HISTORICAL SCHOOL OF

LAW
 Introduction
The doctrines of the historical jurists stood in sharp contrast to the teachings of the classical
natural-law philosophers.
The thinkers of the age of enlightenment believed that the legal rules could be discovered
and laid down in a code by consulting human reason alone.
The historical jurists believed in the predominantly national character of legal institutions.
Emphasis upon silent, anonymous, and unconscious forces as the true elements of legal
growth, with which no legislator should be allowed to interfere.
 Friedrich Karl Von Savigny
 German jurist and legal scholar who was one of the founders of “historical school” of jurisprudence.
 In his view, the law was not something that should be made arbitrarily and deliberately by a lawmaker. Law
was a product of internal, silently-operating forces.
 Source of law is deeply rooted in the past of a nation, and its true sources were popular faith, custom, and the
common consciousness of the people. [We the People…]
 Law is determined by the peculiar character of a nation by it’s by its ‘national spirit’, called “Volksgeist”.
• Law develops like the language, certain traditions and customs grow up which by their continuous exercise
evolve into legal form. Only by a careful study of these traditions and customs can the true content of law
be found. It is a product not of an arbitrary and deliberate will but of a slow, gradual, and organic growth.
 Legal phenomena have no separate existence, they are but the particular faculties and tendencies of an
individual people, inseparably united in nature. {Law is the reflection of Individual’s tendency by way of
collective representation.}, which binds them into one whole is the common conviction of the people.
 “The law has no separate existence, but is simply a function of the whole life of a nation. "Law grows with
the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its
individuality.”
 “Jurists are the trustees of the people and as representatives of the community spirit, they are authorized to
carry on the law in its technical aspects”
 Georg Friedrich Puchta
 Savigny’s most distinguished disciple was Georg Friedrich Puchta.
 The genesis of law rooted in the spirit of the people, which is an invisible process, visible to us is
only the product, law.
 He opined that the origin of law, is customary law which is the most genuine expression of the
common conviction of the people, and for this reason, far superior to legislation. {Customary law
is superior to the legislation.}
 Eg. Art. 12(1) of the Constitution of India – “All laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void”.
 Art. 12(3) …unless the context otherwise requires law includes …custom or usages having in the
territory of India the force of law;
 Legislation useful only insofar as it embodied the prevailing national customs and usages.
 Sir Henry Maine
 Sir Henry Maine was the founder and chief exponent of the English historical school of law.
 He was strongly influenced by Savigny's historical approach to the problems of jurisprudence, but he went
beyond Savigny in undertaking broad comparative studies of the unfolding of legal institutions in primitive as
well as progressive societies.
 Theory of ‘Status to Contract’ and ‘Contract to Status’.
 Status is a condition of membership of a group of which powers and duties are exclusively determined by law
and not by agreement between the parties concerned.
 “Law is in the air, it exists in the form of habits then custom. The only authoritative statement of right and
wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one
which is breathed for the first time by a higher power into the judge’s mind at the moment of adjudication.”
 Roshan Lal Tandon v. Union of India, AIR (1967) 1889.
(Status to Contract)
 It is true that the origin of Government service is contractual. There is an offer and acceptance in every case.
But once appointed to his post or office the Government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties, but by statute or statutory rules which may
be framed and altered unilaterally by the Government.
 The legal position of a Government servant is more one of status than of contract.
 Status is the attachment to a legal relationship of rights and duties imposed by the public law and not by
mere agreement of the parties.
 The emolument of the Government servant and his terms of service are governed by statute or statutory rules
which may be unilaterally altered by the Government without the consent of the employee.
 The Court held that the employees of the nationalized bank may not enjoy a Status as is the case of
government employees or the statutory authorities whose terms and conditions of service are governed by
the constitutional provisions and/or the statutes and the statutory rules;
 It, therefore, follows that employment under the Government is a matter of status and not a contract even
though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is
accepted by the employee.
 Rattan Singh v. Bagun Sumbrui, 2014 J&K.

Honble Mr. Justice Ramaswami referred the idea presented by in his book Ancient Law,
(1861), wherein he has presented his historical analysis by observing that the movement
of progressive society is from status to contract.
The court observed that that an employee acquires a status then it is no longer merely a
matter of private agreement or contract between the parties. This legal relationship
between the parties is regulated by area of public law
The conclusion reached by Sir Henry Maine brings into play the factor favouring the
greater freedom for an individual in the society by allowing him to enter into contract as
per his liking; whereas status is a term which used to show the aristocratic way of
conferring title.
The progress is not cyclical and the status conferred on every servant is to ensure
availability of well protected bureaucracy and in the enforcement of public law duties in
which the society has a interest.
 STATUS
Sarvaraya Textiles Ltd. v. Deputy Commissioner of Income Tax, 1995 54 ITD 612.
 The legal status of person determines the nature of his rights , duties and other conditions of his life.
 “The term status is used in a variety of senses. It is used to refer to a man’s legal condition of any kind,
whether personal or proprietary. A man’s status in this sense includes his whole position in the law - the sum
total of his rights, duties, liabilities or other legal relations, whether proprietary or personal.
 A person’s status is made up of smaller groups of personal rights and their correlative burdens, and each of
these constituent groups is itself also called a status. Thus the same person may have at the same time the
status of a free man, of a citizen, of a husband, of a father and son on.
 The term may be used to refer to personal capacities and incapacities as opposed to other elements of
personal status.
 Status is used by some writers to signify a mans personal legal conditions, so far only as it is imposed upon
him by the law without his own consent, as opposed to the condition which he has acquired for himself by
agreement.
 Status is a condition of membership of a group of which powers and duties are exclusively determined by law
and not by agreement between the parties concerned.
 EXAMPLE
 Marriage – Marriage creates a status, although it is entered into by way of consent, it cannot be dissolved in that way,
and the legal condition create by it is determined by the law, and cannot be modified by the agreement of the parties.
 Forest Rights of Forest dwelling Scheduled Tribes and of Traditional forest dwellers – Section 3, of the
Forest Rights Act, 2006 provides that certain rights as forest rights are secure for individual or community, of forest
dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands.
 Restriction on Transfer of Occupancies belonging to the Holder from ST Community – Section 36, of the
Maharashtra Land Revenue Code 1966 provides that the occupancies of persons belonging to the Scheduled
Tribes (hereinafter referred to as the ‘Tribals’) (being occupancies wherever situated in the State), shall not be
transferred except with the previous sanction of the Collector.
 Partnership not created by Status – Section- 5 of the Partnership Act- 1932 provides as “The relation of
partnership arises from contract and not from status; and, in particular, the members of a Hindu undivided family
carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such are not
partners in such business.”
 CONTRACT
 A contract, on the other hand, is essentially a compact inter parties.
 It is an agreement made between two or more persons, which is intended to be enforceable at law and
is constituted by the acceptance by one party of an offer made to him by the other to do or to abstain
from doing some act.
 The offer and acceptance may be either express or inferred by implication from the conduct of the
parties.
 Condition of Contract- A contract is an agreement between competent parties upon a lawful
consideration to do or to abstain from doing some act which is binding. Of course, the consent must be
free, the consideration lawful and the object legal and not opposed to public policy.