1.
Enumerate and discuss the three developmental
stages that a society is destined to experience.
2.
Maine’s categorization of societies into static and
progressive societies is more apparent than real.
Discuss
3.
Law is a Development of the Popular Consciousness
of a People. Discuss
4.
What is the relevance of Historical school of
jurisprudence to legal studies in Tanzania?.
The historical school of
jurisprudence manifests the belief that history is the foundation of the
knowledge of contemporary era. Two
jurists who researched extensively in this area – Friedrich Carl Von Savigny (1799-1861) and Sir Henry Maine
(1822-1888) will be the subject of examination in this section.
History is a record of past events. As man has a past so does law. The
importance of historical school of jurisprudence cannot be overemphasized. Apart from standing in opposition to the
natural law school, the historical
school is unique for its emphasis of the relevance of generations past to the
present and the future.
The Two Prime Reasons for the Evolution of Historical School:
1. It came as a reaction against natural law, which relied on reason as the
basis of law and believed that certain principles of universal application can
be rationally derived without taking into consideration social, historical and
other factors.
2. It also came as a reaction against analytical positivism which
constructed a soul-less barren sovereign-made-coercive law devoid of moral and
cultural values described by Prof. Hart as “gun-men-situation”.
The Basic Tenets of Historical School can be Summarized as follows:
1. Historical jurisprudence is marked
by judges who consider history, tradition, and custom when deciding a legal
dispute.
2. It views law as a legacy of the
past and product of customs, traditions and beliefs prevalent in different
communities.
3.It views law as a biological
growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial
creation.
4. Law is not an abstract set of
rules imposed on society but has deep root in social and economic factors and
the attitudes of its past and present members of the society.
5. The essence of law is the acceptance, regulation
and observance by the members of the society.
6. Law derives its legitimacy and authority from
standards that have withstood the test of time.
7.The law is grounded in a form of popular
consciousness called the Volksgeist.
8. Law develops with society and dies with society.
9. Custom is the most important source of law.
History can play dual roles in law practice and judicial decision-making
First Role: One role emerges through the legal doctrine of stare decisis, a key
component in a common law system. It
requires a court to consider and follow previous decided cases (precedents)
that sufficiently resemble an instant or current case. As it is sometimes
phrased, courts should treat like cases alike. Stare decisis therefore requires
a court to consider history: the history or tradition of analogous cases. The
problem that arises, however, is that the similarity and dissimilarity between
a prior case (or precedent) and a current case is almost always disputable.
Second Role: History also sometimes plays a second role in law practice and judicial
decision-making. Namely, lawyers and
judges sometimes invoke historical arguments to support a particular legal or
judicial conclusion. As a general matter, lawyers and judges typically accept
certain types or modes of argument as being legitimate within the legal system.
History often plays a prominent role in constitutional law. Attorneys
and judges will assert that historical evidence reveals that the framers of a
constitutional provision intended to achieve some desire goal.
Basic Concept of Savigny’s Volksgeist
Von Savigny, a prominent German jurist through his concept of Volksgeist
introduced a new dimension in the legal arena. In fact, his historical school
was anchored on the Volksgeist, or ‘the spirit of the people’. Savigny, also
known as the pioneer of his Historical School of Law through concept of
Volksgeist explains the need to understand the interrelationship between law
and people. For him, law and people cannot be isolated from each other and this
is well explained by Savigny’s concept of
Savigny’s method stated that law is the product of the volksgeist,
embodying the whole history of a nation’s culture and reflecting inner
convictions that are rooted in the society’s common experience. The volksgeist
drives the law to slowly develop over the course of history. Thus, according to
Savigny, a thorough understanding of the history of people is necessary for
studying the law accurately.
Criticism:
As already stated, a precise and flawless definition of law is far from
reality, and Savigny‟s Volksgeist is no exception. The following are the
criticisms of Savigny‟s Volksgeist:
1.Dias maintains that many
institutions like slavery have originated not in Volksgeist but in the
convenience of a ruling oligarchy.
2. It is not clear who the volk are
and whose geist determines the law nor it is clear whether the Volksgeist may
have shaped by the law rather than vice-versa.
3. In pluralist societies such as
exist in most parts of the world it really seems somewhat irrelevant to use the
concept of Volksgeist as the test of validity.
4. Important rules of law sometimes
develop as a result of conscious and violent struggle between conflicting
interests within the nation and not as a result of imperceptible growth. That
applies to the law relating to trade unions and industry.
5.Lord Lloyd also points out that
Savigny underrated the significance of legislation for modern society. Sir
Henry Maine rightly pointed out that a progressive society has to keep adapting
the law to fresh social and economic conditions and legislation has proved in
modern times the essential means of attaining that end.
