File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Historical School of Jurisprudence

This paper explores the historical evolution of jurisprudence as a mechanism of social control, tracing its development from the Greek period to the contemporary era. The background highlights the ongoing debate regarding the definition and boundaries of jurisprudence, which have shifted through various historical phases. The primary research problem addressed is the challenge of understanding how jurisprudence has adapted to societal needs and norms over time, and the aim is to delineate the distinct stages of its evolution while examining the implications of these changes for contemporary legal theory.

The methodology involves a historical analysis of primary sources and scholarly interpretations, focusing on key periods: Greek, Roman, Medieval, Modern, and the Nineteenth, Twentieth, and Twenty-first centuries, alongside the contributions of notable jurists like Montesquieu and Savigny. Findings indicate that jurisprudence has oscillated between being perceived as a science and a philosophy, ultimately reflecting societal values and conditions rather than adhering strictly to natural or analytical frameworks. The implications of this study suggest that understanding the historical context of law can enhance contemporary legal practices and theories, advocating for a jurisprudence that is responsive to the evolving needs of society.

Introduction
Jurisprudence as a technique of social control of human behavior is one of the oldest of sciences to be born. Its origin and evolution dates back from classical Greek period to modern twenty-first century with characteristic changes in its nature at each stage of its historical evolution. Therefore, the meaning, nature and scope of jurisprudence has been undergoing a corresponding change. Many attempted to determine, limit and redetermine the boundaries of jurisprudence but without success[1]. However, a systematic study of the emergence of jurisprudence as a science of social control can be divided in well-defined stages:

Greek period; Roman period; Medieval or Scholastic period; Classical period; Nineteenth century; The Twentieth century and the Twenty-first century.[2]

Historical perspective of Jurisprudence

Greek Period

Like other sciences, the science of law has its roots in Greek philosophy. Indeed, the Greek thinkers and philosophers did much speculative thinking on the problems of law and administration of justice. But the Greeks contributed nothing in making jurisprudence a systematic theory of social control.
The Greek term 'Nomos' used for 'Law' was used like the word 'Dharma' in Hindu jurisprudence which meant many things, namely, tradition, custom, usage, religion, ethics, morality, nature, and law as a means of social control.
The Greek philosophy of law was in essence a political form, i.e., preservation and maintenance of freedom and independence of Greek city-states. Law as such was external to man—either divine will, physical nature, or nature of man.
The 'Law' i.e., Nomos, therefore, was regarded by the Greeks as an instrument of social control independent of human will and of universal application.

Roman Period

The Romans inherited the legacy of Greek philosophy of law which in the hands of practical Roman jurists became a science of law-known as Roman System of Law—to serve the needs of the Roman Empire.
Man, as being part of Nature, is entitled to right treatment at the hands of his fellow men because he is by nature a reasonable being. He knows his position in society and knows that in maintaining it he is obeying the supreme inner Reason. Thus 'Live according to Nature' became 'Live according to Reason'.

Medieval Period

The natural law acquired a theological character during the Medieval period. Since the law acquired divine character, it became absolutely binding over all people and laws—whether customs or constitutions or any other human law.
According to Gration, mankind is ruled by two things: natural law and customs. Natural law is that which is contained in the law of the gospel, whereby everyone is commanded to do to another that which he would have done to himself.

Modern Period

The Renaissance and Reformation in the fifteenth and sixteenth centuries led to a revolt against the supremacy of the Church in temporal affairs of the States and monarchs. The conflict that entered between ecclesiastical authority and temporal authorities is more of concern of history and political philosophy than that of jurisprudence.
The men of the Renaissance and Reformation period drew their notions of Nature and natural law with Nature playing a new part regarding the State of Nature as envisaged by Hobbes, Locke, and Rousseau.
Thus, Natural Law was invoked as the offspring of equality, liberty, and fraternity implied in the American Declaration of Independence of 1776, and the Declaration of Rights of Man of the French Convention of 1789. Natural Law also played a great role in the development of modern international law.

