HISTORICAL SCHOOL

UNIT IV
INTRODUCTION

• Fredrich Kari Von Savigny is universally recognized as the founder of the historical school or
Jurisprudence.
• History is integral part of the society where the law and legal institutions have to operate since these were
closely inter-related.
• There are two predominant trends discernible in the Historical School.
a. One stream of thought, headed by Savigny, emphasis on the emotional and romantic element in
invoking history.
b. The other stream of thought, headed by Sir Henry Maine, does not decry the importance of customs,
traditions, primitive institutions, etc., but studies legal evolution scientifically to discover by
comparative method and studies, the ideas which are common in the evolution of law and legal
institutions in different societies.
BACKGROUND

• Historical School is the product of German juristic thought.

• Earlier Edmund Burke had emphasized the importance of history and Hegal had
propounded the view that state is an organism whose constitution is
determined by the political consciousness (Volk) of the people.
• Reaction against natural law and the French Revolution.
• Sprit of nationalism and Post Revolutionary Romantic Revival in Europe.
FREDRICH
KARI VON
SAVIGNY
VOLKSGEIST (SPIRIT
OF PEOPLE)
ASSUMPTIONS

• Savigny emphasized that what was needed was investigation into the origin of
legal rules not their reasonableness.
• To begin with law is simple and is easily understandable by everyone.
• As society progresses, the silently operating force of the volkgeist proves
inadequate to shape the law, Here comes the role of lawyers who become
vehicles of common consciousness of the people, represent the popular spirit and
give shape to law and legal institution by developing them in their technical aspect.
SAVIGNY

• The law is not something that should be made arbitrarily and deliberately by a
law-maker.
• Law was a product of internal, silently operating forces.
• Savigny considered Roman law as a model because Roman law had developed for centuries on
the native soil before it was codified in the form of XII Tables or the corpus juris civils.
• In fact, Savigny could not reject Roman law which had taken deep roots on the German soil
for centuries and had been adopted by the German people. He pointed out that, Roman law,
though alien to the soil of Germany, had become a part of people’s experience and hence it
was not possible to reject it and go back.
VOLKSGEIST

• The term Volksgeist is made by the two words Volks means people, and geist means their
common will.
• Volksgeist means the law is a common will of the people (spirit of the people).
• The main idea of Savigny behind this theory was that law is an expression of the will of the
people, and it doesn't come from deliberate legislation, and it develops as the
consciousness of the nation arises.
• The core of Volksgeist was that a legal system of a nation is mainly influenced by the historical
culture and traditions of the people, and its growth was located in their acceptance.
THE THEORY OF VOLKSGEIST

• Law prevails in society- the law is the product of the people's life living in a particular society
and it is the outcome of a culture of a society.
• Law develops like a language- not only binds people with beliefs and opinions in a group
but also grows with the development of society.
• Law is a continuous and regular process- Customs and usages in society are given common
consent to be followed by the society in the beginning, and the people follow them without
any hesitation.
• Savigny's opinion on codification of law- Savigny was against the codification of the law.
• The initial development of law is natural, and later on, it is developed by jurists- in the early
stages, the law developed naturally/spontaneously according to the internal needs of the
people.
ELEMENTS OF LAW

• Savigny emphasizes two elements in law which he termed as the political element and the
technical element.
• In early communities the volksgeist constitutes the political element.
• The law elaborated by lawyers in the developed society constitutes the ‘technical
element’.
GENERAL WILL VS VOLKSGIEST

• Volksgiest - A German phrase that refers to the unique character and spirit of a
nation's people, and their way of life. Friedrich Carl von Savigny used the term in the
early 19th century to describe the "popular" sense of justice. Savigny believed that law
should arise from the general consciousness of the people, rather than from deliberate
legislation.
• General Will- A concept in political theory that refers to the collectively held will of the
people, which aims for the common good. The phrase appears in the Declaration of the
Rights of Man and the Citizen, which was written during the French Revolution in 1789.
Jean-Jacques Rousseau considered the general will to be central to his political philosophy
SIR HENRY MAINE
(1822-1888)
‘FROM STATUS TO CONTRACT’ THESIS
 STAGES OF DEVELOPMENT OF LAW
1. Law made by the ruler under divine inspiration:-
• In the beginning, the law was made by the command of the king believed to be acting under the divine inspiration of the
Goddess of justice Who was above the law and whose commands must be obeyed by the inferiors
2. Customary Law:-
• In the next stage, the office of the King or Judge was inspired by the heads of the councils. The priest became a
repository of law that circulated the King’s power and claimed the sole monopoly of knowledge. Therefore, the priest class
tried to preserve the customs of race or caste intact. Since the art of writing was not invented, the customs of the
community became law for those who were united with blood relations.
3. Knowledge of law in the hands of Priests:-
• In the next phase of the development of the law, in order to implement and execute the law inspired by the Priest class,
the King’s right claimed to be learned in law as well as in religion.
4. Codification:-
• The era of codification marks the fourth and perhaps the final stage of the development of law. With the discovery of the
art of writing, a section of scholars and jurists came forward to condemn the authority of the priests as law officials. He
advocated the codification of the law to make it accessible and easy to know. It broke the monopoly of the Priest class in
matters of administration of law.
 TYPES OF SOCIETIES

