CENTRAL TENETS OF HISTORICAL SCHOOL OF

JURISPRUDENCE AND ITS RELEVANCE IN

MODERN TIMES: A CRITICAL ANALYSIS

(Project Report)

Submitted To:

DR. KAUMUDHI CHALLA

Faculty Member, Department of Law

By

Moulik Shrivastava

B.A. LLB. (Hons.)

Semester V, Section C, Roll Number 86

Submitted On: September 03, 2019

Hidayatullah National Law University

Uparwara Post, Abhanpur, Atal Nagar– 492002(C.G)
 II

DECLARATION
I hereby declare that this research work titled “Central Tenets of Historical School of
Jurisprudence and its Relevance in Modern Times: A Critical Analysis” submitted to
HNLU, Raipur is my own work and represent my own ideas, and where others’ ideas or
words have been included, I have adequately cited and referenced the original sources. I also
declare that my work is in accordance with the all the said guidelines provided by the faculty.

Moulik Shrivastava
HNLU, Raipur
 III

CERTIFICATE

This is to certify that Mr. Moulik Shrivastava, a student of Hidayatullah National Law
University, has successfully completed the project work entitled “Central Tenets of
Historical School of Jurisprudence and its Relevance in Modern Times: A Critical
Analysis” as a part of the coursework requirement for the B. A. LL. B. (Hons.) program at the
Hidayatullah National Law University. It is an authentic work carried out by her under my
supervision and guidance.

To the best of my knowledge, the project has not been submitted to any other University /
Institute for the award of any degree.

Date: 03/09/2019
Moulik Shrivastava
Place: Hidayatullah National Law University, Atal Nagar

Dr. Kaumudhi Challa

Assistant Professor, Hidayatullah National Law University

 IV

ACKNOWLEDGEMENTS
I feel elated to work on the subject “Central Tenets of Historical School of Jurisprudence
and its Relevance in Modern Times: A Critical Analysis.” I want to take this chance to
express my profound feeling of appreciation towards my course educator, Dr. Kaumudhi
Challa, for giving me consistent direction and guidance over the span of the task.

I likewise want to thank the University for providing me with web and library services which
were necessary for research on the subject, and also memberships to online database and
diaries, which were instrumental in the completion of this analysis.

Moulik Shrivastava

HNLU, Raipur
 CONTENTS

DECLARATION ............................................................................................................................................................................... I

CERTIFICATE................................................................................................................................................................................ II

ACKNOWLEDGMENTS .............................................................................................................................................................. III

1. INTRODUCTION ...................................................................................................................................................................... 2

1.1 Concept of Historical School and Modern Jurisprudence ..................................................................................................... 2

1.2 Research Methodology.......................................................................................................................................................... 3

1.2.1 Research Problem .......................................................................................................................................................... 3

1.2.2 Rationale........................................................................................................................................................................ 3

1.2.3 Objectives ...................................................................................................................................................................... 3

1.2.4 Review of Literature ...................................................................................................................................................... 3

1.2.5 Hypothesis ..................................................................................................................................................................... 5

1.2.6 Concept of Study ........................................................................................................................................................... 5

1.2.7 Research Design ............................................................................................................................................................ 5

1.2.8 Sources of Data.............................................................................................................................................................. 6

1.2.9 Chapterization ............................................................................................................................................................... 6

1.2.10 Time Line .................................................................................................................................................................... 6

1.2.11 Limitation of the Study................................................................................................................................................ 6

1.2.12 Contribution of the Study ............................................................................................................................................ 7

2. HISTORICAL SCHOOL OF JURISPRUDENCE ................................................................................................................... 8

2.1 Historical Jurisprudence and Legal History ....................................................................................................................... 9

2.2 Reasons for the Origin of Historical School of Jurisprudence .............................................................................................. 9

3. JURISTS OF HISTORICAL SCHOOL OF JURISPRUDENCE .......................................................................................... 11

3.1 Montesquieu........................................................................................................................................................................ 11

