Theory of Volksgeist

Volksgeist is a part of historical studies which law is defined as a product of times the germ if which like the germ of the state, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it. Law grows with the growth a d strengthens with the strength of the people, and finally dies away as the nation loses its nationality.

The Volksgeist theory was coined by Von Savigny (1778-1861) which the nature of any particular system if law was a reflection of the spirit of the people who evolved it. This was later characterized as the Volksgeist by Puchta, a disciple of Savigny.

In respect of this theory, all laws are manifestation of common consciousness. The broad principles of the system are to be found in the spirit of the people and they must manifest themselves in customary rules. Law is a matter of unconscious of growth. Any law-making should follow the course of historical development. Custom not only precedes legislation but is superior to it. Legislation should always conform to the popular consciousness.

Law is not of universal application, by which it varies with peoples and ages. The Volksgeist cannot be criticized for being what it is. It is the standard by which laws, which are the conscious product of the will as distinct from popular conviction, are to be judged. And individual jurist may misapprehend the popular conviction.

Savigny rejected natural law. To him, a legal system was a part of the culture of people. Law was not the result of an arbitrary act of a legislator but it was developed as a response to the impersonal powers to be found in the people’s national spirit. In respect to this view, law is the product of the Volksgeist which can be defined as the national spirit or the genius of the people. It is not of the universal application as each people develops its own legal habits according to its environment. Law is found and not made as it develops as a matter of unconscious and organic growth. Custom is the main source of law and it precedes legislation.

The view of Savigny was that the Volksgeist formulates only the rudimentary principles of a legal system and could not provide all the necessary details. Therefore, as society becomes more complex, a special body of persons is called into being whose business it is to give technical, detailed expression to the Volksgeist in the various matters with which law has to deal. That body of person consisted of the lawyers whose task was to reflect accurately the prevailing Geist.

According to this view, legislation was subordinate to custom and at all times it should confirm to the Volksgeist. Savigny did not oppose legislation or reform by codification at some appropriate time in the future, but his attitude was generally that of pessimism. He opposed the project of immediate codification on many grounds.

Savigny was related as Darwinian which Darwinian Theory gave a new scientific backing to the upholders of the Historical School. In the terminology of Pound, it substituted a biological for a mechanical interpretation of the facts of life. It reinforced the central theory of that school that the law of any nation is dependent on its history and hence there could be no proper understanding of the law of a nation without study of its history.

Savigny also maintained that the law of a nation was a dependent on its history as its language and religion. A code ought to reflect the history of a nation’s law and embody those national, characteristics which were the product of its history.

The great truth in the theory of Volksgeist is that a nation’s legal system is greatly influenced by the culture and character of people. Savigny was mainly occupied with how law becomes and whether it tends, or what the conscious effort can make it to tend and his thesis still substantially holds good.


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