HISTORICAL SCHOOL

Law is born in customs.

Main exponents of this school are :

Savigny,

Maine,
Putcha and Vinogradoff.

Historical School Historicism.

is

known

as

It is also known as Anthropological Approach of Law- Dias

Reasons for the emergence of Historical School:

1. Reaction against Analytical School. 2. Reaction against the unhistorical assumptions of natural law theories. 3. Reaction against a wave of codification started in Europe due to Benthamite influence particularly in Germany. 4. Feeling of nationalism French Conquest under .Napoleon

The Historical School writers viewed that

1. Laws are always found and not made consciously. 2. Laws must be studied directly with the life of the community. 3. They are mainly concerned with past rather than present. 4. According to them law is not of universal application but localized and as such norms and developments differ from society to society. 5. The main type of law which they considered is Customary Law.

VOLKSGEIST THEORY FRIEDRICH KARL VON SAVIGNY (1779 1861) Laws is a matter of unconscious growth. It grows like language, manners and customs unconsciously in the society. Custom is superior to law. All laws is originally found in the manner in which customary law is said to be found.

Law is first shaped by the customs and popular beliefs and then by juristic activities. Every where therefore by silent eternal (endless) operating power and not by the arbitrary will of law maker law comes into existence.

Law is not of universal application.

Law is like language Law grows with the growth and strengthen with strength and finally dies away when nation looses its nationality.

Savigny was of the view that for codification two element are required for codification:
Political element Technical element. The Volksgeist or the sprit of people constitutes the political element The technical element means juristic skill for codification.

He said that when Thibaut advocated for the codification in Germany not only political element but juristic skill requires for codification was also lacking.

Criticism: The bulk of rules of custom have not originated in volksgeist . The ancient institution of slavery was based on the economic necessity and not on popular consciousness. Certain branches of law such as Law of Merchants have a universal character. He over emphasized the custom and ignored the legislation.

Savigny emphasized the national character of law, while advocating national character of law he entirely rejected the study of Germany law and inspiration from Roman law.