HISTORICAL SCHOOL OF JURISPRUDENCE

HISTORICAL SCHOOL OF JURISPRUDENCE 

The historical school of jurisprudence predates Kelsen’s work but stands in contrast to the pure science of law by focusing on law’s direct relationship to community life. This approach laid the foundation for the modern sociological school of thought. During the rationalism of the 18th century, there was a belief that a universal body of unchangeable laws could be constructed through armchair deliberation, based on the supposed reasonable nature of man. The rise of nationalism at the end of the 18th century contributed to the emergence of the historical school. Instead of focusing on individuals, scholars emphasised the spirit of the people, known as Volksgesit. 

Savigny articulated the program of the historical school in 1814, posing the central question of how law came into being. Law, like language, evolved gradually, not by sovereign command or community habits alone, but from the instinctive sense of right inherent in every race. Custom might indicate the law, but its true source lay deeper in human consciousness. This “living law” concept imbues law with its validity, as every member of a community intuitively knows what is right and appropriate in matters relevant to them. 

The historical school’s approach naturally led to scepticism about deliberate attempts to reform the law, asserting that legislation succeeds only when it aligns with the internal convictions of the community. Attempts to impose laws beyond this scope are destined to fail. The school emphasised that understanding law requires appreciating the social context in which it developed. It highlighted the slow evolution of law and its intimate connection with the particular characteristics of people. 

Since Savigny, the historical method has been recognized for its value in jurisprudence, particularly in understanding the relationship between common law and the social and political history of nations. Scholars like Pollock, Maitland, and Holdsworth in England further elucidated these connections through their studies of legal history, demonstrating that laws are not immutable principles discovered through abstract reasoning. They showed that legal systems, like transplants in a biological analogy, can fail if they do not align with the cultural and social context of the receiving country. 

FRIEDRICH CARL VON SAVIGNY (1779-1861) 

Savigny was born in Frankfurt in 1779. His interest in Historical studies was kindled at the university of Marburg and Gottingen and greatly encouraged when he came into contact with great historians at the University of Berlin. He served the University of Berlin as a teacher. He also acquired a lasting veneration for Roman law. His works, (i) The law of possession. (ii) The History of Roman law in the

middle ages (iii) The system of modern roman law-testifies his genius. He attacked the idea of codification in Germany as he knew the defects of the contemporary codes. According to him, code was not a suitable instrument for the development of German law at that time. Law is a product of the people’s life-it is a manifestation of its spirit. Law has its source in the general consciousness of the people. 

Savigny’s view of the law was first presented in his famous pamphlet “Of the Vocation of Our Age for Legislation and Jurisprudence” 1814. This pamphlet was an answer to a proposal made by a professor of civil law, A.F.J. Thibaut of Heidelberg University, to the effect that a codification of the laws and customs of the various German states be undertaken in a coherent arrangement, on the basis of Roman law and the Napoleonic code. Savigny vehemently attacked this suggestion. In his view, the law was not something that should be made arbitrarily and deliberately by a lawmaker. Law, he said, was a product of ‘internal, silently-operating forces.” It was deeply rooted in the past of a nation, and its true sources were popular faith, custom, and “the common consciousness of the people.” Like the language, the constitution, and the manners of a people, law was determined above all by the peculiar character of a nation, by its “national spirit” (Volkgiest). In every people, Savigny pointed out, certain traditions and customs grow up which by their continuous exercise evolve into legal rules. Only by a careful study of these traditions and customs can the true content of law be found. Law in its proper sense is identical with the opinion of the people in matters of right and justice. In the words of Savigny, 

“In the earliest times to which authentic history extends the law will be found to have already attained a fixed character, peculiar to the people, like their language, manners and constitution. Nay, these phenomenons have no separate existence, they are but the particular faculties and tendencies of an individual people, inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which binds them into one whole is the common conviction of the people, the kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin. 

Thus, in the view of Savigny, law, like language, is a product not of an arbitrary and deliberate will but of a slow, gradual, and organic growth. The law has no separate existence, but is simply a function of the whole life of a nation. “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its individuality.” 

PRINCIPAL DOCTRINES OF SAVIGNY’S THEORY 

The main proposition of the historical school, as expounded by Savigny and some of his followers may be summarised as here under;-

1. LAW IS FOUND, NOT MADE:- A pessimistic view has been taken of the power of human action. The growth of law is essentially an unconscious and organic process. Legislation, thus, is of subordinate significance as compared to custom, because the statute is always unyielding and takes less account of the circumstances of the individual cases. 

2. Law develops from a few easily gasped legal relations in primitive communities to the greater complexity of law in modern civilization, popular consciousness can no longer manifest itself directly, but comes to be represented by lawyers, who formulate the technical legal principle. But the lawyer remains an organ of popular consciousness, limited to the task of bringing into shape what he finds as raw material. Legislation appears at the last stage; the lawyer, therefore, is a more important law making agency. 

