Historical School
most of the world is not yet speaking Ro or Esperanto, nor
Not all not even most - jurists have their faces turned
towards the future. Law as it is, is also a proper and fertile
field for their cultivation. Set the reflective mind to work
upon the law in a period of conscious change: whatever its
attitude towards particular changes, it cannot regard the
law as a fixed thing. On one side are those on whom the
plasticity of law dawns as a new discovery - the nascent
constructive school. They would codify what they approve
and remake whatever they disapprove. They would break
with the past. Some of them would not hesitate to draw up
constitutions for commonwealths which they have never
seen. Their excesses call forth reactions. Thibaut is
checked by Savigny in Germany; Bentham in England and
David Dudley Field in America find their contemporaries of
the historical schools tough-minded. The most
conspicuous representatives of the historical schools have
thus become identified with reactionary doctrines, and
they have accordingly been criticized for their lack of
prospective vision.30 The typical constructive jurist who
comes after legislation has proved its power, has a large
and hopeful program; the historical jurist, on the other
hand, coming a little earlier is apt not only to lack such a
program, but to extend his enlightened scepticism to the
future as well as to the past, and to question the ultimate
power of legislation to do more than what history is ready
for. This is the fatalism that many have found in this
school. Yet not all of the historical jurists have been
reactionary. Maine in England, and Savigny in Germany,
recognized the value of legislation in its place. Maitland,
the master of legal history (not strictly an historical jurist),
began and ended his career as a law-writer by advocating
the sweeping away of the cobwebs in real property law, 31"
and like our own Mr. Justice Holmes used his vast
learning quite as frequently to point out the folly of
conservatism as its wisdom.32 No one could more
gracefully represent the transition from the historical
phase to the constructive phase of a generation that views
law as a changing phenomenon, than does Judge
Holmes. "For the rational study of the law," said he twenty
years ago, "the black-letter man may be the man of the
present, but the man of the future is the man of statistics
and the master of economics." Again, "I look forward to
the time when the part played by history in the explanation
of dogma shall be very small, and instead of ingenious
research we shall spend our energy on a study of the
ends sought to be attained and the reasons for desiring
them." 33 But whether looking only to the past, or willing to
see the future continue to develop the law as the past has
done, the historical jurist recognizes many limitations on
the powers of conscious change. His favorite analogy is
the analogy of language. Since Savigny's day attempts
have, indeed, been made to create new languages - but
are we likely to substitute an artificial universal law for the
national laws that have grown up among us.
Historical jurists, just because their subject matter is
hemmed in by local and national facts, will not be of one
accord in their definitions - but it is natural to expect them
to pick flaws in the definition which emphasizes the
"command," the unhistoric command. Neither will they
uncritically accept the Law of Nature or the Law of
Reason. "The law," says the historical jurist,34 "embodies
the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only
the axioms and corollaries of a book of mathematics."
The Historical School was one of the prevailing schools in
Anglo- American jurisprudence during the nineteenth
century. With its weapons James Coolidge Carter (i827-
I905) successfully fought off codification, and became the
Savigny of America.35 For England we have already
mentioned Sir Henry Maine. Though his outlook was too
broad to permit him to remain within the confines of one
school -he outdid the comparative jurists of France in their
own specialty -his phrases have become the common
property of the Anglo-American historical jurists: "from
status to contract," "Legal Fictions, Equity and
Legislation," the precipitation of substantive law in the
interstices between the meshes of adjective law, and so
forth.36 As a result of Maine's teaching, the advocates as
well as the critics of modern legislation have been
conscious of living in an era of legislation, which simply
