‘Savigny’-

Founder of Historical School

Debaditya, Garima Bajaj

STUDENTS
LAW DEPARTMENT
DELHI METROPOLITAN EDUCATION, NOIDA, INDIA
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Abstract: The Historical School of Law was a jurisprudential movement that knocked the doors in the late
18th and early 19th centuries in Germany. The proponents of this school placed historical and cultural
traditions higher on the pedestal than any abstract principles and concepts of natural law. They advocated
that the historical and social threads weave the growing fabric of law, and that the legal systems must
illustrate the society’s various idiosyncrasies. In the pedestals of Historical School, one of the towering
figures was Friedrich Carl von Savigny, a German jurist and legal scholar who lived from 1779 to 1861.
Savigny emphasised on law’s collective spirit and the role of the specific culture in its making, and the fact
that such law devoid of its historical context could not be exported and applied elsewhere. The ideas of
Savigny revolutionized the development of legal thinking Europe and beyond. The principles of Savigny
stoked the fire of legal positivism movement, which highlighted the necessity of legal rules and institutions.
Another school of thoughts whose growth was imprinted by the ideals of Savigny was the sociological
school, which focused on social and cultural factors shaping the law.
Debate and studies continue to rage on even today, about the Historical School and the perspectives of
Savigny by legal scholars and practitioners around the globe. Some naysayers point out the narrow vision of
this approach which magnifies tradition, neglecting the change in social-cultural norms, others raise the
point that the value of perspective is in the fact that it compels us to study legal history and our traditions.
Keywords: Savigny, Historical School, social threads, collective spirit

SAVIGNY’S APPROACH TO HISTORICAL SCHOOL OF LAW

“Law is founded and not made”

Savigny discarded the importance of reason and abstract principles, and instead considered law to be
reflective of the customs, traditions, and values of a particular society. He championed the arguments for
natural evolution of legal system rather than external imposition.
The method of legal scholarship with regards to Savigny was heavily bound to the interpretation of history
and culture. He attached essentiality to the study of legal history, as a requirement for understanding the
evolution of legal systems within their social and cultural backgrounds. He vehemently criticised the
notions of law creation by sovereign, and instead termed the development of law to be an organic process
stemming from a society's customs and traditions.
His pronouncements proved to be influential in growing civil law tradition in Europe, and also in the study
of comparative law.

LIFE OF SAVIGNY

Friedrich Karl Von Savigny was born at Frankfurt (Germany) in 1779. He was educated at the universities of
Marburg and Gottingen and was a Professor of Civil law in the University of Marburg from 1801 to 1804.
Thereafter, he shifted to the University of Landshut. He was then appointed as a professor at the newly
formed university of Berlin in 1810 and worked there until 1842 when n he was appointed as Minister of
Justice in Prussia. He retired from that post in 1848. He pursued legal studies till 1861 when he died in
Berlin. "The law grows with the people; constructs itself in common with the people, and finally dies out

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when the people losses its peculiar character; the real setting of the law is the common consciousness of the
people."1

WORKS OF SAVIGNY

F. Savigny, as one of the most prominent figures of the Historical School of Law, wrote several important
works that contributed to the development of his legal theory. Few of his crucial works include:
1) "System of the Modern Roman Law"(1840-1849): This book is considered one of Savigny's most
significant contributions to legal scholarship. It is a comprehensive study of the development of
Roman law from the medieval period to the modern era. Savigny's analysis emphasizes the
importance of historical context and cultural traditions in the growth of legal systems.

2) "The Law of Possession" (1803) by Savigny explores the notion of possessing something in
German law and its evolution from Roman law to the contemporary era. The author asserts that
possession comprises not only the physical control of a property but also a subjective aspect of
intention and awareness.

3) "The History of Roman Law in the Middle Ages" (1815-1831) is a comprehensive analysis of the
progression of Roman law throughout the medieval era. Savigny contends that Roman law persisted
in its evolution during this epoch, adapting to the shifting social and cultural circumstances of the
time. This work is comprised of several volumes that provide a thorough examination of the subject
matter, offering detailed insights into the development of Roman law in the Middle Ages and its
adaptation to the changing social and cultural conditions of the time.

4) Savigny's "Vom Beruf Unserer Zeit Für Gesetzgebung und Rechtswissenschaft" (Of the Vocation
of Our Age for Legislation and Jurisprudence) (1814) proposes that law must have its foundation in a
society's historical and cultural traditions, rather than being grounded on abstract principles or
natural law. The author advocates for a renewed focus on the study of legal history and the growth of
legal systems to gain a deeper comprehension of law's role in society.