• According to Henry Maine societies are two types; Progressive Societies and Static Societies.
• Progressive Societies:-
• According to Henry Maine, those societies which go beyond the fourth stage as developing their laws,
by new methods are called progressive societies. Progressive societies develop their laws by the three
methods namely; Legal Fiction, Equity, and Legislation.
• Static Societies:-
• According to Maine, when the primitive law has been embodied in a code, there is an end to its
spontaneous development and such communities or societies which do not modify or go beyond the
fourth stage are called static societies.
 ‘FROM STATUS TO CONTRACT’ THESIS

• In his seminal 1861 treatise, Ancient Law, English jurist Henry Maine stated that “the
movement of the progressive societies has hitherto been a movement from Status to
Contract.”
• ‘Status’ represents various relational and often hierarchical networks that determined the
rights and obligations of a person in premodern society.
• Premodern societies are characterized by various tribal, kinship, and family relations. These
relations specified a person’s place in society, including their prospects of trade and marriage.
• Contract law had come to be based on liberal principles. Individuals could create rights and
obligations with one another regardless of who they were.
BRONISLAW
MALINOWSKI
ANTHROPOLOGICAL SCHOOL OF JURISPRUDENCE
INTRODUCTION

• While nineteenth century anthropologists were interested in understanding how

“primitive” legal systems and forms developed into “modern” legal systems
and forms, twentieth century anthropologists were more concerned about the
function of law and legal forms in particular social contexts (Functionalism).
• French sociologist Emile Durkheim (1858-1917), whose work on social solidarity, the
collective conscience, and group cohesion were inspirational to anthropologists like
Malinowski.
 CONTRIBUTION

• Malinowski conducted approximately two years of fieldwork in the Trobriand Islands, in Melanesia, from
1915-1917.
• He was primarily curious about how social order was maintained in small scale societies that did not
have centralized governments, police forces, or formal court systems.
• The conception of what counted as “law” in anthropology expanded accordingly. He proposed a definition of
law as “a body of binding obligations” (1926).
• Order was maintained among the Trobrianders, and Malinowski’s general conclusion was that this was done
through a complex system of reciprocity: he observed that among the Trobrianders there was a
remarkable cultural emphasis on the value of reciprocity and a failure to reciprocate would be met by
some sort of social sanctions.
NEEDS FUNCTIONALISM

• Identified three types of needs society satisfies for individuals:

• individual needs - nutrition, reproduction, safety - with society providing food collecting,
marriage, defense
• instrumental needs - renewal of personnel and charters of behavior - with society providing
education and social control systems
• integrative needs - means of intellectual, emotional and pragmatic control of one's destiny
and chance - with society providing magic, religion and science.
 NEEDS FUNCTIONALISM

• He believed that all customs and institutions in a society are integrated and interrelated
so that, if one changes the other would change as well. Each then is a function of the other.
• Malinowski suggested that individuals have physiological needs (reproduction, food, shelter)
and that social institutions exist to meet these needs.
• There are also culturally derived needs and four basic “instrumental needs” (economics,
social control, education, and political organization), that require institutional devices.
• Meeting the basic biological and instrumental needs encourages the formation of a
third level of needs - integrative. All the aforementioned activities include cooperation and
conflict, and they require the introduction of a system of regulation, a system of values,
norms and sanctions around which there is a global consensus, then the procedures of
avidity and control. Each level of needs is a prerequisite for the next level.
 CONSTITUENT PARTS OF SOCIAL INSTITUTIONS

• Each institution has personnel, a charter, a set of norms or rules, activities, material apparatus (technology), and a function.
1) the charter, i.e. the intention or the values for which its members have been organized;
2) The membership group of people organized through tasks, privileges, rewards, and through the principles of authority;
3) The rules or norms - technical, ethical and legal regulations that are accepted or imposed by the membership, which
relate to their skills and their behavior in the group;
4) The material apparatus - the part of the total capital of the society that uses the given institution (in the form of
wealth, property, instruments) and what derives from it (earnings, profits, equipment, etc.);
5) The activities - the actual behavior of membership within their institutional tasks, which is partly related to the ideal,
normed by norms and rules, and partly deviates from it;
6) Functions - the full results of organized activities that relate to members, other institutions and the society as a whole
and which are related to basic, instrumental and integrative needs.
KARL N. LLEWELLYN
The trouble case method
KARL N. LLEWELLYN AND E. ADAMSON HOEBEL-
1941: THE CHEYENNE WAY

• In the summer of 1935, he studied the legal culture of the Cheyenne.

