CHAPTER 2: THE HISTORY OF LEGAL THEORIES
Difference between Maine, Savigny and Volkgeist
Savigny
1. “historical movement viewed history as an aid
to understand any legal institution
Savigny viewed law as reflecting people’s
historical experience, culture and ‘spirit’.
2. The idea of the Origins of Law and the Growth
of Law and the Legal Systems
• Savigny stated that
“All law is originally formed in the ordinary
manner but not quite correct language”
• In other words, the law is first developed by
custom and popular faith, next by
jurisprudence
• Therefore, law is developed internally, not by
the arbitrary will of a lawgiver
*Law grows from custom
Maine
 Stresses on the importance of historical
development of man’s deep instincts, emotions
and habits
 human history is to provide proof of the
existence of stages in the evolution of law.
 Maine thus rejected theories of law based
upon ‘man’s rational nature’.
• Maine stated that the origins of law and its
growth can best be understood in form of
stages.
• Three distinct stages by Maine:
i. law as the personal commands and
judgments of patriarchal rulers
ii. law as custom upheld by judgments
iii. law as code.
Volkgeist
Ideas of Savigny on “volkgeist”:
• Carl Von Savigny was a Professor of law in the
University of Berlin. He lived during an era
dominated by the effects of the French
Revolution and the Napoleonic conquests.
The destruction of the French feudal order,
the spread of revolutionary idea and the
belief that ‘the general and legislative will’ of
the people was to be guided by reason,
produced by Savigny is a deep and abiding
hostility to the philosophy of the revolution.
• The concepts of liberty and equality were
rejected in Germany, where authority, tradition,
‘the creative spirit’ of the people’s folklore, were
stressed. Cosmopolitanism was rejected; the
creative role of ‘national character’ was
emphasised.
• Savigny argued that the origin and essence of
the law would be discovered by understanding
the people’s spirit – the Volkgeist
Idea of origins of law and its growth –
• a people’s laws embody ‘in the popular
genius’.
• Law and language evolve gradually and
reflecting a people’s evolving characteristics.
• Law and language are essentially non-static:
both flourish when the people flourish; both
die when the people loses its individuality.
• Savigny argued that no laws have universal
validity; they have application to specific
peoples only.
• Savigny is of view that law developed
uninterruptedly under the principle of
necessity but in a civilised society (a class of
people like jurists, judges and lawyers) start
fashioning it.
• Thus, the law becomes more complex and
technical.
• Savigny gives special significance to custom as
it grew naturally and necessarily with the life
of the people. Thus, he denigrates legislation
which is man-made and prefers customs to
legislation.
• the first stage involves law emerging from the
personal judgments and authoritarian commands
of patriarchal rulers. Who claimed that their
judgement was issued separately without any
reference to any principle. (Judgments preceded
rules: essentially the judge came before the law
maker.)
• Second stage begins when the epoch of kingly
rule ends (when royal power decays as a result of
weakening of belief in royalty). Thus, the era of
oligarchies emerges. Elites of a political, military
and religious nature appear and have control over
the law and its institutions. The law in this era is
based generally on customs upheld by judgments.
Maine refers this as ‘the epoch of customary law’,
where the oligarchies enjoy exclusive possession
of the principles used in the settling of disputes.
At this stage, law is largely unwritten; the
interpreters of the law enjoy monopolistic
powers of explanation. This epoch does not
endure; in particular, the spread of writing
prepares the ground for a transition to a third era.
• Third stage: known as the ‘era of the Codes’. The
Codes, such as the Roman Twelve Tables, and the
Solon’s Attic Code, were, in some cases a mere
statement of existing customs and, in other cases,
sets of rules which declared the law as it ought to
be.
• Savigny’s ideas on ‘volkgeist’ revolves around
the issue or argument that law is based on
common conviction of the people.
• Thus, law is considered by Savigny as a product
of the people’s life- as a manifestation of its
spirit. When people live together a spiritual
unity is visible which is expressed in language,
manner, mores and law. This unity is preserved
by tradition by successive generations.
• Savigny paid a lot of attention on the
‘volkgeist’ to trace the development of law.
He found that law is not the will of a
sovereign nor based on any divine or natural
law but it is traced in the life of the people. It
grew by ‘inner necessity’, which means that
there is no question of any person’s arbitrary
will involved in it.
• It emerged as a matter of necessity.
The three developmental stages of law:
(i) Political element- the principles of law which
are not found in legislation but are part of
national convictions
(ii) Technical element of juristic skills-
codification is feasible when juristic skill is well
developed
(iii) Loss of national identity.
• The principle advantage of codes
i. The codes state the law as it is. But the codes
marked an end to spontaneity in legal
development; henceforth the law would be
characterised by purpose. Changes in the law
would be effected deliberately, often out of a
conscious desire for improvements.
The law and its Relation to Mankind
Apart from the three stages in the development of
law, Maine argued that there was historical proof of
further progress in the development of the law
related to the nature of a given society.
• Two types of society
The stationary and the progressive.
A) Stationary society did not move beyond the
concept of code-based law. Reference to the code
decided all legal problems.
Savigny’s analysis of the ‘volkgeist’
• he argued that legislation will be effective only
when there is harmony with the people’s voice
and deep aspirations and when it reflects the
needs of the people. In other words, to Savigny
the ‘living law’ does not result from a
sovereign’s command it develop organically
from the ‘people’s spirit’. Thus, it is proven
that legislation will be effect only when it is
attuned to the voice and aspirations of the
people and when it reflects national needs.
• In addition Savigny emphasized that a law
which is in conformity with the needs of the
people, their requirements and spiritual
development, will be valuable. On the other
hand, a law which ignores the significance of
the people’s developmental stage will be
futile.

