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INTRODUCTION

In Savigny’s words “law- is first developed by custom and popular faith, next by judicial
decisions—everywhere, therefore, by internal silently operating powers, not by the arbitrary
will of a law-giver”1. This was the gist of his theory.

Friedrich Carl Von Savigny (21 February 1779 – 25 October 1861) was the founder of historical
school of law and was the most respected and influential 19th century Jurists. Savigny is called
“the greatest Jurist that Europe has produced”2. He was a pioneering legal scientist who
made lasting contributions to jurisprudence. He connected the present the legal situation with the
past laws. He was more than the philosopher. He holds the point of view that the law must be
constant with the spirit of the people. Savigny developed his theory as a weapon to resist the
wholesale imposition of a legal code which he regarded as alien to and ill-suited for the
emerging German states.3 Savigny's basic theory is that it is impossible to create law out of
whole cloth-it grows in a slow, unconscious, organic way from its primitive beginning in the
minds of the people of a nation.

According to him, the law is developed through the evolutionary process. He found this theory
much before Charles Darwin gave his theory of evolution. It is for this reason; he is even said as
“Darwinian before Darwin” for his contribution of evolutionary process and historical school
of jurisprudence in the field of legal system. 4 He brought the new idea of evolution of law which
totally depends upon the will of the people. He advocated that the meaning and origin of existing
laws can be traced through historical background and modes of transformation. 5 Amongst all the
theories propounded by the Savigny, the most significant one is “Volksgeist”. The literal
meaning of “Volksgeist” is “spirit of the people” or “national spirit” wherein, “Volks” means,
“people” and the “Geist” means the “common will”. The basic notion of his theory was that the
law and common will of people are inseparable and both are interlinked with each other. The
present situation is also witnessed to the Volksgeist theory where the laws have been changed
according to the will or wide acceptance of people. In other words, the development of laws can
be seen through the amendment in the previous laws as well as the newly enacted laws to
prevent the prevailing practices.

1
Hermann Kantorowicz, vol.49 Savigny And the Historical School of Law, 326 ( Law Quarterly Review, , 1937)
2
Ibid.
3
Frank W. Elliott, The Volksgeist and a Piece of Sulphur, 817 (Taxes Law Review, vol. 42, 1964)
4
Paranjape N.V., Studies in Jurisprudence And Legal Theory, 32 (Central Law Agency, Allahabad, 4th Ed., 2006)
5
Friedrich Karl von Savigny, available at: [Link]
Nov 2024)
 Page |2

ABOUT THE JOURIST

 BACKGROUND OF JURIST

Friedrich Karl Von Savigny was born at Frankfurt (Germany) in 1779, and belong to a family
recorded in the history of Lorraine, deriving its name from the castle of Savigny near Charmes
the valley of the Moselle. He became orphaned at the age of 13 and was then raised under the
guardianship of Mr. M. de Neurath, who dominated his early education. Neurath, a lawyer and
imperial official, employed the stereo typed, catechistic method to emerge his ward into the study of
the natural law of Wolff and Vattel, international law, and Roman and German law. 6 In 1795, he entered the
University of Marburg, where, though in poor health, he studied under Professors Anton Bauer
and Philipp Friedrich Weiss. It was there that he not only received anorthodox education but,
also, got a taste of the new stirrings of historicism. His early teaching and writing would later
be of a similar mix.7

In 1800, Savigny became a doctor of law at Marburg and, as such, one of the first of the
German nobility to teach at a university. Subsequently, he taught criminal law, Roman law and
its history, property law and the law of contracts at Marburg and Landshut.8 In 1810, he
became a professor at the newly formed University of Berlin, where he spent most of his
academic career until 1842.9 The qualities Savigny possessed as a scholar were joined with those
of an enthusiastic teacher. To Savigny, it was for the professor to personify science to the
student by transmitting the knowledge gathered "as if science revealed itself suddenly to him."
He noted further of his students that "it is not merely instruction which they receive, but a
process which goes on beneath the eye and which they themselves reproduce."' In 1842 when he
was appointed as Minister of Justice in Prussia. He retired from that post in 1848.

