Ancient Indian Jurisprudence in Mahabharata and It’s

relevance in contemporary Times: A critical Analysis

Project Submitted on Jurisprudence-I

Submitted To:

Dr. Kaumudhi Challa

Assistant Professor of law

(Faculty of Jurisprudence)

Submitted By:

Shantanu Vaishna

Roll No. 142, Semester V, Section B

B.A. LL.B (Hons.)

Submitted On:

03-09-2019
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HIDAYATULLAH NATIONAL LAW UNIVERSITY NAVA RAIPUR ATAL

NAGAR, C.G
 I

DECLARATION
I, Shantanu Vaishnav hereby declare that this project on topic ‘Ancient Indian Jurisprudence in
Mahabharata and It’s relevance in contemporary Times: A critical Analysis is purely my original
work and the all the works included in this project are adequately cited and referenced to original
source.

Shantanu Vaishnav

Semester V, Section B

B.A. LL.B.

Roll No. 142

 II

ACKNOWLEDGEMENTS
The Practical realisation of this project is obligated assistance of many persons. I expressly pay
my deepest gratitude to Mohd. Atif Khan for his consistent supervision and guidance throughout
the completion of whole project.

I am also thankful to University and Vice Chancellor for providing extensive resources in library
and through internet. I would be grateful to receive comments and suggestions to further improve
this project report.

Shantanu Vaishnav

Semester V, Section B

B.A. LL.B.

Roll No. 142

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Table of Contents

List of Abbreviation ........................................................................................................................ 1

List of Statues ................................................................................................................................. 1

List of Cases .................................................................................................................................... 1

Introduction ..................................................................................................................................... 2

Research Objectives ........................................................................................................................ 3

Literature Review............................................................................................................................ 3

Hypothesis....................................................................................................................................... 5

Research Questions ......................................................................................................................... 5

Research Methodology ................................................................................................................... 5

Sources of Data ............................................................................................................................... 5

Chapterisation ................................................................................................................................. 5

Mode of Citation ............................................................................................................................. 6

Scope and Limitation ...................................................................................................................... 6

Research Methodology ................................................................................................................... 6

Chapter 1 : F.K. Von Savigny (1779-1861) .................................................................................... 7

Chapter 2: Savigny and Historical School of Law.......................................................................... 9

Chapter 3 : Volksgeist ................................................................................................................... 11

Chapter 4: Volksgeist: Utility in present Indian system ............................................................... 14

Conclusion .................................................................................................................................... 17

Bibliography ................................................................................................................................. 18

Books......................................................................................................................................... 18
 IV

Journals...................................................................................................................................... 18

Statute & Cases ......................................................................................................................... 18

Other .......................................................................................................................................... 18
 1

List of Abbreviation
& And

Am. J. Juris. The American Journal of Jurispriudence

Cr. Criminal

Ed. Edition

Id. Ibid

Mar. L. R. Marquette Law Review

No. Number

Trans. Translation

UOI Union of India

v. Verses

WP Writ Petition

List of Statues
1. Gold (Control) Act 1968, No. 45, Acts of Parliament, 1968 (India)
2. The Hindu Marriage Act 1955, No. 25, Acts of Parliament, 1955(India)

List of Cases
1. Navtej Singh Johar v. UOI, WP(Crl.)No.76/2016
 2

Introduction

Friedrick Karl von Savigny born in 1779 is a great German Jurist and remembered as head of
Historical School of Jurisprudence and also as one of the early member of this school which
flourished under him during first half of 19th century. Sometimes also referred as ‘Darwinian
before Darwin’, Savigny is influential legal scholar who traces the evolution of modern laws on
the basis of past human experiences.

Savigny introduced a new dimension in legal arena, through his concept of ‘Volksgeist’ which
according to him mean ‘spirit of the people’, general will of the people which formed through
the journey of evolution of people in society, the past experiences, traditions, belief and needs of
the people. Savigny consider this ‘Volksgeist’ as main principle for law making. According to
him law for any nation or state, should not be made by the arbitrary will of few people, it is not
an abstract set of rules but part of the society which develop along with the development of other
attributes of human society.

