Volksgeist
Sunday, January 28, 2024 12:48 PM
Emerged in 19th century Germany, historical school is a reaction against Natural Law's emphasis on abstract
concepts and universalism. It focused on the actual, evolving nature of law based on historical development.
the basic idea of this school is that in order to understand the meaning of the law it requires knowing its history
and evolution. This school of thought argues that laws are not pre-existing ideals, but rather products of social,
cultural, and historical process
Savigny's volksgeist theory:
German Jurist, Friedrich Carl Von Savigny was the father of historical school of Jurisprudence . He urged that
there is a need to study law in its entire course of evolution. For a proper understanding of law and its
transformation, one must possess updated legal knowledge at all times. In the words of Savigny, law is the
embodiment or representation of Volksgeist- meaning that it is the pure spirit of the nation or soul of the
people.
Customs and Usages were the true spirit of the people and law must be discovered from such Customs and
Usages. He stressed 'Law must be found and not to be made'. According to him laws are not of universal
application, as each person develops his own legal habits in his own environment. The task of lawyers is to
keep a constant vigil and find out periodically the correct consciousness in the changing habits of people.
Volk means the people and Geist means spirit in German, so Volksgeist theory could be translated as 'the
Spirit of the People'. Because of this he perceived the law as being intertwined with the history and culture of
a country.
Significance of volksgeist:
- Shifted focus from abstract universal laws to understanding the unique historical and cultural context
shaping legal systems
- Introduced the concept of cultural relativism - the idea that values and customs of each society significantly
influence its laws
- Laid the foundations for comparative law which studies different legal systems to find commonalities and
differences
- Promoted respect for legal traditions and continuity rather than radical reforms
- Helped further examination of how laws evolve over time based on societal history and culture
- Strengthened cultural identification through shared legal ancestry
- Provided a bridge between legal systems and moral systems of communities
- Shaped modern legal education by emphasizing historical and sociological contexts
- Prompted inquiry regarding appropriate timing and approaches for adapting legal customs.
The main features of the Savigny’s theory are:-
1. Law has a national character.
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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 mold law in a set form.
Criticism of Savigny’s Theory:
1. 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.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which never existed in nor
has any connection with popular consciousness.
3. 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.
4. 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.
5. 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.
6. Juristic Pessimism:- Savigny encouraged juristic pessimism. Legislation must accord with popular
consciousness. Such a view will not find favor in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.
Application of volksgeist in india:
Savigny's theory faces challenges in India due to its federal structure, incorporating borrowed provisions, and
the codification of English law during British rule. Contrary to Savigny's idea that laws should originate solely
from popular consciousness, modern legislative initiatives like the Dowry Prohibition Act and judicial activism
reflect deliberate efforts, deviating from Savigny's view on the creative role of judges. This showcases the
evolving and dynamic nature of India's legal landscape, challenging Savigny's emphasis on the exclusive
influence of the popular will in shaping laws.
Simply put, Savigny's Volksgeist doctrine is an acknowledgement of the influence of the national character in
law-making. This became a major issue in Germany, which later left its mark on legal science.
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