SAVIGNY’S THEORY OF VOLKSGEIST AND ITS RELEVANCE IN CONTEMPORARY TIMES

PROJECT ON SAVIGNY’S THEORY OF VOLKSGEIST AND ITS RELEVANCE IN CONTEMPORARY TIMES ____________________________________________________ SUBMITTED TO Dr. KAUMUDHI CHALLA FACULTY, JURISPRUDENCE-I ____________________________________________________

SUBMITTED BY Faiz Kazi Roll No. 45 Section-C (Sociology Major) Semester V, Batch XI

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DECLARATION __________________________________________________________

I hereby declare that this project titled, ‗Savigny‘s Theory of Volksgeist & its relevance in contemporary times‘ submitted to the Hidayatullah National Law University, Raipur is a record of word done by me, under the guidance of my faculty. Further I would like to state that it has not been previously published or associated with any other university or association for any purpose whatsoever.

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ACKNOWLEDGEMENTS __________________________________________________________

First and foremost, I am thankful to Dr. Kaumudhi Challa, Faculty of Jurisprudence-I, HNLU, for allotting me the topic ―Savigny‘s theory of Volksgeist and its relevance in contemporary times‖. She has been very kind in providing inputs for this work, by way of suggestions and materials. I would also like to thank my dear colleagues and friends in the University, who have helped me with ideas about this work. I would also thank the University Administration for equipping the University with such good library and internet facilities, without which, no doubt this work would not have taken the shape in correct time. Lastly, I would thank the Almighty God for providing me the strength and determination to deal with the topic and work with utmost sincerity on the interesting project.

FAIZ KAZI ROLL NO.-45 SOCIOLOGY MAJOR __________________________________________________________

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TABLE OF CONTENTS

1. Declaration 2. Acknowledgements

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11. SAVIGNY'S VOLKSGEIST

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(i) Volksgeist as a Source of Law (ii) Problems with the Volksgeist (iii) Legislation And Juristenrecht (iv) System of Modern Roman Law (v) People(Volk) (vi) Customary Law (vii) Legislation 12. RELEVANCE IN CONTEMPORARY TIMES 13. CRITICISMS AGAINST SAVIGNY'S THEORY 14. CONCLUSION 15. BIBLIOGRAPHY

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3. SAVIGNY: A BIOGRAPHICAL INSIGHT 4. Research Methodology 5. Problem 6. Rationale 7. Objectives of Study 8. Nature of Study 9. Sources of Data 10. Review of Literature

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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, Savigny was brought up by a guardian until, in 1795, he entered the University of Marburg, where, though in poor health, he studied under Professors Anton Bauer and Philipp Friedrich Weiss, the former a pioneer in the reform of the German criminal law, the latter distinguished for his knowledge of medieval jurisprudence. After the fashion of German students, Savigny visited several universities, notably Jena, Leipzig and Halle; and returning to Marburg, took his doctor's degree in 1800. At Marburg he lectured as Privatdozent on criminal law and the Pandects. In 1803 Savigny published Das Recht des Besitzes ("The law of possession"). Thibaut hailed it as a masterpiece which brought the old uncritical study of Roman law to an end. In 1808 Savigny was appointed ordinary professor of Roman law at Landshut. He remained in this position for a year and a half. In 1810 he was appointed to the chair of Roman law at the new University of Berlin, chiefly at the instance of Wilhelm von Humboldt. Savigny belongs to the historical school of jurists, founded by Gustav Hugo, and served a role in its consolidation. 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.

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Research Methodology This research project is largely based on secondary & electronic sources of data. Books, case laws, journals & other reference as guided by faculty of Jurisprudence are primarily helpful for the completion of this project.

Problem The major issue which this research topic deals with is the descriptive thesis of Savigny‘s theory of Volksgeist and to discuss its relevance in contemporary times.

Rationale This research topic on ―Savigny‘s theory of Volksgeist & its relevance in contemporary times‖ is an informative & enlightening topic and it is important as well because it deals with such a profound jurist belonging to the Historical school of Jurisprudence. The research paper also deals with the theory‘s relevance in contemporary times.