tops off other eras of legal history -and the lawyers, at
least, have minimized the importance of statutory law as a
result, frequently to the astonishment and disgust of the
layman.
In Germany the Historical School came and went about
fifty years earlier than it did in England. Its greatest name
is that of Friedrich Carl von Savigny (I779-i86i).37 He
was not the founder of the school; Gustav Hugo (I764-
i844) 38 had preceded him. Nor were his works so finished
as were those of his own disciples,39 but his influence was
tremendous. He saved jurisprudence from the clutches of
the so-called Natural Law with its "infinite arrogance" and
its "shallow philosophy." The philosophy of the day was
preparing the way for Savigny's jurisprudence. In par-
ticular, Hegel (I770-i83i) developed a philosophy exactly
suited to the needs of the Historical Schools.40 Clearly
Savigny reflected the "Beruf" of his time correctly. To
spring from the dogmatic Law of Nature of Christian Wolff
into Codification merely because France had made a
code, though a great temptation, would have been futile.
1
Savigny was a young man in I794 when the obscurantist generations. The Encyclopedists represent the
mystic, Frederick William II, gave Prussia its Landrecht. philosophical background of Montesquieu's jurisprudence.
He was soon able to compare the final product with the For a generation French jurisprudence consisted of
original project of Frederick the Great and Samuel von attacks on and defenses of the "Esprit des Lois." 1 It had
Cocceji (i679- I755)4- barely accomplished its work of opening men's minds to
the mutability of laws when the forces of the Revolution
France, indeed, had been prepared for Codification not were set free.
only by an eventful political history during the preceding
generation, and a long-standing national unity and self- Source:
consciousness (its eighteenth-century jurists wrote in
French, Germany's were still using Latin), but by a much Isaacs, N. (1918). The Schools of Jurisprudence. Their
earlier disappearance of the school of the Law of Nature. Places in History and Their Present Alignment. Harvard
Montesquieu (i689-I755) has frequently been described as Law Review, 31(3), 383-387. Retrieved from
the founder or forerunner of the Historical School. The http://www.jstor.org/stable/1327078.
suggestion is usually accompanied by the observation, on
the one hand, that his historical method was faulty, and on
the other that the study of history as an aid to law was
much older than Montesquieu. Were not Alciati and Cujas
historical students of law, and did not their spirit transcend
even the Natural Law period in France? We must
distinguish here, however, between the study of legal
history and the peculiar attitude towards law that typifies
the so-called Historical School of Jurisprudence. In this
school there is first of all a realization of the importance of
what we should call today the subconscious processes
that contribute to the growth of law, and the consequent
relativity of law. There is a revolt from those older schools
that postulate a perfect law independent of mankind. We
can almost identify the spot where Montesquieu steps out
of one and into the other. In the eighty-first of the "Persian
Letters" (I72i) he says, "I have often set myself to think
which of all the different forms of government is the most
conformable to reason, and it seems to me that the most
perfect government is that which guides men in the
manner most in accordance with their own natural
tendencies and inclinations." The question is a question of
the philosophical period. The answer opens the door for
the historical jurist. "L'Esprit des Lois" (I748) is the
development of this answer. It holds that "there is no one
best form of state or constitution: no law is good or bad in
the abstract. Every law, civil and political, must be
considered in its relation to the environment, and by the
adaptation to that environment its excellence must be
judged." 42 Savigny, too, taught this doctrine, though it is
true he emphasized the elements of race and nationality
as conditioning factors, whereas climate, geographical
conditions, differences of forms and degrees of civilization,
were all-important in the mind of Montesquieu.
Montesquieu's great influence is to be explained neither
by the elegance of his diction nor by the vulgar appeal of
some of the Persian Letters, but rather by the fact that
men's minds were ready to question the philosophical
theories that had held undisputed sway for so many