3.2 Fredrick Karl Von

Savigny………………………………………………………………………………………………………………...…..11

3.3 Sir Henry Maine……………………………………………………………………………………………………….......13

 1

4. SUSTAINABILITY OF HISTORICAL SCHOOL OF JURISPRUDENCE WITH MODERN

TIMES………………………................................................................................................................................ .....................16

4.1 We Live in a Democratic Majority World………………………………………………………………………………...17

4.2 Modern Principles of Jurisprudence and its Instruments………………………………………………………………….17

4.2.1 Jallikattu Case (2014)………………………………………………………………………………………………...18

4.2.2 Sabrimala Case (2018)……………………………………………………………………………………………….18

MAJOR FINDINGS AND CONCLUSION................................................................................................................................ 19

BIBLIOGRAPHY ........................................................................................................................................................................................ 20
 2

1. INTRODUCTION
1.1 Concept of Historical Jurisprudence and the Modern World

Law is a very complex phenomenon. To define with substance what is law, what is its source and
nature, how it operate in the society and regulate the action of its members is not an easy task.
Every individual has its own understanding of law, for example, an ordinary citizen may think
that it is something which he must obey, a policemen or administrator may think that it is
something which gives him power to do certain things or actions and a lawyer may think that it is
something which is applied to settle the disputes between man and man, so it is difficult to have
a generalize view or an agreeable explanation of law.

Many jurists at different places and time have made their approaches to the study of law from
different angles. They have defined law, determined its sources and nature and discussed its
purpose and ends. For clarity and better understanding of their points, jurists are divided into
different schools on basis of their approaches to law. One of the approaches to the study of law is
historical school. The basic tenet of the school is that law in its essence is not something imposed
on a community from above or from without, but is an inherent part of its ongoing life, an
emanation of the spirit of the people. This school emerges as a reaction to analytical school and
natural law.

After the passage of time we have legal institutions like courts where judges sit to impart justice
on several matters, thus by way of legislations and judicial precedents the legal environment
expands in the modern times.

The project aims to analyze the historical school of jurisprudence and its applicability in the
current society and modern jurisprudence.
 3

1.2 Research Methodology

1.2.1 Research Problem

This project report aims at analyzing the historical school of jurisprudence by researching on
various learned philosophers of the time, in addition to this the report also tries to reckon the
relevance of those theories in modern times; in current practicality.

1.2.2. Rationale

The philosophy of law has always been dynamic in nature; time and again it has structured
various layers of definitions and theories over the subject matter. In the present era, various
jurists and thinkers have given modern interpretations that it has become pertinent for us to
determine the relevance of historical theories with the modern practicalities.

1.2.3. Objectives-

a) To study the Historical School of Jurisprudence

b) To analyze the concept of Modern Jurisprudence

c) To determine the relevance of Historical Jurisprudence with the modern

d) To draw a conclusion on the subject

1.2.4 Review of Literature-

1) Harold J. Berman; The Origins of Historical Jurisprudence; The Yale Law Journal; May 1994

In the seventeenth century, leading English jurists introduced into the Western legal tradition a
new philosophy of law, later called historical jurisprudence, which both competed with and
complemented the two major schools of law that had opposed each other in earlier centuries,
namely, natural law theory and legal positivism. The basic tenet of the historical school is that
 4

the primary source of the validity of law, including both its moral validity and its political
validity, is its historicity, reflected especially in the developing customs and ongoing traditions
of the community whose law it is. Historical experience is thought to have a normative
significance. This theory was adumbrated by Edward Coke, developed by John Selden, and
articulated by Matthew Hale, who integrated it with the two older theories. In the late eighteenth
and early nineteenth centuries, the three theories split apart and the historical school emerged as
an independent legal philosophy.

