JURISPRUDENCE

Chapter SIX
[HISTORICAL & ANTHROPOLOGICAL
JURISPRUDENCE]
© mohdbadrol awang
 Historical Jurisprudence

• Historical and anthropological jurisprudence

believe that a deep understanding of the past is
essential for a comprehension of the present
• As far as the study of the existing legal thoughts
and institutions is concerned, historical and
anthropological maintain that understanding of
legal historical roots and patterns of
development is important
• In this regard, history of human way of life has
been regarded as an aid to understanding of the
law and legal system
 Savigny (1799-1861)
• His fundamental belief is that the law is originated
from the spirit of the people (the Volksgeist).
• He holds that the law of a society materializes from its
way of life; the culture, traditions, and customs.
• In this sense, law is an integral element of the social
fabric and a product of the people`s life
• To him what binds the people into one whole is the
common conviction of the people and their kindred
consciousness.
• Law is a product of the general consciousness of the
people and a manifestation of their spirit.
 Savigny…
• He states that all law is originally formed in the manner in
which customary law is said to have been formed; i.e., it is
first developed by custom and popular faith, next by
jurisprudence, and not by the arbitrary will of a lawgiver.
• He believes that at the earlier stages, the customs of the
people externalize common consciousness and from the
customs, law grows in an organic, unconscious fashion.
• But in a civilized society, a class of people like the jurists,
judges and lawyers start fashioning the law making it richer in
ideas and more complex and technical.
 Savigny…
• All laws are manifestation of common
consciousness.
• The broad principles of the system are to be
found in the spirit of the people and they must
manifest themselves in customary rules.
• Law is a matter of unconscious of growth.
• Any law-making should follow the course of
historical development.
• Custom not only precedes legislation but is
superior to it. Legislation should always conform
to the popular consciousness.
 Savigny…
• Law is not of universal application, by which it
varies with peoples and ages.
• According to this view, legislation was
subordinate to custom and at all times it
should confirm to the Volksgeist. Savigny did
not oppose legislation or reform by
codification at some appropriate time in the
future, but he opposed the project of
immediate codification on many grounds.
 Savigny…
• Law has been featured to have the following
attributes;
– It embodies the popular genius
– It resembles language in some aspects
– Law like language evolve gradually reflecting the
people`s evolving characteristics
– Law like language is non-static, law grows with a
nation, increases with it and dies at its dissolution and
is a characteristic of it.
– No law has universal validity; it has application to
specific people only
 Savigny and Codification
• Savigny holds that historical study reveals that legislation is of
subsidiary importance in the development of law
• The law, the living one, does not emerge from the commands of a
sovereign or the arbitrary will of a legislator; rather it develops
organically from the people. ( law comes from the people, not from
the state)
• He asserts that legislation will be effective only when it is in
harmony with the people`s conscience and aspirations and when it
reflects the conviction and needs of the people
• He was quoted to have said that ‘codes are futile, crude or
dangerous’ however this does not mean that he condemns
legislation, he posts the statement to the Code of Napoleon
opposing the same to be applied to the occupied part of Germany.
• The point he emphasizes is that a law that is going to be applied to
people must be in line with the conviction and needs of the people.
 Savigny…Lawyers as Trustees
• With the advance of the civilization, the law
becomes more technical and complicated-the
people need to be represented by specialists-
lawyers-in matters concerning the law.
• The task of the lawyers is to enunciate and
elaborate the law and legal principles to the
people, therefore, lawyers become trustees
for the people.
 Savigny Criticised
• Highly selective investigation.
– He seems to have written history based on the
prevailing condition during his time, particularly on his
hostility to the French Revolution, leading to undue
reverence for the past.
• Volksgeist as a mere fiction
– His critics argue that, savigny has not defined
volksgeist, he merely states that it resembles ‘spiritual
communion of people living together, using common
language and creating a communal conscience’-which
involves a statement incapable of proof and of little
value in jurisprudential analysis.
 Savigny Criticised…
• Communal Conscience questioned.
– The critics have questioned the idea of communal
conscience underlying savigny`s concept of law
– What is the CC?, and how does the concept apply to a
nation that is divided on legal matters.
– Furthermore there are laws transplanted successfully
from one culture/nation to another by way of
conquest or peaceful infiltration of foreign law and
custom. So in such a case, law is not the result of the
people`s feeling for right and wrong. For example,
German Civil Code was adopted in China, Japan and
Taiwan, Swiss Code in Turkey and French Code in
Egypt, Holland and Ethiopia.
 Savigny Criticised…
• Law often based on pragmatism.
– Laws in past and present has been the result of pragmatic response
to immediate problems in society and not emanated from people`s
unconscious feeling.
• Custom exaggerated
– Custom elevated by Savigny to be a vital source of law, but in
reality it is of a local nature only and may affect a small fraction of
community only and it may also unresponsive to changed
situations
• Legislation Undervalued
– Savigny`s analysis of the nature and purpose of legislation
undervalues its significance especially in contemporary societies. In
most advanced societies, it is almost no sphere of life untouched
by the dedication of legislators to manage what the citizen may or
may not do.
 Savigny Criticised…
