Q.9. Discuss the contribution of Savigny as propounder of Historical Jurisprudence ?
Ans. Contribution of Savigny as propounder of Historical “Jurisprudence.—The forerunners of Savigny, notably, Scheling and Hugo had rejected natural law theory which believed that law is based on an abstract principle of human reason. They supported the view that law is a historical perception which evolves according to customs, traditions, culture and sentiments of the people. Savigny was the main exponent of this historical interpretation of law and is considered to be the propounder of historical jurisprudence. He traced the development of law as a evolutionary process much before Darwin gave his theory of evolution in the field of biological sciences’ in 1861. It is for this reason that Dr. Allen described Savigny as ‘Drawihian before Drawin’ for his contribution to apply the evolutionary principle to the development of legal system.
Volksgeist as a Source of Law Savigny firmly believed that law is a product of the general consciousness of the people and a manifestation of their spirit. Therefore, codification of German law was desirable for its smooth development at that time. This,” eventually delayed codification of German Law for another fifty years.
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.
Savigny’s contribution to the development of historical score may briefly be enumerated as follows :—
1. Law develops like language-
Savigny remarked that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs and convictions. He pointed out that 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. The central theme of Savigny’s historical jurisprudence may be summarised thus :—
“The organic evolitioit few-vath the life, and i-haraiter of the people develops with the ages, and in this it resembles language. As in the latter, there can be no instant of rest, there is always movement, and development of law is governed by the same power of internal necessity as simple phenomena. Law grows with nation, increases with it, and dies at its dissolution and is a characteristic of it”. [Quoted from Savigny’s essay ‘Vom Beruf]
2. Early development of law is spontaneous ;
latter on jurists develop it-Savigny stated that in the earliest stages, law develops spontaneously according to the internal needs of the community but after the community reaches a certain level or civilisation, 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 dual 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. 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.
3. Opposed codification of German law—
As a matter of fact, savigny was not totally against codification of.laws. He, however opposed the codification of the German law on the French (Napoleonic Code) pattern at that time because Germany was then divided into several smaller states and its law was primitive, immature and lacked uniformity. He opined that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the country. Since Volksgeist i.e. common consciousness; had not adequately developed at that time, therefore codification would have hindered the evolution and growth of law. He emphasised that codification of German law without having jurists of sufficient genius and adequate expertise in Roman law would not serve the desired purpose as Roman law formed an integral part of the German legal system. He considered lawyers and jurists as true representatives of the popular consciousness rather than the legislators whose role is limited to law-making only.
4. Law is a continuous and unbreakable process.
Tracing the evolution of law from Volksgeist, namely, people’s spirit or consciousness. Savigny considered its growth as a continuous and unbreakable process bound by common cultural traditions and beliefs. It has its roots in the historicalprocesses which should constitute the subject of study for the jurists. According to him codification of law may hamper its continuous growth and, therefore, it should be restored to when the legal system has fully developec and established.
5. Admiration for Roman Law—
While emphasising Volksgeist i.e. people’s spirit or as the essence of law, Savigny justified adoption of Roman law in the texture of German law which was more or less diffused in it. He, therefore located Volksgeist in the Romanised German customary law. He considered Roman law as an inevitable tool for the development of unified system of law in Germany.
Savigny’s admiration for Roman law was, however, criticised by Professor Eichhorn who was his comporary Professor in the University of Berlin. He wondered how a foreign law could be a true Volksgeist (popular will) of the German people. Prof. Eichhorn was totally against Roman law and wanted German law to be relieved from its influence. On the other hand, Savigny and his followers were opposed to the expulsion of Roman law from Germany. Thus there was a conflict between the so called Romanist and the Germanists, the former supporting the retention of Roman law while the latter advocating its expulsion from the German law. The rift between the two could be resolved by the final German law draft of 1990 which was a combination of both German law and the Roman law.