Friedrich Carl von Savigny (1779–1861) was a highly influential German jurist and the founder of the Historical School of Jurisprudence. His central and most famous theory of law is the concept of Volksgeist.

The Theory of Volksgeist

The term Volksgeist is a German compound word:

• • Volk means "people" or "nation."
• • Geist means "spirit" or 'common will.'

Thus, Volksgeist translates to the "Spirit of the People," or "National Spirit" or "Collective Consciousness."

Key Elements of Savigny's Theory:

• • Law is Found, Not Made: Law is not something that is arbitrarily created by a legislator or ruler. Instead, it is discovered within the general, common consciousness of the people. It is an organic, unconscious, and spontaneous growth that evolves with the nation.
• • National Character of Law: Savigny argued that law is unique to each nation, just like its language, manners, and constitution. It is a reflection of the national character, which binds people together.
• • Law Develops like Language: He drew a famous parallel, stating that law develops in the same way a language does. It starts with simple, easily grasped legal relations in primitive communities and gradually becomes more complex, reflecting the sophistication of the civilization.
• • Custom as the Primary Source: In the early stages of a nation's life, the Volksgeist manifests itself directly in customs and popular conviction, making custom the primary source of law.
• • Role of Jurists: As society becomes more complex, this popular consciousness can no longer express itself directly. At this stage, legal principles are articulated, systematized, and represented by legal experts, jurists, and judges. They act as the organ of the Volksgeist, giving technical form to the common conviction.

Opposition to Codification

Savigny’s theory was famously articulated in opposition to the proposal for a codification of German law (a single, unified, systematic legal code, similar to the French Napoleonic Code) at a time when Germany was politically fragmented.

• • He argued that a national law could only be properly codified once the nation was politically united and its Volksgeist had fully matured and been scientifically developed by legal scholars.
• • He believed that hasty codification would be detrimental, as it would fossilize the law, preventing its natural, organic development and growth as the spirit of the people evolved.

Historical Context

The Historical School, pioneered by Savigny, emerged in the 19th century as a reaction against two dominant legal theories:

1. 1. Natural Law Philosophy: Which believed that law was based on universal, rational, and eternal principles applicable everywhere, ignoring historical and social factors.
2. 2. Legal Positivism (Analytical School): Which viewed law as the command of a sovereign, devoid of moral or cultural values.

Savigny's theory, in contrast, emphasized the necessity of a historical study of law to understand its true nature and its deep roots in the collective experience of the people.