CONTEMPORARY SIGNIFICANCE OF KARL SAVIGNY

Hemant Kothari31-2011

Law grows with the growth and strengthens with the strength of the people and finally

dies as the nation loses its nationality.

Summary of Savigny’s Theory of LawUnconscious and organic growth, like

languagePeculiar, not universalVolksgeist: Spirit of the peopleCustom, as a source of law, superior to

legislation.Develops with society and dies with societyBinding by social pressure

Emphasis of the Research PaperEvolution of the Indian Legal System vis-à-vis

Savigny’s Theory of Law.Sources of Law in Indian Legal System and

Savigny’s Conception of Law: A Comparative Study

Savigny’s Theory of Reception of LawLaw has its historic roots embedded in the

hearts of the people.Law is found on the traditions of a particular

community or society.Thus, law can not be implanted from an alien

or foreign origin.Law is analogical to immunologically weak

body.Alien legal system can not be implanted

unless the receiving nation is politically mature and developed.

Evolution of Indian Legal SystemFrom the ancient times, India had its peculiar

common consciousness of the people.India, under the subjugation of foreign rule

for around 800 years, has absorbed many alien legal system in her mainstream, like- Islamic legal system, English legal system etc.

Absorption of these legal system, without harming the ancient legal system of India, contradicts the theory of reception.

Legislation: Savigny’s ViewSavigny was not against legislation but he

emphasized that legislation should encompass people’s will and consciousness.

The role of legislation is limited to the extent of giving standard form to the prevailing consciouness of the people.

Armed Forces Special Powers Act 1958Preventive Detention Act 1950

Judicial PrecedentsAccording to Savigny, judicial precedents are

not regarded as source of law, it is merely evidence of existence of customary law.

According to Pound, Savigny encouraged ‘juristic pessimism’. Jurists can not envisage new law.

Contradictory position in IndiaIn India, they are widely accepted source of

law by virtue of article 13, 141, etc.Keshawanad Bharti v. State of KeralaMohd. Ahmed Khan v. Shah Bano Begum and

Ors

CustomsAccording to Savigny, custom is the

manifestation of the common consciousness of the people.

Savigny asserted that the custom is the ultimate source of law and all other sources like legislation are incidental to it.

Legislation is valid to the extent it is consistent with the customs of the society.

Present positionCustoms are valid to the extent they are not

in contravention to the legislations. Collector of Madurai v. Moottoo RamalingaContradictory position in Mohd. Ahmed Khan

v. Shah Bano Begum and OrsIncorporation of Customs in the legislations:

The Muslim Women (Protection of Rights on Divorce) Act 1986

Hindu Marriage Act 1955Indian Contract Act 1872

ConclusionUniversality of law can not be denied in light of the

policies like globalization, international cooperation, etc.

Role of Judicial precedents, legislations and judicial activism can not be neglected because of growing reliance of the Indian legal system on these as sources of law.

Customs can be regarded as common consciousness of the people and an important source of law but they can not be termed as ultimate source of law.SlaverySatiChild Marriage

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