Objectives of Study  To Savigny‘s theory of Volksgeist. 

To discuss the theory and its problems.

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To criticize the theory and study the views expressed by various jurists in criticizing the theory.

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To discuss the relevance of the theory in contemporary times.

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Nature of Study This research project is Doctrinal in nature since it is largely based on secondary & electronic sources of data and also since there is no field work involved while producing this research and it largely involves study of various theories and comparison from different books, journal and other online sources thus not being empirical in nature.

Sources of Data Data that were used for the completion of this research project are all secondary sources of data ranging from books, journal, articles and other online sources and as far as case laws are concerned these cannot be said to be primary sources since they are not first-hand information or judgment reports but a modified form found in books or journals.

Review of Literature  Studies in Jurisprudence & Legal Theory by Dr. N.V. Paranjape, 6th Edition, 2013 – This book dealt with providing a biographical insight to the famous 19th-century jurist and historian.

 Lloyd's Introduction to Jurisprudence by Michael Freeman, 8th Edition, 2007 – The book deals with a detailed study of Savigny‘s theory of Volksgeist and discusses its various aspects.

 Jurisprudence & Indian Legal Theory by Prof. S.N. Dhyani, 4th Edition, 2011 – This book has explained the various criticisms by jurists and thinkers to Savigny‘s theory and their justifications.

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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. Hence, in a simple term, Volksgeist means the general or common consciousness or the popular spirit of the people. Savigny believed that law is the product of the general consciousness of the people and a manifestation of their spirit. The basis of origin of law is to be found in Volksgeist which means people‘s consciousness or will and consists of traditions, habits, practice and beliefs of the people. The concept of Volksgeist in German legal science states that law can only be understood as a manifestation of the spirit and consciousness of the German people. Savigny rejected natural law. To him a legal system was part of the culture of the people. Law was not the result of an arbitrary act of a legislator but developed as a response to the impersonal powers to be found in the people‘s national spirit. This Volksgeist ―a unique, ultimate and often mystical reality‖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.2 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.

1

Per Stone, op. cit, p. 102. 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 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. 2

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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.‖3 Rather like Spengler4 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.‖5 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 – 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.

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Of the Vocation of Our Age for Legislation and Jurisprudence (1831) (transl, Haywood), p. 24. The Decline of the West (1923) (transl. C.F. Atkinson, 1928). 5 L. Pospisil, Anthropology of Law(1971), p. 142. 4

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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 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 Page No. 10

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.

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.6 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 6

From Das deutsche Genossenschaftsrecht, passim.

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names of ―things,‖ and that there must be a distinct entity denoted by every word. 7 But, more than this, it is implied that the notion of a ―people‖ is a perfectly definite one that can be applied to specific groups which possess this mysterious collective consciousness. This appears to postulate a degree of unity of thought and action in particular nations, races, or the inhabitants of political units, of which there is little evidence in human history. And it seems to ignore the role and effects of conquest by war; the position of enslaved and servile populations; and the control of nations and empires by ruling minorities, and the manner in which these latter may impose new patterns on their subjects (whether in the spirit of a ―creative minority‖ in Toynbee‘s sense, or of a "power elite‖ in that of Wright Mills8 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.‖9 His explanation of this, however, as having being adopted into the popular consciousness of the German People is hardly convincing, and is really little more than a legal fiction. That ―to probe the spirit of the German Volk, Savigny went straight back to Roman law‖ is perhaps the strangest of paradoxes in Savigny‘s thought.10

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 7

Cf. ante, 39. C. Wright Mills, The Power Elite (1956) 9 System of Modern Roman Law (transl. W. Holloway), pg. 63. 10 Dawson, The Oracles of Law (1968), pp. 451-452. 8

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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?‖11 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 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.12 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.13 A progressive society, as Maine later pointed out, has to keep adapting the law to novel social and economic conditions,14 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.