Source: Wikipedia

6
Friedrich Karl von Savigny, available at: [Link] ( 21 Nov 2024)
7
J. Stone, Social Dimensions of Law and Justice, 35 (Universal Law Publishing, 12th ed., 2012)
8
Id. at 563
9
Id. at 573
 Page |3

 PUBLICATIONS OF SAVIGNY

Friedrich Karl von Savigny, a pivotal figure in the development of legal thought, published
several influential works that shaped the field of jurisprudence. Through the publication of ,
Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (The Vocation of Our
Age for Legislation and Jurisprudence) in 1814, he criticized the push for a unified civil code
in Germany, advocating instead for a deeper understanding of the historical context of law. 10
This work marked the beginning of the historical school of jurisprudence, emphasizing that law
evolves organically within a society's cultural framework rather than through arbitrary
codification.

Savigny's major contributions include his extensive Geschichte des römischen Rechts im
Mittelalter (History of Roman Law in the Middle Ages) between 1815 to 1831, which laid
the groundwork for modern studies of medieval law through rigorous historical analysis. This
monumental work utilized critical techniques and a vast array of primary sources, establishing
Savigny as a foundational figure in legal historiography. 11 His eight-volume treatise, System des
heutigen römischen Rechts (System of Modern Roman Law) published during 1840 to 1849,
further articulated his systematic approach to Roman law as it developed in modern Europe,
integrating his theories on international private law.

In addition to these foundational texts, Savigny published Das Obligationenrecht (The Law of
Obligations) (1851–1853), which served as a supplement to his earlier works on modern Roman
law. His writings collectively underscore his belief that legal systems must be understood
through their historical contexts and the "Volksgeist," or the spirit of the people, reflecting the
cultural and ethical consciousness inherent in any legal framework . Savigny's legacy endures in
contemporary legal scholarship, particularly in discussions surrounding the relationship between
law and society.

SCHOOL OF JURISPRUDENCE
10
Savigny, Friedrich Karl von. Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, (Mohr Siebeck,
1814)
11
Savigny, F. C. Von, History of Roman Law in the Middle Ages, (Veit & Comp., Berlin, 1815-1831)
 Page |4

The main proponent of the Historical School of Jurisprudence, which developed in opposition to
the abstract, rationalist tenets of the natural law doctrines of the Enlightenment, was Friedrich
Karl von Savigny. This school placed a strong emphasis on the idea that law is an organic
manifestation of a society's collective consciousness, or Volksgeist (spirit of the people), rather
than the result of arbitrary human construction. According to Savigny, legal systems evolve
gradually over time, impacted by the common values, traditions, and practices of the people they
are meant to rule.

According to the Historical School, a thorough study of a legal system's historical and cultural
background is necessary for comprehension.12 10. Savigny argued that imposing codified laws
disconnected from a society's cultural and historical environment could lead to disjointed and
ineffective legal systems. His view was a direct response to the Napoleonic Code and other
codification movements gaining popularity in Europe at the time. According to Savigny's school
of thought, laws should evolve organically to reflect the continuous historical development of a
society.

Savigny believed that the legal history and the historical jurisprudence of subject matter are
different, the former concerned with the superficial analysis or without any intense study and
research of any subject while on the other hand, the latter attempts to unravel the principles and
processes operating behind the origin and development of law and legal institution. Furthermore,
it was the belief of Savigny that the law is not something which is deliberately or arbitrarily
made by the law-makers but it is a product of internal, silently, operating forces. 13 The Savigny
compared the law with the language which gradually evolves and is shaped by religion, custom,
habits, tradition etc. of the people and thus bears a national imprint and character.

In addition to influencing legal historians' techniques by motivating them to track the

development of legal conceptions, his approach established the foundation for contemporary
comparative law.14. The Historical School had a significant influence on European legal
philosophy and helped later legal scholars recognize the importance of jurisprudence's cultural
and historical contexts.

