HISTORICAL SCHOOL OF JURISPRUDENCE

History is a record of past events. As man has a past so does law. The importance of historical school
of jurisprudence cannot be overemphasized. Apart from standing in opposition to the natural law
school, the historical school is unique for its emphasis of the relevance of generations past to the
present and the future.

Central Idea:
Historical jurisprudence deals with the scientific study of evolution and development of the
principles of law. It is a legal philosophy concerned with the history of the first principles and
conceptions of a legal system.

Scope of Historical jurisprudence

Historical jurisprudence provides answers of various following questions

1. What was the source of a particular principle of law

2. Where form it was derived.

3. What was its shape and scope in past

4. How and under what influences it came to develop and

5. Through what stages of evolution it passed to assume finally the shape in which it is final
today

Reasons for evolution:

1. It came as a reaction against natural law, which relied on reason as the basis of law and believed
that certain principles of universal application can be rationally derived without taking into
consideration social, historical and other factors.

2. It also came as a reaction against analytical positivism which constructed a soul-less barren
sovereign-made-coercive law devoid of moral and cultural values described by Prof. Hart as “gun-
men-situation”.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school. in 18th and 19th century, the
concept of individualism came into existence. Due to this concept the revolutions came like French
revolution, Russian revolution etc. At that time Soveging montasque, Barke, Hngo were the writers
who said that law is the general will of the people or law is based upon common people and the
feelings of the common people.

Von Savigny, a prominent German jurist through his concept of Volksgeist introduced a new
dimension in the legal arena. In fact, his historical school was anchored on the Volksgeist,

CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check that
what was the position of law in the ancient time. How and in what form law was prevailing in the
society? To find the solution of the questions the supporter of Historical school found that law is the
general consciousness of the common people or it is the free will of common people on which law
developed and converted into a set of form of law.

VS Legal History
Historical Jurisprudence constitutes the general portion of legal history and examines the manner or
growth of system”. It deals with the general principles governing the origin and development of law
and also the origin and development of legal conceptions and principles found in the philosophy of
law. It traces the growth of law from origin with a view to find out the origin of cur legal concepts and
the general course of the revolution. Historical jurisprudence should not however be confused with
legal history.
On the other hand legal history records the changes which have occurred in the development of law,
and deals with the historical background of particular law. Legal history is not critical and it main
function is to catalogue the development law, allotting to each phase its true position in the completed
narrative. It indicates the process of changes and is therefore descriptive.
Legal history deals with the historical background of particular law, for instance how and when the
penal code came to be passed is a matter of legal history. Similarly an investigation of how the
principles of hearsay evidence came to be evolved shall fall within the scope of legal history and, also
the study of Roman Law would also fall in the scope of legal history.

ETHICAL JURISPRUDENCE
According to the exponents of this school, legal philosophy must be based on
ethical values so as to motivate people for an up-right living. The science of
ethics deals with the principles of morality which moulds man’s conduct
enabling him to distinguish between right and. wrong and respect the rights
of others in order to maintain social harmony. According lo this school, the
purpose of law is to maintain law and order, in society and legal restrictions
can be justified only if they promote the freedom of individuals in society.
The ethical school of jurisprudence expounds the first principle of law as it
ought to be. It is neither concerned with the historical past, nor with the
analytical present, but with the future of law as it ought to be. The salient
features of the ethical jurisprudence may briefly be stated as follows :

(1) the concept of justice has a philosophical or ethical content and law and
justice are closely inter-related concepts. Law is a means to attain the ends
of justice. Thus, law Is only an instrument towards the fulfilment of the
objective of justice;

(2) ethical school of jurisprudence concerns itself with the manner in which
the law fulfils its purpose of attainment of justice;

(3) it seeks to differentiate between the spheres of law and justice;

(4) it attempts to highlight the ethical significance of legal conceptions.

The ethical of philosophical school considers law as the means by which

individual’s will is harmonised with the general will of the community. The
proximate object of jurisprudence is to secure liberty to the individual for the
attainment of human perfection. Thus, liberty is one of the essential pre-
requisites for the perfection of human personality. It is in this sense that
philosophical jurisprudence became the common ground of moral and legal
philosophy, and of ethics and jurisprudence.