JURISPRUDENCE

TOPIC: APPLICATION OF THE DOCTRIEN OF VOLKGIEST BY LEGAL

SYSTEMS IN LIGHT OF CUSTOMARY LAWS

INTRODUCTION:

The volkgiest theory was coined by savigny. Savigny believed in the “ spirit of
law”.the broad principles are to be found in the spirit of the people and they must
manifest themselves In the customary rules. But there is a limited applicability of
savigny’s theory to India.

HISTORICAL BACKGROUND: the main exponents of Historical Theory are

Savigny, Puchta, Black Stone amd henry Maine. According to this theory, law has
it’s existence because of the common consciousness of the people and customary
observance is not the cause of law but the evidence of the existence.

In their view, custom is the primary source from which all law derives its legal
efficacy and authority or, in other words custom is regarded as the formal source of
law. Human nature is not likely to undergo a radical change and therefore that to
which we give the name of law always has been, still is, and will forever continue
to be custom. According to Maine also, custom is formal source of law.

According to Savigny, custom is the sole source of law.

MEANI NG OF VOLKGIEST THEORY BY SAVIGNY:

Savigny firmly believed that law is a product of the general consciousness of the
people and a manifestation of their spirit.volkgiest is the general consciousness of
the people. According to him, a law made without taking into consideration the
past historical culture and tradition of community is likely to crate more confusion
than solving the problems because ‘law’ is not an ‘artficial lifeless mechanical
device’ but the origin of law lies in the popular spirit of the people which is known
as volkgiest.

Savigny states tha law is a matter of unconscious and organic growth. Therefore,
law is found and not made.

Law is not universal in its nature. Like language, it varies with people and age.
Custom not only preceeds legislation but it is superior to it. Law should always
conform to the popular consciousness.

As law gros into complexity, the common consciousness is represented by lawyers

who formulate legal principles. But the lawyers remain only mouth-piece of
popular consciousness and their work is to shape the law accordingly. It is for this
reason that lawyers and jurists are more important than legislator in the process of
development of a legal system.

CRITICS:

1. Savigny’s view that the popular consciousness is the source of all law is not
true.
2. Customs not always based on popular consciousness – savigny’s view that
customs are based on popular consciousness of community as a whole is not
true , many customs originated only for the convenience of a powerful
minority, as slavery.
3. Creative functions of judges were also ignored and contributions of the jurist
were also taken very lightly.
4. Savigny’s view that the popular consciousness is the source of all law is ot
true. Sometimes, an alien legal system is successfully transplanted in another
country.
5. Many things were left unexplained. Certain things like mode of evolution
and development noticeable in all the legal system of the world are left
unexplained in savigny’s theory.

WHAT DOES CUSTOMARY LAW MEANS:

Customary law is a law consisting of customs that are accepted as legal

recquirements or obligatory rules of conduct; practices and beliefs that are so vital
and intrinsic part of a social and economic system that they are treated as if they
were laws.

Austin- custom is a rule of conduct which the goverened observed spontaneously

and not in pursuance of law set by a political superior.
THE EARLY IMPORTANCE OF CUSTOMARY LAW :

In the early stages of a legal system customs holdsway. At early stages of

development , common law and common custom are synonymous expressions.
Courts accepted common customs.

In legal theory acceptance by the courts made them law proper. As the legal system
grows so also custom diminishes in importance. It is because as an instrument of
development of law it gives way to legislation and precedents, and a law creating
instrument stringent limitations are imposed by law on its acceptance. Even noe
custom has not wholly lost its law creating efficacy.

REASONS FOR RECEPTION OF CUSTOMARY LAW:

Firstly, apart from the aspect of justice and good sense involved in the acceptance
of custom as law, it would seem in the early development of state; it’s power was
so weak that it could scarcely create law;it could however, enforce custom which
commanded respect and obedience, being a quere mixture of religion and
practice.later on, with it’s growth in power the state tried to become the source not
only of the form but also of the content of law.

No doubt, la wis based on soverign power and custom based on public opinion.

Yet, in the ultimate analysis, though not in strict legal theory, sovereign power
itself must at some stage be based on major public opinion.

So thus even though customs may not be ideally just or reasonable yet thy are
given effect to because it is not wise to upset the settled expectations. Even today
both legislatures and judges accept and give effect to national or local customs.

CUSTOMS IN COMMON LAW :

The basic of common law was custom. As sir Henry Maine has pointed out, this
did not mean that the custom itself was ever law- the law was created by the
decesions of judges in recognizing some customs ad not others.

EVERY POSITIVE LEGAL SYSTEM RECOGNISES THOSE CUSTOMARY

PRACTICES PROVIDED THEY SATISFY THE FOLLOWING
RECQUIREMENTS:
1. ANTIQUITY :
A custom to be valid must be immemorial. According to Blackstone, “ a
custom in order that it may be legal and binding , must have been used so
long that the memory of man runneth not to the contrary.so that if anyone
can show the beginning of it, it is no good custom”.
In India, a custom to be valid should be ancient. Custom must be continuous
and certain in existence. A mere habit or fashion hich cxould have come
into practice due to certain exigencies cannot be called as custom. Antiquity
is the only reliable proof of resistece to the changing conditions of different
ages.
The burden of proof that the custom is antiquity in nature lies on the person
who sets up the particular custom in the court of law.
2. CONTINUANCE :
A custom must have been practiced continuously, by the community
concerned. Interruption within legal memory defeats custom. Blackstone
draws a distinction between interruption of the right and of the mere
posssessiion of thing over which the right is asserted. If the inhabitants of a
parish have a customary right of watering cattle at a certain hole , the custom
is not destroyed though they do not use it for 10 years… but if the right bbe
anyhow discontinued for a day, the custom is at the end.
3. PEACEABLE ENJOYMENT
The custom must have enjoyed peaceably and the right claimed must have
been exercised openly. It is clear that the custom that has been the only
wrested from the public by the strong hand not the custom at all. As custom
owe their origin to common consent, their being immemorially disputed,
either at la or otherwise, is a proof that such consent is wanting. Custom
cannot be grounded eupon fraud or upon secrecy.
4. OBLIGATORY FORCE
The custom must have a normative force in the sense that people subjected
to custom must have no other option except to follow the custom. It is
normative character that brings custom nearer to legal precept.
5. CERTAINITY
The custom must be certain. Th ecourt must be satisfied by clear proof that
the custom exists as a matter of fact.
 When we are told that ciustom must be certain- that relates to the evidence
of a custom.
6. CONSISTENCY
Custom must be consistent with each other; one custom cannot be set up in
opposition to another. For if both are really customs then both are of equal
antiquity and both established by mutual consent: which is to say that the
contradictory customs is absurd. Therefore, if one man prescribes that by
custom he has a right to have windows looking into another’s garden , the
other cannot claim a right by custom to stop up or obstruct those windows:
for these contradictory customs cannot be both be good, nor both stand
together.
7. REASONABLENES
The final and the most difficult test is that of reasonableness. For Allen, the
rule seems to be not that a custom will be admitted .if reasonable, but that it
will be admitted unless it is ubnreasonable. This distinction seriously affects
the onus of the proof. The party who have proved he existence of a custom is
not under the furher necessity of proving its reasonablenesss; it is for the
party disputing it to satisfy the court of its unreasonableness.
CONCLUSION:
Savigny believed in the spirit of law and there is a limited applicability of
savigny’s theory to India. Although India constitution indicates that the
source of Indian constitution is the people of India yet there are many
provisions which have outer sources.