2) Brian Bix; Jurisprudence: Theory and Context; Seventh Edition; 2015

Jurisprudence is aimed at students new to the study of legal philosophy, also offering new ideas
and perspectives that will be of interest to established scholars. Bix seeks to explain the often
complex and difficult ideas in Jurisprudence clearly, but in a way that avoids distortion of the
ideas through over-simplification. As well as introducing the reader to the fundamental themes in
legal philosophy, it also describes and comments critically on the writing of the foremost legal
theorists.

3) Avtar Singh, Harpreet Kaur; Introduction to Jurisprudence; Fourth Edition; June 2013

This is a study of the first principles of law, as jurisprudence, as a subject, is often described.
Even the first principles of law have not remained static. The principles of law which occupy a
position of prime importance at one time may outlive their utility in the course of time and may
be replaced by some other new and up-coming principles or there may be an amalgam of the new
with the old. The present study contains all the outstanding features in which this subject is
usually cast. In addition, the work carries a separate presentation of schools and theories of law
with contribution from various authors and a critical examination of their merits. Some other
new features have also been added. They became necessary because of a serious change in the
role of law in human societies. The concept of the responsible state has brought into the field of
law many strategies to hold the state in a position of responsibility towards not only its own
citizens but also towards the global society. An all-round study from the juristic angle of the
functioning of the state became necessary. Some new principles have emerged and some existing
principles have found a new application in this respect. All aspects of developments in the field
of jurisprudence have been traced in the preparation of this brief study.
 5

4) Gary Minda; Postmodern Legal Movements: Law and Jurisprudence At Century’s End; NYU
Press; 1995

After several decades of interdisciplinary work in academic legal scholarship, it is impossible for
one not to notice how obscure theories of economics, sociology, philosophy, anthropology,
literary criticism and other fields have infected recent academic writing and thinking about law
and adjudication, or what is commonly understood as jurisprudence. Ever since the New Deal,
legal studies have become more sophisticated and more eclectic. This expanding eclecticism has
brought about sharp debate in jurisprudence. Diversity and fragmentation of jurisprudence have
been stimulated by a profession that has itself become splintered as a result of competition and
rivalry between new jurisprudential movements, five of which are the subject of this book: law
and economics, critical legal studies, feminist legal theory, law and literature and critical race
theory.

1.2.5. Hypothesis-

The applicability of historical school of jurisprudence is minimal in the modern times, since the
current era has established several institutions governing state and the laws within.

1.2.6 Concept of the Study-

Some of the most important concepts dealt with in the course of this research include:

Historical School of Jurisprudence- This school of jurisprudence suggests that law and society
are correlated, i.e. the lex loci shall change according to the changing needs of the society.
Customs, people and historical background of the state and its subjects shall help propounding
the law of the country.

Modern world of Jurisprudence- With the ever-changing nature of law, the modern jurists and
philosophers have developed & established various institutions like that of courts, where one can
set precedents that shall be followed and judges shall decide over matters disputing over justice.
 6

1.2.7. Nature of the Study-

The project is based on analytical method of research wherein first the study of Historical School
of Jurisprudence is elaborately laid out from primary sources of data like the available scientific
reports, journals, etc. And subsequently its relevance in modern times has been explained
through various land mark cases of Supreme Court.

1.2.8. Sources of Data-

Primary sources of data such as scientific journals and books along with legal sources including
but not limited to the Constitution of India, legislations, judicial decisions, statutes have been
used. Further, international conventions, foreign judgments and writings of distinguished jurists
on the theme have also been consulted.

1.2.9. Chapterization-

This research project is divided into four sections. The first section explains the concept and methodology
of schools of Jurisprudence while second section outlines the significance, origin and meaning of
historical school of jurisprudence. The third chapter aims at bringing out the founders and major
exponents of the historical jurisprudence, whereas the final chapter deals with drawing the relevance of
theories propounded by the historical jurists with the modern times.

1.2.10. Time Line-

Research on this project has been carried out from 22nd August to 2nd September, 2019.

1.2.11. Limitation of the Study-

The prime and foremost aim of the study is limited to the theories propounded by the late historical
philosophers of law and their point of views. The applicability of the same in current scenario has been
 7

sought as the peak of research, any further topic or sub-topic falling tangent to the study has not been
entertained.

