SAVIGNY THEORY OF VOLKGIST

INTRODUCTION

                        What is the law?

It is very difficult to define in a particular way or a uniform definition of law is like imagination.
A Uniform definition of law is far from reality because every jurist has defined the law according
to their own methods and explained it from different viewpoints. Sources, nature, and concerns
are some of the element which impacts 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 of the 19thcentury 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 Roman law during
his lifetime. He worked as a Professor at 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

Theory of Volksgeist (What is Volksgeist?)

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Volksgeist is the concept of law propounded by Savigny. The term Volksgeist is made by the
two words 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 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.1

Jurisprudential study of the theory:

As mentioned above, Savigny believed that the evolution of law can only be made by taking into
account past considerations, and without doing that it creates more amounts of confusion rather
than 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 Volksgeist by Savigny can be explained in the following heads:

1. Law prevails basically in society:

According to 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
reflects 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 beliefs and opinions in a
group but also grows with the development of society. The development of both elements goes
1
lawnotes4u, https://www.lawnotes4u.in/savignys-theory-of-volksgeist-historical-school/(last visited 3rd March
2023)

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hand in hand. It has no different existence, which follows them but considers as 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 through the regular and 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 on 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 historical knowledge and not by 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 kinds of
national activity developed the law accordingly.2

Criticism:
As already discussed, a uniform and precise definition of law are 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:
2
ibid

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 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 determines 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 modern conditions. Hence there is
inconsistency in the theory of Volksgeist.
 
4. Volksgeist is not an exclusive source of law:
According to 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
was treated rather too lightly by Savigny.
 
6. It was unfortunate that the doctrine of Volksgeist was used by the National Socialists in Germany
for an entirely different purpose which led to the passing brutal laws against the Jews during the
regime of Hitler in Germany.3

Applicability in India
3
Supra 1

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There is a limited applicability of Savigny’s theory to India. Indian Constitution is upto a greater
extent a federal Constitution as there is division of powers between Central and State Governments.
Because of it they both act independently in their own spheres. Under the Union list, Union/Central
Government has powers about national interest matters and under the State list, State Governments
have powers about local interest matters to enact laws. This distribution of powers about enactment
of laws by federal and State Governments is against Savigny’s national character of law.

Yet, upto certain degree Savigny’s hypothesis appears to have relevance to India. In the Indian
Constitution, the Preamble of the Constitution pronounces India as a “Sovereign, Socialist, Secular,
Democratic Republic.” The expression “popularity based” shows that the Constitution has set up a
type of government which gets its power from the “will of the individuals”. The Preamble
additionally proclaims that the Constitution of India is embraced and instituted by the individuals of
India and they are a definitive ace of the Republic. Along these lines, the genuine force is in hands of
Indian Citizens[xii] both at Central and State level.

Although Indian Constitution indicates that the source of Indian Constitution is the people of India
yet there are many provisions which have outer sources, for example, Fundamental rights are
borrowed from the American Constitution and emergency provisions are borrowed from German
Constitution. Thus, it is clear that it is against Savigny’s theory which states that only Volksgeist is
the source of law.4

The present laws e.g. law of torts, provisions regarding restitution of conjugal rights, Contract Act,
and many other important laws are gifts of English who ruled in India and brought and applied their
laws here too during’ 19th and 10th Centuries. They codified English law in the Indian soil which
has been very beneficial for Indians. It was the codification of law which made the law uniform
throughout the country. It is against Savigny’s view who believed that a received law can never be
effective nor can it acquire national character. He also vehemently opposed codification of law. But
the existence of a received Common Law and successful working of the Codes in India proves wrong
Savigny’s view.[xiii]

4
Ipleaders, https://blog.ipleaders.in/savignys-theory-law-applicability-india/,(last visited 3rd March 2023)

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According to Savigny’s theory, law always comes from the popular consciousness of the people. But
against it in India, in modern times many no, doctrines are deliberately introduced by policy makers
and they are the result of conscious effort, e.g. Dowry Prohibition Act and the Untouchability
Abolition Act. Such laws don’t always reflect the popular consciousness of the country. In recent
times in India a new thing which is against Savigny’s theory is judicial activism. By way of
precedents, judges are making laws which are against Savigny’s view who ignored creative functions
of the judges.

