1.

INTRODUCTION-
Volksgeist is a term connoting the productive principle of a spiritual or psychic character operating
in different national entities and manifesting itself in various creations like language, folklore,
mores, and legal order.

According to Savigny, the nature of any particular system of law, was the reflection of the “Spirit of
the people who evolved it”. This was later characterized as the Volksgeist by Puchta, Savigny’s
most devoted disciple.

Hence, in a simple term, Volksgeist means the general or common consciousness or the popular
spirit of the people. Savigny believed that law is the product of the general consciousness of the
people and a manifestation of their spirit. The basis of origin of law is to be found in Volksgeist
which means people’s consciousness or will and consists of traditions, habits, practice and beliefs
of the people. The concept of Volksgeist in German legal science states that law can only be
understood as a manifestation of the spirit and consciousness of the German people.

Savigny rejected natural law. To him a legal system was part of the culture of the people. Law was
not the result of an arbitrary act of a legislator but developed as a response to the impersonal
powers to be found in the people’s national spirit. This Volksgeist “a unique, ultimate and often
mystical reality” was, Savigny believed, linked to the biological heritage of a people.

Savigny successfully used his Volksgeist theory to reject the French Code and the move to
codification in Germany. As a result German law remained, until 1900, Roman law adapted to
German conditions with the injection of certain local ideas. He concedes that “in the earliest time
to which authentic history extends, the law will be found to have already attained a fixed
character, peculiar to the people, like their language, manners, and constitution.”

The Following project also deals with the problems associated with Savigny’s Theory and its
criticisms. The relevance of this theory in contemporary world is also been discussed.

2. FRIEDRICH CARL VON SAVIGNY: A BIOGRAPHICAL INSIGHT

Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a famous 19th-century jurist
and historian. Savigny was born at Frankfurt (Germany) in 1779. He was educated at the
universities of Marburg and Gottingen and was a Professor of Civil Law in the University of
Marburg from 1801 to 1804. Thereafter he shifted to Landshut. He was then appointed as a
Professor at the newly formed University of Berlin in 1810 and worked there until 1842 when he
was appointed as Minister of Justice and Prussia. He retired from that post in 1848. He published

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history of Roman Law in Middle Ages (1815-1831), in six volumes and also wrote system of
Modern Roman Law (1840-1849). His work on law of possession (Das Recht des Bestiges) 1

3. SAVIGNY’S VOLKSGEIST–
Volksgeist (also Volksseele, Nationalgeist or Geist der Nation, Volkscharakter, and in English
“national character”) is a term connoting the productive principle of a spiritual or psychic
character operating in different national entities and manifesting itself in various creations like
language, folklore, mores, and legal order. 2 In a simple term, Volksgeist means the general or
common consciousness or the popular spirit of the people. Savigny believed that law is the
product of the general consciousness of the people and a manifestation of their spirit. The basis of
origin of law is to be found in Volksgeist which means people’s consciousness or will and consists
of traditions, habits, practice and beliefs of the people. The concept of Volksgeist in German legal
science states that law can only be understood as a manifestation of the spirit and consciousness
of the German people.3 As already discussed, his theory served as a warning against hasty
legislation and introduction of revolutionary abstract ideas on the legal system unless they
mustered support of the popular will, Volksgeist. Savigny’s central idea was that law is an
expression of will of the people. It does not come from deliberate legislation but arises as a
gradual development of common consciousness of the nation. 4 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 growth of law is to be located in their popular acceptance. Since law should always
confirm to the popular consciousness i.e. Volksgeist, custom not only precedes legislation but is
also superior to it. Hence, law wasn’t the result of an arbitrary act of a legislation but developed as
a response to the impersonal powers to be found in the people’s national spirit.
Laws aren’t of universal validity or application. Each people develop its own legal habits, as it has
peculiar language, manners and constitution. He insists on the parallel between language and law.
Neither is capable of application to other people and countries. The Volksgeist manifests itself in
the law of the people: it is therefore essential to follow up the evolution of the Volksgeist by legal
research.5 The view of Savigny was that codification should be preceded by “an organic,
progressive, scientific study of the law” by which he meant a historical study of law and reform
was to wait for the results of the historians.6
Savigny felt that “a proper code [of law could only] be an organic system based on the true
fundamental principles of the law as they had developed over time.” 7 Savigny’s method stated