Nineteenth Century

In short, the conception of natural law as a juristic concept was enshrouded by mysticism and political philosophy. It was left to the nineteenth-century jurists to redetermine the scope and nature of jurisprudence.
The nineteenth-century jurists rejected the previous speculative notions concerning natural law legal philosophy and attempted to make jurisprudence a science distinct from make-believe natural law philosophy.
Jurisprudence as science developed in two separate branches: the historical method in Germany and the analytical method in England.
Fredrich Karl Von Savigny did not consider law as something static, fixed, unchangeable independent of mankind based on Reason or Nature. Jeremy Bentham and John Austin considered law in an analytical manner which rejected ideal, natural, and speculative elements from legal science.

Twentieth and Twenty-first Century

In the twentieth and twenty-first centuries, jurisprudence, instead of being a science, has again become a philosophy or way of life with basic values and fundamental freedoms touching the boundaries of all the other social sciences.
It cannot be defined with reference to some prehistoric custom or some dogma or in the manner of a command. Hence, Jurisprudence can no more be confined to the enunciation of certain ideal norms but is concerned with the fulfilment of social needs.

Historical School of Jurisprudence

Meaning and Concept of Historical School

The law ought to be modified in light of people's evolving needs and characteristics. The historical school adheres to the theory of created laws. "Law is formulated for the people and by the people" implies that the people's changing needs should be taken into account when crafting laws.
Furthermore, each person is the expert on their own needs.
The fundamental origin of the Historical School of Jurisprudence is human customs and habits, which vary depending on the needs and demands of the individual. It is sometimes referred to as the continental school of law.
Salmond stated as follows: "The general portion of legal history is that branch of legal philosophy which is termed historical jurisprudence." It bears the same relation to legal history at large as analytical jurisprudence bears to the systematic exposition of the legal system.

Nature and Function of Historical School of Jurisprudence

Historical Jurisprudence analyzes the law in its different manifestations throughout its evolution.
Historical Jurisprudence holds fast the thread which binds together the modern and the primitive conception of law, and seeks to trace through all the tangled mazes which separate the two, the line of connection between them.
Historical Jurisprudence takes up custom as enforced by the community and traces its development.
It seeks to discover the first emergence of those legal conceptions which have become a part of the world's common store of law, to show the conditions that give rise to them, to chart their evolution and dissemination, and to identify the circumstances and factors that shaped them during the diverse phases of their existence.
Historical Jurisprudence would be a mere collection of laws and customs having no necessary order or system. Its attainment or lack of perfection would depend upon the degree of completeness with which its collection had been made.

Reason for the Origin of the Historical School of Jurisprudence

The Historical School of Jurisprudence asserts that the law emerges from people according to the changing needs and conditions. Habits and Customs are the main source of the Historical school of jurisprudence.
According to Prof. Dias, the Historical School came into existence as a reaction against natural theories of law.
The following factors led to this school's establishment:

It was a response to the legal theory of natural law. According to the natural school of law, the law was fashioned by a supernatural power. The eternal law is another term for natural law. It possesses existed since the dawn of time. It is intimately related to God's intentions and moral standards. The natural law is somewhat relevant to the articles of the Indian constitution.
The historical school of law emphasizes how people, not some divine source, formed the law.
It is in opposition to the analytical school of jurisprudence's ideology. The Austinian School is another name for the analytical school of law. John Austin is the one who founded it. Positive law is the focus of the Analytical School of Jurisprudence.
It emerges due to Rationalism in Europe.

