The views of Maine and Savigny had indeed contributed to some provisions in the Federal Constitution of Malaysia. Before the discussion proceeds in looking into provision that reflects the views of Maine and Savigny, it is better for us to understand first, what are the views suggested, or rather arguments put forward by these two jurists. The first jurist of the discussion is Savigny. Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and legal scholar who was one of the founders of the influential “historical school” of jurisprudence.
He advocated that the meaning and content of existing bodies of law be analyzed through research into their historical origins and modes of transformation. Savigny’s great works are the Recht des Besitzes and the Beruf unserer Zeit fur Gesetzgebung. In 1814, the wave of German nationalism inspired by the war of liberation against Napoleon led the Heidelberg law professor Thibaut to demand a unified civil code for all the German states.
Savigny opposed this demand for an immediate codification of German law in a famous pamphlet, “Vom Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft” (1814; “Of the Vocation of Our Age for Legislation and Jurisprudence”), that started juristic thought along a new path. To Savigny, a hasty legal codification was something to be avoided, since the one essential prerequisite for such a codification was a deep and far-reaching appreciation of the spirit of the particular community.
Savigny’s jurisprudential perspective was in part inspired by the Romantic Movement, which took the form in Germany of a movement harking back to the simplest tribal origins of the German people, to their folk songs and tales and to their distinctive ethos, or Volksgeist (“national spirit”). To the Romantics, the national spirit thus became the ultimate datum to be explored in its various manifestations.
The Volkgeist theory introduced by Savigny seeks to shed the light that law is an expression of will of people or manifestation of people’s spirit. From this point of view law is not something that can be devised by means of rational formal legislation but rather originates in the unique spirit of a particular people and is expressed spontaneously in custom and, much later, in the formal decisions of judges. Law grows with the growth, strength with the strength of people, and dies away as the nation loses its nationality.
This can also be explained further by looking at the stages of development of law by Savigny, in which, firstly, the political element, where the law is not found in legislation but in the spirit of people; secondly, the technical element, where the law is technical and needs particular expertise to develop it; and lastly, the loss of national identity, where when the society no longer needs the first and the second stage, this is when the people no longer wants the law and wanted a new one. Moreover, he rejected natural law and positive law as law should be made by the will of the people.
Savigny pointed out that legislation and law codes can, at most, give mere verbal expression to a body of existing law whose meaning and content can only be discovered by careful historical investigations. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to derive legal theories from general and universal principles without respect to the characteristics and customs of a particular people. Savigny sought rather to uncover the content of existing law through historical research.
He held that legal science should be both historical and systematic, meaning that it should endeavour to show the inner coherence of the material handed down in the historical sources. The second jurist of the discussion is Sir Henry Maine. Sir Henry James Sumner Maine (15 August 1822 – 3 February 1888) was a Professor of Civil Law at Oxford University in 1847. He is famous for the thesis outlined in Ancient Law (1861). He studied the beginning of law, in which he concluded that ancient law was derived from codes of Manu and Narada, the Brehon Laws, the Twelve Tables and Homer.
He was learned in English, Roman, and Hindu laws and also knowledge of Celtic systems. Instead of stressing the uniqueness of national institutions, he brought to bear a scientific urge to unify, classify and generalize the evolution of different legal orders. He was the first and still remains the greatest representative of the historical movement in England. He introduced a theory based on customary law known as the anthropological approach. The anthropological approach is a study of human being based on custom.
Maine set out to discover whether a pattern of legal development could be extracted from a comparative examination of different system, especially between Roman law and the common law, which then he was led to distinguish between what he called ‘static’ and ‘progressive’ societies. ‘Static’ societies are regarded as undeveloped society and society whom do not progress. ‘Progressive’ societies are of which the societies proceed to develop the law by three methods; fiction, equity, and legislation.
Generally, Maine believed that no human institution was permanent, and that change was not necessarily for the better. An example would be when societies progressed from hunters to farmers to pastorals. Maine stated that in early societies, both ‘static’ and ‘progressive’, the legal condition of the individual is determined by status, i. e. his claims, duties, liberties, are determined by law. The coming of ‘progressive’ societies witnesses the disintegration of status and determination of the legal condition of the individual by free negotiation on his part.
One of Maine’s famous generalizations reads: ‘the movement of progressive societies has hitherto been a movement from status to contract’. This is where rather than a society based on stratified system, Maine proposes the concept of moving towards a contract society where everyone is free to negotiation at his own terms. According to Maine, there has been modification of later development, namely by means of fiction, equity and legislation. Deliberate legislation is now seen to have been an early method of law-making with fiction and equity coming at later stage.
The codes, which one finds at the culmination of the primitive period, were chiefly collections of earlier legislation. Primitive law was by no means as rigid as Maine though nor were people inflexible bound by it. It is generally agreed that even in primitive societies, people do control their destinies, that they are by no means blindly subservient to custom. The conscious purpose of achieving some end precedes the adaptation of human behavior, and the adaptation of behavior is followed by adaptation of the structure of social organization.
As it is now clear the views and propositions put forward by both Savigny and Maine, the discussion will be prolong in discussing the contribution of their ideas in its application to the Malaysian Constitution (Federal Constitution 1957). The Malaysian Constitution was drafted by taking into account the legacy of the past and product of customs, traditions and beliefs prevalent in different communities, and the need of the people. This is in line with Savigny’s view that law is not an abstract set of rules imposed on society but has deep roots in social and economic factors and the attitude of its past and present members of the society.