Case Laws
1. Meera Kumari Dhungana v. His Majesty’s Government Ministry of Law5

Case: Daughter's Property Right

Decision of the Case: "Making sudden changes in traditional social practices in matters of
social norms perused by the society since a long time ago, may create problems in connection
to adjustment in the society. And, it may cause such a situation beyond perception. Therefore,
before reaching a decision all of a sudden, a just provision should be made by holding wide and
extensive discussions and deliberations taking into account the constitutional provision vis-àvis
equality. As the family law relating to property is to be wholly considered, it is hereby issued this
directive order that HMG introduce an appropriate Bill to Parliament within 1 year of receipt of this
order, by making necessary consultations with the recognized women's organizations, sociologists,
the concerned social organizations and the lawyers as well and by studying and considering the legal
provisions in this regard on other countries”.6

Justice and Parliamentary Affairs and others, Rolling out abrupt improvements in customary
social practices in issues of accepted practices examined by the general public since quite a while
back, may make issues in association with modification in the general public. Furthermore, it
might cause such a circumstance past recognition. Thus, before arriving at a choice out of
nowhere, a simple arrangement ought to be made by holding wide and broad conversations and
thoughts considering the constitutional arrangement versus correspondence.

5
Meera Kumari Dhungana v. His Majesty’s Government Ministry of Law, N.K.P. 2052, P. 462
6
Timalsina Ram Krishna, Some Landmark Decisions of the Supreme Court of Nepal, Shakti Offset Press, New
Banseswor, 2003, 164

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Patriotism, national solidarity and joining of India as a solid, unavoidable and dynamic country is
the need of hour. This heavenly perfect of India as a country we esteem from our way of life and
customs in a solid manner and is both a topographical truth and a social and verifiable element.
Without a doubt, the patriotism is supported by the adoration for the nation in which we live, the
shows we gain and the longing for an average shared future. Obviously, the core of Indian
solidarity and legacy has been a proceeding with combination among various religion,
convictions, etymological and territorial varieties by blending them inside the incredible mosaic
perfect of India as a country. The diviners of Upanishads, Buddha, Mahavira, Guru Nanak,
Vivekananda, Mahatma Gandhi and others have preached solidarity in assorted variety and not
exclusivism. This unholy coalition has divided the general public based on religion, rank and so
on bringing about social and political strains and clashes even on issues of national solidarity,
solidarity and honesty. The aftermath of the Shah Bano (1986) the Khatoon Nisa (1994), and the
discussion over Uniform Civil Code are such examples whereby Muslims have been supporting
and sustaining their nonconformist Islamic personality before after 1947 when India was
apportioned contrary to Indian Volksgeist. The SC reminded, the standard and preservationist
Muslim politico – strict pioneers that the individuals who alluded to remain in India after the
package, totally understood that the Indian boss didn’t believe in two nation speculation and that
in the Indian republic there was to be only a solitary Nation – Indian nation and no system could
proclaim to remain an alternate component dependent on religion.’ Clearly, the need is vital to
join India nation by empowering and propelling linkages and helping in bracing the
commitments of solidarity and keeping up vital good ways from the administrative issues of
religion or position which is responsible for contemporary bigotry, fundamentalism, semantic
and regional parochialism. People groups Union of Human Rights v. Association of India,
7
President Citizen for Democracy v. Association of India8, G. Sumahati v. Chief Medical
Education, Madras.9

7
People groups Union of Human Rights v. Association of India, AIR 1992 Gau 23
8
President Citizen for Democracy v. Association of India, Writ Petition (civil) 22 of 1995
9
G. Sumahati v. Chief Medical Education, Madras, (2017) 2 CTC 119

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 CONCLUSION

 As per the above-mentioned matter, it can be said that Savigny in his theory deliberately focused
on his theory of Volksgeist upon which his research was depending. In his theory, he says that
law is derived from the customs, tradition, and rules of the community, and the 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 traditions of the people, The sovereignty of the
legislation and on any grounds.  Because then only the law can be developed more efficiently
and effectively.

BIBLOGRAPHY

https://www.lawnotes4u.in/savignys-theory-of-volksgeist-historical-school/

https://www.researchgate.net/publication/
349059156_Relevance_of_Fredrick_Karl_Von_Savigny's_Theory_in_Contemporar
y_Era