1) Inconsistency in theory: He emphasized the national character of law, but at the same time recommended a way in which Roman law is often adapted. He believed that the law of the State grows with the strengthening of the nationality of the State and that the law dies or fades when the nationality loses its force in the State. Volksgeist means “national character”. According to Savignty`s popularity, the law is the product of the general consciousness of the people or the will. The concept of popular spirit served as a warning against hasty legislation and introduced revolutionary abstract ideas into the legal system. Unless they support the general will of the people. Savigny was the father of the historical school. He argued that the law was like the language and had a national character. The law is not universal. While Puchta improved Savigny`s ideas, arguing that the state and the people are equally important and a source of law. The historical law school deals with the emergence and development of general legal principles. The origin of the law is an ongoing process and it does not stop at any order or anything. In this article, Saurav Bhola discusses the historical school of jurisprudence.
Savigny was the father of the historical school. He said that the law is like a language that develops and has a national character. Puchta improved Savigny`s theory and made it more logical. This school rejects the ideas of judicial training and the origin of divine relevance. In Salmond`s words, “The branch of legal philosophy called historical jurisprudence is the general part of legal history. It is in the same relation to legal history as analytical jurisprudence to the systematic presentation of the legal system. It deals mainly with the general principles governing the emergence and development of law and the influences that influence the law. Secondly, it deals with the emergence and development of those conceptions and principles of law which are so essential in nature that they deserve a place in the philosophy of law – the same conceptions and principles, that is, which are treated by analytical jurisprudence in a different way and from a different point of view. Historical jurisprudence is the history of the first principles and conceptions of the legal system. Savigny: Savigny is considered the father of the historical law school.
The law has its origin in the general consciousness of the people. He said that law develops like language and that law has a national character. Law, language, customs, and government have no distinct existence. There is power and power in people, and that underpins all institutions. Law, language, evolves with people`s lives. The historical school deals with the past and present, the historical school of law describes the origin of law. Many jurists such as Montesiqueu, Puchta, Savigny were supporters of the historical school. The study of jurisprudence, like other areas of law, began under the Romans.
The word “jurisprudence” comes from the Latin word “jurisprudentia”, which indicates knowledge of the law. Jurisprudence is the theory and therefore the study of law. The law is a very complex issue. Understanding an idea differs from person to person. […] Saurav Bhola, Historical Law School, ipleaders, (September 12, 2019), blog.ipleaders.in/historical-school-of-jurisprudence/ […] Puchta has made a valuable contribution to jurisprudence by specifying both aspects of human will and the origin of the state. In some ways, Puchta improved Savigny`s ideas and made them more logical. The analytical school of jurisprudence is also called the Austinian school. It was founded by John Austin. The subject of the School of Analytical Law is positive law.
It focuses on the origin of the law of judges, the state and legislators. The historical school emphasized the formation of law by the people through customs and customs, not by judges and higher authority. The principal teachings of the school, of Savignys and of a number of his disciples, may be summarized as follows: (3) Laws are not universally valid or applicable. Each individual develops his own legal habits because he has a language, manners and a constitution. Savigny insists on the parallel between language and law. 2) Common law: Statutes have been used as court-ordered precedents. The reasons for the emergence of the historical school are: 4) Legislation is that the final stage of legislation, and therefore the lawyer or jurist, is more important than the legislator. Basically, Savigny was of the opinion that justice should not be found from conscious legislation, but should be done and stems from the general consciousness of the people. (1) “Justice is found, not done.” Particular emphasis is placed on policy options.
The evolution of the law is in fact a biological process. 3) He ignored other factors influencing the law: Another critic of her was “so concerned about the source of the law that she almost forgot about the current.” The creative function of the judge is also ignored by Savigny`s theory. Charles Allen criticized Savigny`s view that the law should be found or based on custom. Allen believed that customs were not the result of a common consciousness of the people. But they are the result of the interests of a powerful and strong ruling class. For example, slavery, which was recognized and imposed in some societies by the powerful classes of society. Societies that progress after the fourth stage of law development are progressive societies. They develop their laws using these instruments: 4) Many things were not clear: certain characteristics, such as evolution and development, were not explained by the Savignys. The main concept of Puchta`s ideas was that “neither the people nor the state alone can make and formulate laws.” The State and the individual are the sources of law. The theory of the school later influenced many jurists. It is according to Savigny that the value of the historical method has been fully understood.
His method was followed in England by Maine, Lord Bryce and many others who studied various legal systems from a historical point of view. Savigny believed that the law could not be borrowed from outside. And the main source of the law is people`s conscience. Legal fiction changes the law according to the needs of society, without changing the letter of the law. Legal fiction harmonizes the legal order, but makes the law difficult to understand.