Law as the Product of Tradition and Culture
Chapter Four
Syllabus topic 1, "Law and Social Change". The historical school, which is the answer against the instrumentalist thesis.
Pages 17 to 21 of 768
In one line
The historical school says that law is found, not made: it grows out of the shared life of a people, and a legislature that ignores that shared life produces a rule that will not take.
In the wording a student can write in an exam: the historical school of jurisprudence, whose principal exponent is Friedrich Carl von Savigny, holds that law is not the product of the arbitrary will of a legislator but the expression of the Volksgeist, the common consciousness or spirit of a people. Law develops as a language develops, silently and organically, through custom and popular acceptance; legislation and juristic writing merely give form to what already exists. Savigny opposed the codification of German law on that ground. Sir Henry Maine's comparative work supplied the historical method with its most famous generalisation, that the movement of progressive societies has hitherto been a movement from status to contract. The school is the standing objection to the instrumentalist view that a State can transform a society by statute.
Savigny's argument, stated properly
The occasion was a proposal to codify. After the Napoleonic wars, Thibaut argued that Germany should adopt a single civil code on the French model. Savigny answered in 1814 in a pamphlet on the vocation of the age for legislation and jurisprudence, and the answer became a school.
His first proposition is that law has a source outside the legislature. Law, he said, is like language, manners and constitution: it has no separate existence, but is a particular faculty and tendency of a people, bound together by a community of conviction and of a common origin.
His second is that this source is historical. Law grows with a people, strengthens with it, and dies when the people loses its nationality. It is not made at any moment by anybody's decision; it has a history, and the historical study of it is therefore the whole of jurisprudence.
His third is the practical conclusion. Because law is the expression of a people's conviction, a code imposed on a people whose conviction it does not express is not law but an imposition, and it will fail. Codification should wait until jurists have understood what the law of a people actually is.
The word to remember is Volksgeist. It means the spirit of the people, the shared and mostly unspoken sense of what is right that a community carries. In Savigny's system the Volksgeist is the source of law and the jurist is only its interpreter.
Maine, and status to contract
Sir Henry Maine was Law Member of the Viceroy's Council in India between 1862 and 1869, and his Ancient Law of 1861 is the historical method applied comparatively. He examined Roman law, Hindu law and early Irish and Germanic law together, which is why he matters in an Indian paper.
Law as the Product of Tradition and Culture
His famous generalisation is that the movement of progressive societies has hitherto been a movement from status to contract. In an early society a person's rights and duties are fixed by the group they are born into: their family, their caste, their sex, their age. In a developed society those rights and duties come increasingly from agreements the person has made.
Take the sentence apart before using it. "Status" means a legal position a person holds by birth or by membership, which they did not choose and cannot renounce. "Contract" means a legal position they created by their own agreement. Maine is describing a direction of travel, not a completed journey, and he says "progressive societies" because he thought most societies had not moved at all.
Why an Indian student should be careful with it. Maine wrote as a colonial administrator, and the generalisation was used to justify a great deal. It is still the most useful single sentence in this paper for describing what the Hindu Code Bills, the labour legislation and the reservation provisions were trying to do: move a person's legal position off their birth.
The school's other members, briefly
Sir Henry Maine belongs to the comparative wing. Savigny's own followers, especially Puchta, made the Volksgeist doctrine more rigid than Savigny had left it.
Eugen Ehrlich took the argument further and is worth a sentence here. He distinguished the law of the State from the "living law", the norms that actually govern conduct in the associations people belong to, and said that the centre of gravity of legal development lies not in legislation nor in juristic science nor in judicial decision but in society itself. He is dealt with again in [Bentham, Marx and Ehrlich: The Other Answers].
Where the school is right about India
Personal law is Volksgeist in statutory form. The rules governing marriage, succession and adoption for a Hindu came from smritis, from commentaries such as the Mitakshara and the Dayabhaga, and from the custom of particular regions and communities. No legislature invented them; the Hindu Code Bills of the 1950s reformed something that already existed.
Custom is recognised as a source by the statutes themselves. The Hindu Marriage Act 1955, section 3(a), defines "custom" and "usage" as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided that it is certain and not unreasonable or opposed to public policy, and that where it applies only to a family it has not been discontinued by the family. Section 7 makes a Hindu marriage solemnisable in accordance with the customary rites and ceremonies of either party. The chapter on [Custom as a Source of Law] works this out.
Law as the Product of Tradition and Culture
The Constitution itself protects some of it. Article 371A provides that no Act of Parliament in respect of the religious or social practices of the Nagas, Naga customary law and procedure, or the ownership and transfer of land and its resources, shall apply to Nagaland unless the Legislative Assembly of Nagaland so decides. Article 371G does the same for the Mizos. Those two articles are the historical school written into a modern constitution, and they are dealt with in [Legal Pluralism, and the Forums the State Did Not Create].
And the failures of transplanted law support Savigny. Provisions modelled on English or American statutes have repeatedly worked differently in India because the surrounding institutions were different, which is exactly his objection to codes imposed from outside.
