in the words of SALMOND, " THE BRANCH of legal philosophy which is termed historical jurisprudence

is the general portion of legal history. It bears the same relation to legal history at large as analytical
jurisprudence bears the same relation to legal history at large system. It deals, in the first place, with
the general principles governing the origin and development of law, and with the influence that affects
the law. It deals, in 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.
Historical jurisprudence in short is the history of the first principles and conceptions of legal system."
About nature and functions of the historical school of law, G. G. Lee writes "H. Juris. deals with law as
it appears in its various forms at its several stages of development. It holds fast the thread which binds
together the modern and the primitive conception of law, and seeks to trace through all the tangled
mazes which separate the two, the line of connection between them. It seeks to discover the first
emergence of legal conceptions which have become a part of the world's common store of law, to
show those conditions that gave rise to them, to trace their spread and development, and to point out
those conditions and inflences which modified them in the varying course of their existence."
hypothesis
The researcher for the purpose of research, is pertaining of the hypothesis that "the historical school of
jurisprudence has a very limited role and scope in the study of the subject jurisprudence ."
introduction
The historical method as applied to law may be regarded as a special example of the method of
comparison. The comparative method is really employed in all generalizations about law; for, although
the analysis of legal terms might be conducted with exclusive reference to one system, the advantage
of testing the result by reference to other systems is obvious. But besides the use of comparison for
purposes of analysis and in tracing the phenomena of the growth of law, it is evident that for the
purposes of practical legislation the comparison of different systems may yield important result. Laws
are contrivances for bringing about certain definite ends, the larger of which are identical in all
systems. The comparison of these contrivances not only saves to bring their real object, often
obscured as it is in details, into clearer view, but enables legislators to see where the contrivances are
deficient, and how they may be improved.
The Two Prime Reasons for the Evolution of Historical School:
i.
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.
ii.

It came as a reaction against analytical positivism which constructed a soul-less barren

sovereign-made-coercive law devoid of moral and cultural values described as 'gun-mensituation'.

Volksgeist is a term connoting the productive principle of a spiritual or psychic character operating in
different national entities and manifesting itself in various creations like language, folklore, mores, and
legal order. Savigny felt that "a proper code [of law could only] be an organic system based on
the true fundamental principles of the law as they had developed over time."

"The foundation of the law has its existence, its reality in the common consciousness of
the people. We become acquainted with it as it manifests itself in external acts, as appears
in practice, manners and customs. Custom is the sign of positive law."- Savigny.

Criticism:
As already stated, a precise and flawless definition of law is far from reality, and Savigny's Volksgeist is
no exception. The following are the criticisms of Savigny's Volksgeist:
1.

In pluralist societies such as exist in most parts of the world it really seems somewhat irrelevant to
use the concept of Volksgeist as the test of validity.

2.

Important rules of law sometimes develop as a result of conscious and violent struggle between
conflicting interests within the nation and not as a result of imperceptible growth. That applies to
the law relating to trade unions and industry.

5.

Lord Lloyd also points out that Savigny underrated the significance of legislation for modern
society. Sir Henry Maine rightly pointed out that a progressive society has to keep adapting the law
to fresh social and economic conditions and legislation has proved in modern times the essential
means of attaining that end.

6.

Paton states that the creative work of the judge and jurist was treated rather too lightly by Savigny.

Sir Henry Sumner Maine (18221888)

In his works, especially in Ancient Law (1861), Maine contrasted early societies in which social relations
are dominated by status with progressive (complex) societies in which social relations are
predominantly determined by contract. By status Maine meant a condition of society in which all the
relations of Persons are summed up in the relations of Family. These relations are ascribed to the
individual as a member of a kinship group. By contract Maine meant individual obligation arising from
the free agreement of individuals.
Tort and crime: A second major formulation of polar opposites advanced by Maine was the contrast
between the law of tort and the law of crime. If therefore, he wrote, the criterion of a delict,
wrong, or tort be that the person who suffers it, and not the State, is conceived to be wronged, it may
be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or
fraud not on the Law of Crime but on the Law of Tort
Criticism:
Early society does not show an invariable pattern of movement from the three stage development of
law from personal commands and judgements of patriarchal rulers through law as custom upheld by
judgements to law as code. The so-called rigidity of the law has repeatedly been challenged by
contemporary anthropologists who are of the opinion that primitive peoples were adaptable and their
laws flexible.
Hence, the hypothesis of the researcher proves to be blemishing and is the above conclusion
consolidate the same.