Historical jurisprudence examines the manner, the circumstances and the factors operating in the process of the evolution of law.
The focus lies upon determining the racial, ethnic or linguistic traits of law and how they are imbibed in the culture and heritage of a particular community. The foundation of historical jurisprudence was laid down by Montesquieu in his classic work ‘ Spirit of laws’ published in 1748. He attributed evolution and development of law to the cause and effect in given social surroundings and biological environment. He laid down the foundation of comparative and sociological jurisprudence as opposed to natural law.
Savigny was the exponent of historical jurisprudence and is considered to be its propounder. He gave the revolutionary process of law even before Darwin gave his theory of evolution in biological science. Hence, he came to be known as the Darwinian before Darwin by Dr. Allen. His theory evoked mixed reactions in inspiring people to fight foreign domination as well as encouraging disastrous fascist regimes in Italy and Germany.
Rooting from the belief that all law is the manifestation of common consciousness of the people which grows with the growth and strengthens with the strength of people and dies away as the nation loses its nationality. Savigny strongly opposes the unreal, imaginary and unhistorical principles of natural law and the ideas of liberty, equality and fraternity because of Napoleon’s attempt to bring Germany under French political regime.
In Savigny’s View codification of German law was not desirable in the 18th century since a law made without taking into consideration the past historical culture and tradition of the community is likely to create more confusion than solving the problems because law is not an artificial, lifeless, mechanical device. The origin of law lies within the popular spirit of people that Savigny calls ‘Volkgeist’.
Sir Henry Maine’s contribution to historical jurisprudence is so great that he is called the ‘Social Darwinist’. Through his comparative research, he was able to bring commonality between the development process of law and other social institutions in almost all ancient societies belonging to Hindu, Roman, Anglo-Saxon, Hebrew and German communities. Mostly these followed a patriarchal pattern.
It was due to kinship namely blood relationship with the family that a person acquired status. According to Maine, pater-familia constituted the lowest unit of primitive communities. A few families formed a family group and further a tribe. A collection of tribes form a community termed as common wealth. With time the institution of pater familia withered away and the rights and duties were dependent on individual contracts. Further individual freedom by Bentham paved way for freedom in various spheres of life that struck a blow to the notion of status as the basis of law.
The spectacular change in the Indian laws consequent to the transition from British colonial rule to the independence aptly shows the movement of Indian society from status to contract. The essence is that there has been a gradual dissolution of family dependency and growth of individual freedom in its place.
However, a reversal of trend could be observed owing to rising problems of industrialisation, poverty, hunger, ignorance, disease, etc. An increase in the role of state was called for and became a regulator to secure a social order based on justice, equality, liberty and fraternity. The change in the social construct of the society with time has resulted in the evolution of law which is evident taking into consideration the historical study of the same.
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