HISTORICAL SCHOOL

INTRODUCTION

The historical school of Jurisprudence argued that the law is the

exaggerative form of social custom, economic needs, conventions,
religious principles, and relations of the people with society.
The followers of this school argued that law is found, not made.
The historical school doesn’t believe and support the idea of the
positive or the natural school of law which believe that the origin of
law is from superior authority and have some divine relevance.
The concept and meaning of Historical School of Jurisprudence
With the changing needs and nature of persons, the law should be changed. The
historical school follows the concept of man-made laws.
‘Law is formulated for the people and by the people’ means that the law should
be according to the changing needs of the people. And everyone understand
their own need better than anyone else.
The basic source of the Historical School of Jurisprudence is the habits and
custom of people which changes according to their needs and requirement.
This school rejects the ideas of formation of law by judges and the origin from
some divine relevance.
In the words of Salmond, “That branch of legal philosophy which is termed
historical jurisprudence is the general portion of legal history.
The concept and meaning of Historical School of Jurisprudence
It deals, in the first place, with the general principles governing the origin and
development of law, and with the influences that affect the law.
Secondly, it deals with the origin and development of those legal conceptions
and principles which are so essential in their nature as to deserve a place in the
philosophy of law.
English Legal Historian Holdsworth pointed two major factor that are responsible
for the emergence of historical school of jurisprudence namely , i) The French
Revolution and its aftermaths ,and ii) Darwinian theory evolution which altered
the character of scientific speculation during that period concerned.
The Apex Court of India, in Byram Pestonji v. Union Of India 1991, where the
court said, “The Indian legal system is the product of history. It is rooted in our
soil , nurtured and nourished by our culture , languages and traditions , fostered
and sharpened by our genius and quest for social justice , reinforced by history
and culture.”
Reasons for the Origin of Historical School of Jurisprudence
The Historical School believe that law is made from people according to their changing
needs. Habits and customs are the main sources of the Historical School of Jurisprudence.
According to Dias, Historical school arose as a reaction against the natural law theories.
The reasons for the emergence of this school are:
It came as a reaction to the natural school of law.
Natural school of law believes that the law is originated from some divine power. Natural
law is also called the Eternal law. It exists since the beginning of the world. It is closely
associated with the morality and intention of God.
Historical school of Jurisprudence focuses on the formation of law by people not by some
divine origin.  
It opposes the ideology of the analytical school of jurisprudence.  
Analytical school of jurisprudence is also called Austinian School. It is established by John
Austin. The subject matter of Analytical school of Jurisprudence is positive law. It focuses
on the origin of law to be state and legislators. Historical School laid emphasis on the
formation of law by people through customs and habits, not by any superior authority.
Jurists of Historical School of Jurisprudence
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.
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.
One of the best-known works of Montesquieu was his book ‘The Spirit of laws’.
In this book, he represents his beliefs in political enlightenment ideas and
suggests how the laws are required to modify according to the needs of people
and society.
Friedrich Karl Von Savigny
• Savigny is regarded as a Father of the Historical school. He argued
that the incoherent nature of the legal system is usually due to the
failure to understand its history and origin.
• Savigny believes that the law cannot be borrowed from outside. Law
develops from the society. And the main source of law is the
consciousness of the people.
• He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away
when nationality loosens its strength in the state.
Law is like language which eventually grows.
Law cannot be of universal validity nor be constructed on the basis
of certain rational principles or eternal principles.
Law is sui generis (sui generis is a Latin phrase that means "of its
(his, her, their) own kind; in a class by itself; unique). Savigny argued
that law is like the language having its own national character. So, it
can’t be universally applied and varies according to the people.  
Law is found or discovered not made. It can’t be made artificially like
the invention of an object.
Law is found on the basis of consciousness, customs and beliefs of
the people.
What is law according to Savigny?
“It is a result of times, the seed of which, like the germ of state,
resides in the character of man as being designed for society, and
which develops from this germ various shapes, depending on the
surrounding influences.”
The law is the outcome of the historical course, which has manifested
