This article has been written by Sameera Khan from Amity Law School, Noida

INTRODUCTION

Friedrich Carl Von Savigny (21 February 1779 – 25 October 1861) was the pioneering founder of the historical school of law and stands as one of the most esteemed and influential jurists of the 19th century. Often referred to as “the greatest jurist Europe has ever produced,” Savigny was a groundbreaking legal scientist whose contributions to jurisprudence were profound and enduring. He established a crucial link between contemporary legal conditions and historical legal traditions. Savigny was more than just a philosopher; he argued that law must align with the spirit of the people. He formulated his theory as a means to oppose the indiscriminate implementation of a legal code that he believed was foreign and unsuitable for the nascent German states.

Savigny’s fundamental theory posits that law cannot be artificially created but rather evolves gradually and organically from its roots in the collective consciousness of a nation’s people. He believed that the development of law is an evolutionary process, a concept he articulated well before Charles Darwin introduced his theory of evolution. This has led to Savigny being referred to as a “Darwinian before Darwin” for his contributions to the evolutionary perspective in the historical school of jurisprudence. His innovative idea emphasized that the evolution of law is inherently tied to the will of the people.

He advocated that the meaning and origin of existing laws can be traced through historical background and modes of transformation. Amongst all the theories propounded by Savigny, the most significant one is “Volksgeist”.

Volksgeist theory, originating from the German words “Volk” (people) and “Geist” (spirit), is a concept deeply embedded in the exploration of national identity and collective consciousness. At its core, Volkgeist theory posits that each nation possesses a unique spirit or character shaped by its history, language, customs, and shared experiences. This theory, pioneered by German philosopher Johann Gottfried Herder in the late 18th century, emerged during the Romantic era, a period characterised by a renewed interest in individual expression and cultural diversity.

Herder’s insights challenged prevailing notions of cultural superiority by emphasising the importance of culture and language in shaping the identity of a people. He argued that a nation’s spirit, or Volkgeist, is not merely a product of its political institutions or geographic boundaries but is deeply rooted in the collective consciousness of its inhabitants. This spirit manifests in various aspects of society, including its art, literature, customs, and social norms.

Understanding Volkgeist requires delving into the historical and cultural context of a nation, unravelling the intricacies of its collective memory and shared experiences. While Volkgeist theory provides valuable insights into national identity and cultural diversity, it has also faced criticism. Critics argue that it can lead to cultural essentialism and nationalism, potentially oversimplifying complex social phenomena. Moreover, the empirical validity of Volkgeist theory has been questioned, with some scholars challenging its ability to provide concrete explanations for social behaviour and cultural change.

Despite these critiques, Volkgeist theory remains relevant in contemporary sociology and philosophy. In an increasingly globalised world, understanding the unique spirit of nations is crucial for comprehending societal dynamics, cultural interactions, and identity formation. By exploring Volkgeist theory, scholars gain insights into the complexities of national identity and the interplay between culture, society, and individual behaviour. This article aims to delve deeper into Volkgeist theory, tracing its historical origins, elucidating key concepts, addressing critiques, and highlighting its contemporary relevance in the study of society and human behaviour. ^[1]

KEY CONCEPTS OF VOLKSGEIST THEORY

Savigny and his notable student Georg Friedrich Puchta strongly believed that law reflects the collective consciousness of society and is an expression of its spirit. They argued against the codification of German law at that time, as they believed it would hinder its natural development. This stance led to a delay in the codification process by fifty years.

Savigny emphasized that laws should be rooted in the historical culture and traditions of a community. He argued that laws created without considering these aspects would only lead to confusion, as law is not a mechanical creation but a reflection of the people’s spirit, which he referred to as Volksgeist.

Friedmann, commenting on Savigny’s impact on historical jurisprudence, noted that Savigny and his followers valued history for its role in preserving tradition, custom, and national identity. They opposed the idea of deliberate and rational law-making, instead emphasizing the importance of history in shaping legal philosophy.