2
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law
from the past history. It says that law is based on the
General Consciousness of people. The consciousness
started from the very beginning of the society. There was
no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon
simple rules, regulation, custom, usages conventions etc.
These things were later on developed by the jurists and
lawyers. These things were later on converted into set
form of law.
CAUSES OF COMMING OF THE HISTORICAL
SCHOOL
The Historical school is just opposite to the Analytical
school in 18th and 19th century, the concept of
individualism came into existence. Due to this concept the
revolutions came like French revolution, Russian
revolution etc. At that time Soveging montasque, Barke,
Hngo were the writers who said that law is the general will
of the people or law is based upon common people and
the feelings of the common people.
Law develops like the language and manners of the
society. So law has a natural character. Law has no
universal application. It differs from society to society and
state to state. In the same way the languages differ from
society to society and locality to locality.
Montesquieu has said, “Law is the creation of climate,
local situations and accidents.” According to Hugo, “ Law
develops like language and the manners of the society
and it develops according to suitable circumstances of the
Society. The necessary thing is the acceptance and
observance by society.
According to Burke, “ Law is the product of the General
process. In this sense it is dynamic organ which changes
and develops according to the suitable circumstances of
society.
Savigny' is considered as the main expounder or
supporter of the historical school. He has given the
Volkgeist theory. According to this theory, law is based
upon the general will or free will of common people. He
says that law grows with the growth of nations increases
with it and dies with the dissolution of the nations. In this
way law is national character. Consciousness of people. In
other words, according to this theory law is based will or
free will of common people. He says that law grows with
the growth of nation. A law which is suitable to one
society may not be suitable to other society. In this way
law has no universal application because it based upon
the local conditions local situations, local circumstances,
local customs, elements etc. Al these things effect law
and make it suitable to the society.
The main features of the Volkgeist theory is :-
1. Law has a national character.
2. Law is based upon the national conditions,
situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is
not made, the jurists and the lawyers make it
into set form.
4. Law develops like language and manner of
the society. In ancient society law was not in a
natural stage or no in a set form. Later on with
the development of the society the
requirements and the necessities of the
society increased. Due to this it was
necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Savigny, customs are more important than
legislation because customs come before legislation. In
other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following
grounds:-
 Inconsistency in the Theory:- Savigny asserted
that the origin of law is in the popular
consciousness, and on the other hand, argued
that some of the principles of Roman law were of
universal application. Thus, it is a clear cut
inconsistency in his ideas.
 ‘Volksgeist’ not the Exclusive Sources of law:-
There are many technical rules which never
existed in nor has any connection with popular
consciousness.
 Customs not Always Based on Popular
Consciousness:- Many customs are adopted due
to imitation and not on the ground of their
righteousness. Sometimes customs completely
opposed to each other exist in different parts of
the same country which cannot be said to be
reflecting the spirit of the whole community.
 Savigny Ignored Other Factors That Influence
Law:- The law relating to trade unions is an
outcome of a long and violent struggle between
conflicting interests within a society.
3
  Many Things Unexplained :- Legal developments
in various countries show some uniformity to
which he paid no heed. i.e.
 What is national and what is universal.
 Juristic Pessimism:- Soveging encouraged juristic
pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in
modern times. No legal system would like to make
compromise with abuses. People are accustomed
to it.