the customary laws. Thus, the law isn’t a product of enacted legislation
but is the replica of national spirit. As mentioned, in Savigny’s opinion,
the legal system is a reflection of the national consciousness, he
named it volkgeist.
Basic Concept of Savigny’s Volksgeist
Volksgeist means “national character”. According to Savigny’s
Volksgeist, the law is the product of general consciousness of the
people or will.
The concept of Volksgeist was served as a warning against the hasty
legislation and to introduce the revolutionary abstract ideas on the
legal system unless they support the general will of the people.
Basically, Savigny was of the view that law should not be found from
deliberate legislation but should be made out of the general
consciousness of the people.
Criticism of Savigny’s View
The views of Savigny were criticized by many jurists:
Charles Allen
Charles Allen criticized Savigny’s view that law should be found or based on the
customs.  Allen was of the view that customs are not the outcome of common
consciousness of people. But they are the outcome of the interest of a powerful
and strong of a ruling class. For example, slavery which was recognized and
prevailed in certain societies by the powerful classes of society.
Prof. Stone
Prof. Stone criticized Savigny and says that he (Savigny) ignored the efficiency of
the legislation and planned law and social change.  And over emphasized on the
consciousness of people.
Sir Henry Maine
Sir Henry Maine was the founder of the English Historical School of Law.
Savigny’s views of Historical school was carried forward in England by Sir Henry
Maine.
Major Works by Sir Henry Maine
• The first work of Maine ‘Ancient Law’ was published in 1861.  
• He also wrote Village Communities (1871),
• Early History of Institutions (1875)  
• Dissertations of Early Law and Custom (1883).  
Maine studied the Indian legal system deeply as he was law member in the
Council of the Governor–General of India b/w 1861 to 1869. Maine’s ideas were
incorporated by the best things in the theories of Savigny and Montesquieu and
he avoided what was abstract and unreal Romanticism.
Maine favoured legislation and codification of law, unlike Savigny.
Maine describes the development of law in four stages:
First stage
Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. The judgment of the king was considered to be the judgment of
God or some divine body.  King was merely an executor of judgments of God, not the law-
maker.
Second stage
Then the commands of King converted into customary law. The custom prevails in the ruler
or majority class. Customs seems to have succeeded to the right and authorities of the king.
Third stage
The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the law making power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is
superseded by a minority who obtain control over the law.
Fourth stage
In the fourth and last stage, the law is codified and promulgated.
Static and Progressive Society
Static societies
Societies which does not progress and develop their legal structure after the fourth stage of
development of law are Static society. Static societies don’t progress beyond the era of codes.  
Progressive Society
Societies which go on progressing after the fourth stage of development of law are Progressive
Societies.
They develop their laws with the help of these instruments:
• Legal Fiction
Legal Fiction changes the law according to the needs of the society without making any change in the
letters of the law. Legal fiction harmonizes the legal order but made the law difficult to understand.  
• Equity
According to Maine, “Equity is a body of rules existing by the side of the original civil law & founded
on distinct principles”. Equity helps to remove rigidity and injustice.
• Legislation
The legislation is the most effective and desirable method of legal change. Laws will be enacted and
became operative officially.
Georg Friedrich Puchta
• Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of
Historical school of Jurisprudence.
• Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s
ideas. He traced the development and evolution of law from the very
beginning.
• His ideas mainly focused on the situation when conflict arises between
general will and individual will. In the conflict between general will and
individual will, the state came into existence.  And find out the midway to
resolve the conflict.
• The main concept of Puchta’s ideas was that “neither the people nor the state
alone can make and formulate laws”.
• Both State and individual are the sources of law.
Conclusion
Historical School of Jurisprudence describes the origin of law. This school argues
that the law was found not made. The main source of law is Kings Judgment,
Customs and habits. Jurists like Montesquieu, Savigny, Sir Henry Maine, and
Georg Friedrich Puchta are the supporter of the Historical School of
Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist of
Historical school. Sir Henry Maine was the jurist of English Historical School. He
was more logical and accept the concept of Codification and legislation.
Savigny was the father of Historical school. He argued that Law is like language
and have a national character. Law is not universal. While Puchta improved the
ideas of Savigny and argued that both state and people are equally important
and source of law.