An Overview of the Historical School of Jurisprudence

An Overview of the Historical School of Jurisprudence by Opeyemi Adesegun

The Historical school of Jurisprudence deal with the general principles governing the origin and development of law and also the development, evolutions of the legal conceptions and principles found in the philosophy of law. According to the historical school what the law is, is rooted in the culture of the people, their jurisprudence were reaction to the natural law thinking of the 18th century. The school drew heavily on the views and teachings of Herder Hegel, bin Savigny Maine.

Herder was the most articulate, formidable and influential inspirer of the German school of Jurisprudence. He found that Nations possess their own unique character and quality but are in no way intrinsically superior to others and any idea of a general command of universal natural law not inimical to the free development of individual national spirit but also bound to lead the imposition of unhealthy and strangulation uniformity.

However, we can depict the postulates of the sociological school from the writings of Fredrich von savigny He asserted the following;

(1) All over the world, each community, society or group of people are bound together as one by a spirit of the people or volkgeist as an identity and which makes them distinct from another group of people. 

2. The law is evolutionary and it evolves over time from history ,customs and ways of life of the people this promoting stability In society instead of enacting law that are not rooted in history and precedent of the people and which can lead to unpredictable results ,radical change and even revolution. 

3. That to make laws for the people, the law maker should understand the history ,antecedent ,traditions and way of life of the people and the idea of what is right or wrong, fair just and what they need as a society .

(4) That for particular law to be valid in a given society, the law must take into and reflect the history and way of life of the people.

(5).That for one to understand law of any people one should study the history and past history, determined their present law, meaning law should be based on the past history of the people.

(6) That to correctly make a law for a society the lawmaker should also look back into the past history rather than just looking into future 

(7) That laws of a given people grows and develop with the people and the law is civilised as the people becomes civil and reasonable.

(8) That law should be allowed to develop progressively from primitive age ,archaic or customary law to modern democratic and reasonable justifiable laws.

Read: How to Legally own Shares in a Nigerian Company

Historical Jurisprudence, identified by law with the consciousness, or spirit of a specific people.

According to Friedrich Karl Von Savigny, it's central idea was that a nation's customary law is it's truly living law and that the task of jurisprudence is to uncover the law.

Law is "found" by the jurist and not "made" by the state or it's organs.

According to Savigny, a legal system of necessity develops in response to the people's national spirit or "volkgeist" which he describes as "a unique ultimate and often mystical reality" which is inseparably linked to the biology trait of the people. Savigny's view is that law is born with the nation, grows,matures and declines with it, and automatically dies with it. Savigny also explained that legal development passes through the early stage of unwritten custom, the codification of those customs and, lastly, purposeful legislation. The evolution of law is equally tied to the people’s language and the totality of its beliefs system. 

However, as the law becomes more complex, it is easier to lose contact with customs or the volkgeist. The reasons for this are two- fold – division of functions and classes, and the technicalities of the law. On the second reason, Elegido suggests that there is no indigenous comparator for such legal concepts as, for example, CIF contracts or land registration. On the fate of legislation in a State, Savigny states that legislation is of subsidiary importance in legal development. According to him, ‘living law’ emerges neither from the commands of the sovereign nor from the arbitrary will of a legislator but from the people. 

Read: A Legal Perspective to Foreign Participation in the Nigerian Business Sector

In this regard, Savigny states that legislation would be effective only when its contents reflect the values and virtues of the people’s customs. It should be recalled that Savigny said this despite the fact that he was the head of the Prussian Department for the Revision of Statutes.

You should contrast Savigny’s worldview with Austin’s command theory which ties legal development to the uncommanded commander. Perhaps, because he was a scholar of classical Roman law, he relied on Roman law for guidance in his exposition of the legal path that was befitting his country. To him, Roman law seems to have ‘eternal significance’ for the intellectual underpinning of the volksgeist. For example, Savigny’s history of Roman Law in the Middle Ages (1831) suggests that the existence of concepts borders on the ‘nature of things,’ or natural law. His conclusion is that since custom not only precedes legislation but is at the same time superior to it.