The modern legal systems around the world, contain bunch of people making laws for whole
society and India is no difference, with the development in legal field and rising importance of
the codification in modern legal society it is important to see whether the concept of spirit of
people as a law i.e. Savigny’s Volksgeist is still relevant in India on not, the project works try to
analyse some activity in Indian legal system to reflect the concept of Volksgeist seen through the
glasses of Indian society and whether it is needed in present society.
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Research Objectives
1. To understand Savigny views on historical school of jurisprudence

2. To understand Savingy’s concept of volksgeist

3. To study present Indian legal system with Volksgeist perspective.

Literature Review
LLOYD’s Introduction to Jurisprudence edited by Michael Freeman FBA

LLOYD’s Introduction to Jurisprudence is one of leading textbook on jurisprudence around the

world. It enable to develop good understanding of theory of jurisprudence originating by
different jurists and different schools of law. It contain extract of original text of the jurist which
provide better view to understand their point. Similarly, original text of Savigny helped
tremendously for fulfilment of this project.

Lloyd’s Introduction to Jurisprudence offer both text and library, enabling students to find,
comprehend and evaluate the core materials, classical and contemporary, in one of most difficult
but exciting of disciplines.

Jurisprudence & Legal Theory by V.D. Mahajan

The work, Jurisprudence and Legal theory by V.D. Mahajan is an attempt to explain complex
jurisprudence theory in simple understanding manner. The book is complete with full critical
analysis of the subject containing various views of the distinguished jurist arranged under
appropriate heads on all basic concepts which underlie most systems of law. It is a detailed
analytical work on the subject giving due consideration to recent developments and latest
research in the field.

Savigny: German Lawgiver by Luis Kuther

Luis Kuther paper give detailed analysis of Savigny’s early life and its works, he put lights on
the background of Savigny life and events surrounded it which result to formation of historical
school of jurisprudence. Savigny’s evolvement of Volksgeist and its counter to natural law
 4

school is understood through Luis Kuther work. In the end paper also discuss Savigny’s
alignment towards Roman School of law. Luis Kuther work is great way to understand Savigny’s
philosophy of law.

On the Historical School of Jurisprudence by Robert E. Rodes Jr.

Robert E. Rodes Jr. On his ‘On the Historical School of jurisprudence’ published in The
American Journal of Jurisprudence tries to explain different facet of Historical school and its
short fallings and counter arguments between different jurists regarding their philosophy.
Savigny as one of the early pioneer of Historical school found great place of discussion in Rodes
‘s paper. Savigny’s idea of Volksgeiest also discussed with great enthusiasm. Savigny’s thoughts
about historical school and its basic tenets are also discussed in Rodes work.

Basic Concept of Savigny’s Volksgeist by Neetij Rai

Savigny, a prominent German Jurist through his concept of volksgeist introduced a new
dimension in the legal arena. Savigny, also know as the pioneer of Historical school of law
through his concept of Volksgeist explains the need to understand the inter relationship between
law and people. Law and people cannot be isolated from each other and this is well explained by
Savigny’s concept of Volksgeist. This article aims to analyze the concept of Volksgeist and the
historical school of law. It provide quite simple understanding of Volksgeist and Savigny’s ideas
in easy language.

Savigny and The Historical school of Law by Hermann Kantorowicz

Hermann Kantorowicz explained his admiration towards Savigny and Savigny impact on
German politics in 19th century. The events are discussed greatly to analyze the formation of
Historical School by Savigny. Savigny works found detailed account on Hermann paper and
Savigny is also compared with different historical school jurist. Germany social condition is also
taken in background to understand Savigny work with proper context. Savigny first publication
‘Vom Beruf’ is properly explained to futher explain Savigny’s ideas.
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Hypothesis
Savigny’s introduced the concept of Volksgeist where he means that each law is made according
to the spirit of the people and this spirit is evolve through people past experiences, but in the age
of modern parliament or cabinet systems, the authority is move to few people regarding law
making power and this raise question whether Volksgeist still play role in law making, it can be
said that yes, Volksgeist still is a important factor regarding law making process especially in
democratic countries where people play significant role to form government and their views are
expected to reflect on law.

Research Questions
1. What are Savigny views on historical school of jurisprudence ?

