Savigny Flashcards
Savigny’s commitment to history
Savigny emphasised that the outmoded nature of a legal system was due to a failure to comprehend its history and evolution. He believed that the pre-requisite to reform of law is to have a deep knowledge of the history of its society. Historical research is therefore indispensable to understanding the present.
What is savigny’s concept of the Volksgeist?
Volks - People, Geist - Will
The nature of any particular system of law, according to Savigny, is a reflection of the spirit of its people. “Law grows with the growth of and strengthens with the strength of the people and finally dies away as the nation loses its nationality”
Volksgeist are broad principles and they are found in customary rules.
How important is custom for Savigny?
Volksgeist are broad principles and they are found in customary rules. He held that law is an unconscious growth, and that law making must therefore look at historical development. In this way, custom is crucial and superior to legislation, and legislation must always conform to custom. The will of the people dictates the legislation and law.
Criticisms of Savigny’s theory
Generalisation - “The” spirit of the people doesn’t really exist. He generalised this idea, as in any society people will have multiple differing, conflicting views about subjects.
Minimises influence of individuals - Sometimes individuals, sometimes of alien race, exercise huge influence upon legal development. Classical jurists of Rome for example.
Volksgeist is not always law: many institutions like slavery have originated not in Volksgeist but in the convenience of a ruling oligarchy.
Volksgeist is not an exclusive source of law: Savigny underrated the significance of legislation for modern society. As far as society is developed the law is also to be developed in the society by legislation also.
Other law influencing factors ignored:He totally ignored the judge’s function to create the law. Paton states that the creative work of the judges and jurists was treated rather too lightly by Savigny.
Post colonial Critique of Savigny
Post colonial critique of Savigny:
Savigny’s definition of people and nation is very Eurocentric as he thinks people to be majority and his basis of nationality is language. But in a post colonial third world country, the nationality is based on religion further, there are no identifiable majorities in such countries as there are diverse groups of people with diverse wills they’re willing to assert. So considering the ‘will’ of the ‘people’ will be difficult here as people aren’t monolithic nor is their will uniform.
Ascertaining popular will in countries like India is problematic because it is not homogenous. There are many religious, linguistic identities. Extremely difficult to understand the linguistic identity. It really depends on the popular will.
Eg. a law to reform the Muslim religious practices. Liberals would argue that the Muslim community isn’t ready for such reforms. It shouldn’t be introduced by the Parliament because they aren’t ready.
But the argument against this is Hindus weren’t ready for criminalising bigamy. If the Parliament introduces such law it will be a postivistic approach. But when the argument is that Muslim are minorities and have been marginalised for years this approach would be a historical school - look at the will of the Muslim folks. Savigny was against the Codification of German Law since Germans weren’t ready. He claimed that any kind of law should be made after considering people’s will.