5) "The Right of Possession" (1803), also known as "Das Recht des Besitzes," examines the idea of
possession in German law in depth, tracking its evolution from Roman law to contemporary times.
Savigny posits that possession encompasses not only the physical control of a property but also a
subjective element of intention and awareness.

19TH CENTURY GERMANY AND THIBAUT’S GERMAN CODE

During the late 18th and early 19th centuries in Germany, natural law lost its dominance as the pervasive
legal theory. This was due to its dependency on abstract principles and mysticism, which were deemed
unrealistic and not tied with the historical background. In addition, the principles of liberty, equality, and
fraternity were considered to be hypocritical slogans, as they were ruthlessly violated by the French
revolutionaries themselves. Savigny rose in opposition against these hollow and undefined ideals,
specifically due to Napoleon's attempts to conquer Germany. Napoleon waged war against the politically
and linguistically divided German states, and imposed the Napoleon Code on all Germans, which stripped
them of their independence and political freedom. The German people found the French politico-legal
1
Albion W. Small “Some Contributions to the History of Sociology. Section II. The Thibaut-Savigny Controversy: Continuity as a
Phase of Human Experience” 28, No. 6 American Journal of Sociology 727 (1923)
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system dictated on them to be burdensome and humiliating, as it sought to destroy their culture, heritage,
and language. Ultimately this imposition led to positive change through causing political unification of
Germany to fight the French under the common slogan of "Germany for Germans." This can be related to
the political unification of India against the British.

VOLKSGEIST AS A SOURCE OF LAW

- Introduction to Volksgeist theory:

The Volksgeist theory, is a central concept in his legal and sociological philosophy. Volksgeist could
translate to "spirit of the people" or the collective consciousness of a nation or community. This theory holds
that the laws, customs, and institutions of a society are shaped by the unique historical, cultural, and social
characteristics of its people. It theorises that the distinctive history, culture of a society, translates into its
own distinct laws, customs and institutions.
In his works, Savigny emphasized the historic-organic growth of the law and its dependence on the
spontaneous legal conviction prevailing among the people. 2 He argued that the collective experience,
traditions, values, and shared consciousness of a society give rise to legal rules and principles. He further
emphasises about Volksgeist that it establishes itself through people’s customs, practices and traditions, and
for such reason these customs become a primary source of law.
This theory criticises the exclusive nature of development of law through only rational human design or
legislative enactment. The primary architects of legal systems accordingly then are said to be historical
development, cultural heritage, and the shared identity of a community Volksgeist is not of universal
application as each people develops its own legal habits according to its environment. 3

The Volksgeist theory stresses the importance of historical and cultural context in legal theory,
interpretation, and the study of legal systems. It asserts that to comprehend and interpret law effectively, we
must consider the unique cultural and societal factors that influenced its creation and evolution. According
to Savigny, legal rules and principles cannot be separated from the customs and traditions of the people who
created them. Legal interpretation must incorporate the spirit and intent that existed at the time of a law's
creation, while also recognizing the cultural and societal factors that impacted its evolution.
While the Volksgeist theory has been subject to criticism, particularly for its potential cultural bias and
limited applicability in diverse societies, it remains a significant contribution to legal and sociological
thought. It highlights the complex relationship between law, culture, and society, and underscores the
importance of historical and cultural analysis in understanding legal systems.
Hence, the Volksgeist theory of Von Savigny provides insights into how the spirit, traditions, and customs of
a people shape their legal systems. It offers a nuanced perspective on the origins and development of law,
emphasizing the role of collective consciousness and cultural heritage in shaping legal principles and
institutions.

- Savigny and his theory about development of law have the following features:

1. Law develops like language:

2
Alf Ross, On Law and Justice 477 (Oxford University Press, Oxford, 1st edn., 2019)
3
Dr V.D. Mahajan, Jurisprudence and Legal Theory, 562 (Eastern Book Company, Lucknow, 5th edn, 1987)
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To simply quote Savigny, "The organic evolution of law with the life and character of the people develops
with the ages, and in this it resembles language. As in the latter, there can be no instant of rest, there is
always movement, and development of law is governed by the same power of internal necessity as simple
phenomena. Law grows with nation, increases with it, and dies at its dissolution and is a characteristic of
it."4