B) Progressive society possessed a dynamism which

expressed itself in modification of the law. The gap
between formal, rigid and legal doctrines was
narrowed significantly. The result was an expansion
of legal institutions and a refinement of legal
doctrine.

• Still looking at the progressive societies, Maine

discerned within the history of the progressive
societies a characteristic use of three agencies i.e.
legal fictions, equity and legislation
 i. Legal fictions- used to refer to suppositions or
assumptions of law that something which is, or
may be, false is true, or that some facts exists
when, in reality, it does not. Fictions are
designed to assist in overcoming the rigidities of
the law and to advance the ends of justice.
ii. Equity- is a rules co-existing with the original
law, with different principles and allowing it to
supersede the original law. Equity involves open
interference with original law, which separates
it from legal fictions. It differs from legislation
because its principles are often expressed in
terms of a ‘higher authoritativeness’. Equity
provides a more advanced state of thought than
that which created the legal fiction.
iii. Legislation- it is the final ‘ameliorating
instrumentality’ of the progressive societies in
their process of legal development. It involves
the enactments of a legislature (a parliamentary
assembly, for example) which is, according to
Maine, ‘the assumed organ of the entire
society’. Maine was not favourably disposed
towards ‘judicial legislation’ and thought that
judge-made law had serious weaknesses. Here,
then, is the ultimate stage in legal development
within the progressive societies. The order of
stages in legal development is invariable,
according to Maine, but he stressed that
legislation, in its final and highest form of
‘codification’, marked a peak of legal
achievement.
• Maine also argues that the movement of
progressive societies has been a movement from
Analysis (Kesimpulannya y’all)
According to Savigny, law was not something that
should be made arbitrarily and deliberately by a
lawmaker but law is a product of “internal, silently-
operating forces”. Its true sources are popular faith,
customs and “the common consciousness of the
people”. The concept of Volksgeist is in fact a much
needed element for the proper growth and
functioning of law. A law cannot be law unless
accepted by the people. Since law is always for the
betterment of the people hence it should also be
supported and accepted by them.
 Thus, Savigny suggest that the nature of
any particular system of law, was the
reflection of the “spirit of the people who
evolved it”.
 This was characterized as the Volksgeist
 Hence, in a simple term, Volksgeist means
the general or common consciousness or
the popular spirit of the people. Savigny
believed that law is the product of the
general consciousness of the people and a
manifestation of their spirit
 The essence of Savigny’s Volksgeist was
that a nation’s legal system is greatly
influenced by the historical culture and
traditions of the people and growth of law
is to be located in their popular
acceptance.
 status to contract. He interprets historical
development as showing a basic pattern in where
a man’s individual legal position is gradually
modified.
For example, in early times an individual’s
position in his social group remained fixed; it was
imposed without any reference to him and could
not be changed by his own efforts. A Roman slave
might be liberated from slavery by the efforts of
a free person; but eventually the fixed status of
the slave disappeared and he was able to deal
with others freely and reciprocally.

