Jurisprudence, the theory and study of law, delves into the origins and concepts of law. However, the understanding of law varies from person to person. While law students and lawyers view it as a solution to disputes, ordinary citizens often perceive it as a means of punishment. The Historical School of Jurisprudence argues that law is an exaggerated form of social custom, economic needs, conventions, religious principles, and people's relations with society. Unlike the Natural School of Law, which believes that law originates from a superior authority with divine relevance, the Historical School contends that law is found, not made.

The Concept and Meaning of Historical School of Jurisprudence

The Historical School of Jurisprudence emphasizes the idea that law should be changed in accordance with the changing needs and nature of individuals. It follows the concept of man-made laws, where laws are formulated by the people, for the people. The key source of the Historical School is the habits and customs of the people, which change according to their needs and requirements. This school is also referred to as the continental school of Jurisprudence, rejecting the idea of law formation by judges or divine origins. According to Salmond, historical jurisprudence deals with the general principles governing the origin and development of law, as well as the legal conceptions and principles that deserve a place in the philosophy of law.

Reasons for the Origin of Historical School of Jurisprudence

The emergence of the Historical School of Jurisprudence can be attributed to two main reasons. Firstly, it arose as a reaction against the Natural School of Law, which believes that law originates from a divine power and is associated with morality and the intention of God. The Historical School, however, focuses on the formation of law by the people and rejects the idea of divine origin. Secondly, it opposes the ideology of the Analytical School of Jurisprudence, also known as the Austinian School. The Analytical School focuses on positive law and the origin of law by judges, the state, and legislators. In contrast, the Historical School emphasizes the formation of law by people through customs and habits.

Jurists of the Historical School of Jurisprudence

Several prominent jurists have contributed to the development of the Historical School of Jurisprudence. One of the earliest supporters of this school was Montesquieu, who laid the foundation of the historical school in France. He believed that the law is influenced by social, political, and environmental conditions, and it should adapt to the changing needs of society. Montesquieu's book, "The Spirit of Laws," reflects his beliefs in political Enlightenment ideas and the necessity of modifying laws according to the needs of the people and society.

Another influential jurist of the Historical School is Savigny, often regarded as the father of this school. He argued that the coherence of a legal system is usually due to a failure to understand its history and origin. Savigny believed that the law is a product of its time and develops from the germ of various forms based on the influences playing upon it. He emphasized that the law cannot be borrowed from outside sources and that the main source of law is the consciousness of the people.

Addressing Savigny's views, Friedmann concludes that law is like a language that eventually grows and cannot be universally applied. The law is found or discovered, not artificially made. It is based on the consciousness, customs, and beliefs of the people. Savigny's concept of Volksgeist, meaning "national character," highlights the idea that law is the product of the general consciousness or will of the people. It serves as a warning against hasty legislation and the introduction of revolutionary abstract ideas on the legal system unless they support the general will of the people.

While Savigny's views have faced criticism, with Charles Allen arguing that customs are not solely the outcome of common consciousness but often influenced by powerful ruling classes, the Historical School of Jurisprudence continued to evolve with the contributions of other jurists.

Sir Henry Maine, the founder of the English Historical School of Law, carried forward Savigny's views in England. He studied the Indian legal system deeply during his tenure as a law member in the Council of the Governor-General of India. Maine's works, such as "Ancient Law," "Village Communities," "Early History of Institutions," and "Dissertations on Early Law and Custom," incorporated ideas from Savigny and Montesquieu. Unlike Savigny, Maine favored legislation and codification of law.

The Development of Law in Four Stages

According to Maine, the development of law can be divided into four stages:

1. First stage: Rulers act under divine inspiration, and laws are made based on their commands. The judgment of the king is considered the judgment of God or a divine body.
2. Second stage: The commands of the king are transformed into customary law, which prevails among the ruler or majority class. Customs replace the right and authority of the king.
3. Third stage: The administration and knowledge of customs transfer to a minority class or ordinary individuals due to the weakening of the lawmaking power of the original law-makers. The ruler is superseded by this minority, which gains control over the law.
4. Fourth stage: The law is codified and officially promulgated.

Maine also distinguishes between static and progressive societies. Static societies do not progress beyond the era of codes, while progressive societies continue to develop their laws through legal fictions, equity, and legislation.

Georg Friedrich Puchta's Contributions

Georg Friedrich Puchta, a German jurist and disciple of Savigny, made significant contributions to the Historical School of Jurisprudence. Puchta's ideas focused on the conflict between general will and individual will, which leads to the establishment of the state as a means to resolve the conflict. He emphasized that neither the people nor the state alone can make and formulate laws; both are equally important sources of law.

Puchta's concept of law development traced its evolution from the beginning and highlighted the importance of the situation when conflicts arise between general will and individual will. He expanded and improved upon Savigny's ideas, making them more logical.

Conclusion

The Historical School of Jurisprudence provides valuable insights into the origins of law. According to this school, law is found, not made, and it is influenced by social customs, economic needs, conventions, religious principles, and people's relations with society. Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta have contributed significantly to the development of this school. While Savigny emphasized the national character of law and the importance of customs, Maine favored legislation and codification. Puchta further improved upon Savigny's ideas, focusing on the conflict between general will and individual will. By understanding the historical development of law, we can gain a deeper understanding of its principles and concepts.

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