THEORY OF LAW

12
Stein, Peter. Legal Evolution: The Story of an Idea, (Cambridge University Press, 1980)
13
Savigny, Systems of Modern Roman Law, (English Translation by W. Holloway 1867).
14
Savigny, Friedrich Karl von. Vols. 1-4, System des heutigen Römischen Rechts., (Mohr Siebeck, 1840-1849)
 Page |5

Savigny-“all law is th manifestation of common consciousness of the people and it grows with
the growth and strengthens with the strength people and dies away as the nation loses
its nationality.” This was the main crux of Savigny’s Theory of Law.

Savigny believed that law cannot be created artificially; it is discovered Law is inherently
organic, and it develops in both prehistoric and modern societies in many manifestations of
popular awareness and beliefs, customs and traditions, habits and practises, which
ultimately lead to people's law or folksiest. Because the law is Sui generis—a representation of
its inherent ego or spirit—it cannot have universal applicability. He further explained the theory
of Volksgeist which he saw as the source of Law.

VOLKGEIST AS A SOURCE OF LAW

The concept of “Volksgeist” is very interesting and important concept in the legal science. It
means the “the common will of people”. The word “Volks” means “the people” and the
“Geist” means the “common will”. The law is the product of concept “Volksgeist, imbibing the
nation’s culture and reflecting the inner convictions which are deep rooted in the society’s
common experience. 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 people.'15 This concept
does not focus on the logic but the prevailing practices in the country. The law always developed
through the thinking of the people and practice prevailing in the society. The main idea of
Savigny behind this theory was that the common will of the people can be indicated through the
enactment of the legislations.
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. As a source of law, through Volkgeist
according to Savigny, laws are a manifestation of peoples' spirits and the result of their shared
consciousness. Savigny believed that the foundation of all laws.

EVALUTION OF LAW

Dr N.V. Paranjape in his book described Savigny’s theory of law under five heads which we
will discuss further:-

 Law evolves similarly to language- Savigny noted that law has a national character,
develops similarly to language, and unites people due to their shared convictions, religions,
and beliefs. He contends that laws develop in tandem with society, are strengthened by

15
Mathias Reimann, The Historical School Against Codification: Savigny, Carter, And the Defeat of The New York
Civil Code, 95 ( American Journal of Comparative Law 1989)
 Page |6

society, and eventually wane when a country loses its national identity. Language,
customs, governance, and law are all interdependent upon the people who adhere to them.
 Law developed spontaneously in its early stages and thereafter by jurists- According to
Savigny, law initially develops naturally in response to the needs of the community.
However, once the community reaches a certain level of civilization, the various national
activities that had previously developed as a whole split into distinct branches that can be
studied further by experts like linguists, anthropologists, scientists, and jurists. Law must
serve two purposes, namely, as a separate field of study and as a regulator of national life.
Both play important roles in the evolution of law, albeit the former may be referred to as
the political aspect of law and the latter as the juristic element.

 Opposed codification of German Law- Savigny criticized the codification of German law,
albeit he did not entirely condemn it. However, because Germany was then split up into
several smaller states and its legal system was weak, undeveloped, and inconsistent; he
opposed the codification of German law based on the French (Napoleonic Code) model.
He believed that when Germany is unified and there is only one law and one language
spoken across the nation, German law may be codified. Because Volksgeist, or common
awareness, had not yet fully matured, codification would have impeded the development
and expansion of the law. He emphasized that as Roman law was an essential component
of the German legal system at the time, codifying German law without having jurists with
the requisite brilliance and knowledge of Roman law would not accomplish the intended
goal. Instead of lawmakers, whose job is restricted to enacting laws, he saw attorneys and
jurists as genuine representatives of the public mind.

 Evolution of law is continuous and unbreakable- The evolution of law from Volksgeist, or
people's spirit or awareness, is a constant and unbroken process. According to Savigny, its
development is an ongoing, unstoppable process that is constrained by shared cultural
customs and beliefs. Its origins lie in historical processes, which need to be the focus of
jurists' research. He contends that codification should only be used when the legal system
has completely evolved and established itself since it may impede its ongoing
development.

