Aishwarya Ganesan, Student of Law, VIT Law School
Natural Law Philosophers of the seventeenth and eighteenth centuries looked to ‘reason’ as a cicerone to attain ideal and the most perfect form of Law. They showed interest in the aims and purposes of law and not its growth and History ((Jurisprudence, Philosophy and method of the law, E. Bodenheimer, p. 70)). Their desire was to formulate a new legal order based on principles of Liberty and equality which were eternal postulates of Reason and Justice. The works of the Historical Jurists was completely contrary to that of the Natural Law Philosophers, the historical school loathed Legislation and believed that rules should be laid down in a code engaging in Human reason alone. They laid emphasis on the mystical concept of a “national spirit” rooted in the traditions of a remote past.
Freidrich Karl Von Savigny German jurist and legal scholar who was one of the founders of the dominant “historical school” of jurisprudence. Savigny’s view of law was first introduced in his famous pamphlet “Of the vocation of our age for legislation and Jurisprudence” which was an answer to a proposal made by a professor of civil law, A.F.J Thibaut. He suggested that various German states should be unified with an effective codification of laws and customs adopted from Nepoleonic code and the Roman laws which was strongly criticized by Savigny. Savigny believed that law was not something that could be made ‘arbitrarily’ or ‘deliberately’ by a Lawmaker. Savigny viewed Law as a slow and unobtrusive growth that is formed in the same way as language is. He said Legislation and codes can get verbal expression whose meaning can be found only through Historical research. It is not something backed on the personal whim or the random choice of the individual. Instead he firmly considered Law as a product of “internal-silent operating forces ((Of the Vocation of our ages for legislation and jurisprudence, transl. A. Hayward (london1831), p. 30)).”
It was deeply embedded in the thoughts, behavior and culture of the people, in the past of the nation and its truest sources were ‘popular faith’; ‘customs’; and the “common consciousness of the people ((Jurisprudence, Philosophy and method of the law, E. Bodenheimer, p. 71)).” Like language, he said, the constitution and law above all was determined by the “peculiar character of a nation” that is, its “National spirit” [Volksgeist] ((Savigny, system des Heutigen Romichen Rechts (Berlin, 1840), I, 14))According to Savigny, nature of any particular system of law is the reflection of the spirit of the people who evolved it. Hence the simple term Volksgeist meant, “Common consciousness of the people.” in his opinion, law was a product of the general consciousness and manifestation and a channelizing force of the spirit of the people. He says, “Law grows with the growth of the people, strengthens with the strength of the people, and finally dies away as the Nation loses its individuality ((Legislation and Jurisprudence, p. 27)).” Puchta, Savigny’s disciple agreed that the origin of law was out of the spirit of the people. His research on the origin of law made him conclude that, the most authentic pronouncement of the common conviction of the people was customary law which he considered to be something far superior to Legislation. He considered Legislation useful only due the fact that it contained the existing National customs and usages.
Historical Jurists thus looked into the past laying emphasis on the silent operating forces which got its national character due to the traditions of the past.
However, several commentaries were made on his concept of Volksgeist.
- There is an essential part of truth in his wide an abstract concept, there is an out flux continuity, and tradition, but the problem lies in making it at par with precision. The concept of Volksgeist is applicable only in a limited and restricted way. The Volksgeist theory reduces the capacity to have an effect on individuals of alien race have applied on legal development.
- Many organizations have originated in an Oligarchy and not in a Volksgeist. E.g. Slavery
- Many customs owe their source to the power of imitation instead of any innate and congenital conviction of their righteousness.
- Some rules of customary laws fail to reflect the whole and entire spirit of people. It is not clear as to whom the Volk or the Geist according to Savigny is the creator of these laws.
- Principal rules of customary law sometimes develop as the result of conscious and violent struggle between conflicting interests within the nation, and not as a result of Imperceptible growth e.g. Laws relating to trade unions or Industry ((Dias, Jurisprudence, p.381)).
Savigny hence had a huge and lasting contribution to the Historical School of Jurisprudence, particularly in revealing the continuity of present legal institutions with past ones; in laying the foundations of legal sociology; and in developing many of the critical methods that are now used by legal scholars everywhere. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to derive legal theories from general and universal principles without respect to the characteristics and customs of a particular people ((Available at http://www.britannica.com, last seen on 3rd December, 2014 , 8.12p.m)).