Sociological School of Jurisprudence emerged as a result of synthesis of various touristic thoughts. This school considered law as a social phenomenon. The main concern of sociological jurists is to study the effect of law and society of each other. They treat law as an instrument of social progress.

Roscoe Pound – who was a dean in Harvard Law School – is known to have been the most influential proponent of the American Sociological jurisprudence. He saw law as a social institution created and designed to satisfy human (individual and social) wants. He agonized over the fact that traditional scholarship focused almost exclusively on the law in the textbooks to the detriment of the law in action. Law in action refers to the law that actually reflects the current behaviour of the people. In other words, he was of the view that the society should be the focal point of law and legal development, that the social mass must be able to influence the law that regulates their behaviour. This approach has the potential to, in the long run, eliminate unjust laws.

 Essential features of the legal order were the securing and protection of various (often competing) interests in the society. He dwelt much on interests. In his Outlines of Lectures on Jurisprudence (1943), he defined interest as: a demand or expectation which human beings either individually or in groups, or associations or relations, seek to satisfy, of which, therefore, the adjustment of human relations and ordering of human behaviour through the force of a politically organized society must take account. Note that legal protection of interest is usually expressed by conferring the status of a legal right on it. He identified and classified interests into three groups – individual interests, public interests, and social interests. 

With the array of interests in a society, it is only a matter of course that contention, conflicts and controversies will arise. How then does Pound expect these interests to harmoniously exist in the society? His response is that law is really about reconciling, harmonising, or compromising these conflicting interests either through securing them directly and immediately or through securing certain individual interests so as to give effect to the greatest number of interests, or to the interests that weigh most in our civilisation with the least sacrifice of other interests. All he appeared to be saying is if all the interests cannot be enforced then most of the interests should be enforced.

Alternatively, certain interests must be prioritized over others and enforced with minimal collateral damage to other non-priority interests. Pound was of the opinion that the concern of the law is to satisfy as many interests as possible and to resolve any conflicts amongst the categories of interests he had identified. He used ‘social engineering’ as a metaphor. According to him, law is an instrument of social engineering, for balancing competing individual, public and social interests within the society. In doing so, Pound argued that the tools of rules, principles, conceptions and standards must be employed. 

As society progresses, Pound noted that ‘new interests’ will emerge or evolve. Notice thatt international human rights law has witnessed the evolution of new generational human rights in addition to the traditional first and second generational rights. Recognition of such new interests would be realised subsequent to their being tested by reference to ‘jural postulates’ of a civilised society. Those postulates embody societal values. Such reference would enable legislators to consider possible modification of values through legislative reforms. According to Pound, pursuant to the postulates, the citizens in a civilised society are entitled to assume:-

a. That others will commit no intentional aggression upon them; 

b. That they may control for beneficial purposes what they have discovered, created or acquired; 

c. That promises will be carried out in good faith and that unreasonable and unjust enrichment will be prevented as far as possible;

d. That persons engaged in a course of conduct will act with due care so as not to createn ureasonable risk of injury to others; 

e. That citizens shall be entitled to assume that the burdens incident to social life shall be borne by society; and

f. That, as a minimum matter, ‘a standard human life’ shall be assured to every citizen.

Pound’s approach was for a functional approach to law. Also, his approach harmonizes with that of the utilitarian school which propounds the greatest happiness of the greatest number of people. All he was mostly concerned about was the need for the legal order to influence societal needs so that the law would not appear foreign or alien to the people. He was, therefore, desirous of bridging the gap between the law in textbooks and the law in action.

The Historical School believe that law is made from people according to their changing needs. Habits and customs are the main sources of the Historical School of Jurisprudence. According to Dias, Historical school arose as a reaction against the natural law theories.

The reasons for the emergence of this school are:

It came as a reaction to the natural school of law.

Natural school of law believes that the law is originated from some divine power. Natural law is also called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality and intention of God. Indian constitution has some relevance of the natural law in its articles.

Historical school of Jurisprudence focuses on the formation of law by people not by some divine origin.

The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments.

The sociological school flourished in the 1920s and 1930s as a reaction to the historical school. Sociologists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current. The social context of law was more important to sociologists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, sociologists observed that judges had their own beliefs, operated in a social way.

0/Post a Comment/Comments