Historical School of Law

Law Hub Nepal भाद्र १४, २०७७

The law does not fall from the sky. It tends to develop as an expression of a society’s peculiar culture, and values. The historical school of jurisprudence manifests the belief that history is the foundation of the knowledge of contemporary era.

Two jurists who researched extensively in this area – Friedrich Carl Von Savigny (1799- 1861) and Sir Henry Maine (1822-1888) will be the subject of examination in this section.

History is a record of past events. As man has a past so does law. The importance of historical school of jurisprudence cannot be overemphasized. Apart from standing in opposition to the natural law school, the historical school is unique for its emphasis of the relevance of generations past to the present and the future.

1. It came as a reaction against natural 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.

2. It also came as a reaction against analytical positivism which constructed a soul-less barren sovereign-made-coercive law devoid of moral and cultural values described by Prof. Hart as “gun-men-situation”.

THE BASIC TENETS OF HISTORICAL SCHOOL CAN BE SUMMARIZED AS FOLLOWS:

1. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute.

2. It views law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities.

3. It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial creation.

4. Law is not an abstract set of rules imposed on society but has deep root in social and economic factors and the attitudes of its past and present members of the society.

5. The essence of law is the acceptance, regulation and observance by the members of the society.

6. Law derives its legitimacy and authority from standards that have withstood the test of time.

7. The law is grounded in a form of popular consciousness called the Volksgeist.

8. Law develops with society and dies with society.

9. Custom is the most important source of law.

History also sometimes plays a second role in law practice and judicial decision-making. Namely, lawyers and judges sometimes invoke historical arguments to support a particular legal or judicial conclusion.

As a general matter, lawyers and judges typically accept certain types or modes of argument as being legitimate within the legal system.

History often plays a prominent role in constitutional law. Attorneys and judges will assert that historical evidence reveals that the framers of a constitutional provision intended to achieve some desire goal.

K.F. Von Savigny, Founder of Historical School He traced development of law as a evolutionary process much before Darwin have his theory of evolution in the field of biological science in 1861.

Dr. Allen described Savigny as “Darwinian before Darwin.”

Von Savigny, a prominent German jurist through his concept of Volksgeist introduced a new dimension in the legal arena. In fact, his historical school was anchored on the Volksgeist, or ‘the spirit of the people’.

Savigny, also known as the pioneer of his Historical School of Law through concept of Volksgeist explains the need to understand the interrelationship between law and people. For him, law and people cannot be isolated from each other and this is well explained by Savigny’s concept of Volksgeist.

This study aims at analyzing the concept of Volksgeist and the Historical School of Law. It also relates the concept with African customary law.

BASIC CONCEPT OF SAVIGNY’S VOLKSGEIST.

Volksgeist (also volksseele, Nationalgeist or Geist der Nation, Volkscharakrer, and in English “national character”) is a term connoting the productive principle of a spiritual or psychic character operating in different national entities and manifesting itself in various creations like language, folklore, mores, and legal order.

According to Savigny, the nature of any particular system of law, was the reflection of the “spirit of the people who evolved it.” This was later characterized as the volksgeist by Puchta, Savigny’s most devoted disciple.

Savigny believed that law is the product of the general consciousness of the people and laws aren’t of universal validity or application. Each people develop its own legal habits, as it has peculiar language, manners and constitution.

Savigny insists on the parallel between language and law. Neither is capable of application to other people and countries. The volksgeist manifests itself in the law of people: it is therefore essential to follow up the evolution of the volksgeist by legal research.

The view of Savigny was that codification should be preceded by “an organic, progressive, scientific study of the law” by which he meant a historical study of law and reform was to wait for the results of the historians. Savigny felt that “a proper code [of law could only] be an organic system based on the true fundamental principles of the law as they had developed over time”

“Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality” Law is the product of the “Volksgeist”, the national spirit or the genius of the people. Law is found and not made as it devops as a matter of unconscious and organic growth.Custom is the main source of law and it precedes legislation.Savigny rejected ‘natural law’.

Criticism He located origin of law in the Volksgeist, that is popular conscience but at the same time asserted that certain principles of customary law of Rome as universal application.He was against codification of laws which is one of the most accepted form of modern progressive legislation.

20. (a) The concept of received law is anathema;

(b) Law is inferior to the custom of the people. Therefore, custom of the people must be their law;

(c)Law personifies the people, and signifies a paradigm of their values;

(d) There is no universal law. The universality of law is limited by geography and culture;

(e) Law is not static. It is amenable to development; and

(f) There is no law giver. Law comes from the people Maine’s deep knowledge of early society resulted in his emphasis on man’s deep instincts, emotions and habits in historical development.

According to Maine, law can be understood as a late stage in a slow-evolving pattern of growth. He believes that there are three stages in legal development in early societies – law as the personal commands and judgments of patriarchal ruler; law as Primitive, tribal societies appear to lack “law” in the form that exists in so-called advanced societies.

The absence of the institutions that we normally associate with legal system – courts, law enforcement authorities, prisons, legal codes – led to the conclusion that these communities were governed by custom rather than law.

“LAW” IN TRIBAL SOCIETIES

In the first stage, absolute rulers dominated. It was the age of the divine rights of Kings, where the king could do no wrong. System of ruler ship was absolute and draconian. There were no principles governing governance; only the whim and caprice of the king reigned. Recall Austin’s commander, who was above the law, and whose commands must be obeyed by inferiors.

The second stage is heralded by the decline of the power and might of patriarchal rulers (i.e. a small group of people having control of a country or organisation). In their place, the oligarchies of political and military rulers emerged. The oligarchies claimed monopoly of control over the institutions of law.

Notably, Ghana could be said to have experienced this under military regimes where rulers of the THREE STAGES IN LEGAL DEVELOPMENT period manipulated the legal system through decrees and edicts. Maine maintains that the judgments of the oligarchies evolved or solidified into the basis of customs. But the customs are largely unwritten, giving interpreters the opportunity to enjoy a monopoly of explanation. In the third stage, which represents the breaking of the monopoly of explanation, codification characterizes the legal system.

Maine further propounded that for the purpose of the development of law, society can be categorized into two: static and progressive society. Static or stationary societies did not move beyond the concept of code-based law. In this society, reference to the code answered all legal questions.

According to Maine, members of the society were lulled into the belief in the certitude of code and were, therefore, unwilling to reform the law. On the other hand, progressive societies were to be found in Western Europe. These societies were dynamic and amenable to legal reform. They brought about the development and expression of legal institutions. STATIC AND PROGRESSIVE SOCIETIES.

In the development of law in progressive societies, Maine identified the characteristic use of three agencies – legal fictions, equity and legislation. Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities of the formal law.

According to Maine, legal fictions helps to ameliorate the harshness of the law. A classic example he gave was the institution of the Roman fiction of adoption. He called equity a secondary system of law. It claimed a superior sanctity inherent in its principles which exist side by side with the law. In many cases, it could displace the law. Legislation represents the final development of the law. It is an institution through which various laws in the society are reduced into writing or codes.

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In this context, Bibek Chaudhary, a Law student, has prepared above material for the frequently asked question in the subjective examination like – (What do you mean by historical school of law ? Describe about the historical school of law.) Chaudhary has prepared it on the basis of  various study materials. – Editor)

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