Where the school is wrong about India, and it matters
Whose spirit is the Volksgeist? A society divided by caste, religion, language and sex does not have one common consciousness. What is presented as the spirit of a people is very often the conviction of the group in that society which is able to speak for it.
On the historical school's own logic, untouchability was law. It was ancient, continuous, uniformly observed and carried the force of law in the community. If custom is the test, article 17 is an imposition. The Constitution decided otherwise, and that decision is the whole of this paper.
The school explains stability and cannot explain change. If law expresses a people's conviction, a change in the law needs a prior change in the conviction, and the historical school has no account of where the first change comes from.
And it makes reform look like violence. Every reform statute in this book, from the prohibition of sati to the criminalisation of triple talaq, is an interference with a tradition. The historical school gives their opponents their best argument, which is why a student who can state that argument properly can answer the reform questions much better than one who cannot.
A worked example
Take the abolition of a practice by statute in a village of five thousand people. The practice is old, everybody knows the rules of it, and disputes about it are settled by elders whose decisions are obeyed.
Savigny's account. The rules are law in the only sense that matters, because they express what this community believes and they work. A statute from a distant capital, in a language most of the village does not read, enforced by an officer who visits twice a year, is not law; it is a command that may or may not be obeyed.
Law as the Product of Tradition and Culture
Pound's account, from the next chapters. The rules serve the interests of some members of the community at the expense of others, and those others have interests too. The statute is an attempt to weigh both sets of interests, and it comes from a body in which the losing side has a vote.
Ambedkar's account, which decides the Indian position. For the person at the bottom of that village, the elders are not a source of law but the source of the exclusion; a distant government at least does not live next door. The Constitution therefore takes the individual and not the village as its unit.
Notice that all three accounts are true descriptions of the same village. The essay MU wants is the one that sets them against each other and then says which the Constitution chose and why.
Distinctions worth keeping straight
| Historical school | Sociological school | |
|---|---|---|
| Principal name | Savigny, with Maine and Ehrlich | Roscoe Pound, with Ihering behind him |
| Source of law | The Volksgeist, custom, the past | The competing interests of the present |
| The legislator | An interpreter of what already exists | An engineer choosing between claims |
| Attitude to a code | Premature until jurists understand the people | The ordinary instrument of policy |
| What it explains well | Stability, personal law, why transplants fail | Reform, and why law changes when society does |
| What it explains badly | Change, and whose spirit is being expressed | Continuity, and why some laws never take |
What this does NOT mean
It does not mean the historical school defends every tradition. Savigny was making a claim about the source of law, not a claim that whatever is old is good.
It does not mean tradition and legislation are alternatives in India. Every personal-law statute in this book is legislation working on tradition, and the interesting question is always how much of the tradition it kept.
And it does not mean "law is the product of tradition and culture" is a complete answer to MU's question. The question in the 77232 paper adds "critically evaluate the role of Law in transformation of the society meeting the ever-changing needs of society", which asks for both this chapter and the two before it.
Quick revision
Savigny, 1814, against Thibaut's proposal to codify: law is the expression of the Volksgeist, grows like a language, and cannot be imposed. Puchta hardened it; Maine supplied the comparative method and the movement from status to contract; Ehrlich supplied the living law. In India: personal law, section 3(a) and section 7 of the Hindu Marriage Act, and articles 371A and 371G. Against it: a divided society has no single spirit, untouchability satisfies every test of custom, and the school cannot explain change. The Constitution chose the individual over the community as its unit, which is Ambedkar's answer to Savigny.
Law as the Product of Tradition and Culture
Test yourself
1. What is the Volksgeist, and what follows from it? The common consciousness or spirit of a people, which Savigny treated as the source of law. It follows that law is found rather than made, that it grows organically like a language, and that a code imposed on a people whose convictions it does not express will fail.
2. State Maine's proposition and define both of its terms. That the movement of progressive societies has hitherto been a movement from status to contract. Status is a legal position held by birth or membership, unchosen and unrenounceable. Contract is a legal position created by the person's own agreement.
3. Give two places where Indian law recognises the historical school. Section 3(a) of the Hindu Marriage Act 1955, which gives a continuously and uniformly observed rule the force of law if it is certain, not unreasonable and not opposed to public policy; and articles 371A and 371G, which exclude Parliament's laws on Naga and Mizo customary law and social practices unless the State Assembly resolves otherwise.
4. What is the strongest objection to the historical school, put in Indian terms? That untouchability satisfies every test the school applies to a custom: ancient, continuous, uniformly observed and locally binding. If custom is the source of law, the school has no ground on which to condemn it, and article 17 becomes an imposition rather than a correction.
5. How would you use both schools in one answer? State the historical thesis and its Indian evidence; state the instrumentalist thesis and its Indian evidence; show that they describe the same institution from different positions within it; and conclude with the constitutional choice, which is that the Preamble treats the social order as something to be secured rather than described.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.