Savigny's theory

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ACKNOWLEDGEMENT

It is my imperative duty to thank the following people for the successful completion of my Jurisprudence project titled The Contribution of F.K.Von Savigny:  Mr. Victor Vaibhav Tandon for the clarity he brings into teaching thus, enabling us to have a better understanding of his subject. I also feel obliged to thank him for providing us with such wonderful topics to choose from.  The very cooperative and friendly staff members in the Law Library who were instrumental in our finding the necessary books without wasting much time.

Mubashir Ali Khan IV Semester 2 | Page

“Law is first developed by custom and common conviction, next by judicial decisions-everywhere, therefore, by internal, silently operating powers, not by the arbitrary will of a law-giver.” -F. K. Von Savigny German jurist and historian.

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INTRODUCTION The great German jurist, Friedrick Karl Von Savigny, stands as the unquestioned head of the influential historical school of jurisprudence, which he pioneered in the first half of the 19th century, and as the founder of the study of relations between social and legal developments.1 An erudite legal scientist, Savigny made many lasting contributions to jurisprudence that greatly influenced all the social disciplines as well. Among these contributions are included the revealing of continuity between present legal institutions and those of the past,2 the laying of foundations for legal sociology,3 and the articulating of methods for historical research.' In light of the work of Savigny, it is thus the intent of this paper to present a full, in-depth profile of this legal scholar and his influence on the law in society.

EARLY LIFE AND WORK Savigny was born of French Protestant stock at Frankfurt-am- Main on February 21, 1779. Orphaned at 13, he came under the guardianship of M. de Neurath, who dominated his early education. Neurath, a lawyer and imperial official, employed the stereo- typed, catechistic method to emerge his ward into the study of the natural law of Wolff and Vattel, international law, and Roman and German law. Undoubtedly as a result of this tutelage, Savigny was eager to commence studies at the University of Marburg and at University of Göttingen. It was there that he not only received an orthodox education but, also, got a taste of the new stirrings of historicism. His early teaching and writing would later be of a similar mix. 4 In 1800, Savigny became a doctor of law at Marburg and, as such, one of the first of the German nobility to teach at a university. Subsequently, he taught criminal law, Roman law and its history, property law and the law 1 J. STONE, THE PROVINCE AND FUNCTION OF LAW 421-22 (1946) 2 Montmorency, Friedrich Carl von Savigny, in GREAT JURISTS OF THE WORLD 573- 74 3 J. STONE, SOCIAL DIMENSIONS OF LAW AND JUSTICE 35-36 (1966) 4 Id. at 562-63. 4 | Page

of contracts at Marburg and Landshut.5 In 1810, he became a professor at the newly formed University of Berlin, where he spent most of his academic career until 1842. The qualities Savigny possessed as a scholar were joined with those of an enthusiastic teacher. To Savigny, it was for the professor to personify science to the student by transmitting the knowledge gathered “as if science revealed itself suddenly to him.” He noted further of his students that "it is not merely instruction which they receive, but a process which goes on beneath the eye and which they themselves reproduce." During his tenure, Savigny also gained practical judicial and administrative experience through his rendering of such services as judge on the law faculty, advisor to the ordinary courts, and counsellor of the Court of Appeal and Tax at Berlin. Savigny's book on the right of possession, Das Recht des Besitzes, appeared in 1803.6 The work clearly showed sociological implications, for it represented an early classic, expounding on the study of the Roman system of law as produced by the ancient Roman civilization.7 The metaphysical version of the Roman theory of occupation was said to have provided a linkage between the 18th century and Savigny's pronouncement that all property was founded in adverse possession ripened by prescription.8 He wrote, in fact, pounds of pages on possession when the German law was pervaded with broad premises-often half-mystical-which were rigorously followed (all ‘in contrast to American empiricism, with its case-by-case approach)." Shortly after Recht des Besitzes was published, Savigny turned his attention toward the historical and jurisprudential interests that would dominate the rest of his career. The German School of Historical Law became known throughout Europe at the end of the Napoleonic wars, when many German jurists opposed the introduction of a uniform legal code to the Germanic Confederation. The 5 Id. at 563 6 GREAT JURISTS at 568. Austin declared this work to be "of all books upon law, the most consummate and masterly." J. AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED 38 (3d. 1832). 7 FUNCTION OF LAW at 428 8 R. POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 213 (1922). 5 | Page

