Savigny’s theory of Volksgeist
Savigny lived during an era dominated by the effects of the French Revolution and the Napoleonic conquests. Before 1814 Germany was divided politically, legally and linguistically into smaller states. Napolean Bonaparte had launched war against German people and had conquered many parts of German States. He imposed French political and legal system on alien Germans much against their will. The Germans were fighting not only against a foreign invader who deprived them of national independence, but also imposition of foreign law and language over them which were alien to their culture. Thus French politico-legal system based on French culture and traditions were irksome, insulting and hurtful to German people whose law, language, history, heritage and requirements were different from that of the French. The slogan ‘Germany for the Germans’ became a powerful and uniting political force to unite all German people against French political and legal domination. Moreover 19th century has been the age of nationalism.
Although Napolean had been defeated, yet Germany was still politically divided. The political unification of Germany was hanging in the balance. In 1814, Prof.Thaibaut a natural law jurist put forward a plan before German people for the legal unification of Germany on the pattern of Napoleonic Code 1802. During the 19th century French Code was copied throughout the world as a model code. The idea of Thaibaut was to give to Germany a Code perfect and complete in all respects – a natural law thinking. This proposal of Thaibaut invited a strong reaction from Savigny. Thaibaut’s proposal for a code on the pattern of Napoleonic Code for Germany was opposed by Savigny in his famous pamphlet “On the Vocation of our Age for Legislation and Jurisprudence”. In his thesis, Savigny had explained the origin and development of law and its relationship to society. It is said that because of Savigny’s concept the codification of German Law was delayed for more than half a century. As Julius Stone points out, “no single comparable essay, perhaps, ever affected so directly the course of a country’s legal development.”
Savigny attacked and rejected Thaibaut’s proposal on two grounds: (i) Thaibaut’s proposal betray lack of historical and evolutionary nature and perception of law. According to Savigny, a law made without understanding of a community’s deep roots of history and culture is likely to create more problems and difficulties. French Civil Code with all its defects, inconsistencies, incongruities and above all unhistoric in character cannot be a good model for German people. (ii) Law is not an artificial, arbitrary, lifeless mechanical device designed by master jurists to be imposed from above. It is on the other hand, a complex, silent and invisible but dynamic experience manifesting itself in the ‘common feeling of inner necessity’ with which people regard it. Law in essence is coequal with society like its language, literature, grammar, folk music, folk culture etc. Law evolves and changes in the same fashion and direction as society evolves. According to Savigny, the law of any particular society is the embodiment and reflection of the spirit of the people. Law has its source and validity in the popular consciousness and inner feelings. Law did not make its first appearance in the form of logical rules.
It existed within each society and evolved by manifesting in appearance in the form of customs and traditions. Accordingly, Savigny held that there is a need for study and research of German history and culture for any reform or codification of German Law. In simple words, according to Savigny, law should reflect nationality. German law should reflect customs, traditions and culture of the German people. The central theme of Savigny’s thesis is that ‘like language, culture, the constitution and manners of people, law is conditioned and determined by the peculiar character of people, by its national spirit i.e., Volksgeist.
According to Savigny, the law was not something that should be made arbitrarily and deliberately by a law-maker. He said, law is a product of internal, silently operating process. It was deeply rooted in the past of a nation, and its true sources were popular faith, custom and the common consciousness of the people i.e., volksgeist. Like the language, the constitution, and the manners of a people, law was determined above all by the peculiar character of a nation, by its national spirit.
Savigny pointed out, certain traditions and customs grow up which by their continuous exercise evolve into legal rules. Only by a careful study of these traditions and customs can the true content of law be found. Law in its proper sense is identical with the opinion of the people in matters of right and justice. Thus, in the view of Savigny, law like language, is a product not of an arbitrary and deliberate will but of a slow, gradual and organic growth. The law has no separate existence, but is simply a function of the whole life of a nation. Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.
Basic approach of Savigny can be summarized as follows:
1) Law is found. It cannot be made.
2) Law like language grows, evolves and has deep roots in the social, economic and other factors.
3) Laws cannot be of universal validity nor can they be constructed on the basis of certain rational premises and eternal principles.
4) Legislation, as a source of law, has a subordinate place. Custom is the typical form of law.
5) Custom is the formal source of law. Precedent and legislation derive their force from custom.
6) Law primarily relies on common consciousness of the people, popularly known as volksgeist.
7) Law comes from the people, not from the State.
According to Savigny, volksgeist only formulates the rudimentary principles of a legal system. He saw clearly enough that it could not provide all the details that are necessary. He accordingly maintained that as society and consequently law, becomes more complex, a special body of persons is called into being whose business is to give technical detailed expression to the volksgeist in the various matters with which the law has to deal. Savigny maintained that legislation is subordinate to custom.
As law becomes more technical, with the advance of civilization, a division of labour emerges. In the matters of law, the people will be represented by specialists – like lawyers and jurists – whose task is to enunciate and elaborate legal principles in a formal style. Those principles remain rooted, however, in the consciousness of the people representing their opinion, beliefs and convictions. Thus Savigny held that the ultimate sources of law is volksgeist.
It is Savigny who made lasting and conspicuous contribution to the historical jurisprudence. He has been regarded as founding father of Historical Jurisprudence. He expounded the theory of growth and evolution prior to that of Charles Darwin’s The Origin of Species (1860). That is why he has been called as Darwinian before Darwin.
Savigny was not as a matter of principle against codification of German law for all times to come. He opposed codification process dominated by natural law philosophy. He opposed codification of German law on the basis of French Code. Savigny observed that before embarking on codification process there should be adequate study and research into the historical past so as to cover the customs, traditions, culture and heritage of the people. According to Savigny, law binds the community without breaks and gaps. Law like the community has an unbreakable continuity and its present is founded on traditions of the past.
Law cannot be superimposed or implanted from an alien source or foreign origin. Law, being a geist of the people, lives and flourishes with the community and dies only when community loses its vitality and existence. Law is sui generis – peculiar to a people like its language and heritage – a manifestation of its national spirit.