ABSTRACT
In this chapter, reference is made to the ‘historical movement’ in jurisprudence. The movement centres on the thesis that the study of existing structures of legal thought requires an understanding of its historical roots and its pattern of evolution. Current legal systems and jurisprudential concepts have developed over long periods of time; the common law jurisdictions, in particular, give evidence of a continuous process of evolution. It is in the records of the past that the keys to a comprehension of the present may be discovered. The questions in this chapter refer to Savigny (17991861) and Maine (1822-1888). Savigny, a Prussian statesman and historian, sought for an understanding of law through an investigation of the individuality of national cultures, in particular, the ancient and enduring Volksgeist – the ‘spirit of the people’. Maine, founder of the English school of historical jurisprudence, made an intensive study of ancient law which revealed to him the existence of evolutionary patterns of development. Both Savigny and Maine sought to use the lessons of history to assist in the analysis of jurisprudential problems of their own times.