leading legal historicist of the time, Friedrich Carl von Savigny (1779– 1861), still holds a status in German ‘legal science’ which is akin to Charles Darwin for the ‘science’ of biological evolution. Savigny, whose jurisprudence is extremely influential even to the present day, emphasized the historical limitations of the law and approached legality as a mere expression of evolving convictions and aspirations of any particular people over a period of time. The only standards which remained in such a legal philosophy were contextual and relative, since these standards would have no other support apart from the temporary conditions of society.9 The philosophical origins of German legal historicism go back to the 18th century and are rooted in a ‘romantic’ reaction against natural-law philosophy. Instead of a law covering the world with a rational system of universal values and principles, German historicists approached law as a result of the Volksgeist; i.e. the ‘spirit of the people’ immersed in the ongoing movement of the ‘collective life’ organized in the State. German legal historicism claimed that the evolution of law is linked to the growth of the nation as a living organism. This growth would derive its strength from the inner powers of the Volksgeist. Because law was deemed the product of culture and social condition, not logic or reason, its natural progression should neither be accelerated nor obstructed by the legislator. Rather, the organic evolution of the law was assumed to take place as an evolving process of historical growth, which occurs both naturally and unconsciously, from one age to another. Such idea of natural legal progress was not an argument for the freedom of individuals and small corporations, but it amounted to a justification of the organic power of the state. This so being, the state would act as the sovereign manifestation of the collective will of the nation. Indeed, German legal historicism regarded the state as an organic entity and, as such, the living embodiment of the nation’s cultural, intellectual, ethical, and spiritual manifestations.

THE BEGINNINGS OF THE HISTORICAL SCHOOL The Two Prime Reasons for the Evolution of Historical School: 9 http://creation.com/carl-von-savigny 6 | Page

i.

ii.

It came as a reaction against natural law, which relied on reason as the basis of law and believed that certain principles of universal application can be rationally derived without taking into consideration social, historical and other factors. It came as a reaction against analytical positivism which constructed a soul-less barren sovereign-made-coercive law devoid of moral and cultural values described as ‘gun-mensituation’.

The Basic Tenets of Historical School can be summarized as: I.

Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute.10 II. It views law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities. III. It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial creation. IV. 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. V. The essence of law is the acceptance, regulation and observance by the members of the society. VI. Law derives its legitimacy and authority from standards that have withstood the test of time. VII. The law is grounded in a form of popular consciousness called the Volksgeist. VIII. Law develops with society and dies with society. IX. Custom is the most important source of law.

The event which immediately occasioned Savigny to direct his interests in the area of historical jurisprudence was the publication of another work, Civilistesche Abhandlungen, in 1814.11 He advocated that the meaning and 10 http://legal-dictionary.thefreedictionary.com/jurisprudence 11 W. SEAGLE, THE HISTORY OF THE LAW 290-91 (1946) 7 | Page

