In order to be in a position to appreciate the concept of Volksgeist and
understand it's true essence, it is imperative for us to first take a look at
the Historical School of jurisprudence which is the bedrock of this concept.
The Historical school of jurisprudence almost came to prominence near about the
same time as the Analytical school i.e., the beginning of the 19th Century. Some
even call it a manifestation of the reaction against natural law theories. This
set the perfect platform for the burst of the Historical school.
The Natural Law thinkers had thought of law as always, the unchangeable
same. This school had failed to realize that law had not remained constant but
had changed. They believed in only reason and did not look at history, customs,
or traditions as the source of law.
F K von Savigny (1779-1861)
Savigny has been referred by many as the founder of the Historical School in the
European continent. His take on reforms was unique. He maintained that reforms
were good and needed but those reforms which were against the idea of the
nation's continuity, they were doomed. The prerequisite to a valid reform in the
German system, according to him was a deep understanding of the history. The
history would guide the law-making body to understand what reforms they needed.
Savigny believed that if history were to be believed, it would be seen that law
had already attained a character which was similar to the behavior of the
people, their manners and their beliefs. He believed that the nature of a system
of law was a reflection of the people who evolved it. It is this common
consciousness which leads to law and it is the spirit of the public that is
essentially the driving force behind law making.
This itself was later characterized as Volksgeist
('volks' meaning people and
'geist' referring to common will). Essentially it refers to the law which is a
common will of the public and is driven by public spirit. The principles of that
legal system are present right inside the spirit of the people and present
themselves in the form of customary rules. Law grows by itself and to compliment
it, any law making should follow the path of historical development.
To that regard, Savigny and his theory even holds custom to be a superior source
of law to Legislation. Not only does it render custom superior, but in the
pecking order of things, it holds custom before legislation. He believed;
Legislation should be in accordance with the people's consciousness. The
Volksgeist cannot be criticized for being the will of the people. It lays the
standards by which laws, which are the conscious product of the will as distinct
from popular conviction, are to be judged.
He held, law to be a result of the people's will and not some arbitrary act of
the legislature. That legislator while enacting the law must have a notion about
collective will of the people. Law is found because it originates in the
unconscious growth of the people, and hence it cannot be 'developed'. Savigny
put to use, this theory while codifying the law in Germany. He saw the State as
an organism which had life, growth and death as it's three phases. Here, law
would strengthen with the strength of the people and gradually die away as that
nation would lose its nationality.
According to Savigny, law goes through three stages of development. To begin
with, there is a 'political element' in law. This is the starting phase of any
law and Nation. In the subsequent stage, alongside the political
element, 'technical' element of juristic skill is added. This is the perfect
time to codify the laws because after this phase, one sees the decline and the
gradual fading away of the nation.
One of the chief drawbacks of this theory is that it tends to assume a sense of
unification among the people and the ever presence need of unity. Agreed, at the
time when Savigny lived, countries like Germany had this growing sense of public
unification but the same cannot apply to every nation. Even in small groups
there is no guarantee of the collective consciousness and hence it becomes
difficult to apply this theory to that context.
Moreover, this theory tends to oust the views of the legally advanced minds of
the society. The dependency on collective consciousness is so much, that the
individual jurists who would have been in a good position to share their
valuable opinion on law, they are completely ignored.
Lastly, the biggest drawback in my honest opinion is the fact that the
collective will of the people may not necessarily be the best for the society.
If that were so then jurisprudence would not have evolved so much. We would have
continued with some of the very misogynistic and patriarchal practices which
were prevalent in the ancient society and had the backing of the collective will
of the people. Something like slavery which was actively present in the
community and was very readily accepted by the people could not have been
abolished had Volksgeist been put to use in the strictest sense. This for me,
forms the biggest drawback of the Volksgeist theory.
Having understood the basic premise of Savigny and his theory we would now try
to correlate some of the parameters with today's legal system with special
emphasis on India.
National character of law:
Savigny exclusively spoke about the national
character of law. This law which would be derived from the will of the people,
should have the characteristic of unifying the nation. However, in India we have
a federal form of democracy. This is characterized by a division of powers in
both legislative and administrative field between the Centre and State. The
reason is to ensure that National interest is promoted by keeping provincial
autonomy (to a certain extent), intact. This is to a large extent against
The very ethos of the word 'democracy' lies in
the fact that it is a system of government in which the people of the country
have the first say. In our country, the people who end up making the laws are
those who are elected by the general public in the elections. Through the
elections, the general pulse of the country can definitely be felt. It is safe
to say that this process does incorporate in itself, the collective will of the
people because it is the people who decide who is going to make the laws.
The Source of the Law:
What we must remember is that according to Savigny
the sole source of law is Volksgeist. It is the will of the people that matters
and nothing else. However, if the Indian Constitution is to be looked at, most
of its provisions are taken from the other legal systems of the world. The Part
3 on Fundamental Rights has been taken from the American Constitution whereas
the Emergency provisions have been incorporated from the German Constitution.
Moreover, Savigny also believed that law which has been received, that can never
be a part of the System, but in India various laws were brought by the British
all the way from England and codified. These have been of immense help to us and
benefitted us in a great manner. However, this again is contrary to what
Savigny, and his theory advocated for.
Will of the people may not be "good":
As pointed out earlier, the
collective will of the people may not always be the best for the society. The
people may not necessarily want to progress for their betterment. There was once
a collective will which backed the Sati practice and legitimized slave trading.
If the application of 'Volksgeist theory' was done in the literal sense then it
would have never allowed us to progress and get rid of such laws. Hence, what is
important to realize is that not every time will the collective consciousness of
the people be correct and hence in India, this theory will not apply.
India is a cultural diaspora:
It is next to impossible to ever have a
complete agreement among the public on a particular topic. This is largely due
to the fact that Indian populace is heterogenous. Our constitution allows us
this difference in opinion but Savigny's theory will not necessarily allow that.
It assumes a consensus among the populace and takes it from thereon.
The Legislature is supreme:
Although Indian Legal system does honor
customs and traditions to a large extent, the ultimate is the law of the land.
This law is laid down by the legislature and is, alongside the constitution,
over and above everything else. This is another point of mismatch with Savigny's
theory because he had mentioned custom to be the ultimate source of law,
something which is not exactly present in India.
To put it in a nutshell, Savigny's theory of law cannot be applied in the
strictest sense to today's context especially to the Indian Legal system. We go
by the law of the land and not merely by what people think to be best.
Written By: Mr. Saikat Mukherjee
, A third year BA LLB student at Symbiosis Law
Email: [email protected]