• Savigny`s abandon of the people` spirit
– Although Savigny presents law as reflecting
the spirit of the people, he advocated a
refined system of Roman law for the German
people, a move which was contrary to his
concept of ‘folk spirit’. The suggestion that
legislation based on the spirit of the
principles of Roman law would have
coincided with the demands of the German
‘folk spirit’ is not easy to sustain.
 Henry Maine (1822-1888)
• In his study of law, Maine stresses the
importance of historical development of
man`s life and habits
• He interprets human history as providing
proof of the existence of stages in the
development of law
• He argues that law as a system emerges at a
late stage in a slowly-evolving pattern of
human`s progress
 Stages in the development of law
• From his study of the early societies, Maine
discerns three stages of the development of
law;
– Law as the personal commands/judgments
(themistes) of patriarchal rulers (king) who
claimed divine inspiration. There were no patterns
of principles used in issuing the judgments.
Judgments preceded rules. The judges came
before the law-maker
 Stages…
– Law as custom upheld by judgments. This stage
begins when the power of the patriarchs declines
following a weakening belief in their charisma and
sacredness. Oligarchies of a political and military
nature appear claiming control over institutions and
interpretation of law. The judgments of the oligarchs
evolves into the basis of customs, whereby the epoch
of customary law begins and develops. At this stage,
the law is largely unwritten, thus the interpreters
enjoy a monopoly of elaboration. The epoch does not
last, the spread of writing assists in the creation of a
transitional period leading to the third epoch.
 Stages…
– Ancient Codes` stage. The stage where codes are
predominant and the monopoly of exposition of
the law enjoyed by the oligarchs is broken. The
codes state the law as it is, they ended the
spontaneous growth of the law. Examples of the
codes are the Roman Twelve Table, the codes of
Manu and Narada and the Homer`s Code.
 Further Progress of Law
• Maine divided societies into two types; the
stationary and progressive societies
• In Stationary societies, the law did not move
beyond the concept of code-based law. All legal
problems are decided based on the provisions of
the code. Maine regards this situation as
reflecting a general lack of desire on the part of
the members of the society to effect any change
to the law. The Hindu society is the example given
by Maine because it failed to develop its law after
the publication of the laws of Manu.
 Further Progress of Law…
• The progressive societies, on the other hand,
possessed dynamism in the development of law
resulting in expansion of legal institutions and
refinement of the legal doctrines
• Within the progressive societies, (he refers mostly
to the Roman and English societies), the ancient
codes were further modified by three successive
instruments of legal change;
– Legal fictions
– Equity
– legislation
 Further Progress of Law…
• Legal fictions
– They are mere suppositions or assumptions
intended to overcome the rigidities in the formal
law and designed to advance the interests of
justice. Legal fiction is used to mould the law
without changing its form, although its operation
and effect might have been modified. For
example, a code did not permit inheritance for an
adopted child, the law would assume that an
adopted child is deemed to be a natural child for
the purpose of inheritance. This is a fiction.
 Further Progress of Law…
• Equity
– Equity involves a set of legal principles entitled by
their intrinsic superiority to supersede the established
law, rules and procedures enabling the rigidities of the
formal law to be smoothed out, or even displaced.
The principles of equity are assumed to have universal
validity and exist alongside the civil law.
• Legislation
– This is the final stage indicating the peak of legal
achievement. In the process, the jurisprudential
thoughts and political will interact as to enact laws in
a systematized and unified form.
Movement of Progressive Societies
• Maine asserts that the movement of the progressive society has
hitherto been a movement from status to contract.
• The statement indicates the modification of man`s individual`s legal
position. In early times, individual`s legal position was fixed by his
social group`s (family`s) status. He could not change the status by
his efforts
• However, as the society progresses, there is a steady movement
towards a phase of social order in which all relations arise from free
agreement (contract) of individuals. Individuals are viewed as
autonomous agents, they are free to make contracts and form
associations with whomever they choose The example is the
change from the master-servant link to the employer-employee
contract
• Because of this thesis, Maine is seen as one of the forefathers of
modern legal anthropology, legal history and sociology of law.
 Maine Criticized
• That his study of law suffers lack of sufficient or
misinterpreted evidence, for example
– The rigidity primitive law, as portrayed by Maine, is
challenged by contemporary anthropologists who
emphasize the remarkable adaptation of primitive peoples
and the flexibility of legal arrangements
– His explanation of the evolution of law was based primarily
on the progress of civilization under the direction of the
privileged few. He was condemned for glorifying the
European culture.
– His evolutionary scheme is argued to be inapplicable
today. There was the lack of comparative ethnographic
data on non-European societies at the time Maine wrote
his findings.
 Maine Criticized…
• That status does not yield invariably to contract.
Critics point out that, for example, feudalism can
be interpreted as embodying a move from
contract to status. Moreover, current
development may be interpreted as indicating a
move from contract to status in some areas of
society, e.g., in the case of industry-wide
collective bargaining and protective social
legislation where the status of the parties to the
bargaining would determine the final terms of
the agreement. (power to bargain based on the
status of the parties)