2. What is Savingy’s concept of volksgeist ?

3. What is utility of Volksgeist in present Indian legal system ?

Research Methodology
The Nature of study is descriptive in nature. The study is done with the help of secondary data.
The secondary information has been obtained from published sources such as books, journals,
websites, research works etc.

Sources of Data
Secondary source of data is used for the research.

Chapterisation
The project is divided into following chapters –

1. The first chapter deals about life of F.K. von Savigny and basic information related to works.

2. The second chapter provides historical school of jurisprudence on the Savigny’s perspective.
 6

3. The third chapter forms basic understanding of Savigny concept of Volksgeist.

4. The fourth chapter deals with utility of Volksgeist and understand its position in present Indian
legal system.

Mode of Citation
Bluebook 19th edition

Scope and Limitation

The project provide basic understanding of historical school of jurisprudence and his concept of
volksgeist, Savigny works and historical is not discussed exhaustively, while describing about
utility of Volksgeist in present scenario, the project is limited to only Indian legal system.

Research Methodology
The Nature of study is descriptive in nature. The study is done with the help of secondary data.
The secondary information has been obtained from published sources such as books, journals,
websites, research works etc.
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Chapter 1 : F.K. Von Savigny (1779-1861)

“Law...is first developed by custom and popular faith next by judicial decisions – everywhere,
therefore, by internal, silently operating power, not by the arbitrary will of a law giver”

- F.K. von Savingy

Savingy was born of French Protestant stock at Frankfurt-am-Main on February 21,1779. 1

Orphaned at 13, he came under the guardianship of M. De Neurath, who dominated his early
education. Neurath, a lawyer and imperial official, employed the stereotyped, catechistic method
to emerse his ward into the study of natural law of Wolff and Vattel, international law, and
Roman and German law.2 Savigny commenced his studies at the University of Marburg and
Gottingen. There he was not only exposed to orthodox education but also got taste of new
stirrings of historicism. His early teaching and writing would later be of a similar mix.3

Savigny joined University of Marburg, in 1800 where he teach criminal law, Roman Law,
property law and law of contracts. In 1810, he became professor at University of Berlin where
he spent most of his academic career until 1842. 4 During this period he acquired a lasting
veneration for Roman law, as this also reflected in his writings like Das Recht des Besitizes
(Law of Possesions), 1803, in which he traced the process by which original roman doctrines
has developed into doctrines and actions prevailing in contemporary Europe.5 He also published
The History of Roman Law in Middle Ages in Six Volumes during 1813-31 and System of
Modern Roman Law between 1840-19.

Savigny was also considered as pioneer of Historical School of Jurisprudence. The event which
immediately occasioned Savigny to move in the direction of Historical jurisprudence is
publication of Civillistesche Abhandlungen, 1814, 6 by Anton F.L. Thibaut, a professor of
Roman Law at Heidelberg. Under his book Professor Thibaut proposed that a single, unified

1
J.STONE, THE PROVINCE AND FUNCTION OF LAW 421-22 (1946)
2
Luis Kutner, Legal Philosphers :Savigny: German Lawgiver, 55(2) MAR. L. R.,280, 280(1972)
3
Id. At 280-281
4
Id. at 572
5
V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY 486 (5th ed. 2016)
6
Luis Kutner, Supra note 2 at 282
 8

code of laws for the German states be drafted by an inter-state committee of the laws. Indulging
in natural law, Thibaut assumed that such committee which have jurist and practitioners in it
would able to draw up a suitable code and this codification would revolutionize a legal sysem
overnight.7

Savigny rejection of natural law motivate him aand his followers to enter into this legal field and
by doing so they lead towards the foundation of historical school of jurisprudence. He oppose
Thibaut idea of codification in his monograph Vom Beruf unsrer Zeit fur Gestzegebung and
Rechtswissenschaft, where he oppose Thibaut idea of codification on the basis of natural law, he
purpose that Law is something that part of people’s experience and character and understood as
an aspect of their social life. He reject the idea that law was universal as natural law
philosophers would say, and consider legal system as part of the culture of the people. He also
oppose codification by declaring it premature. But it should be noted that he was not totally
against the codification but insisted to wait for proper time till which expert i.e. jurist, historian
etc. would discovered the law which reside in collective consciousness of the people.8

He was not against the reform but emphasise Historical research as necessary for understanding
and reform of existing law.9

7
Id. at 282
8
LLOYD, INTRODUCTION TO JURISPRUDENCE 913 (M.D.A. Freeman ed. 2014)
9
V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY 486 (5th ed. 2016)
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Chapter 2: Savigny and Historical School of Law

Historical school of law is interesting development, something that that develop to oppose the
whole idea of law as a fixed entity but rather a historical development by the common
consciousness of the people, and contents of any law depend on whole past of the nation
celebrated by their people as part of their identity and can’t be make or replace by an arbitrary
action.

