"Volksgeist" (Spirit of the People)

The Historical School of jurisprudence views law as a product of historical development and the spirit of the people. It emerged in response to the natural law and analytical positivist schools, emphasizing the organic growth of law from societal customs and beliefs rather than from abstract reason or sovereign command.

Friedrich Carl von Savigny (1779-1861):

Savigny, a prominent German jurist, is considered the founder of the Historical School. His theory was significantly influenced by the debates in Germany at the time, particularly regarding the proposed codification of German law.

Savigny opposed the hasty codification of German law, arguing that law is not something that can be arbitrarily created or imposed. Instead, he believed that law grows organically from the consciousness of the people.

Volksgeist:

The central concept in Savigny's theory is 'Volksgeist', which translates to the 'spirit of the people' or the 'popular consciousness'. According to Savigny, law is the outward manifestation of the national spirit of a particular people. It is inherent in the collective consciousness of the community and reflects their shared beliefs, customs, and traditions.

Law as an organic product of the community

Savigny viewed law as evolving organically, much like language or culture. It is not a static set of rules but a living process that adapts to the changing needs and spirit of the people. Just as language is not created by decree but develops from common usage, law, in Savigny's view, arises from the common conviction and practices of the community.

Law originates from popular consciousness, custom, and tradition

According to Savigny, the origin of law lies in the popular consciousness (Volksgeist). This consciousness expresses itself initially in custom and tradition. Therefore, custom is the primary and most authentic source of law. Legislation comes at a later stage and should merely formalize or clarify the customs that have already developed from the popular consciousness.

In the initial stages of society, law is simple and closely tied to community customs. As society becomes more complex, a class of jurists emerges who study and refine the law, acting as representatives of the popular consciousness. Roman law, for Savigny, was a prime example of law that developed organically and was scientifically refined by jurists.

Law as a Continuous Development

Savigny viewed law as a dynamic and continuous process, rooted in the historical development of the community.

Law is not made, but found

A key tenet of Savigny's theory is that law is not made by the arbitrary will of a legislator, but is found in the existing beliefs and practices of the people.

• He believed that law exists in the common conviction of the people, expressed through customs and later through the work of jurists.

• Legislation's role is limited to confirming, clarifying, or supplementing the law that has already been found in the Volksgeist. It should not impose new laws that are alien to the popular consciousness.

• Savigny opposed codification at that time because he felt that German law was not sufficiently developed or unified to be codified without distorting its organic growth.

This view contrasted sharply with the analytical school's emphasis on law as the command of the sovereign and the idea that law is intentionally made by legislators.

Role of Custom and Legislation

Savigny assigned distinct roles to custom and legislation as sources of law, prioritizing the former.

Custom as the primary source, Legislation as secondary

According to Savigny:

• Custom: Is the primary and true source of law, directly arising from the Volksgeist. It represents the law as it is lived and practiced by the people. The prevalence of a custom indicates the common conviction of the community, which is the ultimate source of legal rules.

• Legislation: Is a secondary source of law. Its function is limited. It can formalize existing customs, resolve ambiguities, fill gaps, or address specific social needs, but it should always be in harmony with the Volksgeist. Legislation that is contrary to the national spirit is likely to be ineffective or oppressive.

He also acknowledged the role of jurists as interpreters and refiners of the law, who articulate the Volksgeist in a more scientific and systematic manner, particularly in complex societies.

Criticism of Savigny's Theory

Savigny's Historical School, while providing valuable insights into the origins of law, has also been subjected to criticism.

Criticism:

• Concept of Volksgeist: The concept is vague and abstract. How can the 'spirit of the people' be precisely identified, especially in a diverse society with conflicting interests and multiple sub-cultures? Whose consciousness constitutes the Volksgeist?

• Staticity of Law: Savigny's emphasis on organic growth from custom might lead to a conservative view of law, resisting necessary changes through legislation, particularly in rapidly evolving societies. It may not adequately account for instances where legislation is used to drive social reform and break away from outdated customs (e.g., laws against Sati, child marriage, untouchability in India).

• International Law: Savigny's theory, focused on the unique national spirit, struggles to explain the basis of international law, which governs relations between different nations with distinct Volksgeister.

• Conscious Law-making: While customs are important, a significant portion of modern law is the result of conscious, deliberate law-making by legislatures to address specific problems or implement policies.

• Role of Minorities: The Volksgeist concept might overlook the rights and interests of minority groups whose consciousness may differ from that of the dominant population.

Despite criticisms, Savigny's school correctly highlighted the connection between law and the social/cultural context and the importance of history in understanding law, influencing subsequent sociological and realist approaches.

