Savigny advocated a more realistic investigation into historical facts underlying
particular rule systems and argued that all law originates in custom and was
only later influenced by juristic activity. He developed the concept of folk spirit
(Volksgeist), viewed in its particular historical context, which therefore tended
to become quite nationalistic. Arguing that any particular system of law was a
reflection of this folk spirit, Savigny saw law as ‘the manifestation of the common
consciousness’ (Dias and Hughes, 1957: 392). This approach led him to
view customs as the first manifestation of a people’s spirit, so that any form of
legislated lawshould always take into account a people’s popular consciousness.
No official law should be made which would violate local customary norms and
the value systems of the subjects of the law. Such views of law and law-making,
echoing Montesquieu, inevitably forced lawyers to study non-legal subjects as
well, including folklore.
Other criticisms relate to the fact
that Savigny’s model of the Volksgeist, applied to a local community, assumes
an artificial uniformity but would forever fragment law-making processes by
insisting on the superiority of small-scale entities.
Dias and Hughes (1957: 396)
argued that, ‘consistently with his theory, Savigny maintained that legislation
was subordinate to custom. It must at all times conform to the Volksgeist.
It would be quite wrong to suppose that he opposed legislation altogether.’36
Savigny merely warned that careless or rushed legislationwould lead to negative
consequences, an approach which put him ahead of his time, but also reflects
what Montesquieu had said earlier.
Law is our Passion
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This entry was last modified: July 14, 2013