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Israt Jahan Sadia
Introduction:
A
legal theory known as the Historical School of Jurisprudence first appeared in
the 19th century and this school of thought maintains that laws are
inextricably linked to a society's traditions, practices, and changing
consciousness rather than being impersonal, universal truths.
This
School of Jurisprudence makes us realize that the law should be up to date to
satisfy the needs of an ever-changing society while acknowledging the significance
of legislation and codification. Our understanding of law as a dynamic mirror
of human behavior over time has been greatly enhanced by it, and it has given
us important new insights into the evolution of legal systems. So, some of the
flaws of the renowned theory are given below:
Criticism of Von
Savigny/ Volksgeist Theory:
1.
Criticism by other proponents:
Professor Dias: He affirmed the validity to his concept of Volksgeist
but said that it is only applicable in certain contexts and not generally. He
saw it as a discovery, although it is evident that disagreements about various
matters occur even among close friends and family members, and the alleged
"spirit" does not exist.
The breadth of the Volksgeist concept is constrained. In contrast
to business law, family law emphasizes this more.
Criticism by Roscoe Pound: Pound noted that no judicial system would want
to uphold the common wrongdoings and primitive traditions just because people
are used to them. Similarly, he criticized that there is no option or scope of
sudden law.
Criticism by Henry Maine: As Sir Henry Maine correctly noted, a
progressive society must constantly modify the law to consider new social and
economic circumstances, and legislation has shown to be a crucial tool for
achieving this goal in the contemporary era.
2.
Criticism of theory:
Volksgeist is not always the law: In his opinion, customs
are always determined by public consciousness which is unacceptable on all
grounds. Such as bonded labor, slavery, etc. If all the customs began to be
authorized as law, then there will be no option for amendment and other
forbidden customs will also be the law.
Inconsistency in this theory: Savigny's intrinsic inconsistency has been
brought out. He was an advocate of legal nationalism. Impliedly it can be
assumed that, as a German, the German customs should form the foundation of the
legal system of Germany. Ironically, though, he suggested that Germans adopt a
more sophisticated version of Roman law. Rome and Germany was by no means the
same thing, so this went completely against the intentions and goals of the
Volksgeist. The antiquated nature of Savigny's support is starkly apparent.
This is due to the mutual interdependence in our global community, which allows
nations to freely incorporate foreign laws into their judicial systems in
accordance with demands.
Therefore, an anomaly exists in Volksgeist's hypothesis.
Did not recognize the existence of international law: According to his
opinion, laws vary from country to country. Furthermore, laws do not have
universal applicability. However, laws that are inherent in nature, like
natural justice, will apply globally. Additionally, the Volksgeist-based
legislation cannot be the same for the entire country because societies'
cultures differ. He made the case that all societies' cultures can evolve and
change through the same processes. That is not applicable at all.
For example, if any country does not recognize any international
laws or treaties, they will become bottled in their own territory, have no
connection with another country’s economy, politics or other subjects. After
that if any issue or conflict arises with another country there will be no law
to solve the issue.
No concept of sanction: The means by which we impose social control are
known as social sanctions. Consider them as the incentives and sanctions that
society uses to ensure that individuals follow our rules and conventions. In
volksgeist theory, there is no concept of sanction. Not all the people in a
society will abide by the law or will not violate any law. Besides, it's almost
impossible to have a society where there is no crime or criminals. According to
sociologists, penalties are kinds of social control that come from the outside
and are applied to us. So, sanctions are needed to keep harmony and shape a
society.
Not recognized the concept of codification: He rejected the notion
of codifying the law. He believed that the unintentional and organic
development of legislation is hampered by codification. The lawmakers are
arbitrary and violent, and they have the power to enact laws that undermine the
morality of the general populace. Because of this point of view, he opposed
codification, which would confine the evolution of law in a cage made of iron,
and he campaigned to ensure that the torrent of public ideas might flow freely,
"with pomp of waters withstood." For many years, Savigny's
anti-codification stance hindered the development of German law. Again, He
opposed codification of laws, which is one of the more widely accepted forms of
progressive modern law.
No recognition of case precedent and legislation: Savigny negated the
concept of case precedent. If we look at the progressive countries in the world,
we can see that heavily relies on the case precedent. In fact, where there is
no codification of law, there must be precedents and legislation. In addition,
Lord Lloyd expressed his opinion that Savigny underestimated the importance of
laws in contemporary society. His view overemphasized the unconscious force
that shaped national law while undervaluing the effectiveness of legislation
that results from deliberate, deliberate, and planned societal transformation.
This hypothesis is also strongly criticized because, aside from Bangladesh,
many other nations also establish laws in response to planned social changes
and timeliness. In contrast, Savigny had overestimated the effectiveness and
power of legislation and had faith in the ability of humankind to create laws
and amend them.
Customs not necessarily founded on popular consciousness: The theory's detractors
contend that customs might not always represent the Volksgeist in the strict
sense of the word. A lot of people believe that the Volksgeist is
fictitious, improvable, and not very useful for jurisprudential research.
Savigny may have won over like-minded people with his nationalistic mask, but
the core of his argument was his definition or description of the Volksgeist,
which he described as "a spiritual communion of people living together,
sensing a common language and acting a communal conscience."[1] This was in no place at
all.
For instance, finding that "communal conscience" would
be difficult in varied or pluralistic civilizations, like those found in much
of the world. It's possible that his idea was intended to be applied to
extremely homogeneous cultures, although he did not specify this. Again, there
are instances of customs that the powerful and influential in the community
first forced upon the populace.
Extreme theory: It seems like the law is extreme in this theory,
but standard law always goes through in the middle. In this theory, there
is no such scope of making sudden law or any kind of emergency law. But we know
that the world is rapidly changing, and various issues and things will arise by
the time. So, if there is any grave emergency like war or external aggression
or internal disturbance, then what will be the law for that society? It's not
possible to follow the same traditional customs. Regrettably, under Hitler's
rule in Germany, the National Socialists exploited the Volksgeist concept for
quite opposite ends, which resulted in the adoption of harsh legislation
targeting the Jewish community.
For example: North Korea is an extremist country where law is in
the hands of one man which is like a particular group of people's common
conscience.
Conclusion:
This school is based on
the customs and usages which were followed by the people from the time
immemorial. Savigny, a part of this school, believes that the origin of law
came from the general
consciousness of the people and disclosing their spirit. It evolves according
to customs, traditions, culture and the sentiments of the people. As a result,
in the modern era it faces so many criticisms.
In conclusion, this article reflects
my opinion towards the renowned Volksgeist theory.
Where I have focused on some criticisms along with other proponents since
nothing is beyond the scope of error.