UNIT 7

VON SAVIGNY HISTORICAL SCHOOL OF LAW

The Historical School of Law, developed by Friedrich Carl von Savigny, emphasizes the organic connection between law and the culture of a society. This school of thought argues that law evolves naturally over time, shaped by the customs, traditions, and experiences of the people it governs. It rejects the notion that law can be artificially created by legislation without considering the historical context and cultural heritage. The legal system in Nigeria is a product of its colonial history and indigenous traditions. The received English law, including common law and equity, has been integrated with customary laws reflective of the diverse ethnic groups in Nigeria. This blend underscores the importance of understanding the historical and cultural context in the application of law and where customary law in Nigeria varies across different ethnic groups and is a clear example of the Volksgeist concept. These laws have evolved over centuries, reflecting the customs, traditions, and beliefs of the communities they govern. See the case of Augustine Nwaigwe v. Okwudili Okele (2008) 5 NWLR (Pt. 1079) 110 which highlighted the application of customary law in determining the validity of marriage and inheritance rights. The court recognized the importance of historical and cultural context in interpreting customary law and the case of Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 where the court emphasized the need to consider the historical development of customary laws in adjudicating disputes involving traditional titles and land ownership. Key concepts of Von Savigny's historical school includes the following;

1. Law as an organic growth: this is where Von Savigny asserted that law is not an arbitrary set of rules imposed by authorities but a product of the collective consciousness of the people. It grows organically, much like language or customs, reflecting the spirit of the people (Volksgeist).
2. Volksgeist (spirit of the people): this is where the concept of Volksgeist is central to von Savigny’s theory where he believed that law derives its legitimacy and authority from the common consciousness and traditions of the community. As such, law should evolve in harmony with the cultural and historical context of the society.
3. Law and history: this is where Von Savigny emphasized the importance of historical context in understanding and developing legal systems. He argued that laws must be studied in the context of their historical development to appreciate their true meaning and application.
4. Rejection of universal law: this is where Von Savigny rejected the idea of a universal legal system that could be applied uniformly across different societies. He believed that each society’s law should reflect its unique historical and cultural background.

CRITICISMS OF VON SAVIGNY'S HISTORICAL SCHOOL

1. Conservatism: this is where critics argue that the Historical School tends to be conservative, potentially hindering legal reforms needed to address contemporary issues. By focusing too much on historical context, there is a risk of perpetuating outdated customs that may no longer serve the society's needs.
2. Diversity in customary laws: In a multicultural society like Nigeria, the diversity in customary laws can create inconsistencies and conflicts. The Historical School’s emphasis on cultural specificity may complicate the harmonization of laws necessary for national cohesion.

HENRY MAINE'S HISTORICAL SCHOOL OF LAW

Sir Henry Maine, a British jurist and historian, contributed significantly to the Historical School of Law through his comparative studies of ancient societies. His work focused on the progression of legal systems from primitive to modern societies, emphasizing the transition from status-based relationships to contract-based relationships. In Nigeria, the evolution of customary law can be observed in the gradual shift from rigid, status-based structures to more flexible, contract-based interactions. This transition is evident in areas such as marriage, inheritance, and land tenure systems and where Nigerian courts recognize and apply customary law, provided it is not repugnant to natural justice, equity, and good conscience. This principle allows for the adaptation of customary laws to contemporary societal values. See the case of Oyelakin Balogun v. Mrs. Elizabeth Balogun (1969) 1 NMLR 349 which highlighted the application of customary law in matrimonial disputes. The court considered the evolution of customary practices in determining the rights and obligations of the parties and the case of Lewis v Bankole (1908) 1 NLR 81where the court examined the transition from status-based inheritance rules to more flexible arrangements, reflecting the changing social and economic conditions in Nigerian society. Key concepts of Maine's historical school includes the following;

1. Status to contract: this is where Maine’s most influential concept is the transition from "status to contract." where he argued that early legal systems were based on social status and rigid hierarchies, whereas modern legal systems emphasize individual autonomy and contractual freedom.
2. Patriarchal theory: this is where Maine proposed that ancient societies were organized around patriarchal families, where the patriarch held absolute authority. This structure influenced the development of early legal systems.
3. Legal evolution: this is where Maine believed that legal systems evolve through distinct stages, influenced by the changing social and economic conditions of societies. He identified several stages in the evolution of law, including primitive law, customary law, and codified law.

CRITICISMS OF MAINE'S HISTORICAL SCHOOL

1. Linear progression: this is where critics argue that Maine’s theory of linear progression oversimplifies the complexities of legal evolution. Societies do not necessarily follow a uniform path from status to contract, and different legal systems may evolve in diverse ways.
2. Overemphasis on patriarchy: this is where Maine’s focus on patriarchal structures has been criticized for overlooking the roles and contributions of other social groups, such as women and marginalized communities, in the development of legal systems.

CONCLUSION

The Historical School of Law, as developed by von Savigny and Henry Maine, provides valuable insights into the organic development of legal systems. In the Nigerian context, the principles of this school underscore the importance of historical and cultural context in shaping and interpreting laws. While the Historical School offers a compelling framework for understanding the evolution of law, it also faces criticisms for its conservatism and potential oversimplification of legal development. Nevertheless, the recognition and application of customary law in Nigeria illustrate the enduring relevance of historical and cultural considerations in contemporary legal practice.