Rousseau and Savigny on the Will of the People
When we talk about the idea of the will of the people in jurisprudence and political thought, two thinkers often come into play, though from very different schools: Jean-Jacques Rousseau with his concept of the general will and Friedrich Carl von Savigny with his notion of the Volksgeist. Both resonate around the idea of people shaping law, but the similarities are deceptive if not carefully unpacked.
Rousseau and the General Will
Rousseau’s general will is fundamentally normative. It is not just a collection of individual preferences, nor is it the loudest faction’s demand. The general will represents the collective orientation toward the common good—the shared ground that transcends particular interests. It is the basis of Rousseau’s republicanism, where citizens, by entering the social contract, submit not to a ruler but to the collective whole. Crucially, the word general signals universality: the will aimed at the good of all, not a segment of society.
In Rousseau’s view, individual rights are not discarded but reoriented toward the collective, ensuring that law serves the entire community rather than sectional or private advantage. This makes his idea deeply prescriptive—he is telling us what ought to be willed.
Savigny and the Volksgeist
Savigny’s Volksgeist (the spirit of the people) moves in another direction. It is descriptive, not prescriptive. Savigny argued that law is not imposed artificially but emerges organically from the customs, practices, and shared consciousness of a people. Law, in this sense, evolves historically as societies evolve. Whether those customs are moral or not is irrelevant to Savigny; what matters is that they express the lived spirit of the community.
Where Rousseau sets an ideal—law as the expression of a collective moral will—Savigny provides a historical lens: law as the gradual crystallization of a people’s culture.
The Overlap and the Divergence
At a glance, both seem to champion the “will of the people.” But here is the key distinction:
- Rousseau’s General Will → What people ought to will (normative, moral, universal, republic-oriented).
- Savigny’s Volksgeist → What people have willed (descriptive, historical, cultural, evolutionary).
The similarity lies in their emphasis on the collective. The difference lies in their orientation: Rousseau is concerned with the idealized, communal good; Savigny is concerned with the lived reality of how law actually develops.
Why the Distinction Matters
Conflating the two can be tempting because the language—“will of the people,” “spirit of the people”—sounds alike. But missing the nuance risks flattening both. Rousseau provides the “ought,” the normative basis for republican lawmaking; Savigny provides the “is,” the descriptive account of how laws historically come to be. Together, they frame law both as a moral ideal and as a historical product.
Conclusion
So when we talk about the general will of the people versus the will of the people, the difference is not trivial. One speaks to the higher ground of law as an instrument of the collective good, while the other reflects the organic, sometimes messy, evolution of law through the lived practices of society. Understanding this distinction allows us to appreciate not only the philosophical depth of Rousseau and Savigny but also the dual nature of law itself: as something we aspire toward, and as something that grows from us.
