The Two Prime Reasons for The Evolution of Historical

School:

i. It came as a reaction against unnatural law,

which relied on reason as the basis of law and
believed that certain principles of universal
application can be rationally derived without
taking into consideration social, historical and
other factors;

ii. It came as a reaction against analytical

positivism.

HISTORICAL SCHOOL
Friedrich Carl von Savigny(17791861) was a
Germanjuristandhistorian.
His work
The Law of Possession,
The history of Roman Law in Middle Ages,
The System of Modern Roman Law
Law has its source in the general consciousness
(Volkgeist) of the people.

Savigny
As laws grow into complexity ,the common consciousness is
represented by lawyers who formulate legal principles. Early
development of law is spontaneous: Later on it is developed
by jurists;
Law is inferior to the custom of the people.Therefore,custom
of the people be their laws;
There is no universal law. The universality of law is limited by
geography and culture;
Law is not static. It is amenable to development;
There is no law giver. Law comes from the people;
The law is a matter of unconscious and organic
growth.Therefore,law is found and not made;

Savigny
According to Savigny,legal development passes
through the early stage of unwritten custom,
then
codification
of
those
customs
and,lastly,purposeful legislation. The evolution of
law is equally tied to the peoples language and
the totality of its belief system.
Legal system was a part of the culture of a
people. Law was not the result of an arbitrary act
of a legislator.

Criticism
Volksgiest not the exclusive source of laws;
Customs not always based on
popular
consciousness;
He ignore the other factors that influence law;
Many thing unexplained;
In pluralist societies such as exist in most parts
of the world it really seems somewhat irrelevant
to use the concept of Volksgeist as the test of
validity.

Sir Henry Maine(1822-1888)

British jurist and legal historian who pioneered the study of
comparative law.
A member of the council of the governor-general of India
(186369), Maine was largely responsible for the
codification of Indian law. In 1869 he became the first
professor
of
comparative
jurisprudence
at
the
University of Oxford
and,
in
1887,
a
professor
of
international law at Cambridge.
Stages of legal development, static and progressive
societies, and the change from status to contract.

Contribution
Maine began his work with a mass of material
already published by the German historical already
published by the German historical school . He
inaugurated the comparative approach to the study
of law and history which was history which was
destined to play an important role in the years to
come..
His important works are village communities in
1871, Early history of institutions in 1875 and
Dissertions early law and custom in 1883.

law

Stages of development of

1. Commands of ruler believed to be in divine inspiration;

2.Commands crystalize into customary law;
3. Knowledge and administration of customs goes into
hands of minority usually of a religious nature, due to
weakening of original law makers;
4.Codification
Societies which do not progress beyond the 4th stage
which closes the era of spontaneous legal development
are called static societies by Maine .

Static and Progressive

Societies
Static Societies- Societies which do not progress
beyond the 4th stage .
Progressive Societies-The societies which go on
developing their law by new methods are called
progressive. Law develops by three methods:
legal fiction ,equity and legislation.

Definitions of Jurisprudence
Ulpian -The Roman Jurist, Ulpian, defined Jurisprudence as "The
observation of things human and divine, the knowledge of just
and unjust."
Austin defines Jurisprudence as the "Philosophy of Positive Law".
Positive Law means the law laid down by political superior to regulate the
conduct of those subject in his authority. However, the term Philosophy is
misleading. Philosophy is the theory of things, man and divine, while
Jurisprudence only deals with man-made law.

Definitions of
Jurisprudence
Salmond defines Jurisprudence as the the Science of law".
There are three kinds of laws that govern the conduct of human in a
society.
Theologian Laws - derive their authority from a divine or superhuman
source intended to regulate human conduct as well as beliefs and are
enforced by spiritual rewards or penalties .
Moralist Laws - Man-made that exist in all societies, both primitive and
most civilized. There is no definite authority to enforce the laws, but the
public.
Jurist Laws - Regulates external human conduct only and not inner beliefs.
They can exist in politically organized societies, which has a Government.
They are enforced by courts or judicial tribunals of the society which
applies a variety of sanctions ranging from fines to capital punishments.

Definitions of Jurisprudence

Holland -Holland defines Jurisprudence as

"The Formal Science of Positive Law".
Formal science differs from material
science in the way that formal science
deals
with
fundamental
principles
underlying and not concrete details.

Jurisprudential Aspects
1.Jurisprudence has many aspects, with four
types being the most common. The most
prevalent form of jurisprudence is that it
seeks to analyze, explain, classify, and
criticize entire bodies of law, ranging from
contract to tort to constitutional law. Legal
encyclopedias, law reviews, and law school
textbooks frequently contain this type of
jurisprudential scholarship.

Jurisprudential Aspects
2.The second type of jurisprudence compares
and contrasts law with other fields of
knowledge such as literature, economics,
religion, and the social sciences. The purpose
of this interdisciplinary study is to enlighten
each field of knowledge by sharing insights
that have proved important to understanding
essential
features
of
the
comparative
disciplines.

Jurisprudential Aspects
3.The third type of jurisprudence raises
fundamental questions about the law itself. These
questions seek to reveal the historical, moral, and
cultural underpinnings of a particular legal
concept.

Jurisprudential Aspects
4.The fourth and fastest-growing body of
jurisprudence focuses on even more abstract
questions, including, what is law? What is its
relation to justice and morality? What is the
role of a judge? Is a judge more like a
legislator who simply decides a case in favor
of the most politically preferable outcome?
What is justice? What is liberty and
freedom?

LEGAL REALISM
The scientific or analytical positivism of the 19th C
paved the way for the Realists Jurisprudence. The
realist movement is opposed to idealistic theory of
law. The American realism was a reaction to the
formalism theory of law which concentrated on logic
and reasoning. Formalism was thought to be
theoretical and not practical.
Legal realism had its origins in the twentieth century.
The term realism is used in many ways to characterize
intellectual and philosophical movements.

Formalism Theory of Law

Legal formalism, also known as conceptualism, treats

law like a math or science. Formalists believe that in
the same way a mathematician or scientist identifies
the relevant axioms, applies them to given data, and
systematically reaches a demonstrable theorem, a
judge identifies the relevant legal principles, applies
them to the facts of a case, and logically deduces a rule
that will govern the outcome of a dispute. Judges
derive relevant legal principles from various sources of
legal
authority,
including
state
and
federal
constitutions, statutes, regulations, and case law.

Formalism Theory of Law

Formalist theories claim that (1) the law is rationally
determinate, i.e., the class of legitimate legal reasons
available for a judge to offer in support of his decision
justifies one and only one outcome either in all cases or in
some significant and contested range of cases (e.g.,
cases that reach the stage of appellate review); and
(2) adjudication is thus autonomous from other kinds
of reasoning, that is, the judge can reach the required
decision without recourse to non-legal normative
considerations of morality or political philosophy.