CONCLUSION

From the facts mentioned above we have gone behind to

see the history of the society to check that what was the
position of law in the ancient time. How and in what form
law was prevailing in the society? To find the solution of
the questions the supporter of Historical school found that
law is the general consciousness of the common people
or it is the free will of common people on which law
developed and converted into a set of form of law.

Source:

Career Muskan Magazine Hisar. (2013, September).

Historical School. In Law Notes (LL.B Notes). Retrieved
June 20, 2016, from
http://kuklawnotes.blogspot.com/p/jurisprudence-1-what-
is-administration.html

4
BASIC CONCEPT OF SAVIGNY’S VOLKSGEIST
Neetij Rai 
ABSTRACT: Savigny, a prominent German jurist
through his concept of Volksgeist introduced a new
dimension in the legal arena. Savigny, also known as
the pioneer of Historical school of law through his
concept of Volksgeist explains the need to
understand the interrelationship between law and
people. Law and people cannot be isolated from
each other and this is well explained by Savigny‟s
concept of Volksgeist. This article aims to analyze
the concept of Volksgeist and the Historical school of
law. It also relates the concept with Nepalese legal
system as well along with a case reference.
Introduction to Friedrich Carl Von Savigny: (21
February 1779 – 25 October 1861)
Savigny, the pioneer of historical school was born on
February 21, 1779 in Frankfurt, Germany and was
one of the most respected and influential 19th-
century jurists. 1 He advocated that the meaning and
content of existing bodies of law be analyzed through
research into their historical origins and modes of
transformation.2 He traced the development of law
as a evolutionary process much before Charles
Darwin gave his theory of evolution. It is for this
reason; he is even said as “Darwinian before Darwin”
for his contribution to apply the evolutionary principle
to the development of legal system.
He studied at the Universities of Marburg and
Gottingen and acquired a deep knowledge on the
Roman law during his lifetime. He worked as a
Professor of University of Berlin in 1810 and later
was also appointed as the Prussian Minister of
Justice in 1848. His major contributions are
i. Law of Possession( das recht des
bestiges), 1803.
ii. ii. The History of Roman law in Middle
Ages in six volumes, 1818-31.
iii. iii. System of Modern Roman law, 1840-
49.
iv. iv. Contracts, 1853.4
In 1814, Professor Thibaut of the University of
Heidelberg – a natural law jurist put forward a plan
before German people for the legal unification of
Germany on the pattern of Napoleonic Code 1802
which would accelerate the process of political
unification of Germany as she was still politically
divided.
But the same year Savigny issued a protest
pamphlet, Vom Berufunserer Zeit für Gesetzgebung
and Rechtswissenschaft (On the Vocation of Our
Age for Legislation and Jurisprudence), where he
spoke out against the pamphlet by the famous
Heidelberg jurist A. F. J. Thibaut entitled On the
Necessity of a General Code for Germany (1814) 5 .
So powerful was his influence that the move towards
codification was effectively halted and it was not until
1900, after many years of sustained agitation, that
Germany ultimately acquired her code, the
Burgeriches Gesetzbuch.
He was not opposed to reform but maintained that
reforms which were against the streams of nation‟s
continuity were doomed. The essential prerequisite
to the reform of German law was a deep knowledge
of its history
Introduction to Historical School:
The Two Prime Reasons for The Evolution of
Historical School:
i. It came as a reaction against natural law,
which relied on reason as the basis of law
and believed that certain principles of
universal application can be rationally
derived without taking into consideration
social, historical and other factors.
ii. It came as a reaction against analytical
positivism which constructed a soul-less
barren sovereign-made-coercive law
devoid of moral and cultural values
described as gun-mensituation‟.
The Basic Tenets of Historical School can be
Summarized as:
I. Historical jurisprudence is marked by