1.2.12. Contribution of the Study-

This project report seeks to widen our parameters on the philosophy of law by connecting the historical
school of jurisprudence with the modern times. As the subject matter is dynamic, it is necessary to draw a
parallel to both the schools, historical and modern.
 8

2. HISTORICAL SCHOOL OF JURISPRUDENCE

In the words of Salmond, “That branch of legal philosophy which is termed historical
jurisprudence is the general portion of legal history. It bears the same relation of to legal
history at large as analytical jurisprudence bears the systematic exposition of the legal
system. It deals, in the first place, with the general principles governing the origin and
development of law, and with the influences that affect the law. It deals, in the second place,
with the origin and development of those legal conceptions and principles which are so
essential in their nature as to deserve a place in the philosophy of law- the same conceptions
and principles, that is to say, which are dealt with in another manner and from another point
of view by analytical jurisprudence. Historical jurisprudence is the history of the first
principles and conceptions of the legal system.”

The primary proposition of this school was that law has biological growth and it has not
evolved in an arbitrary and erratic manner. According to many of the exponents for the same,
they believe ‘laws are creation of climate and local situations’. The basic source of the
Historical School of Jurisprudence is the habits and custom of people which changes
according to their needs and requirement. It is also called the continental school of
Jurisprudence. This school rejects the ideas of formation of law by judges and the origin from
some divine relevance.

The assertion in the above statement has been supported by the Supreme Court of India in the
case of Byram Pestonji Gariwala v. Union of India1, wherein the words of Justice Thommen
are quoted below:

“Indian legal system is the product of history. It is rooted in our soil, nurtured and nourished
by our culture, languages and traditions, fostered and sharpened by our genius and quest for
social justice, reinforced by history and culture.”

1
AIR 1991 SC 2234 (2234)
 9

2.1. Historical Jurisprudence and Legal History

To many of us comprehending the above mentioned terminologies as similar, they are

distinct in their very approach towards the study of law. Legal history deals merely with the
factual narration of the development of law and various legal institutions of a community in
chronological order. Historical jurisprudence, on the other hand, proceeds to examine the
manner, circumstances and actors responsible for the growth of law and takes account of the
social forces operating in the process of the evolution of law. Both the studies are
indispensible for either, thus proving the symbiotic relation they share.

Legal history answers to the questions starting with ‘What?’, whereas historical
jurisprudence shall be responsible to answering the questions starting with ‘How? Why?’
This clearly lays down that legal history is study of something that has already been
established, and historical jurisprudence is the study of how the evolution of law has come to
that established point.

2.2. Reasons for the Origin of Historical School of Jurisprudence

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.
 10

 It opposes the ideology of the analytical school of jurisprudence.

Analytical school of jurisprudence is also called Austinian School. It is established by John

Austin. The subject matter of Analytical school of Jurisprudence is positive law. It focuses on
the origin of law the judges, state and legislators. Historical School laid emphasis on the
formation of law by people through customs and habits, not by the judges and superior
authority.
 11

3. JURISTS OF HISTORICAL SCHOOL OF

JURISPRUDENCE
Historical school of Jurisprudence argued that the law is the exaggerative form of social custom,
economic needs, conventions religious principles, and relations of the people with society. The
followers of this school argued that law is found not made. The historical school doesn’t believe
and support the idea of the natural school of law which believes that the origin of law is from
superior authority and have some divine relevance.

3.1. Montesquieu (1689-1755)

According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the
legal institution was Montesquieu. He laid the foundation of the historical school in France.
According to him, it is irrelevant to discuss whether the law is good or bad because the law
depends on social, political and environmental conditions prevailing in society. Montesquieu
concluded that the “law is the creation of the climate, local situation, accident or imposture”. He
was of the view that law must change according to changing needs of the society. He did not
establish any theory or philosophy of the relation between the law and society. He suggested that
the law should answer the needs of the place and should change according to time, place and
needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book, he
represents his beliefs in political Enlightenment ideas and suggests how the laws are required to
modify according to the needs of people and society.

