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Historical Jurisprudence:
Synopsis
Legacy of the past
Product of individual community
No cosmopolitan implication of law (then
French Doctrine )
Customs, traits, special habits, unique
customs, heritages and culture are the
means of law making process
Difference between legal history and
historical jurisprudence
Legal history is merely a factual record of
law and legal institutions( Prof.: Dyani)
Historical Jurisprudence:
Past Contribution
Background contribution:
Montesquieu (1689-1755) : all laws
should be framed based on entire social
surroundings and biological environment
Edmund Burke: Discuss the value of
traditional and gradual growth in French
Revolution. He said culture, history,
religion, tradition guided to the social
action.
Historical Jurisprudence:
Leading Jurists
Carl Von Savigny (1779-1861): Of the
Vocation of Our Age for Legislation and
Jurisprudence a pamphlet prepared to answer
Professor (civil law) A.F.J. Thibaut of
Heidelberg University
Law should be made arbitrarily and deliberately
by law makers : slow gradual and organic growth
His attack was primarily focused on against the
Roman Law and Napoleon Code (codification of
law)
Law is internal silently -operating force
Law is determined by Volkgeist (National Spirit):
common consciousness of the people ; like
language, constitution and manners.
Historical Jurisprudence:
Leading Jurists
Sir Henry Maine ( 1822-1818):
Founder of English Historical School
Heavily influenced by Sevignys historical
approach
Doctrine of status of contract (the movement
of the progressive societies has hitherto been a
movement from Status to Contract)
Five Stages of legal development (commonly
known as fiction, equity and legislation):
First State (Earlier period ): law was governed by
personal commands of patriarchal rulers ( subject to
divine law)
Second Stage (Period of customary law ): applied
and expounded by aristocracy or small privilege class
Criticism to Historical
Law School
For Savigny:
Never happened in the past that one society
did not borrow laws from another society
Law also a matter of conscious human
effort , which has practical importance of
forming law, it also discourages improve
better conditioning of laws using human
conscious
Volkgeist has been an abstract terminology :
how to make category or selection of law
from the entire Volkgeist
Criticism to Historical
Law School
For Maine :
Fiction, equity and function is
opposite construction ( actually in
these society the legislation came
first than fiction and equality)