Historical School of Jurisprudence

Professor Ranbir Singh, Dr. Vijender Kumar NALSAR University of Law, Hyderabad singhranbir@yahoo.com vijenderkumar@yahoo.com

Five Essential Characteristics of Historical School of Jurisprudence

1. 2. 3. 4. 5. What is the element which is called law? What is the nature of the law? What makes law obligatory? What is the source of law? What are their philosophical views?

HISTORICAL SCHOOL
1. Origin and development of law. 2. Considered all social control. 3. They studies the past of law rather than the present. 4. Law is something which can not be made consciously. 5. It is found and automatically grows in the society.

HISTORICAL SCHOOL
6. Because of silently operating internal forces. 7. Law is binding because of social pressure as sanction is to be found in habits of obedience. 8. Their type of law is customary law of those customary modes that make up a body of case law. 9. Law is Volksgeist. 10. Hegalian-History is the unfolding of human experience.

Historical Method
18th Century (A) Natural Jurists . System of Law i) intuitive human conscience founded on ii) abstract human reason Features of such a law being that it is -i) Universal ii) Permanent iii) Unchangeable iv) Static

B) 19th Century England -- Analytical Positivist

Soul less Constricted a) Barren Sovereign made b) Coercive law moral devoid of cultural values

Situation -Above two models

Gun man situation

were not only unhistorical also rejected all laws of historical growth and historical nature Eg) Customs, Traditions, Conventions, Social mores, Myths, etc.

Thus ignored all laws:

Unity in experience Which furnish a society Continuity in time Pass from one generation to another Laws being evolutionary in nature Most importantly link Link past with present bound people with:

their shared historical heritage and culture

ignored Hence such laws were rebuked Natural Law Analytical Positivist

A strong revolution and revolt, developed unhistorical against laws sterile

Historical Method viewed law -As a i) legacy of past ii) a product of each individual, community or people or Nation iii) reflecting peculiar : a) traits b) unique customs c) special habits d) peculiarities

deep rooted in -- heritage and culture, and are a matter of

iv) biological growth v) evolutionary phenomenon arbitrary and not an fanciful artificial creation Historical Method so, vi) connect law with communities and societies define and then identify expound, law

Vii) law as an expression of instinctive sense of:

a) inner unity b) common conscience popular feelings viii) reflected in sentiments beliefs, and practices ix) interpreted law in the back drop of : historico -- cultural matrix of a community

Vii) law as an expression of instinctive sense of:

x) law is bound by its peculiar qualities which make it a distinct entity evolve own culture have its own qualities and mores customs (Law)
and other features different and distinctive from other communities.

Sir Frederick Pollock rightly observes :

The historical method is nothing else than the doctrine of evolution applied to human societies and institutions. Historical Method -- Central focus: a) Law cannot be universal; b) Law cannot be uniform; c) Law cannot be isolated from society; d) Law cannot be isolated from social and historical moorings.

Contd

Important jurists like - Savigny rejecting natural law, and Positivism emphasised the all round revivalism and resurgence of: i) German history ii) Language iii) Grammar iv) Literature v) Folk culture All these factors provided a fertile ground for emergence of historical school.

THE BASIC FEATURES OF HISTORICAL METHOD ARE

1) It is concerned with the analysis of law not as it is but as it was, 2) Its origin and development are interested in the past of law, as past and present are closely connected, 3) To understand present the appreciation of past is a must, 4) This method takes care of presence law in the ancient societies which the positivist approach has ignored, 5) Law is something which is found and not made, found in Society where it grows automatically because of silently operating internal forces.

THE BASIC FEATURES OF HISTORICAL METHOD ARE

6) Law is not a matter of conscious making it grows unconsciously in a society, 7) Growth of law has been different in different societies under different circumstances and at different time, 8) So law has to be different for different societies, 9) It can not be universal and /or uniform, 10) Law grows like language and is born with peculiarities of the place where it takes birth,

THE BASIC FEATURES OF HISTORICAL METHOD ARE

11) It picks up the grammar of the place and the society in which it originates and develops, 12) This method relates law with society and it is the life of a community determines the formation of law, 13) Law becomes a bye product of the society and not the state, 14) This source of law for this method is customary practices and traditions and the typical law is customary law,

THE BASIC FEATURES OF HISTORICAL METHOD ARE

15) The authority behind law for making it binding on people is not force/sanction, rather it is society itself i.e., social pressure or social mores, 16) The philosophical view of the historical method are Hegalian. As for Hegal - History is the unfolding of Human experience. 17) So under this approach law is an experience, experienced by people and manifested in common consciousness i.e., popular public opinion /sentiments explained by Savigny as Volksgeist i.e., spirit of the people.

THE BASIC FEATURES OF HISTORICAL METHOD ARE.

18) Other important jurists of this method are : Sir Henry Maine Sir Frederick Pollock The importance of this method lies in the fact that, even in the modern age of legislation, customary law has not lost its relevance. 19) what was custom to the ancient society legislation/ statute is to the modern one.

Criticism:
1) Savignys theory - perverted by ---Nazi into a - Biological doctrine i.e. - Pure or superior race to control inferior race So Nazi dictator like Hitler misapplied the volk into an idea of superior race and mis-used the theory. 2) In modern times it has given rise to fundamentalist doctrine based on Narrow view of religion: Eg. Muslim countries like in the name of Islam geist So many crimes are committed in the name of: 1) Religion 2) Nationalism

Criticism:
Being used to promote Dividing, and disintegrating forces. The result of perverted use and interpretation of Savignys theory of Volksgeist which is: Secularism Egalitarianism Social Democracy

Anti thesis of

Criticism:
Other aberrations are: i) Customs not an expression of popular consciousness eg:- slavery
ii) custom enforce static division with in a society based on:

language custom, usage religion etc. And it became heaven for: 1) conservatives 2) theoretic people

3) Savignys concept of law became concept of law:

Narrow Sectarian Overlooking trasition Against recent development and progress Insisted on dead past-stoped changed and progress 4) This theory slow down the emergence of sociological jurisprudence. 5) Volksgeist -- perverted for dissimilar. Objects Nazism gave racial colour Marxism Economic interpretation Fundamentalism Religious Resurgence and Revivalism

Criticism:
6) Purity of volksgeist Industrial welfare state: acted as a barricade to modern

This theory followed and give rise to

Fatalists Obstructionist Fundamentalists

7) Volksgeist re-appeared as a cancerous divisive force in body politic.