3.2. Fredrick Karl Von Savigny (1779 – 1861)

Karl von Savigny never accepted the Positivist and the Naturalist propositions since in his candid
view law has a distinctive link with the people it governs. Law is not a written legislation
enacted by legislative arm of government but was found in the people’s national spirit. This is
what he called the “spirit of the people” and in German called the “Volksgeist”. He resisted
French Code and the drive towards codification of laws in his homeland Germany. His resistance
was however subtle rather than hard. He believed that attempt to codification of law was
premature and would be an obstacle to the natural development of law through the Volksgeist.
 12

But codification would be a proper course of action when experts (jurists, historians, linguists
and perhaps, judges) discovered, and were able to announce, that law resided in the collective
consciousness, only then will codification be allowed. This led to the continuous acceptance and
practice of German law in his country that lasted until 1900. However, later the Roman law was
accepted subject to some German conditions with the injection of core local values and norms.
At that same period of the reception of Roman law in Europe, Savigny devoted a part of his life
towards the study of Roman law. The hypothesis according to him is that every legislation
whether in Germany or in the United Kingdom has its roots to customs in a particular area. It is
after then that the law will obtain a juristic character and generally acceptable legal validity.
Savigny also sees a nation and its state as an organism which is born, it matures, declines and
dies. Law grows with the growth and strength with the strength of the people and dies away as
the nation loses its nationality. Savigny argued that at the stage of development of a nation and
its law, it goes through 3 different stages. The first stage is the political development of that
legislation of the state which creates a form of national consciousness called “Volkglauben”.
This political national consciousness form a better part of the country’s population’s
development in the field of formal symbolic transaction.

After this stage there comes the middle stage which still has the political element but acquires a
major technical element of juristic skill. This is the pinnacle of legal juristic development and a
period of juristic formation. This concludes with the codification of this legal system with the
decline of a nation. Law no longer have popular support and becomes the property of a clique of
experts. Eventually with time, this skill decays and thereafter there is a loss of national identity.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the
product of general consciousness of the people or will. The concept of Volksgeist was served as
a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal
system. Unless they support the general will of the people.

Basically, Savigny was of the view that law should not be found from deliberate legislation but
should be made and arises out of the general consciousness of the people.

On the above said, we may conclude that according to Savigny:

 13

 Law is like language which eventually grows.

 Law cannot be of universal validity nor be constructed on the basis of certain rational
principles or eternal principles.

 Law is sui generis. Savigny argued that law is like the language having its own national
character. So, it can’t be universally applied and varies according to the people. He
mentioned this in the self-written pamphlets “Vom Berufunserer Zeit für
Gesetzgebungand Rechtswissenschaft (On the Vocation of Our Age for Legislation and
Jurisprudence).”

 Law is found or discovered not made. It can’t be made artificially like the invention of an
object.

 Law is found on the basis of consciousness, customs and beliefs of the people

3.3. Sir Henry Maine (1822-1888)

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of
Historical school were carried forward in England by Sir Henry Maine. Maine studied the Indian
legal system deeply as he was law member in the Council of the Governor–General of India b/w
1861 to 1869. Maine’s ideas were incorporated by the best things in the theories of Savigny and
Montesquieu and he avoided what was abstract and unreal Romanticism. According to Maine,
development of law takes in four steps, the same are elucidated below:

 First stage- Divine Law

Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. For example, Themistes of ancient Greek. The judgment of the king was
considered to be the judgment of God or some divine body. King was merely an executor of
judgments of God, not the law-maker.
 14

 Second stage- Customary Law

Then the commands of King converted into customary law. The custom prevails in the ruler or
majority class. Customs seems to have succeeded to the right and authorities of the king.

 Third stage- Priestly Class as a Sole Repository of Customary Law

The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the lawmaking power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is superseded by
a minority who obtain control over the law.

