Meaning and Concept of the Historical School of Jurisprudence
The Historical School of Jurisprudence holds that law is not the result of sudden legislation or judicial creativity but is the product of gradual social evolution. According to this school, law develops organically from the customs, traditions, habits, and beliefs of the people over a long period of time. It rejects the idea that law can be created purely by abstract reasoning. Instead, it emphasizes that law is deeply rooted in history and reflects the social consciousness of the community. Thus, law is “found” in society rather than “made” by authority.
Leading Jurists and Core Principles
The chief exponent of the historical school is Friedrich Carl von Savigny, who introduced the concept of Volksgeist, meaning the “spirit of the people.” Savigny argued that law originates from the common will and consciousness of the people and evolves with societal growth. Another important jurist is Sir Henry Maine, who explained the historical development of law through his theory of Status to Contract. The historical school gives primary importance to customs as a source of law and considers legislation and judicial decisions as secondary.
Significance and Criticism
The historical school contributes to legal stability and continuity by linking law with social traditions. It prevents abrupt legal reforms that may be unsuitable for society. This school is especially relevant in plural societies like India, where customary and personal laws play a vital role. However, the school has been criticized for excessive conservatism. Blind adherence to history may perpetuate outdated and unjust customs. It may also hinder progressive reforms aimed at social justice. Despite criticism, the historical school remains important in understanding the evolutionary nature of law.
Real-Time Illustration
A real-time application of the historical school can be seen in the recognition of customary laws by Indian courts. Customs governing marriage, inheritance, and adoption are upheld if they are ancient, certain, reasonable, and not opposed to public policy. The continued application of Hindu and Muslim personal laws reflects the historical development of law based on social practices rather than uniform codification.
Mnemonic for Easy Recall
A simple mnemonic to remember the Historical School of Jurisprudence is “HISTORY”.
H – Habits and customs
I – Inherited traditions
S – Social consciousness
T – Time-based growth
O – Organic development
R – Roots in society
Y – Year-by-year evolution
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