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Historical Jurisprudence

-Rabin Subedi, National Law College


Email: subedirabin@gmail.com
Phone: 9851077261

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

Sir Henry Maine ( 18221818):


Sir Henry Maine ( 1822-1818):
Third stage :codification of customary laws
( for instance the law of XII Tables in Rome)
Fourth Stage: Harmony of law with
progressive society (Modification of strict
archaic laws by the help of fiction, equity
and legislation)
Finally, scientific jurisprudence intertwines
these all various forms of laws into
consistent and systematic legal system

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)