Savigny’s contributions to the historical school of jurisprudence can be summarized under several key principles^[2]:

1. Organic Development of Law: Savigny likened the evolution of law to the growth of language, asserting that it reflects the national character and binds people together through shared beliefs and convictions. He emphasized that law evolves with society, drawing strength from its cultural context. Just as language evolves over time, law undergoes continuous development, shaped by the collective consciousness of the people.

2. Spontaneous Early Development: Savigny argued that law initially develops spontaneously to meet the needs of the community. However, as society progresses, specialized disciplines, such as jurisprudence, emerge to refine legal principles. He highlighted the role of jurists in shaping and developing the law as it becomes more complex and sophisticated.

3. Opposition to Codification: Savigny opposed the codification of German law, particularly in the style of the Napoleonic Code. He believed that Germany’s fragmented state and lack of uniformity in its legal system were incompatible with codification at the time. Instead, he advocated for codification to occur after the unification of Germany, emphasizing the importance of a unified legal framework rooted in the common consciousness of the people.

4. Law as a Continuous Process: Savigny viewed law as an unbroken and continuous process, shaped by historical traditions and beliefs. He cautioned against premature codification, arguing that it could stifle the organic growth of law. Instead, he advocated for codification to occur only when the legal system had fully matured and established.

5. Admiration for Roman Law: Despite his emphasis on the importance of the people’s spirit (Volksgeist) in shaping the law, Savigny justified the incorporation of Roman law into the German legal system. He viewed Roman law as an essential tool for the development of a unified legal framework in Germany, despite criticism from contemporaries like Professor Eichhorn.

In essence, Savigny’s theory underscored the organic nature of law’s development, rooted in the collective consciousness of society. He emphasized the importance of tradition, customs, and beliefs in shaping legal systems, with jurists playing a crucial role in interpreting and refining the law in accordance with the evolving needs of the community.

SCOPE & RELEVANCE OF VOLKSGEIST THEORY

Jurists worldwide have long pondered the essence of constitutional law, echoing Oliver Wendell Holmes’s sentiment that its essence lies not solely in logic, but in lived experience. Across continental Europe, thinkers like Karl Friedrich von Savigny emphasized the importance of law reflecting the Volksgeist, the spirit of the people. In earlier epochs, legal conservatism prevailed, viewing law as a means to preserve tradition rather than to innovate beyond it. Scholars celebrated legal history as a grand narrative of evolution, shaped by the gradual unfolding of societal values and attitudes.

However, modern historians and jurists have come to recognize the profound influence of external factors in shaping legal systems. They acknowledge that laws are often products of specific social, economic, and political circumstances, intertwined with the pursuit of material interests and power dynamics. The medieval debate over the origins of law—whether divine, heroic, or determined by earthly authorities—reflects the perennial question of who holds the reins of legal authority.

In contemporary contexts, the creation and interpretation of law are deeply entwined with power dynamics. Legal authority may stem from charismatic leaders, democratic processes, local communities, or educated elites. Parliaments and legislative bodies negotiate and enact laws through intricate processes of governance. The traditional view of law as a static entity bound by tradition has given way to a more dynamic understanding rooted in Enlightenment ideals of rationality and progress.

Today, codified law is seen as the product of collective human intelligence, reflecting the collaborative efforts of diverse individuals striving to shape a just legal order.

Relevance in India

In India, the theory of Volksgeist, or the spirit of the nation, presents a complex narrative when juxtaposed against legislative and judicial practices. Take the drafting of the Indian Constitution, for instance. While the preamble speaks of “we the people,” the reality is that only a select few represented the entire populace during its creation. This raises questions about whether the constitution genuinely reflects the collective will of the people or merely the perspectives of a privileged minority. Moreover, certain constitutional provisions may clash, offering protection to some while potentially infringing on the rights of others.

A pertinent example lies in the realm of religious freedom. While Article 25 guarantees this freedom, Article 26 allows religious denominations to manage their affairs. However, this right is constrained by the caveat that it should not impinge on the rights of others. Such tensions came to the fore in the Sabrimala temple case, where traditions clashed with the principles of gender equality enshrined in Articles 14 and 15. Here, the court’s decision reflected a delicate balancing act between tradition and constitutional rights, with the majority opinion prevailing.

