HISTORICAL
SCHOOL – SAVIGNY & MAINE
·
SAVIGNY
(1779–1861)
Savigny is regarded as the founder of the Historical
School. He emphasised that the muddled &
outmoded nature of a legal system was usually due to a failure to understand
its history & evolution. The
core of his thesis is found in his essay ‘Vocation
of our times for Legislation & Jurisprudence’ 1814.
Historical
School was a reaction against priori notion of natural philosophy, i.e., unhistorical
assumptions of the natural law & rationalism (as the French
Revolution instead of fulfilling the dreams of the people disappointed them). According to Savigny, the source of law was
the general
consciousness of the people and cannot be borrowed from outside. He believed that law has a national character. A nation, to him, meant only a community of
people linked together by historical, geographical & cultural ties. Law grows with the growth & strengthens with
the strength of the people & finally dies away as the nation loses its
nationality. He contended that
it is the broad principles of the system that r to be found in the spirit of
the people & they manifest themselves in customary rules. Law is a matter of unconscious & organic growth
(i.e., not made deliberately). Law is found
& not made. Further, law is not universal in nature. Like language, it varies with people & age. Law is a product of the people’s life. Law has its source in the general or common
consciousness (Volksgeist) of the people. Lawyers remain only the mouthpiece
of popular consciousness & their work is to shape the law accordingly. Any law-making should, therefore, follow the
course of historical development. Custom not
only precedes legislation, but it is superior to it. Law should always conform to the popular consciousness, i.e., Volksgeist. Savigny
opposed
the codification of law while pointing out the defects of contemporary
codes; codification could never cater exhaustively for all problems & it
would highlight the loopholes & weakness of the law. Codification, in Savigny’s view, should be
preceded by an organic, progressive, scientific study of the law. Hence, he never opposed codification of
German law for all times to come.
Friedmann
summarised the features of Savigny’s theory as follows :-
(i) Law is discovered or found & can’t be
artificially invented or made;
(ii) Law is
fundamentally organic & developmental in character which can be
found both in primitive & modern communities in varying forms of popular
consciousness, beliefs, customs, traditions, habits & practices which
finally contribute to people’s law or Volksgeist.
(iii) Law is sui
generis. It is peculiar to a
people like its language so can’t be of universal validity.
Savigny’s revolutionary
contribution is highly appreciated by jurists all over the world. However, the only defect with the theory was
that it exaggerated that aspect. He
ruined his theory by its overemphasis.
Another criticism is that he was so occupied with the source of law that
he almost forgot the stream.
Criticisms of Savigny’s Theory :
(i) Volksgeist not the exclusive source of law
: There r many technical legal rules
which never existed in nor has any connection with popular consciousness.
(ii) Inconsistency in the theory : He emphasised national character of law,
but at the same time recommended a
method by which the Roman law could be adopted to modern conditions & advocated for the acceptance of Roman law as
the law of Germany. However, this proposition fails to show how an alien system was better able to
express it than the indigenous law.
(iii) Customs not always based on popular consciousness
: Many customs originated only for the
convenience of a powerful minority such as slavery. Similarly, customs completely opposed to each
other exist in different parts of the same country (local customs).
(iv) Limitations of Volksgeist : In modern times, function of Volksgeist is
that of modifying & adapting rather than creating. Today,
it is of little or no relevance.
(v) Other factors : Savigny ignored other
factors that influence law such as he forgot the stream. He overlooked the forces & factors which
influence & determine the growth of law, e.g., law relating to trade
unions.
(vi) Juristic pessimism : His contention was that legislation should conform to existing
traditional law or it is doomed, which view will not find favour today.
Applicability of Savingy’s Theory to India
:
(i) Federal Constitution : In a federal Constitution (there is a
division of powers b/w the federal/Central & the State Govts. & both r
independent in their own spheres), law
lacks a ‘national’ character as envisaged by Savigny.
(ii) Source of Indian Constitution : The
framers of Indian Constitution incorporated various provisions of the
Constitutions of world in order to avoid defects & loopholes that might
come in future such as (i) Chapter on F.R.s – U.S.A.; (ii) Parliamentary System
of Govt. – U.K.; (iii) Directive Principles – Ireland; & (iv) Emergency Provisions
– Germany. Since it has many features borrowed from other nations, it does not fit properly in the Savigny’s
scheme.
(iii) Common law in India : The process of reception of English law through the agency of the
judiciary continued unabated – law of
torts, doctrine of cruelty, etc.
(iv) Deliberate legislation–making : In modern times, many new doctrines don’t
always reflect the popular consciousness, e.g., reservations for backward
classes, uniform civil code, etc.
(v) Judicial activism : Savigny ignored the creative function of the judges. Judge-made
law (precedents) or judicial legislation is a common feature today.
Savigny’s method of the historical school
was followed in England by Sir Henry Maine, Lord Bryce & many others
who made studies of various legal systems on historical lines. Maine
published his first work ‘Ancient Law’ in
1861. This is considered to be the
manifesto of his lifework in which he stated his general doctrines. He also wrote Village Communities (1871), Early
History of Institutions (1875) & Dissertations
of Early Law and Custom (1883). He
was law member in the Council of the Governor–General of India b/w 1861 & 1869,
which provided him an opportunity for the study of Indian legal system.
Maine inaugurated both comparative & anthropological
approaches to the study of law. Unlike Savigny,
Maine
favoured legislation & codification, he did not share Savigny’s mystique of
the Volksgeist & he used the study of legal history mostly to
understand the past & not to determine the future course & standards.
