JURISPRUDENCE 2.6 THE ANTHROPOLOGICAL SCHOOL
Henry Maine: society can be grouped into the Static (with laws which consist of commands of oligarchs/kings which end up in codification) and progressive society (legal fiction and concepts develop to make up for what the codes do not contain. E.g. equity). The Personality Ish. Olaniyan V University of Lagos. Unlike Savigny, he favoured codification. He noted that the movement of progressive societies has hitherto been a movement from status to contract. Example being seen in the roman law where Wives, Children and Slaves were gradually conceded status and legislations removed certain disabilities. Primitive societies are far more complex than he supposed. And people in primitive societies were not mumu. His proposition that law and religion were indistinguishable in societies has also been disputed by Hoebeld who noted htat the distinction between sky king and earth king existed.
Regarded as part of the Historical school. Notable here is sir Henry Maine 1822-1888 who inaugurated both the comparative and anthropological approaches to the study of law. Entails the study of less developed (primitive) people by those who believe they are supreme. Vino Gradoff noted that there are 6 stages of human development viz Totemistic Society (the lowest where they worship totems like images, diety and so on) Tribal Law: where rules are defined according to custom. Civil Law, Medieval Law, Individualistic Jurisprudence, beginnings of socialistic jurisprudence.
Malinowski. Diamond’s Work the salvage society.
See for example the study of the Tivs by Bohannan, Study of the Igbos by MM Green and so on. They used concepts like; native, custom, tribal law and so on.Criticised for bias. R V Ankeyo 1917 7 EALR 17 an East African Case where the court noted that the whites superimposed their culture on Africans. The repugnancy doctrine was motivated by anthropology. Dennis Lloyd in “Idea of Law” noted at page 235: the primitive societies were usually acephalous… there is a community but not a state. This lack of centrality means that primitive law is dependent on rather indiscriminate modes of enforcement.