Similarly, in matters of personal law, the Indian legal system accommodates diverse religious practices, mirroring Savigny’s notion that law evolves organically from societal customs and beliefs. Codified personal laws, like the Hindu Marriage Act, coexist with uncodified laws rooted in religious scriptures. The Constitution’s directive principle to enact a Uniform Civil Code underscores the government’s cautious approach towards altering deeply ingrained societal norms.

Yet, this deference to tradition also poses challenges, particularly when it comes to addressing archaic practices like triple talaq. While judicial intervention seeks to rectify injustices, it can inadvertently erode longstanding customs, sparking debates over the preservation of cultural heritage versus the promotion of individual rights.

Despite these tensions, the Indian legal landscape demonstrates an ongoing dialogue between tradition and progress, reflecting the intricate interplay between the Volksgeist and constitutional principles. As legislators navigate this complex terrain, they endeavor to strike a balance that respects both tradition and evolving societal norms, embodying the spirit of ‘we the people’ in the truest sense.

SAVINGY’S CONTRIBUTION TO JURISPRUDENTIAL THOUGHT

Despite facing criticism, Savigny’s legal theory stands as a pivotal milestone in the evolution of modern jurisprudence. His concept of Volksgeist, which interprets jurisprudence in terms of the will of the people, paved the way for a more sociological approach to law, highlighting the intricate relationship between law and society. Savigny’s theory emerged as a reaction against the prevailing 18th-century natural law theory and analytical positivism, offering a fresh perspective that emphasized the importance of popular will.

The essence of Savigny’s Volksgeist lies in the belief that a nation’s legal system is deeply influenced by its historical culture and traditions, with the growth of law rooted in the acceptance of the populace. This laid the groundwork for the historical school of jurisprudence, further developed by figures like Sir Henry Maine in England, Vinogradoff, Lord Bryce, and others. Ehrlich built upon Savigny’s foundation with his theory of interest, while comparative jurisprudence, now a significant branch of legal studies, also owes its origins to Savigny’s approach.

Maitland supported Savigny’s jurisprudential approach, highlighting how the development of common law in England was shaped by the socio-political conditions of the time. Savigny’s theory of Volksgeist significantly influenced subsequent jurists, contributing to the emergence of various legal theories such as the anthropological approach of Sir Henry Maine, the sociological perspective of Dean Roscoe Pound, and the realist theories of Swedish and American jurists.

Inspired by Savigny’s practical approach, modern jurists advocate for a pragmatic philosophy that is people-oriented, taking into account historical, traditional, cultural, and ethical considerations. They believe that law evolves alongside society and must adapt to the changing needs of the people. Ihering’s theory of interest, for instance, draws heavily from Savigny’s conception of law as an expression of the people’s will and social ethos. Savigny’s theory, though revolutionary, laid the foundation for the development of the sociological school of jurisprudence in subsequent years.

Above all, Savigny’s legal theory serves as a caution against hasty legislation and the imposition of abstract ideas in the legal system without the genuine support of the popular will, encapsulated in the concept of Volksgeist.

APPLICATION AND CORRELATION OF VOLKGIEST THEORY IN CONTEMPORARY TIMES; WITH FOCUS ON INDIA ( CONNECTING TO PRESENT ERA)

Upon grasping the foundational tenets of Savigny’s theory, let’s explore its correlation with contemporary legal systems, with a focus on India.

National Character of Law:

Savigny emphasized the notion of law embodying the national character and uniting a nation through the will of its people. However, in India, we operate under a federal democracy, delineating powers between the Centre and the States to uphold national interests while preserving provincial autonomy. This decentralization contradicts Savigny’s notion of a unified national law.

Elected Representatives:

Democracy, at its core, entrusts governance to the people. In India, laws are crafted by elected representatives chosen through democratic elections, reflecting the collective will of the populace. This electoral process serves as a conduit for understanding the nation’s pulse and incorporating its desires into legislation.

Source of Law:

Savigny posited Volksgeist as the sole source of law, emphasizing the will of the people. However, the Indian Constitution draws from various legal systems globally. Fundamental Rights from the American Constitution and emergency provisions from the German Constitution illustrate a departure from Savigny’s concept. Additionally, British-imported laws codified into Indian legal frameworks deviate from Savigny’s theory.

