What is Historical Jurisprudence

Sat, 03/24/2012 - 04:57 -- Umar Farooq

What is Historical Jurisprudence

Historical jurisprudencedeals with the general principles governing the origin and development of law and also the development, evolution of the legal conceptions and principles found in the philosophy of law. Therefore, historical jurisprudence concerns with the historic evolution of the principles of law i.e. the past stages of the law.

It constitutes the general portion of legal history, and as Salmond observes, bears the same relation to legal history at tame as analytical jurisprudence bears to the systematic exposition of the legal system. As the historical jurisprudence only concerns itself with the scientific study of the origin and development of the principles of law, therefore it is the study of law as it is as.

Scope of Historical jurisprudence

Historical jurisprudence provides answers of various following questions

  1. What was the source of a particular law
  2. Where form it was derived.
  3. What was its shape and scope in past
  4. How and under what influences it came to develop and
  5. Through what stages of evolution it passed to assume finally the shape in which it is final today

In brief historical jurisprudence deals with the study of the evolution of fundamental principles and legal conception in the early societies

Difference between Historical jurisprudence & Legal History

"Historical Jurisprudence constitutes the general portion of legal history and examines the manner or growth of system”. It deals with the general principles governing the origin and development of law and also the origin and development of legal conceptions and principles found in the philosophy of law. It traces the growth of law from origin with a view to find out the origin of cur legal concepts and the general course of the revolution. Historical jurisprudence should not however be confused with legal history.

On the other hand legal history records the changes which have occurred in the development of law, and deals with the historical background of particular law. Legal history is not critical and it main function is to catalogue the development law, allotting to each phase its true position in the completed narrative. It indicates the process of changes and is therefore descriptive.

Legal history deals with the historical background of particular law, for instance how and when the penal code came to be passed is a matter of legal history. Similarly an investigation of how the principles of hearsay evidence came to be evolved shall fall within the scope of legal history and, also the study of Roman Law would also fall in the scope of legal history.