1. Introduction

• The Historical School of Jurisprudence argues that law evolves from social customs, economic needs, and cultural practices over time.
• Rejects the idea that law is created by superior authority or judges, as proposed by other schools like the Natural and Analytical Schools.
• Emphasizes that law is found, not made, based on the consciousness and habits of people.

2. Origin of Historical School of Jurisprudence

• Rooted in customs and traditions inherited over generations.
• Rejects Two Key Theories:
  • Natural Law Theory: Argues law comes from divine authority and morality.
  • Analytical School: Focuses on state-made and judge-made laws.
• Emerged as a reaction to these schools, focusing on the organic development of law through societal practices and customs.

3. Jurists of Historical School of Jurisprudence

a. Montesquieu

• Contribution:
  • Adopted a historical method to study law.
  • Proposed that law evolves from societal, political, and environmental conditions.
  • Advocated for laws to adapt to the time, place, and societal needs.
• Quote: "Law is the creation of climate, local situation, accident or imposture."
• Limitation: Did not establish a detailed theory connecting law and society.

b. Savigny (Father of Historical School)

• Core Ideas:
  • Law originates from the consciousness of people, not external sources or state authority.
  • Emphasized the connection between law and national identity.
  • Stated, "Law is found or discovered, not made."
• Criticism of Savigny:
  • Charles Allen:
    • Argued customs are often shaped by ruling classes, not collective consciousness.
    • Example: Practices like slavery established by societal elites.
  • Prof. Stone:
    • Criticized overemphasis on customs, ignoring planned legislation and social change.
    • Example: Reforms like abolishing Sati in India were driven by legislation, not customs.

c. Sir Henry Maine

• Contribution:
  • Promoted Historical School in England.
  • Studied Indian legal systems deeply during his tenure in India.
  • Advocated for codification and legislation alongside custom-based law.
• Four Stages of Legal Development:
  • Divine Inspiration: Rulers acted on divine commands.
  • Customary Law: Commands became customary practices.
  • Minority Control: Knowledge of customs shifted to elites.
  • Codification: Laws were written and codified for consistency.

d. Georg Friedrich Puchta

• Core Ideas:
  • Disciple of Savigny; further refined historical theories.
  • Believed both the state and individual will are necessary for lawmaking.
  • Highlighted resolving conflicts between general will (society) and individual will as central to the law.
• Key Concept: Law is a collaborative product of both state and individual inputs.

4. Conclusion

• The Historical School links the evolution of law with societal practices and collective consciousness.
• While it doesn’t replace other schools, it complements them by addressing areas like organic law growth.
• Emphasizes the dynamic nature of law, rooted in social customs and collective human experience.