content of existing bodies of law be analyzed through research into their historical origins and modes of transformation.12 He traced the development of law as an evolutionary process much before Charles Darwin gave his theory of evolution. It is for this reason; he is even said as “Darwinian before Darwin” for his contribution to apply the evolutionary principle to the development of legal system.13 Germany being without a unified civil code at this time, In 1814, Anton F.L. Thibaut, a professor of Roman law at Heidelberg, wrote the aforementioned book to demand that a general civil code be adopted for the nation. Under his plan, Professor Thibaut proposed that a single, unified code of laws for the German states be drafted by an interstate committee on the laws. Indulging in natural law, Thibaut assumed that such a committee of jurists and practitioners would be able to draw up a suitable code, and, further, dogmatically asserted that codification could revolutionize a legal system overnight. This proposal had been published by Thibaut after the Napoleonic wars, while the Congress of Vienna was deciding the fate of Europe in general, and Germany in particular; given these circumstances, the book naturally revealed both the stirrings of the new nationalism that was then on the rise in Germany and the growing reaction against Roman or any other foreign law. The French occupation of Germany had greatly solidified a sense of unity among the many existing German states, and, following the defeat of Napoleon, the codes he had forced upon them were discarded because they were considered to be alien. Clearly the new nationalist idea rejected adoption of the French code for Germany; the very lack of analogy to the French situation was used as an aid in the call for a German code." Likewise, Roman law, which was taught at the universities and had dominated German legal administration and adjudication, was also condemned by the nationalists as an "alien law." How could a system of laws created by the ancient Romans for their needs between the 5th century B.C. and the 6th century A.D. be applicable to the needs of the 12 http://www.britannica.com/EBchecked/topic/525746/Friedrich-Karl-vonSavigny 13 Paranjape N.V., Studies in Jurisprudence and Legal Theory,4 th edi., Central Law Agency, Allahabad,2006 , p.g.32 8 | Page

German people in the 19th century? Hence, it was proposed that the "alien law" be replaced by a system of law indigenous to Germany. Against such a backdrop, it seems understandable that Savigny, along with his followers, would necessarily enter into this legal field, having been moved to speculate on the central thesis of the law and its relation to the social context. By so doing, they gave the field its first modern juristic theories. Of course, the founding of the historical school, which identified law with custom, as championed by Savigny, developed out of the codification controversy. But the same year Savigny issued a protest pamphlet, Vom Berufunserer Zeit für Gesetzgebungand Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence), where he spoke out against the pamphlet by the famous Heidelberg jurist A. F. J. Thibaut entitled On the Necessity of a General Code for Germany (1814)14. So powerful was his influence that the move towards codification was effectively halted and it was not until 1900, after many years of sustained agitation, that Germany ultimately acquired her code, the Burgeriches Gesetzbuch.15 Savigny provided impetus for the emerging historical theory of law. Underlying this reply to Thibaut was a basic hypothesis of later sociological jurisprudence: that law was to be understood as an aspect of social life. To Savigny, law was a part of the complex of a people's experience and character. Thus, he countered the natural right assumptions of Thibaut by maintaining that the law was not a selfcontained phenomenon of collected verbal formulae in some universal body of ideal or "natural" propositions. To assume that law was "universal," as the natural-law philosophers had, would, in Savigny's mind, be fallacious and illusionary. Thus, in opposing codification, Savigny's historical jurisprudence also attacked the philosophy of natural law. It was to be expected that Savigny would react-and react quickly-to those tenets of natural law he had found to be repugnant. As a young lad he had been rigorously subjected to the study of natural law by his tutor. Later, 14 http://findarticles.com/p/articles/mi_gx5229/is_2003/ai_n19150038/ 15 Dias RWM, Dias Jurisprudence, 5th edi, Aditya Books, Butterworths, Delhi, 1995, p.g. 377. 9 | Page

being directly influenced at Gottingen by Professor Hugo, whose book on Roman legal history was published in 1790, Savigny asserted that the peculiar relationship between the law and the life of each particular society under- mined natural law from the viewpoint of history and human experience. Thus, he, challenged the natural law idea of a universal code because he thought, evidencing Hugo's influence, that the law should reflect the unique needs and character of the people of each nation. Here, then, Savigny was able to masterfully turn around the previously cited argument for codification by utilizing it instead as an objection to a general code for all Germany on the grounds that such a code would be a reckless importation and an imitation of Napoleon's work in France and the other countries he subdued." In repudiating the 18th century doctrine of natural rights and the law of nature -that which was truly to be honoured in the legal field -Savigny's school of thought substituted in its place the notion of historical right: any individual jubilation of natural order would set that order in opposition to history, placing the creations of history under constant threat of either violent or gradual destruction.16