 Admiration of Roman Law- Savigny defended the acceptance of Roman law in the context
of German law, which was more or less infused with it while highlighting Volksgeist, or
the spirit of the people or the substance of law. He saw Roman law as an essential
instrument for the creation of a unified legal system in Germany and placed Volksgeist
inside the Romanized German customary law.

SAVIGNY’S CONTRIBUTION TO LAW/ SCHOOL/ JURISPRUDENCE

 Page |7

Friedrich Carl von Savigny's contributions to law and jurisprudence laid the foundation for
modern legal thought, particularly through his development of the Historical School of
Jurisprudence. Central to his theory was the concept of Volksgeist—the idea that law is a
manifestation of the people's collective will, deeply rooted in their historical, cultural, and
social traditions. Savigny challenged the dominant 18th-century natural law theory and
analytical positivism, emphasizing that laws should not be imposed abstractly or through hasty
codification. Instead, he argued that legal systems must evolve naturally from the customs and
traditions that define a society's identity.

This emphasis on law's organic development influenced subsequent legal thinkers like Sir Henry
Maine, who explored the anthropological aspects of law, and Dean Roscoe Pound, who
developed the sociological approach. Savigny’s ideas also contributed to the emergence of
comparative jurisprudence, a field that underscores the importance of understanding different
legal systems through their historical contexts. His work cautioned against abrupt legislative
changes and underscored the necessity for laws to resonate with societal values and the popular
will. Through this approach, Savigny laid the groundwork for modern sociological and realist
schools of jurisprudence, inspiring jurists to adopt a more pragmatic and culturally sensitive
perspective on legal development.

CRITICISM

F.K. Von Savigny’s views have been criticised on several grounds which are as follows-

 Against codification- Savigny's strong anti-codification stance was criticized for

delaying legal unification in Germany16. His belief that law must emerge spontaneously
from a society's traditions hampered the development of complete legal codes, reducing
legal uniformity and clarity, which were regarded as critical for contemporary
government and practical legal application.
 Over-emphasised Roman law- Critics contended that Savigny's overemphasis on
Roman law left his approach obsolete and unsuitable for dealing with modern legal
issues17. By focusing on old ideas, he ignored modern societies' changing demands and
neglected to include more relevant, current legal concepts and frameworks required for
contemporary legal progress. His focus on Roman law degraded German Law’s
importance.
 Volksgeist as a sole source of law- Savigny's focus on Volksgeist as the sole source of
law was criticised for disregarding other influences, including as economic and political
considerations. By attributing law entirely to cultural consciousness 18, he oversimplified

16
Kelly, J. M. A Short History of Western Legal Theory (Oxford University Press, 1992)
17
Stein, Peter. Roman Law in European History (Cambridge University Press, 1999)
18
Berman, Harold J. Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal
Tradition (Harvard University Press, 2003)
 Page |8

the law-making process and ignored the complexities that diverse social factors bring to
legal creation and evolution.
 Customs are always based on popular consciousness- Savigny's claim that traditions
are always based on public consciousness was criticized for neglecting the fact that
certain conventions maintain obsolete or discriminatory behaviours like sati practice etc.
 Hinder legal reform- His thesis of slow, historically-based legal evolution has been
criticized for impeding timely legal change. Critics said that concentrating on historical
continuity precluded addressing important social changes and current issues,
perpetuating obsolete standards and delaying legal systems 19 reaction to changing
societal realities and requirements.
 Overlooked different methods of advancement of law- Savigny missed several types of
legal growth by relying solely on historical history. Critics contended that this
prohibited rationalist and positivist methods that provided clear, organized, and
inventive legal frameworks, restricting the ability to adapt laws to quick and complex
changes in modern society.

