Index
Ø Introduction
Ø History of
jurisprudence
Ø Jurists And
Historical schools
Ø Historical school
and Analytical Schools
Ø Legal History and
Historical Jurisprudence
Ø Conclusion
Introduction
Law
is an outgrowth of the needs of the man in society. In the first form of social
grouping, law was no more than the sums of the sample rules by which alone even
the rudest types of communal life were made possible. For scores of the
centuries the science of jurisprudence was non-existent; and yet in no one year
of this diuturnity did the fundamental principles of juridical science cease to
develop progressively.[1]
Historical Jurisprudence
deals with the general principles governing the origin and development of law
and also the development, evolution of the legal conceptions and the legal
conceptions and principles found in the philosophy of law. Therefore, historical
jurisprudence concerns with the historic evolution of the principles of law
that is the past stages of the law. It constitutes the general portion of legal
history and the Salmond observes, bears the same relation to legal history at
the tame as analytical jurisprudence bears to the systematic exposition of the
legal system. As the historical jurisprudence only concerns itself with the
scientific study of the origin and the development of the principles of law,
therefore it is the study of law as it is.
In
other words of Salmond that branch of legal philosophy which is termed
historical jurisprudence is the general portion of legal history. It bears the
same relation to the legal history at large as analytical jurisprudence bears
at the systematic exposition of the legal system. It deals , in the first
place, with the general principles governing the origin and the development of
law, and with the influences that affect the law . It deals in the second place
, with the origin and the development of those legal conceptions and
principles, that is to say which are dealt with in another manner and from
another point of view by analytical jurisprudence . Historical jurisprudence is
the history of the first principles and conceptions of legal system.[2]
The
manner in which a work upon historical jurisprudence treats its subject must be
determined by the method by which it traces the rise and diffusion of legal
conceptions. It must have much state with fullness the law as it appeared among
the early races. But it will not be called upon to repeat this detailed account
of laws and system of law. But it will not be called upon to repeat this
detailed account of laws and systems of the law, when the legal ideas which
have appeared and have become common property are parts of some new system.
History of jurisprudence
The Central Criminal Court of
England and Wales at the Old Bailey
Jurisprudence
already had this meaning in Ancient Rome even if at its origins the discipline
was a (periti) in the jus of mos maiorum (traditional law), a body of oral laws
and customs verbally transmitted "by father to son". Praetors
established a workable body of laws by judging whether or not singular cases
were capable of being prosecuted either by the edicta, the annual pronunciation
of prosecutable offense, or in extraordinary situations, additions made to the
edicta. An index then would judge a remedy according to the facts of the case.
Their
sentences were supposed to be simple interpretations of the traditional
customs, but effectively it was an activity that, apart from formally
reconsidering for each case what precisely was traditionally in the legal
habits, soon turned also to a more equitable interpretation, coherently
adapting the law to the newer social instances. The law was then implemented
with new evaluative Institutions (legal concepts), while remaining in the
traditional scheme. Praetors were replaced in 3rd century BC by a laical body
of prudence’s. Admission to this body was conditional upon proof of competence
or experience.
Under
the Roman Empire, schools of law were created, and the activity constantly
became more academic. In the age from the early Roman Empire to the 3rd
century, a relevant literature was produced by some notable groups including
the Porcelains and Sabinians. The scientific depth of the studies was
unprecedented in ancient times.
After
the 3rd century, Juris prudentia became a more bureaucratic activity, with few
notable authors. It was during the Eastern Roman Empire (5th century) that
legal studies were once again undertaken in depth, and it is from this cultural
movement that Justinian's Corpus Juris Civilis was born.[3]
jurists AND historical schools
Historical
jurisprudence came to prominence during the German debate over the proposed
codification of German law. In his book On the Vocation of Our Age for Legislation
and Jurisprudence[4]
,Friedrich Carl von Savigny argued that Germany did not have a legal language
that would support codification because the traditions, customs and beliefs of
the German people did not include a belief in a code. The Historicists believe
that the law originates with society. According to Sir Henry Maine, Montesquieu
was the first jurist who followed the historical method. He made researches
into the institutions and laws of various societies and came to the conclusion
that “laws are the creation of climate, local situations, accident or imposture”.
