Introduction:- The exponents of the historical School of jurisprudence take social institutions in the sequence with primacy to primitive legal Institutions of the society. Thus the school does not attach importance to relations of law to the State but gives primacy to the social institutions in which the law develops itself. While analytical School pre-supposes the existence of a well developed legal system, the historical school concentrates on evolution of law from the primitive legal Institutions of the Ancient communities. The task of historical school is to deal with the general principles governing the origin and development of law and with the influences that affect the law. Such enquiries are distinguishable as an anthropological approach to the evaluation of the development of law.
Historical jurist banished ethical considerations from jurisprudence and rejected all creative participation of judge and jurist or law giver in the making of law. They propounded the view that all Universal ideal principles to which positive law must confirm where not principles of morals but principles of customary action. They could be traced not by reasoning but by historical study. Frederick Pollock, one of the ardent supporters of historical School firmly believed that morals, as such were out of the domain of judge or jurist. It is, however, a different matter that even customs immemorial should not be opposed to morality.
It would, therefore, be see in that the historical School emerged as a reaction of legal theory is propounded by analytical positivist and the natural law philosophers. The latter believed that the law was founded on the Abstract notions of human conscience and reason.
Historical jurist banished ethical considerations from jurisprudence and rejected all creative participation of judge and jurist or law giver in the making of law. They propounded the view that all Universal ideal principles to which positive law must confirm where not principles of morals but principles of customary action. They could be traced not by reasoning but by historical study. Frederick Pollock, one of the ardent supporters of historical School firmly believed that morals, as such were out of the domain of judge or jurist. It is, however, a different matter that even customs immemorial should not be opposed to morality.
It would, therefore, be see in that the historical School emerged as a reaction of legal theory is propounded by analytical positivist and the natural law philosophers. The latter believed that the law was founded on the Abstract notions of human conscience and reason.
Friedrich Karl Von Saving (1779-1861):- F.K.V. Savigny who was born in the year 1779 at Frankfurt at Germany. He was Orphan at the age of 13 and was educated by his uncle Neurah, who was a lawyer by profession. Savigny given education and learning about the natural law and international law at the University Marburg and broth Gottingem but he had developed a new interest in history and its method and purity.
From 1801 to 1804 he was a professor of civil law at the University Marburg and then at the University Landshut. In 1810 he was professor of a newly formed University at Berlin, where he came to the touch with the Great historians. In 1842, he was appointed as a Prussian Minister of justice and and retired in the year 1848.
Savigny's main work "Law of Possession" and was published in the year 1803. According to the Ihering a new historical jurisprudence was born from this work. Savigny's other works are, history of Roman law in Middle ages (in 6 volumes), then "System of Modern Law" (1849) and "Contracts (1853). In short Savigny continue to devote himself in the study of jurisprudence till his and in the year 1861.
F.K.V. Savigny is considered universally are historical exponent and legal thoughts. He emphasized on history as an important factor for the study of law and it is different from legal history legal history. Legal history merely like a catalogue without any critical evaluation of development of law and legal history whereas historical jurisprudence attempts to spell out the principle and process operating behind the origin and development of the legal institution.
The historical School does not pay any attention to the relation of law and the state, but given priority to the social institution, in which law developed itself. The task of historical school is to deal with general principles governing the origin and development of law and with the influence and effect of the law.
From 1801 to 1804 he was a professor of civil law at the University Marburg and then at the University Landshut. In 1810 he was professor of a newly formed University at Berlin, where he came to the touch with the Great historians. In 1842, he was appointed as a Prussian Minister of justice and and retired in the year 1848.
Savigny's main work "Law of Possession" and was published in the year 1803. According to the Ihering a new historical jurisprudence was born from this work. Savigny's other works are, history of Roman law in Middle ages (in 6 volumes), then "System of Modern Law" (1849) and "Contracts (1853). In short Savigny continue to devote himself in the study of jurisprudence till his and in the year 1861.
F.K.V. Savigny is considered universally are historical exponent and legal thoughts. He emphasized on history as an important factor for the study of law and it is different from legal history legal history. Legal history merely like a catalogue without any critical evaluation of development of law and legal history whereas historical jurisprudence attempts to spell out the principle and process operating behind the origin and development of the legal institution.
The historical School does not pay any attention to the relation of law and the state, but given priority to the social institution, in which law developed itself. The task of historical school is to deal with general principles governing the origin and development of law and with the influence and effect of the law.