Critical Evaluation of the Theory: Maine Theories on Law:

• First, Savigny saw history as an aid to understanding of law. Thus, he
viewed law as reflecting people’s historical experience, culture and
‘spirit’. Ancient custom guides the law and not as a result of deliberate
decisions.
Law develops like language or manner of the people. Thus, the life of law
is connected with the life of the people.
• Second, Savigny suggests that historical research reveals that legislation
is important to custom in the development of law. The ‘living law’ does
not emerge from the commands of a Sovereign or the arbitrary will of a
legislator but it develop from the reasons, intuition, custom, instinct, etc.
‘Law comes from the people, not from the State’. Hence legislation will • According to Maine, the development of law involves three stages: first stage
be effective only when there is voice and aspirations of the people and
when it reflects national needs.
Henry Maine was a Professor of Civil Law at Oxford in 1847, a legal member of the
Viceroy’s Executive Council in India, VC of the Calcutta University in 1877 and the
Master of Trinity Hall. He passed away in 1888.
• Maine’s wide knowledge of early society leads him to reject theories of law
based upon ‘man’s rational nature’. He stresses the importance in historical
development of man’s deep instincts, emotions and habits, and interpret
human history as providing proof of the existence of stages in the evolution of
law. Maine argue that law can be understood in a slowly-evolving pattern of
growth. Maine adopted a systematic method of investigating early law and
embryonic legal systems.
(law as the personal commands and judgments of patriarchal rulers; second
stage (law as custom upheld by judgments); and third stage (law as code). He
had in mind a universal pattern of development.
• Third, as law becomes more technical due to civilisation, a division of
labour emerges: in matter concerning the law, the people will be
represented by lawyers- whose task is to enunciate and elaborate legal
principles in a formal style.
Savigny stated that the obligations and duties imposing on these lawyers
on respect for the property of others, for example, must be observed
strictly if the system is to be considered as having been ‘accepted’ by the
community. Also, obedience must be given by a large majority of citizens
as Obedience to the system’s rule of recognition is of great significance
in ‘testing the validity’ of a legal system. The rule must be understood
and obeyed.

• Fourth, Savigny suggests that as citizens, the community’s must show

obedience to the rules.
However, according to Hart, it is their attitude to the secondary rules
which is significant. Citizens must not only obey the rules, but must
‘collectively accept them’ In particular they must understand and accept
the importance of the rule of recognition as providing common
standards for the making and enunciation of judicial decisions.

• Fifth, Savigny rejects natural law and argues that history alone is the
road to the understanding of our own conditions. According to him, law
was part of the culture of the people.
From volkgeist; all law originated in custom. It was later that it was
created juristically. “Law grows with the growth, and strengthens with
the strength of the people, and finally dies away as the nation loses its
nationality”

• Sixth, he opposed codification of the law of Germany because the time

was not ripe and the code would merely fetter the development of the
law and ‘do violence to tradition’. He argued that the professional talent
is still not sufficient in Germany at that time to have codes. To Savigny,
codes are futile, crude or dangerous or all three. Legislation could be
 used to record established customary law and not from the princes.
Democrats were happy that law does not come from the princes but
from the people. Judges were happy that their discretion would not be
restricted to the mechanical application of a code.

• Seventh, Savigny stated that ‘legal history’ objective is to trace every

established system to its roots and discover an organic principle” He
grasped the important truth that law is an integral part of society

