PROJECT

ON

THE IDEA OF VOLKSGEIST IN THE FORMATION OF

LEGAL SYSTEM
____________________________________________________

SUBMITTED TO
Dr. RENUKA SONI
ASSISSTANT PROFFESOR OF LAW
____________________________________________________

SUBMITTED BY
KUSHAL KEDIA
Roll No. 16105
Section-B
Semester III
Contents
FRIEDRICH CARL VON SAVIGNY: A BIOGRAPHICAL INSIGHT –...................................................................... 1
SAVIGNY’S VOLKSGEIST–............................................................................................................................... 1
VOLKSGEIST AS A SOURCE OF LAW –............................................................................................................ 2
PROBLEMS WITH THE VOLKSGEIST – ............................................................................................................ 4
LEGISLATION AND JURISTENRECHT – ........................................................................................................... 5
PEOPLE (VOLK) – ........................................................................................................................................... 6
LEGISLATION – .............................................................................................................................................. 8
RELEVANCE OF SAVIGNY’S VOLKSGEIST IN CONTEMPORARY TIMES – ........................................................ 9
ESSENTIALS OF VALID CUSTOM – ............................................................................................................... 12
CONCLUSION:.............................................................................................................................................. 13
BIBLIOGRAPHY ............................................................................................................................................ 14

____________________________________________________
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, of a family recorded in the history of
Lorraine, deriving its name from the castle of Savigny near Charmes in the valley of the Moselle.
Left an orphan at the age of 13,. The works for which Savigny is best known are the Recht des
Besitzes and the Beruf unserer Zeit für Gesetzgebung. According to Jhering "with the Recht des
Besitzes the juridical method of the Romans was regained, and modern jurisprudence born." It
was seen as a great advance both in results and method, and rendered obsolete a large body of
literature.

SAVIGNY’S VOLKSGEIST–
Volksgeist is a German 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

Page No. 1
powers to be found in the people’s national spirit. This Volksgeist “a unique, ultimate and often
mystical reality”1 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. But Savigny was not just a theorist.
As a historian he set himself the task of studying the course of development of Roman law from
ancient times till its existing state as the foundation of the civil law of contemporary Europe.
This led him to hypothesise that all law originated in custom and only much later was created by
juristic activity. 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

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

1
Per Stone, op. cit, p. 102.

Page No. 2
 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 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.

Page No. 3
 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.

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.2 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. 3 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,

2
From Das deutsche Genossenschaftsrecht, passim.
3
Cf. ante, 39.

Page No. 4
or of a "power elite” in that of Wright Mills4 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.”5 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.6

LEGISLATION AND JURISTENRECHT –

It must be admitted that the historical school had at least, if in a most confusing manner, grasped
the important truth that law is not an abstract set of rules simply imposed on society, but is an
integral part of that society, having deep roots in the social and economic habits and attitudes of
its past and present members. Moreover, equally acceptable is the view that judges and lawyers
generally, as forming part of the society in which they live and have their being, reflect many, if
not all, the basic habits and attitudes of their society, so that the development of the law, so far as
it rests in their hands, will probably conform in a broad and general way to the patterns of
behavior which are widely approved or at least accepted in that society. But this is far from
saying that the judge, in reaching a decision or framing a rule, is acting as a mere organ of the
people’s consciousness. A great deal of law, for one thing, is highly technical, and a legal
profession, like any other compact body, develops an impetus of its own which may lead it in
many directions, and by no means only in that one which would be approved or even understood
by the popular consciousness. “Could it be pretended (remarks Sir Carleton Allen) that a pious
faith in the sanctity of seisin burns in the bosom of the Commonwealth suffusing all its members
with a healthy glow?”7 Again, the judge, though he may be representative of his country and age,
nevertheless has a creative function in developing the law which cannot be exercised by merely
imagining how society as a whole would decide the question before him, even assuming society

4
C. Wright Mills, The Power Elite (1956)
5
System of Modern Roman Law (transl. W. Holloway), pg. 63.
6
Dawson, The Oracles of Law (1968), pp. 451-452.
7
Law in the Making (7th Ed.), p. 114

Page No. 5
is capable of forming any view at all. And to assert that in some inexplicable and metaphysical
manner the judge’s thought somehow “connects” on each occasion with the People’s mind is the
merest subterfuge. Even Savigny recognizes that owing to the complexity of developed law the
precise details of decisions are a specifically juristic task beyond the scope of the popular
consciousness. But the gap is not bridged by simply postulating an automatic correlation between
lawyers’ law and popular consciousness (or perhaps one should say, in more modern
phraseology, sub-consciousness). Nor can this be laid down even as a desideratum, for on many
issues public opinion may be non-existent, hopelessly divided or unascertainable, and on some
matters at least the judge must be expected to set a higher standard than one which is in fact
observed or accepted by the mass of the community.8 This is to say nothing of the view, already
discussed, that law is itself the moulder of custom rather than the reverse.