• The lawyer and anthropologist, having analyzed over 50 "trouble-cases," were astonished
by the "juristic beauty" and "legal genius" of Cheyenne dispute resolution. Studying
the legal processes of the non-Western "other" exemplified for them the role of law in
channeling human behavior and maintaining social cohesion.
• To understand how everyday legal practices operated on the ground, Llewellyn turned to the
social sciences. The behavioral and empirical aspects of the social sciences could help legal
theory see beyond the myopia of the doctrinal approach ("armchair scholarship" ).
THE CHEYENNE WAY

• His way is seen an effort to move beyond the formalist view of law that was
dominant during the early twentieth century.
• Llewellyn argued, that "the ideological" approach to law as incorrect method.
• The distinction between substance and process was a false choice. Throughout his
scholarship he argued for a "working whole view" as an alternative to the
substance/process binary.
BEYOND LEGAL PRIMITIVISM: ANTHROPOLOGISTS
DISCOVER REALISM
• Legal primitivism was an offshoot of evolutionary social anthropology based on the
relic or fossil hypothesis, which claimed that there were preserved remnants of the
earliest human condition in certain cultures that had had little contact with the
outside world.
• Llewellyn and Hoebel illustrate Cheyenne legal thought and the way that Cheyenne society
seemingly operated without any apparatus of law, written laws, police, judges, prisons, or
courts.
• In order to grasp the original and true tradition of the Cheyenne, the analysis was based on
historical cases collected from recollections of informants in 1935-36 of events that
took place in the mid-nineteenth century.
BEYOND LEGAL PRIMITIVISM: ANTHROPOLOGISTS
DISCOVER REALISM
• The narrow anthropological criticism misses the intention of Llewellyn and Hoebel to
collect the important cases of the Cheyenne legal culture as they are
remembered and how they form the basis of conflict resolution.
• Because the Cheyenne were an oral culture, remembering the past was an
important way of controlling the future—in this case, how the remembrance of
cases past formed the framework for dealing with future cases.
HALF-LAWYER, HALF-SOCIOLOGIST

• Llewellyn was well aware that nearly every society contains a multitude of
methods to maintain order and social cohesion.
• Multitude method gives options to subgroups within a larger society to create
their own norms and processes of socialization
• The Cheyenne Way, too, was an attempt to examine how potential subgroups
within a seemingly homogenous society interacted during moments of crisis,
and how distinct groups such as rival tribes resolved their disputes.
LAW-JOBS

• The processes or procedures of law-jobs were the only universals; all else was left to the
diverse particulars of a culture's space and time.
• Example-
• The Council of Forty-Four resolved the matter using "the dissident's own declaration of
a new legal concept, and of himself as flatly within it: He says he is Out-of-Tribe; so be it-
Out-of Tribe he is." But the chiefs also allowed for the possibility of recantation
and readmission.
 LAW-WAYS & LAW JOBS
• System works for a common end, conflict-prevention and conflict resolution.

• The needs arise particularly from a facet of human nature, viz., that human beings have drives, desires and
interests which tend to be incompatible- “ divisive urges,”

• Llewellyn classified the main needs (“ jobs ”) into six categories :

• (i) ‘‘ Adjustment of the trouble case ”;

• (ii) “ preventive channelling of conduct and expectations ”;

• (iii) “ preventive re-channelling of conduct and expectations to adjust to change ”;

• (iv) ‘‘ arranging for the say and the manner of its saying ’ (allocation of authority and procedures for authoritative decision-making)
(v) provision of direction and incentive within the group (“ the job of providing Net Positive Drive ”); and

• (vi) “ the job of Juristic Method.

• Groups which qualify to be called ‘‘ societies ’ have institutions, more or less developed and specialised, the
peculiar function of which is to perform these “ law-jobs.” In Llewellyn’s later usage “ law-and-government ’ (or “ law-
government ”) is the term used to refer to such institutions.
LAW-WAYS & LAW JOBS- ILLUSTRATION

• Although the borrower had left his bow and arrow as "security" with "Wolf Lies Down," the old custom
of free utilization of another's goods was creating friction. The borrower was persuaded to resolve the
issue by giving "Wolf Lies Down" a new horse in lieu of the one that he had borrowed.
• Afterwards, the council of chiefs realized that, with an increased fluidity of property relations, some form
of legislation needed to be enacted; they declared that henceforth one could not borrow an owner's
horse without the expressed permission of the owner.
• Llewellyn and Hoebel were impressed by how the tribe had dealt with this problem.
• First, the council set out to resolve the individual dispute between "Wolf Lies Down" and the borrower,
and then, only
• Secondarily, did they move into new social policy. Thus, both the individual claims and the tribe's concern
about future borrowings were dealt with effectively. It was precisely this unique ability to deal with both
law's demand for cert