INTRODUCTION
Volksgeist is a part of historical studies which law is
defined as a product of times the germ if which like the germ of the state,
exists in the nature of men as being made for society and which develops from
this germ various forms, according to the environing influences which play upon
it. The Volksgeist theory
was coined by Von Savigny (1778-1861) which the nature of any particular system
if law was a reflection of the spirit of the people who evolved it. This was
later characterized as the Volksgeist by Puchta, a disciple of
Savigny.
LAW GROWS WITH THE GROWTH, AND STRENGTHEN WITH THE
STRENGTH OF THE PEOPLE AND FINALLY, DIES
AWAY AS THE NATION LOSSES ITS NATIONALITY
A nation and its state are
as an organism which is
born, matures and declines and dies[1]. Law is a vital
part of this organism. “Law grows with the growth, and strengthens with the
strength of the people, and finally dies away as the nation loses its
nationality.” Nations and their law go through three developmental stages. At
the outset of a nation there is a “political” element of law: there are
principles of law which are not found in legislation but are part of “national
convictions” (Volksglauben). These
principles are part “implicitly present in formal symbolic transactions which
command the high respect of the population, form a grammar of the legal system
of a young nation, and constitute one of the system’s major characteristics.”[2] In its middle period, law retains this
“political” element to which is added the “technical” element of juristic
skill. This period is the apogee of the people’s legal culture and is the time
when codification is feasible. It is desirable only so that the legal
perfection of the period can be preserved for posterity. With the decline of a
nation, law no longer has popular support and becomes the property of a clique
of experts & in time even this skill decays. Ultimately, there is loss of
national identity.
Law is a product of the general
consciousness of the people and a manifestation of their spirit. Therefore, codification
of law was not desirable for its smooth development. 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.
Law develops like language- it has a national
character and it develops like language and binds people into one whole because
of their common faiths, beliefs and convictions. Law grows with the growth of
the society and gains its strength from the society itself and finally it
withers away as the nation loses its nationality. Law, language customs and government
have no separate existence from the people who follow them. Common conviction
of the people makes all these as a single whole[3].
Early development of law is
spontaneous; thereafter jurists develop it. In the earliest stages, law
develops spontaneously according to the internal needs of the community but
after the community reaches a certain level of civilization, the different
kinds of national activities, hitherto developing as a whole bifurcate in
different branches to be taken up for further study by specialists such as
jurists, linguists, anthropologists, scientists etc.
Law has to play a duel role,
namely, as a regulator of general national life and as a distinct discipline
for study. The former may be called the political element of law while the
latter as a juristic element but both have a significant role in the
development of law[4].
The history of Roman law
furnishes the best illustration of these processes. At its earliest stage, it
was founded on general consciousness of the people but as it grew and
developed, it assumed the complex and technical form of law of edicts. Law is a
continuous and unbreakable process—Tracing the evolution of law from
Volksgeist, namely, people’s spirit or consciousness. Its growth as a
continuous and unbreakable process bound by common cultural traditions and
beliefs. It has its roots in the historical processes which should constitute
the subject of study for the jurists. Codification of law may hamper its
continuous growth and therefore, it should be resorted to when the legal system
has fully developed and established[5].
Historical jurisprudence is
marked by judges who consider history, tradition, and custom when deciding a
legal dispute. It views law as a legacy
of the past and product of customs, traditions and beliefs prevalent in
different communities. It views law as a biological growth, an evolutionary
phenomena 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. The essence of law is the acceptance, regulation and observance by the
members of the society[6].
Law derives its legitimacy and
authority from standards that have withstood the test of time and is grounded
in a form of popular consciousness called the Volksgeist. Kant emphasized that
custom is the most important source of law and co-related the development of
society with that of law. He further stated that law develops with society and
dies with society. To him, legal system was a part of culture of a people.
Hence, law wasn’t the result of an arbitrary act of a legislation but developed
as a response to the impersonal powers to be found in the people’s national
spirit[7].
Laws aren’t of universal validity
or application. Each people develop its own legal habits, as it has peculiar
language, manners and constitution. He insists on the parallel between language
and law. Neither is capable of application to other people and countries. The
view of Savigny was that codification should be preceded by “an organic,
progressive, scientific study of law” by which he meant a historical study of
law and reform was to wait for the results of the historians[8].
Savigny felt that “a proper code
[of law could only] be an organic system based on the true fundamental
principles of the law as they had developed over time.” Savigny’s method stated that law is the
product of the Volksgeist, embodying the whole history of a nation’s culture
and reflecting inner convictions that are rooted in the society’s common
experience. The Volksgeist drives the
law to slowly develop over the course of history[9].
Every people possesses its own cultural traits shaped
by ancestral history and the experience of a specific physical environment, and
mentally constructs its social life through language, law, literature,
religion, the arts, customs, and folklore inherited from earlier
generations. Laws, too, must be adapted
to the spirit of each nation, for rules applied to one nation are not valid for
another.
The only legitimate governments are those that develop
naturally among particular nations and reflect in their differences from other
polities, the cultures of the people they govern. Law is the unique creation of
a race, a people. Like language or values, it is the result of collective human
action and reason over generations, not the result of human design. Language
and law were never consciously invented at a specific moment in time. Rather,
they represent slow accumulations, organic emanations of discrete peoples. To cite but one example, European law and
values and Jewish law and values are as different as night and day. In adopting
torture, assassination, criminalization of free speech, thought, and
association, genocide, and the abolition of formal restraints on tyranny,
whites overnight lost half a millennium or more of slow, painful moral and
legal progress.
CONCLUSION
In conclusion, nation’s legal
system is greatly influenced by the historical culture and traditions of the
people and the growth of law is to be located in their popular acceptance. This
laid the foundation of historical school of jurisprudence which was carried
further by Sir Henry Maine in England, Vinodradoff, Lord Bryce and many others.
Savigny’s approach to law also gave birth to comparative jurisprudence which
has been accepted as one of the most important branches of legal studies in
modem times.
All laws are
manifestation of common consciousness. The broad principles of the system are
to be found in the spirit of the people and they must manifest themselves in
customary rules. Law is a matter of unconscious of growth. Any law-making
should follow the course of historical development. Custom not only precedes
legislation but is superior to it. Legislation should always conform to the
popular consciousness. Law is not of universal application, by which it varies
with peoples and ages. The Volksgeist cannot be criticized for
being what it is. It is the standard by which laws, which are the conscious
product of the will as distinct from popular conviction, are to be judged. And
individual jurist may misapprehend the popular conviction.
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[1]Michael Freeman “Lloyd's Introduction to
Jurisprudence”, 8th Edition, 2007
[2] N.K
Jayakumar, “Lectures In Jurisprudence” 2nd Edition, 2006, Publisher:
Butterworth Heinemann
[3] Joseph Raz “The Authority of Law” 16th
Edition, 2003, Publisher: Oxford University Press
[4] Ibid
[5] Dr. N.V. Paranjape “Studies in
Jurisprudence & Legal Theory”, 6th Edition, 2013, Publisher:
Central Law Agency
[6] Ibid
[7] Prof. S.N. Dhyani “Jurisprudence &
Indian Legal Theory”, 4th Edition, 2011, Publisher: Central Law
Agency
[8] V.D. Mahajan “Jurisprudence &
Legal Theory”, 5th Edition, 2011, Publisher: Eastern Book Company
[9] L. Pospisil,
Anthropology of Law(2001), p. 142.
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