Historical Jurisprudence (Feudal and Pro-Feudal Era)

The Historical Jurisprudence was of the feudal and pro-feudal era. The feudal law in Euro were in pending the growth of industry and had to be replaced by Simplification, Systematization, Clarity, Uniformity and Precision in the Industrial Era. Positivist Jurisprudence was the response to this situation. The Austinian analytical school is widely regarded as the Classical Positivist theory. According to Austin (1) Law is the command of the sovereign backed up by sanctions. (2) Law is different from Morality religion etc. Thus, the positivist Jurisprudence regards law as a set of rules enforced by the state. As long as the law is made by the competent authority after following the prescribed procedure, It will be regarded as law, and we are not concerned with its goodness or badness, we may contrast this with the Natural Law theory which says that a bad law is not a law at all. The separation of law from ethics and religion was a great advance in Europe from the Feudal Era. 

The science of Jurisprudence is concerned with positive laws or badness. Thus, positivism seeks to exclude value consideration from Jurisprudence and confines the task of the later to analysis and systematisation of the existing laws. Austin regards law as the command of the sovereign and since in modern society the most common form in which such command occurs in a statute, statutory law and especially codification were given the highest place in Positivist Jurisprudence. Thus, in France the Civil Code of 1804 (Code of Napoleon) evoked great administration from the French lawyers. Before this court there were other legal system in France, each province having its own laws, and the result was total confusion and uncertainty in the law. The Code of Napoleon was a great step forward in history. It was followed by other courts. The Positivist Jurisprudence was thus of great help in society progress from the feudal to Industrial Era. 

In the 20th Century the main Positivist Jurist is Kelsen (Pure Theory) but the Positivist Theory excluded a study of the social, economic and Historical background of the law. Positivism only studies the Form, Structure Concepts etc. in a Legal System. It was of the view that study of the social and economic conditions and the historical background which gave rise to the law was outside the scope of Jurisprudence and belonged to the field of Sociology. Unless, we give the historical background and social and economic circumstances which give rise to a law it is not possible to correctly understanding. Every law has a certain historical background and it is heavily conditioned by the social and economic system prevailing in the country, but the study of Historical and Socio-Economic factors was totally left out in positivist theory which is a very narrow in its scope.


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