Validity of Popular Will:

The collective will of the people may not always align with societal progress. Historical examples like the endorsement of Sati practice and slave trading underscore this reality. Relying solely on Volksgeist would hinder societal advancement, as not all collective consciousness aligns with moral progression.

Cultural Diversity:

India’s cultural diversity makes achieving complete public consensus challenging. The heterogeneous populace allows for differing opinions, a feature accommodated by the Indian Constitution. However, Savigny’s theory presupposes unanimity among the populace, a concept incongruent with India’s diverse cultural landscape.

Supremacy of Legislature:

While Indian law respects customs and traditions, legislative enactments and the Constitution reign supreme. This hierarchy contrasts with Savigny’s assertion of custom as the ultimate source of law, highlighting a deviation in India’s legal structure.

In India, the theory of Volksgeist finds application in some contexts but contrasts sharply with legislative and judicial practices in others. While drafting the constitution, a select group represented the entire nation, raising questions about whether they truly encapsulated the will of every citizen. Despite the preamble’s invocation of “we the people,” individual desires weren’t fully represented, especially considering the diversity of opinions and interests across the nation.

The constitution contains provisions that may conflict with certain groups’ will while aligning with others’. For example, while Article 14 guarantees equality before the law, Article 25 ensures freedom of religion, and Article 26 protects religious denominations. However, disputes like the Sabarimala case highlight clashes between tradition and constitutional rights, revealing tensions between minority customs and gender equality.

Judicial decisions, such as the Sabarimala case and the criminalization of triple talaq in the Shayara Bano case, sometimes diverge from the Volksgeist. While these rulings promote justice and gender equity, they also challenge longstanding customs, illustrating a departure from Savigny’s theory. Removing archaic practices like sati and child marriage, while necessary for progress, also disrupts entrenched customs, highlighting the limitations of Volksgeist in evolving legal landscapes.

As laws evolve to reflect contemporary values, ancient customs may face obsolescence, posing a challenge to the concept of Volksgeist. Balancing societal progress with cultural preservation remains a complex endeavor, revealing the nuanced interplay between tradition, law, and societal transformation in India.

In summary, Savigny’s theory finds limited applicability in contemporary contexts, particularly within the Indian legal system. India prioritizes adherence to the law of the land rather than solely relying on popular sentiment.

CRITICISM OF VOLKSGEIST THEORY

They point out inconsistencies in his arguments. While Savigny stressed the importance of national law, he also proposed the adoption of Roman law in Germany, which seems contradictory. Additionally, he attributed the origin of law to the Volksgeist, or popular conscience, yet he claimed certain principles of Roman law had universal application. Critics like Eichhorn, Beselor, and Gierke criticized Savigny’s heavy reliance on Roman law, leading to interventions that influenced the drafting of the German Code.

Savigny’s theory is often criticized for being negative, obscure, and having a narrow sectarian outlook. His opposition to codification of law, a common form of modern legislation, hindered the progress of German law for many years.

Critics argue that Savigny’s emphasis on popular consciousness as the sole source of law overlooks other important legal sources such as legislation and precedent. There are many areas of law where popular consciousness may not exist, leaving these areas without legal rules.

Moreover, Savigny’s view that customs always reflect popular consciousness is challenged. Many customs, such as slavery, originate from the selfish interests of those in power rather than from righteousness supported by popular consciousness.

Roscoe Pound criticized Savigny’s juristic pessimism, noting that legal systems should not perpetuate abuses and baneful customs simply because they are familiar. Savigny’s theory hindered legal reforms and modernization of law by prioritizing Volksgeist over necessary changes.

While Savigny did not oppose legislative reform through codification, his approach was pessimistic, believing that imperfect codes could create more problems. He advocated for thorough scientific study and historical evaluation of laws before codification.

Savigny’s concept of Volksgeist has been misused by various ideologies, such as the Nazis, who twisted it with racial connotations, and Marxists, who interpreted it economically. This misuse further complicates the understanding and application of Savigny’s theory.

