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all we have learnt from anthropology and ethnography about primitive men and primitive society we perceive that the first task of life is to live (i.e to survive)..Need was the first experience and it was followed by some blundering effort to satisfy it.
Evaluation
Sumner does not offer an adequate account of how the Folkways and Mores of some groups or elements in a society may prevail over those of other groups. He does not even give account of the special role of law in maintaining social cohesion or social order. The attempt to found common law assumptions in sociological analysis leads to powerful assertion of laws lack of autonomy as a social institution. But it merely raises further questions about the nature of the forces that shape law.
Savigny
The late 18th century and early 19th centuries saw the emergence of the first great European legal codes, most notably the French Civil Code of 1804. With them the modern idea of law as a comprehensive system of logically ordered and conceptually coherent doctrine, as opposed to a mere collection of customary rules or judicial precedents, became established in continental Europe. The German conservative statesman and jurists Friedrich Karl von Savigny was, in this context eloquent defenders of the old legal world.
Savigny
To Savigny, the proposed codification of German law at the beginning of the 19th century seemed disastrous. Primarily, because it sought to fix in immutable principles, legal ideas which, as an expression of culture should be allowed to develop spontaneously. While Sumner emphasises the insensitivity and ineffectiveness of legal innovations through legislation if social roots of law are ignored. Savigny stresses the atrophying of natural processes of change in social rules when the state ignores those processes and seeks to fix legal doctrine in a comprehensive conceptual system.
Savigny
In a famous pamphlet of 1814, Savigny set out the reasons for his opposition to codification and in doing so spelled out a theory of social basis of law which was to have profound influence. For Savigny, law is an expression- one of the most important expression together with language. Volkgeist- spirit of the people. This deeply mystical idea atleast involves the notion that law is much more than a collection of rules or judicial precedents. It reflects and expresses a whole cultural outlook.
Savigny
The spirit of a nation or people is the encapsulation of its whole history, the collective experience of the social group extending back through the ages of its existence . The law of such people or nation written down at any given time is no more than a static representation of a process which is always continuing: the evolution of culture. For Savigny, law is incomprehensible as a social phenomenon except in the perspective of the history of the society in which it exists.
Savigny
Legal development passes through the early stage of unwritten customs, followed by writing down of customs as rules. The earliest known written codes of law, for example- Code of Hammurabi give all the appearances of more or less systematic collection of customary norms. Yet, as has often been remarked, with this writing down customary law lost its character as custom. It could be interpreted as rules.
Savigny
The reduction of law to written form reflected the rise of political authorities and the transformation of law from customary norms based on the relations of individuals arising out of chance circumstances to an aspect of political power. In Savignys analysis, from this stage of historical development, laws sociological character seems to become ever more problematic. As society develops, the division of functions becomes more clearcut among its members and the development of classes and subgroups becomes more pronounced.
Savigny
In early society, volkgeist is reasonably identifiable and capable of spontaneous expression through law, this becomes progressively less so for two reasons: - First, division of function and class make it harder for the common consciousness of the people to provide a sufficiently powerful impetus for the spontaneous creation of new law. - Secondly, the forms of law themselves become more complex until they leave behind the common consciousness as far as the details and techicalities of the rules are concerned.
Savigny
According to Savigny, this situation gives rise to two major institutional developments: - Modern Legislation. - Modern Legal science. When spontaneous processes of law creation no longer operate effectively, legislative institutions are necessary. Legislation is important : - First to remove doubts and uncertainties in evolving law. - Secondly to enact settled customary law but not in the manner of a code which denies the evolutionary nature of law by setting out fix, final and comprehensive principles.
Savigny
Legislative activities when drift from their appropriate functions, they become detached and remote. Somehow the legislator must be the true representative of the volkgeist. As law drifts further away from its roots in community life and ceases to be a part of folk knowledge, its knowledge becomes the monolpoly of a special order of persons skilled in law whose job is to know and organise the rules of law.
Savigny
Law henceforth leads a twofold life - In its broad outline, it continues to live in the common consciousness of the people. - In detail, it becomes the sole preserve of lawyers.