volksgeist

Friedrich Carl von Savigny, founder of the historical school of jurisprudence, argued that law is not made arbitrarily by a legislator but grows from the Volksgeist, like language and custom. Law is “found, not made”; legislation should only record what the people's consciousness has already accepted. On this ground he opposed a hasty codification of German law in 1814.

Critics point out that the Volksgeist is vague, that customs may be unjust (such as caste or untouchability practices), and that legislation often leads social change rather than following it. Puchta developed the idea further, and Henry Maine applied a comparative historical method.

Example

Savigny opposed codification because, in his view, law must grow from the Volksgeist and not be imposed by the legislature.

See also

historical school · custom · sources of law

Read more in the study notes

• Legal reasoning, the growth of law and the balance of stability and change (Judicial and Legislative Process)
• Law and public opinion (Judicial and Legislative Process)
• The historical school: Savigny, Puchta and Maine (Jurisprudence)
• Nature, functions and purpose of law (Jurisprudence)
• Law and social change: theories, models and the Indian experience (Law and Social Transformation in India)
• Family law, modernisation and social transformation (Law and Social Transformation in India)