening of the power of original law-makers. The fourth stage, was the time of codes. Law is promulgated in the form of a code.

Sir Henry Maine Societies which do not progress beyond the fourth stage which closes the era of spontaneous legal development are called STATIC societies by Maine. Their legal conditions are characterized by what states as status. That is a fixed legal condition dominated by family dependence.

Sir Henry Maine Most of the communities (Hindu, Roman, Hebrew etc.) are founded of patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family including all its male and female members, children and slaves as also the property. The word of the ‘pater familas’ was law to them which they were suppose to follow. There were some communities which followed matriarchal (eldest female of the family was the central authority) pattern.

Sir Henry Maine Thus the law of person was to be determined on the basis of his status. In ancient societies , the slave, ward, citizen etc. all symbolized status which the law recognized in the interest of the community.

Criticism Maine’s theory certainly holds good in case of capitalist countries which have transformed into socialist states. But Maine’s assertion about status to contract has no application in totalitarian states where the freedom of contract is narrowed down to the lowest limits and there is authoritarian rule.

Criticism The societies which continue development of law in this manner are called progressive societies by Maine. There are 3 methods by which progressive societies develop their laws : Legal Fictions- Legal Fiction change the law according to the changing needs of the society without, however, making change in the letter of law. Maine defines legal Fiction as “any assumption which conceals or effects to conceal the fact that a rule of law has undergone alterations, its letter remaining unchanged, its operation being modified. Equity – Equal and just with good conscience. Legislation – To legislate the laws