Savigny – Historical School of Jurisprudence

Savigny’s Theory:

Savigny wrote the following books:

• On the vocation – vom beruf
• Law of possession
• History of Roman Law in Middle Ages
• The system of Modern Roman Law

According to Savigny:

• Law has its source in the general or common consciousness of the people. This common consciousness is called the Volksgeist. The nature of any particular system of law is a reflection of the spirit of the people who evolve it; law is the product of people’s life and a reflection of people’s spirit; it can be understood only by raising the history of the people.
  • Law is not a product of man’s free will. Law, language, customs, government have no separate existence. There is but one force which empowers the people and it underlies all these constitutions. Law like language, develops with the life of the people, it grows with, and strengthens with the strength of the people and finally dies away as the nation looses this nationality.
  • Law has a national character. A nation according to Savigny is a community of people linked together by historical, geographical and cultural ties.
  • Law is a matter of unconscious growth, that is, it is not made deliberately. Any law making should therefore, follow the course of historical development
  • As law grows into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and, therefore, the lawyer or the jurist is more important than the legislator.
  • Thus, according to Savigny’s theory, law is a matter of unconscious and organic growth. Therefore, law is found and not made. Further, law is not universal in nature. Like language, it varies with people and age. And, custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness i.e. Volksgeist.

• Savigny opposed the codification of law on several grounds. In the first place, he pointed to the defects of contemporary codes. Secondly in matters on which there is no Volksgeist, a code might introduce new and unadaptable provisions. Thirdly, he argued that codification could never cater exhaustively to all problems that arise in the future and hence was not a suitable instrument for the development of law. Fourthly, he argued that codification would highlight the loopholes and weaknesses of the law and so encourage evasion. Codification in Savigny’s view, should be preceded by ‘an organic, progressive, scientific study of the law’, by which he meant historical study. Reforms should await the results of the historians’ work. The legislators should look before they leap into reform.

In essence, the theory of Savigny –

1. Law, language, custom and government has no separate existence.
2. The organic development of law, with the life and character of people develops with and in this it resembles language.
3. Law grows with a nation, increases with it and dies at its dissolution.
4. Custom Precedes legislation and is superior to it should conform to consciousness of people. Custom may be evidence of law, but its real source lies deeper in the minds of men.
5. Law is not of universal application and varies with people and ages.
6. Lawyers are voices of popular consciousness and their function is to mould law.
7. Instead of the individual, emphasis was laid on spirit of people – Volk geist (source of law).

Criticism of Savigny’s Theory

• Inconsistency in the theory – On the one hand, he asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Savigny’s view of adopting principles of Roman law was vehemently opposed by Beselor, Eichorn, and Gierke.
• ‘Volksgeist’ not the exclusive source of law – Savigny’s view that popular consciousness is the source of all law is not true. Sometimes, an alien legal system is successfully transplanted in another country.
• Customs not always based on popular consciousness – Many customs originated only for the convenience of a powerful minority, as slavery. Many customs are adopted due to imitation and not on the ground of their righteousness or any conviction of the community. Sometimes, customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community.
• He ignored other factors that influence law – Another criticism against Savigny is that he was “so occupied with the source of the law that he almost forgot the stream”. He overlooked the forces and factors which influence and determine the growth of law. The creative function of the judge has also been ignored in Savigny’s theory and the contribution of the jurist has been taken very lightly. Many rules, in modern time, are the result of a conscious effort. For example, the law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society.
• Many things unexplained – Certain invariable traits, like mode of evolution and development noticeable in all the legal systems of the world are left unexplained in Savigny’s theory. Legal developments in various countries show some uniformity to which he paid no heed. Prof. Korkunove says: ‘It does not determine the connection between what is national and what is universal’.
• Juristic pessimism – According to Pound, Savigny encouraged ‘juristic pessimism’. According to his theory, legislation must accord with popular consciousness. Such a view will not find favour in modern times. No legal system would like to make compromise with abuses only because that people are accustomed to it. It is rightly said

that Savigny’s theory tended to hang traditions like fetters upon the hands of reformative enterprise. ‘It discouraged creative activity and legal reform’.