2. Early development of law is spontaneous; thereafter, jurists develop it:

Savigny proposes an interesting perspective on the evolution of law within a community. In the early stages
of a community's development, he claims that law arises organically to meet the community's internal needs.
However, as the community becomes more advanced, the formerly unified development of the various
national activities begins to give rise to specialized fields such as linguistics, anthropology, science and
jurisprudence.
According to Savigny, law must then serve two roles: as a general regulator of national life and as an
academic subject of study in its own right. He refers to these as the political element and juristic element of
law, respectively, and argues that both play a significant role in law's development.
The history of Roman law provides a clear example of this. In its early days, Roman law was based on the
general understanding of the people. But as Roman society evolved, Roman law became more complex and
technical, culminating in the form of the law of edicts. Thus, law progresses from being a spontaneously
created popular creation to a specialized field studied and shaped by experts such as jurists, linguists,
anthropologists and scientists.

3. Savigny was opposed to the codification of German law:

Savigny dissented against codification because the then German population wasn't legally conscious
enough. He felt codification was enough only to express existing law.
He also stated that drafting a code is not possible unless there is sufficient technical expertise in the jurists
which he found lacking. And even that community consciousness was yet to develop. Savigny's ideas on the
preservation of customary law and opposition to codification were influential and had a lasting impact on
German legal thought. Although codification efforts did eventually take place in Germany, particularly with
the enactment of the German Civil Code (Bürgerliches Gesetzbuch) in the late 19th century, Savigny's
legacy remained as a significant critique of the codification movement.
It is worth noting that while Savigny opposed codification, his focus on the importance of historical,
cultural, and social context in legal development contributed to the understanding of legal systems and
influenced subsequent legal theories and methodologies. His work continues to be studied and debated by
legal scholars today.

4. Law is a continuous and unbreakable process:

Savigny believed that the law was a living thing that developed naturally within a community based on their
traditions, customs, and values. As society changed, the law had to adapt to meet the community's needs,
similar to how nature works. The law and society evolved together and needed to be studied by legal
scholars and historians. Savigny warned against making sudden changes to the law or codifying it too early
as it could harm its growth. Gradual changes that aligned with societal values were necessary to preserve the
law's legitimacy and organic nature. Overall, the law needed to remain connected to the community it
served.

4
Dr. N.V. Paranjape, Studies in Jurisprudence & Legal Theory, 51, (Central Law Agency, Prayagraj, 10th edn., 2023)
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 5. Admiration for Roman Law:
Savigny considered Roman law to be sacred. It was a product of thousand years of German history, and a
central part of the Holy Roman Empire culture. He felt abolition of that would mean Germany would cut
ties with its history.5 He regarded Roman law as the embodiment of legal excellence and a valuable source
of inspiration for understanding and interpreting the laws of his time.
Savigny recognized the comprehensive and systematic nature of Roman law, its logical structure, and its
ability to provide coherent and practical solutions to legal problems.

To quote Savigny – “In analysing the practice of modern law we see that the greater part of the principles or
notions which compose it are of Roman origin. But these notions and these principles did not fall upon us
from the sky; they reached us through a continuous tradition of six centuries of profound ignorance and
seven other centuries of profound literary activity more or less good”.6
Furthermore, Savigny viewed Roman law as a testament to the organic growth and evolution of legal
systems. He saw in it the embodiment of the Volksgeist, the spirit of the Roman people, and the legal
customs that had developed over time. For him, the study of Roman law was not merely an exercise in
historical curiosity but a means to uncover the fundamental principles underlying legal systems.
Savigny's admiration for Roman law influenced his approach to legal theory and methodology. He
advocated for a historical and comparative analysis of legal systems, drawing on the lessons and insights
from Roman law to understand the development and interpretation of laws in his own time. He believed that
the study of Roman law would help reveal the universal principles that transcend time and culture, thus
providing valuable guidance for contemporary legal thought.
It is important to note that while Savigny had great respect for Roman law, he did not advocate for a blind
adoption or imitation of its principles. Savigny implies that Roman law, despite the misleading connotations
of the name, was adapted to, and grew out of, German conditions. 7 Instead, he emphasized the need to
understand the historical context in which Roman law developed and to adapt its principles to the specific
circumstances of different legal systems.
Savigny's admiration for Roman law played a significant role in shaping his understanding of legal systems
and his belief in the importance of historical analysis and cultural context. His work helped establish the
field of legal history and influenced subsequent generations of legal scholars in their study and appreciation
of Roman law as a foundational pillar of legal thought.

