Historical school of a jurisprudence.pptx

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1. Historical school of jurisprudence

2. What we learnt in natural school A priori approach Concept of divine law Law is universal concept Law and morality should be connected According to salmond , just like analytical jurisprudence bears to the systematic exposition of the legal system. Historical jurisprudence deals with the general principles governing the origin and development of law and with the influence that affect the law. Historical jurisprudence is the history of the first principles and conceptions of a legal system.

3. Introduction Historical School of Jurisprudence is one of the schools of law after Natural Law. This law further believes that law, in general, is an outcome of years of historical development. some of the factors that affect this long historical development are as follows: Society and social customs. Many religious and convention principles. Also, the economic needs of society play a crucial role. Last but not the lease, the needs, and desires of the citizens.

4. The advocates of this school argued that law is not made but is advanced from the pre-existence materials like customs and religious principles , unlike the natural school , which believed that law originates from superior authority or sovereignty . Thus the school does not attach importance to relation of law to the state but give primacy to the social institutions in which the law develops itself .

5. Characteristics of historical school  It focused on tracing the historical origins and development of legal norms, institutions, and traditions. Central to the Historical School was the concept of Volksgeist , which emphasized the unique cultural, social, and historical characteristics of each nation or community. Legal norms were seen as expressions of the collective consciousness or spirit of the people The Historical School viewed law as an organic entity that evolves gradually over time in response to societal needs and values. Legal rules and institutions were seen as products of historical development rather than creations of legislative enactments or judicial decisions.

6. Emphasis was placed on customary law as a primary source of legal norms. The Historical School argued that customs reflect the long-standing traditions and practices of a society and should be respected as valid sources of law. The Historical School criticized the abstract and formalistic approach of legal rationalism, which sought to derive legal principles through logical deduction and rational analysis. Instead, it advocated for a more holistic understanding of law grounded in historical experience.

7. jurist of historical school Montesquieu According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal institution was Montesquieu. He laid the foundation of the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of the climate, local situation, accident or imposture”. He was of the view that law must change according to changing needs of the society. He did not establish any theory or philosophy of the relation between the law and society. He suggested that the law should answer the needs of the place and should change according to time, place and needs of the people.

8. Savigny Savigny is regarded as a father of the Historical school. He believed that law is a pro4duct of the general consciousness of the people and manifestation of their spirit. According to him, law made without taking into consideration the past historical culture and tradition of the community is likely to create more confusion rather then solving the problems because ‘law’ is not an artificial lifeless mechanical device.’ the origin of law lies in the spirit of the people which savigny termed as ‘ Volksgeist ’

9. The main tenets of savigny’s theory Law develops like language Not Universally Valid:  Law cannot have universal applicability or be constructed solely on rational or eternal principles. Sui Generis:  Law is unique and has its own national character. It cannot be universally applied and varies according to the people it governs. it varies with people, time and needs of the community. Discovered, Not Made:  Law is discovered based on the consciousness, customs and beliefs of the people. Early development of law is spontaneous, jurist develop law in later stages. Law is a continuous and unbreakable process. Since law should always conform to popular consciousness i.e volksgeist , custom not only precedes legislation but is superior to it. Savigny essentially advocated that law should not be created through deliberate legislation but should naturally arise from the collective consciousness of the people.

10. Criticism against savigny’s theory of law Savingny’s assertion that popular consciousness is sole source of law is not wholly true. This theory overlooks the impact of other sources of law such as legislation, precedent etc in the evolution of law. Savigny’s view that customs are always based on the popular consciousness is also not acceptable. Many custom such as slavery, banded labour etc originated to accomplish the selfish interests of those who were in power. He did not stick to his own principle as he was promoting ancient roman law instead of old Germanic law and custom Prof. stone said sometimes law are made to abolish a custom or practice, like abolition of slavery, abolition of sati system in india

11. Savigny’s contribution Interpreted jurisprudence in terms of people’s will. Paved way to the modern sociological approach by laying greater emphasis on relation of law with society. His approach to law also gave birth to comparative jurisprudence which has been accepted as one of the most important branches of legal studies in modern times.