11

th

Law in the Making (7 Ed.), p. 114 Lloyd, Public Policy, op. cit., pp. 126-127 13 Ante, 869. 14 In Ancient Law, Maine did not admire judicial legislation in English Law, and favoured codification. 12

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SYSTEM OF MODERN ROMAN LAW15 – In the general consciousness of the people lives positive law and hence we have to call it people‘s law (Volksrecht). It is by no means to be thought that it was the particular members of the people by whose arbitrary will, law was brought forth; in that case the will of individuals might perhaps have selected the same law, perhaps however and more probably very varied laws. Rather is it the spirit of the people living and working in common in all the individuals, which give birth to positive law, which therefore is to the consciousness of each individual not accidentally but necessarily one and the same. Since therefore we acknowledge an invisible origin of positive law we must as to that origin, renounce documentary proof: but this defect is common to our and every other view of that origin, since we discover in all peoples who have ever presented themselves within the limits of authentic history an already existing positive law of which the original generation musty lie beyond those limits. There are not wanting proofs of another sort and suitable to the special nature of the subject-matter. Such a proof lies in the universal, uniform recognition of positive law and in the feeling of inner necessity with which its conception is accompanied. This feeling expresses itself most definitely in the primeval assertion of the divine origin of law of statutes; a more manifest opposition to the idea of its arising from accident or the human will is not to be conceived. A second proof lies in the analogy of other peculiarities of peoples which have in like manner an origin invisible and reaching beyond authentic history, for example, social life and above all speech, In this is found the same independence of accident and free individual choice, the same generation from the activity of the spirit of the people working in common in each individual; in speech too from its sensible nature, all this is more evident and recognizable than in law. Indeed the individual nature of a particular people is determined and recognized solely by those common directions and activities of which speech as the most evident obtains the first place. The form however, in which law must live in the common consciousness of the people is not that of abstract rules but as the living intuition of the institutions of law in their organic connection, so that whenever the necessity arises for the rule to be conceived in its logical form, this must be first formed by a scientific procedure from that total intuition. That form reveals itself in the symbolical acts which display in visible shape

15

[English Translation by W. Holloway (1867).]

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the essence of the jural relation and in which the primitive laws express themselves more intelligibly and thoroughly than in written laws. In this view of the origin of positive law, we have at present kept out of sight the progress of the life of a people in time. If we now look also at this operation upon law we must above all ascribe to it an establishing force. The longer the convictions of law live in a people, the more deeply they become rooted in it. Moreover law will develop itself by use and what originally was present as a mere germ will by practice assume a definite shape to the consciousness. However in this way the changing of law is also generated. For as in the life of single men, no glimpse of complete passiveness can be perceived, but a continual organic development, so is it with the life of peoples and with each single element of which that concrete life is composed. Thus we wind in speech a constant gradual shaping and development and in like manner in law. This gradual formation is subject to the same law of generation from inner power and necessity, independent of accident and individual will, as its original arising was. But the people experiences in this natural process of development, not merely a change in general, but it experiences it in a settled, regular series of events and of these each has its peculiar relation to the expression of the spirit of the people in which the law is generated. This appears in the clearest and strongest manner in the youth of a people for then the connexion is more intimate, the consciousness of it is more generally diffused and is less obscured by the variety of individual cultivation. Moreover in - the same degree in which the cultivation of individuals becomes heterogeneous and predominant and in which a sharper division of employment, of acquirements, and of ranks produced by these, enters, the generation of law which rests upon the common consciousness becomes more difficult; and this mode of generation would disappear altogether if new organs for that purpose were not formed by the influence of these self-same new circumstances; these organs of legislation and the science of law of which the nature will be immediately explained. This new development of law may have an entirely different relation to the originally existing law. New institutions of law may be generated by it, the existing law transformed or it may be entirely swept away if it has become foreign to the thought and need of the age.

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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 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.16 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 16

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

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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 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.