This school came into being as a result of the rationalism movement spreading throughout Europe. This school considers historical facts while emphasizing the evolution of law.[22]

Eminent Jurists of Historical School of Jurisprudence
Montesquieu
Generally known as just Montesquieu, Charles Louis de Secondat, Baron de La Brède et de Montesquieu (18 January 1689 – 10 February 1755) was a French judge, man of letters, political philosopher, historian, and historian.[23]

Montesquieu was the first jurist to apply the historical method, according to Sir Henry Maine. After conducting studies on the legal systems and structures of many societies, he came to the conclusion that "laws are the creation of climate, local situations, accidents or imposture." He was of the view that law should change according to the changing needs and circumstances of the people. He did not go further and did not lay down any philosophy underlying the relation between law and society, but his suggestion that law should answer the needs of the time and place was a step in the direction of new thinking.[24]

Montesquieu's book "The Spirit of Laws" is among his most well-known creations. In this work, he argues that laws should be changed to better serve the needs of society and individuals, based on his political Enlightenment principles.[25]

Friedrich Karl Von Savigny
Savigny was born in Frankfurt in 1779. His interest in historical studies was kindled at the Universities of Marburg ang Gottingen and greatly encouraged when he came into contact with the great Niebuhr (historian) at the University of Berlin. He was not opposed to reform but maintained that reforms which went against the system of a nation's continuity were doomed. A thorough understanding of German law's past was a necessary precondition for its revision. Studying the past was essential to comprehending and modifying the current legal system. He cautioned lawmakers to think things through before rushing into reform[26].

Savigny is regarded as the founder of the Historical School on the continent. According to him, law is "a product of times the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it". The essence of this thesis is to be found in his work of 1814 entitled On the Vocation of Our Time for Legislation and Jurisprudence. [27]
In view of Savigny, Law is found and not made as it develops as a matter of unconscious and organic growth. The law will be shown to have already acquired a permanent character, peculiar to the people, like their language, manners, and constitution, in the earliest periods to which reliable history goes. [28]
Law is subject to the same movement and evolution as any other popular tendency, meaning that it never truly stops, just like language. [29]
According to Savigny, "Law grows with the growth and strengthens with the strength of the people and finally dies away as the nation loses its nationality". [30]
He believed that the essence of any given legal system reflected the character of the individuals who created it. This was later described by Savigny's disciple Puchta as the Volksgeist. [31]
All laws are the manifestation of this common consciousness. The broad principle of the system to be found in the spirit of the people and they manifest themselves in customary rules. [32]
Law is a matter of unconscious growth. Any law-making should follow the course of historical development. Custom not only precedes legislation but is superior to it. Legislation should always conform to the popular consciousness. Law is not of universal application. [33]
Savigny sees a nation and its state as an organism which is born, matures, and declines and dies. [34]
According to Savigny, Law is the rule whereby the invisible borderline is fixed within which the being and activity of each individual obtains a secure and free space. [35]

Concept of Savigny's Volksgeist

Volksgeist means the 'national spirit or the genius of the people'. It serves as the yardstick for evaluating laws, which are the deliberate result of the will as opposed to popular belief. The idea of Volksgeist introduced revolutionary abstract ideas to the legal system and served as a warning against hasty legislation. Unless they are in line with the popular will. [36] Volksgeist = Volk + Geist i.e., (People Consciousness) = (people) + (consciousness)

Criticism of Savigny's concept of volksgeist [37]

Prof. Dias has criticized Savigny's concept on the point that he made too much of volksgeist and drew sweeping inferences from modest premises. The idea of Volksgeist is acceptable in a limited way but Savigny extrapolated it into a sweeping universal.
Dias further criticized that the transplanting of Roman Law in the alien climate of Europe nearly a thousand years later is inconsistent with Savigny's idea of a Volksgeist.
Prof. Dias further points out that the Volksgeist theory minimizes the influence which individuals, sometimes of alien race, have exercised upon legal documents.
Prof. Dias further points out that the influence of the Volksgeist is at the most a very limited one.
Prof. Dias further points out that law is sometimes used deliberately to change the existing ideas. It may also be used to further inter-state cooperation in many spheres.
According to Prof. Dias, a ruling oligarchy's convenience rather than a Volksgeist was the driving force behind the founding of many institutions. This applied to the institution of slavery.