12. Puchta One of the central concepts of Puchta’s ideas was that “neither the people nor the state alone can create and formulate laws.” He emphasised that both the state and individuals contribute to the formation of law. P uchta explored the duality of human will, highlighting the tension between the general will of society and the individual will. He argued that the state’s existence is a result of attempting to find a middle ground to resolve these conflicts.

13. Sir Henery Maine Maine had a deep understanding of the Indian legal system because he served as a law member in the Council of the Governor-General of India from 1861 to 1869.  Sir Hennery Maine was of the opinion that development of law and other social institution has been on an identical pattern in almost all the ancient societies. For ex. Hindu Roman etc. These societies were based on patriarchal pattern. It was because of kinship, i.e blood relationship with family that a person acquired a status. Individual member of the family had no separate existence than his status.

14. Movement of progressive societies Status to contract With the passage of time, rigours of patriarchal pattern of society got diluted. As the society developed, rights and obligations become dependent upon contract and negotiations between individuals. This led to the emergence of contractual relations. Now individuals caould take decision himself without depending upon the head of family.and emergence of free society With the passage of time, slaves also became free from bondage of masters and became capable to have rights and duties.

15. Contract to status Emergence of new problems: new problems of hunger, exploitation, unemployment etc gave rise to inequalities of various kinds within the society. Consequently, a reversal from contract to status during the lifetime of Henery maine . Emergence of trade unions: The workers realized that freedom of contract between them and powerful capitalist class led to disastrous consequences, resulting in their exploitation. Therefore, they decided to form trade unions and labour welfare associations. In india , many labour welfare legislations have been enacted. For ex. The Trade Union Act, 1926, the Factories Act, 1948.

16. He described the development of law in four stages: First Stage:  Rulers are believed to act under divine inspiration and laws are made based on their commands. The king’s judgment is seen as the judgment of God and the king is an executor of divine judgments rather than a law-maker. The judgment of the king was considered to be the judgment of God or some divine body . Second Stage:  The king’s commands gradually transform into customary law, which prevails among the ruler or majority class. Custom takes precedence over the king’s authority. Third Stage:  The knowledge and administration of customs shift to a minority class due to the weakening of the original law-making power. The ruler is replaced by this minority class, which gains control over the law. Fourth Stage:  In the final stage, the law is codified and officially promulgated.

17. Maine classified societies into two categories: Static Societies:  These societies do not progress beyond the era of codified laws. They do not evolve their legal structures further. Progressive Societies:  These societies continue to progress beyond the codification stage. They develop their legal systems using instruments such as legal fiction, equity and legislation. Legal Fiction : Legal fiction allows changes in the law to align with societal needs without altering the letter of the law. However, it can make the law complex and challenging to understand. For example: legal status of unborn child, company or idol etc. Equity : Equity helps to address rigidity and injustice in the legal system Legislation : According to Maine, legislation is the most effective and desirable method of legal change. Laws are enacted officially and become operative through legislation.

18. Indian perspective The preception of law in ancient hindu society was different from what it is today. Law was a part of dharma which meant rightful conduct and doing one’s acts with noble intentions. The advent of british rule in india from 1754 brought about the decline of dharmasastra law. The process of legislation through regulations in the initial stage and then by statutory law, threw the age-old ancient laws into oblivion giving place to laws based on English common law system. While enacting different enactment, the British Government did not care for the public opinion of the indigenous people.

19. Post independence scenario The Indian independence brought in its wake a new era in the development of Indian jurisprudence with emphasis on justice, equality, liberty and individual freedoms and rights. The preamble to the Constitution along with the chapters on fundamental rights, duties and DPSP constitutes the core of Indian philosophy. Secularism as a positive concept implies complete tolerance, impartiality and equal protection of the interests of all religion.