Savigny was born at Frankfurt, of a family recorded in the history of Lorraine , deriving its name

from the castle of Savigny near Charmes in the valley of the Moselle . Left an orphan at the age
of 13, Savigny was brought up by a guardian until, in 1795, he entered the University of Marburg
, where, though in poor health, he studied under Professors Anton Bauer and Philipp Friedrich
Weiss , the former a pioneer in the reform of the German criminal law, the latter distinguished for
his knowledge of medieval jurisprudence.

According to Savigny, ‘Law was not something that should be made arbitrarily and deliberately
by a lawmaker’.1It was a product of “internal, silently-operating forces.”

Savigny’s contribution to the development of historical score may briefly be enumerated as

follows :—

1. Law develops like language-

Savigny remarked that law has a national character and it develops like language and binds
people into one whole because of their common faiths, beliefs and convictions. He pointed out
that law grows, with the growth of the society and gains its strength from the society itself and
finally it withers away as the nation loses its. nationality. Law, language, customs and
government have no separate existence from the people who follow them. Common conviction
of the people makes all these as a single whole. The central theme of Savigny’s historical
jurisprudence may be summarized thus :—

“The organic evolution it fewvath the life, and inheritor of the people develops with the ages, and
in this it resembles language. As in the latter, there can be no instant of rest, there is always
movement, and development of law is governed by the same power of internal necessity as
simple phenomena. Law grows with nation, increases with it, and dies at its dissolution and is a
characteristic of it”. [Quoted from Savigny’s essay ‘Vom Beruf]

1
See, Bodenheimer, Supra note 16 at p 71.
2. Early development of law is spontaneous ;

Later on jurists develop it-Savigny stated that in the earliest stages, law develops spontaneously
according to the internal needs of the community but after the community reaches a certain level
or civilization, the different kinds of national activities, hitherto developing as a whole, bifurcate
in different branches to be taken up for further study by specialists such as jurists, linguists,
anthropologists, scientists etc. Law has to play a dual role, namely, as a regulator of general
national life and as a distinct discipline for study. The former may be called the political element
of law while the latter as a juristic element but both have a significant role in the development of
law. The history of Roman law furnishes the best illustration of these processes. At its earliest
stage, it was founded. on, general consciousness of the people but as it grew and developed, it
assumed the complex and technical form of law of edicts.

3. Opposed codification of German law—

As a matter of fact, savigny was not totally against codification of laws. He, however opposed
the codification of the German law on the French (Napoleonic Code) pattern at that time because
Germany was then divided into several smaller states and its law was primitive, immature and
lacked uniformity. He opined that German law could be codified at a later stage when the
unification of Germany takes place and there is one law and one language throughout the
country. Since Volksgeist i.e. common consciousness; had not adequately developed at that time,
therefore codification would have hindered the evolution and growth of law. He emphasized that
codification of German law without having jurists of sufficient genius and adequate expertise in
Roman law would not serve the desired purpose as Roman law formed an integral part of the
German legal system. He considered lawyers and jurists as true representatives of the popular
consciousness rather than the legislators whose role is limited to law-making only.

4. Law is a continuous and unbreakable process.

Tracing the evolution of law from Volksgeist, namely, people’s spirit or consciousness. Savigny
considered its growth as a continuous and unbreakable process bound by common cultural
traditions and beliefs. It has its roots in the historical processes which should constitute the
subject of study for the jurists. According to him codification of law may hamper its continuous
growth and, therefore, it should be restored to when the legal system has fully developed and
established.

5. Admiration for Roman Law—

While emphasising Volksgeist i.e. people’s spirit or as the essence of law, Savigny justified
adoption of Roman law in the texture of German law which was more or less diffused in it. He,
therefore located Volksgeist in the Romanised German customary law. He considered Roman
law as an inevitable tool for the development of unified system of law in Germany.

Savigny’s admiration for Roman law was, however, criticized by Professor Eichhorn who was
his comparer Professor in the University of Berlin. He wondered how a foreign law could be a
true Volksgeist (popular will) of the German people. Prof. Eichhorn was totally against Roman
law and wanted German law to be relieved from its influence. On the other hand, Savigny and
his followers were opposed to the expulsion of Roman law from Germany. Thus there was a
conflict between the so called Romanist and the Germanists, the former supporting the retention
of Roman law while the latter advocating its expulsion from the German law. The rift between
the two could be resolved by the final German law draft of 1990 which was a combination of
both German law and the Roman law.

The main tenets of Savigny’s theory can be summarized as follows :—

(1) Law has an unconscious organic growth, it is neither found nor artificially made.

(2) The basis of law is to be found in Volksgeist which means people’s Consciousness or will,
and consists of traditions, customs, habits, practices and beliefs of the people.

