legal methods - historical school

8/3/2019 Legal Methods - Historical School

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Historical School of Jurisprudence

Professor Ranbir Singh,Dr. Vijender Kumar

NALSAR University of Law, [email protected]

[email protected]

mailto:[email protected]






Five Essential Characteristics of

Historical School of Jurisprudence

1. What is the element which is called law?2. What is the nature of the law?

3. What makes law obligatory?4. What is the source of law?

5. What are their philosophical views?



HISTORICAL SCHOOL

1. Origin and development of law.2. Considered all social control.

3. They studies the past of law rather thanthe present.

4. Law is something which can not be

made consciously.

5. It is found and automatically grows in

the society.



HISTORICAL SCHOOL

6. Because of silently operating internal forces.

7. Law is binding because of social pressure as

sanction is to be found in habits of obedience.

8. Their type of law is customary law of thosecustomary modes that make up a body of case

law.

9. Law is Volksgeist.

10. Hegalian-History is the unfolding of human

experience.



Historical Method

18th Century

(A) Natural … Jurists …. System of Law

i) intuitive human conscience

founded on …ii) abstract human reason

Features of such a law being that it is --

i) Universal

ii) Permanent

iii) Unchangeable

iv) Static



B) 19th Century England -- Analytical

Positivist

Soul lessConstricted a)

Barren

Sovereign made

b)

Coercive lawmoral

devoid of

cultural values



Situation -- ‘Gun man situation’

were not only unhistorical

Above two models

also rejected all laws of

historical growth andhistorical nature

Eg) Customs,

Traditions,

Conventions,

Social mores,

Myths, etc.



Thus ignored all laws:

Unity in experienceWhich furnish a society

Continuity in time

Pass from one generation

to another

Laws being evolutionary

in nature

Link past with presentMost importantly link bound people with:



their shared historical heritage and

culture

ignored Analytical Positivist

Hence such laws were

rebuked Natural Law

A strong revolution and revolt, developed

unhistorical

against laws

sterile



Historical Method viewed law --

As a i) legacy of pastii) a product of each individual,

community or people or Nationiii) reflecting peculiar :

a) traitsb) unique customs

c) special habitsd) peculiarities



deep rooted in -- heritage and

culture, and are a matter of

iv) biological growthv) evolutionary phenomenon

arbitrary

and not an fancifulartificial creation

Historical Method so,

vi) connect law with communities and

societies

define

and then identify

expound, law



Vii) law as an expression of

instinctive sense of:a) inner unity

b) common consciencepopular feelings

viii) reflected in sentiments

beliefs, and

practices

ix) interpreted law in the back drop of :

historico -- cultural matrix of a community



Vii) law as an expression of

instinctive sense of:

x) law is bound by its peculiar qualitieswhich make it a distinct entity

evolve own culture

have its own qualitiesand mores

customs (Law)

and other featuresdifferent and distinctive

from other communities.



Sir Frederick Pollock rightly

observes :

“The historical method is nothing else

than the doctrine of evolution appliedto human societies and institutions”.

Historical Method -- Central focus:

a) Law cannot be universal;

b) Law cannot be uniform;

c) Law cannot be isolated from society;

d) Law cannot be isolated from social

and historical moorings.



Contd…

Important jurists like - Savigny rejecting natural

law, andPositivism emphasised the all round revivalismand resurgence of:

i) German historyii) Language

iii) Grammar

iv) Literature

v) Folk culture

All these factors provided a fertile ground foremergence of historical school.



THE BASIC FEATURES OF

HISTORICAL METHOD ARE

1) It is concerned with the analysis of law not ‘as it is’

but ‘as it was’,2) Its origin and development are interested in the past

of law, as past and present are closely connected,

3) To understand present the appreciation of past is amust,

4) This method takes care of presence law in the

ancient societies which the positivist approach hasignored,

5) Law is something which is found and not made,

found in Society where it grows automaticallybecause of silently operating internal forces.





6) Law is not a matter of conscious making it

grows unconsciously in a society,7) Growth of law has been different in different

societies under different circumstances and at

different time,8) So law has to be different for different societies,

9) It can not be universal and /or uniform,

10) Law grows like language and is born with

peculiarities of the place where it takes birth,





11) It picks up the grammar of the place and the

society in which it originates and develops,12) This method relates law with society and it isthe life of a community determines theformation of law,

13) Law becomes a bye product of the society andnot the state,

14) This source of law for this method is customarypractices and traditions and the typical law iscustomary law,






15) The authority behind law for making it binding on

people is not force/sanction, rather it is society itself i.e., social pressure or social mores,

16) The philosophical view of the historical method are

Hegalian. As for Hegal - “History is the unfoldingof Human experience”.

17) So under this approach law is an experience,

experienced by people and manifested in commonconsciousness i.e., popular public opinion /sentiments explained by Savigny as ‘Volksgeist’i.e., spirit of the people.




HISTORICAL METHOD ARE.

18) Other important jurists of this method are :

Sir Henry Maine

Sir Frederick Pollock

The importance of this method lies in the factthat, even in the modern age of legislation,

customary law has not lost its relevance.

19) what was custom to the ancient society legislation/

statute is to the modern one.



Criticism:1) Savigny’s theory - perverted by ---Nazi

into a - Biological doctrinei.e. - Pure or superior race to

control inferior race

So Nazi dictator like Hitler misapplied the volk into an idea ofsuperior race and mis-used the theory.

2) In modern times it has given rise to fundamentalistdoctrine based on Narrow view of religion:

Eg. Muslim countries like in the name of

Islam “geist”

So many crimes are committed in the name of:

1) Religion

2) Nationalism



Criticism:

Being used to promote Dividing, anddisintegrating forces.

The result of perverted use and interpretation of Savigny’s

theory of Volksgeist which is:

Secularism

Anti thesis of EgalitarianismSocial Democracy



Criticism:

Other aberrations are:

i) Customs not an expression of popularconsciousnesseg:- slavery

ii) custom enforce static division with in a society basedon:

languagecustom, usagereligion etc.

And it became heaven for: 1) conservatives2) theoretic people



3) Savigny’s concept of law became concept of law:

Narrow

Sectarian

Overlooking trasition

Against recent development

and progress

Insisted on dead past-stopedchanged and progress

4) This theory slow down the emergence of sociological

jurisprudence.

5) Volksgeist -- perverted for dissimilar.

Objects Nazism gave racial colour

Marxism Economic interpretation

Fundamentalism ReligiousResurgence and Revivalism



Criticism:

6) Purity of volksgeist acted as a barricade to modern

Industrial welfare state:

Fatalists

This theory followed and give rise to ObstructionistFundamentalists

7) Volksgeist re-appeared as a cancerous divisive force inbody politic.

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