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,
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.
Thanks
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