6. Paton states that the creative
work of the judge and jurist was treated rather too lightly by Savigny.
7.A survey of the contemporary
scene shows that the German Civil Code has been adopted in Japan, the Swiss
Code in Turkey and the French Code in Egypt without violence to popular
propensity.
8. It was unfortunate that the
doctrine of Volksgeist was used by the National Socialist in Germany for an
entirely different purpose which led to the passing of brutal laws against the
Jews during the regime of Hitler in Germany.
Sir Henry Maine’s School of Law (1822-1888)
Maine’s deep knowledge of early society resulted in his emphasis on man’s
deep instincts, emotions and habits in historical development. According to
Maine, law can be understood as a late stage in a slow-evolving pattern of
growth. He believes that there are three stages in legal development in early
societies
– law as
the personal commands and judgments of patriarchal ruler; law as custom upheld
by judgements; and law as code.
“Law” in Tribal Societies
Primitive, tribal societies appear to lack “law” in the form that exists
in so-called advanced societies. The absence of the institutions that we
normally associate with legal system – courts, law enforcement authorities,
prisons, and legal codes led to the conclusion that these communities were
governed by custom rather than law.
Three Stages in Legal Development
In the first stage, absolute rulers dominated. It was the age of the divine rights of
Kings, where the king could do no
wrong. System of ruler ship was absolute and draconian. There were no
principles governing governance; only the whim and caprice of the king reigned.
Recall Austin’s commander, who was above the law, and whose commands must be
obeyed by inferiors.
The second stage is heralded by the decline of the power and might of patriarchal rulers
(i.e. a small group of people having
control of a country or organization). In their place, the oligarchies of
political and military rulers emerged. The oligarchies claimed monopoly of
control over the institutions of law.
Maine
maintains that the judgments of the oligarchies evolved or solidified into the
basis of customs. But the customs are largely unwritten, giving interpreters
the opportunity to enjoy a monopoly of explanation.
In the third stage, which represents the breaking of the monopoly of explanation,
codification characterizes the legal
system.
Static and Progressive Societies
Maine further propounded that for the purpose of the development of law,
society can be categorized into two: static and progressive society.
Static or stationary societies did not move beyond the concept of
code-based law. In this society, reference to the code answered all legal
questions. According to Maine, members of the society were lulled into the
belief in the certitude of code and were, therefore, unwilling to reform the
law.
On the other hand, progressive societies were to be found in Western
Europe. These societies were dynamic and amenable to legal reform. They brought
about the development and expression of legal institutions.
In the development of law in progressive societies, Maine identified the characteristic use of three agencies – legal fictions, equity and
legislation. Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities
of the formal law. According to Maine, legal fictions help to ameliorate the
harshness of the law. A classic example he gave was the institution of the
Roman fiction of adoption. He called equity a secondary system of law. It
claimed a superior sanctity inherent in its principles which exist side by side
with the law. In many cases, it could displace the law. Legislation represents
the final development of the law. It is an institution through which various
laws in the society are reduced into writing or codes.
Miscellany
Maine is known to have commented on “status” and “contract”. He said
that “the movement of progressive societies has hitherto been a movement from
status to contract”. In explaining this statement, Maine said that in early
times an individual’s position in his social group remained fixed; it was
imposed, conferred or acquired.
He
just stepped into it. He accepted such fate as he found it. He could do nothing
about it. Later on, however, there came a time when it was possible for an
individual to determine his own destiny through the instrumentality of
contract. No longer was anything imposed on him from external forces; he was
now in charge: from slavery to serfdom, from status determined at birth, from
master-servant relationship to employer – employee contract.
Maine Criticisms
Maine is criticized for
oversimplifying the nature and structure of early society for the following
reasons:
Early society does not show an invariable pattern of movement from the
three-stage development of law – from personal commands and judgments of
patriarchal rulers through law as custom upheld by judgments to law as code.
The so-called rigidity of the law has repeatedly be challenged by
contemporary anthropologists who are of the opinion that primitive peoples were
adaptable and their laws flexible.
Also, there were matriarchal
societies just as there were patriarchal societies.
Furthermore, it has been observed that status does not necessarily
gravitate to contract. Rather, the opposite development has been possible. For
example, social welfare legislation in advanced countries is status-based. In
the U.S., “affirmative action”, a policy that is predicated on Afro-Americanism,
is status-based. Also, in Canada and UK, the status of a single mother is
recognized in law.
Conclusion: Although Maine lived up to his historical commitment, he overlooked
the dynamics that have characterized
societies across ages.
jurisprudence
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