Historical and Anthropological Jurisprudence Explained | Savigny, Maine and Legal Pluralism

Deskripsi

In this lecture, I explain Historical and Anthropological Jurisprudence, a major shift in legal theory from abstract reasoning to law as a social and cultural reality. This school rejects the idea that law can be understood merely as command, logic, or universal moral principle. Instead, it insists that law must be studied within the society in which it operates. The central idea is that law is not created at a single moment; it develops gradually over time. It grows out of customs, social practices, and shared expectations. What later becomes formal law often begins as informal behaviour within a community. Law is therefore evolutionary, continuous, and rooted in history. This approach emerged as a reaction against natural law and positivism. Natural law theorists sought universal principles derived from reason, but historical jurists argue that law varies across societies and cannot be reduced to a single moral standard. Positivism, especially in the Austinian sense, defines law as the command of a sovereign backed by sanctions. The historical school criticises this as too narrow because law often exists before the state and outside formal legislation, particularly in customary systems. A key figure is Friedrich Carl von Savigny, who argued that law reflects the Volksgeist, the spirit of the people. Law, in his view, grows organically like language. It is not imposed but develops from shared traditions and social life. This explains his resistance to premature codification, which he believed could distort legal development. Sir Henry Maine further advanced this school through comparative analysis. His famous thesis is that progressive societies move from status to contract. In early societies, legal rights depended on family or social position. In modern societies, they arise from agreement and individual choice. Although not universally applicable, this remains a powerful explanation of legal development. Anthropological jurisprudence extends these ideas by examining law in non-state societies. It rejects