The historical school: Savigny's Volksgeist and Maine's status to contract
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit II: Historical jurisprudence: historical theories arising out of the revolt against rationalism, and the power of human will and tradition. · LLB · 60 min
The historical school arose in the early nineteenth century as a revolt against the rationalism of natural law and the codifying zeal of Bentham: law is not reason's deduction nor the sovereign's command but the product of a people's history, found in its customs and its spirit. The lecture covers Montesquieu and Burke as forerunners, Savigny (the Volksgeist, law found not made, the stages of legal growth, the debate with Thibaut, and the criticisms of Allen, Ihering, Friedmann and Stone), Puchta, and Sir Henry Maine (the comparative method, the stages of law, static and progressive societies, the agencies of legal change, the patriarchal family and 'from status to contract'), and ends with the school in India: custom and the personal laws under Article 13(3). Savigny or Maine is asked in every paper since 2019.
Objectives
- Explain the historical school's revolt against rationalism and the contributions of Montesquieu and Burke.
- State Savigny's theory of the Volksgeist, his stages of legal development and his opposition to codification, and apply the standard criticisms.
- Explain Maine's comparative method, his stages of legal development, the distinction between static and progressive societies, and the three agencies of legal change.
- Explain the patriarchal theory, pater familias and patria potestas, and the movement from status to contract, with its modern reversal.
- Apply the historical school to custom and the personal laws in India under Article 13(3)(a) and Article 372.
Slides
- The revolt against rationalism: Montesquieu, Burke, Hugo
- Savigny and the Thibaut debate (1814)
- The Volksgeist and the stages of legal growth
- Criticism of Savigny
- Sir Henry Maine: the comparative method and the stages of law
- The agencies of legal change: legal fiction, equity, legislation
- Pater familias, patria potestas and 'from status to contract'
- Criticism of Maine, and the reversal: 'from contract to status'
- The historical school in India: custom and the personal laws
- Savigny and Maine compared; the school against its rivals
Loading the lecture…