Natural school of Law:

Natural law is theory of natural rights based on the supposed state of nature.

Natural law is principle of human conduct discoverable by reason, from basic liking of human
nature and that are absolute, unchangeable and universal validity for all times and places.

This is generally explained as the law of nature, divine law, a law which is eternal and universal.
However, it has been given different meanings at different points in time. e.g. it was considered to
be associated with theology but at the same time it was also used for secular purposes.

Natural law is believed to exist independent of human will.

The term natural law is derived from the Roman term jus natural which means a system of law
based on fundamental ideas of right and wrong. Adherents to natural law philosophy are known as
naturalists.

It is unwritten body of universal moral principles that underlie the ethical and legal norms by which
human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive
law, which consists of the written rules and regulations enacted by government.

In legal theory and in ancient Hindu, Greek and Roman law natural law has a primitive place.

  

Introduction

Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law has a
very complex concept. Its understanding varies from people to people. Everyone has a different
understanding of the law. For example, a law student and lawyer understand the law as a solution
of every dispute. An ordinary citizen understands the purpose of the law is to punish them.

Historical school of Jurisprudence argued that the law is the exaggerative form of social custom,
economic needs, conventions religious principles, and relations of the people with society. The
followers of this school argued that law is found not made. The historical school doesn’t believe
and support the idea of the natural school of law which believe that the origin of law is from
superior authority and have some divine relevance.

The concept and meaning of Historical School of Jurisprudence

With the changing needs and nature of persons, the law should be changed. The historical school
follows the concept of man-made laws. ‘Law is formulated for the people and by the people’
means that the law should be according to the changing needs of the people. And everyone
understand their own need better than anyone else.

The basic source of the Historical School of Jurisprudence is the habits an custom of people
which changes according to their needs and requirement. It is also called the continental school
of Jurisprudence.

This school rejects the ideas of formation of law by judges and the origin from some divine
relevance. In the words of Salmond, “That branch of legal philosophy which is termed historical
jurisprudence is the general portion of legal history. It bears the same relation of to legal history
at large as analytical jurisprudence bears the systematic exposition of the legal system. It deals,
in the first place, with the general principles governing the origin and development of law, and
with the influences that affect the law. It deals, in the second place, with the origin and
development of those legal conceptions and principles which are so essential in their nature as to
deserve a place in the philosophy of law- the same conceptions and principles, that is to say,
which are dealt with in another manner and from another point of view by analytical
jurisprudence. Historical jurisprudence is the history of the first principles and conceptions of the
legal system.”
Savigny

Savigny is regarded as a father of the Historical school. He argued that the coherent nature of the
legal system is the usually due to the failure to understand its history and origin. According to
him, the law is “ a product of times the germ of which like the germ of State, exists in the nature
of men as being made for society and which develops from this germ various forms, according to
the environing the influences which play upon it.”

Savigny believes that the law cannot be borrowed from outside. And the main source of law is
the consciousness of the people.

According to savigny law is valid, because it is the inner sense of right of the people.

He was of the view that the law of the state grows with the strengthening of the state nationality
and law dies or fade away when nationality loosens its strength in the state.

Friedmann concludes the Savigny’s theory

 Law is like language which eventually grows.

 Law cannot be of universal validity nor be constructed on the basis of certain rational
principles or eternal principles.
 Law is sui generis. Savigny argued that law is like the language having its own
national character. So, it can’t be universally applied and varies according to the
people. Law is found or discovered not made. It can’t be made artificially like the
invention of an object.
 Law is found on the basis of consciousness, customs and beliefs of the people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the
product of general consciousness of the people or will. The concept of Volksgeist was served as
a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal
system. Unless they support the general will of the people.
Basically, Savigny was of the view that law should not be found from deliberate legislation but
should be made and arises out of the general consciousness of the people.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

Charles Allen

Charles Allen criticized Savigny’s view that law should be found or based on the customs.  Allen
was of the view that customs are not the outcome of common consciousness of people. But they
are the outcome of the interest of a powerful and strong of a ruling class. For example, slavery
which was recognized and prevailed in certain societies by the powerful classes of society.

