Contribution of Savigny and Maine to Malaysian Constitution Essay

The views of Maine and Savigny had indeed contri notwithstandinged to some victuals in the Federal organic law of Malayansia. Before the discussion proceeds in looking into provision that reflects the views of Maine and Savigny, it is expose for us to understand first, what be the views suggested, or rather arguments put in the lead by these dickens 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 historic school of jurisprudence.He advocated that the meaning and content of existing bodies of impartiality be analyzed through and through research into their historical origins and modes of transformation. Savignys great kit and boodle are the Recht des Besitzes and the Beruf unserer Zeit fur Gesetzgebung. In 1814, the wave of German nationalism elysian by the war of liberation against Napoleon led the Heidelberg uprigh teousness professor Thibaut to demand a unified civil code for on the whole the German states.Savigny opposed this demand for an immediate codification of German virtue in a famous pamphlet, Vom Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft (1814 Of the Vocation of Our Age for decree 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 much(prenominal) a codification was a deep and far-reaching appreciation of the centre of the circumstance community.Savignys jurisprudential perspective was in part inspired by the Romantic Movement, which took the form in Germany of a movement harking screen to the simplest tribal origins of the German mass, to their folk songs and tales and to their distinctive ethos, or Volksgeist (national tincture). To the Romantics, the national spirit thus became the ultimate datum to be explored in its various man ifestations.The Volkgeist theory introduced by Savigny seeks to shed the light that law is an port of impart of people or manifestation of peoples spirit. From this peak of view law is not something that give the sack be devised by agency of rational formal commandment besides rather originates in the strange 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, host posture with the strength of people, and dies away as the nation loses its nationality.This can in like manner be explained elevate by looking at the stages of development of law by Savigny, in which, firstly, the political element, where the law is not found in regulation but in the spirit of people secondly, the technical element, where the law is technical and involve particular expertise to develop it and lastly, the loss of national identity, where when the fraternity no long-life enquires the first and the second stage, this is when the people no longer wants the law and wanted a new one. Moreover, he rejected infixed law and positive law as law should be do by the will of the people.Savigny pointed out that legislation and law codes can, at most, hallow mere verbal expression to a body of existing law whose meaning and content can scarcely be discovered by careful historical investigations. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to earn 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 turn over down in the historical sources. The second jurist of the discussion is Sir total heat Maine. Sir Henry James Sumner Maine (15 August 1822 3 February 1888) was a Professor of obliging Law at Oxford University in 1847. He is famous for the thesis sketch 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 intentional in English, Roman, and Hindu laws and also k directlyledge of Celtic systems. Instead of stressing the singularity of national institutions, he brought to bear a scientific urge to unify, break and generalize the evolution of different legal molds. He was the first and noneffervescent re chief(prenominal)s the greatest representative of the historical movement in England. He introduced a theory establish on customary law know as the anthropological approach. The anthropological approach is a study of humanity being based on custom.Maine set out to discover whether a pattern of legal development could be extracted from a com parative interrogatory of different system, e fussyly between Roman law and the common law, which accordingly he was led to distinguish between what he called soundless and industrial societies. Static societies are regarded as undeveloped order and society whom do not come about. 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 of necessity 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 spatial relation, i. e. his claims, duties, liberties, are determined by law. The glide slope of progressive societies witnesses the disintegration of status and aspiration of the legal condition of the individual by free negotiation on his part.One of Maines 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 sorrowful towards a contract society where everyone is free to negotiation at his own terms. According to Maine, there has been passing of later development, namely by means of fiction, equity and legislation. Deliberate legislation is now seen to learn 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 submissive to custom. The conscious purpose of achieving some end precedes the reading of hum an behavior, and the adaptation of behavior is followed by adaptation of the building of neighborly organization.As it is now clear the views and pro vexs put forward by both Savigny and Maine, the discussion will be prolong in discussing the contribution of their ideas in its screening to the Malayan Constitution (Federal Constitution 1957). The Malaysian Constitution was drafted by taking into poster the legacy of the past and product of customs, traditions and beliefs prevalent in different communities, and the pauperization of the people. This is in line with Savignys view that law is not an wind set of rules imposed on society but has deep grow in social and scotch 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 return on everyones part. This so cial contract has always been a important and some dates contentious part of the nations record. The Reid Commission and the bond paper 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 typography 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 splendor 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 citiz en.That it seeks to constitution describing the position of the individual vis-a-vis the state. It seeks to achieve a fair fit between the right of the state and the rights of the citizen, it confers on the citizen some basic rights and provides molding 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 more or less it.This notion can be seen in the Commission chaired by passkey Reid in 1965 to formulate and draft and refine the Constitution of the alliance of Malaya. The fit out 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 catalogue of the Alliance had gained precedence in which the memorandum centers its concern at mutual interest and streng thuslying the nations 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 worship of the Federation, position of the Malay linguistic communication, 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 t he 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 universal 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 qualify 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 preparations 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 times 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 UMNOs proposal of marriage 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 moldiness 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 stipulation large number of non-Malays became citizens.In exchange for liberalizing citizenship requirement, non-Malays leaders in the adhesiveness 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 democratic 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 peoples 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 supra 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 so ciety. The notion of progress from status to contract is depending on the society itself. The application of Maines 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 grand Turkates. The highest ground of administration was the Sultan and it stays the way it is as the system was so to say, perfectly working(a) 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 unlikeness 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 military officer that act as Resident General.