ABSTRACT

The ‘historical movement’ in jurisprudence reflects the belief that a deep knowledge of the past is essential for a comprehension of the present. A study of existing legal institutions and contemporary legal thought demands an understanding of historical roots and patterns of development. Two jurists are selected for comment, Friedrich Carl von Savigny (1799-1861) and Sir Henry Maine (1822-88). Savigny, a Prussian statesman and historian, viewed law as reflecting a people’s historical experience, culture and ‘spirit’. For him, ancient custom guides the law; the growth of legal principles is evidence of ‘silentlyoperating forces’ and not the result of deliberate decisions. Maine, the first professor of comparative jurisprudence at Oxford, suggested that legal ideas and institutions have their own course of development, and that evolutionary patterns of growth may be deduced from historical evidence.