Legal method Module -I

Historical school of law

 Historical School of Law
• K.F. Von Savigny (1779-1861)
• Founder of Historical School
• He traced development of law as a
evolutionary process much before Darwin
have his theory of evolution in the field of
biological science in 1861.
• Dr. Allen described Savigny as “Darwinian
before Darwin.”
 Historical School of Law
• According to him “law is a product of times 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.”
• “Law grows with the growth and strengthens with
the strength of the people, and finally dies away
as the nation loses its nationality”
 Historical School of Law
• Law is the product of the “Volksgeist”, the
national spirit or the genius of the people.
• Law is found and not made as it devops as
a matter of unconscious and organic
growth.
• Custom is the main source of law and it
precedes legislation.
• Savigny rejected ‘natural law’.
 Criticism
• He located origin of law in the Volksgeist,
that is popular conscience but at the same
time asserted that certain principles of
customary law of Rome as universal
application.
• He was against codification of laws which
is one of the most accepted form of
modern progressive legislation.
 Criticism
• Savigny’s theory of Volkgeist overlooks the
impact of the other sources of law such as
legislation, precedent etc. in the evolution
of law.
• His view that customs are always based
on the popular consciousness is not
acceptable. Eg: slavery, bonded labour
etc. Originated to accomplish the selfish
interests of those who were in power.
 Criticism
• Roscoe Pound has criticised for his juristic
pessimism. Savigny’s theory inhered legal
reforms and modernization of law in the
name of Volkgeist. Pound observed that
no legal system would like to stick to the
prevalent abuses and bareful customs
only because people are accustomed to
them.
 Views of Puchta
• He was Savigny’s disciple and supported
his theory.
• In his view, neither the state nor the
people alone are a source of law but law
comes into existence as a result of conflict
between general and individual will.
 Views of Gustav Hugo
• A german exponent of historical jurisprudence.
• He observed the law is not the result of
legislation or it is in no way a command of the
sovereign nor a matter of social contract, but it is
the outcome of the habits and traditions of the
people which they follow voluntarily as a
member of community.
• These habbits and customs are acquired
through necessity, accident and other
processes.
 Sir Henry Maine
• He is labeled as “Social Darwinist”.
• He through his comparative researches of
different communities (roman, Hindu etc.) came
to a conclusion that law develops through four
stages:
• In the beginning, law was made by the
commands of the ruler believed to be acting
under divine inspiration.
In second stage , commands crystallize into
customary law.
 Sir Henry Maine
• In the third stage, the knowledge and
administration of customs goes into the
hands of a minority, usually of a religious
nature, due to the weakening of the power
of original law-makers.
• The fourth stage, was the time of codes.
Law is promulgated in the form of a code.
 Sir Henry Maine
• 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 conditions are characterized by
what states as status. That is a fixed legal
condition dominated by family
dependence.
 Sir Henry Maine
• Most of the communities (Hindu, Roman,
Hebrew etc.) are founded of patriarchal pattern
wherein the eldest male parent called the pater
familias dominated the entire family including all
its male and female members, children and
slaves as also the property.
• The word of the ‘pater familas’ was law to them
which they were suppose to follow.
• There were some communities which followed
matriarchal (eldest female of the family was the
central authority) pattern.
 Sir Henry Maine
• Thus the law of person was to be
determined on the basis of his status. In
ancient societies , the slave, ward, citizen
etc. all symbolized status which the law
recognized in the interest of the
community.
 Criticism
• Maine’s theory certainly holds good in
case of capitalist countries which have
transformed into socialist states. But
Maine’s assertion about status to contract
has no application in totalitarian states
where the freedom of contract is narrowed
down to the lowest limits and there is
authoritarian rule.
 Criticism
• The societies which continue development of law in
this manner are called progressive societies by Maine.
There are 3 methods by which progressive societies
develop their laws :
(i) Legal Fictions- Legal Fiction change the law according
to the changing needs of the society without, however,
making change in the letter of law. Maine defines legal
Fiction as “any assumption which conceals or effects
to conceal the fact that a rule of law has undergone
alterations, its letter remaining unchanged, its
operation being modified.
(ii) Equity – Equal and just with good conscience.
(iii) Legislation – To legislate the laws