Law and the Evolution of Society

Sir Henry Maine (1822-1888), a British jurist and historical sociologist, is another prominent figure in the Historical School. Unlike Savigny's focus on the national spirit, Maine's approach was comparative, studying the legal development across different ancient societies.

Sir Henry Maine: Ancient Law (1861)

Based on his studies of Roman law, Indian law, and other ancient legal systems, Maine proposed a theory of legal evolution, arguing that societies generally move through certain stages in their legal development.

From Status to Contract

Maine's most famous generalisation is the concept of movement "from Status to Contract". He argued that in ancient societies, individuals' legal position was largely determined by their status within the social group (e.g., family, tribe, caste). Rights and obligations were fixed by birth or position, with limited individual freedom to alter them.

As societies progress from primitive to more advanced stages, individuals gain increasing freedom to determine their own legal relationships through agreements or contracts. Modern law is characterized by individuals entering into voluntary obligations based on their free will.

Examples: Ancient patriarchal family where individuals are under the authority of the paterfamilias (status-based) compared to modern society where individuals can enter into contracts of employment, marriage, etc. (contract-based).

From Undefined to Defined Relations

Maine also observed a movement from legal relations based on undefined, communal rights and obligations in early societies to clearly defined individual rights and duties in modern legal systems. Primitive societies often lacked clear concepts of individual property or defined contractual obligations, which became central in developed legal systems.

Theories of Legal Development

Maine outlined different stages or methods through which law develops in societies, particularly in early or 'static' societies and later in 'progressive' societies.

Stages of Legal Development in Static Societies:

In early, undeveloped, or 'static' societies, law evolves through the following stages:

1. Themis (Royal Decrees/Divine Judgments): Law is initially perceived as divine judgments or pronouncements by kings or rulers, often inspired by gods (like Themis). These are specific judgments for particular cases, not general rules.

2. Customs: Gradually, the judgments of the king give way to customs as the source of law. These customs are initially unwritten and administered by a limited class of people (e.g., priests, aristocrats).

3. Judicial Theory (Code/Age of Codes): Eventually, a body of written, codified law emerges, often in the form of ancient codes (e.g., Twelve Tables of Rome, Code of Manu in India). This represents a transition from unwritten customs to more definite, written rules.

According to Maine, most ancient societies progressed through these three stages. However, societies can be categorised into 'static' societies that stop at this stage of codified law and 'progressive' societies that continue to develop their law through other means.

Methods of Legal Development in Progressive Societies:

Progressive societies develop their law further after the stage of codes through three main instruments:

4. Legal Fictions: These are legal assumptions that are known to be false but are accepted for the sake of convenience or justice, allowing courts to adapt existing law to new circumstances without formally changing the original rule (e.g., the concept of 'action in assumpsit' in English law to enforce simple contracts).

5. Equity, Law of Nature, and Philosophy: These are external influences or bodies of principles (like Roman Equity, Jus Naturale, or philosophical ideas) that are introduced to modify or supplement the strict existing law, providing flexibility and a basis for development based on ideals of justice or reason.

6. Codification: At a mature stage, progressive societies may undertake codification – the systematic compilation and enactment of the entire body of law into a code. Unlike the ancient codes which were often compilations of existing customs, modern codes are comprehensive and attempt to create a coherent system of law. Codification is a sign of a mature legal system, according to Maine, provided it is done carefully.

Maine's theory of legal development provides a framework for understanding the evolution of legal systems across different cultures and time periods, identifying common patterns and instruments of change.

Criticism of Maine's Theory

Maine's theory, while influential, has also faced criticism for its generalizations and assumptions.

Criticism:

• 'Status to Contract' is not Universal: The movement from status to contract is not a universally applicable rule of legal evolution. Critics point to instances where modern law, particularly in welfare states, has reintroduced elements of status (e.g., social security laws, labour laws that regulate terms of employment regardless of contract, family law based on status). Some argue it's a movement from status to contract and back to status (or a different kind of status).

• Simplistic View of Ancient Societies: Maine's portrayal of ancient societies as purely status-based and lacking contractual elements has been questioned. Some ancient legal systems did recognize forms of contract and individual rights.

• Emphasis on Western Model: His theory is largely based on the development of Roman and English law and may not accurately reflect the evolutionary paths of all legal systems.

• Limited Scope of Development Instruments: Maine focused on legal fictions, equity, and legislation as methods of change, but other factors like social movements, revolutions, and external influences also play significant roles in legal development.

• Does not explain what law is: Maine's theory primarily describes how law develops, not what law is in its essential nature.

Despite criticisms, Maine's contribution lies in highlighting the connection between legal development and social structure, providing valuable insights into the historical evolution of key legal concepts like status, contract, and property across different societies.