3. LAWS ARE NOT OF UNIVERSAL APPLICATION:- Each person develops its own legal habits, as it has its own peculiar language, manners and constitution. Savigny here has insisted upon the parallel between language and law. Neither is capable of application to other people and countries. The Volkgiest manifests itself in the law of the people; it is, therefore, essential to consider the evolution of Volksgeist by legal historical research. 

4. As laws grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law making and, therefore, the lawyers or the jurists are more important than the legislator. 

SUMMARY: 

Savigny’s theory can be summarised as follows; 

● That law is a matter of unconscious and organic growth. Therefore, law is found and not made. 

● Law is not universal in its nature. Like language, it varies with people and age. 

● Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness. 

● As laws grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and, therefore the lawyers or the jurists are more important than the legislators. 

CRITICISM AGAINST SAVIGNY’S THEORY

Savigny while advocating the role of evolution and growth in the development of law his approach towards law was vitiated in the following manner; 

1. He laid excessive emphasis upon the unconscious forces which determine the law of a nation and ignored the efficacy of legislation as an instrument of deliberate, conscious and planned social change. In modern developing societies like India legislation is being created, enacted and used as an important instrument of social change and social reform. As he underestimated the importance of legislation and took a pessimistic view of human power for creation of law to bring about social change so he is criticised for his juristic pessimism. 

2. Savigny emphasised the national character of law. While advocating national character, He entirely rejected the study of German law and took inspiration from Roman law. 

3. Volksgiest itself is an abstract idea as indeterminable and vague as the natural law itself. 

4. He did not encourage law reform including codification of law. 

5. His theory of law and society postponed the emergence of modern sociological school because most of the sociologists like Durkheim, Ehrlich, Kohler, Weber, etc. were confused by the spell of Savigny’s Volksgeist which postponed the study of scientific appraisal of society in terms of its ends and goals. 

SAVIGNY AND AUSTIN- COMPARISON 

It is interesting to note that the two great jurists expounded two different legal theories in England and Germany somewhat contemporaneously. Besides striking differences there are some common features in their legal theories: these are;- 

1. Both Austin and Savigny are against the rationalism and universalism of the natural law philosophy. 

2. Austin and Savigny’s legal philosophy is a reaction and protest against the a priori method of natural law. Both of them consider law as a scientific or factual reality based on a posteriori method.

3. Both of them are comparative jurists-Austin basing his law on the study of Roman law and English law and Savigny propounding his thesis too on the basis of German law and old Roman law which had been to Germany in sixth century A.D. 

4. Both are concerned with the nature of law rather than its functions. 

GEORGE FREDRICK PUCHTA (1798-1856) 

George Frederick Puchta (1798-1856), a disciple of Savigny and a prominent jurist of the Historical School, is known for refining Savigny’s theories with greater logical coherence. Puchta expanded on Savigny’s idea of law’s development, tracing it back to the conflict between individual and collective wills that naturally leads to the formation of the state. He believed that the state emerges to regulate and organise these conflicting interests, evolving into a structured legal system. 

Like Savigny, Puchta viewed law as emerging invisibly from the spirit of the people, with the visible law being its tangible manifestation. He argued that customary law, rooted in common convictions, was more genuine than explicit legislation, which he saw as valid only when it reflected prevailing national customs and usages. 

Puchta’s contribution lies in his dual emphasis on the origins of human will and the state. While he shared many views with Savigny, Puchta refined and enhanced them, making them more logically robust. His work highlighted the importance of customary law as a true reflection of popular sentiment, thereby influencing the understanding of law’s development within the Historical School. 

JOSEPH KOHLER (1849-1919) 

Joseph Kohler (1849-1919), a German jurist influenced by Hegelian legal theory, developed a theory of law that integrated sociological elements while reviving Hegel’s ideas. Kohler viewed human activity as cultural, asserting that humanity’s task is to create and develop new forms that complement divine creation. He emphasised the law’s role in fostering and protecting existing values while adapting to new conditions, reflecting the evolving needs of each civilization. According to Kohler, there is no eternal law applicable universally across societies; instead, law must continuously adjust to changing societal conditions. 

Neo-Hegelian in approach, Kohler agreed with Hegel’s concept of universal civilization but diverged on the idea of a single, eternal body of legal institutions. He argued that human society is dynamic and progressing, necessitating laws that can respond flexibly to these changes. Kohler’s synthesis of individualism and collectivism in legal control aimed to reconcile egoism’s role in driving human

activity with the need for social cohesion. He believed that while individual development is crucial, collective efforts are essential for achieving significant societal goals. 

Dean Pound, an eminent American jurist, praised Kohler’s formulation of legal principles tailored to specific times and places as a significant advancement in legal science. Kohler’s perspective transformed natural law from a rigid, philosophical concept into a dynamic framework capable of evolving with societal needs and conditions.