Historical School
1.
What is the preliminary premise of Historical
School?
The
Historical School does not attach importance to relation of law to the State
but gives primacy to the social institutions in which law develops itself. It
differs from Analytical School in the way that Analytical School pre supposes
the existence of a well developed legal system, while the Historical School
concentrates on evolution of law from primitive stage, from the primitive legal
institutions of the ancient communities.
2.
What is the objective of study of study of
Historical School?
The
objective is to deal with the general principles governing the origin and
development of law and with the influences that affect law.
3.
What is the difference between Analytical School
and Historical School?
The
Austinian theory rejected historical growth of law and concentrated on law as
it is, without bothering about its historic values and moral precepts, the
positive school refused to recognize the impact of legal evolution. Analytical
School regarded law as arbitrary creation whose sanctions emanate from
sovereign itself.
The
historical school was of the view that positive law must conform to principles
of customary action, which could only be traced by historical study. As such it
is devoted to study of history of origin of law, and regards custom as the
primary source of law, as compared to Analytical School which considers
legislation/command of a sovereign as the primary source of law.
4.
What is the opinion of Historical School
regarding judge made law, and moral and ethical considerations?
As
believer in historical mediums for growth of law, Historical School banished
creative participation of judges, and all moral and ethical considerations in
law.
5.
Who said that morals were out of domain of Judge
or Jurist?
Fredrich
Pollock in his book `Essays in Jurisprudence and Ethics`
6.
What was the cause of emergence of Historical
School?
It
emerged as a reaction to legal theories of analytical school and the natural
law school.
7.
Who according to Maine was the first jurist who
adopted historical method of pursuing the study of legal institutions?
Montesquieu
8.
Who said “Law is the creation of climate and
local situations”?
Montesquieu
9.
Who said “Law like language and habits of the
people forms and develops itself as suited to circumstances”?
Hugo
10.
Who wrote the book `Spirit of Law`?
Montesquieu
11.
Who wrote the book `Legal Duties and Other
Essays in Jurisprudence”?
CK
Allen
12.
Who was of the opinion that there is nothing
like good or bad in law, as it essentially depends upon the political and
social conditions and environment prevailing in the society?
Montesquieu
13.
Who laid the foundation of comparative and
sociological jurisprudence?
Montesquieu
14.
Who said that evolution of law is an organic
process and an expression of common beliefs, faiths and practices of the
community as a whole?
Burke
15.
Who wrote the book `Reflections on the
Revolution in France`?
Burke
16.
About Savigny:
a.
Law is a historical perception which evolves as
per customs, traditions, culture and sentiments of people,
b.
Main exponent of Historical School and is
considered to be the propounder of the Historical School,
c.
He had traced the development of law as a
evolutionary process much before Darwin gave his theory of evolution in
biological sciences,
d.
Allen described Savigny as `Darwinian before
Darwin`
17.
Who wrote the book `History of Roman Law in
Middle Ages`?
Savigny
18.
Who wrote the book `System of Modern Roman Law`?
Savigny
19.
Who wrote the book `Law of Possession/Das Recht
des Bestezes`?
Savigny
20.
Who said that “Law is the manifestation of
common consciousness of the people and it grows with growth and strengthens
with the strength of people and dies away as the nation loses its entity”?
Savigny
21.
What was the nature of law imposed by Napoleon
of the French occupied German States?
He
had imposed Napoleon Code on alien Germans which deprived them of their own independence
and political freedom, which the Germans found irksome and as aimed to destroy
their culture and heritage. Even after the unification of Germany, the code
still applied.
22.
What was the role of Professor Thebout regarding
German Laws codification?
He
laid down a code which was according to the natural law philosophy.
23.
Who wrote `Vocation of our age for legislation
and Jurisprudence`?
Savigny.
He wrote the same in reaction to Thebout`s proposal of German Law code based on
natural law.
24.
Who said that law is not an artificial and
mechanical device?
Savigny
25.
Who was of the opinion that a law made without
taking into consideration the past historical culture and tradition of
community is likely to create more confusion rather than solving the problems?
Savigny
26.
Define Volkgeist
Savigny
said that origin of law lies in the popular spirit of the people, which he
called Volkgeist
27.
Who gave national character to law and said that:
The organic evolution of law with the life and character of the people develops
with the ages, and in this it resembles language. Law grows with nation,
increases with it and dies at its dissolution and is a characteristic of it”?
Savigny
in his essay Vom Beruf
28.
What does Savigny mean when he says `Early development
of law is spontaneous, thereafter jurists develop it`?
Law
has a dual role, as a regulator of general national life, and as a distinct
discipline for study. The former is the political element of law, while the
latter is the juristic element; both are required for the growth of law.
Savigny believed that law is a continuous and unbreakable process.
29.
What was Savigny`s opinion on codification of
German law?
He
was against codification of German law based on Napoleon code. He urged to wait
till unification of Germany, and till the day the Germans had a one language
throughout the country, so as to form Volkgesit, on which he opined law of
Germany should be codified.
30.
Who considered lawyers and jurists more
important than legislators?
Savigny
31.
What was the opinion of Savigny on Roman law?
He
preferred codification of German law in lines with the Roman Law. Ehicorn
criticized it by saying how could a foreign law become Volkgeist.
32.
Who said “Law is not universal in nature but
like language, it varies with people, time and needs of the community”?
Savigny
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