Applicability of Savigny’s Theory to India

The applicability of Savigny’s theory to India is limited.

• Federal Constitution – In a federal Constitution, there is a division of powers between the federal (central) and the State Governments and both are independent in their own spheres. The basis of such distribution of powers is that in matters of national importance in which a uniform policy is desirable in the interest of the units, authority is entrusted to the Union (Union List) and matters of local concern remains with the States (State List). Thus, in a federal Constitution, law lacks a ‘national’ character as envisaged by the Savigny.

India is a federal State. However, it enshrines the principle that inspite of federalism, the ‘national interest’ ought to be paramount. The Indian Constitution is mainly federal with unique safeguards for enforcing national unity and growth. At the time of emergency, it acquires a unitary character, and the normal distribution of powers between Centre and States undergoes a vital change. The Union Parliament is empowered to legislate on any subjects mentioned in the State List. During normal times also, the Parliament has power to legislate in the national interest (Article 249).

The Preamble of the Constitution declares India to be a “Sovereign, Socialist, Secular, and Democratic Republic”. The term ‘democratic’ indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the Preamble as the very objectives of the Constitution. Democracy would indeed be hollow if it fails to generate this spirit of brotherhood among all sections of the people – feeling that they are all children of the same soil and the same motherland. It becomes all the more essential in a country like India composed of many races, religions, languages and culture. The Preamble declares that the Constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus, the real power is in hands of the people of India, both in the Union and in the States.

• Source of Indian Constitution – The Preamble indicates the source from which the Constitution comes, viz., the people of India. However, the framers of Indian Constitution incorporated various provisions of the Constitutions of world in order to avoid defects and loopholes that might come in future in the working of Indian Constitution. Accordingly, they framed the Chapter on Fundamental Rights on the model of American Constitution, and adopted the parliamentary system of Government from the U.K.; they took the idea of Directive Principles from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of Germany.

Thus, the Constitution of India which is the supreme law of the land has many features borrowed from other nations, so not fitting properly in the Savigny’s scheme.

• Received common law in India – The process of reception of English law through the agency of the judiciary continued unabated during the 19^th and 20^th centuries in India. For example, in the law of torts, the Indian courts lifted bodily the whole mass of English law, as there was nothing in India to fall back upon for the courts in this area.

At times, the native law and usage were supplemented, modified and superseded by English Law. The ancient personal law was found to be too rigid and outdated in the modern socio-economic conditions of the society. The legislature, however, moved mostly in response to the strong pressure of reformist section of the Hindus favouring the proposed changes. Thus, laws ameliorating the condition of Hindu women, getting free Hindu society of some long standing social evils, loosening the rigidity of joint family system, etc. were introduced. The Hindu Law never recognised any form of wills, but the

British courts introduced this principle into Hindu Law. The concept of restitution of conjugal rights was introduced and with it the English doctrine of cruelty. The joint family tenure came to be referred to as ‘Coparcenary’.

However, not only such English rules as were suitable to India, but even a few rules of technical nature, or those which are the product of peculiar conditions in England, were made applicable. Thus, some rules of English law which were not consistent with the customs, traditions, habits and institutions of the Indians found their way into the country.

Further, through codification English law was firmly rooted in the Indian soil. As Rankin rightly puts it, the English Common Law was transferred to India not so much by reception as by codification. According to Stokes, the Indian codes are rationalised digests of English law and practice.

On the whole, codification has been very beneficial to the people in the country. Through codification, law has become certain, coherent and definite to a very great extent. Gaps in the law have been filled in. codification of law made the law uniform throughout the country and thus fostered a kind of legal unity of the country in fundamental laws.

According to the Savigny, a received law can never be effective nor can it acquire national character. He was also against the codification of law. But the existence of received common law in India and successful working of codes falsify the Savigny’s views. Today, the English Law as assimilated with the fabric of India law and the work of legislation consists of revision, consolidation and re-enactment of the codes already enacted.