APPLICATION IN INDIAN SCENARIO

19
Gordley, James. The Jurists: A Critical History (Oxford University Press, 2013)
 Page |9

In our country India, in many parts, the theory of Volksgeist is very well fitted but on the other
hand, it was highly contrasted in Indian legislations and judgements. We can observe from the
following where the Volksgeist theory is applicable and overlooked at the same time. There is
limited applicability of Savigny’s Theory in India. The applicability of Savigny’s Theory can be
analysed under following points:

 The National Character of Law: Savigny only discussed the law's national character.
This law, which would result from the people's choice, ought to have the quality of
bringing the country together. But in India, we have a federal system of government.
This is characterised by a split of authority between the Centre and the State in both the
legislative and administrative spheres. The goal is to maintain (to a certain extent)
provincial autonomy while promoting the national interest. This goes a long way against
Savigny's concept.
 Elected Representatives: The fundamental definition of the word "democracy" is a form
of government where the people of the nation have the final say. In our nation, the
people who ultimately pass the laws are those who are chosen by the electorate. The
overall pulse of the nation can undoubtedly be sensed through the elections. Since the
people determine who will make the laws, it is safe to claim that this process does take
the collective will of the people into account.
 The Source of the Law: We must keep in mind that Savigny believes that Volksgeist is
the only source of law. Nothing else is important; only the people will be. If the Indian
Constitution is to be analysed, the majority of its provisions are drawn from other
international legal frameworks. While the Emergency provisions were adopted from the
German Constitution, Part 3 on Fundamental Rights was copied directly from the
American Constitution. Savigny likewise held the view that a law that has been received
cannot ever become a part of the system; however, Savigny was wrong because the
British brought many laws from England to India and codified them. These have been of
great use to us and have helped us greatly. But once more, this goes against what
Savigny and his theory favored.
 The public's will might not be "good": As was previously mentioned, society may not
always benefit from the people's collective will. People might not always wish to
advance for the betterment of themselves. The Sati practice and slave trading were
previously supported by a common will. The 'Volksgeist idea' would never have
permitted us to advance and abolish such regulations if it had been applied literally. It is
crucial to understand that the collective awareness of the people won't always be
accurate, hence in India, this hypothesis won't hold.
 India is a cultural diaspora: It is very impossible for the general population to ever
agree on any issue. This is mostly a result of the diversity of the Indian population. Our
constitution permits us to hold divergent opinions, but Savigny's thesis may prevent that
from happening. It starts with a consensus and moves forward from there.
 P a g e | 10

 The Legislature is supreme: The law of the land is ultimately what matters, even though
the Indian legal system does respect conventions and traditions to a large extent. This
law was established by the legislature and supersedes all else, along with the
Constitution. Another issue with Savigny's idea is that he claimed that custom was the
ultimate source of law, which is not necessarily true of India. Savigny's hypothesis can
only be partially applied to India. Given the separation of powers between the federal
and State governments, the Indian Constitution is more like a federal one. They both
behave separately as a result in their respective realms. Under the Union list, the
Union/Central Government has authority over issues of national interest, and under the
State list, state governments have the authority to create laws about issues of local
interest. This division of legislative authority between the federal and state governments
goes against Savigny's theory of the national character of law.

However, Savigny's theory2 does seem to apply to India up to a point. The Preamble of the
Indian Constitution describes the country as a "Sovereign, Socialist, Secular, Democratic
Republic." The phrase "popularity based" demonstrates that the Constitution has established a
system of government that derives its authority from the "will of the people." The Preamble
further declares that the Indian people are a definite ace of the Republic and have embraced and
established the Constitution of India. Accordingly, the real power is in the hands of Indian
citizens, both at the national and state levels.

Although Indian Constitution indicates that the source of the Indian Constitution is the people of
India yet there are many provisions that have outer sources, for instance, the German
Constitution's emergency provisions and the American Constitution's fundamental rights are
both borrowed. This makes it evident that Savigny's theory—which holds that only Volksgeist is
the wellspring of law—is at odds with reality.

