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Historical School of Jurisprudence


Authored By : Pallavi Barwar


Key words:

Historical School, Analytical School, Philosophical School and Henry Maine


Abstract:

Jurisprudence is the knowledge of the law that analyses the rules and principles of the legal concept and transform them into new laws. These are various schools of jurisprudence that studies different concepts of law in various methods. All the schools have some advantages as well as some lacking. The historical school of jurisprudence focuses on the origin of law. The research contains the reasons that how these schools have emerged along with its major exponent. Then comes some points that make this school different from the rest one and at last comes the Indian scenarios this law. This shows the importance of th8s law in Indian society and its evolution from custom to law.


Introduction :

The famous Jurist Salmond divided jurisprudence in three different schools based on their characteristics and features as:

1. Analytical school

2. Historical school

3. Philosophical or ethical school

Analytical and philosophical school focuses on 'law for the society 'while historical school law focuses on 'law from the society or legal institutions.' Historical school of jurisprudence lays down its focus on the formulation of laws from the ancient societies and primitive institutions. The law compromises basic understanding and general principles that further leads to the foundation of various laws. Different Jurist like Fredrick Pollack and Montesquieu has expelled the ideas of lawgiver in the development of law rather they believed that all the universally accepted rules haven't resulted from moral actions but customary actions. They can't be created from critical analysis but historical evidences and studies.


Major exponent

The evolution of this school has resulted from Positivistic legal thinking. Vico in Italy, Montesquieu in France, Burke in England and Hugo and herder in Germany heralded a new era in the development of legal theory and viewed the law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communication.[1] The exponents of the Historical school of jurisprudence believed that the evolution of law is biological or hereditary not arbitrary.

1. Sir Henry Maine, Montesquieu (1689-1755): He was the first jurist to accept historical school to law of society and stated that the evolution of law is the result of nature i.e. from climate and prevailing situations. The man has not researched or mentioned how law is related to society but stead that law should be dynamic and should change itself with the ongoing circumstances.

2. Hugo (1768-1844): He compared law with the language and habits. He said that people adopt or change their languages and habits according to their surroundings similarly; law also develops itself according to the circumstances and mindsets. He also mentioned that any law becomes effective when people accept and regulate it legally.


Factors behind the emergence of the historical school:

According to Dias, Historical school arose as a reaction against the natural law theories.

The reasons for the emergence of this school are:[2]

1. The negative effect of natural law school:

According to the natural law theorist, law exists before the start of life in this world and has emerged from divine or eternal powers.

2. Criticizes thoughts of analytical school:

John Austin the founder of Australian School focuses on positive laws. This law seems to be a bit modern as it focuses on how states, legislature, and judges evolved with the need for time and their working whereas historical school emphasizes the evolution of law from history.

How historical jurisprudence is different from legal history?

1. Legal history studies that how citizens of different countries and at different times deal with problems associated with law and historical jurisprudence focuses on how a particular situation in the past has led to the formulation of a particular law.

2. Legal history shows that how a particular law has changes I's nature and has taken different shapes whereas historical jurisprudence shows that how that particular law has emerged from history.

Difference between historical school and analytical school :

1. In historical school, the law develops itself on its own whereas in an analytical school society creates law.

2. Analytical school focuses on the present system of law whereas historical school focuses on a primitive system of law.

3. In analytical school, law is considered to be sovereign whereas historical school says that law according to them has emerged before life began.

4. Analytical school confines itself with the practical need and appears to be a bit modern and historical school confines itself with the divine powers, basically the concept of God.

5. An example of historical school can be the customs that have been followed for a very long time and examples of an analytical school can be statutes.

Current Indian scenario

The post-independence era has brought a special focus on law. Emphasizing on equality and rights the laws of Indian Jurisprudence have been developed. This law has a very long and rich history of evidences, scriptures, vedas, and different codes. Indian jurisprudence has taken many practices from the old customs and has turned them into laws they are used in the courts for decision making. Along with some reforms in the previous laws it has also abolished some laws that were the enemies of the society in modern culture. Some major laws then have been taken from the past are Hindu law of marriage, Divorce, Succession and the ones that have been completely prohibited or abolished are Dowry prohibition, bonded labor, etc.

Conclusion:

There are various schools of jurisprudence, some describe or focus on the function or working of law while others focus on its evolution or origin. But it is said that no one is perfect in itself similarly, no school is perfect complete and well furnished, and there are always few lacking in it. 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.[3]


Reference :

1. www.legalserviceindia.com

2. blog.ipleaders.in

3. www.srdlawnotes.com

4. Studies in jurisprudence and legal theory – Dr. N.V.Paranjape


Footnotes : [1] Paranjape, Dr. N. V. Studies in Jurisprudence and Legal Theory. 8th ed., Central Law Agency, 2017. [2] bhola, S., 2019. [Blog] Historical School of Jurisprudence, Available at: <https://blog.ipleaders.in/historical-school-of-jurisprudence/> [Accessed 8 August 2020]. [3] bhola, S., 2019. [Blog] Historical School of Jurisprudence, Available at: <https://blog.ipleaders.in/historical-school-of-jurisprudence/> [Accessed 8 August 2020].