The events such as the Quit India movement, Salt march, Cripps Mission, Annexation of Goa, etc are some of the examples of the history which signifies the importance of the historical background of India, these are the popular represented historical incidents which are very important for every citizen to know. Similarly, there is a school of jurisprudence that is used to signify the history of law and lays down the principles regarding the law or evolution of law which is very relevant, named as a historical school of jurisprudence. Jurist named as Montesquieu, Gustav, Hugo, Herder, Edmund Burke, Savigny, Puchta, Gierke, Sir Henry Maine, Friedman, etc is the personalities who assisted and promoted the historical school of jurisprudence.
CONCEPT OF THE HISTORICAL SCHOOL
The historical school of jurisprudence believes that law is directly related to society. This school provides the significance of customs and history of the society. This school leads the thought that the law is the sum of people, customs, and history of the society. The central thinking of the school is that the particulars society contains some and the behaviour of society is decided from these needs and necessity which changes time to time, so in such respect, the behaviour of society also changes.
MOTIVE OF THE HISTORICAL SCHOOL
The purpose or aim of the school is to set and frame or arrange the entire legal system in a very methodical way or in an efficient manner. Subsequently, it aims to serve the guidelines and set principles which is used to govern the source and growth of law and provide the factors that affect the law. This purpose was well explained by the jurist named Salmond.
CONTRIBUTION MADE FOR THE HISTORICAL SCHOOL
- He was the foremost jurist of the historical school of jurisprudence who introduced the school of jurisprudence. In his main contribution named “ Spirit of Law”, he stated that the law must change but while changing it must keep the society in the mind and needs of the society.
- He displayed the law in relation to society he stated that the law is a mixture or combination of climate, local situation, accidents, or impostor.
- He was the father of the historical school of jurisprudence. He laid down the ideas of ‘ for and against’ regarding the codification of law in Germany which was transformed into an essay and named Vom Beruf.
- He was not only the father of the historical school of jurisprudence but was also the Roman law expert and introduced the very prominent theory called Volkgeist theory. The theory in a simple sense contains the meaning that leads to volk refers to people and geist means their common will, so it refers to the general will of the people.
- In his opinion, the law holds a national character which means any law does not have universal application whereas it is a reflection of custom, situation, need of the country, it is applied to the nation only.
- He originated the concept named legal friction which was one of his main contributions. The concept refers that any progressive society in keeping view of the future starts implementing positive law in society. Thus, any changes which would take place in the future, progressive society already makes laws for the protection of changes in the future.
- He had also given the theory of Status to Contract. The theory consists of the concept that the rights and obligations are conferred to the people as per their social status in society.
- There is a set example of this theory that is, any person who belongs to upper caste shall be given rights and obligations in respect of his caste, whereas any person belongs to lower caste shall have the rights and obligations in accordance to his caste, thus the caste affects their rights and obligations.
- In his theory, Sir Henry Maine stated that the progressive societies are stepping up towards contract status in society, he defined the contract in respect of this theory as the contract consists of free negotiations and leads to provide the rights and obligations of the parties. Also in his opinion, the law regards social transformation which turns from status to contract.
- According to the jurist Puchta, neither society can make law nor state can form any laws or rules in the country.
- In his opinion, there are many people in the society, sometimes there is the general will of the people and sometimes there is the self-interest of the people in the society, thus the chance of conflict may arise between them and since such situation only, where there is conflict held in between general will and self-interest of the people, the state may intercede to regulate the situation for reaching a solution and peace in society.
MAJOR DIFFERENCE BETWEEN HISTORICAL AND ANALYTICAL SCHOOL OF JURISPRUDENCE
The historical school of jurisprudence and analytical school of jurisprudence are almost similar kinds of schools, the only difference that we consisted is the purpose contained by both the schools of jurisprudence. Salmond differentiated these schools in order to provide clarity in the concept of each school that is- the Analytical school of jurisprudence aims to provide the meaning of law whereas the historical school of jurisprudence aims to provide the emergence and growth or evolution of law and related principles. Therefore, both the schools carry the same core and beliefs but the differentiating aspect of these schools is the aim that they hold. In accordance with the historical school of jurisprudence, the law is similar to the language which carries the nature that is constant and growing, which changes as per the needs of society and time.
The historical school of jurisprudence contains the thought that the law is in direct relation to society and is a mixture of people, custom and history. This school comprises of various famous jurist such as Montesquieu, Savigny, Henry Maine, Puchta, etc. Savigny is the father of this school and was the Roman law expert. There are many prominent and significant theories and notions regarding law that were provided by these jurists such as Volkguiest theory, Status to Contract, Legal Friction, etc.