Historical School of Jurisprudence: Savigny’s Theory
Introduction
The Historical School of Jurisprudence views law as a natural product of a people’s history, customs, traditions and shared social life rather than as a mere creation of rulers or legislatures. Friedrich Carl von Savigny (1779–1861), its leading founder, argued that law grows organically from the common consciousness of the people—called the Volksgeist—just as language develops through everyday use.
Core Ideas of Savigny’s Theory
Savigny’s Historical School rests on a few central principles that together explain how law truly develops.
Volksgeist (The Spirit of the People)
Law does not come from outside commands or abstract theories. It grows out of the shared beliefs, habits, values and everyday experiences of a community. This common consciousness of the people is what Savigny called the Volksgeist. Every legal system, in his view, is an expression of the living spirit of the nation that created it.
Organic Growth
Law develops slowly and naturally, just like a language or a culture. Legal rules first appear as repeated social practices. Over time these practices become accepted, settled and eventually binding. Because law grows in this living way, Savigny believed that suddenly replacing an entire legal system with a brand-new code is usually unwise and often harmful.
Connection With National History
Each society has its own unique past, traditions and social conditions. These historical experiences shape its legal rules. Therefore, a law that works well in one country may prove unsuitable in another country with a different history and way of life. Law cannot be separated from the history of the people who live under it.
Custom as a Key Source of Law
Many legal rules begin as established customs of the people. When a practice is certain, continuous, reasonable and consistent with higher law, it can become a binding legal rule. Custom, for Savigny, is one of the most important and natural sources of law.
The Role of Jurists and Legal Experts
In the early stages of society, law is closely tied to popular custom. As society becomes more complex, trained legal scholars and jurists take on a greater role. They study the historical materials of the law, clarify its principles, organise them systematically and adapt them to new conditions—without cutting them off from their historical roots.
Caution Against Premature Codification
Savigny did not reject codification completely. He opposed only the hasty creation of a complete written code before the law had been properly understood through historical research. A code based merely on abstract ideals, without regard to living customs and social realities, is likely to fail.
Evolution With Society
Although Savigny stressed tradition and continuity, he did not claim that law must remain frozen. As social conditions, economic life and public understanding change, legal rules also change. The important point is that reform should grow out of historical understanding rather than ignore it.
Savigny never denied the importance of the State or of legislation. He simply insisted that the State does not invent law from nothing. Legislation and formal recognition should build upon the living law of the people rather than try to replace it completely.
Illustration
Examples of Savigny’s Historical School can be seen in everyday legal life: the long-standing village custom in India of dividing ancestral property among sons reflects the Volksgeist or common consciousness of the community; English common law grew slowly through court decisions and local practices rather than sudden codes, showing organic growth; the Hindu joint family and coparcenary system cannot be understood without India’s unique history; local marriage and inheritance customs recognised under the Hindu Marriage Act illustrate custom as a source of law; Roman jurists organised existing customs into systematic principles, highlighting the role of legal experts; Savigny’s own opposition delayed Germany’s civil code until historical study was complete, warning against premature codification; and the later grant of equal property rights to daughters under Hindu succession laws shows how law can evolve with changing society while still respecting its historical roots.
Stages of Legal Development
- Everyday customs and traditions
- Acceptance as obligatory within the community
- Recognition by courts or the State
- Systematisation by legal experts
- Legislation or codification when needed
Value and Limits of the Theory
The Historical School usefully stresses the social roots of law, the importance of custom, the need for historical study, and the dangers of reforms that ignore a society’s real conditions. It also highlights the contribution of jurists.
Critics note that some customs are outdated or unjust, that legislation is often essential for rapid social reform, that a single “common consciousness” is hard to identify in diverse societies, and that many modern rules (for example on data protection or cybercrime) arise by deliberate enactment rather than long custom.
Relevance of Savigny’s Historical School in India
Savigny’s Historical School of Jurisprudence remains relevant in India because Indian law recognises the importance of customs, traditions and social practices in the development of law. For example, Section 3(a) of the Hindu Marriage Act, 1955, defines the term custom and usage, while Section 3(a), read with Section 5(iv) and (v), recognises certain customary practices relating to marriage, subject to the conditions prescribed by the Act.
This reflects Savigny’s view that law develops gradually from the traditions, beliefs and collective consciousness of society rather than being created entirely by legislation. However, customs must satisfy legal requirements and remain consistent with constitutional principles, including equality, dignity and fundamental rights. Therefore, Savigny’s theory encourages lawmakers and reformers to understand the historical and cultural background of Indian society while recognising that traditions cannot remain unchanged when they conflict with justice, social progress and constitutional values.
Contrast With the Analytical School
| Aspect | Historical School (Savigny) | Analytical School (Austin) |
|---|---|---|
| Nature of law | Organic growth from society and custom | Command of the sovereign |
| Main source | Custom, tradition, Volksgeist | Sovereign will backed by sanctions |
| Role of the State | Recognises and develops existing law | Creates law by command |
| Method | Historical and evolutionary | Analytical and positivist |
In short, Savigny taught that law is the historical expression of a people’s spirit. Sound legal development therefore requires both respect for that living history and readiness to adapt it to the needs and constitutional values of the present.
Conclusion
Savigny’s Historical School teaches us that law is not created only by the government or by written codes. It grows naturally from the history, customs, traditions and shared feelings of the people. This common spirit of the people is called Volksgeist.
Savigny showed that good law develops slowly, like a living thing, and stays connected to the real life of society. He also warned that making a completely new code too quickly, without understanding the past, can create problems.
Of course, the theory has some weaknesses. Old customs can sometimes be unfair, and modern problems often need new laws made by the legislature. Still, Savigny’s main idea remains useful: law works best when it respects the history and real needs of the people.
In short, we should understand the past carefully, keep the good customs that still help society, and at the same time change the law whenever justice and new needs require it.