Maine classified the development of law in
the following stages :
(i) In the beginning, law was made by the commands of the ruler
believed to be acting under the divine inspiration, e.g., Themistes of ancient Greek. When a king decided a dispute by a sentence,
the judgment was assumed to be the result of direct inspiration. The king was not the maker of law, but merely
an executor of judgments of the God.
(ii) In the second stage, the commands
crystallise into customary law. Customs seem to have succeeded to the
prerogatives of the king. Hwr, they don’t appear to hv pretended to
direct inspiration for each sentence & the progress of thought no longer
permits the solution of a particular dispute to be explained by supposing an
extra–human interposition.
(iii) In the third stage, the knowledge & administration of
customs goes into the hands of a minority, due to the weakening of the power of the original law-makers, usually of a
religious nature, e.g. priests. The ruler is superseded by a minority who
obtain control over the law.
(iv) In the fourth stage, the law is
promulgated in the form of a code.
Static & Progressive Societies :
The growth of
law was on a uniform basis amongst the primitive societies upto a certain stage
of development. The societies, which do not
progress beyond the fourth stage & close the era of spontaneous legal
development, r static societies. The
stationary/static societies don’t move forward beyond the era of the codes.
The
societies, which go on developing their law by new methods, r called
progressive societies.
They develop their law with the help of three
instruments / methods, namely, legal fiction,
equity & legislation, in order to make
law harmonious to social needs & change.
(i) By use
of legal fictions, law is altered to changing needs of the society, while it is
pretended that it remains what it was. Thus, legal fictions change the law according
to the changing needs of the society without making any change in the letter of
law. He thought fictions should be
abandoned in a society because they made the law more difficult to understand
& harmonise legal order.
(ii) Equity
is used to modify the law as a set of principles invested with higher sacredness
than those of original law. Equity came
to remove the rigidity in law & to remove injustice, delay & other
inconveniences. According to Maine, equity is a body of rules existing by the
side of the original civil law & founded on distinct principles.
(iii) The
final stage comes with the legislation, which is the last effective
instrumentality of quick social reform. Law can be enacted by explicit declarations
of intention incorporated in the language of legal enactments. Maine regarded it as the most desirable method of
legal change.
In early societies–both ‘static’ & ‘progressive’,
the legal condition of the individual is determined by status, i.e., his claims, duties, etc. are determined by law. The
march of progressive societies witnessed the disintegration of status & the
determination of legal condition of the individual by free negotiation on his
part. The development of societies
was summed up by Maine in the following famous phrase, “If we employ status to signify the
conditions only & avoid applying the term to said conditions, we may say
that the movement of the progressive
societies has hitherto been a movement from status to contract”.
From a condition of society, in which all the relations of persons wr summed
up in the relation of family, we
seemed to hv steadily moved towards a phase of social order in which all these
relations arose from free agreement of individuals.
According to Maine, status is a fixed condition in which an
individual finds himself without reference to his will and of which he can’t
divest himself by his own efforts.
The
group, not the individual, is the primary unit of social life. With
the progress of civilisation, this condition gradually gives way to a social
system based on contract. This is the
age of the standardised contract
& of collective
bargaining (trade unions, business associations, etc.). Even the contracts, which an individual
enters into in everyday life, have been standardised as contract for water,
electricity or contract for a carriage with a railway company. The freedom of contract is, thus, being curtailed
every day.
Thus, Maine’s theory of ‘Status to Contract’
does not have much force in the modern age. In India, the policy of ‘mixed economy’ has
assumed greater control over individual liberty & freedom. The State can impose reasonable restrictions in
the interest of the public {Art. 19(6)}. Pollock says that this theory is limited only
to laws of property because personal relations like marriage, minor’s capacity,
etc. are still matters of status & not of contract.
However, in one
sense, Maine’s theory still holds good.
The trend of legislation in undeveloped or developing countries is to
remove personal disabilities, which arise due to membership of a class
(status).
On the whole, Maine presented a balanced view of history of law. Savigny
had explained the relation b/w community & law, but Maine went further &
pointed out the link b/w the developments of both. His
conclusions are based on comparative study of different systems & hence
their value is greater than other studies based on Roman Law exclusively. Influenced
Friedmann, Dicey, etc.
In the words of Dr. Friedmann: It can be concluded that the contribution of
Maine is an important piece of comparative legal research to a legal theory
inspired by principles of historical evolution. His great contribution to legal theory
specially lies in the combination of what is best in the theories of both
Montesquieu & Savigny. Maine’s theory avoids the danger of an
excessive disintegration of theoretical laws of legal evolution. It is also free from the abstract &
unreal romanticism, unlike Savigny’s theory.
·
Difference b/w Historical & Analytical
School :
S.No.
|
Analytical School
|
Historical School
|
1.
|
Law is the
command of the sovereign (created by sovereign).
|
Law is found &
not made.
|
2.
|
Law is
enforced by the sovereign.
|
Law is
independent of political authority & its enforcement.
|
3.
|
Example of typical
law is statute. Custom isn’t law,
until its validity has been established by a judicial decision/by an Act of
legislature.
|
Example of
typical law is custom. Custom is law
by itself. It does not require State
recognition to become a law.
|
4.
|
Force of
politically organised society is the basis of law.
|
Law rests on
the social pressure.
|
5.
|
Judges find
themselves to interpretation of statute.
|
Judges to
consider only history of legislation.
|
6.
|
Applicable to
developed countries – matured legal systems.
|
Applicable to
developing countries – primitive legal institutions of society.
|
