Savigny’s Theory of Volksgeist – an Important Element of Historical School

Savigny’s Theory of Volksgeist – an Important Element of Historical School

Who was Savigny?

Friedrich Karl Von Savigny (1779-1861) was born in Frankfurt (Germany) in 1779. He completed his education at the universities of Marburg and Gottingen and worked as a Professor of Civil Law in the University of Marburg from 1801 to 1804 then he went to the University of Landshut. In 1810 he went to work as a professor at the University of Berlin where he worked till 1842 and in the same year, he was appointed as the Minister or Justice in Prussia.

His works include History of Roman Law in Middle Ages (1815-1831), in six volumes and System of Modern Roman Law (1840-1849). His greatest work is Law of Possession (Das Recht des Bestiges) which was published in 1803 which is known to be the beginning of Savigny’s historical jurisprudence. He did his legal studies till 1861 and died in Berlin in the same year. He had a firm belief that law is the demonstration of the common consciousness of the people and its growth depends on the growth and strength of the people. And dies when the nation loses its nationality.

Theory of Volksgeist- An Important Source of Law

Savigny and one of his most popular students George Friedrich Puchta strongly believed that law is an outcome of the general consciousness of the people and a demonstration of their spirit. That is why they opposed the codification of German Laws as it was not appropriate for its smooth development. This is the reason why the codification of German laws was delayed for the next fifty years.

Savigny’s view was if a law made without considering the past historical culture and traditions of the community will create more confusion rather than solving the problems as the law is not merely an artificial lifeless mechanical device. Savigny stated that the origin of the law lives in the popular spirit of the people which he termed as ‘volksgeist’.

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How Savigny contributed to the development of the historical school is explained briefly under the following points-

1. Development of Law is like a Language- Savigny pointed that law has a national character and its development is the same as language and it binds people into one whole nation because of their mutual faiths, beliefs and opinions. He stated that law grows with the nation and develops when the nation develops and dies when the nation loses its nationality. Law, language, customs and government are inseparable from the society which follows all of them. In the words of Savigny- “… the law grows with the nation, increases with it and dies at its dissolution and is a characteristic of it.” His opinion was that law has not universality like language and it changes with people and ages.

2. Law was impetuous in its earliest stage and thereafter jurists developed it- Savigny expressed that law in its earlier stage was impetuous as per the internal needs of the society but when the society achieved some level of civilisation, different types of national activities took place and many jurists, language experts and scientists helped in the development of law in its later stages. Law played a double role, first as a regulator of general national life and second as a distinct field for study. The first role is political while the other has a juristic nature and both hold a very important role in developing the law. Roman laws are the best example of this, earlier they were developed by the general consciousness of the people and later they grew to be a more technical and complex form of the law of command.

3. Savigny opposed codification of German Laws- Savigny had not opposed complete codification of laws but he opposed codification of German law on the French ( Napoleonic Code) pattern because at that time Germany was divided into many small states and codification on that pattern was basic, immature and had no uniformity. His view was German Laws should be codified when all the divided states unite to become one country, one language and one law. Volksgeist at that time was not properly developed and so codification had hampered the development of law. He insisted that codification of German law should not be without the involvement of jurists who had proper knowledge and expertise of Roman law. He opined that lawyers and jurists truly represented the popular consciousness more than the legislators who have a very limited role in law-making.

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4. He was an Admirer of Roman Laws- He insisted on Volksgeist which means the consciousness of people or the essence of law and he justified the adoption of Roman Law for the codification of German Law which was more or less dispersed in it. He saw Volksgeist in the Roman-German customary law and stated that Roman law was an inevitable element for the development of the uniformed system of law in Germany.

However, his contemporary professor at the University of Berlin, Professor Eichhorn criticised his admiration for Roman law because according to him a foreign law cannot be a true volksgeist of the German population. His opinion was German law should not be influenced by Roman laws. Therefore there was a conflict between Romanists and Germanists, the formerly supported retention of Roman laws while the latter advocated its exclusion from the German law. The clash between the two was resolved after the codification of German laws in 1900 in which both Roman and German laws were combined.

Why Savigny’s Theory was criticised?

1.) He insisted on the national character of law but was in support of Roman law and wanted it to be adopted for the German laws. He accepted volksgeist as an origin of law but still, he gave preference to Roman laws and their principles as a universal application. His admiration for Roman laws was staunchly criticised by Eichhorn, Beselor and Gierke and when they intervened, German laws were drafted.

2.) Allegations were made that his theory is negative, doubtful and was of negative sectarian outlook. He opposed the codification of German law which was the universally accepted and very progressive form of legislation. His opposition towards codification hampered the growth of German law for many decades.

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3.) His theory of volksgeist and his claim that it is the sole source of law was not a complete truth. He completely neglected legislation, precedents etc., as the sources of law. This theory was much criticised as according to jurists of that time other sources of law also contributed to the evolution of law and not only volksgeist or popular consciousness.

4.) Savigny opined that customs are always based on the popular consciousness of the people but it cannot be acceptable because bonded labour and slavery were originated from the selfish motives of the powerful people. They were carried on for a long period because they were blindly followed and not because they were righteous.

5.) At last Savigny’s Volksgeist theory helped many nations abuse it for their ideologies. The Nazis corrupted it and gave it a racist colour, the Marxists perverted it giving an economic interpretation of history and Italy used it to prove fascism right.

Conclusion

Despite the criticism, Savigny’s theory of Volksgeist can be considered as the beginning of Modern Jurisprudence. The theory interpreted jurisprudence as the people’s will. His theory resulted in the revolt against 18th-century natural law and analytical law positivism. His only fault was he overrated the doctrine of popular will.

In short, his theory can be seen as a warning against improperly drafted legislation and the introduction of conceptual ideas in the legal system unless they assemble support of popular will or Volksgeist.

Author: Samiksha Mehta,
Invertis University/ Student ( LL.B 3rd year

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