Historical School Of Jurisprudence

1. Introduction

It is the study and theory of law which is referred to as jurisprudence. It investigates the root and meaning of the law. The concept of law is quite complicated. Different interpretations of law are drawn by different people. A lawyer, for example, sees the law as a means of resolving any conflict. Jurisprudence is defined by Rosco Poundas,

The bundle of principles acknowledged or enforced by common and formal tribunals in the administration of justice is regarded as the science of law.

Jurisprudence means the study of law in a logical and philosophical manner. The word Jurisprudence has been originated from the Latin word Juris prudentia which can be broken down into two parts, and that is juris which originated from the word jus which means law and the word prudential which means prudence, forethought or discretion. Jurisprudence can also be referred to as a legal theory. Jurisprudence gives us an overview and a much more in-depth understanding of the law and the role of law in society. Jurisprudence deals with legal reasoning, legal institutions and legal systems.

Historical School is one of the most important schools of legal studies. According to this school, the law is an extreme version of social norms, economic necessities, traditions, religious beliefs, and peoples relationships with society[1].

This school of thought asserted that law is discovered rather than created.The historical school of law does not believe in or accept the natural school of laws belief that law comes from a higher authority and has divine significance. As stated by Dias, As a reaction to natural law doctrines, the historical school has evolved.[2]. Sir Henry Maine was the disciple of Savigny, who used historical jurisprudence to oppose the radical notions derived from the fancied Rights of Man, History is the only true way to gain a knowledge of our own condition, Savigny wrote in 1815.

2. Philosophical School

Natural law is another term for the Philosophical school of jurisprudence. The philosophical approach focuses on the relationship between law and the goals it seeks to achieve, as well as the logic behind the creation of a certain rule. The law, according to renowned legal scholars, is neither a personal direction of a ruler nor a concern for the creation of documented necessity. According to them, the law is the consequence of human reason, and its purpose is to advance and celebrate human individuality.

3. Analytical School

The analytical school of jurisprudence was founded by John Austin, and as a result, it is also known as the Austinian School. The analytical school of jurisprudence focuses on the current state of law. It aims to examine how the fundamental principles of law are applied in a particular legal system.

This school places a high value on the relationship between law and the state. They see the law as an order issued by the Sovereign, i.e., the State. This school isnt interested in the laws history or future; instead, it studies the law as it is now.

4. History of jurisprudence

It is a Contract. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved toward a phase of social order in which all these relations arise from the free agreement of individuals.[3].

Sir Henry Maine classified the development of law into four stage

1.At first, in Maines analysis, the largest groups comprised a few kinsmen presided over by a man who settled disputes and handed down punishments on an ad hoc basis with no firm rules relating to his decisions.

2. Subsequently, these small groups were organised under chiefs and, over time, mutual kinship ceased to be the basis of their organisation and was replaced by a community established by a common tract of land.

3. Eventually, in similar situations, the rulers pronounced the same judgments and thus developed rules.

4. Later, the development of writing encouraged the creation of codes of law.

But from this point onwards, we could divide societies into those that have progressed and those that have remained static. The former were few and, for Maine, it was possible to describe with some accuracy the essence of their radical reforms. Most significantly the law was altered by three consecutive instruments in reaction to changing social circumstances: legal fictions, equity, and statutes.

1. Static societies: societies that do not progress or develop their legal structure after the fourth stage of law development are Static societies. Static societies are not moving beyond the age of codes.

2. Progressive Society: Societies that are moving forward after the fourth stage of law development are Progressive Societies. These societies develop their law with the help of the following instruments :

3. Legal fiction: Legal fiction changes the law according to the needs of society making no changes to the letter of the law. Legal fiction harmonises the legal order but makes it difficult to understand the law.

4. Equity: Equity is a body of rules that exists alongside the original civil law and is based on separate principles. Equity helps to eliminate rigidity and injustice.

5. Statutes: statutes is the most efficient and desirable method of legal change. Laws will be enacted and officially put into effect.

Sir Henry Maines conception of progressive evolution was motivated by his comparative study of legal history. From the study of Indian, Irish, German, and Roman Law, Maines conception of Progress as an intellectual activity has evolved, manifesting itself in the continued production of new ideas and promoting changes in social and legal institutions. Knowledge of Maines theories on the legal and social evolution of progressive societies enables us to understand more easily his idea of progress and the object of his influential critique of democratic institutions, found in the Popular Government, one that had a considerable impact on the political thinking of the last quarter of the 19th century. [4]

The historical school of jurisprudence wholly rejected the definition of law propounded by analytical jurists. For instance, Austin and Bentham opined, a law may be resolved into a general command, one emanating from a sovereign or lawgivers and imposing an obligation upon citizens, which obligation is enforced by a sanction or penalty, threatened in the case of disobedience.The aforesaid definition was rejected as untrue, unsatisfactory, and not applicable or impracticable.

5. Conclusion

In a broader spectrum, the Historical school of jurisprudence studies the evolution of law and provides the insight that people cannot fathom-out law without knowing its evolutionary theory. Multiple theories of this school comprise the origin of law, reasons behind its developments, society as the instrument of legal change, or vice versa. Even though different jurists have different theories to understand the historical aspect of the law, their collective idea is that law and society cannot be studies severally, since both have a positive influence on one another.[4]