Historical School of Jurisprudence, By Erwin Thomas Wilson @LexCliq

Historical School taught us that ‘The law does not fall from the sky. It tends to develop as an expression of a society’s peculiar culture and values.

WHAT IS JURISPRUDENCE?

The science of law that studies the concepts of positive law and legal interactions. “The word is incorrectly applied to existing codes of law, prevailing views of law, or proposals for its amendment, but it is the name of science. This is a systematic, or empirical, science rather than a material science. That is the science of constructive or real rules. It is divided incorrectly into ‘general’ and ‘specific,’ or ‘philosophical’ and ‘historical.’ As a result, it can be referred to as the systematic science of constructive law.” In the proper sense of the word, “jurisprudence” refers to the science of law, i.e., the science whose aim is to determine the principles on which legal rules are based, in order to not only classify such rules in their proper order and show how they relate to one another but also to determine how new or disputed cases can be brought under the appropriate legal authority. Jurisprudence is more like a formal science than a practical one.

RELEVANCE OF JURISPRUDENCE

It is commonly referred to as the science of practicing law. Jurisprudence is more than just the study of law’s creation and evolution. Academics that research jurisprudence also contributes significantly to other areas of social science, such as politics and sociology. This adds to the advancement of civilization as a whole. The analysis of jurisprudence frequently aids in the decomposition of some of the legal world’s principles and nuances. It simplifies them by making them more manageable and logical. This will also translate to more efficient legal work. Jurisprudence is sometimes referred to as the law’s grammar. It will assist a lawyer in understanding the fundamental concepts and logic behind the written law. It aids them in comprehending the fundamentals of the law and determining the true rule of law.
Jurisprudence may be used by lawyers and judges to properly interpret some rules that require clarification. Jurisprudence is more than just a topic for academics. It would also benefit attorneys and other professions in the real world.

HISTORICAL SCHOOL OF JURISPRUDENCE 

The historical school of jurisprudence is based on the idea that history is the basis of modern experience. History is the documentation of historical activities. Law, like man, has a history. The significance of the historical school of law cannot be overstated. Apart from opposing natural law, the historical school is distinguished by its focus on the importance of previous centuries to the present and future.
It’s just a way of looking at the process of creating and enforcing legislation. As is the case with other schools, we can learn things about jurisprudence from considering carefully what they have to say, even if we cannot follow them all the way.

GERMAN SCHOOL JURISPRUDENCE 

Friedrich Karl von Savigny (1779–1861) founded the German historical school of jurisprudence. The German Historical School of Law was a 19th-century academic revolution in German law studies. The Historical School is founded on Gustav Hugo’s writings and teachings, especially Friedrich Carl von Savigny’s. Natural lawyers believed that the best way to discover law was through logical inference from man’s nature. The German Historical School’s fundamental idea was that law could not be seen as an arbitrary set of rules imposed by any authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people.

THE VOLKSGEIST OF SAVIGNY

Volksgeist is a concept that refers to the creative principle of a supernatural or psychic character that operates in various national bodies and manifests itself in a variety of creations such as vocabulary, mythology, mores, and legal order.
According to Savigny, the “spirit of the citizens that evolved it” was reflected in the essence of any given legal structure. Puchta, Savigny’s most dedicated disciple, later referred to this as the volksgeist. Law, according to Savigny, is the product of people’s collective consciousness and a representation of their soul. The origins of law can be found in volksgeist, which translates to “people’s consciousness or will” and includes people’s customs, attitudes, practices, and values. In German legal theory, the principle of volksgeist notes that law can only be interpreted as a representation of the German people’s spirit and consciousness.
As previously said, his theory acted as a cautionary note against hasty laws and the imposition of new abstract theories on the legal system until they could muster the public interest or volksgeist.

The fundamental principle of Savigny’s work was that law is an act of the people. It does not occur as a result of concerted policy, but rather as a result of the progressive evolution of the nation’s common consciousness. The core of Savigny’s volksgeist was that a country’s legal structure is heavily affected by its people’s historical culture and customs and that the growth of law is based on universal approval. Since rule must still adhere to common consciousness or Volksgeist, a tradition not only precedes but even supersedes statute. For him, the justice system was an integral part of a people’s society. Hence, the law wasn’t the result of an arbitrary act of legislation but developed as a response to the impersonal powers found in the people’s national spirit.

Volksgeist says that laws aren’t of universal application. Each place has it’s own diversities due to culture, customs, caste, color, and creed.

Historical School Criticism

This school of thought has been criticized by a number of academics. In 1842, Karl Marx wrote a whole essay titled “The intellectual manifesto of the historical school of law” in which he criticized the historical school of law, referring to it as the “sole frivolous. commodity” of the eighteenth century. Not only Karl Marx, but a number of others slammed Savigny’s Historical School.

  • Prof. Stone: Prof. Stone chastised Savigny, claiming that he (Savigny) overlooked the effectiveness of regulation, as well as a proposed rule and social reform. Also, the importance of people’s knowledge was overemphasized. For example, In India, the abolition of Sati and widow’s remarriage are brought in to change because of powerful and effective legislation.
  • Charles Allen: Savigny’s opinion that legislation should be discovered or dependent on customs was opposed by Charles Allen. Allen believed that customs are not the product of people’s collective consciousness. However, they are the product of a dominant class’s influential and strong interests. Slavery, for example, was accepted and practiced by the dominant groups of many cultures.

CONCLUSION

Savigny’s legal theory marked the beginning of modern jurisprudence. His theory of Volksgeist interpreted jurisprudence in terms of people’s will as it laid greater emphasis on the relation of society and this theory came as a revolt against the eighteenth-century natural law theory and analytical positivism.

The theory of Savigny’s Volksgeist was that nation’s legal system is greatly influenced by people’s beliefs and customs.

 

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