The basic tenet of the school is that law in its essence is not something imposed on the
community from above or without, but is an inherent part of its ongoing life, an emanation of
spirit of people10. In later works Savigny use to define this spirit if people as ‘Volsgeist’ and
regarded it as a source of law.11

As nicely put up by Hermann Kantorwicz as “According to this school law is always connected
with develop of social life. It arises from silent, anonymous forces, which are not directed by
arbitrary and conscious intention, but operate in the way of customary law. Legislations
transcends the ability of young as well as of declining nations and nations in their prime neither
need nor care for legislation; only the writing down of the existing customary law or decisions
of the controversial questions, perhaps in the form of provisional decrees, or purely political
legislation should be permissible. History alone, Savigny declared, is the road to understanding
of our own conditions”.12

In the historical school, the law existed independent of State, it was created neither by nature nor
by nature’s God, but by national consciousness. In Vom Beruf unsrer Zeit Savigny emphasized
the historic-organic growth of law and its courts through the common, popular, ethical, legal
consciousness prevailing among the people.13 Savigny believed that law had its own history and
followed it own stages of growth.14 To Savigny, the internal history of law was history of legal
profession.15 And what was said to be true of the law was also true of the history of the law.16

10
Robert E. Rodes Jr., On the Historical School of Jurisprudence 49 AM. J. JURIS.165 .166 (2004)
11
1 FRIEDRICH KARL VON SAVIGNY, SYSTEM DES HEUTIGEN ROMISCHEN RECHTS, 14 (1840)
12
Hermann Kantorowicz, Savigny and the Historical School of Law, 53 L.Q. REV.326, 343(1937)
13
A. ROSS, ON LAW AND JUSTICE 345 (1959)
14
JEROME HALL, READING OF JURISPRUDENCE 87 (1938)
15
J. SHKLAR, LEGALISM 137-138,(1964)
16
Luis Kutner, Supra note 2 at 285
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One of the basic tenet of this school as develop by Savigny is the importance of Custom, as
according to him the law is develop through the basic ideals of customary habits and tradition
and rather customs are the true source of law, as all law directly derived from it.17

The Historical School of Jurisprudence as propounded by the Savigny can be easily understood.
It emphasizes on the historical development of the society as a development of law and law is a
part of culture of that society. Just like each society have it is own style of clothing, food,
traditions similarly, every society have its own distinct law. Legal enactment can nudge the
culture in one direction or another, if the culture rejects them firmly enough they will fail of
their purpose. 18 This statement shows the evolution of culture and with it evolution of law,
therefore it should be understood that the basic essence of law is its people, from which it
develop and it dies with its people.

17
Id. at 285
18
Robert E. Rodes Jr. Supra note 10 at 169
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Chapter 3 : Volksgeist
“In the earliest of times to which authentic history extends, the law will be found to have already
attained a fixed character, peculiar to the people, like their language, manners, and
constitutions. Nay, these phenomena have no separate existence, they are but he particular
faculties and tendencies of an individual people, inseparably united in nature, and only wearing
the semblance of distinct attributes to our view. That which binds them into one whole is the
common conviction of the people, the kindred consciousness of an inward necessity, excluding
all notion of an accidental and arbitrary origin.19”

– F.K. von Savigny

The whole idea of Savigny’s concept of Volksgeist is understood by his abovementioned words.
Volksgeist is a German term cannoting the productive principle of a spiritual or psychic
character operating in different national entities and manifesting itself language, folklore, mores
and legal order.20 It is described as a cultural trait that defines a particular type of human group.
For Savigny it means the spirit of the people, which is reflected in culture of the people and
therefore also in the laws of the people.

