Amity Law School Noida

Amity Law School, Noida

JURISPRUDENCE
Ashwani Pant

1
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The Historical and Anthropological

Jurisprudence
 Amity Law School Noida

The Historical and Anthropological

Jurisprudence
The law does not fall from the sky. It tends to
develop as an expression of a society’s peculiar
culture, and values.
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Introduction to Historical School

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.
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Prime Reasons for the Evolution

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”.
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The Basic Tenets of Historical School

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.
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Cont’d
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.
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History can play dual roles in law practice and judicial decision-making
• 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 some
times 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.
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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.
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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 Volksgeist. This study aims at analyzing the
concept of Volksgeist and the Historical School of Law. It also relates
the concept with African customary law.
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Volksgeist
Volksgeist (also volksseele, Nationalgeist or Geist der Nation, Volkscharakrer,
and in English “national character”) is a term connoting the productive principle
of a spiritual or psychic character operating in different national entities and
manifesting itself in various creations like language, folklore, mores, and legal
order.
According to Savigny, the nature of any particular system of law, was the
reflection of the “spirit of the people who evolved it.” This was later characterized
as the volksgeist by Puchta, Savigny’s most devoted disciple. Savigny believed
that law is the product of the general consciousness of the people and a
manifestation of their spirit. The basis of origin of law is to be found in volksgeist
which means people’s consciousness or will and consists of traditions,
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Volksgeist
habits, practice and beliefs of the people. The concept of volksgeist in
German legal science states that law can only be understood as a
manifestation of the spirit and consciousness of the German people.
As already mentioned, his theory served as a warning against hasty
legislation and introduction of revolutionary abstract ideas on the legal
system unless they mustered support of the popular will, volksgeist.
Savigny’s central idea was that law is an expression of the people. It
doesn’t come from deliberate legislation but arises as a gradual
development of common consciousness of the nation. The essence of
Savigny’s
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Volksgeist
volksgeist was that a nation’s legal system is greatly influenced by the
historical culture and traditions of the people and growth of law is to be
located in their popular acceptance. Since law should always conform to
the popular consciousness i.e. Volksgeist, custom not only precedes
legislation but is also superior to it. For him, legal system was a part of
culture of a people. Hence, law wasn’t the result of an arbitrary act of a
legislation but developed as a response to the impersonal powers to
found in the people’s national spirit.
Laws aren’t of universal validity or application. Each people develop its
own legal habits, as it has peculiar
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Volksgeist
language, manners and constitution. Savigny insists on the parallel
between language and law. Neither is capable of application to other
people and countries. The volksgeist manifests itself in the law of
people: it is therefore essential to follow up the evolution of the
volksgeist by legal research. The view of Savigny was that codification
should be preceded by “an organic, progressive, scientific study of the
law” by which he meant a historical study of law and reform was to
wait for the results of the historians. Savigny felt that “a proper code
[of law could only] be an organic system based on the true fundamental
principles of the law as they had developed over time”.
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Volksgeist
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.
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Criticism of Von Savigny
Questions for consideration:
How contemporarily realistic is Savigny’s historical
perspective to law?
The people-oriented approach of Savigny does not
immune his theory from harsh criticism. Discuss
Case Law: Edet v. Essien, mojekwu v. Mojeku, Attorney General
of Botswana v. Unity Dow, Abusez v. Obusez, Bhe and Others v.
Khayelitsha Magistrate and Others, Akinnubi v. Akinnubi, etc.
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Criticism
First, the volksgeist is perceived by many as fictional, incapable of
proof, and of little value in jurisprudential analysis. Although Savigny’s
nationalistic veil might have endeared him to like minds, his definition or
description of the volksgeist – the nucleus of his proposition – as
resembling “a spiritual communion of people living together, using a
common language and acting a communal conscience” was neither here
nor there. For example, in heterogeneous societies or pluralistic societies
such as exist in most parts of the world, it would be an uphill task to
locate that “communal conscience”. Perhaps, his theory was meant to
apply to highly homogenous societies but he did not make this clear.
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Criticism
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.
Note that 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.
Dias maintains that many institutions like slavery have originated not in
volksgeist but in the convenience of a ruling oligarchy.
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Criticism
Second, Savigny overestimated or overrated the potency of custom. It
is true that custom, being a mirror of accepted usage, has a role to play
in cementing sections of the country together. But the utility of custom
is limited in the face of societal complexities, the challenge of
development, etc. *Within the context of African experience, we may
ask the extent to which customs determine the laws of Anglophone,
Francophone and Lusophone Africa. Evidently, these parts of Africa
were colonized by the English, French and the Portuguese respectively.
The colonists came with their laws many of which displaced pre-
existing customs. Although indigenous people
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Criticism
initially rejected such displacement, the have come to accept or retain many
of such laws in their legal systems at independence and beyond. In Ghana,
for example, the received English law (common law, equity and statute of
general application) has become part and parcel of Ghanaian legal system.
Third, Savigny has been cited for inherent inconsistency. He advocated the
nationalism of laws. As a German, this meant that German legal system
must be based on German customs. Ironically, however, he recommended a
refined system of Roman Law for German people. This was absolutely
against the intent and purposes of the volksgeist because by no stretch of
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Criticism cont’d
the imagination were Rome and Germany one and the same thing. In
contemporary times, the irrelevance of Savigny’s advocacy is glaring. This is
because in our global village, there is mutual interdependence so that, based on
the needs, countries freely import foreign laws into their legal systems. For
example, Ethiopia’s Haile Selassie employed the French Professor, Rene Dafr, to
write the country’s Criminal Code, which was fashioned after the French Law.
Note that the provisions in many international conventions signed and
domesticated by most countries were originally the customs or the foreign law of
very few countries. Although their domestication does not undermine the
importance of customs, it demonstrates the gross limitation of Savigny’s thesis
on custom as the structural or basic source of law.
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Summary
(a) The concept of received law is anathema;
(b) Law is inferior to the custom of the people. Therefore, custom of
the people must be their law;
(c)Law personifies the people, and signifies a paradigm of their
values;
(d) There is no universal law. The universality of law is limited by
geography and culture;
(e) Law is not static. It is amenable to development; and
(f) There is no law giver. Law comes from the people.
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Cont’d
Unlike the claim made by natural law theorists, Savigny
canvassed the view of legal relativism. In other words, there
is no universal law as every law is culture-specific and
limited by time, space and geography. The implication of
this position is that law is not as durable as the natural law
school suggests and, more importantly, its contents are a
function not of metaphysical demands but of the exigencies
of the society in question.
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Questions for Consideration:

1. What is the relevance of Historical school of
jurisprudence to legal studies in Ghana?

2. Discuss the role of the schools of jurisprudence

in preserving African customary law.
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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.
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“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, legal codes –
led to the conclusion that these communities were governed
by custom rather than law.
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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
organisation). In their place, the oligarchies of political and military rulers
emerged. The oligarchies claimed monopoly of control over the institutions of
law. Notably, Ghana could be said to have experienced this under military
regimes where rulers of the
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Cont’d
period manipulated the legal system through decrees and
edicts. 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.
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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.
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Cont’d
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 helps to ameliorate the harshness of the law. A classical 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.
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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.
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Criticism of Maine
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.
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Cont’d
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.
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Questions for Consideration

Enumerate and discuss the three
developmental stages that a society is destined
to experience.

Maine’s categorization of societies into static

and progressive societies is more apparent
than real. Discuss.
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Question to Consider in Class

Law is a Development of the Popular
Consciousness of a People. Discuss!