8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 1/12

HISTORICAL SCHOOL

n “ Law is born in customs.” 

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 2/12

Main exponents of this school are :

Savigny,

Maine,

Putcha and

Vinogradoff .

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 3/12

n  Historical School is known asHistoricism.

n It is also known as Anthropological

 Approach of Law- Dias

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 4/12

Reasons for the emergence of Historical

School:

1. Reaction against Analytical School.

2. Reaction against the unhistorical assumptions of

natural law theories.

3. Reaction against a wave of codification started in

Europe due to Benthamite influence particularly in

Germany.

4. Feeling of nationalism  – French Conquest  –under.Napoleon

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 5/12

The Historical School writers viewed that

1. Laws are always found and not madeconsciously.

2. Laws must be studied directly with the life of

the community.

3. They are mainly concerned with past ratherthan present.

4. According to them law is not of universal

application but localized and as such norms

and developments differ from society tosociety.

5. The main type of law which they considered is

Customary Law.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 6/12

VOLKSGEIST THEORY  –  FRIEDRICHKARL VON SAVIGNY (1779 – 1861)

Laws is a matter of unconscious growth. It

grows like language, manners and customs

unconsciously in the society.

Custom is superior to law.

 All laws is originally found in the manner inwhich customary law is said to be found.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 7/12

Law is first shaped by the customs and

popular beliefs and then by juristic

activities.

Every where therefore by silent eternal

(endless) operating power and not by

the arbitrary will of law maker lawcomes into existence.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 8/12

 

Law is not of universal application.

Law is like language“Law  grows with the growth and strengthen

with strength and finally dies away when

nation looses its nationality.”

 

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 9/12

Savigny was of the view that for

codification two element are required forcodification:

 – Political element

 – Technical element.

The Volksgeist or the sprit of people

constitutes the political elementThe technical element means juristic skill for

codification.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 10/12

He said that when Thibaut advocated for

the codification in Germany not only political

element but juristic skill requires for

codification was also lacking.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 11/12

Criticism:

The bulk of rules of custom have notoriginated in volksgeist . The ancient

institution of slavery was based on the

economic necessity and not on popular

consciousness.

Certain branches of law such as „Law  of

Merchants” have a universal character.

He over emphasized the custom and ignored

the legislation.

8/12/2019 Historical School

http://slidepdf.com/reader/full/historical-school 12/12

Savigny emphasized the national character of

law, while advocating national character of

law he entirely rejected the study of Germanylaw and inspiration from Roman law.