Q. Explain Savigny's Volkgeist theory (20 marks - 2019)
Q. What do you understand by Savigny's 'Volksgeist theory of law'? Also give its criticism in details. (20 marks - 2018)
Fredrich Karl Von Savigny is the founder of the Historical School of Jurisprudence. He has propounded the Volksgeist theory of jurisprudence. The word Volksgeist means general consciousness or common will of people.
Volksgeist means the law is a common will or perception of the people. It origins from the spirit of the people. The thought process of Savigny's Volksgeist theory was that law is an expression of the will of the people and it doesn’t come from the deliberate legislation. It develops as the consciousness of the nation builds up.
The theory of Savigny is discussed in detail bellow
1. Source of law is Volksgeist: According to the Savigny, the law is the product of the people’s life living in a society. It is the derivative of a culture of the society. The Volksgeist gradually drives the law to develop over the course of history. Thus, according to Savigny, a thorough understanding of the history of people/society is necessary for studying the law accurately.
2. Law develops like a language: As per Savigny, law develops like a language. He said that law is a national character and develops like a language in the nation, which not only binds people with belief and opinion in a group but also grows with the development of the nation.
3. Initially the development of law is natural, later on, it is developed by jurists: Savigny's theory stated that in the early stages law develops of its own according to the needs of the people. When the nation reaches to a certain level of civilization, different kind of national activity drive the development of the law accordingly.
4. Law is a regular and continuous process: Law is a continuous and unbreakable process bound by the common culture and beliefs of society. Customs and usages in society are given common consent to be followed by the society in the beginning. People follow them willingly, finally, with the acceptance of the entire nation the customs and usage take the shape of law on the society.
5. Opinion of Savigny on codification of law: Savigny did not supported the codification of the law. According to him development of the law should be on the basis of historical knowledge and not by the arbitral legislation.
6. Savigny's admiration for roman Law: While emphasizing Volksgeist as the essence of law, Savigny justified adoption of Roman law as the texture of German law which was more or less diffused in it. He therefore located Volksgeist in the Romanized German customary law.
Criticism of Savigny's Volksgeist Theory
1. The Theory is inconsistent: On the one hand Savigny asserted that the origin of law is in the popular conscious and on the other hand he vouched for the inclusion of some of the Roman laws making it a mix of Roman and German law.
2. Volksgeist is not the exclusive source of law: As mentioned above, apart from the local peoples will, it also includes Roman law as it's source.
3. Customs not always based on the popular consciousness: The critics of the theory suggest that customs may always not be the Volksgeist in true meaning of the term. There are example of customs which were inttially imposed upon the people by the high and mighty of the society.
4. Savigny ignored other factors that influence law: Growth of the law does not necessarily depends upon the Volksgeist alone. Savigny missed those other points which might have fueled the development of the law.
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