1
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, edition, Central Law Agency, pg. 52
2
http://www.jahsonic.com/Volksgeist.html
3
Mathias Reimann, The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil
Code, 37 AM. J. COMP. L. 95, 97-98 (1989). Cited in
http://www.law.fsu.edu/journals/transnational/vol11_2/knudson.pdf
4
Doherty Michele, Jurisprudence: The Philosophy of Law, 2nd edi., Old Bairy Press, London, p.g. 233.
5
Friedmann W., Legal Theory, 5th edi., Universal Law Publishing Co. Pvt. Ltd.,Delhi,2002, p.g. 213.
6
Mahajan VD, (n 7) pg.567
7
FREDERICK CHARLES VON SAVIGNY,ON THE VOCATION OF OUR AGE FOR LEGISLATION AND
JURISPRUDENCE (Abraham Hayward trans., Arno Press 1975) (1831)
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 that law is the product of the Volksgeist, embodying the whole history of a nation’s culture and
reflecting inner convictions that are rooted in the society’s common experience. 8 The Volksgeist
drives the law to slowly develop over the course of history. Thus, according to Savigny, a thorough
understanding of the history of people is necessary for studying the law accurately.
In view of Savigny, law, like language, is a product not of an arbitrary and deliberate will but of a
slow, gradual, and organic growth. Similarly, he also states that “The foundation of the law has its
existence, its reality in the common consciousness of the people. We become acquainted with it as
it manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign
of positive law.”- Savigny.9
Hence, Savigny clearly believes custom as the source of law and Volksgeist (common
consciousness) as the ultimate foundation of any legal system.

4. VOLKSGEIST AS A SOURCE OF LAW –

Savigny 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.

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 one 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.
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 civilization, the different kinds of national activities,
hitherto developing as a whole bifurcate in different branches to be taken up for further study by

8
JOHN P. DAWSON, THE ORACLES OF THE LAW 196, 198-201, 203, 206-07, 227-28, 231, 240-41, 450-52, 454-
60 (1968). Cited in http://www.law.fsu.edu/journals/transnational/vol11_2/knudson.pdf
9
Lamsal Narayan Prasad, Bidhisastra, 7th edition., PairawiPrakasan,Kathmandu2063, page. 38.
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 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 emphasized 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.
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 emphasizing 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 Romanized German customary law and considered
Roman law as an inevitable tool for the development of unified system of law in Germany.

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 5. PROBLEMS WITH THE VOLKSGEIST –

The writers of this persuasion seem to assume that every “People" is in some way an identifiable
entity, with a corporate conviction or will of its own This approach later crystallized in Gierke's
theory of the “real" personality of corporate bodies, and his desire to establish the superiority of
Germanic law, as against Roman law, in countenancing this view. We are thus, in the first place,
required to accept that collective groups possess some kind of metaphysical personality distinct
from the members comprised in the group, a view which recalls the old fallacy that words are
names of “things,” and that there must be a distinct entity denoted by every word. But, more than
this, it is implied that the notion of a “people” is a perfectly definite one that can be applied to
specific groups which possess this mysterious collective consciousness. This appears to postulate a
degree of unity of thought and action in particular nations, races, or the inhabitants of political
units, of which there is little evidence in human history. And it seems to ignore the role and effects
of conquest by war; the position of enslaved and servile populations; and the control of nations
and empires by ruling minorities, and the manner in which these latter may impose new patterns
on their subjects (whether in the spirit of a “creative minority” in Toynbee’s sense, or of a "power
elite” in that of Wright Mills is immaterial). Nor does this theory deal adequately with the
introduction of alien law and custom by peaceful penetration, as in the case of a Western code
being adopted in such a country as modern Japan. Savigny was much exercised by the remarkable
phenomenon of the so-called "Reception of Roman Law” into Germany in the sixteenth century,
which he regarded as “the greatest and most remarkable action of a common customary law in
the beginning of the modern age.” His explanation of this, however, as having being adopted into
the popular consciousness of the German People is hardly convincing, and is really little more than
a legal fiction. That “to probe the spirit of the German Volk, Savigny went straight back to Roman
law” is perhaps the strangest of paradoxes in Savigny’s thought.10

