What is the law?
It is challenging to define in a particular way, or a uniform definition of
law is like imagination. A Uniform definition of law is far from reality because
every jurist has defined the law according to their methods and explained it
from different viewpoints. Sources, nature, and concerns are some elements that
impact defining law.
So to make their concepts, various clear schools were established to understand
and define law. In this article, we will discuss one of the schools known as the
Historical school of Jurisprudence, developed by "Friedrich Carl Von Savigny."
Who was Savigny (Friedrich Carl Von Savigny)?:
Savigny was one of the most respected and influential German jurists of the
19thcentury and known as the pioneer of the Historical school of law through his
concept of Volksgeist (Spirit of people). He was born on February 21, 1779, in
Frankfurt, Germany. He studied at the Universities of Marburg and Gottingen and
obtained a deeper knowledge of Roman law during his lifetime. He worked as a
Professor at The University of Berlin in 1810. He was also appointed as the
Prussian Minister of Justice in 1848.
His major works are:
- Law of Possession (das recht des bestiges), 1803,
- The History of Roman law in the Middle ages in six volumes, 1818-31,
- System of Modern Roman law, 1840-49,
- Contracts, 1853.4
Theory of Volksgeist (What is Volksgeist?):
Volksgeist is the concept of law propounded by Savigny. The term Volksgeist is
made by the two words Volks means people, and geist means their common will. It
means Volksgeist means the law is a common will of the people (spirit of the
people). In a simple sense, Volksgeist is a general and common perception of the
people or the spirit of the people.
The main idea of Savigny behind this theory was that law is an expression of the
will of the people, and it doesn't come from deliberate legislation, and it
develops as the consciousness of the nation arises. The core of Volksgeist was
that a legal system of a nation is mainly influenced by the historical culture
and traditions of the people, and its growth was located in their acceptance.
Jurisprudential study of the theory:
As mentioned above, Savigny believed that the evolution of law could only be
made by taking into account past considerations, and without doing that, it
creates more confusion rather than solving it. According to Savigny, the origin
of law lies in the Volksgeist. For this, he made a whole new school known as the
Historical school of Jurisprudence.
The theory of Volksgeist by Savigny can be explained in the following heads:Characteristics:
- Law prevails basically in society:
According to Savigny, the law is the product of the people's life living in
a particular society and it is the outcome of a culture of a society. It
embodies the history of a nation's culture and reflects inner convictions
rooted in society's common experience. The Volksgeist gradually drives the
law to develop throughout history. Thus, according to Savigny, a thorough
understanding of the history of people/society is necessary for studying the
- Law develops like a language:
Savigny stated that law develops like a language. He said that law is a
national character and develops like a language in the nation, which not
only binds people with beliefs and opinions in a group but also grows with
the development of society. The development of both elements goes hand in
hand. It has no different existence, which follows them but considers as one
being. History is proof that law is developed according to the pre-existing
manners in society and approved by the national character, like language.
- Law is a continuous and regular process:
Law is a continuous and unbreakable process bound by society's common
culture and beliefs, not the product of the day. It develops through the
regular and continuous process of society. Customs and usages in society are
given common consent to be followed by the society in the beginning, and the
people follow them without any hesitation, insured willingly, and those not
following become solitary in the society and finally, all have to become
common. This thing takes the shape of law in society.
- Savigny's opinion on codification of law:
Savigny was against the codification of the law. He thinks that the
development of the law should be based on historical knowledge and not
- The initial development of law is natural, and later on, it is
developed by jurists:
He stated that in the early stages, the law developed
naturally/spontaneously according to the internal needs of the people.
Still, after people reached a certain level of civilisation, different kinds
of national activity developed the law accordingly.
As already discussed, a uniform and precise definition of law are far from
reality, and Savigny's Volksgeist is no exception.
It also has some criticisms by other jurists, which are as follows:
- Volksgeist not always law:
Dias says that many institutions like slavery have originated not in
Volksgeist but in the convenience of a ruling oligarchy.
- Not clear who the volk are and whose geist determines the law: It needs
to be clarified who the volk are and whose geist determines the law, nor it
is clear whether the law may have shaped the Volksgeist rather than
- Inconsistency of the theory:
Savigny, on the one hand, emphasised the national character of law, but on
the other hand, he recommended the method of Roman Law to be adopted for
current conditions. Hence there is inconsistency in the theory of Volksgeist.
- Volksgeist is not an exclusive source of law:
According to Savigny, Volksgeist is the only source of law in society, but
it needs to be corrected. As far as society is developed, the law is also to
be developed by legislation. Lord Lloyd also said that Savigny underrated
the significance of legislation for modern society.
- Other law influencing factors ignored:
Savigny, in his theory, ignored other factors that helped to originate law.
He totally ignored the judge's function to create the law. Paton states that
the creative work of the judges and jurists was treated rather too lightly
- It was unfortunate that the National Socialists used the doctrine of
Volksgeist in Germany for an entirely different purpose which led to the
passing of brutal laws against the Jews during the regime of Hitler in
As per the matter mentioned above, it can be said that Savigny, in his theory,
deliberately focused on his theory of Volksgeist upon which his research was
dependent. In his theory, he says that law is derived from the customs,
tradition, and rules of the community, and the spirit of the people are
important in the creation of the law, and the role of the sovereign is very
less. He thinks that by deep and careful study of the customs, the true essence
of the law developed.
Although Savigny's theory was not sufficient for making law and was criticised
by many jurists, as stated above, despite all these criticisms, Savigny became
the founding stone of the beginning of modern-day jurisprudence.
In the end, we conclude that for better governance of society, the legislators
should develop the law based on the customs and traditions of the people, The
sovereignty of the legislation and on any grounds. Because then only the law can
be developed more efficiently and effectively.