Prof. Stone

Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the
legislation and planned law and social change.  And over emphasized on the consciousness of
people.

For example, In India, the abolition of Sati and widow’s remarriage are brought in to change
because of powerful and effective legislation.

 Introduction

“Law is founded and not made”, the famous quote is the basis of the historical school of law. The
historical school of law was founded by Friedrich Karl and Von Savigny. According to this
school, the law is the creation of interactions between the local situations and conditions of
people, the law is not founded by any political superior but found and given by people.
Proponents of Historical schools place the customs of the people as the major source of law
which should not be overlooked.

The historical school of law owes its development to the historical school of jurisprudence which
believes that as customs and habits of people change, the law should also develop accordingly.
The historical school of law rejects the natural school of law and realist school of law which
gives emphasis on God and judges as the major source of law.

Reasons for the development of the historical school of law:

1. It came as a reaction against the natural school of law which believed that there are
certain principles that are universally applicable without taking into consideration any
social, historical or any other factors.
2. It also came as a reaction against the positivist school of law which believed that law
is created by the sovereign and the people are bound to obey the laws even if the law
made is oppressive.

Basic principles of Historical school of law

1. It views the law as a legacy of the past and the product of customs, traditions, and
beliefs prevalent in different communities.
2. It views the law as biological growth, not an arbitrary, fanciful and artificial creation.
3. Law is the abstract set of rules imposed on society but has deep roots in social,
economic factors and the attitude of its past and present members of its society.
4. Law is not of universal validity or application. Each community develops its own
legal habits, as it has its peculiar language, manners, and constitution.

    

Von Savigny

Savigny was a German philosopher who is considered to be one of the founding fathers of the
Historical school of law. According to him, the law is the product of people’s life and it is a
manifestation of its spirit. Law has its source in the general consciousness of the people. He
termed this as Volksgeist.
Savigny’s Concept of Volkgeist

According to Savigny, the nature of any particular system of law was the reflection of the spirit
of the people who evolved it. This was characterized as the Volksgeist, hence in simple terms,
Volksgeist means the general or common consciousness of the people and manifestation of their
spirit. The basis of the origin of law is to be found in Volksgeist which means people’s
consciousness or will and consists of traditions, habits, and beliefs of the people.

Savigny’s central idea was that law is an expression of the will of the people, it doesn’t come
from deliberate legislation but arises as a gradual development of common consciousness of the
nation. The essence of Savigny’s Volksgeist was that a nation’s legal system is greatly
influenced by the historical culture and traditions of the people and the growth of law is to be
located in their popular acceptance. According to Savigny law should always conform to the
popular consciousness i.e Volksgeist, therefore customs and historical tradition as a source of
law not precede legislation but also is superior to it.

Savigny felt that “a proper code of law could only be an organic system based on the true
fundamental principles of the law as they have developed over time”. Savigny’s method stated
that law is the product of Volksgeist embodying the whole history of a nation reflecting inner
convictions that are rooted in society’s common experience. The Volksgeist derives the law to
slowly develop over the course of history, thus according to Savigny a thorough understanding
of the history of people is necessary for studying the law accurately.

“Law is like a language, it has a national character”

In Savigny’s understanding in all societies, the law is established like a language. These laws are
stamped with a national character. These are the natural manifestations of popular life and by no
means a product of man’s free will. Law, language, customs, and government has no separate
existence. There is only one force that is the people and they underline all these institutions. Thus
“law is like a language which develops with the life of people”.
“Early development of law is spontaneous later on it is developed by jurists”

About the development of law Savigny says that in early stages law develops spontaneously
according to the principles of internal necessity. Later when a society has reached a certain level
of civilization these are taken up by specialists, jurists, and scientists under whom these laws
become much richer in ideas and more complete and technical. Therefore the law has assumed a
double role on the one side it is the general national life on the other side it is the distinct science
for jurists.

Summary of Savigny’s Theory

1. The law is a matter of unconscious and organic growth, therefore the law is found and
not made.

1. Law is not universal in its nature. Like language, it varies with people and age.
2. Customs not only precedes legislation but it is superior to it. Law should always
conform to the popular consciousness.
3. As law grows into complexity, the common consciousness is represented by lawyers
who formulate legal principles.