6. RELEVANCE OF SAVIGNY’S VOLKSGEIST IN CONTEMPORARY TIMES –

Historical jurisprudence is marked by judges who consider history, tradition, and custom when
deciding a legal dispute. It views law as a legacy of the past and product of customs, traditions
and beliefs prevalent in different communities. It views law as a biological growth, an evolutionary
phenomena and not an arbitrary, fanciful and artificial creation. Law is not an abstract set of rules
imposed on society but has deep roots in social and economic factors and the attitude of its past
and present members of the society. The essence of law is the acceptance, regulation and
observance by the members of the society. Law derives its legitimacy and authority from
standards that have withstood the test of time and is grounded in a form of popular consciousness
called the Volksgeist. Kant emphasized that custom is the most important source of law and co-
related the development of society with that of law. He further stated that law develops with
society and dies with society. To him, legal system was a part of culture of a people. Hence, law

10
Michael Freeman FBA, Introduction to Jurisdiction, Sweet & Maxwell, 9th Edition, 2014, Pg. 914
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wasn’t the result of an arbitrary act of legislation but developed as a response to the impersonal
powers to be found in the people’s national spirit.

Laws aren’t of universal validity or application. Each people develop its own legal habits, as it has
peculiar language, manners and constitution. He insists on the parallel between language and law.
Neither is capable of application to other people and countries. The view of Savigny was that
codification should be preceded by “an organic, progressive, scientific study of law” by which he
meant a historical study of law and reform was to wait for the results of the historians.

Savigny felt that “a proper code [of law could only] be an organic system based on the true
fundamental principles of the law as they had developed over time.” Savigny’s method stated that
law is the product of the Volksgeist, embodying the whole history of a nation’s culture and
reflecting inner convictions that are rooted in the society’s common experience. The Volksgeist
drives the law to slowly develop over the course of history. Thus, according to Savigny, a thorough
understanding of the history of people is necessary for studying the law accurately.

Savigny over-emphasized on the importance of customs and neglected the role of legislatures in
his theory. Though custom is recognized as an important source of law both at national and
international platform however custom cannot be the only source of the law. Customs need not
necessarily be always right. In India, the initial practices were inequality between men and
women, sati practice and child marriage, however over the development of society such
constrains were removed from the society. "Hindu law has always been to a great extent
customary." "The Code of Manu" was in force in India, Burma and Siam. Sruti, i.e. what was heard,
was source of law par excellence and might be referred to as the formal source of law. Smriti, i.e.
the recollections stand `next in order. Custom follows the next. The Parishads, Puranas, Mimansa
etc. come after them. Hence, custom was an important source of law in ancient India. ‘"Whatever
custom, practices and family usages prevail in a country shall be preserved intact, when it comes
under subjection by Conquest." To quote Manu, the custom" which has come down by
immemorial tradition and obtains among the castes pure and mixed, is called approved usage."
The Sage, Devala who has been cited in Parasar-Madhava, holds that whatever customary law is
prevalent in a district, city, town, village among the learned, the said law though contrary to
smritis must not be disturbed. Hence, in certain cases the weight of customary law was found
more than the written text of smritis, the formal law. From this, the doctrine of "Factum valet" has
come which means, "For tact cannot be altered by a hundred texts."