Overemphasis on Unconscious Forces: Savigny’s theory overly prioritizes unconscious societal forces in shaping laws, disregarding the deliberate and conscious legislative processes that drive social change in many nations, including India.

Rejection of Codification: Savigny staunchly opposes codification, fearing it would stifle the natural evolution of law and empower lawgivers to impose arbitrary laws upon the populace, hindering the spirit of common people.

Ambiguity in Identifying Volksgeist: In today’s diverse and multicultural societies, determining whose spirit shapes the law becomes challenging. The theory often neglects minority voices, promoting laws predominantly reflective of the majority’s will and potentially leading to exploitation and injustice.

Oversight of Majority Subjugation: While focusing on minority rights, Savigny’s theory sometimes overlooks instances of majority oppression, as seen in the adoption of the German Civil Code.

Disregard for Universal Laws: Savigny contends that laws vary among nations and lack universal application. However, fundamental principles like natural justice should transcend cultural differences, challenging the notion that all societies evolve and change in the same manner.

Failure to Address Legislation’s Role: Savigny fails to adequately acknowledge the role and purpose of legislation in lawmaking. His theory’s exclusive focus on Volksgeist neglects the dynamic nature of legal systems and the need for legislative reforms to improve people’s lives.

Lack of Clarity on Law Evolution: Savigny’s theory lacks clarity on how laws evolve over time. Without elucidating a creative method for legal evolution, his approach falls short of providing a comprehensive understanding of jurisprudential development.

In essence, while Savigny’s theory highlights the influence of societal consciousness on law, it faces criticism for its neglect of legislative processes, ambiguity in identifying societal spirits, and failure to address universal legal principles and legislative dynamics.

SUGGESTIONS AND CONCLUSION

Savigny’s theory proposes that law evolves unconsciously and is deeply connected to the customs ingrained in a society, reflecting the spirit of its people. He emphasized the strong link between law and nationality, suggesting that understanding a society’s customs provides insights into its collective spirit. Savigny argued that every law contributes to the strengthening of a society.

While practices considered wrong today, like sati, child marriage, johar, slavery, and racial discrimination, were prevalent in ancient times, Savigny believed that these practices influenced the development of laws based on people’s attitudes and beliefs. Although legislations have been enacted to abolish such practices, they persist in some form, indicating a lingering moral acceptance.

For example, despite anti-racial discrimination laws in the U.S.A., racial discrimination still occurs. Similarly, child marriages persist in rural areas of Rajasthan despite legislation against them, and child labor and atrocities continue despite legal prohibitions.

While Savigny’s theory holds relevance to some extent and is applicable globally, it alone is insufficient for lawmaking. Enacting laws involves considering multiple factors, such as protecting sovereignty, ensuring national integrity, improving lives, and addressing the needs of backward classes. In India, the concept of Volksgeist is reflected in the Constitution’s Preamble, and numerous laws have been enacted, repealed, and amended based on the will of the people. However, laws also emerge from various sources, including legislation, executive decisions, and judicial interpretations.

It would be unfair to claim that Volksgeist is the sole basis for lawmaking. However, dismissing this concept entirely could lead to societal unrest and potential authoritarianism. A balanced approach that considers both the evolving spirit of the people and other sources of law is essential for effective and just legal governance.

BIBLIOGRAPHY

Secondary Sources-

BOOK– Paranjape, N. (2001, January 1). Studies in Jurisprudence and Legal Theory.

JOURNAL– Bohra, Madhavi, Relevance of Fredrick Karl Von Savigny’s Theory in Contemporary

Era (November 18, 2020). Available at SSRN: https://ssrn.com/abstract=3732741

ARTICLES– The theory of Volksgeist: Applicability in the Contemporary Times. (n.d.).

WEBSITES- Rai, N. (2014, July 10). BASIC CONCEPT OF SAVIGNY’S VOLKSGEIST.Ksl.

1. Rai, N. (2014, July 10). BASIC CONCEPT OF SAVIGNY’S VOLKSGEIST. Ksl. ↑
2. Paranjape, N. (2001, January 1). Studies in Jurisprudence and Legal Theory. ↑