 Fourth stage- Codification

In the fourth and last stage, the law is codified and promulgated. With the discovery of the art of
writing, a class of learned men and jurists came forward to denounce the authority of priests as
law-givers. They advocate codification of law to make it accessible and easily knowable.

After getting acknowledged of all the principles and theories of historical school; also the jurists
supporting the same, the following is the basic tenets of historical school of jurisprudence:

1. Historical jurisprudence is marked by judges who consider history, tradition and custom
when deciding legal dispute.
2. It views law as a legacy of the past and product of customs, traditions and beliefs
prevalent in different communities.
3. It views law has a biological growth, an evolutionary phenomena and not an arbitrary,
fanciful and artificial creation.
4. Law in not an abstract set of rules imposed on society but has deep roots in social and
economic factors and the attitude of its past and present members of the society
5. The essence of law is the acceptance, regulation and observance by the members of the
society.
6. Law derives its legitimacy and authority from standards that have withstood the test of
time.
7. The law is grounded in a form of popular consciousness called the Volksgeist or general
will of the people.
 15

8. Law develops with society and dies with society.

9. Custom is the most important source of law.
 16

4. SUSTAINABLITY OF HISTORICAL SCHOOL OF

JURISPRUDENCE WITH MODERN TIMES.
For unhappy historical reasons it is common nowadays to oppose the interests of man and
society, to identify the latter simply with the State or government, and thus (since all power is
subject to abuse) to sense in the structures of civil society itself a natural threat to the person.
This situation is aggravated by a peculiar feature of modem life in the large American city
especially : the diminishing role of “ mediating ” communities like the family, church, and
neighborhood in transmitting cultural values. No other societies effectively intervene between
the individual and the State which tends more and more to absorb the resultant vacuum. With
this loss of an authentic sense of political community, the State comes to be regarded as a
gigantic administrative machine and a wholly artificial device for securing a minimum of public
order and efficiency, generally on a purely material and empirical level.2

Since ages; many jurists, philosophers and even other learned personalities that initially were not
into the talks of law but eventually developed an inclination towards the subject, gave varying
theories and opinions over the development & study of law. Of which we learned about the
historical school of jurisprudence, which imposed customs, traditions and beliefs in society to be
the parameters on ‘how law of the country shall develop?’

However, in the current era of ‘breaking the stereotypes’ and following a rational path, historical
school of jurisprudence fails to makes its space. After the setting up of several institutions like
the United Nations and its subsidiary units on a global level, to keep a check on human rights
and other such necessary and rational issues; it has become difficult for people to abide by laws
backed up by customs. The lex loci are known by the constitution of the country, the top most
sovereign is an abstract set of indispensible laws.

Here are a few observations which may draw help calculating the relevance of historical school
in the modern time:

2
See the remarks of Pope Pius XII in his 1955 Christmas Allocution with regard to purely quantitative methods of
measuring the function of the State. (Catholic Mind for March, 1956, pp.164-165).
 17

4.1 We Live in Democratic Majority World

In the democracy, where all the citizens in some measure participate in rule and where the vox
populi is especially audible, the operative concept of the common good will be a grass-roots idea
and here more than elsewhere the public philosophy will be incorporated in the laws and be
reinforced by them in turn. We have only to reflect on how many lines of conduct in areas
critical for the status of a society (those, for example, touching marriage and the family) are now
currently accepted whereas a century ago, a relatively brief span in the life of a community, they
were the frowned upon exceptions.

To imply, the voice of the people is not to form a rigid notion and blindly follow it. The same
changes its position as people and social groups change positions in the society. Generations
after generations, we have observed the change in mindset of people. Change in their beliefs and
faith. Evolution never stops and change is the only constant in life. For ex, for years patriarchy
and homophobia reigned in the society, demeaning the women and their rights in general and
also not considering the transgender social group as an alternate to the basic set of genders. But
in the recent years, we have seen advocacies against homophobia and patriarchy. This is the
voice of people, the generation counting every person and not only the majority. The minorities
have their rights secured as well.

