Analytical perspective of Savigy's Volksegist theory on Indian legal provision

Savigny’s theory stated that law is the product of Volksgeist, which contains the whole history of the nation’s Culture and which also reflects the inner convictions of the society which are deep-rooted in the society’s experience. So, Volksgeist drives law slowly to development.  

Law develops like a 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 make all these as a single whole. The central theme of Savigny’s historical jurisprudence may be summarised thus:
"Law grows with the nation, increases with it, and dies at its dissolution and is a characteristic of it”. [Quoted from Savigny’s essay ‘Vom Beruf]

 Early development of law is spontaneous -

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 of 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 the consciousness of the people but as it grew and developed, it assumed the complex and technical form of the law of edicts.
 Opposed codification of German law-

As a matter of fact, Savigny was not totally against the 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 are 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.

 Law is 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 historical processes which should constitute the subject of study for the jurists. According to him, the codification of law may hamper its continuous growth and, therefore, it should be restored to when the legal system has fully developed and established.

Admiration for Roman Law-

While emphasising Volksgeist i.e. people’s spirit or as the essence of law, Savigny justified the 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 a unified system of law in Germany.

Savigny’s admiration for Roman law was, however, criticised by Professor Eichhorn who was his contemporary Professor at 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 Roman law.

ANALYSIS ON INDIAN LEGAL PROVISIONS:

In Volksgeist, Savigny put an overemphasis on the customs and traditions of the community and completely neglected the role of the legislature. We cannot deny that Custom is not the source of law, but it cannot be the only source of law. In India, the initial practices of following the customs has existed in the ancient period but that was also corrected during the development of time and those constraints were removed from the society like Sati Pratha, child marriage, discrimination between man and woman etc.

The Hindu Law of Succession and inheritance got ultimately codified in the form of Hindu succession act, 1956, which was based on customary law. According to this act, marriage could only be possible between the same cast of the community and marriage was void if it was performed out of this custom. So basically it was totally based on the customs of the community.

In the Constitutionality scheme, Article 244, 244A, 371A etc. clearly states that the law made by the constitution makers was to prevent and maintain the customary laws of the community. Customary laws are one of the most important laws for the tribes so it needs to be protected by the constitution. Also in Family laws, it was seen that the laws made by the makers were to save the interest of the community by making the laws made in the custom and follows the principle of Spirit of the people. Like in case of marriage, the bride and broom need to take the Saptpadi around the sacred fire (Agni) and put a necklace to the bride’s neck, then only the marriage would be considered as valid. So the should be different customs for different people of the community. So by this, we can clearly make an outline that the customary law still prevails in the lawmaking procedure of India.

To overcome this problem the legislators should create such law which is created for the benefit of both legislation and society. Like in Hindu Succession Act, 1956, the amendment was made by adding the daughter as a coparcenary in the Hindu Joint Family property. So these kinds of laws are required in today’s under which no one’s right can be hindered so the goals can be achieved very easily. We cannot say that the customs should completely dispose of from society, but it should be properly framed and structured so that the right of the people cannot be infringed.