THE HISTORICAL SCHOOL

This school posits that there is what is called the spirit of the people (volkgeist), which binds the people of a particular society together and distinguishes them from any other people. Accordingly, before a law is made for a society, there must be an indepth understanding of the history of the people. In other words, for a law to be 'valid', it must accord with the history and the way of life (custom) of the people. 

The historical school tends to give the impression that it is the past and not the will and objectives of a society that determine its law and future. It is a school built on the belief that the study of existing laws requires an understanding of its historical roots and growth.
The major proponent of the historical school is the German jurist, Von Savigny. His theory arose out of the question whether Roman law should be adopted in Germany. In his works, he argued for the creation of a unified legal code for Germany, independent of the influence of foreign legal systems. According to him, law is best fulfilled when it reflects the custom of the people. He further maintained that custom not only precedes legislation but is superior to it; as such, legislation should at all times conform to the volgeist of the people. However, it is important to state that Savigny's philosophy was not opposed to reform; it was to preach the warning that reforms, which went against the stream of a nation's continuity, were doomed. He emphasized that the muddled and outmoded nature of a legal system was actually due to failure to comprehend its history and evolution. The essential prerequisite to the reform of German law was, for him, a deep knowledge of its history instead of accepting Roman law in its entirety without regard to the history of German law.

Dias' Criticism of Savigny's postulations
* There is undoubtedly an element of truth in Savigny's theory but he (Savigny) made too much of it. Placing focus on the historical aspect of a legal rule or legal system will only solve part of the problem. 
* Savigny's concept of 'volkgeist' was too imaginative and theoretical. We were not even educated on how this volkgeist is formed.
* His contention that the French Revolution was due to the impact of foreign legislations in her laws is not entirely true. For example, the Roman Code was adopted in a number of countries and there was no revolution. Or can it be said that it was only the France of Savigny's time that had a volkgeist. 
* Sometimes, law is a necessary instrument to change existing historical/customary ideas e.g. The abolition of the osu caste system in Eastern Nigeria.
*  In heterogenous societies like Nigeria, it is difficult if not impossible to identify the volkgeist of the peoples.
* New doctrines of law have been deliberately introduced by ingenous individuals and history had no role to play there.
* Certain concepts are not peculiar to any particular people as they have universal application. 
 
Professor Hakeem Olaniyan (Department of Jurisprudence & International Law, Faculty of Law, University of Lagos) is one of the proponents of the historical school. The erudite scholar holds the view that if serious attention had been paid to the history of our laws by our courts in the interpretation of laws and adjudication of disputes, a lot of legal blunders would have been avoided. He cited cases like Dairo v UBN, Gateway Transport v Ogunde.
In the year 2000 or thereabout, the Zamfara State Government enacted legislations significantly modifying the provisions of the Penal Code. Expectedly, the enactments created uproar, most of which emanated from outside Zamfara and from non-muslims in Zamfara. Olaniyan, in his work entitled STATE CRIMES AND S. 42 OF THE 1999 CONSTITUTION made an attempt to identify the main problem in this regard. The problem he traced to the dual system of criminal law which preceded the Penal Code in the North. He noted that sentiments and customs are not changed by imposition of supposedly more civilized system, through a local legislation with general application. Such legislation won't represent the volkgeist of the people and therefore treated with contempt. There is a spiritual aspect to every legal rule or body of legal rules and legislations would be better received if they reflect that spirit rather than obliterate it. He noted that rather than imposing their law on the northerners, the Europeans should have invested much in education, the motive being to make them feel/see the need for a change. Reference was made to Savigny who stated that legislations must reflect the volkgeist (spirit) of the people and should there be a need to change these laws, the change must be guided by the same spirit of the people. 
In Nigeria, there are certain laws which do not conform with the antecedents and practices of the people. First is in the area of crime where superstition is marked off as unreasonable. See S. 210 C.C. Secondly, Customary Law and Islamic Law marriages are discriminated against under the Criminal Code and the Evidence Act. See for example the provision of S. 36 C.C. Thirdly, the criminalization of bigamy under the Criminal Code Act is one that doesn't accord with the spirit of our people. See S. 307 C.C. and the case of R v Princewill. Ultimately, we have the issue of adultery which is frowned at under the various customs in Nigeria. But in Aoko v Fagbemi, the court refused to enforce the customary rule simply on the ground that it wasn't codified. This is simply opposed to the tenets of customary law which is largely unwritten. Unfortunately, this rule is now codified under S. 36 of the 1999 Constitution without any exception.  

In DAWODU v DANMOLE, the trial court in this case had held the Idi-igi (per stirpes) system of inheritance repugnant. In the court’s view, the Ori-ojori (per capita) mode of inheritance was preferable since it was more equitable and kept with modern development. On appeal, the Privy Council reversed the decision of the lower court grounding its reasoning on the fact the the Idi-igi mode could be properly understood outside the polygamous order of marriage which characterized the Yoruba custom. The court stated that the appropriate standard for determining repugnancy is not that of a civilized society like England.... 

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