FRIEDRICH KARL

VON SAVIGNY
UNIT 4
 INTRODUCTION
Friedrich Karl von Savigny (1779–1861) was a German legal scholar and one of the most influential figures in the
development of modern legal theory. He was born in Frankfurt and studied law at the University of Marburg, where he
later became a professor.
During his tenure, Savigny also gained practical judicial and administrative experience through his rendering of such
services as judge on the law faculty, advisor to the ordinary courts, and counsellor of the Court of Appeal and Tax at Berlin.
Savigny's book on the right of possession, Das Recht des Besitzes, appeared in 1803.11 The work clearly showed
sociological implications, for it represented an early classic, expounding on the study of the Roman system of law as
produced by the ancient Roman civilization.
After that Savigny turned his attention toward the historical and jurisprudential interests that would dominate the rest of
his career.
Savigny’s next work was deeply influenced by the historical and intellectual context of his time. He lived during a period of
significant social, political, and intellectual upheaval in Europe, which included the aftermath of the French Revolution, the
Napoleonic Wars, and the rise of nationalism.
One of the key historical contexts for Savigny's work was the emergence of German romanticism. Romantic thinkers of the
late 18th and early 19th centuries emphasized the importance of culture, tradition, and national identity. Savigny's ideas
about law as a reflection of the "Volksgeist" or spirit of the people can be seen as part of this broader romantic movement.
HISTORICAL BACKGROUND
The event which immediately occasioned Savigny to direct his interests in the area of historical
jurisprudence was the publication of another work, Civilistesche Abhandlungen, in 1814.
Germany being without a unified civil code at this time, Anton F.L. Thibaut, a professor of
Roman law at Heidelberg, wrote the aforementioned book to demand that a general civil code
be adopted for the nation.
Under his plan, Professor Thibaut proposed that a single, unified code of laws for the German
states be drafted by an inter state committee on the laws.
 Indulging in natural law, Thibaut assumed that such a committee of jurists and practitioners
would be able to draw up a suitable code, and, further, dogmatically asserted that codification
could revolutionize a legal system overnight.
This proposal had been published by Thibaut after the Napo leonic wars, while the Congress of
Vienna was deciding the fate of Europe in general, and Germany in particular.
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The French occupation of Germany had greatly solidified a sense of unity among the many existing German
states, and, following the defeat of Napoleon, the codes he had forced upon them were discarded because
they were considered to be alien. Clearly the new nationalist idea rejected adoption of the French code for
Germany.
Likewise, Roman law, which was taught at the universities and had dominated German legal administration
and adjudication, was also condemned by the nationalists as an "alien law."
It was argued as to how could a system of laws created by the ancient Romans for their needs between the
5th century B.C. and the 6th century A.D. be applicable to the needs of the German people in the 19th
century. Hence, it was proposed that the "alien law" be replaced by a system of law indigenous to Germany.
Against such a backdrop, it seems understandable that Sa vigny, along with his followers, would necessarily
enter into this legal field, having been moved to speculate on the central thesis of the law and its relation to
the social context. By so doing, they gave the field its first modern juristic theories.
The founding of the historical school, which identified law with custom, as championed by Savigny,
developed out of the codification controversy.
In vigorously opposing codification in his monograph, Vom Beruf unsrer Zeit fur Gesetzgebung und
Rechtswissenschaft, which he wrote in response to Thibaut's work, Savigny provided impetus for the
emerging historical theory of law.
The basis of Savigny’s ideas was hypoth esis of later sociological jurisprudence: that law was to be
under stood as an aspect of social life.
To Savigny, law was a part of the complex of a people's experience and character. Thus, he count ered
the natural right assumptions of Thibaut by maintaining that the law was not a self-contained
phenomena of collected verbal formulae in some universal body of ideal or "natural" proposi tions.
Thus, in opposing codification, Savigny's historical juris prudence also attacked the philosophy of
natural law.
Savigny asserted that the peculiar relationship between the law and the life of each particular society
under mined natural law from the viewpoint of history and human experience.
Thus, he challenged the natural law idea of a universal code because he thought, that the law should
reflect the unique needs and character of the people of each nation.
To the historical school, the law existed independent of the state; it was the creation, not of nature or
nature's God, but of the naiional consciousness.
The rule of law was, thus, mysteriously begotten of this "spirit of the people" (or Volksgeist) in whom it
had already existed.
Therefore, since law originated in the unique spirit of the people it could not be made, and the Volksgeist
became the basis for study in all its manifestations.
Savigny's Volksgeist doctrine, the first to recognize each particular nation as having a continuity and
uniqueness of experience all its own, was a juristic expression of the romantic revival which had an
influence on Savigny, himself.
Indeed, the whole perspective of historical jurisprudence was a part of the romantic movement which
had begun in the latter period of the 18th century.
In Germany it took the form of a movement back to the simplest tribal origins of the Germanic people,
their folk songs and tales, and their distinctive national spirit.
Savigny emphasized the historic organic growth of the law and its courts through the common,
popular, ethical, legal consciousness prevailing among the people.
Since the historical school insisted upon thorough research into legal origins and transformations,
Savigny believed that law had its own history and followed its own stages of growth.
He was led to theorize that the law was a changing, evolving whole-although it was there as a whole
just the same.
To Savigny, the integral history of law was the history of the legal profession. What was said to be true
of the law was also true of the history of the law.
At the earliest level of its development, the law was expressed spontaneously as an unfolding of ideas
of right based upon customary habits and traditions to which people gave their obeisance.