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. 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.17 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 16 Y. SIMON, THE TRADITION OF NATURAL LAW 38 17 Dias RWM, (n6) pg. 378 10 | P a g e

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. 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. 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. 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.18 Savigny successfully used his Volksgeist theory to reject the French Code and the move to codification in Germany.19 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. 18 Mahajan VD,(n 7) pg.567 19 Savigny’s hostility was qualified rather than absolute. He believed, as against Thibaut, that attempts to codify were premature, and would be an obstacle to the natural development of law through the Volksgeist. But codification would be 11 | P a g e

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”.20 Rather like Spengler21 a century later, Savigny sees a nation and its state as an organism which is born, matures and declines and dies. Law is a vital part of this organism. “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.” Nations and their law go through three developmental stages. At the outset of a nation there is a “political” element of law: there are principles of law which are not found in legislation but are part of “national convictions” (Volksglauben). These principles are part “implicitly present in formal symbolic transactions which command the high respect of the population, form a grammar of the legal system of a young nation, and constitute one of the system‘s major characteristics.” In its middle period law retains this ―political‖ element to which is added the technical element of juristic skill. This period is the apogee of the people‘s legal culture and is the time when codification is feasible. It is desirable only so that the legal perfection of the period can be preserved for posterity. With the decline of a nation, law no longer has popular support and becomes the property of a clique of experts & in time even this skill decays. Ultimately, there is loss of national identity.

VOLKSGEIST AS A SOURCE OF LAW – a proper course of action when experts (jurists, historians, linguists, and perhaps, judges) discovered, and were able to announce, that law which resided in the collective consciousness. Codification was then desirable. Savigny, it should be noted, was the Prussian Minister of Legislation. Hegel opposed customary unwritten law and his view on English common law as “an Augean stable” resembles Bentham’s. Hegel asserted that English law needed a scientific remodelling and codification. See Avineri, op.cit.y pp. 186, 210-215. 20 Of the Vocation of Our Age for Legislation and Jurisprudence (1831) (transl, Haywood), p. 24 21 The Decline of the West (1923) (transl. C.F. Atkinson, 1928). 12 | P a g e

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 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 13 | P a g e

consciousness of the people but as it grew and developed, it assumed the complex and technical form of law of decree. 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. 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. 14 | P a g e

He urged judges to master the materials of existing mixed Roman and German law not yet assimilated-that “immense mass of juridical notions and theories which have descended and been multiplied through generations.” Once these materials were mastered, faith in the supposed dictates of ‘pure’ reason carried over from the natural law of the 18th century could then be subjected to the vital test of experience. Indispensable to the jurist, continued Savigny, was (1) the historical spirit, "to seize with readiness the peculiarities of every age and every form of law," and (2) the systematic spirit, "to view every notion and every rule in lively connection and co-operation with the whole, that is, the only true and natural relation." As a gardener looks after the growth of a plant, the natural development of the law could be furthered with the support of academic studies, rather than by legislative interference which misconstrued the mission in a vain attempt fated to be crushed by the forces of development. Therefore, any codification claiming to be final would be in conflict with the organic growth of the law." While codification was always harmful, the best conditions for its success were to be found in the "middle period development"-at the height of a people's development, when the civilization and knowledge of the age surpassed that of all preceding ages. Such an undertaking at any other time would only mutilate the products of the past. Only at the right time, in the right place, could the right code be produced. A code drafted in this middle period would aid not that age, itself, where it was not needed, but future declining ages when "almost everything is wanting, the knowledge of the matter as well as the language." Hence, codification could only be justified for periods of cultural deterioration.

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

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on law, he emphasized on Volksgeist, “aunique, ultimate and often mystical reality” linked to the biological heritage of a people. 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.

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