SAVIGNY’S CONTRIBUTION TO JURISPRUDENTIAL THOUGHT

Friedrich Carl von Savigny made significant contributions to jurisprudential thought through his pioneering
work in the field of legal theory. Here are some key contributions of Savigny to jurisprudential thought:
i. Historical School of Law: Savigny is renowned for founding the Historical School of Law,
which revolutionized legal thinking in the 19th century. The Historical School emphasized the
importance of historical, cultural, and social contexts in understanding and interpreting law.
Savigny argued that law develops organically over time and reflects the spirit and customs of a
particular nation or community.
ii. Volksgeist: One of Savigny's key concepts was Volksgeist, which refers to the "spirit of the
people" or the collective consciousness of a society. He believed that the laws and legal

5
Frederick C. Beiser, The German Historicist Tradition 276 (Oxford University Press, Oxford, 1st edn., 2011)
6
Luis Kutner, “Legal Philosophers: Savigny: German Lawgiver”, 55 Marquette Law Review 292 (1972)
7
Supra note 5 at 280
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 institutions of a nation are shaped by the unique historical, cultural, and social characteristics of
its people.
According to Savigny's Volksgeist theory, systems of law are individual, the product of a specific
people at a specific time and place. 8 Savigny emphasized the need to study legal systems in their
historical context to truly understand and interpret the law.

iii. Custom as a Source of Law: Savigny emphasized the role of custom as a primary source of law.
Custom is the main source of law and it precedes legislation. 9 He argued that customs, which
emerge from the practices and traditions of a community, provide the foundation for legal rules
and principles. According to Savigny, customs reflect the collective will and beliefs of the people
and should be given due recognition in the development and interpretation of laws.

iv. Influence on Legal Interpretation: Savigny's work had a profound impact on the field of legal
interpretation. He advocated for an interpretive approach that takes into account the historical
context and spirit of the law. Savigny wanted his students to learn, above all, was what he called
“historical sense,” i.e., the awareness that law is the product of history, that it has to be
interpreted in the context of time and place.10 This approach helped shape the understanding of
legal hermeneutics and influenced subsequent theories of statutory interpretation.

v. Influence on Legal Education and Scholarship: Savigny's ideas on legal education and
scholarship were also influential. He played a significant role in shaping legal education in
Germany, emphasizing the importance of historical and comparative studies in the curriculum.
Savigny's approach to legal scholarship, which combined rigorous historical analysis with a
broader understanding of social and cultural factors, set new standards for legal research and
paved the way for the development of legal sciences.
Hence, Friedrich Carl von Savigny's contributions to jurisprudential thought, particularly through the
establishment of the Historical School of Law, his emphasis on historical context and Volksgeist, and his
recognition of custom as a source of law, have had a lasting impact on legal theory and shaped our
understanding of the role of history, culture, and interpretation in the study of law.

CRITICISM

Savigny’s anti codification agenda is heavily criticised by other jurists. The ideas are considered to be
negative, obscure and narrow. The theory of Volkgeist blindsides other sources of law. The anti-codification
agenda stunted German law’s growth for several decades.

CONCLUSION

Friedrich Carl von Savigny's historical approach to law has had a profound impact on legal theory and
continues to shape our understanding of legal systems today. Savigny's emphasis on the historical
development, cultural context, and organic nature of law challenged the prevailing views of his time and
provided a new framework for studying and interpreting legal principles.

8
Supra note 7
9
Supra note 3
10
Supra note 5 at 255
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Through his establishment of the Historical School of Law and his concept of Volksgeist alongside his pupil
Georg Friedrich Puchta, Savigny highlighted the importance of historical analysis, customs, and traditions in
understanding the law. Law is not simply a product of legislation or rational design but rather emerges from
the collective spirit and shared consciousness of a people.
Savigny's approach to law recognized the unique characteristics of different legal systems and emphasized
the need to study them in their historical and cultural contexts. He believed that each nation has its own
distinct legal traditions shaped by its history and customs, and that these traditions should be preserved and
acknowledged.
Friedrich Carl von Savigny was greatly influenced by his admiration for Roman law and its universal
principles, which he believed could be applied beyond their original context. His approach to legal theory
was based on a historical perspective that emphasized the dynamic nature of law and the need to adjust it to
changing societal values. Despite facing criticism and undergoing changes over time, Savigny's approach
established the groundwork for the study of legal history and comparative law, and highlighted the
significance of cultural context in legal interpretation. As a result, Savigny's contributions have had a lasting
impact on our comprehension of law in modern society.