The Contribution of Maine and Savigny in the Malaysian Constitution

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The Contribution of Maine and Savigny in the Malaysian Constitution 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 für 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 für 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

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