INTRODUCTION
Volksgeist is a part of historical studies which law is defined as a product of times the germ if which like the germ of the state, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it. The Volksgeist theory was coined by Von Savigny (1778-1861) which the nature of any particular system if law was a reflection of the spirit of the people who evolved it. This was later characterized as the Volksgeist by Puchta, a disciple of Savigny.
LAW GROWS WITH THE GROWTH, AND STRENGTHEN WITH THE STRENGTH OF THE PEOPLE AND FINALLY, DIES AWAY AS THE NATION LOSSES ITS NATIONALITY
A nation and its state are as an organism which isborn, matures and declines and dies[1]. Law is a vital part of this organism. “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.” Nations and their law go through three developmental stages. At the outset of a nation there is a “political” element of law: there are principles of law which are not found in legislation but are part of “national convictions” (Volksglauben). These principles are part “implicitly present in formal symbolic transactions which command the high respect of the population, form a grammar of the legal system of a young nation, and constitute one of the system’s major characteristics.”[2] In its middle period, law retains this “political” element to which is added the “technical” element of juristic skill. This period is the apogee of the people’s legal culture and is the time when codification is feasible. It is desirable only so that the legal perfection of the period can be preserved for posterity. With the decline of a nation, law no longer has popular support and becomes the property of a clique of experts & in time even this skill decays. Ultimately, there is loss of national identity.
Law is a product of the general consciousness of the people and a manifestation of their spirit. Therefore, codification of law was not desirable for its smooth development. According to Savigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion rather than solving the problems because ‘law’ is not an artificial lifeless mechanical device. The origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist.
Law develops like language- it has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs and convictions. 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[3].
Early development of law is spontaneous; thereafter jurists develop it. In the earliest stages, law develops spontaneously according to the internal needs of the community but after the community reaches a certain level of 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 duel 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[4].
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. Law is a continuous and unbreakable process—Tracing the evolution of law from Volksgeist, namely, people’s spirit or consciousness. 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. Codification of law may hamper its continuous growth and therefore, it should be resorted to when the legal system has fully developed and established[5].
Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. It views law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities. It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial creation. Law is not an abstract set of rules imposed on society but has deep roots in social and economic factors and the attitude of its past and present members of the society. The essence of law is the acceptance, regulation and observance by the members of the society[6].
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