Criticism of Savigny’s Theory Criticism of Maine Theories of Law

(1) Critics see an inconsistency here because ‘Volkgeist’ theory should have 1) He may have oversimplified the early stages of society’s development. For
concerned itself with ancient Germanic law, rather than Roman law in example, the move from ‘charismatic judgment’ through ‘autocratic
the study of the needs of the German people in relation to law. Plus, interpretation’ to ‘code’ is doubted by a number of anthropologists.
Savigny’s insistence on the utilisation of Roman legal principles reflects
a desire to embrace the old authoritarian code. Hence, transplanting of 2) Recent investigation suggests that not all primitive people pass through the
Roman law in the climate of Europe nearly a thousand years later is stages suggested by Maine: some may ‘jump’ a stage. It may be that there is
inconsistent with Savigny’s idea. no universal pattern of legal development as he pictured in Ancient law and
that the evolutionary movement described in its pages may be true for
(2) There is an inconsistency in Savigny’s work as he did not oppose the work Europe and some parts of India, but not for all societies.
of Professor Eichorn who opposed Roman Law in Germany but he
opposed the expulsion of Roman Law in Germany. It would appear that 3) His methodology of enquiry has been dismissed as totally inadequate for the
alien races may affect the development of law as in Malaysia. task he set for himself. He is held to have gone beyond his data. The
evidence for some of his generalisations has been held to be inadequate, for
(3) Savigny did not describe his concept of Volk (i.e. ‘a people’) but only said example, that some of his illustrations derive from the evidence of epic
that it resembled a ‘spiritual communion’ of people living together, using poetry only.
a common language and creating a communal conscience and common
traditions. Thus, it is said as loose description, not proved and so little 4) The ‘status-to-contract theory’ has also attracted critical comment.
use in jurisprudential analysis. His concept of ‘communal conscience’ is Friedmann observes that the development of feudalism seems to indicate a
difficult to comprehend as question arise where is ‘communal move from contract to status. He notes, too, that there are modern
conscience’ when a nation is divided on some legal questions? In other tendencies to replace individual bargaining by collective group agreements,
words, some rules of customary law may not reflect the spirit of the and he points out the significance of the appearance of standardised
contracts.
 whole population. Savigny did not recognise “inner circles” within a
society.
Still on the above issue or point, Gray (American jurist) criticised Savigny
on how can law be ‘the product of the common consciousness’? For
example, By the law of Massachusetts, a contract by letter is not
complete until the answer of acceptance is received. By the law of New
York, it is complete when the answer is mailed. Thus, is the ‘common
consciousness’ of the people of Massachusetts different on this point
from that of the people of NY?

(4) Law has often been created in times as the result of pragmatic reaction
to immediate problems. Thus, the important rules of law sometimes
develop as the result of a conscious struggle between conflicting
interests within the nation e.g. trade union law, etc.

(5) Savigny exaggerated custom into a vital source of law as custom is often
of a local nature only and may effect relatively small sections of a
community. It may be unresponsive to changed conditions and, when
this occurs, has to be ignored or supplemented with formal legislation.
In other words, law itself is the moulder of custom rather than the
reverse.
(6) Hegel, a great philosopher and contemporary of Savigny, said that
Savigny underrated the significance of legislation and by rejecting
legislation and thus he had put on the nation and its jurists one of the
greatest insults that could be imagined. Legal history reveals, too, that
formal legislation has often become necessary when custom has failed
to respond novel conditions.
(7) Savigny seems to pay little attention to the law-making of judges who
are participating in the process of law-making as if they were legislators.
Hence, it is difficult to view judges acting as a mere organ of people’s
consciousness. Even Savigny recognises that the details of juristic
decisions are beyond the scope of the popular consciousness. How do
 we know whether they express it truly or not? What if the judges express
their own biases in the name of the people’s spirit?

(8) Next is on the highly-selective historical data on which he draws. His

attitude towards liberty and egalitarianism and his reactions as a
Prussian aristocrat to the events of the French Revolution, may have
prevented the adoption of the disinterested attitude which should
characterize a scholar’s work. The fact that he turned to the ancient
Roman law for guidance, rather than to the well-researched Roman
jurisprudence of the Middle Ages, has been attributed to his personal
preference for the severe authoritarianism which seemed to him to
typify Roman legal doctrine.

(9) Next, selectivity emerges from Savigny’s writings which suggest that the
law grows uniquely ‘within the Volk’. There was available to Savigny
considerable historical research indicating that law does not always
emerge from ‘popular conscience, awareness of nationhood and
common culture’. The ancient world, and Savigny’s own times, had
witnessed the transplanting of laws from one country to another.

• It must be noted that regardless of the criticisms above, we must •
acknowledge Savigny’s chief merit as he found a new path to the
development of law in opposition to natural law and positivism.
• For example, law is a reflection of social attitude and thus legislation
which is not rooted in people’s consciousness is doomed to fail.
• He also argued that codification should be preceded by an organic,
progressive, scientific study of the law. He grasped a valuable truth
about the nature of law i.e. it is an integral part of society.
Note: Criticisms of Maine should not be allowed to dim the overall
significance of his work. He was writing in the era of pre-scientific
anthropology when the very existence of the Palaeolithic Age was unknown.
It is, however, the general pattern of Maine’s studies which constitutes his
legacy for jurisprudence, continue to play a role in the work of jurists who
emphasise that the law does possess a history of its own.