Friedrich Karl Von Savigny School
Authored by - Ruma Minj
Keywords - Friedrich Karl Von Savigny, jurisprudence, social institution, law, state, relation of law and state.
The historical school of jurisprudence laid importance to the social institutions, in which the law develops itself, instead of attaching importance to the relation of law to the state. The jurists of historical school regarded law as an arbitrary creation whose sanctions are embedded in its historical past. They rejected all creative participation involved in the process of law-making.
Friedrich Karl Von Savigny was born at Frankfurt in 1779. He studied at the Universities of Marburg and Gottingen and was a professor of Civil law in the former from 1801 to 1804. Afterwards, he shifted to the University of Landshut. He was also appointed as a professor at the newly formed University of Berlin in 1810 and worked there till 1842 after which he was appointed as the Minister of Justice in Prussia. He wrote History of Roman Law in Middle Ages and System of Modern Roman Law but his work on Law of Possession, which was published in 1803 is referred as to be the beginning point of Savigny's historical jurisprudence.
Savigny believed that all the law is the manifestation of the common consciousness of the people and it grows with the development and strengthens with the strength of people and dies when the nation loses its nationality.[i]
Historical School of Jurisprudence
There were two major reasons for the establishment of the historical school of jurisprudence. First were the French revolution and the consequent turmoil. Secondly, the Darwinian theory of evolution, which modified the character of scientific speculation during that period of time also played an important role. This perspective was also supported by the Supreme Court of India in Byram Pestonji Gariwala v. Union of India.[ii] The exponents of the historical school of jurisprudence carry social institutions in their sequence with primacy given to primitive legal institutions of the society. The school does not attach importance to the relation of law in accordance with the state but provides importance to the social institutions in which the law develops itself. The historical school focuses on the evolution of law from the primitive legal institutions of the ancient communities. This school deals with the general principles governing the origin and development of law and with the influences that affect the law. Historical jurists dismissed ethical considerations from jurisprudence and rejected all creative participation of judges, jurists and lawyers in the formulation of law. The historical school is an outcome of the legal theories propounded by analytical positivist and the natural law philosopher.
F. K. Von Savigny
Savigny was the central exponent of the historical interpretation of the law and is considered to be the propounder of historical jurisprudence. He outlined the development of law as an evolutionary procedure much before Darwin’s theory of evolution. For this reason, Savigny was described as Darwinian before Darwin, due to his contribution to relating the evolutionary principle to the development of the legal system. Savigny's law theory elicited mixed reaction as it motivated people to struggle against foreign dominations but also encouraged fascism and Nazism which ultimately led to a disastrous world war.
Savigny believed that law is an output of the general consciousness of the people and a manifestation of their spirit. According to Savigny, a law formulated without taking into consideration past historical culture and tradition of community is inclined to create more confusion rather than solving the problems primarily because the law is not an artificial lifeless mechanical instrument. The origin of the law lies in the popular spirit of the people which Savigny referred to it as Volksgeist.
Savigny’s Contribution to the Development of the Historical School
1. Savigny provided that law has a national character and it evolves like language and binds people into one whole due to their common faiths, beliefs, and convictions.
2. Savigny pointed that in the earliest stages, law develops spontaneously according to the internal necessities of the community but after the community attains a distinct level of civilization, different kinds of national activities were developing as a whole. It was further divided into different branches which were taken up for further study by a specialist such as jurists, linguistics, anthropologist, scientists, etc.
3. Savigny was not completely against the codification of laws but he opposed the codification of the German law on the French pattern which was the Napoleonic code. At that time, Germany was distributed into various smaller states and its law was primitive, immature, and lacked uniformity. He was of the viewpoint that German law could be codified at a later stage when the unification of Germany takes place and there are one law and one language throughout the nation.
4. Savigny by outlining the evolution of law from Volksgeist, that is the people’s spirit and consciousness, contemplated the growth of law as a continual and unbreakable procedure bound by common cultural traditions and beliefs.
5. By emphasizing Volksgeist, Savigny justified the adoption of Roman law in the texture of German law which was diffused in it. Savigny located Volksgeist in the Romanised German customary law and contemplated Roman law as an inevitable instrument for the development of a unified system of law in Germany.
Savigny’s theory is subject to criticism and main among them are as follows:
1. There are certain inconsistencies that are noticeable in Savigny’s theory as he emphasized upon the national character of law but he also suggested a model by which Roman law could be adopted and accepted as the law of Germany. Also, he found the origin of law in Volksgeist but he also asserted that certain customary principles of Roman law had universal application. Savigny’s unnecessary importance to Roman law has been criticized.
2. Savigny’s theory of law is often alleged to be negative, obscure, and suffers from a narrow sect outlook. He was against the codification of law which deterred the growth of German law for several decades.
3. Savigny was of the view that popular consciousness is the single source of law that is not correct. The Volksgeist theory overlooks the impact of other sources of law such as the precedents, legislation, etc in the evolution of law.
4. Again, he suggested that customs are always founded on popular consciousness and are not acceptable. Many customs such as slavery, bonded labor, etc originated to accomplish the selfish interest of those who are in power and continued for long periods of time because of popular consciousness.
5. Savigny’s theory hindered legal reforms and modernization of law in the name of Volksgeist.
6. Savigny was not against legislative reform but his approach to the codification of laws was pessimistic because he viewed that codification could never solve all the problems.
7. Volksgeist helped many nations promote their own ideologies.
Instead of all the criticism, Savigny’s theory marks the beginning of modern jurisprudence, and his Volksgeist theory interpreted jurisprudence in terms of people’s will. Therefore, it paved the way to the modern sociological approach to law laying greater emphasis on the relation of law with society. This theory came as a reaction against natural law theory and analytical positivism of the 18th century but the only defect in his theory was that he carried the doctrine of popular will too far.