judges who consider history, tradition,
and custom when deciding a legal
dispute.
5
 II. It views law as a legacy of the past and
product of customs, traditions and beliefs
prevalent in different communities.
III. It views law as a biological growth, an
evolutionary phenomena and not an
arbitrary, fanciful and artificial creation.
IV. Law is not an abstract set of rules
imposed on society but has deep roots in
social and economic factors and the
attitude of its past and present members
of the society.
V. The essence of law is the acceptance,
regulation and observance by the
members of the society.
VI. Law derives its legitimacy and authority
from standards that have withstood the
test of time.
VII. The law is grounded in a form of popular
consciousness called the Volksgeist.
VIII. Law develops with society and dies with
society.
IX. Custom is the most important source of
law.
VOLKSGEIST:
Volksgeist (also Volksseele, Nationalgeist or Geist
der Nation, Volkscharakter, and in English “national
character”) is a term connoting the productive
principle of a spiritual or psychic character operating
in different national entities and manifesting itself in
various creations like language, folklore, mores, and
legal order.
According to Savigny, the nature of any particular
system of law, was the reflection of the “spirit of the
people who evolved it”. This was later characterized
as the Volksgeist by Puchta, Savigny‟s most devoted
disciple. Hence, in a simple term, Volksgeist means
the general or common consciousness or the
popular spirit of the people. Savigny believed that
law is the product of the general consciousness of
the people and a manifestation of their spirit. The
basis of origin of law is to be found in Volksgeist
which means people‟s consciousness or will and
consists of traditions, habits, practice and beliefs of
the people. The concept of Volksgeist in German
legal science states that law can only be understood
as a manifestation of the spirit and consciousness of
the German people.
As already discussed, his theory served as a
warning against hasty legislation and introduction of
revolutionary abstract ideas on the legal system
unless they mustered support of the popular will,
Volksgeist.
Savigny‟s central idea was that law is an expression
of will of the people. It doesn‟t come from deliberate
legislation but arises as a gradual development of
common consciousness of the nation.14 The
essence of Savigny‟s Volksgeist was that a nation‟s
legal system is greatly influenced by the historical
culture and traditions of the people and growth of law
is to be located in their popular acceptance. Since
law should always confirm to the popular
consciousness i.e. Volksgeist, custom not only
precedes legislation but is also superior to it. To him,
legal system was a part of culture of a people.
Hence, law wasn‟t the result of an arbitrary act of a
legislation but developed as a response to the
impersonal powers to be found in the people‟s
national spirit.
Laws aren‟t of universal validity or application. Each
people develop its own legal habits, as it has
peculiar language, manners and constitution. He
insists on the parallel between language and law.
Neither is capable of application to other people and
countries. The Volksgeist manifests itself in the law
of the people: it is therefore essential to follow up the
evolution of the Volksgeist by legal research.15 The
view of Savigny was that codification should be
preceded by “ an organic, progressive, scientific
study of the law” by which he meant a historical
study of law and reform was to wait for the results of
the historians.
Savigny felt that “a proper code [of law could only] be
an organic system based on the true fundamental
principles of the law as they had developed over
time.”17 Savigny‟s method stated that law is the
product of the Volksgeist, embodying the whole
history of a nation‟s culture and reflecting inner
convictions that are rooted in the society‟s common
experience.18 The Volksgeist drives the law to
slowly develop over the course of history. Thus,
6
according to Savigny, a thorough understanding of
the history of people is necessary for studying the
law accurately.