The Hindu law of succession and inheritance which ultimately got codified in the form of Hindu
Succession Act, 1956, was substantially based on the customary law of Dayabhaga and Mitakshara
School. Section 2 (2) of both Hindu Succession Act, 1956 and Hindu Marriage Act, 1 955 leaves
open the door or tribal customary laws. The Hindu Succession Act. 1956 and Hindu Marriage Act.
1955 do not apply to the tribals. So there is importance of Hindu Marriage customs. The custom of
"Saptapadi" has transformed into customary law ‘seven steps' for completion of Hindu Marriage.
Without ‘Saptapadi' the marriage is not complete. According to Hindu Marriage Act, 1955, divorce
can only be taken by way of a decree of a court. This is however subject to the exception that if

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 the divorce is sanctioned by the custom, that will be duly recognized by law. According to this Act,
marriage cannot be held between the parties within the degree of prohibited relationship. Again,
the proviso leaves open the option to apply custom of marriage within the degree of prohibited
relationship.

In the constitutional scheme, Articles 244, 244A, 371A Fifth and Sixth Schedules clearly indicate
the concern of the makers of the Constitution to preserve and maintain the customary laws of the
tribes. The Constituent Assembly Debates are documentary evidences in this regard. Article 371 A
unequivocally lays down that no Act of Parliament in respect of Naga customary law shall apply to
the State of Nagaland unless Legislative Assembly of Nagaland by a resolution so decides. In the
Constituent Assembly Debates in the Constitution Hall, New Delhi, during discussion on the 5th
Schedule of the Draft Constitution on 5.9.1949, Sri Lakshmi Narayan Sahu made some good
observation regarding interaction of the Hindu and Adivasi Customs. Some of the customs of the
aboriginals have crept into Hinduism and some of the useful customs of the Hind us have found
place in the life of aboriginals. Sri Sahu worked with aboriginals of Orissa. He had deep insight and
he pleaded for protection of customary laws of the tribes. Sri Gopinath Bardoloi joined him
emphatically for preservation of certain traditional institution of Ao-Nagas and other Hill Tribes.
Quoting him; "There are certain institutions among these hill tribals which in my opinion, are so
good that, if we wanted to destroy them. I consider it to be very wrong".

The following are the essentials of a valid custom:

1. Antiquity
Section 3 (a) of the Hindu Marriage Act, 1955 provides that custom should be observed for a long
time. It should be ancient. In India custom need not be immemorial In the English law sense. The
courts have time and again held that if a custom is established to be 100 years old or more it is of
sufficient antiquity. Derett thinks that if it is 40 years old it is enough.
2. Continuity
Continuity is as essential as antiquity. Discontinuity will destroy a custom. An obsolete law can be
repealed but there is no method of repealing custom except by abandonment. Suppose, it is
established that a custom has an antiquity of 400 years, but if it has not been followed since then.
It may be sufficient indication of its abandonment.
3. Certainty
Custom must be certain, and clear, not vague. One has to prove what exactly the custom is and
how far it is applicable with a reasonable amount of certainty. Let me give an example. a vague
assertion that divorce by mutual consent is allowed on the basis of customary law is not sufficient.
It has to be established that the alleged custom exists.

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4. Reasonability
It should not be unreasonable. Of course, what is reasonable and unreasonable is a matter of
social values. It varies from time to time, place to place. An unreasonable custom is void, although
custom may not always be founded on reason.
5. Morality
An immoral custom is void. Like the standard of reasonability, the standard of morality may differ
from time to time and from society to society. Thus a custom under which adoptive parents pay a
sum of money to natural parents at the time of adoption or a custom under which the trustees of
religions institution is allowed to sell their trust is void being against morality.
6. It should not be opposed to public policy and law
A custom opposed to public policy is void. A custom among dancing girls permitting them to adopt
one or more daughters has been held to be void being opposed to public policy and morality. A
custom must not be opposed to statutory law. A custom opposed to sacred law prevails, but no
custom opposed to statutory law can be given effect.

