legal methods - historical school
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Historical School of Jurisprudence
Professor Ranbir Singh,Dr. Vijender Kumar
NALSAR University of Law, [email protected]
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Five Essential Characteristics of
Historical School of Jurisprudence
1. What is the element which is called law?2. What is the nature of the law?
3. What makes law obligatory?4. What is the source of law?
5. What are their philosophical views?
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HISTORICAL SCHOOL
1. Origin and development of law.2. Considered all social control.
3. They studies the past of law rather thanthe present.
4. Law is something which can not be
made consciously.
5. It is found and automatically grows in
the society.
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HISTORICAL SCHOOL
6. Because of silently operating internal forces.
7. Law is binding because of social pressure as
sanction is to be found in habits of obedience.
8. Their type of law is customary law of thosecustomary modes that make up a body of case
law.
9. Law is Volksgeist.
10. Hegalian-History is the unfolding of human
experience.
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Historical Method
18th Century
(A) Natural … Jurists …. System of Law
i) intuitive human conscience
founded on …ii) abstract human reason
Features of such a law being that it is --
i) Universal
ii) Permanent
iii) Unchangeable
iv) Static
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B) 19th Century England -- Analytical
Positivist
Soul lessConstricted a)
Barren
Sovereign made
b)
Coercive lawmoral
devoid of
cultural values
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Situation -- ‘Gun man situation’
were not only unhistorical
Above two models
also rejected all laws of
historical growth andhistorical nature
Eg) Customs,
Traditions,
Conventions,
Social mores,
Myths, etc.
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Thus ignored all laws:
Unity in experienceWhich furnish a society
Continuity in time
Pass from one generation
to another
Laws being evolutionary
in nature
Link past with presentMost importantly link bound people with:
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their shared historical heritage and
culture
ignored Analytical Positivist
Hence such laws were
rebuked Natural Law
A strong revolution and revolt, developed
unhistorical
against laws
sterile
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Historical Method viewed law --
As a i) legacy of pastii) a product of each individual,
community or people or Nationiii) reflecting peculiar :
a) traitsb) unique customs
c) special habitsd) peculiarities
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deep rooted in -- heritage and
culture, and are a matter of
iv) biological growthv) evolutionary phenomenon
arbitrary
and not an fancifulartificial creation
Historical Method so,
vi) connect law with communities and
societies
define
and then identify
expound, law
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Vii) law as an expression of
instinctive sense of:a) inner unity
b) common consciencepopular feelings
viii) reflected in sentiments
beliefs, and
practices
ix) interpreted law in the back drop of :
historico -- cultural matrix of a community
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Vii) law as an expression of
instinctive sense of:
x) law is bound by its peculiar qualitieswhich make it a distinct entity
evolve own culture
have its own qualitiesand mores
customs (Law)
and other featuresdifferent and distinctive
from other communities.
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Sir Frederick Pollock rightly
observes :
“The historical method is nothing else
than the doctrine of evolution appliedto human societies and institutions”.
Historical Method -- Central focus:
a) Law cannot be universal;
b) Law cannot be uniform;
c) Law cannot be isolated from society;
d) Law cannot be isolated from social
and historical moorings.
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Contd…
Important jurists like - Savigny rejecting natural
law, andPositivism emphasised the all round revivalismand resurgence of:
i) German historyii) Language
iii) Grammar
iv) Literature
v) Folk culture
All these factors provided a fertile ground foremergence of historical school.
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THE BASIC FEATURES OF
HISTORICAL METHOD ARE
1) It is concerned with the analysis of law not ‘as it is’
but ‘as it was’,2) Its origin and development are interested in the past
of law, as past and present are closely connected,
3) To understand present the appreciation of past is amust,
4) This method takes care of presence law in the
ancient societies which the positivist approach hasignored,
5) Law is something which is found and not made,
found in Society where it grows automaticallybecause of silently operating internal forces.
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THE BASIC FEATURES OF
HISTORICAL METHOD ARE
6) Law is not a matter of conscious making it
grows unconsciously in a society,7) Growth of law has been different in different
societies under different circumstances and at
different time,8) So law has to be different for different societies,
9) It can not be universal and /or uniform,
10) Law grows like language and is born with
peculiarities of the place where it takes birth,
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THE BASIC FEATURES OF
HISTORICAL METHOD ARE
11) It picks up the grammar of the place and the
society in which it originates and develops,12) This method relates law with society and it isthe life of a community determines theformation of law,
13) Law becomes a bye product of the society andnot the state,
14) This source of law for this method is customarypractices and traditions and the typical law iscustomary law,
THE BASIC FEATURES OF
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THE BASIC FEATURES OF
HISTORICAL METHOD ARE
15) The authority behind law for making it binding on
people is not force/sanction, rather it is society itself i.e., social pressure or social mores,
16) The philosophical view of the historical method are
Hegalian. As for Hegal - “History is the unfoldingof Human experience”.
17) So under this approach law is an experience,
experienced by people and manifested in commonconsciousness i.e., popular public opinion /sentiments explained by Savigny as ‘Volksgeist’i.e., spirit of the people.
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THE BASIC FEATURES OF
HISTORICAL METHOD ARE.
18) Other important jurists of this method are :
Sir Henry Maine
Sir Frederick Pollock
The importance of this method lies in the factthat, even in the modern age of legislation,
customary law has not lost its relevance.
19) what was custom to the ancient society legislation/
statute is to the modern one.
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Criticism:1) Savigny’s theory - perverted by ---Nazi
into a - Biological doctrinei.e. - Pure or superior race to
control inferior race
So Nazi dictator like Hitler misapplied the volk into an idea ofsuperior race and mis-used the theory.
2) In modern times it has given rise to fundamentalistdoctrine based on Narrow view of religion:
Eg. Muslim countries like in the name of
Islam “geist”
So many crimes are committed in the name of:
1) Religion
2) Nationalism
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Criticism:
Being used to promote Dividing, anddisintegrating forces.
The result of perverted use and interpretation of Savigny’s
theory of Volksgeist which is:
Secularism
Anti thesis of EgalitarianismSocial Democracy
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Criticism:
Other aberrations are:
i) Customs not an expression of popularconsciousnesseg:- slavery
ii) custom enforce static division with in a society basedon:
languagecustom, usagereligion etc.
And it became heaven for: 1) conservatives2) theoretic people
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3) Savigny’s concept of law became concept of law:
Narrow
Sectarian
Overlooking trasition
Against recent development
and progress
Insisted on dead past-stopedchanged and progress
4) This theory slow down the emergence of sociological
jurisprudence.
5) Volksgeist -- perverted for dissimilar.
Objects Nazism gave racial colour
Marxism Economic interpretation
Fundamentalism ReligiousResurgence and Revivalism
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Criticism:
6) Purity of volksgeist acted as a barricade to modern
Industrial welfare state:
Fatalists
This theory followed and give rise to ObstructionistFundamentalists
7) Volksgeist re-appeared as a cancerous divisive force inbody politic.