Historical School of Jurisprudence
What is the Historical School of Jurisprudence?
The Historical School is a theory of law that emphasizes the evolution of law from the customs, traditions, and social practices of a people (a nation or community) over time. It holds that law is not an arbitrary set of rules imposed by rulers but develops organically from the historical and cultural context of society.
Key Features:
Law is a product of history and culture
Law grows out of the customs, traditions, and beliefs of a particular society.
Emphasis on customs and social traditions
Customs accepted over time become the basis for legal rules.
Law reflects the spirit of the people (“Volksgeist”)
The German term Volksgeist means the “spirit of the people.” Law embodies the unique character, values, and identity of a nation.
Opposition to natural law and legal positivism
Unlike natural law theories (which see law as based on universal principles) or Austin’s positivism (which focuses on commands by a sovereign), the Historical School focuses on law’s cultural and historical roots.
Gradual development
Law evolves slowly and naturally, adapting to changes in society.
Major Proponents:
Friedrich Carl von Savigny (1779–1861)
The founder of the Historical School. Savigny argued against codification (like the Napoleonic Code) in Germany, believing that law should reflect the customs and collective consciousness of the German people.
Sir Henry Maine (1822–1888)
A British jurist who linked the evolution of law with the evolution of society — from status-based societies to contract-based societies.
Jhering and Puchta
Other key figures who contributed to this school’s development.
Savigny’s Views:
Law is not created by a legislative act but develops naturally from the Volksgeist.
Imposing law by a ruler without regard to customs causes injustice.
Law is a manifestation of the people's common consciousness.
Criticisms:
The theory can be conservative, resisting needed legal reforms.
It may justify outdated or unjust customs simply because they are traditional.
It is vague about how law changes in response to new social needs.
Not all laws are rooted in custom—many modern laws are consciously made.
Summary Table:
| Aspect | Historical School |
|---|---|
| Focus | Law develops from customs, traditions, and culture |
| Key Concept | Volksgeist (spirit of the people) |
| Law’s Nature | Organic, evolutionary, cultural |
| Opposes | Natural law universalism, legislative positivism |
| Major Thinkers | Savigny, Maine |
| Criticism | Conservative, resistant to reform, can uphold outdated norms |
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