The involvement of this historical school in its approach to law was considerable. Some of the practical contributions of the historical school have had a lasting effect. There has been a great impetus for the historical study of law and the legal institution, which has ingrained a sense of historical perspective. He stressed the dangers of hasty legislative experiment and taught that development, at least in some areas, should take place through the channels of tradition. Attempts have also been made to show a link between cultural development and parts of the law, and the need to look to the past in order to obtain a correct understanding of the law in modern times. Savigny was a German philosopher who is considered one of the founding fathers of the historical law school. According to him, the law is the product of people`s lives and a manifestation of their spirit. The law has its source in the general consciousness of the people. He called it Volksgeist. According to this theory – the historical school of law – law is the result of past forces and past influencers.
Moreover, the law is built and developed on the general consciousness of the people. However, consciousness begins at the very beginning of society. In addition, some of the factors influencing this long historical development are the following: Friedrich Karl von Savigny was the founder of the historical law school in the years 1779-1861. According to Savigny, the central purpose of this school was to establish that the customary law of a nation is its truly living law. And moreover, the task of the judiciary is only to expose and expose this law. Reasons for the development of the historical school of law: On the contrary, the historical school of law focuses on the formation of law by persons who are not of divine origin. Natural law school has greatly influenced American legal thought. For example, the idea that certain rights are “inalienable” (as expressed in the Declaration of Independence and in the writings of John Locke) is consistent with this legal view. Individuals may have “God-given” or “natural” rights that the government cannot legitimately take away from them. A government that has only with the consent of the governed is a natural consequence from this point of view. It came in response to the natural school of jurisprudence, which believed that there are certain principles that are universally applicable without regard to social, historical or other factors. “Law is founded and not done”, the famous quote is the basis of the historical school of law.
The historical school of law was founded by Friedrich Karl and von Savigny. According to this school, the law is the creation of interactions between local situations and the conditions of the people, the law is not founded by a political superior, but found and given by the people. Supporters of historical schools present the customs of the people as the most important source of law not to be overlooked. Each of the different law schools has a particular conception of what a legal system is or what it should be. Natural law theorists emphasize the rights and duties of government and the governed. Positive law presupposes that law is only the command of a sovereign, the political power to which the governed will obey. Recent writings in the various schools of legal thought emphasize long-standing models of government by the rich over others (the CLS school) and by men over women (ecofeminist legal theory). This article was written by Lakshay Kumar, a second-year B.A.LLB student in Delhi Metropolitan Education at Indraprasta University.
In this article, he discusses the views of various philosophers on the historical school of jurisprudence and its development. The great truth contained in the theory of the spirit of the people is that the legal system of a nation is influenced by the culture and character of the people, this thesis is still essentially valid in this regard. One difference that can be noted in the Maine theory of Savigny`s theory is that Maine recognized the importance of legislation, but Savigny did not. Unlike Savigny, who used the past to understand the law in the present and determine the law for the future, Maine used the study of legal history primarily to understand the past, but not to determine the future. There are 5 primary law schools. Savigny`s central idea was that law is an expression of the will of the people, it does not come from conscious legislation, but poses as a progressive development of the common consciousness of the nation. The essence of Savigny`s popular spirit was that the legal system of a nation is strongly influenced by the historical culture and traditions of the people, and the growth of the law lies in its acceptance in the population. According to Savigny, the law should always be based on popular consciousness, i.e. the spirit of the people, so customs and historical tradition as a source of law do not precede legislation, but are also superior to it. The right-wing realist school flourished in the 1920s and 1930s as a reaction to the historical school.
Legal realists have pointed out that some laws and doctrines need to be changed or modernized to stay current, as life and society are constantly changing. The social context of the law was more important to legal realists than the formal application of precedents to current or future litigation. Instead of assuming that judges inevitably acted objectively by applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and made legal decisions based on their beliefs and social context. There are different schools (or philosophies) on what law is. The philosophy of law is also called jurisprudenceThe philosophy of law. There are many philosophies of law, and therefore many different jurisprudential views, and the two main schools are legal positivism, a jurisprudence that focuses on the law as it is – the command of the sovereign. and natural lawA jurisprudence that emphasizes a law that goes beyond positive laws (human laws) and indicates a set of universally applicable principles. While there are others (see Section 1.2.3 “Other Schools of Legal Thought”), these two schools are the most influential in how people think about law. The natural school of jurisprudence believes that the law comes from a supreme divine power. Another term for natural law is eternal law. And it is also believed that it has existed since the beginning of the world as we know it.
Related to the CLS school, but different, is the ecofeminist school of legal thought. This school emphasizes – and would change – men`s long-standing dominance over women and the rest of the natural world. Ecofeminists would say that the same social mentality that leads to the exploitation of women is the root of male exploitation and the deterioration of the natural environment. They would say that male ownership of land has led to a “culture of domination” in which man is not so much a steward of the existing environment or of those who are “subordinate” to him, but is responsible for making everything he controls economically “productive.” Wives, children, land and animals are considered economic resources, and legal systems (until the nineteenth century) largely granted rights only to men owning land. Ecofeminists would say that even with the increase in women`s civil and political rights (such as the right to vote) and with the recognition of children`s and animals` rights and some nations` concern for the environment, the legacy of the past for most nations still affirms the primacy of “man” and his domination of nature and women.