• Deliberate legislation-making – In India, in modern times, many new doctrines are deliberately introduced by policy-makers. Such doctrines do not always reflect the popular consciousness of the country. For example, people hold divergent views on the issue of reservations for backward classes, uniform civil code, etc.

Further, many laws are the result of a conscious effort. For example, the law relating to woman (Dowry Prohibition, Sati abolition etc.), lower castes (Untouchability Act), trade unions and industry, etc. are an outcome of long struggle between conflicting interests within a society.

Abolition of Sati pratha, introduction of divorce, the Child Marriage Restraint Act, etc. are some of the many examples in India where gradual change by legislation have been brought in (social reforms) even though it meant changes in the age-old customs and traditions (thus contradicting Savigny’s views).

• Judicial activism – Savigny ignored the creative function of the judges. In India, in recent times, judicial activism is on the rise. Judge-made law (precedents) or judicial legislation is a common feature today.

Puchta (1798- 1856) – Conflict between general and individual will brings law into existence. Neither people nor state alone is the source of law. Men always lived in unity. This unity is not only physical but spiritual also. It causes unanimity among the members of society and constitutes the General Will of the people. Self-interest causes a conflict between individual will and General Will. This brings out the idea of law. Then state comes into existence. Neither the people (as the natural unit) nor the state (as the organic unit) alone is the source of law. The first is the causa instrumentalis and the second is the causa principalis of law. The origin of law is antecedent to the State, but there is no law before the creation of the state. Puchta gave two- fold aspects of the human will and the origin of a state.

Dias – The historical School provided the great stimulus to the historical study of law and legal institution which has ingrained a sense of historical outlook in the perspective of lawyers.

The Historical comparative method or the Anthropological method

The origin of this method is owed to Montesquieu. Post, Dahn and Fouillee belong to this school. The main proponent of this school is Sir Henry Maine (1822-1888). He was a Professor of Civil Law at the University of Cambridge. He was also a law member in the Council of The Governor General of India between 1861 and 1869. He wrote to the books Ancient Law, Village Communities, Early History of Institutions, and Early Law and Customs. The basic differences between this school and the historical school are:

• This school took a more balanced approach to history. Comparative school used history to know the past of law and not to decide its future course whereas the historical school used history for both the purposes.
  • Savigny explained the relation between community and the law whereas Maine went a step further and pointed out the link between the developments of both and purged out many of Savigny’s exaggerations.
  • Comparative school gave the theory on the basis of comparison between various legal systems.
  • Comparative school favoured legislation and codification whereas the historical school was opposed to it.

The theory –

• There are four stages of the development of law:-
• Commands of the ruler under the divine inspiration (Themistes).
• Commands crystallise into customary law.
• Knowledge and administration of customs goes into the hands of minorities e.g. priests.
• Codification: Law gets codified.

Maine says that Static societies do not go beyond 4^th stage. But Progressive societies go beyond the 4^th stage. This happens by three methods –

• Legal fiction – Letter of law does not change but its operation changes e.g. law of adoption. Maine is against this as it makes law more complex.
  • Equity – Inherent ethical superiority changes the law and the principles of ethics start governing the law.
  • Legislation – Most desirable method. But should not conflict with deep seated traditions of the community.
• The movement of progressive societies has hitherto been a movement from status to contract:

In the early stages, the legal condition of an individual is determined by his status as determined by law e.g. caste etc. But in the later stages (Progressive society) status disintegrates and legal condition is determined by free negotiation on the part of the individual.

Maine defines status as: “A fixed condition due to an individual’s belonging to a group.” There is no individual will. He cannot change his status by his own will since family is a unit. (Pater familias)

Contract – Individual becomes important and therefore he can enter into a contract. Since human will becomes important, therefore individual creates his own status by his own endeavours, achievements and negotiations.

Application – Earlier, the change was from status to contract. But now, group bargaining

has become important resulting into collective contract (standardized contracts). Individuals will declines. As a result, shift is from contract to status now. Therefore, Maine’s theory does not apply to totalitarian states.