Meaning and Concept of the Historical School of Jurisprudence
The Historical School of Jurisprudence believes that law is not created suddenly by legislation or judges but develops gradually over time according to the customs, traditions, and historical experiences of society. This school opposes the idea that law is a product of abstract reason alone. It emphasizes that law grows with the growth of society and reflects its culture, beliefs, and social consciousness. The historical school argues that law is found, not made, and that legislation should respect the historical development of legal principles.
Jurists and Core Principles
The most prominent jurist of the historical school is Friedrich Carl von Savigny. He introduced the concept of Volksgeist, meaning the “spirit of the people.” According to Savigny, law originates from the common consciousness of the people and evolves organically. Other supporters include Sir Henry Maine, who studied the historical evolution of law from status to contract. This school emphasizes customs as a primary source of law and believes that codification should be slow and based on social maturity. In India, personal laws and customary practices reflect historical school principles.
Importance and Criticism
The historical school highlights the importance of social continuity and stability in law. It ensures that legal systems remain connected to societal values and traditions. This approach prevents abrupt and unrealistic legal reforms. However, critics argue that excessive reliance on history may hinder social progress and reform. The school may also justify outdated customs that conflict with modern values like equality and justice. Despite criticism, the historical school remains influential in understanding legal evolution and customary law.
Real-Time Illustration
A real-time example of the historical school is the recognition of customary laws in India, particularly in personal laws governing marriage, inheritance, and adoption. Courts often uphold valid customs if they are ancient, certain, and reasonable. The continued application of Hindu and Muslim personal laws reflects the historical development of law based on social traditions rather than uniform legislation.
Mnemonic for Easy Recall
A simple mnemonic to remember the historical school is “PAST”.
P – Past traditions
A – Ancient customs
S – Social evolution
T – Time-based growth of law
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