In the words of Savigny,

In the earliest times to which authentic history

extends the law will be found to have already
attained a fixed character, peculiar to the people, like
their language, manners, and constitution,. Nay,
these phenomena have a separate existence, they
are but the particular faculties and tendencies of an
individual people, inseparably united in nature, and
only wearing the semblance of distinct attributes to
our view. That which binds them into one whole is
the common conviction of the people, the kindred
consciousness of an inward necessity, excluding all
notion of an accidental and arbitrary origin.

Thus, in view of Savigny, law, like language, is a

product not of an arbitrary and deliberate will but of a
slow, gradual, and organic growth.

Similarly, he also states that

“The foundation of the law has its existence, its

reality in the common consciousness of the people.
We become acquainted with it as it manifests itself in
external acts, as appears in practice, manners and
customs. Custom is the sign of positive law.”-
Savigny.

Hence, Savigny clearly believes custom as the

source of law and Volksgeist (common
consciousness) as the ultimate foundation of any
legal system.

Source:

Rai, N. (2013, September). Basic Concept Of Savigny’s

Volksgeist. In Academia. Retrieved June 20, 2016, from
https://www.academia.edu/428817/basic_concept_of_savi
gny_s_volksgeist.

7
Historical School of Law national sentiments in law were legal experts who wished
to apply Roman law; thus, the study of “pure Roman law,”
One of the trends in legal scholarship in the first half of the with the aim of applying it more broadly to Germany, was
19th century. It was particularly influential in Germany. seen as the chief task of jurisprudence. In this sense the
position taken by the school to a certain extent met the
Unlike the doctrine of natural law, which represented the
aspirations of the developing German bourgeoisie, for
ideological weapon of the revolutionary bourgeoisie, the
Roman law met the needs of capitalist commodity
tenets of the historical school of law centered on a
circulation. With time the school split into two wings, the
defense of the feudal order and opposition to the reform of
nationalist “Germanists” and the bourgeois-liberal
existing relations through new legislation. Custom was
“pandectists.”
proclaimed as the most important source of law,
codification was rejected, and law was depicted as being A number of positions of the school, in particular its
the result of the gradual development of “national spirit”; teachings regarding the primacy of custom over law,
the development of law was compared to that of language. exerted an influence on the formation of the sociological
G. Hugo (1764–1844) and F. J. Stahl (1802–61), tendency in bourgeois jurisprudence. The reactionary
adherents of the school, justified the preservation of feudal nationalist views of its representatives were used
legal institutions and opposed the codification of law in extensively by the German fascists.
Germany. To a significant extent the position taken by the
school in Germany was a manifestation of the nationalistic
reaction to the codification of law that had been carried out
in France and had led to a consolidation of the gains of Source: The Free Dictionary. (n.d.). Historical School of
the bourgeois revolution. Criticizing the school for its Law. Retrieved June 20, 2016, from
apologia of the feudal order and conservatism, K. Marx in http://encyclopedia2.thefreedictionary.com/Historical+Sch
his article “Toward a Critique of the Hegelian Philosophy ool+of+Law
of Law: An Introduction” wrote that this was a “school
which justifies the baseness of today by the baseness of
yesterday, which declares as rebellious any cry of the
serfs against the knout, provided this knout is old,
derivative, and historical” (K. Marx and F. Engels, Soch.,
2nd ed., vol. 1, p. 416).

G. Hugo was the founder of the school, but it became well

established after the publication in 1814 of a pamphlet by
F. C. von Savigny entitled On the Vocation of Our Age for
Legislation and Jurisprudence. In this work Savigny wrote
that codification of the law in Germany was inopportune.
The journal Zeitschrift fur geschichtliche
Rechtswissenschaft (Journal of Historical Jurisprudence),
which was published from 1815 to 1850, also contributed
to the popularization of the school’s ideas. Among the
followers of Savigny were G. F. Puchta and K. F.
Eichhorn.

The representatives of the school believed that law

passes through three stages in its development: (1) the
spontaneous, unconscious emergence of norms of
customary law in the soul of a nation through the
development of the “national spirit”; (2) the expounding by
scholarly legal experts who perfect positive law as applied
to increasingly complicated societal relations; and (3)
codified law, which represents the union of customary law
and the law of legal experts. Legislation can only
supplement standing law, it cannot change it. The school
believed that in the 19th century the spokesmen for

8
Historical school of jurisprudence believes that the custom
played an important role in the society especially during
the earlier days. It is believed that the chthonic legal
traditions custom is considered the law for instance the
aborigines of Sakai. Savigny did not accept natural role in
the development of legal system

Savigny thought that a law is part of the culture of the

people. He believed that it is the common conviction of the
people that law arises. It is not as a result of arbitrary act
of a legislator. The conviction of the people is related to
the biological heritage of the people called as Volkgeist.
Savigny believed that law is not the will of the sovereign or
based on divine or natural law but could be traced back to
the life of the people. It developed along with the
development of life of the people. It is the general
consciousness of the people living together.

Savigny studied the development of Roman law and how

it was adapted to German condition with assimilation of
local ideas. Savigny also said that law grows with a nation
and increases with it and die when the state dissolute.

Savigny believes there are three elements to a law namely

the political element where the principle of the law is
founded on the national convictions and not the found in
legislation. Secondly, the stage of technical elements or
juristic skills where the codification of law will be
developed. And lastly the stage where the nationality
identity was lost.

Maine on the other hand believed that ancient law is not

the work of any legislator. It is written by judges. These
codes are not only legal rules but all instructions in order
to lead a better life. He believes that customs are
embodied in the codes and people obeyed the law
because it is their habit and not due to fear.

Maine said that an ancient society became more civilized

or mature as it moves from status to contract in
relationship in social and legal sphere. Maine sees legal
development as uni-linear evolutionary framework. He
also opined that human and legal history did is not
progressive and may declined after a period of time such
as the dark ages in Europe and Middle Ages.

One of the main difference between Maine and Savigny is

that Maine did not accept the mystical adherence of
Savigny to Volkgeist, the general conscious of the people.