The English, who governed India and brought and applied their laws here as well throughout the
19th and 20th centuries, are responsible for many of the current laws, including the tort law,
provisions governing the restitution of marital rights, the Contract Act, and much other
significant legislation. They incorporated English law into Indian law, which was to the Indian’s
great advantage. The codification of law was responsible for bringing national legal consistency.
Savigny, who held that a received law could never be successful or take on a national character,
was opposed to this viewpoint. Additionally, he passionately resisted legal codification. But
Savigny's theory is refuted by the existence of a recognised Common Law and the effective
operation of the Codes in India.

Under Savigny's theory, the law always originates from the general public's consciousness.
However, numerous doctrines are actively opposed to it in India today, such as the
Untouchability Abolition Act and the Dowry Prohibition Act, which were consciously imposed
by policymakers. Such laws don't necessarily represent the national consciousness. Judicial
activism is a recent development that runs counter to Savigny's notion in India. By using
 P a g e | 11

precedents, judges are enacting laws, contrary to Savigny's theory, which disregarded the judges'
independent judgment.

CONCLUSION
 P a g e | 12

Friedrich Karl von Savigny is still regarded as a pioneer in the field of jurisprudence because he
established the Historical School of Jurisprudence and emphasized the significance of cultural
and historical background in the formation of legal frameworks. His idea that the Volksgeist
must naturally inform law had a significant impact on how legal scholars perceive the interplay
between society and the law. His resistance to codification, excessive dependence on Roman
law, and scant attention to alternative legal sources and approaches, however, received harsh
criticism.

Savigny's work established the groundwork for contemporary comparative and historical legal
studies despite these criticisms, emphasizing the continued value of viewing the law as a
byproduct of its historical and social context. His legacy is one of deep insight into how laws
reflect the identity and consciousness of the societies they govern, even if his approach
sometimes hindered legal modernization and reform. All things considered, Friedrich Karl von
Savigny's contributions to legal theory have had a lasting impact and improved our
comprehension of the cultural and historical foundations of the law.

His emphasis on tradition and group consciousness continues to influence conversations on how
laws are interpreted and evolved today, despite the fact that his ideas generated controversy and
were criticized for being too conservative.
 P a g e | 13

BIBLIOGRAPHY

 Books

1. Hermann Kantorowicz, Savigny And the Historical School of Law, ( Law Quarterly
Review, , 1937)

2. Frank W. Elliott, The Volksgeist and a Piece of Sulphur, (Taxes Law Review, 1964)

3. Paranjape N.V., Studies in Jurisprudence And Legal Theory, 32 (Central Law Agency,
Allahabad, 4th Ed., 2006)
4. J. Stone, Social Dimensions of Law and Justice, 35 (Universal Law Publishing, 12 th ed.,
2012)
5. Savigny, F. C. Von, History of Roman Law in the Middle Ages, (Veit & Comp., Berlin,
1815-1831)
6. Stein, Peter. Legal Evolution: The Story of an Idea, (Cambridge University Press, 1980)
7. Savigny, Systems of Modern Roman Law, (English Translation by W. Holloway 1867).
8. Savigny, Friedrich Karl von. Vols. 1-4, System des heutigen Römischen Rechts., (Mohr
Siebeck, 1840-1849)
9. Mathias Reimann, The Historical School Against Codification: Savigny, Carter, And the
Defeat of The New York Civil Code, 95 ( American Journal of Comparative Law 1989)
10. Kelly, J. M. A Short History of Western Legal Theory (Oxford University Press, 1992)
11. Stein, Peter. Roman Law in European History (Cambridge University Press, 1999)
12. Berman, Harold J. Law and Revolution, II: The Impact of the Protestant Reformations on
the Western Legal Tradition (Harvard University Press, 2003)
13. Gordley, James. The Jurists: A Critical History (Oxford University Press, 2013)

 Websites

1. Friedrich Karl von Savigny, available at:

[Link] 2024)
2. Friedrich Karl von Savigny, available at:
[Link] ( 21 Nov 2024)
3. Savigny’s theory, available at: [Link]
theory (21 Nov 2024)
4. Friedrich Karl von Savigny, available at
[Link] (21 Nov 2024)