Friederich Karl von Savigny

The Historical School is based on the writings and teachings of Friedrich Karl von Savigny. Natural lawyers held that law could be discovered only by rational deduction from the nature of man.

The basic premise of the German Historical School is that law is not to be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people. The law is grounded in a form of popular consciousness called the Volksgeist.

 Friedrich Savigny (1779–1861), whose theory of law became one of the central phenomena of German historicism. The first sections discuss Savigny’s intellectual origins in early romanticism and his early fateful rejection of natural law.

Introduction

Savigny was born at Frankfurt, of a family recorded in the history of Lorraine, deriving its name from the castle of Savigny near Charms 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 doctorate in 1800.

The historical school of jurists was founded by Friedrich Karl von Savigny (1779–1861). Its central idea was that a nation’s customary law is its truly living law and that the task of jurisprudence is to uncover this law and describe in historical studies its social provenience. As in other schools of thought, acceptance of this approach did not necessarily mean agreement on its theoretical or practical consequences.

The German Historical School has had considerable influence on the academic study of law in Germany. 

The basic tenet of the school is that law in its essence is not something imposed on a community from above or from without but is an inherent part of its ongoing life.

Major Contributions

  1. Law of Possession (das recht des bestiges), 1803.
  2. The History of Roman Law in the Middle Ages in Six Volumes, 1818-31.
  3. System of Modern Roman Law, 1840- 49. iv. Contracts, 1853.

Prime Reasons for The Evolution of Historical School

  1. 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.
  2. 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-men situation.

Legal Philosophy

 In Savigny’s classic words, the law is first developed by custom and popular faith, next by judicial decisions, and a hasty legal codification was something to be avoided since the one essential prerequisite for such a codification was a deep and far-reaching appreciation of the spirit of the particular community.

Savigny’s jurisprudential perspective was in part inspired by the Romantic movement, which took the form in Germany of a movement harking back to the simplest tribal origins of the German people, to their folk songs and tales and their distinctiveVolksgeist(“national spirit”).

From this point of view, the law is not something that can be devised through rational formal legislation but rather originates in the unique spirit of a particular people and is expressed spontaneously in custom and, much later, in the formal decisions of judges.

Savigny viewed the law as a slow, almost imperceptible growth that is formed in much the same way as a language is. Accordingly, legislation and law codes can, at most, give mere verbal expression to a body of existing law whose meaning and content can only be discovered by careful historical investigations. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to derive legal theories from general and universal principles without respect to the characteristics and customs of a particular person.

Volksgeist as a Source of Law

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, Saving’s most devoted disciple.

In later works, Savigny was to use the term Volksgeist, the spirit of the people, to designate what he regarded as the source of law.

When Savigny began his work, Germany was just beginning the process of recovering from the trauma of the French Revolution and the Napoleonic wars and achieving political unity. He was immediately successful in persuading German legal scholars to abandon their precipitate embrace of the Code Napoleon and to explore the medieval and Roman roots of their law.

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 the origin of law is to be found in Volksgeist which means people’s consciousness or will and consists of traditions, habits, practices, 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.

In the words of Savigny,

 “The foundation of the law has its existence, its reality in the common consciousness of the people. We become acquainted with it as it manifests itself in external acts, as appears in practice, manners, and customs. Custom is the sign of positive law.”

Hence, Savigny believes custom as the source of law and Volksgeist (common consciousness) as the ultimate foundation of any legal system

Criticism of Savigny’s Volksgeist

  1. Sir Henry Maine rightly pointed out that a progressive society has to keep adapting the law to fresh social and economic conditions and legislation has proved in modern times the essential means of attaining that end.
  2. Lord Lloyd also points out that Savigny underrated the significance of legislation for modern society.
  3. In pluralist societies such as exist in most parts of the world, it seems somewhat irrelevant to use the concept of Volksgeist as the test of validity.
  4.  It was unfortunate that the doctrine of Volksgeist was used by the National Socialists in Germany for an entirely different purpose which led to the passing of brutal laws against the Jews during the regime of Hitler in Germany.
  5.  It is not clear who the volk is and whose geist determines the law nor it is clear whether the Volksgeist may have shaped by the law rather than vice-versa.

 Conclusion

 The insufficiency of natural law school and the analytical school had provided a fertile land where Savigny sowed seeds of the 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. For him, the law was not the result of arbitrary acts of the 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. Custom is the most important source of law and law develops with society and dies with the same. The law is grounded in a form of popular consciousness called the Volksgeist. The essence of law is the acceptance, regulation, and observance by the members of the society. It views law as biological growth, an evolutionary phenomenon 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. Law derives its legitimacy and authority from standards that have withstood the test of time. It views law as a legacy of the past and product of customs, traditions, and beliefs prevalent in different communities.

Q&A

Q.1. What Was the Early Life of Savigny?

A.1. Savigny was born at Frankfurt, of a family recorded in the history of Lorraine, deriving its name from the castle of Savigny near Charms 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 doctorate in 1800

Q.2. What Is the Basic Premise of German Historical School?

A.2. The basic premise of the German Historical School is that law is not to be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people. The law is grounded in a form of popular consciousness called the Volksgeist.

Q.3. Mention the Main Works of Savigny.

A.3. Law of Possession (das recht des bestiges), 1803.

The History of Roman law in the Middle Ages in six volumes, 1818-31.

System of Modern Roman law, 1840- 49. iv. Contracts, 1853.

Q.4 Explain the Legal Approach of Savigny.

A.4 Savigny viewed the law as a slow, almost imperceptible growth that is formed in much the same way as a language is. Accordingly, legislation and law codes can, at most, give mere verbal expression to a body of existing law whose meaning and content can only be discovered by careful historical investigations. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to derive legal theories from general and universal principles without respect to the characteristics and customs of a particular people

Q.5 Explain Savigny’s Volksgeist.

A.5 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 the origin of law is to be found in Volksgeist which means people’s consciousness or will and consists of traditions, habits, practices, 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

References

  1. https://en.wikipedia.org/wiki/Friedrich_Carl_von_Savigny
  2. https://www.encyclopedia.com/people/social-sciences-and-law/law-biographies/friedrich-Karl-von-savigny
  3. https://www.lawnotes4u.in/2019/04/savignys-theory-of-volksgeist-historical-school.html
  4. https://www.britannica.com/biography/Friedrich-Karl-von-Savigny

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