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Western jurisprudence in the eyes of historical school

Great German philosopher Immanuel Kant believed that there existed certain eternal and immutable principles governing and making of law [through these principles], and law making was to be judged in this perspective. According to him, the distinct mark is free will, which is the ultimate principle leading to the concept of “rights” deduced from a rational harmonization of free will, but still the ethical basis and theological basis governed the ‘Jurisprudence’ as a science of philosophy. The principle of rational foundation was replaced by Kant with ‘metaphysical foundation’ by stating that authority behind the precepts required an unchallengeable authority, that’s why, according to him, a state should believe in divine law.

By the end of 18th century, the natural law thinkers stood divided into:

A. Natural law was an explanatory use of divinity; and;

B. Positive law represented the declaratory functions.

These principles were deduced from: 

I). Human reason;

II). Its Authoritarian nature; and

III). Emergence of law as an idea.

Accordingly, the most common source of law namely, “Custom” stood emerged as a recognised and applied principle of law. Since there was no act of creation in the enforcement of ‘Custom’ and as a source of law it was the recognition of a fact which did already exist as a popular action. Accordingly, the “law of nature school” believed that law is to be discovered, as the same is an immutable and eternal fact.

On the other hand, “historical school” was of the view that positive law was not an outcome of human wisdom, and that the idea of right and wrong did itself realized progressively through the human experience of administration of Justice.

Jurisprudence: The science of jurisprudence kept a relationship with ethics. In this way, it stood directed towards political considerations relating to:

i. Freedom; and

ii. “Rights”.

Gradually Ethical considerations banished from historical jurisprudence. And the ‘Custom’ took place the central role as being the foundation of law: Following considerations in this regard were notable:

iii. Habit formation and acceptance of custom as force of law

iv. “The law” then stood under the banner historical theory that was dependent on “Custom” being its foundation.

19th Century: Orthodox historical jurisprudence rejected all creative participation of Judges and Jurists, and the law givers. However, despite all that Custom emerged as an undisputed source of law.

The characteristics of customary law: 

I). Law formulated through practice of popular action

II). Based on judicial reasoning.

III). Based on Doctrinal writings and scientific discussions of legal principles.

IV). Justinian code for examples, became, the source of law and base for legislation.

The Roman era: This era was plagued with the following issues:

a) Rational discovery stood culminated.

b) Legislation became a new source of law [Roman senate].

c) Customs became enforceable norms.

The Laws of Germanic People were a contrasting view. These Laws consisted of:

i. Declaratory of Customs;

ii. Religious usages;

iii. Social Customs;

iv. Traditional mode of social customs.

The basis of their authority was long and undisturbed usage. Customs grew and law also grew. And at times function of legislation became to restate these usages in a systematic and better way. Morals at that time were out of the domain of judges.

Historical jurisprudence: The philosophers of historical jurisprudence believed that customary precepts were independently given effect in judicial course of action while analytical Jurists believed that sanction of law was used for enforcement through judicial and administrative organs. As regards social rules, one has to consider pressure behind the legal rules. For example: Sanctions:

Habbit of obedience;

Displeasure by one’s fellow men;

Public sentiment;

Social standard of Justice.

And in this background jurists all through were trying to find out answer to the question: What is law?

The historians, jurists and philosopher all through these ages were able to establish a body of enforceable precepts from sources where from legal precepts were drawn. And gradually religion became a political and organised society. These institutions stood intermingled in religion, law and morals. The Geeks for example, treated law as consisting of traditions, religious usages and traditional social customs. And through social control of customs, gradually legislation stood recognised as source of law.

Sources of enforcement of social controls: Politically organised societies contributed in this regard, for example, Roman law was not divine, it was based on social Customs, but still impact of divinity on it is quite strong. For example, the Romans supported enforcing of good faith in transactions, keeping the promises, and performing the agreements. And gradually law adopted all these concepts.

2nd stage in the development of law: Law was made stricter. The State became powerful. And views of analytical jurists had their impact on these developments. Accordingly in this age, law was defined as a system of remedies having chiefly procedural rules. The state and its departments were to operate in these given norms. The law now stands codified crystallised. Custom, as a source of law stood, outstripped by morality, while the law of this stage becomes highly immoral.

In the next stage: Assimilation of ideas from other legal systems became more organised for example, development of court of chancery in England and philosophic ideas of juristic writers.

Base line: Law must coincide with morals, and moral principles became equitable principles. Accordingly ‘law of Nature School’ links itself to somewhere between law and morals. The views of analytical jurists also had the impact: And concepts of rights, duty, power, liberty and privilege emerged which were devoid of any moral content.

In the 19th century, legal rights and legal duties stood recognised as part of natural right and moral duties. Morals were now treated as duty, and legal creditor who sought equity had to do equity himself.

“Maturity of law” in this sense emerged through moral institutions which became legalised. Moral ideas and statutory provisions worked as raw materials from which the courts made the law by judicial decisions. The courts decide issues on the basis of sources of law.

(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)

Zafar Ameen, "Western jurisprudence in the eyes of historical school," Business Recorder. 2017-06-03.
Keywords: Law and Humanities , Maturity of law , German philosopher , Jurisprudence , Natural law , Positive law , Custom , Freedom , Rights , Legislation , Immanuel Kant , 18th century , 19th century