1. Introduction to historical school

2. Introduction The law does not fall from the sky. It develops as an expression of a society’s culture and values. 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 are- Friedrich Karl Von Savigny (1779- 1861) and, Sir Henry Maine (1822-1888).

3. Introduction History is a record of past events. As man has a past, the law too. Contrary to the natural law school, the historical school is unique for its emphasis on the relevance of past and present of society.

4. Reasons for the evolution of historical school It came as a reaction against natural law. Natural law relied on right reason as the basis of law. Philosophers of natural law believed that certain principles of universal application are derived from eternal power without taking into consideration social, historical and other factors of a nation. It also came as a reaction against analytical positivism. Analytical positivism is constructed as soul-less sovereign-made-coercive law.

5. Basic tenets of historical school Historical jurisprudence is marked by judges who consider history, tradition, and customs are important for deciding a legal dispute. They view the law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities.

6. Contd.. They view law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial creation. Law is not an abstract set of rules imposed on society. It has deep roots in social and economic factors and the attitudes of its past and present members of the society.

7. Contd.. The essence of law is the acceptance and observance by the members of the society. Law derives its legitimacy and authority from standards that have withstood the test of time. The law is grounded in a form of popular consciousness called the Volksgeist. Law develops with society and dies with society. Custom is the most important source of law.

8. Role of History in law practice and judicial decision-making 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 or precedents that sufficiently resemble an instant or current case.

9. Contd.. Stare decisis therefore requires a court to consider 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.

10. Contd.. History also sometimes plays a second role in law practice and judicial decision-making. The lawyers and judges sometimes invoke historical arguments to support a particular legal or judicial conclusion.

11. Contd.. 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 accept the historical aspect of law which reveals the intention of makers of constitutional provision to achieve some desired goal.

12. F.K. Von Savigny Friedrich Karl Von Savigny was born at Frankfurt (Germany) in 1779. He is regarded as founder of Historical School of law. He traced development of law as a evolutionary process much before Darwin have his theory of evolution in the field of biological science in 1861. Dr. Allen described Savigny as “Darwinian before Darwin.”

13. Contd… According to him “law is a product of times of times the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it.” “Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality”.

14. 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 is known as the pioneer of the Historical School of Law through concept of Volksgeist. He explains the need to understand the interrelationship between law and people.

15. Contd.. For him, law and people cannot be isolated from each other and this is well explained by Savigny’s concept of Volksgeist. It also relates the concept with African customary law.

16. Contd… 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 of nation. It manifests itself in various creations like language, folklore, mores, and legal order etc.

17. Contd.. Savigny says that 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..

18. Contd.. The basis of origin of law is to be found in volksgeist which means people’s consciousness or will and consists of traditions. The 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.

19. Contribution of this Theory It is against hasty legislation: 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: It doesn’t come from deliberate legislation but arises as a gradual development of common consciousness of the nation.

20. Contd.. Custom is superior to it : 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.

21. Contd.. Application of Law is not Universal: Laws aren’t of universal validity or application. Each people develop its own legal habits, as it has peculiar 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.

22. Contd.. 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”.

23. Contd.. 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.

24. Criticism of Von Savigny The volksgeist is perceived fictional: The volksgeist is perceived by many as fictional, incapable of proof, and of little value in jurisprudential analysis. 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.

25. Contd.. For example: In heterogeneous (mixed) societies or pluralistic societies which exists in the 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.

26. Contd.. He under-rated the significance of legislation: the Lord Lloyd also points out that Savigny under-rated 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.

27. Contd.. 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. It 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.

28. Contd.. Over-importance to customs: Savigny overestimated or over-rated the importance of custom. Because the utility of custom is limited in the face of societal complexities, the challenge of development, etc.

29. Contd.. 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.

30. Contd.. Although indigenous people initially rejected such displacement, the have come to accept or retain many of such laws in their legal systems at independence and beyond. For example: In Ghana, the received English law (common law, equity and statute of general application) has become part and parcel of Ghanaian legal system.

31. Contd.. 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.

32. Contd.. This was absolutely against the intent and purposes of the volksgeist because by no stretch of 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.

33. Contd.. 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.

34. Summary The concept of received law is anathema. Law is inferior to the custom of the people. Therefore, custom of the people must be their law. Law personifies the people, and signifies a paradigm of their values. There is no universal law. The universality of law is limited by geography and culture. Law is not static. It is amenable to development. There is no law giver. Law comes from the people.

35. Contd.. 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.