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11 Jan

JURISPRUDENCE 2.5 HISTORICAL JURISPRUDENCE

HISTORICAL JURISPRUDENCE.

That law is varies form people and ages. The historical approach according to Diaz was another manifestation of the reaction against natural law theories. On whether to adopt/import Roman Law in Europe. Thibaut Heidelberg in 1814 propsesd for a code in the lines of the Code Napoleon. Von Savigny vehemently replied by expressing his hatred for attempts to found legal systems without reference to past or existing circumstances. He expressed his hatred for the lack of historical sense.  He noted that this led to the French Revolution. He noted that to reform the law you need a deep knowledge of the law of the people else there would be wrong laws-“on the vocation”. This was later termed the Volkgeist by his follower Puchta. He noted that the Volkgeist manifested in customary rules… that law should be a reflection of the people’s spirit… the law of a people can only be understood by tracing their history. That the introduction of the Code may introduce new and unadaptable provisions. Furthermore that Codification would highlight the loopholes in the law and encourage evasion[1].

Montesquieu noted that law was shaped by social geographical and historical considerations. Burke noted that tradition should be a guide to social change. France and Italy. We have the Glossators said that conflict had been eliminated by codification. They attempted to relate roman law to contemporary problems. The spirit of the law. The effort by William Frederick Hegel to import logic into history. He notes that society moves on the basis of certain laws. Thesis-Anti-Thesis-Synthesis. The concept of Dialetics. E.g. Man-Woman-Birth-Death-Infinity and then the chain goes on

Hegelian Dialetics is divided into three.

  • Laws of interrelatedness of Phenomena. i.e. everything is related to one another.
  • Law of human unity.
  • Law of negations: this looks at the struggles of opposites.

He argued that every society is in a state of perpetual becoming… nothing is static. Everything changes. That law, logic, morality and religion are linked with one another[2]. That law is a manifestation of spirit/consciousness of the people (Volkgeist). The law/Constitution of a people is usually influenced/shaped by their spiritual consciousness. Obafemi Awolowo described Nigeria as a mere geographical expression thus it has no common spirit as different people of different tribes were amalgamated/joined. Hitler’s Dictate on Hegelian Philosophy?…. that development should flow within the channels of tradition-Dias commenting.

Von Savigny: 1779-1861 loved Hegelian theories. He argued that laws are to be found not to be made. The laws of a people are peculiar to them just like their language, food, etc.

He argues against the reception of foreign laws and notes that custom supercedes law. Nkrumah professed the supremacy of Ghana’s Law over English Law. How does Nigeria’s law reflect the sensibility of the people? To him, law is relative and varies based on culture, geography, place and time. Law is not universal. True law comes from the people’s instinctive sense of “the right” rather than black letter legislation. Law grows with the growth and strengthens with the strength of the people and finally dies away as the nation loses its nationality… law is developed by custom and popular faith… by internal, silently operating powers not by the arbitrary will of the law giver-Savigny.

Criticism: Dias in jurisprudence made the following comments:

  • Savigny was not wrong because Legislators when framing the law should have recourse should be made to the history of a people so as to prevent the reoccurrence of a past mistake. He however noted that Savigny made a mountain out of a molehill.
  • The German Swiss code has been adopted in Japan, Swiss Code in Turkey, French Code in Egypt without any revolution. Why wasn’t there a revolution. Or is it only the France of Savigny’s time that had the volkgeist to revolt?
  • New doctrines of law are deliberately introduced by ingenuous individuals like Littleton, Coke, and history did not have a role to play there.
  • Certain concepts may have universal application like contract laws and principles. That very few branches of law (like family law and succession) are really personal to a nation. In fact some countries have even imported foreign marriage codes and styles without apparent violence or revolution. Just reactions here and there. E.g. Turkey, Nigeria.
  • Law is sometimes deliberately used to change existing historical/customary ideas. E.g. the Osu abolition Law. Caste Abolition law of India.
  • Some society may not have a uniform “spirit” as there can be minor variations/inner circles within the society.
  • That the Volkgeist was rather too imaginative and theoretical and did not.
  • That he failed to tell us how the Volkgeist is formed.
  • Not just historical but also present and future factors should be taken into consideration.

Hegel believed in associations. He noted that social ethics is the synthesis between the will of the individual and the general will. That the individual is the product of his culture. Gierke held a similar opinion.

Herbert Spencer noted that the combination of the principles of persistence of force, indestructibility of matter and continuity in motion with other laws results in the process of evolution. Man should not attempt to use legislation to organise the society but rather to wait for evolution to take its course. Noting that the individual inherigs the social instinct from his ancestors. This is why different groups evolve differently.

Savigny maintained that lawyers have the duty of trying to reflect accurately the Volkgeist.

See Nigerian customary law cases. Edmund Gorf noted that the constitution should be a product of gradual and organic development.

 

 

[1] Dias Counters this argument by saying there could be amendment.

[2] This is the concept of monoism.

Isochukwu

Quite eccentric really

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