The view of Hugo was that law, like languages and manners of the people, forms
itself and develops as suited to the circumstances. According to Savigny , the
nature of any particular system of law was a reflection of the spirit of the
people who evolved it .This was later characterised as the Volksgeist by Puchta
, a disciple of Savigny . All law is the manifestation of this common
consciousness . Lord Lloyd was of the opinion that the advocates of the Volksgeist
seem to assume that every “people” is in some way an identifiable entity, with
a corporate conviction or will of its own. This approach later crystalized in
Gierke’s theory of the “real” personality of corporate bodies.[5]
Savigny’s
veneration for Roman law led him to advance doubtful propositions. There was a
strict adherence to the doctrine of privity of contract in Roman law and the
law of negotiable instruments was opposed to it. Hence Savigny condemned
negotiable instruments as “logically impossible”. This was so although the
feelings of the commercially minded people were strongly in favour of
negotiable instruments. The weakness of Savigny’s approach was due to the fact
that he venerated past institutions without regard to their suitability to the
present.
The
view of Savigny was that the Volksgeist formulates only the rudimentary
principles of a legal system and could not provide all the necessary details.
Therefore, as society becomes more complex, a special body of persons is called
into being whose business it is to give technical, detailed expression to the
Volksgeist in the various matters with which law has to deal. That body of
persons consisted of the lawyers whose task was to reflect accurately the
prevailing Geist. Dias points out that this is nothing but a fictitious
assumption to cover up an obvious weakness in its thesis which was not related
to reality in any way.
The
contribution of Puchta lies in the fact that he gave twofold aspects of human
will and origin of the State. It is true that there are some points of
distinction between Puchta and Savigny, but mostly they are similar. On some
points, Puchta improved upon the views of Savigny and made them more logical.
The
corollary to these agencies of legal development in progressive societies is
the “gradual dissolution of family dependency and the growth of individual
obligation in its place. The individual is steadily substituted for the family
as the unit of which civil laws take account”. The Roman family, the slave, the
caste, the medieval guilds, the feudal nexus, are typical instances of status.
Gradually the rigid position into which the individual is born and which he
cannot leave, gives way to more freedom of will and movement, the authority of
the pater families loosens and the slave can be emancipated. As a slave, he can
contract to the extent of the peculium, the medieval serf can become free by
escaping into the town and eventually slavery and serfdom are abolished. They
give way to a free contractual relation between employer and employee.
Progressive societies are characterized by increasing legal freedom of movement
of the individual. The development is summed up by Maine in the following
celebrated phrase: “If then we employ status to signify the personal conditions
only and avoid applying the term to said conditions as are the immediate or
remote result of agreement, we may say that the movement of the progressive
societies has hitherto been a movement from status to contract.”
Historical and
Analytical Schools
According
to Dias and Hughes: “The distinction between analytical and historical
jurisprudence is not one of kind, but of emphasis. They are both analytical in
method , the distinction between them being that in the one case attention is
fixed on concepts as they are today, while in the other case account is taken
of a process over a period of time. Not only does it seem misleading to
indicate this distinction by affixing the term analytical to one, but the
distinction itself breaks down in the case of some concepts, notably ownership,
where it is not possible to understand their nature at the present time without
reference to their history”.
Historical School Analytical
School
1. Historical School concentrates 1. Analytical
School confines itself
To
mature legal systems.
2. Law is found and not made. 2. Law is an arbitrary
Law
is self-existent. Command
of the sovereign.
It
is the deliberate product of
Legislation.
3. Law is antecedent to the State 3. If there is no sovereign, there
And
exists even before a State can
be no law.
Comes
into existence.
4. Law is independent of 4. The hallmark of law is its
Political
authority and its enforcement
by the sovereign.
Enforcement.
Law does not
Become
law merely because
Of
its enforcement by the
Sovereign.
5. Law rests on the social 5. Law rests upon the force of
Pressure
behind the rules of politically
organized society.
Conduct
which it enjoins.
6. Law is the rules by which the 6. Law
is the command of the
Invisible
borderline is fixed sovereign.
Within
which each individual
Obtains
a secure and full
Space.
7. Typical law is custom. 7. Typical
law is a statute.
“Human
nature is not likely
To
undergo a radical change
And,
therefore, that to which
We
give the name of law
Always
has been, still is and
Will
forever continue to be?
Custom.”
(Carter)
8. Custom is the formal source 8. Custom is not law until it’s
Of
law. It is transcendental validity
is established by a
Law
and other methods judicial
decision or Act of the
Of
legal evolution, e.g., Legislature.
It is only a source
Precedent
and legislation, of
law.
