Sociology

INTRODUCTION

The Historical School emphasizes that the historical factors influenced the origin, formation and
development of laws. Law is found not made. Laws are not of universal application or traditions
and customs determines the law. Germany was the cradle of this school and Savigny, its main
exponent.

The forerunners of Savigny, notably, Schelling and Hugo had rejected natural law theory which
believed that law is based on an abstract principle of human reason. They supported the view that
law is a historical perception which evolves according to customs, traditions, culture and
sentiments of the people.

Savigny traced the development of law as an evolutionary process much before Darwin gave his
theory of evolution in the field of biological sciences in 1861.

Volksgeist as a Source of Law:

Savigny and his most popular pupil Georg Friedrich Puchta (1798-1846) firmly believed that law
is a product of the general consciousness of the people and a manifestation of their spirit.
Therefore, codification of German law was not desirable for its smooth development at that time.
This eventually delayed codification of German law for another fifty years.

According to Savigny, a law made without taking into consideration the past historical culture
and tradition of community is likely to create more confusion rather than solving the problems
because ’law’ is not an ’artificial lifeless mechanical device’. The origin of law lies in the
popular spirit of the people which Savigny termed as Volksgeist.

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Commenting on Savigny's contribution to historical jurisprudence, Friedmann observed that

Savigny’s contribution to the development of historical school may briefly be stated under the
following heads -:

1. Law develops like language-

Savigny pointed out that law has a national character and it develops like language and binds
people into ones whole because of their common faiths, beliefs and convictions. According
to him, law grows with the growth of the society and gains its strength from the society itself
and finally it withers away as the nation loses its nationality’ Law, language customs and
government have no separate existence from the people who follow them. Common
conviction of the people makes all these as a single whole. The central theme of Savigny’s
historical jurisprudence may be summarised thus -:

”The organic evolution of law with the life and character of the people develops
with the ages, and in this it resembles language. As in the latter, there can be no
instant of rest, there is always movement, and development of law is governed by
the same power of internal necessity as simple phenomena. Law grows with
nation, increases with it, and dies at its dissolution and is a characteristic of it”.

Thus, he opined that law is not universal in nature like language, it varies with people and
ages.

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2. Early development of law is spontaneous; thereafter jurists develop it-

Savigny stated that in the earliest stages law develops spontaneously according to the internal
needs of the community but after the community reaches a certain level of civilisation, the
different kinds of national activities, hitherto developing as a whole, bifurcate in different
branches to be taken up for further study by specialists such as jurists, linguists,
anthropologists, scientists etc. Law has to play a duel role, namely, as a regulator of general
national life and as a distinct discipline for study. The former may be called the political
element of law while the latter as a juristic element but both have a significant role in the
development of law.
The history of Roman law furnishes the best illustration of these processes. At its earliest
stage, it was founded on general consciousness of the people but as it grew and developed, it
assumed the complex and technical form of law of edicts.

3. Savigny was opposed to codification of German law-

Savigny was not totally against codification of laws. He, however, opposed the codification
of the German law on the French (Napoleonic Code) pattern at that time because Germany
was then divided into several smaller states and its law was primitive, immature and lacked
uniformity. He opined that German law could be codified at a later stage when the unification
of Germany takes place and there is one law and one language throughout the country. Since
Volksgeist i.e. common consciousness had not adequately developed at that time, therefore,
codification would have hindered the evolution and growth of law.
He emphasised that codification of German law without having jurists of sufficient genius
and adequate expertise in Roman law would not serve the desired purpose as Roman law
formed an integral part of the German legal system at that time. He considered lawyers and
jurists as true representatives of the popular consciousness rather than the legislators whose
role is limited to law-making only.

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4. Law is a continuous and unbreakable process-

Tracing the evolution of law from Volksgeist, namely, people’s spirit or consciousness.
Savigny considered its growth as a continuous and unbreakable process bound by common
cultural traditions and beliefs. It has its roots in the historical processes which should
constitute the subject of study for the jurists. According to him, codification of law may
hamper its continuous growth and therefore, it should be resorted to when the legal system
has fully developed and established.

