Schools of Jurisprudence - 2 | Jurisprudence - CLAT PG PDF Download

Historical School

The Historical School of jurisprudence focuses on the origin and development of legal principles, reacting against theories like natural law and analytical legal positivism.

Montesquieu

• Montesquieu is considered the pioneer of the "Historical Method" in law. He analyzed the laws of different societies and concluded that laws are shaped by factors such as climate, local conditions, chance, or deception. His idea that laws must adapt to the needs of their time and place laid the groundwork for many later legal theories.

F. K. Von Savigny (1779-1861)

• Founder of Historical School: Savigny is recognized as the founder of the Historical School in Europe, emphasizing the importance of historical context in legal development.
• Law and Society: He viewed law as a product of societal evolution, warning that reforms disrupting a nation's continuity are likely to fail.
• Volksgeist: Savigny introduced the concept of Volksgeist, the idea that law reflects the spirit of the people. He argued that law should evolve from the customs and historical circumstances of a society.
• Critique of Natural Law: He rejected both natural law and positive law theories, advocating for a view of law as deeply rooted in culture and society.
• Nation as Organism: Savigny likened a nation to a living organism, with law maturing and changing alongside national identity.
• Criticism of Volksgeist: While influential, his idea of Volksgeist faced criticism for its vagueness and overextension. Some argued that it was a reflection of the nationalistic sentiment of his time.
• Legacy: Savigny is celebrated as a key figure in modern jurisprudence, with his work marking the beginning of contemporary legal thought.

Sir Henry Maine (1822-1888)

• Development of Primitive Societies: Maine analyzed the evolution of legal systems in primitive societies and identified three main agents of legal development:
• Legal Fiction: Maine discussed the concept of legal fiction, where the law is adjusted to meet contemporary needs while maintaining an appearance of consistency. He described legal fiction as an assumption that conceals changes in the law's application despite unchanged wording.
• Equity: Equity serves to modify the law, emphasizing principles considered more sacred than those of the original law.
• Legislation: Over time, people recognized that law could be reformed through explicit declarations of intent and the enactment of legal codes, a process known as legislation.

Estimate of Historical School

• The Historical School emphasizes that law cannot be understood in isolation from its social context. It prioritizes factual analysis over theoretical speculation.
• While the Historical School focuses on the evolution of law, it is important to note that "evolution" does not imply "progress."
• Some jurists believe that the Historical School's significance lies in its provision of the historical context of a law or legal concept to aid in interpretation.
• If the Historical School fails to provide this historical aspect, it ceases to be regarded as a juristic school.

Comparison between Historical School and Analytical School

• Analytical School: Studies legal concepts as they exist in the present.
• Historical School: Focuses on the historical development of important legal concepts.
• Scope: Analytical School is confined to mature legal systems, while Historical School extends to primitive legal institutions.
• Creation of Law: Analytical School believes law is a creation of man; Historical School sees law as self-existent.
• State and Law: Analytical School asserts law is created by the State; Historical School argues law existed before the State.
• Enforcement: Analytical School views enforcement by the sovereign as the hallmark of law; Historical School disagrees.
• Custom: Historical School regards custom as a formal source of law, unlike Analytical School.
• Interpretation: Historical School emphasizes the historical aspect in law interpretation, whereas Analytical School focuses on textual contents.

Distinction between Legal History and Historical School

• Legal History: Studies the origin and development of an entire legal system.
• Historical School: Focuses on the history of legal principles within a legal system, not the entire system.
• Both disciplines are equally important in the study of law.

Sociological School

The sociological school of jurisprudence began to gain prominence in the early 20th century, focusing on the societal circumstances that give rise to legal institutions and their subsequent scope and application. This school is indifferent to the ethical aspects of law. Let's explore some of the key figures in sociological jurisprudence.

Duguit (1859-1928)

• Duguit challenged traditional notions of State, sovereignty, and law, emphasizing the social perspective.
• He argued that social interdependence is a fundamental reality, shaped by technological and scientific advancements.
• Duguit believed that individuals could no longer survive independently and that social solidarity is crucial for human existence.
• The principle of "social solidarity" guides human activities and organizations, with the State serving to protect this principle.
• Duguit asserted that individuals should act in ways that promote social solidarity, which defines the State's powers.

Rudolf von Ihering (1818-1898)

• Ihering examined the origins of Roman law and jurisprudence, highlighting the role of 'purpose' in guiding human will.
• He believed that law aims to protect interests, which involve the 'pursuit of pleasure and avoidance of pain.'
• Individual interests are influenced by social factors, and law seeks to ensure individual well-being for the collective good.
• Ihering acknowledged that law is not the sole means of regulating society and that certain aspects do not require legal intervention.
• His recognition of the coercive nature of law reflects a modern approach to legal study.

Roscoe Pound (1870-1964)

• Pound's contributions to sociological jurisprudence stem from his engagement with sociological and philosophical challenges and his observations of American courts.
• He is associated with the functional attitude in jurisprudence, emphasizing the functional aspects and workings of law over abstract concepts.
• Pound believed that sociological jurisprudence should consider social facts when formulating, interpreting, and applying laws.

Theory of Social Engineering

Private Interests
These interests pertain to an individual's "interests of personality," including:

• Physical integrity
• Reputation
• Freedom of volition
• Freedom of conscience

Public Interests
These interests are asserted by individuals involved in politics or viewed from a political perspective.

Social Interests
These interests relate to an individual's social life and are generalized as the interests of social groups. They may include:

• General security
• Security of social institutions
• General morals
• Conservation of social resources
• General progress
• Individual life

Conclusion

Sociological jurisprudence has advocated for field studies to assess the relationship between law and society, emphasizing empirical evaluation over abstract ideas. Critics argue that this school teaches a broad range of topics except law itself. However, its significance in understanding the evolution of law, the role of human interest, and social interest in legal systems is undeniable.