Derive
their authority from
Custom.
At any rate, custom
Derives
its binding force from
Its
own intrinsic vitality and
Not
from judicial precedent
Or
legislation purporting to
Follow
or legalise it.
9. While interpreting a statute, 9. While interpreting a statute,
Judges
should also take into judges
should confine
Consideration
its history themselves
to a purely[6]
Syllogistic
method.
Distinction between Legal History and
Historical Jurisprudence
Legal
history is not synonymous with historical jurisprudence. Legal history sets
forth the historical process by which a particular legal system has grown and
taken its present shape. On the other hand, historical jurisprudence is the
history not of the legal system but of the first principles and basic concepts
of the legal system. It traces how the concepts of property and contract
originated and developed. Legal history tells us how the law of property or
contract was altered and developed from time to time. There is no doubt that
legal history is the storehouse from which the historical jurist draws his
conclusions. With the help of legal history, he can demonstrate how the
fundamental notions lying at the bottom of the legal system have evolved and
trace scientifically the history of the first principles of law.[7]
Conclusion
While the historical method has superseded the
verbal and metaphysical explanation of legal principles, it has apparently, in
some cases, come into conflict with the conclusions of the analytical school.
The difference between the two systems comes out most conspicuously in the
analytical method between societies in which rules are backed by regulated
physical force and those in which no such force exists. At what point in its
development a given society passes into the condition of "an independent political
society" it may not be easy to determine, for the evidence is obscure and
conflicting. To the historical jurist there is no such breach. The rule which
in one stage of society is a law, in another merely a rule of "positive
morality," is the same thing to him throughout. By a recent Act of
Parliament the Ulster custom of tenant right and other analogous customs were
legalized. For the purposes of analytical jurisprudence there is no need to
beyond the Act of Parliament. The laws known as the Ulster custom are laws
solely in virtue of the sovereign government. Between the law as it now is and
the custom as it existed before the Act there is all the difference in the
world. To the historical jurist no such separation is possible. His account of
the law would not only be incomplete without embracing the precedent custom,
but the Act which made the custom law is only one of the facts, and by no means
the most significant or important, in the history of its development. An
exactly parallel case is the is the legalization in England of that customary
tenant right known as copyhold. It is to the historical jurist exactly the same
thing as the legalization of the Ulster tenant right. In the one case a
practice was made law by formal legislation, and in the other without formal
legislation. And there can be very little doubt that in an earlier stage of
society, when formal legislation had no become the rule, the custom would have
been legalized relatively much sooner than it actually was.
The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm’s Law for jurisprudence; but something has been done in that direction by the discovery of the analogous process and principles which underlie legal systems having to external resemblance to each other. It happens, however, that the historical study of law has, for the most part, been confined to a single system -- the Roman law. The Roman law present itself to the historical student in two different aspects. It is, regarded as the law of the Roman republic and empire, a system whose history can be traced throughout a great part of its duration with certainty, and in parts with great detail. It is, moreover, a body of rationalized legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into jurisprudence of the whole of modern Europe on the strength of their own abstract authority,—so much so that the continued existence of the civil law, after the fall of the empire, is entitled to be considered one of the first discoveries of the historical method. Alike, therefore, in its original history, as the law of the Roman state, and as the source from which the fundamental principles of modern laws have been taken, the Roman law presented the most obvious and attractive subject of historical study. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recession of those of Gaius, the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian law has accordingly been the main subject of historical study, and the conclusions of jurisprudence are to a great extent generalizations suggested by the history of Roman law.[8]
[1]
Lee, G. C. (1900). Introduction. In Historical jurisprudence: An introduction
to the systematic study of the development of law (p. 1). New York: Macmillan.
[2]
Dias, & W, R. M. (1980). Jurisprudence (11th Ed.).
London.
[4]
Savigny, F. K. (1975). Of the vocation of our age for legislation and
jurisprudence. New York: Arno Press.
[5]
Lloyd H., & Freeman, M. D. (1979). Introduction to jurisprudence (1st ed.).
London: Stevens.
[6]
Mahajan, V. D. (2014). Historical school of Law. In jurisprudence and legal
theory (5th Ed.). Eastern Book Company.
[7]
Mahajan, V. D. (2014). Historical school of Law. In jurisprudence and legal
theory (5th Ed.). Eastern Book Company.
[8]
Historical Jurisprudence. Retrieved from
http://www.1902encyclopedia.com/L/LAW/law-04.html
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