(3) Law is not universal in nature but like language, it varies with people, time and needs of the
community.

(4) Since law should always conform to popular consciousness i.e. Volksgeist, custom not only
precedes legislation but is superior to it. ”
(5) With the growing complexity of law, the popular conscious-ness is represented by lawyers
who are nothing but the mouth-piece of the popular consciousness. It is for this reason that
lawyers and jurists are more important than legislator in the process of development of a legal
system. [Freedmann : Legal Theory (5th Ed.) P. 21]

Sir Henry Maine:

Contribution of Sir Henry Maine (1822-1888)—Sir Henry Maine was a great ‘English’ Jurist who
presented a very balanced view of history. Savigny explained the relation between community and
the law whereas Maine went further and pointed out the link between the developments of both
and purged out many of the exaggerations which Savigny had made. Maine started his career as
Regius Professor of Civil Law in the University of Cambridge at in early age of twenty-five. He
was Law Member in the Council of the Governor General of India between 1861 and 1869. This
provided him an opportunity for the study of Indian Legal system. From 1869 to 1877 he occupied
the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. ‘Ancient
Law’, Village ‘Communities,’ Early History of Institutions’, ‘Dissertation on Early Law and
Customs’, are the important contributions made by him to legal thought and legal philosophy.

Most of the historical jurists of the Continent confined their studies only to Roman Law but Maine
studied the legal systems of various communities and by their analysis laid down a comprehensive
theory of the development of law. On the one hand, differing from Savigny, Maine recognized
legislation as a very potent source of law, and on the other hand, he avoided the excesses of
philosophical school of Germany.

Maine used the study of legal history mostly to understand the past and not to determine the future
course and standards, and in this field he made valuable contributions to legal theory Later
researches in anthropology have brought new facts into light which do not support Maine’s view
of the course of legal development but even then his work is creditable for his approach. Maine
made a comparative study of various legal systems and traced the course of their evolution.
According to him, law developed through the following ‘four stages’ i.e.,—

(i) Law made by the ruler under divine inspiration,

(ii) Customary Law.
(iii) Knowledge of law in the hands of priests,
(iv) Codification.
The societies which do not progress beyond the fourth stage are “static societies” (as Maine calls
them). The societies which go on developing their law by new methods are called progressive.
Progressive societies develop their laws through legal fiction, equity and legislation. As to the
legal conditions prevailing at the end of the general course of evolution, i.e., of static societies,
Maine calls them ‘status’ and ultimately he concluded that a progressive society moves “from the
status to contract”. Maine’s theory preaches a belief in progress and it contained the germs of
sociological approach. He inspired later Jurists like Maitland, Vinogradoff and Lord Bryce, who
applied historical and comparative method of the study of law.

Case Brief:
Case Title: Ass Kaur (Deceased) By L.Rs v Kartar Singh(Dead) By L.Rs. & Ors.
Case Citation: AIR 2007 SC 2369
Subject: Family & Personal; Land & Property; Women & Children

Brief Facts: Predecessor-in-title had two wives, namely, Sobhi and Raj Kaur who was originally
married to his brother Hira Singh - Predecessor-in-title married Raj Kaur on the death of brother
under the customary law - On Predecessor-in-title's death he was succeeded by his two wives and
two sons Inder Singh and Mehar Singh and daughter (plaintiff) - Inder Singh, Mehar Singh and
Sobhi, the first wife of Relu Singh and the mother of Mehar Singh and Inder Singh, died in the
year 1950 - Plaintiff, married daughter of the first wife of the predecessor-in-title, filed a suit for
partition claiming share in the family property - Defendant second wife of the predecessor-in-title
contended that she had contracted marriage with predecessor-in-title (who had already married)
and after the death of the sons of predecessor-in-title and his first wife, she had inherited. The
property in terms of rule of survivorship in accordance with the local custom - Defendant further
contended that since the defendant was having exclusive possession of the property, she became
the absolute owner after the 1956 Act coming into force - Trial Court held that the parties were
governed by the customary laws in the matter of inheritance and succession in terms whereof
defendant second wife succeeded to the estate of predecessor-in-title after the death of his first
wife and that her estate was enlarged into full ownership after coming into force of the 1956 Act.

ISSUES: Whether the second wife of predecessor-in-title was entitled to inherit the share of the
deceased sons born out of the wedlock of predecessor-in-title and his first wife?

HELD: Defendant, who was a widow of brother of predecessor-in-title, was married to another
brother (predecessor-in-title) just to safeguard the family property - Defendant, hence, succeeded
under the customary laws to her husband after the death of her co-widow - In that view of the
matter, if the daughters who were married were to be excluded by customary law, no exception
thereto could be taken - No merit in the appeal - Appeal dismissed.

CASES CITED 2 or 3 enough

Draw the diagram from safari.