That the only true source of all law came directly from custom, as Savigny contended, was evidence of
its existence."
The law, evolving only from the spirit of the people, was seen as being slow, almost imperceptible in
its growth: the product of dark, anonymous forces and not the creation of deliberate and arbitrary
decisions. This evolutionary product resulted in rights which did not belong to man, as such.
While Savigny stressed the deep origins of law in social atti tudes and ways of life, he noted that as a
people's life became more specialized and artificial, the law, too, became "more artificial and
complex.“
 Where the law had "formerly . . .existed in the con sciousness of the community," as it matured it
develved upon the jurists, who, in this department, represented the community.
This special class, the legal profession, was entrusted with the duty of interpreting and elaborating
the ethical-legal consciousness of the people. In taking the place of custom, the academic study of
law, thus, became the most important form of revealing the law, as interpreted by the judges in
formal decisions.
Despite this development, however, Savigny recognized that part of the law remained related to the
popular consciousness and way of life, still simple in concept; this part he termed, "the political
element." That which was artificially elaborated by juristic activity he called, "the technical element.
Savigny considered codification as the death of all other pre-code sources of law. Each ,nation,
he felt, must decide for itself whether the proper time for codification of its laws had arrived.
Perhaps expressing a reactionary sentiment in the wake of the Congress of Vienna, Savigny had
decided that the time was not ripe in Germany for such legislative reform.
He specifically condemned plans for codification on the ground that the "state of the public
mind" of the German people was "deficient" in "the law-making faculty" because it lacked the
legal consciousness upon which to base the new legislative formulation.
No amount of state authority could produce a real, suitable, or stable code if the political
element were not mature. That the state of the German Volksgeist, whose lives the code would
govern, had not yet fulfilled this "political" prerequisite was clearly emphasized by Savigny.
Opposed to "armchair legislation," Savigny favored the idea of continuity of experience, the
mastery of which was wholly essential for any progress.
Savigny believed that a code could not be drafted if the juristic maturity of the "technical element" were not
available to perform the task.
What matter if even the political element were adequate for codification when jurists of sufficient genius, well
versed in the tradition and spirit of the law, were lacking.
Codification presupposed a highly developed study of law so that the code could be an adequate
interpretation of the living law. This "technical" expertise Savigny believed his contemporaries lacked.
He pointed out that Thibaut, in his codification pro posal, ignored this "technical" inadequacy of the age
Unlike the propo nents of codification who proposed it as a remedy for the legal deficiency in the state of the
sources, Savigny found the deficiency "in ourselves, and [I] believe for this very reason that we are not
qualified to form a code.
He urged judges to master the materials of existing mixed Roman and German law not yet assimilated-that
"immense mass of juridical notions and theories which have descended and been multiplied through
generations."
Once these materials were mas tered, faith in the supposed dictates of "pure" reason carried over from the
natural law of the 18th century could then be subjected to the vital test of experience.
Indispensable to the jurist was the historical spirit, "to seize with readiness the peculiarities of every
age and every form of law," and the systematic spirit, "to view every notion and every rule in lively
connection and co-operation with the whole, that is, the only true and natural relation.“
As a gardener looks after the growth of a plant, the natural development of the law could be
furthered with the support of academic studies, rather than by legislative interference. Therefore, any
codification claiming to be final would be in conflict with the organic growth of the law."
While codification was always harmful, the best conditions for its success were to be found in the
"middle period development"-at the height of a people's development, when the civilization and
knowledge of the age surpassed that of all preceding ages.
Moreover, ripe though the materials of the law might become, still needed were technical juristic
knowledge, superb skill, and that degree of precision appropriate to the subject matter to be codified.
Savigny's Vom Berufunsrer Zeit directly influenced the course of a country's legal development
perhaps as no other single, com parable essay had. As was the author's intent, it delayed
German codification for more than half a century. Under the work of historical jurists, older
concepts of natural law and rights were re placed by legal ideas as an outgrowth of history.
Germany became distinguished for its great legal historians, as jurists soon turned their
attentions from "living law" to the law of the ancient Romans and the German peoples.
CRITICISM
Savigny’s view has been criticized by many jurists. Allen is of the view that some customs are not the outcome
of common consciousness of people rather are the outcome of the interest or convenience of a strong and
powerful minority of a ruling class. A typical example of this is slavery which was recognized and prevailed in
certain societies. Moreover, some rules of customary law may not reflect the spirit of the whole population
e.g., local custom. On the other hand, some customs e.g., the law of merchant may be cosmopolitan in origin.
The law merchant was not the creatures of any particular nations or race. In short, in the case of law merchant
it is not clear who the ‘volk’ is and whose ‘geist’ determined the law. While criticizing Savigny’s view Prof. Stone
says ‘he (Savigny) laid excessive emphasis upon the unconscious forces which determine the law of a nation
and ignored the efficiency of legislation as an instrument of deliberate, conscious and planned social change. In
all modern developing societies legislation is an important instrument of social change and social reform.
Abolition of Sati pratha, introduction of divorce, the Child Marriage Restraint Act, etc, are some of the many
examples in India where gradual change by legislation has been brought in even though it meant change in the
age old custom and traditions. Dias and Hughes, point out that the Volkgeist theory minimizes the influence
which individuals sometimes of alien race, have exercised upon legal development. Every man is a product of
his time but occasionally there are men who by their supreme genius are able to give legal development a new
direction. The works of classical jurists of Rome of Littleton ,Coke may be cited as examples.