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4/21/19

Savigny’s theory of Volksgeist || Historical school ||

Savigny’s theory of Volksgeist || Historical school ||


 
         In this article, we will discuss the concept of Volksgeist propounded by the Garman Jurist Savigny. Here we will discuss what is the concept of Volksgeist, Historical school of law in jurisprudence notes, the contribution of the Savigny in the jurisprudence and in the Historical school, criticisms of the theory,  etc.
                      

Introduction:

                        What is the law? It is very difficult to define in a particular way or a uniform definition of law is like imagination. Uniform definition of law is far from reality because every jurist has defined the law according to their own methods and explains it from different viewpoints. Sources, nature, and concerns are some of the element which impacts in defining law. So to make their concepts clear various schools were established to understand and define law. In this article, we will discuss one of the schools known as the Historical school of Jurisprudence developed by “Friedrich Carl Von Savigny.

Who was Savigny (Friedrich Carl Von Savigny)?:

                                                                                    Savigny was one of the most respected and influential German jurists in the 19th century and known as the pioneer of the Historical school of law through his concept of Volksgeist (Spirit of people). He was born on February 21, 1779, in Frankfurt, Germany. He studied at the Universities of Marburg and Gottingen and obtained a deeper knowledge of the Roman law during his lifetime. He worked as a Professor of The University of Berlin in 1810. He was also appointed as the Prussian Minister of Justice in 1848. His major works are:
1.     Law of Possession (das recht des bestiges), 1803,
2.     The History of Roman law in Middle ages in six volumes, 1818-31,
3.     System of Modern Roman law, 1840-49,
4.     Contracts, 1853.4

What is Volksgeist?:

                                   Volksgeist is the concept of law propounded by the Savigny. The term Volksgeist is made by the two word Volks means people and geist means their common will. It means Volksgeist means the law is a common will of the people (spirit of the people). In a simple sense, Volksgeist is a general and common perception of the people or the spirit of the people. The main idea of Savigny behind this theory was that law is an expression of the will of the people and it doesn’t come from the deliberate legislation and it develops as the consciousness of the nation arises. The core of Volksgeist was that a legal system of a nation is mainly influenced by the historical culture and traditions of the people and its growth was located in their acceptance.

Jurisprudential study of the theory:

                                                              As mentioned above, Savigny believed that the evolution of law can only be made by taking account the past consideration and without doing that it creates more amounts of confusion rather to solve it. According to Savigny, the origin of law lies in the Volksgeist. For the purpose of this, he made a whole new school known as the Historical school of Jurisprudence. 

Theory of Savigny can be explained in the following heads:

1.     Law prevails basically in society:

                                                                              According to the Savigny, the law is the product of the people’s life living in a particular society and it is the outcome of a culture of a society.  It embodies the whole history of a nation’s culture and reflecting inner convictions that are rooted in society’s common experience. The Volksgeist gradually drives the law to develop over the course of history. Thus, according to Savigny, a thorough understanding of the history of people/society is necessary for studying the law accurately.

2.     Law develops like a language:

                                                                 Savigny stated that law develops like a language. He said that law is a national character and develops like a language in the nation, which not only binds people with belief and opinion in a group but also grows with the development of society. The development of both elements goes hand in hand. It has no different existence, which follows them but considers as a one being. History is proof that law is developed according to the pre-existing manners in society and approved by the national character, like language.

3.     Law is a continuous and regular process:

                                                                               Law is a continuous and unbreakable process bound by the common culture and beliefs of society, not the product of the day. It develops by the regular and the continuous process of society. Customs and usages in society are given common consent to be followed by the society in the beginning and the people follow them without any hesitation, insured willingly and those not follow become solitude in the society and finally, all have to become common and this the thing takes the shape of law on the society.

4.     Savigny’s opinion for codification of law:

                                                                                      Savigny was against the codification of the law. He thinks that the development of the law should be on the basis of the historical knowledge and not by the arbitral legislation.

5.     The initial development of law is natural and later on it is developed  by jurists:

                              He stated that in the early stages law develops naturally/spontaneously according to the internal needs of the people but after people reached a certain level of civilization, different kind of national activity developing the law accordingly.

Criticism:

                    As already discussed, a uniform and precise definition of law is far from reality, and Savigny’s Volksgeist is not an exception. It has also some criticisms by other jurists, which are as follows:

1.     Volksgeist not always law:

                                                         Dias says that many institutions like slavery have originated not in Volksgeist but in the convenience of a ruling oligarchy.

2.     Not clear who the volk are and whose geist determines the law:

                                                                                                                      It is also not clear, who the volk are and whose geist determine the law nor it is clear whether the Volksgeist may have shaped by the law rather than vice-versa.

3.     Inconsistency of the theory:

                                                             Savigny, on the one hand, emphasized the national character of law but on the other hand, he recommended the method of Roman Law to be adopted for the modern conditions. Hence there is inconsistency in the theory of Volksgeist.

4.     Volksgeist is not an exclusive source of law:

                                                                                   According to the Savigny, Volksgeist is the only source of law in society, but it is not correct. Lord Lloyd also said that Savigny underrated the significance of legislation for modern society. As far as society is developed the law is also to be developed in the society by legislation also.

5.     Other law influencing factors ignored:

                                                                            Savigny in his theory ignored other factors that helped to originate law. He totally ignored the judge's function to create the law. Paton states that the creative work of the judges and jurists were treated rather too lightly by Savigny.

6.     It was unfortunate that the doctrine of Volksgeist was used by the National Socialist in Germany for an entirely different purpose which led to the passing brutal laws against the Jews during the regime of Hitler in Germany.

Conclusion:

                        As per the above-mentioned matter, it can be said that Savigny in his theory deliberately focused on his theory of Volksgeist on which of his research was depending upon. In his theory, he says that law is derived from the customs, tradition and rules of the community and spirit of the people are important in the creation of the law and the role of the sovereign is very less. He thinks that by deep and careful study of the customs, the true essence of the law developed.

         Although, the theory of Savigny was not sufficient for making law and was criticized by many jurists as stated above, but despite all these criticisms, Savigny became the founding stone of the beginning of modern-day jurisprudence.

      In the end we conclude that for better governance of the society, the legislators should develop the law on the basis of the customs and tradition of the people, The sovereignty of the legislation and on any grounds.  Because then only the law can be developed more efficiently and effectively.

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