Savigny and the historical school: law as the spirit of a people

The analytical school says law is the command of the sovereign. The historical school is its exact opposite: there was no person like a sovereign for the creation of law. The question the school answers is where law comes from before there is any legislator to command it — and its answer changes what a codifier may legitimately do.

The school arose in the eighteenth and nineteenth centuries, when the concept of individualism came into existence and produced revolutions, and Savigny, Montesquieu and Grotius were writing that law is the general will of the people, resting on the feelings of common people.

Law is the general consciousness of the people — the spirit of the people, Volksgeist. What common people think and how they behave is the base of law, and law shows the general nature of the common people. Savigny is the father of the theory, and its main expounder.

Law in ancient times rested on simple rules, regulations, customs, usages and conventions, later developed by jurists and lawyers and converted into a set form of law. Law develops like the language and the manners of a society, so it has a natural character and no universal application; it differs from society to society and State to State, as languages do from locality to locality.

These are the four to reproduce in an answer:

1. Law has a national character.
2. Law is based on national conditions, situations, circumstances and custom.
3. Law is prehistoric — law is found and not made; jurists and lawyers put it into set form.
4. Law develops like the language and manners of society. In ancient society law was not in a set form; with the development of society its requirements increased, and it became necessary to mould law into a set form.

The life cycle. Law grows with the growth of a nation, increases with it, and dies with the dissolution of the nation.

Custom above legislation. For Savigny customs are more important than legislation, because customs come before legislation — the customs are the base of legislation. This is why the historical school treats legislation as the least creative of the sources of law, whose purpose is only to give better form to, and effectuate, the customs and traditions that develop spontaneously among the people.

| Jurist | The proposition to attach to the name | |---|---| | Montesquieu | Law is the creation of climate, local situations and accidents. | | Grotius | Law develops like language and the manners of society, according to the suitable circumstances of society; the necessary thing is acceptance and observance by society. | | Burke | Law is the product of the general process — a dynamic organ which changes and develops with the suitable circumstances of society. | | Sir Henry Maine and Puchta | Grouped with Savigny as the historical jurists who held that law is not made but found, its foundation lying in the common consciousness of the people, manifested in practices, usages and customs. | | Otto von Gierke | Every true human association becomes a real and living entity animated by its own individual soul — the proposition on which the treatment of group practice as a source of law rests. |

On this view customary law is merely an expression of the jural ideas of the people — a people's conviction of right, its ideas of right and of rightful social control.

1. Inconsistency. Savigny asserted that the origin of law is in popular consciousness, and at the same time argued that some principles of Roman law were of universal application. That is a clear inconsistency.
2. Volksgeist is not the exclusive source. There are many technical rules which never existed in, and have no connection with, popular consciousness.
3. Customs are not always based on popular consciousness. Many are adopted by imitation rather than on the ground of their righteousness, and customs completely opposed to each other exist in different parts of the same country, which cannot be said to reflect the spirit of the whole community.
4. Other factors that influence law were ignored. The law relating to trade unions is the outcome of a long and violent struggle between conflicting interests within a society — not of a shared consciousness.
5. Juristic pessimism. If legislation must accord with popular consciousness, no legal system could refuse to compromise with abuses that people have grown accustomed to. Such a view will not find favour in modern times.

• The set-piece — Explain Savigny's view and the basic tenets of the historical school. Four features, custom above legislation, then the five criticisms.
• The three-cornered comparison. Austin: law is command. Savigny: law is consciousness. Pound: law is a means of balancing interests. The trade union criticism is the hinge — it is the sociological school's argument used against the historical school.
• The connection to the sources module. Everything the historical school says about custom is the theory behind the material on custom in the module on the sources of law, and the two should be cross-referenced in an answer, not repeated.