Historical School of Jurisprudence
Exam Snapshot
- Founder: Friedrich Karl von Savigny — "father of the Historical School."
- Core idea: Law is found, not made — it grows with the Volksgeist (spirit of the people).
- Big three names: Savigny (Volksgeist), Montesquieu (first historical approach), Maine (Status to Contract).
Core Concept
The Historical School treats law as an organic product of a community's history. Law is not the deliberate command of a sovereign; it evolves slowly and unconsciously through custom, tradition, religion, morality, and popular consciousness. Legislation only ratifies what the people's spirit has already produced.
Key contributors:
- Savigny — coined Volksgeist (spirit of the people). Law develops like language — silently, naturally, never by arbitrary command.
- Montesquieu — regarded as the first jurist to adopt a historical approach in The Spirit of Laws (1748); law must suit a people's climate, geography, and customs.
- Sir Henry Maine — extended the historical method to English, Roman, and Hindu law; famous thesis that progressive societies move from Status to Contract.
Nepal Law Anchors
No statutory provision codifies this theory, but it explains why customary practice (परम्परा/प्रथा) historically shaped Nepali law before codification. It is a standard jurisprudence (विधिशास्त्र) topic in LLB entrance MCQs.
Confusable Terms
| Term | Belongs to | Key idea |
|---|---|---|
| Volksgeist | Historical School (Savigny) | Law = spirit of the people |
| Command of sovereign | Analytical School (Austin) | Law = sovereign's command |
| Law as social engineering | Sociological School (Pound) | Law balances interests |
| Status to Contract | Maine (Historical) | Direction of social progress |
MCQ Traps
- Volksgeist → Savigny, NOT Maine and NOT Austin. (Austin = Analytical School.)
- First historical approach → Montesquieu (1748), but founder of the school → Savigny. Don't swap them.
- "Status to Contract" is Maine, not Savigny.
- Historical School says law is found, the Analytical School says law is made/commanded — opposite poles.
Example
A marriage or inheritance custom followed for generations gains legal force because it expresses the community's Volksgeist — not because a parliament invented it.
Memory Hook
"SMM": Savigny (Volksgeist) – Montesquieu (first/climate) – Maine (Status→Contract). And: Law is found, not made.
Quick Revision
- Founder: Savigny; concept: Volksgeist.
- First historical approach: Montesquieu, The Spirit of Laws (1748).
- Maine: Status to Contract.
- School's slogan: law is found, not made; opposes the Analytical (command) School.