5. Admiration for Roman Law-

While emphasising Volksgeist i.e. people’s spirit or as the essence of law, Savigny justified
adoption of Roman law in the texture of German law which was more or less diffused in it.
He located Volksgeist in the Romanised German customary law and considered Roman law
as an inevitable tool for the development of unified system of law in Germany.

Savigny’s admiration for Roman law was, however, criticised by Professor Eichhorn who
was his contemporary Professor in the University of Berlin. He wondered how a foreign law
could be a true Volksgeist (popular will) of the German people.

Prof. Eichhorn was totally against Roman law and wanted German law to be relieved from its
influence. On the other hand, Savigny and his followers were opposed to the expulsion of
Roman law from Germany. Thus there was a conflict between the so called Romanist and the
Germanists, the former supporting the retention of Roman law while the latter advocating its
total expulsion from the German law. The rift between the two could be resolved by the final
German law draft of 1900 which was a combination of both German law and the Roman law.

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The main tenets of Savigny’s theory can be summarised as follows:

(1) Law has an unconscious organic growth; it is neither found nor artificially made.
(2) The basis of law is to be found in Volksgeist which means people’s consciousness or
will, and consists of traditions, customs, habits, practices and beliefs of the people.
(3) Law is not universal in nature but like language, it varies with people, time and needs of
the community.
(4) Since law should always conform to popular consciousness i.e. Volksgeist, custom not
only precedes legislation but is superior to it.
(5) With the growing complexity of law, the popular consciousness is represented by lawyers
who are nothing but the mouth piece of the popular consciousness. It is for this reason
that lawyers and jurists are more important than legislators in the process of development
of a legal system.

Savigny’s Contribution to Jurisprudential Thought:

Despite the above criticism, Savigny’s legal theory marks the beginning of modern
jurisprudence. His theory of Volksgeist interpreted jurisprudence in terms of people’s will. Thus,
it paved way to the modern sociological approach to law laying greater emphasis on relation of
law with society; Savigny’s theory came as a reaction and revolt against the 18th century natural
law theory and analytical positivism.

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The essence of Savigny’s Volksgeist was that a nation’s legal system is greatly influenced by the
historical culture and traditions of the people and the growth of law is to be located in their
popular acceptance.

This laid the foundation of historical school of jurisprudence which was carried further by Sir
Henry Maine in England, Vinodradoff, Lord Bryce and many others. Ehrlich devised his theory
of interest on the foundation laid by Savigny. Savigny’s approach to law also gave birth to
comparative jurisprudence which has been accepted as one of the most important branches of
legal studies in modern times. Maitland has supported Savigny’s approach to jurisprudence and
pointed out that the course of development of common law in England was determined by socio-
political conditions obtaining in England at that time.

It was in fact the Savigny‘s theory of Volksgeist which later contributed to the development of
legal theories on subsequent jurists, notably anthropological approach to law by Sir Henry
'Maine, sociological approach of Dean Roscoe Pound and realist theory of Swedish Realists and
the development of American Realist thought of jurisprudence. The sociology theory of law
propounded by Ehrlich is also founded on Savigny's doctrine of Volksgeist.

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CONCLUSION

 Savigny did not oppose the introduction of new laws or even a new system of laws, but
only objected to the proposed codification on the ground that there was great risk of the
so-called natural law, with its "infinite arrogance" and its "shallow philosophy" running
such a scheme.
 Taking inspiration from Savigny's practical approach to legal theory, the modern jurists
preferred to adopt a pragmatic philosophy and wanted that should be people oriented
depending on their historical, traditional, cultural and ethical requirements.
 They believe that law grows with the development of society and adapts itself to the
needs of the people. The theory of interest propounded Ihering is essentially based on
Savigny's conception of law as an expression of people's will reflecting their social ethos.
Savigny's theory, though considered as revolutionary paved way for the evolution of
sociological school of jurisprudence in subsequent years.
 Above all, Savigny’s legal theory served as a sound warning against hasty legislation and
introduction of abstract ideas in the legal system unless they mustered support of the
popular will i.e. Volksgeist.

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