Savigny was the father of the historical school. He argued that the law was like the language and had a national character. The law is not universal. While Puchta improved Savigny`s ideas, arguing that the state and the people are equally important and a source of law. Historians have refused any creative involvement of judges and jurists or legislators in the formulation of law and have banished ethical considerations from jurisprudence. They viewed the law as a standard of conduct rather than moral imperatives. The historical school emerged in response to the legal ideas of analytical positivists and natural law thinkers. They began a new era in the development of legal theory, seeing law as a legacy of the past and as a product of conventions, traditions and beliefs common to many communities. They felt that the law was developing organically. The Historical School of Law is based on the idea that law develops like man. [3] This school attaches more importance to the social institutions in which law arises than to the relationship between law and the state. The analytical school, on the other hand, presupposes the existence of a well-developed legal system.
The historical school focuses on the development of law from the basic legal structures of ancient communities. The task of the historical school is to study the general principles that govern the formation and development of law, as well as the influence that affects it. According to Sir Henry Maine, Montesquieu was the 1st jurist to apply the historical method of understanding the legal institution. He laid the foundation for the historical school in France. In his view, it was irrelevant to discuss whether the law was good or bad, as the law depended on the social, political and environmental conditions prevailing in society. Montesquieu concludes that “the law is the creation of the climate, the local situation, the accident or the imposture”. He believed that the law had to change as society`s needs evolved. He did not advance any theory or philosophy of the relationship between law and society. He suggested that the law meet the needs of the place and change according to time, place and the needs of the population. Sir Henry Maine is the founder of the English Historical School of Law.
Savigny`s views on the historical school were continued in England by Sir Henry Maine. In a broader sense, the Historical School of Jurisprudence studies the development of law, arguing that individuals cannot understand the law without first understanding its theory of evolution. The theories of this school include the origins of law, the reasons for its growth, society as a tool for legal change, and vice versa. Although different jurists have different theories for understanding the historical component, the two have a positive influence on each other. He went on to say that law, like society, should be dynamic and change in response to the needs and demands of civilization. Although he constructed a precise theory, he did not go further to express his vision of law and society or the historical school. He stipulated that legislation must be able to meet the needs of ordinary people. He even mentioned it in his book “The Spirit of the Laws.” What is the law according to Savigny?, “it is a product of times whose germ, like the germ of the State, exists in the nature of man, created for society, and which develops from this germ different forms, according to the environment, influences that act on him”. Obviously, the law is the result of the historical course that manifested the laws of custom. The law is therefore not the product of enacted legislation, but the replica of the national spirit. As already mentioned, according to Savigny, the legal system is the reflection of the national consciousness, he called it volkgeist.
and (e) the futility of his ideas of historical research to justify law, which attached more importance to origins than to current law and practice. The Historical School of Jurisprudence is one of the schools of law according to natural law. This law further believes that the law in general is the result of years of historical development. Not only the concept, but also the origin of the right are examined. In addition, this law has a very complex concept. Its understanding depends on each individual and varies with each individual. In other words, everyone has a different understanding of the law. The natural school of jurisprudence believes that the law comes from a supreme divine power.
Another term for natural law is eternal law. And it is also believed that it has existed since the beginning of the world as we know it. This article was written by Lakshay Kumar, a second-year B.A.LLB student in Delhi Metropolitan Education at Indraprasta University. In this article, he discusses the views of various philosophers on the historical school of jurisprudence and its development. The purpose of the law, in the eyes of the average citizen, is to punish them. Various schools of law or law studies have experienced a significant schism. Each school examines it from its own angle, focusing on certain sources of law and their execution. It came in response to the natural school of jurisprudence, which believed that there are certain principles that are universally applicable without regard to social, historical or other factors. Another name for the analytical school of jurisprudence is the Austinian school. John Austin is the creator and founder of this school of juriprudence. Moreover, the subject of the analytical school of law is positive law.
Because it is a complex concept, the law leads people to have different views and definitions. For example, Savigny, father of the historical school of jurisprudence, believed that the particular legal system is the mirror symmetrical consciousness of the people and advocated the most popular concept. On the other hand, John Austin, father of the analytical or positive school, suggested that the sovereign orders associated with sanctions are the law. Some consider the law as the (ethical) right of the will and can never be imposed by external laws. On the other hand, others have described law as a science of the set of rules for which external legislation is possible (nomology). According to this theory – the historical school of law – law is the result of past forces and past influencers. Moreover, the law is built and developed on the general consciousness of the people. However, consciousness begins at the very beginning of society. In addition, some of the factors influencing this long historical development are as follows: This school believes that the emergence of law stems from the development of social practices inextricably linked to customs, moral principles, spiritual codes, economic interests and rules of etiquette. He argues that law is the fruitful result of the evolutionary process that society has gone through since its inception, and does not exist simply as a result of royal command or the command of the sovereign in the blink of an eye. Here is the question that challenges the notion of a natural school of jurisprudence, which holds that law is born of the command of supreme power and has some divine references. As it was the product of the past, it led to historical advances and developments.