Savigny’s Volksgeist doctrine is first to recognize each particular nation as having a continuity
and uniqueness of experience all its own.21This experience leads towards the general conscience
of people of that particular society, and Savigny believes that law of that society should be
epitome of people’s consciences, and therefore it should be called as people’s law (Volksrecht).
Savigny’s Volksgeist emphasises law as an internal part of the society, it couldn’t be develop
through the arbitrary will of certain people rather through spirit of people living and working in
common in all individuals22i.e. Volksgeist. Savigny laid importance of people’s feeling of inner
necessity, according to him it that feeling which lead to origin of law rather than accident or
arbitrary human will.

19
F.K. VON SAVIGNY, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE 986 (Abraham
Hayward trans. 1831)
20
Volksgeist, JAHSONIC (Sept. 1, 2019, 19:25) http://www.jahsonic.com/Volksgeist.html
21
Luis Kutner, Supra note 2 at 284
22
F.K. VON SAVIGNY, SYSTEM OF MORDEN ROMAN LAW (W. Holloway trans. 1867)
 12

Savigny draws analogy with other peculiarities of people to make understandable development
of law, such as language or speech, the evolution of language is used to describe the evolution of
law within society, in a manner such that it became part of the society, represent that society,
working as a common in each individual and law is similarly develop like that within the society,
having its own legal habits which became part of that society or as said ‘represent the spirit of
the society’.

Savigny set this doctrine of Volsgeist to counter the two school of Jurisprudence, one is the
positive law school, or which treat law as a command; “ According to this theory, all law in its
concrete form, is founded upon the express enactments of the supreme power. Jurisprudence has
only the contents of the enactments for its object.”23 The other is universal legal principle of
natural law school; “ the conviction that there is a practical law of nature or reason, an ideal
legislation for all times and all circumstances, which we have only to discover to bring positive
law to permanent perfection.”24 Against both Savigny claims law of particular people emerges
from the historical experience of those people. It emerges also, if we are to take the Volkgeist
seriously, from unique spiritual qualities of that people – qualities originally formed, no doubt,
by their historical experience, but free standing at any given point of time.25

It should not be understood that when Savigny talks about historical experiences he was against
reforms, he always believe in the evolution of law, which evolved through and with society. As
the form however in which law lives in the common consciousness of a people is not that of
abstract rules but as the living intuition of the institutions of law in their organic connexion, so
that whenever necessity arise for the rule to be conceived in its logical form,26 Savingy always
says that Volksgeist is as organic as living organism or society, it grows with society, as
according to him Law evolve with of progress of life, it will develop itself by use and what
originally was present as a mere germ will by practice assume a definite shape to the
consciousness. 27 In this way the changing of law is generated independent of accident and
individual will by inner power and necessity. But the people experience in this natural process of
development, not merely a change in general, but it experiences it in a settled regular series of

23
Savigny Supra note19 at 22-23
24
Id. at 23
25
Robert E. Rodes Jr. Supra note 10 at 170
26
Savigny Supra note 22
27
Id.
 13

events and of these each has its peculiar relation to the expression of the spirit of the people in
which the law is generated.28

Therefore, his basic contention was that law should represent the general spirit or Volksgeist of
the people, he also assumed that it might be possible that the future development of law is
entirely different from existing law, it is so transformed that the existing law seems foreign and
alien to it, but it the way law evolves from thought and need of age.

Savigny importance to sprit of people in law also understood by his importance and respect to
particular form of law prevailing in particular society within a nation, according to him even
when the unity of the people are undoubted, within its limits are found inner circles which are
included in a special connexion side by side with the general union of the people, as cities,
villages, guilds, corporation etc. altogether form a popular division in this whole, and this inner
circle again have an special particular law side by side with the general law of the nation, which
by that particular law is on many side complete or altered.29

Savigny is portray as anti-codification, but he also admitted that there is always a requirement of
statutory legislation, according to him it was impossible to avoid some statutory legislation, but
said this should only be when higher political progress demanded a change in the law, or to
resolve doubts, or where a positive provision is required. 30 Scholars and legislators were not
expected to create a new law, their task was to organize and clarify something that already
existed, to make fuzzy distinctions sharp and vague boundary precise.31