A person who alleges or claims existence of custom has to prove it. Generally, customs are proved
by instances. There is no hard fast rule as to how many instances need be proved. However, the
court may take judicial notice of certain customs. When a custom is repeatedly brought to the
notice of the court, court may not insist on fresh proof.

7. CRITICISMS AGAINST SAVIGNY’S THEORY OF LAW:

Savigny's theory has been opposed by his critics on several grounds, the main among those are as
follows:

1. Volksgeist not the exclusive source of law: There are many technical legal rules which never
existed in nor has any connection with popular consciousness.
2. Inconsistency in the theory: He emphasized national character of law, but at the same time
recommended a method by which the Roman law could be adopted to modern conditions &
advocated for the acceptance of Roman law as the law of Germany. However, this proposition
fails to show how an alien system was better able to express it than the indigenous law.

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3. Customs not always based on popular consciousness: Many customs originated only for the
convenience of a powerful minority such as slavery. Similarly, customs completely opposed to
each other exist in different parts of the same country (local customs).
4. Limitations of Volksgeist: In modern times, function of Volksgeist is that of modifying & adapting
rather than creating. Today, it is of little or no relevance.
5. Other factors: Savigny ignored other factors that influence law such as he forgot the stream. He
overlooked the forces & factors which influence & determine the growth of law, e.g., law relating
to trade unions.
6. Juristic pessimism: His contention was that legislation should conform to existing traditional law or
it is doomed, on which view would not favor today.
8. CONCLUSION:
The insufficiency of natural law school and analytical school had provided a fertile land where
Savigny sowed seeds of historical school. In his view on law, he emphasized on Volksgeist, ‘a
unique, ultimate and often mystical reality’ linked to the biological heritage of a people. 11 For him,
law was not the result of arbitrary act of legislature but the result of certain traditions and
customs. Only by a careful study of these traditions the true content of law was found. He marked
the Volksgeist or the national spirit as the criteria for the validity of any law. Although the concept
is insufficient and is subjected to criticism by many jurists, still its importance in understanding the
theory of law is a milestone as it emphasized the need of people’s acceptance for the formulation
of any law, which is a universal principle today. Despite the above criticism, Savigny’s legal theory
marks the beginning of modem 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. The only defect in his theory
was that he carried the doctrine of popular will too far.

Above all, Savigny’s legal theory served as a sound warning against harsh legislation and
introduction of revolutionary abstract ideas in the legal system unless the ushered support of the
popular will i.e. Volksgeist.

11
Freeman M.D.A., Lloyd’s Introduction to Jurisprudence, 7 thedi., Sweet and Maxwell Ltd.,London,2001 p.g. 906.
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 BIBLIOGRAPHY/REFERENCE

1. Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, edition, Central Law Agency

2. Doherty Michele, Jurisprudence: The Philosophy of Law, 2nd edi., Old Bairy Press, London

3. Friedmann W., Legal Theory, 5th edi., Universal Law Publishing Co. Pvt. Ltd.,Delhi,2002

4. Frederick Charles Von Savigny, on the vocation of our age for Legislation and Jurisprudence
(Abraham Hayward trans., Arno Press 1975) (1831)

5. Lamsal Narayan Prasad, Bidhisastra, 7th edition

6. Michael Freeman FBA, Introduction to Jurisdiction, Sweet & Maxwell, 9th Edition, 2014

7. JOHN P. DAWSON, THE ORACLES OF THE LAW 196, 198-201, 203, 206-07, 227-28, 231, 240-
41, 450-52, 454-60 (1968).

8. Mathias Reimann, The Historical School Against Codification: Savigny, Carter, and the
Defeat of the New York Civil Code, 37 AM. J. COMP. L. 95, 97-98 (1989).

9. Freeman M.D.A., Lloyd’s Introduction to Jurisprudence, 7thedi., Sweet and Maxwell

10. http://www.law.fsu.edu/journals/transnational/vol11_2/knudson.pdf

11. http://www.jahsonic.com/Volksgeist.html

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