The social contract which Malaysian Constitution was mainly based, a form bargain made by the citizen; that they would all have a place in the new independent nation, but not without some compromise and sacrifice on everyone’s part. This social contract has always been a crucial and sometimes contentious part of the nation’s constitution. The Reid Commission and the Alliance tried hard to take into consideration the different, and times divergent concerns on the ground. “The Constitution gave everyone something and to no one everything. Everyone got something in terms of citizenship, cultural pluralism and economic/commercial rights.
The constitution did try to walk the middle path. ”(Tunku Abdul Rahman, 1957) In the same 1957 speech upon returning from London, Tunku acknowledged that while it was important to have a constitution that was agreeable to most people, there would come a time when change was required. “Any constitution prepared today is not immutable. It can be changed, modified or improved according to the wishes of the people,” he said. The importance to have our own unique constitution is that, it tells us the position of a state itself. How independent and how the constitution would be accepted by the citizen.
That it seeks to constitution describing the position of the individual vis-a-vis the state. It seeks to achieve a fair balance between the right of the state and the rights of the citizen, it confers on the citizen some basic rights and provides perimeter within which these rights can be exercised. The concept of Volksgeist is deeply entrenches in our constitution as it is after all the manifestation of the spirit and consciousness of the people and not from deliberate legislation. The social contract is the “spirit of the people who evolved around it”.
This notion can be seen in the Commission chaired by Lord Reid in 1965 to formulate and draft and refine the Constitution of the Federation of Malaya. The commission sought the views of political parties, non-political organizations and individuals on the form of government and racial structure appropriate for this country. This is of course based on the historical, beliefs and cultural background of the society at that point of time. The memorandum of the Alliance had gained precedence in which the memorandum centers its concern at mutual interest and strengthening the nation’s democratic system of the government.
The memorandum took into account in to five main factors namely the position of the Malays rulers, Islam as the official religion of the Federation, position of the Malay language, the special rights of the Malays and equal citizenship. We are going to look into these factors one by one. Firstly, the demand is that for the power of the Malay rulers to be preserved, which is conferred under Article 38 of the Constitution that established the conference of Rulers or ‘Durbar’.
The council will act as the protector of the Malays, custom and religion. This power is materialized where the conference of ruler have need to be consulted in amending the Constitution and some other privileges in particular, those Articles which have been “entrenched”, namely those pertaining to the status of the rulers, the special privileges of the indigenous Bumiputera (Article 153 of the Constitution), the status of the Malay language as the National language, and the clause governing the entrenchment of such Articles.
In the case of the Malays, these privileges related to the reservation of their position in the public services, of scholarship and other similar educational and training facilities (Article 153). Parliament is also empowered to reserve and for alienation to the Malays (Article 89 and Article 90) and also to restrict enlistment in the Malay regiment which to some extend violates right to equality of the people under Article 8 of the constitution but however in the spirit of the citizen itself.
In the matter of religion, Islam was made the religion of the Federation. Tunku Abdul Rahman at the time was under pressure from the UMNO argued that the inclusion of Article 3 was important psychologically to the Malays. Nevertheless in recognizing the objections of the Rulers also the concern of the non-Malays, two provisos were included in the article in which it would not affect the position of the rulers in their respective state as head of Islam and that the practice and propagation of other religion in the federation would be assured.
As for language that is entrenched under Article 152 of the Constitution, the Alliance agreed to UMNO’s proposal that Malay be the official language but that there would be no objections to the use of Chinese and Tamil for unofficial purpose. It was further guaranteed that the proviso in Article 152 will allow the teaching of Chinese and Tamil and that there would schools for the respective races.
Among these five issues, the biggest bargain that the Bumiputera has offered during the drafting of the constitution must be the social contract in which the Malays would accept the jus soli citizenship and the minorities would settle with the special privilege conferred to the Bumiputera. The liberal citizenship requirement was a major concession from the Malays for with this agreement; large number of non-Malays became citizens.
In exchange for liberalizing citizenship requirement, non-Malays leaders in the alliance accepted the special position of the Malays. Thus it can be seen the constitution of Malaysia largely drafted around the notion of Volksgeist; law should always conform to the popular consciousness. Hence, the provisions of the constitution was not the result of an arbitrary act of legislation but developed as a response to the impersonal powers to be found in the people’s national spirit.
As mentioned earlier, Maine opines that a society should move towards a “contract society” from a “status society”, where individuals of the disadvantages group will be able rise above their discrimination, that is, the structure of society and rules of the game, so to speak, must be changed in order to achieve ethnic equality. The progress however, must not disregard the customs of the society. The notion of progress from status to contract is depending on the society itself. The application of Maine’s proposition is a bit different as Malaysia, from moving to status contract, Malaysia is progressing from contract society to planned society.
To clearly observe the progress if the society in Malaysia from a status society, to a contract society, then to a planned society, while respecting the custom of the society, entrenched in the provisions of the Malaysian Constitution; we should first look in to the history of Malaysia. The Malaysian Constitution is the product of the political, economic and social development of the stratified people that can be traced back to the Malacca Sultanates. The highest ground of administration was the Sultan and it stays the way it is as the system was so to say, perfectly working at the time.
The Sultan controls the government, act as the supreme command of the military power and symbolize the unity of the welfare. There was no issue of inequality of right as the society at that time as the citizen was so contented with the idea of leaded by a Ruler. It was only until the British colonial period commenced that the issue of advancing the society emerged. Treaty of the Federation 1895 which have the common clause that the four states; Selangor, Pahang, Negeri Sembilan and Perak to accept British officer that act as Resident General.
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