28
Id.
29
Id.
30
LLOYD Supra note 8 at.916
31
Robert E. Rodes Jr. Supra note 10 at 166
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Chapter 4: Volksgeist: Utility in present Indian system

“For over a hundred year, distinguished jurists and judges in India have, basing themselves
upon theories of English common law and statues, evolved doctrines of their own suited to the
peculiar need and environment of India. So has been built up on the basis of the principle of
English law the fabric of modern Indian law which notwithstanding its foreign roots and origin
is unmistakably Indian in its outlook and operation” 32

– M.C. Setalvad

Indian jurisprudential system should classified in two groups, one that is prior British and other
when British became ruler of this land, the basis difference between two phases is importance
given to uniform codification of law, although their are historical proof that laws are codified in
pre-British era also, but legal system prevailing in British era actually leads towards the
development of current Indian legal system like from legal documentation to judicial
development. Therefore, it is sometimes argued that the present legal system is adaptation British
system and lack indigenous touch, but Setalvad abovementioned words are great example to
describe the development of Indian legal system, which is always Indian in its approach
respecting its social need, i.e. it Volksgeist.

The Supreme law of the country, i.e. the Constitution is also moulded in a way that shows the
care taken by law-makers to make law according to general consciousness of the people, for
example special provision given to some states to follow their customs as legal force, Article
244, 244A, 371A, fifth and sixth schedule. These provision provide special status to tribal areas
regarding autonomy in their administration to respect their customary law, some provision like
Article 371A is so strong that it provide no law of parliament interfere in respect of religious and
social practices of Nagas, Customary law of Nagas even administration of civil and criminal
justice involving decision according to Naga customary law, unless Nagaland Legislative
Assembly by resolution not decide. This type of provisions are especially made to respect
customary practices of people and taken as great example of Volksgiest or Savigny type of legal
system, where law is want spirit of people says.

32
M.C. SETALVAD, THE COMMON LAW IN INDIA 225 (1960)
 15

Even the formation of a democratic country and making a Republic Constitution can also be
taken as wonderful projection of people spirit and their indirectly involvement in Law making
process and can be put as their manifestation of law making body which represent their interest
and consciousness. Even, during process of law making in Parliament, the bill is also put to seek
public opinion through State agencies, so that law can fulfil the desire of the peoples. Some bill
for example Right to Information is drafted by the civil society groups, the Standing Committee
of the Parliament seeks advice from the stakeholders during legislative process, although this
things are not mandatory but usually done by Parliament to make law according to will of
people. Even if law is passed by the parliament if it is against the public will failed miserably,
like Gold (Control) Act, 196833 which prohibited people to own gold as bar and coins and never
supported by the common people, result into illegal sale of gold and finally the act got repealed
in 1990. This perfectly shows as an example of Savigny’s principle that a law cannot be formed
by arbitrary will of few people neglecting common consciousness of common people.

The personal laws in India, codified or non codified is hugely derived from the customs, laws
like Hindu Marriage Act, which are although codified contain essential customary provisions
like ‘Saptapadi’ until which marriage is not completed34. Hindu Succession Act is great example
of Savigny concept of evolution of law, and how law with time evolves and with the requirement
of inner necessity of the society transform itself, similar is the evolution of concept of
‘coparcener’, which means a heir of Hindu Joint family property, at first when Hindu Succession
Act enacted in 1956 it contain only male coparcener as the custom prevailing and with time as
society evolves it need to evolve and ‘daughter’ i.e. a female to considered as a coparcener after
amendment in 2005. Similar example is the decriminalization of sexual activity between person
of same sex, i.e. not be considered as unnatural sex as criminalized by the Section 377 of Indian
Penal Code, which punishes such carnal intercourse35. This also shows the gradual change in
general consciousness in the society, which completely swept the previous law and forms the
proper example of law as a Volksgeist.