4.2 Modern Principles of Jurisprudence and its Instruments

In the current era where we have established institutions to impart justice and keep a check on
the laws of the country, development of law can be observed through them. Legislations and
precedents are two major instruments helping the boundaries of law and legal systems develop.

In India, we have courts in hierarchical nature as following: Supreme Court or the Apex Court,
then the High Courts, then the Subordinate Courts. Not only India, several other countries have
similar institutions following more or less similar manner.

‘Doctrine of Precedents’ is followed in its rigid sense. Precedents have a binding force and
therefore it is an important source of English law. Any decision laid down by or any verdict
given by the Apex Court of the country shall be binding on all the courts of the country i.e. no
court can dissent from such decision.
 18

4.2.1 Jallikattu Case (rights against animal cruelty over culture and customs)

On 7th May, 2014 the Supreme Court of India struck down and banned Jallikattu altogether 3. The
sport was enthusiastically supported and enjoyed by almost 80% of the Tamil Nadu’s population,
and the same was a part of their long prevailed custom. The sport involved torturing and
tormenting a bull for days only to serve the purpose of celebration.4

The animal was seen as an instrument of celebration. Eventually, many human rights and animal
rights activists protested against the sport, in fact PETA was one of the ardent protestor.
Following the uprise and seeing through rationality, the court observed that the sport although a
custom shall not be having a constitutional protection under article 29(1). Thus, the same was
banned.

4.2.2. Sabrimala Case (rights of women over traditions and beliefs)

On 29th September, 2018 the Supreme Court again took the rational view in determining rights of
women in the matter of religion and faith. The Constitution bench of the Supreme Court held that
any exception placed on women because of biological differences violates the Constitution, that
the ban violates the right to equality under Article 14, and freedom of religion under Article 25.

Women between 10-50 age groups were blocked from entering the Sabrimala temple due to
unworthy and irrational customs. The Apex Court pronounced the verdict by 4-1 majority in
favor of women. Thereby breaking the stereotype and the orthodox approach of viewing women
in the society. 5

Like many of the above verdicts, the Supreme Court has become the top governing authority of
law in the country. The decisions taken by the bench of Supreme Court shall prevail and overrule
any other state law in the country.

3
https://www.aljazeera.com/news/2017/01/protests-flare-southern-india-jallikattu-ban-170119111658879.html
4
https://www.aljazeera.com/news/2017/01/jallikattu-gored-death-bull-taming-festival-170123085938040.html
5
https://www.bbc.com/news/world-asia-india-46744142
 19

MAJOR FINDINGS AND CONCLUSION

 Major Findings:
 Studied the historical school of jurisprudence
 Researched on various exponents and founders of historical school
 Brainstormed on drawing the above mentioned study’s relevance in current
scenario
 Understood the modern instruments of jurisprudence

 Conclusion:
The very essence of historical school of jurisprudence was to describe the origin and
development of law. The then theorists suggest under the purview of this school that the
law is discovered and not made. No institution can make law; it is already prevalent and
living in the society. Thus, customs are the prime most source of law. On drawing a line
of relevance between the historical school of jurisprudence and the modern time, we
found that the principles of historical jurisprudence are nearly inapplicable in the modern
era as new instruments are discovered to make and amend laws, i.e. legislations,
precedents, the parliament passing bills and making/amending laws. In addition to this,
the judges can pronounce any judgment which shall be binding all over the country. Thus
we can conclude that law changes with time and has more than singular source of
development.
 20

BIBLIOGRAPHY

 https://www.aljazeera.com/news/
 https://www.bbc.com/news/
 https://www.jstor.org/
 https://www.encyclopedia.com/humanities/encyclopedias-almanacs-
transcripts-and-maps/historical-school-jurisprudence
 https://www.oxfordscholarship.com/view/10.1093/acprof:oso/97801996915
55.001.0001/acprof-9780199691555-chapter-6