As for legislation, Savigny seemed greatly to underrate its significance for modern society.9 A
progressive society, as Maine later pointed out, has to keep adapting the law to novel social and
economic conditions,10 and legislation has proved in modern times the essential means of
attaining this end, however imperfectly. And with this objective, those who exercise the
legislative authority have frequently, while paying heed if not lip-service to public opinion, to
provide a lead in many directions where the public is confused or undecided, and even in some
cases where there may be widespread hostility to a proposed reform.

PEOPLE (VOLK) –
The generation of law has been preliminarily posited in the people as the active, personal subject.
The nature of this subject will not be more accurately defined. If in the examination of the jural
relation, we remove by abstraction, all its special content, there remains over as a common
nature, the united life of a plurality of men, regulated in a defined manner. We might naturally be
led to stop short at this abstract conception of a plurality and regard law as its discovery, without
which the external freedom of no individual could subsist, but such an accidental meeting of an
undefined multitude is a conception both arbitrary and entirely wanting in truth: and even if they
found themselves so met together, the capacity for producing law would be entirely wanting

8
Lloyd, Public Policy, op. cit., pp. 126-127
9
Ante, 869.
10
In Ancient Law, Maine did not admire judicial legislation in English Law, and favoured codification.

Page No. 6
since with a need the power of at once supplying it, is not given. In fact we find so far as history
informs us upon the matter, that wherever men live together, they stand in an intellectual
communion which reveals as well as establishes and develops itself by the use of speech. In this
natural whole is the seat of the generation of law and in the common intelligence of the nation
penetrating individuals, is found the power of satisfying the necessity above recognized..

The boundaries however of individual nations are certainly undefined and wavering and this
state of doubt also shows itself in the unity or variety of the law engendered in them. Thus as to
kindred races it may appear uncertain whether they are to be regarded as one people or as
several; in like manner we also frequently find in their law not an entire consonance, probably
however an affinity.

Even where the unity of a people is undoubted, within its limits are often found inner circles
which are included in a special connection side by side with the general union of the people, as
cities and villages, guilds and corporations of every sort which altogether form popular divisions
of the whole. In these circles again a special generation of law may have its seat as particular
law, side by side with the general law of the nation which by that particular law is on many sides
complete or altered.11

When we regard the people as a natural unity and merely as the subject of positive law, we ought
not to think only of the individuals comprised in that people at any particular time; that unity
rather runs through generations constantly replacing one another, and thus it unites the present
with the past and the future. This constant preservation of law is effected by tradition and this is
conditioned by, and based upon, the not sudden but ever gradual change of generations. The
independence of the life of individuals, here asserted of law, appertains first to the unchanged
continuation of the rules of law: it is secondly too the foundation of the gradual formation of law
and in this connection we must ascribe to it a special importance.

This view in which the individual people is regarded as the generator and subject of positive or
practical law may appear too confined to some who might be inclined to ascribe that generation
rather to the general spirit of humanity than to that of a particular people. On closer examination
these two views do not appear conflicting. What works in an individual people is merely the

11
Thus arose in Rome, the ancient customary law of individual gentes.

Page No. 7
general human spirit which reveals itself in that people in a particular manner. The generation of
law is a fact and one common to the whole. This is conceivable only of those between whom a
communion of thought and action is not only possible but actual. Since then such a communion
exists only within the limits of an individual people so here also can practical law alone be
created, although in its production, the expression of a generative principle common to men in
general, is perceived, but not the peculiar will of individual peoples, of which perhaps no single
trace might be found in other peoples. For this product of the people’s mind is sometimes
entirely peculiar to a single people, though sometimes equally present in several peoples.

LEGISLATION –
If we enquire first as to the contents of written law, they are already determined by the mode of
derivation of the law-giving power; the already present people’s law supplies those contents or
what is the same thing, written law is the organ of people’s law. If one were to doubt that, one
must conceive the lawgiver as standing apart from the nation; he however rather stands in its
center, so that he concentrates in himself their spirit, feelings, needs, so that we have to regard
him as the true representative of the spirit of the people. It is also entirely erroneous to regard
this position of the legislator, as dependent upon the different arrangement of the legislative
power in this or that constitution. Whether a prince makes the law or a senate or a larger
collection of people formed by election or perhaps the agreement of several such powers is
furnished for legislation, the essential relation of the legislator to the people’s law is not at all
changed and it is again owing to the error of the conception censured above, if some believe that
real people’s law is only contained in the laws made by selected representatives.