CUSTOMARY LAW – This name may easily mislead us into the following course of thinking. When anything whatever needed to be done in a jural relation, it was originally quite indifferent what was done; accident and arbitrary will anyhow settle the decision. If the same case presented itself a second time, it was easier to repeat the same decision that to deliberate upon a new one and with each fresh repetition, this procedure of necessity appeared more convenient and more natural. Thus after a while such a rule would become law as had originally no greater claim to prevail than an opposite rule and the cause of origin of this law was custom alone If one looks at the true bases of positive law, at the actual substance of it, he will see that in that view, cause and effect arc exactly reversed. That basis has its existence, its reality in the common consciousness of the people. This existence is an invisible thing; by what means can be recognize it? We do so when it reveals itself in external act when it steps forth in usage, manners, custom; in the uniformity of a continuing and therefore lasting manner of action we recognize the belief of the people as its Page No. 17

common root and one diametrically opposite to bare chance. Custom therefore is the badge and not a ground of origin of positive law. However this error which converts custom into a ground of origin has also an ingredient of truth which must now be reduced to its proper dimensions. Besides those bases universally recognized in the consciousness of a people and undoubted, there are many determinations as to details which have in themselves a less certain existence; they may obtain such an existence, by being through constant practice brought more definitely to the consciousness of the people itself.

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. ...

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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. 19

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. 20

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. 21

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. AntiquitySection 3 (a) of the Hindu Marriage Act, 1955 provides that custom should be observed for a long time. It should be ancient. In India custom need not be immemorial In the English law sense. The courts have time and again held that if a custom is established to be 100 years old or more it is of sufficient antiquity. Derett thinks that if it is 40 years old it is enough. 2. ContinuityContinuity 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. CertaintyCustom 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. ReasonabilityIt 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. Page No. 22

5. MoralityAn 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 lawA 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.

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CRITICISMS AGAINST SAVIGNY’S THEORY OF LAW: Savigny's theory has been opposed by his critics on several grounds, the main among those are as follows :— 1.

There are certain inconsistencies which are apparent in Savigny‘s theory. He emphasised

the national character of law but at the same time suggested a model by which Roman law could be adopted and accepted as the law of Germany. Again, he located origin of law in the Volksgeist, that is popular conscience but at the same time asserted that certain customary principles of Roman law had universal application. Savigny‘s undue importance to Roman law has been bitterly criticized by Gichhom, Beselor and Gierke and it was because of their intervention that German Code was drafted in subsequent years. 2.

It is often alleged that Savigny's theory of law is negative, obscure and suffers from

narrow sectarian outlook. He was against codification of law which is one of the most accepted forms of modem progressive legislation. This anti-codification attitude of Savigny thwarted the growth of German law for several decades. 3.

Savigny‘s assertion that popular consciousness is the sole source of law is not wholly

true. The theory of Volksgeist overlooks the impact of other sources of law such as legislation, precedent etc. in the evolution of law. There are many areas which would have been left without legal rules because there never existed any popular consciousness about them. 4.

Again, Savigny‘s view that customs are always based on the popular consciousness is

also not acceptable. Many customs such as slavery, bonded labour etc. originated to accomplish the selfish interests of those who were in power. They are adopted because they are being blindly followed and continued for a long time and not because they are righteous and have the support of popular consciousness. 5.

Roscoe Pound has criticised for his juristic pessimism. Savigny‘s theory hindered legal

reforms and modernisation of law in the name of Volksgeist.

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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.17 For him, law was not the result of arbitrary act of legislature but the result of certain traditions and customs. Only by a careful study of these traditions the true content of law was found. He marked the Volksgeist or the national spirit as the criteria for the validity of any law. Although the concept is insufficient and is subjected to criticism by many jurists, still its importance in understanding the theory of law is a milestone as it emphasized the need of people‘s acceptance for the formulation of any law, which is a universal principle today. Despite the above criticism, Savigny‘s legal theory marks the beginning of modem jurisprudence. His theory of Volksgeist interpreted jurisprudence in terms of people‘s will. Thus it paved way to the modern sociological approach to law laying greater emphasis on relation of law with society. Savigny‘s theory came as a reaction and revolt against the 18th century natural law theory and analytical positivism. The only defect in his theory was that he carried the doctrine of popular will too far. 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.

17

th

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

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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, 4th Edition, 2011, Publisher: Central Law Agency  Jurisprudence & Legal Theory by V.D. Mahajan, 5th Edition, 2011, Publisher: Eastern Book Company

WEBLIOGRAPHY  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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