VOLKGIST AS SOURCE OF LAW:
Savigny firmly believed that law is a product of general people consciousness and the manifestation of the spirit. He criticize the idea of codification of German Law, as he knew that the defects of contemporary codes. According to him code was not a suitable instrument for the development of German law at that time.
Law is the product of people's life and manifestation of their spirit. According to Savigny, law made without taking any consideration of the past historical culture, and tradition of community as likely to create more confusion than solving the problems; because "law is not an artificial, lifeless, mechanical device". The origin of law lying in the popular spirit of the people, which Savigny termed as volksgiest, means law has its source in the general consciousness of the people.
Savigny firmly believed that law is a product of general people consciousness and the manifestation of the spirit. He criticize the idea of codification of German Law, as he knew that the defects of contemporary codes. According to him code was not a suitable instrument for the development of German law at that time.
Law is the product of people's life and manifestation of their spirit. According to Savigny, law made without taking any consideration of the past historical culture, and tradition of community as likely to create more confusion than solving the problems; because "law is not an artificial, lifeless, mechanical device". The origin of law lying in the popular spirit of the people, which Savigny termed as volksgiest, means law has its source in the general consciousness of the people.
Law Develops like a Language:
Savigny remarks that law has a national character and it develops like a language. It binds people in 1 unit because of their common faith, beliefs and convictions. Savigny, pointed out that the law grows with the growth of the society. It gets birth from the society itself and finally it dies when is Nation loses its nationality. The law, language, custom and government have no separate existence from the people who follow it.
Savigny remarks that law has a national character and it develops like a language. It binds people in 1 unit because of their common faith, beliefs and convictions. Savigny, pointed out that the law grows with the growth of the society. It gets birth from the society itself and finally it dies when is Nation loses its nationality. The law, language, custom and government have no separate existence from the people who follow it.
Early Development of Law in spontenious:- Savigny stated that in the earliest stage the law developed spontaneously to the internal need of the community. But after the community reaches a certain level of Civilization and different kind of national activities which is divided into different branches and they are taken by the specialist, as jurist, scientist, anthropologist, excetra, the heads of the specialist this subject become richest in ideas, more complete and Technical.
Law like other subject now assume double side, on the one side general natural life and on the other side distinct science of jurisprudence. The relationship of law to the general life of people might be call its political element in connection with juristic science. According to Savigny the growth of law is continuous and unbreakable process followed by common culture, traditions, and beliefs. It has its roots in the historical process which should constituted the subject of study for the jurist.
Law like other subject now assume double side, on the one side general natural life and on the other side distinct science of jurisprudence. The relationship of law to the general life of people might be call its political element in connection with juristic science. According to Savigny the growth of law is continuous and unbreakable process followed by common culture, traditions, and beliefs. It has its roots in the historical process which should constituted the subject of study for the jurist.
Historical research is indispensable:- Savigny in his work "The Law of Possession" traced the process by which Roman doctrine of possession had developed into the doctrines and action prevailing in contemporary Europe. Savigny mentioned in his essays that Roman law has been received in Germany so long ago that are illegal soul had become admixture of Roman and local law. So, he considered the local laws is an inevitable tool for the development of the unified system of law in Germany.
Criticism against savigny's theory of law:-
Savigny's theory has been opposed by his critics on several Grounds the main among those are as follows:-
1. There are certain inconsistencies which are apparent in Savigny's theory. he emphasised the national character of law but at the same time suggested a model by which Roman law could be adopted and accepted as the law of Germany.
2.Again he located origin of law in the volksgeist, that is popular conscience but at the same time asserted that certain customary principles of Roman law had Universal application.
3. Again Savigny's view that customs are always based on the popular consciousness is also not acceptable. Many customs such as slavery, bonded labour etc., originated to accomplish the selfish interest of those who were in power. They are adopted because they are being blindly followed and continued for a long time and not because they are righteous and have the support of the popular consciousness.
Savigny's theory has been opposed by his critics on several Grounds the main among those are as follows:-
1. There are certain inconsistencies which are apparent in Savigny's theory. he emphasised the national character of law but at the same time suggested a model by which Roman law could be adopted and accepted as the law of Germany.
2.Again he located origin of law in the volksgeist, that is popular conscience but at the same time asserted that certain customary principles of Roman law had Universal application.
3. Again Savigny's view that customs are always based on the popular consciousness is also not acceptable. Many customs such as slavery, bonded labour etc., originated to accomplish the selfish interest of those who were in power. They are adopted because they are being blindly followed and continued for a long time and not because they are righteous and have the support of the popular consciousness.
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