Savigny’s Contribution to Historical School of law

1. Savigny’s theory came as a powerful reaction against rationalism and principles of

natural law. The idea of his theory that the will of the people is the ultimate source of
law negated the conception of the unitary sovereign whose command is law.
2. The great truth that the theory of Volksgeist contains is that a nation’s legal system is
influenced by the culture and character of the people, this thesis in this respect still
substantially holds good.
3. One of the major contributions of Savigny was that it influenced many jurists. It was
only after Savigny that the value of the historical method was fully understood. His
method was not only followed in Germany but it was also followed by Maine in
 England. Savigny’s theory traced the course of the evolution of law in various
societies.
4. Savigny’s theory lays the seeds for the development of sociological and evolutionary
theories. The view that law is closely connected with people is one of the main
principles of the sociological and evolutionary theory. Therefore Savigny is called by
some as “Darwinian before Darwin and sociologist before sociologists”.

Criticism of Savigny’s Theory

Inconsistency in the theory

He emphasized the national character of law but at the same time, he recommended a method by
which the Roman law could be adapted to modern conditions and advocated for the acceptance
of Roman law as the law of Germany. Savigny, on the one hand, asserted that the origin of law is
in the popular consciousness but he also argued that some principles of Roman law were
universally applicable.

Volksgeist not the exclusive source of law

Savigny was of the view that people’s consciousness is the most important source of law he also
went on saying that it precedes all other sources of law which are not true always. Sometimes a
country might blindly adopt a particular law suiting their societies, sometimes a single
personality influences lawmaking in the country. There are various sources of law that have no
connection with people’s consciousness or their will.

Customs not always based on popular consciousness

Savigny advocates that customs are based on the popular consciousness of the community as a
whole which is not true in all cases in some cases customs are adopted due to imitation and not
because it is right or any conviction of the community to follow it. Sometimes customs
completely opposed to each other exist in different parts of the same country which can not be
said to be reflecting the true spirit of people.

Juristic Pessimism

According to Savigny legislation made must accord with popular consciousness, however, such a
view is not popular among modern societies. It is rightly said that the legal process can not be
made to compromise the abuse just because people are accustomed to it.

Henry Maine

Maine made a comparative study of the legal institution of various communities, his method was
a great improvement upon the historical school and yielded fruitful results.

According to Maine law develops through stages. There are 4 stages to the development of law-

Law made by ruler under divine inspiration

Under the first stage law is made by the ruler, he pronounces law in the form of commands. The
ruler is supposed to be acting on behalf of god and it is believed that all the commands issued by
the king have a divine sanction.

Customary law

In the second stage, the commands crystallize into customary law.

Knowledge of the law in the hands of the priest

In the third stage, the knowledge and administration of law go into the hands of the minority,
usually of religious nature, because the original lawmakers have lost their power. This is the
third stage.
Codification

The last stage is the codification stage, in this stage, all the earlier laws which were promulgated
are now codified.

Contribution of Henry Maine to Historical school

Improved upon the theory of historical school

Maine’s theory is very much balanced as compared to Savigny’s theory as Savigny explained the
relation between community and law but Maine went on further to point out the link between the
development of both and purged out the exaggerations which Savigny had made.

Importance is given to legislation

One difference which can be noted in Maine’s theory from Savigny’s theory is that Maine
recognized the importance of legislation but Savigny did not. Unlike Savigny who used the past
to understand the law in the present and to determine the law for future Maine used the study of
legal history mostly to understand the past but not to determine the future.

Inspired the later jurist

Maine’s theory preaches a belief in progress and it contained the seeds for the development of
the sociological theory of law.

Conclusion

This implication of historical school in terms of approach to law has been far-reaching. Some of
the practical contributions of the historical school have had a long-lasting effect. It provided a
great stimulus to the historical study of law and legal institution which has ingrained a sense of
historical perspective. It highlighted the perils of an over-hasty legislative experiment and has
taught a lesson that development should flow, in some spheres at any rate, within the channels of
tradition. It also tried to show some connection between cultural evolution and some parts of the
law, and the need to look into the past in order to get a proper understanding of the law in
modern times.