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Showing posts with label jurisprudence. Show all posts
Showing posts with label jurisprudence. Show all posts
The document has been prepared by Mwakisiki E. Mwakisiki and submitted to Legusc by Legusc team you may also share your document (pdf, doc, etc) to the email address legusc1.2018@blogger.com info
The document has been prepared by Mwakisiki E. Mwakisiki and submitted to Legusc by Legusc team you may also share your document (pdf, doc, etc) to the email address legusc1.2018@blogger.com info
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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BIBLIOGRAPHY
Austin,
John. The Province of Jurisprudence Determined and The Uses if the Study of
Jurisprudence. London: Weidenfeld and Nicolson, 1954.
Cohen,
Marshall. "Herbert Lionel Adolphus Hart," in the Encyclopedia of
Philosophy. New York: Crowell, Collier and MacMillan (1967).
Dworkin, Ronald. Law’s Empire.
Cambridge: Harvard University Press, 1986.
Hart, H.L.A. The Concept of Law.
Oxford: Clarendon Press, 1994.
Hans
Kelsen: Pure Theoryof Law. Translated by Max Knight. New Jersey: The Law Book
Exchange Ltd, 2002.
Hobbes,
Thomas. "Levinthian." The Great
Legal Philosophers. Ed. Clarance Morris. Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 109-133. Print.
Aquinas, Thomas,
St.. "Summa Theologica." The Great Legal
Philosophers. Ed. Clarance
Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 57-79. Print.
Austin, John. "Lectures on Jurisprudence."
The Great Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 335-363. Print.
Hart, H.L.A. Concept of Law. Oxford, London: Oxford University Press, 1961.
76-107. Print.
Aristotle, . "Nicomachean
Ethics- The politics." The Great
Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 26-40. Print.
Introduction:
One version of legal realism was the one propounded by
Samlond, who pointed out that all law, is not made by the legislature. In fact
he argued that in England much of it was made by law courts. Nevertheless, all
laws, however made, are recognized and administered by the courts. Therefore,
if a rule is not recognized by a Court, it is not a rule of law. Thus,
according to Salmond, it is the courts and not the legislature that we must
turn to if we wish to ascertain the true nature of law. Accordingly, he defined
law as the body of principles recognized and applied by the State in the
administration of justice, as the rules recognized and acted upon by the
Courts.
However, there has been another version of legal realism, particularly
in the United States of America. According to this theory propounded by
American jurists, law is in reality judge-made. The origin of this theory is
traced to Justice Holmes, and the theory has a substantial following in the
United States.
Holmes highlights the situation not of the judge or the lawyer, but of
what he calls ‘the bad man’, i.e. the man who is anxious to secure his own
selfish interests. Such a man is not interested in knowing what the statutes or
the text books say, but what the Courts are likely to do in fact. This theory
makes a distinction between law in books and law in action.
According to this theory, what the courts will actually do cannot
necessarily be deduced from the rules of law in text books or even from the
words of the statutes themselves, since it is for the Courts to say what the
words mean. As Gray observed, “The Courts put life into the dead words of the
statute.” This approach is a reaction to the traditional approach that judges
do not really create the law, but only declare what the law already is.
This school fortifies sociological jurisprudence, and recognizes law as
the result of social influence and conditions and regards it as based on
judicial decisions. In the words of Holmes,
“The life of the law has not been logic; it has been experience.” Or as
Paton pointed out, “Law is what the Courts do; it is not merely what the Courts
say. The emphasis is on action.”
However, the American realists point out that when Courts must choose
between alternatives, much will depend on the subjective element of a judge.
The judicial process, they argue, is not like that of a slot machine. Much will
depend on the temperament, upbringing, social background, realities, learning
etc of the judge. Therefore, they contend that law is nothing more than the
prediction of what the Courts will decide.
It is also argued that the language of several statutes is uncertain and
the Courts are therefore called upon to decide what a particular word or phrase
means. Thus, for instance, the English Road Traffic Act makes it an offence to
drive a vehicle in a manner dangerous to the public. An interesting question
brought before the Court was whether a person who steers a broken down vehicle
on tow can be said to be driving it.
Since the Parliament and not defined the word ‘driving’, the word would
have to be understood in the ordinary sense. However, the ordinary usage of the
word is not wide enough to cope up with such a marginal situation, as it does
not draw a very clear or distinct line between what is driving and what is not
driving. Faced with this question for the first time in 1946, the Court had to
draw such an arbitrary line and further define the term ‘driving’ in Wallace v.
Major.
A note can also be made of Scandinavian Realism, the founder whereof was
Axel Hagerstrom. Whilst the American realists preferred to revolve around what
the Courts did and what the judges said, the Scandinavian School sought to
develop a formal philosophy of law, showing how law is not an inextricable part
of society as a whole. The Scandinavian Realist does not look at law as a
divine command. According to them, law creates morality and not the other way around.
Criticism
The view that a statement of law is nothing more than a prediction of
what the Courts will decide is subject to certain criticism.
Legal situations are not predictions
It should be noted that a statement of law is seldom treated as a
prediction, which a counsel submits before a Court. He is not forecasting what
the judge will decide, but he is asking what the judge should decide. Further,
a judicial decision is not a prediction of what the higher Courts would do, but
it is a judgment as to what the law now is. Similarly, a legislature is not
predicting what will be done, but it lays down what shall be done.
The theory represents a fraction of the situation
Though the realist view may be true to some extent in those situations
when a new principle of law is evolved, yet it should be noted that most of our
law is settled and stabilized. It should also be noted that several points of
law never reach the Court, for the simple reason that the principle of law is
so clear that the parties adhere to it.
Thus, it is argued that the creative days of the judge is now a thing of
the past. It is argued that today the law is so complete that the task of the
judges is the more or less automatic task of applying settled laws to the cases
before them.
However, this criticism is not without an answer. Legal rules are still
not as certain as was once imagined and the element of choice still faces a
Court of law. To quote one example, in England the unlawful and intentional
killing of a human being is the common law crime of murder. But what would be
the position if X intentionally inflicts a mortal wound on Y, and then,
mistakenly thinking him to de dead, throws the body into a lake, with the
result that Y dies, not from the wound but from drowning? Would this amount to
murder? Until 1954, the English law had no answer to this question, when these
facts were before the Court in Thabo Meli v. R, in which case the Court had to
further develop the English law of murder.
The theory of uncertainty of language is not always correct
It may be noted that in some border-line cases, the language may be uncertain,
as in the example of the word ‘driving’ given earlier. But to generalize that
all language is uncertain is to exaggerate the situation without foundation. In
marginal cases, the meaning of the word may be uncertain, but this proves that
the meaning of the word is certain in other cases. Therefore, the
The
origin of the theory of Legal Realism can be traced to Justice Holmes. The theory propounds that it is the courts
and not the legislature that we must turn to if we wish to ascertain the true
nature of law. The theory works on the belief that “the Courts put life into the dead
words of the statute.” However, there has been some criticism of this
theory.
jurisprudence