However, the theory of volksgeist is always challenged when ever any questioned are raised
against customary practice or any legislation passed with hastiness, but still can be said that a

33
Gold (Control) Act 1968, No. 45, Acts of Parliament, 1968 (India)
34
The Hindu Marriage Act 1955, No. 25, Acts of Parliament, 1955(India)
35
Navtej Singh Johar v. UOI, WP(Crl.)No.76/2016
 16

general sign of protest is always seen when any law is made against the interest of people. In
Indian context Artcicle 44 of Constitution i.e. uniform civil code is great example to understand
this debate, how a provision that is added in 1950 over 70 years ago gradually finding its
acceptance and not converted into law. It should be made clear that Volksgeist cannot be
understood as synnomous of customs and tradition, Volksgeist can formed by deeply rooted
customs and traditions but Volksgeist evolve with society and as already discussed throughout
the paper that with the need of the society Volksgeist also change, therefore it is totally different
as source of law with compare to customs, and this argument by critics of Volksgeist should find
its place.

Therefore, even in the modern Indian legal system where law is made by the act of particular
peoples in the legislative body, i.e. Parliament, but the abovementioned examples clearly show
the importance of general people wills and belief and even when there is any hasty legislation
passed due to arbitrary will of some people, the law doesn’t stand long against public will, the
Volksgeist.
 17

Conclusion
To counter the argument of development of law through ‘nature’ and ‘reason’, Savigny
developed his own theory of legal development. Savigny is one earliest pioneer of historical
school of jurisprudence, he challenges the notion that law fixed universal entity and develop
from the nature, according to him law demonstrates the need of the society, it shows the general
consciousness of the society and develop with the society along with other social attributes of the
society, like language with develop with time and evolve through past experiences, changes its
shape when necessity demands and its present version showcases these historical experiences.
Savigny theory of legal development is similar this, a law or legal system develop with time and
need of that particular society that represent the spirit of people of that society.

Savigny called this ‘spirit of people’ as Volksgeist and consider it important source of law. Often
people confuse with Savigny theory as only limited to customs and traditions of society and
think that it is against the reformative system of law and modern codification, Savigny is no
where against and the reforms in legal system, but according to him law is reformed through
society and society is itself a organic being it is not rigid or fixed in nature rather dynamic and
changes with time and this is shown in legal system also, and therefore, it is also wrong to say
that his is against codification he argued that change should be done but when the society is
ready for such changes.

For any democratic legal system, the law denotes the choice of the people, as Abraham Lincoln
quoted, ‘it is by the people and for the people’ therefore every democratic nation contains certain
degree of Volksgeist in it and similarly India also have these features. Volksgeist also find it
place in legal development of India, parliament cannot make law by its arbitrary will these laws
have to be according to the need of the people, and any bad law which is made against the
interest of the people faced agitation by the people. Indian Constitution also contains provisions
to respect will of particular peoples and provide special provision to respect spirit of the people.
Thus, it can be concluded that the Volksgeist still plays a vital role in Indian law making system
in present times.
 18

Bibliography

Books
• A. Ross, On Law and Justice (1959)
• F.K. von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence
(Abraham Hayward trans. 1831)
• F.K. von Savigny, System of Morden Roman Law (W. Holloway trans. 1867)
• Friedrich Karl von Savigny, System des heutigen Romischen Rechts (1840)
• J. Shklar, Legalism (1964)
• J.Stone, The Province and Function of Law (1946)
• Jerome Hall, Reading of Jurisprudence (1938)
• Lloyd, Introduction to Jurisprudence (M.D.A. Freeman ed. 2014)
• M.C. Setalvad, The Common Law in India (1960)
• V.D. Mahajan, Jurisprudence & Legal Theory (5th ed. 2016)

Journals
• Hermann Kantorowicz, Savigny and the Historical School of Law, 53 L.Q. REV. (1937)
• Luis Kutner, Legal Philosphers :Savigny: German Lawgiver, 55(2) Mar. L. R. (1972)
• Neetij Rai, Basic Concept of Savigny’s Volksgeist, SSRN (2011)
• Robert E. Rodes Jr., On the Historical School of Jurisprudence 49 Am. J. Juris. (2004)

Statute & Cases

• Gold (Control) Act 1968, No. 45, Acts of Parliament, 1968 (India)
• Navtej Singh Johar v. UOI, WP(Crl.)No.76/2016

• The Hindu Marriage Act 1955, No. 25, Acts of Parliament, 1955(India)

Other
• Volksgeist, Jahsonic (Sept. 1, 2019, 19:25) http://www.jahsonic.com/Volksgeist.html