The influence of legislation upon the progress of law is more important than upon its original
formation. If through changed manners, views, needs, a change in the existing law becomes
necessary or if in the progress of time entirely new legal institutions are necessary; these new
elements may indeed be introduced into the existing law by the same innate invisible power
which originally generated the law. It is however precisely here that the influence of legislation
may become most obviously beneficial, nay indispensable. Since those operative principles only
enter gradually, there of necessity arises an interval of uncertain law and this uncertainty is
brought to an end by the expression of the law. ...

Page No. 8
Lastly into the history of every people, enter stages of development and conditions which are no
longer propitious to the creation of law by the general consciousness of a people. In this case this
activity, in all cases indispensable, will in great measure of itself devolve upon legislation.

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 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 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.

Page No. 9
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 a 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 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.

Page No. 10
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 oi 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 ol 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".

Customary law is one of the most important institutions among the tribals which are helpful for
their good administration; Bardolol also pointed out that one of the things which he felt
creditable to those hilly tribals was the manner in which they settle their disputes. The system of
village administration of Ao Nagas is very good. Their autonomy and institution should be
preserved was his plea on the floor of Constitution Hall on 6.9.1949. The Santal traditional
justice system claim same importance in the process of resolving their disputes, conflicts and
tensions. That apart, many beneficial legislations show that our legislature is fully conscious of
the customary laws of the tribesmen, and, it provides for protection of customary law in various
social and land legislations; namely, Santal Pargana Tenacy Act, 1949, Chhotanagpur Tenancy
Act, West Bengal Land Reforms Act. 1955, Raiasthan Tenancy Act, 1955, U.P. Zamldari
Abolition and Land Reform Act, 1950 etc. The makers of the procedural laws carefully protected
tribal customary laws. The basic procedural laws of India are the Code of Civil Procedure, 1908
and the Code of Criminal Procedure, 1973. ln the very first section of the above codes tribal
customary law has been recognized. Section 1 (3) C.P. Code,1908, lays down that the Code does
not extend to Nagaland and Tribal Areas provided that the concerned government may apply it
by notification to Nagaland and Tribal Areas. Section 1 (2) Cr. P.Code, 1973 excludes the
application of the Code, barring Chapters Vlll (Security Proceedings), X (Public Order and

Page No. 11
Tranquility) XI (Preventive Action of Police) in the Tribal Areas. According to the Explanation
in Section•1 Cr. P.C. tribal areas mean the territories as referred in paragraph 20 of the Sixth
Schedule to the Constitution. It mentions the following districts for Assam:- (1) North Cachar
Hills (2) Karbl Anglong, Hence, local and customary laws would be applicable in those districts.

ESSENTIALS OF VALID CUSTOM –

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.
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.

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-
Page No. 12
 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.

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.12 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

12
Freeman M.D.A., Lloyd’s Introduction to Jurisprudence, 7th edi., Sweet and Maxwell Ltd.,London,2001 p.g. 906.

Page No. 13
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.

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 modem 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.

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.

BIBLIOGRAPHY
 Lloyd's Introduction to Jurisprudence by Michael Freeman, 8th Edition, 2007
 Lectures In Jurisprudence by N.K Jayakumar, 2nd Edition, 2006, Publisher:
Butterworth Heinemann
 The Authority of Law by Joseph Raz, 16th Edition, 2003, Publisher: Oxford
University Press
 Studies in Jurisprudence & Legal Theory by Dr. N.V. Paranjape, 6 th Edition,
2013, Publisher: Central Law Agency
 Jurisprudence & Indian Legal Theory by Prof. S.N. Dhyani, 4 th Edition,
2011, Publisher: Central Law Agency

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 Jurisprudence & Legal Theory by V.D. Mahajan, 5th Edition, 2011,
Publisher: Eastern Book Company

 http://www.legalserviceindia.com/articles/juju.htm
 http://www.lawteacher.net/jurisprudence/essays/jurisprudence-legal.php
 http://www.gov.harvard.edu/files/Liviatan-AJICL.pdf
 http://www.missouriwestern.edu/orgs/polanyi/TAD%20WEB%20ARCHIV
E/TAD18-2/TAD18-2-fnl-pg22-32-pdf.pdf

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