Sir Henry Maine

Sir Henry Maine was born in 1882. He was known as the founder of the English Historical School of Jurisprudence. Maine published his first work, Ancient Law, in 1861. This was practically a manifesto to his life work in which he stated his broadest general doctrines. His other important works were Village Communities published in 1871, Early History of Institutions published in 1875, and Dissertations on Early Law and Custom published in 1883. Maine examined the differences between the various legal systems and charted their development. Law, in his opinion, goes through four stages of development.

First stage: It is thought that rulers are guided by divine inspiration. The rulers' orders are the basis for the creation of laws. Take the Greek Themistes, for instance. The king's verdict was regarded as the verdict of God or another divine entity. The king wasn't the one who made laws; he was just God's judge.
Second stage: The King's orders thereafter became customary law. The majority class or rulers followed this custom. Customs appear to have triumphed over the king's authority.
Third stage: The administration and knowledge of customs end up in the hands of a minority. This is because the original legislators, such as priests, lost some of their legislative authority, leaving the ordinary and minority classes in charge of creating laws. A minority gains power over the law, replacing the ruler.
Fourth Stage: The codification and promulgation of the law constitute the fourth and final step.

Static Societies
Societies which do not progress beyond the fourth stage which closes the era of spontaneous legal development are called Static societies by Maine. Their legal condition remains characterized by what Maine states as status.

Progressive Societies
Societies which progress beyond the fourth stage are called Progressive societies by Maine. Maine refers to a few progressive societies of history, for instance, the Romans and the nations of modern Europe which progressed beyond the phase of codes and status relationships because they are guided by a deliberate desire to advance and grow. The three agents of legal development that are brought upon the primitive codes are in historical sequence legal fiction, equity and legislation.[38]

Legal Fiction: By the use of legal fictions, law is altered in accordance with changing needs while it is pretended that it remains what it was. The legal fiction of Maine has often been considered as a sort of clumsy, self-deluding kind of legislation. Legal fiction probably owes its origin not so much to a superstitious disrelish for change or some instinct for self-deceit, as to an impulse towards harmony and system[39]

Equity: According to Maine, "Equity is a body of rules existing by the side of the original civil law & founded on distinct principles". [40]Equity helps to remove rigidity and injustice. The law is then changed "as a set of principles invested with higher sacredness than those of original law" through the application of equity". [41]

Legislation: The final stage was that of legislation. The best and most desirable way to change the law is through legislation. Laws will be passed and formally implemented. People came to recognize the simple fact that law can be brought into existence by explicit declarations of intention incorporated in the words of legal enactments.[42]

Georg Friedrich Puchta
The most well-liked student of Savigny was a German jurist named Puchta. He firmly believed that the manifestation of people's spirits and collective consciousness led to the creation of the law. According to Puchta, if laws are made without taking historical culture, customs, and the past into account, they will not develop in this way. Rather than resolving a conflict, this would have clarified the situation.[43]

After some time, Puchta's ideas were improved and recognized as more sensible. He began by saying that since the beginning of time, men have always lived as one. This unity, centered on the shared will of the populace, may be both spiritual and physical.

Conflicts, according to Puchta, are the result of self-interest. He contended that the greater good—peace and actual evolution law—should supersede the interests of the individual.[44]

It was also discussed where the state stands, which is a crucial point. The state downplayed individual interests and gave priority to the general will and interest of the populace, creating a workable system.[45]

"Neither the people nor the state alone can make and formulate laws," was Puchta's main thought.[46]

Conclusion
The origin of law is explained by the Historical School of Jurisprudence. According to this school, the law was not made; it was found. The primary sources of law are customs, habits, and kings' judgments. The Historical School of Jurisprudence is supported by jurists such as Georg Friedrich Puchta, Sir Henry Maine, Montesquieu, and Savigny. Sir Henry Maine asserts that Montesquieu was the first historical school jurist. The jurist from the English Historical School was Sir Henry Maine. He accepted the ideas of legislation and codification and was more sensible.[47]

The founder of historical school was Savigny. He maintained that laws have a national character and are similar to languages. There are exceptions to the law. While Puchta advanced Savigny's theories and contended that the state and the people are equally significant as sources of law.[48]

End Notes: