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Custom & Historical School
CUSTOM AND HISTORICAL SCHOOL
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Played an important role in earlier development
of law
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Malay adat has been described as total way of
life
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Article 38(1)(b)Statute of International Court
of Justice:
“custom as evidence of international
practice is the 2nd element the court shall take into consideration
when deciding cases, two elements to constitute customary international law is
physical element and opinion juris”
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Founder of historical school of jurisprudence à
F.K von Savingy
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Savingy
did not accept natural law instead he said a legal system is part of the
culture of the people
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Savingy
said: law developed as a response to the impersonal powers to be found in the
people’s national spirit which is linked to the biological heritage of the
people called Volksgeist
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Savingy: studied
the course of development of roman law adapted to German conditions of local
ideas
Volksgesit: A german word meaning ‘spirit’ possessed collectively by
each people/nation. This word was during the Romantic Era proposed by Johann
Gottfried Herder.
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Savingy:
3 elements to law:
a. Political element/stage: principles of law not
found in legislation but are part of national convictions
b. In the next stage the political element is
maintained but technical elements developed = codification of law such as the
civil legal system
c. With the decline of nation law no longer has
popular support and becomes a property of the clique
Sir Henry Maine:
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moved away from historical approach to mystical
adherence to Volksgeist
- made serious endeavor to study the nature and
development of law both in its actual historical context and also as seen in
undeveloped or savage societies
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studied early law of Greece, Rome and old
testament later replaced by native law of India
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Considered India as great repository of ancient
juridical thought
- has a book “Ancient
Law Maine” where he studies certain societies and stated laws become more
civilized/mature as it moves on
- live during the period when in biological and
scientific thought Charles Darwin evolutionary theory first developed in “The Origin of Species”
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sees legal development as have developed
serially and predictably without deviation
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Stephen Hay Gould disagreed saying it is not
unilinear but branching
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His contribution is in his systematic and
historical methods
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Blazed scientific trail into the law
- Historical school in 19th century may
have parallel thinking especially to Austin’s legal theory and natural law
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