Explain what Savigny meant when he stated, “Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.” (6 marks)
LAW531: Jurisprudence I. April 2005.
Savigny introduced the concept of volksgeist, or the spirit of the people. It is also interpreted as the common will of the people. He explains that there is a relationship between the law and the people; neither can be isolated from another.
Behind this theory is the idea that the laws of a society is an expression of the will of members of that society, and that the law does not come from the vacuum of deliberate legislation. Its development is heavily influenced by the consciousness of that nation. Furthermore, at volksgeist’s core is the legal system influenced by the historical culture and traditions of the people of that country. Its evolution and changes is based on the acceptance of that people.
According to Savigny, the law is the product of the people’s lives as they live in a particular society. It is influenced by the culture of that society. Over time, this culture would be codified or enacted. Therefore, to accurately understand the law, Savigny advocates for the understanding of the history of the people and society the law impacts.
Secondly, much like a people’s language, their laws will evolve. Not only does the law bind them, but the law may direct and influence the direction of their progression. Looking back at history, Savigny argued, it provides evidence that the law is developed according to the society’s pre-existing manner and approved by a national character.
Savigny’s proposition also indicates that the law is not static. Much like how a person’s spirit may evolve and grow, the law is continuous and sees an unbreakable process subjected to the common culture and beliefs. This continuous and regular process allows adoption by the people of the society.
There is a danger, that Savigny warns against, in that statement. The law of the nation dies away once the nation loses its nationality. This danger is manifested when laws are codified by arbitral legislation by the legislature and not grounded on historical knowledge. Resistance, or rejection, by the people is not ruled out; especially where the law is so alien from the customs and culture of the country. As cohesion between peoples of a nation grows stronger, the law will find itself strengthened. The acceptance seems to follow such acceptance. Like a cycle, it would come full circle when it strengthens the identity and customs of the people of that nation.
