Question

historical theory of law

Answer 1

The historical school of jurists was
founded by Friedrich Karl von Savigny
(1779–1861). Its central idea was that
a nation's customary law is its truly
living law and that the task of
jurisprudence is to uncover this law
and describe in historical studies its
social provenience. As in other schools
of thought, acceptance of this
approach did not necessarily mean
agreement on its theoretical or practical
consequences.
Germany
To followers of Savigny the
identification of law with custom and
tradition and the Volksgeist , or genius
peculiar to a nation or folk, generally
meant a rejection of rationalism and
natural law; a rejection of the notion of
law as the command of the state or
sovereign, and therefore a
disparagement of legislation and
codification; and a denial of the
possibility of universally valid rights and
duties and of the individual's
possession of nonderivable and
inalienable rights. In positive terms,
historical jurisprudence identified law
with the consciousness, or spirit, of a
specific people. Law is "found" by the
jurist and not "made" by the state or its
organs. Law is a national or folk and
not a political phenomenon; it is a
social and not an individual production;
like language, it cannot be abstracted
from a particular people and its genius;
it is a historical necessity and not an
expression of will or reason, and
therefore it cannot be transplanted.
In addition to Savigny, the historical
school was probably influenced by
Johann Gottfried Herder (1744–1803)
and the romantic notions of folk
culture, by the emphasis on tradition in
the work of Edmund Burke (1729–
1797), by the stress on historical
continuity in the work of Gustav Hugo
(1764–1844), and by the Hegelian
conception of Spirit. In Germany, the
main proponents of historical
jurisprudence were G. F. Puchta, Karl
Friedrich Eichhorn, Rudolph von Sohm,
and Otto von Gierke.
England
In England Henry Maine (1822–1888)
was closely identified with the historical
school, although there is no evidence
that he was directly influenced by the
German thinkers. Modern historical
jurisprudence in England was born with
the publication in London of Maine's
Ancient Law in 1861, the year of
Savigny's death. Until then historical
research in law had been neglected,
but from that time on, the field was
assiduously cultivated. In reaction
against natural law and under the
influence of Thomas Hobbes, the
tendency in England had been to
regard law as the command of the
state, and the task of the jurist was
conceived as a concern with the
analysis of positive law without regard
to historical or ethical considerations.
Maine broke with these traditional
attitudes. Probably influenced by Rudolf
von Ihering (Der Geist des römischen
Recht , 3 vols., Leipzig, 1852–1865),
Maine was stimulated to apply the
historical method to jurisprudence.
Charles Darwin's Origin of Species ,
published two years before Ancient
Law , also probably influenced Maine.
Maine rejected the natural law,
rationalistic, and a priori approaches to
the nature of law. In his Early History of
Institutions (London, 1875) he saw a
people's law as compounded of
opinions, beliefs, and superstitions
produced by institutions and human
nature as they affected one another.
Indeed, English common law seemed
better to exemplify Savigny's views
than did the law of Germany, which
drew heavily on Roman law.

Answer 2

The historic theory is defined as the theory which includes history