The Volksgeist Theory
RESEARCH METHODOLOGY
Relevance of the volksgeist theory:
“The foundation of the law has its existence, its reality in the common consciousness of the people. We become acquainted with it as it manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign of positive law.” -Von Savigny
Volksgeist, according to Savigny, is “the spirit of the people”. Savigny believed that Law originates on the basis of the culture, consciousness and spirit of the people. He was of the view that, volksgeist serves as a very firm base of law. He stated that, this consciousness of people serves as a source of law. He coined the term volksgeist under the light of the Historical school of jurisprudence.
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Savigny, the pioneer of the historical school of jurisprudence, prioritized the general will of the people. Jurisprudence, means the “knowledge of law”. Jurisprudence is the science that imparts to us the knowledge of law. The volksgeist theory is concerned with the historical school of jurisprudence. This theory tells us that the while making the law or legal system, the traditions, customs, general consciousness, behavior, etc. of the people must be taken into consideration. The historical school tells us that while laying down any law, the history of the people, which includes religion, language, art, culture must be considered. The supporters of this school firmly believed that the historical background of the people is imperative for the law making system.
The volksgeist theory also bares slight resemblance to the sociological school of jurisprudence. The supporters of this school of jurisprudence stated that the essential characteristic of law should be to represent the common interaction of men I social groups, weather past or present, ancient or modern.
The volksgeist theory originated to mainly oppose the analytical and natural theories. According to savigny, law develops like language and binds people into one whole because of their common beliefs, faiths and convictions. According to him, law grows from the growth of society and gains its strength from the society itself, and finally it withers away as the nation loses its
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