Schools of Hindu Law: A Comparative Study

S.S. Jain Subodh Law College

Schools

of Hindu Law: A Comparative Study

Project Submission as the Partial Fulfillment of Periodic Evaluation

of Family Law

Submission To:

Submitted By:

Dr. Alpana Sharma

Prashant Kumar

FACULTY OF FAMILY LAW

Roll no:- 8
V Semester
S.S. Jain Subodh Law College

Schools of Hindu Law: A Comparative Study

TABLE OF CONTENTS

1. Acknowledgment........................................................................................... iii
2. Research Methodology..........................................................................

iv

3. Case list........................................................................................................ v
4. Abstract.................................................................................................

vii

5. Introduction................................................................................................... 1
6. The Concept of Best Judgement
Assessment..........................................................................................

7. The Basis for Best Judgement

assessment..............................................,..............

8. Key Aspects of Best Judgement

Assessment.........................................................................................

Conditions precedent are alternative and not cumulative...............................

Opportunity must be given to the assessee.....................................................

Assessment on rejection of account...............................................................

Reasonable nexus...........................................................................................

Sum payable as tax must be determined........................................................

Considerations in making Best Judgement assessment.................................

Assessment can be made even where return is incomplete, unsigned, or unverified

return.............................................................................................................

Best Judgement assessment can be made for non-compliance of notice under

section 142(1)/section 143(2)..........................................................................

Refusal of Chartered Accountant to undertake audit under section 142(2A) cannot

lead to best Judgement assessment................................................................

Power is not arbitrary...............................................................................

Remedies available assesee ......................................................................

9. Object of Best Judgement Assessment.................................................................

10. Conclusion & Suggestions.................................................................................
11. Bibliography.......................................................................................................

ii

Schools of Hindu Law: A Comparative Study

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Dr.
Alpana Sharma for inspiring me and guiding me during the course of this project work and
also for his cooperation and guidance from time to time during the course of this project work
on the topic.

Jaipur
15th August 2014

Prashant Kumar

iii

Schools of Hindu Law: A Comparative Study

RESEARCH METHODOLOGY
Aims and Objectives:
The aim of the project is to present a detailed study of the topic SCHOOLS

OF

HINDU

LAW: A COMPARATIVE STUDY forming a concrete informative capsule of the same with an
insight into its relevance in the Indian Society.

Research Plan
The researchers have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the
concept of Hindu Law, Different Schools of Hindu Law, Special attention is also provided on
Migration between Different Schools and lastly conclusion.
.
Sources of Data:
The following secondary sources of data have been used in the project

Case Study

Websites

Case Laws

Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily
analytical. The researcher has followed Uniform method of citation throughout the course of
this research project.

iv

Schools of Hindu Law: A Comparative Study

ABSTRACT
This project aims at introducing the Basic Comparative study of Schools of Hindu Law and
critically analyzing it. It deals with the application of this assessment in the present times and
the recent developments by the Indian judiciary with respect to this concept. Based on the
hypothesis that the judicial pronouncements can significantly improve the practice of best
judgment assessment by the taxing authorities, I will try to explore its potential in the
settlement of tax disputes. It will take a look on various externalities such as volume of
business, conduct of the dealer, past records and similar facts are conditions which are the
basis for a best judgment assessment in relation to the growing need for effective tax
management in 21st century. It also demonstrates that where, how and what kind of mistakes
have been done by the assessing officer while applying section 144 of IT act.

With the exceptions of the Hindus and the Muslims, the other communities have no school. In
the case of hindus , schools have some regional connotation, while it is not so in case of
muslims, it is as per sects.
Hindu law has two main schools: the Mitakshara School and Dayabhaga. The former has four
sub-schools: the Mithila, the Benares, the Bombay and the south India or the Dravida. The sub
schools prevail in their respective jurisdictions and some matters modify the Mitakshara law;
otherwise it is the Mitakshara law which prevails. The Dayabhaga school of Hindu law prevails
in the Bengal, Assam, Tripura, Manipur, Mizoram, Arunachal and Meghalaya. In rest of India, it
is the Mitakshara school which has its sway. The Mitakshara School prevails even in the
Dayabhaga jurisdiction on all those mattes on which Dayabhaga is silent.

Schools of Hindu Law: A Comparative Study

FRIEDRICH CARL VON SAVIGNY: A BIOGRAPHICAL INSIGHT

Friedrich Carl von Savigny (21 February 1779 25 October 1861) was a famous 19th-century
jurist and historian. 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.
After the fashion of German students, Savigny visited several universities, notably Jena,
Leipzig and Halle; and returning to Marburg, took his doctor's degree in 1800. At Marburg he
lectured as Privatdozent on criminal law and the Pandects. In 1803 Savigny published Das
Recht des Besitzes ("The law of possession"). Thibaut hailed it as a masterpiece which
brought the old uncritical study of Roman law to an end. In 1808 Savigny was appointed
ordinary professor of Roman law at Landshut. He remained in this position for a year and a
half. In 1810 he was appointed to the chair of Roman law at the new University of Berlin,
chiefly at the instance of Wilhelm von Humboldt. Savigny belongs to the historical school of
jurists, founded by Gustav Hugo, and served a role in its consolidation. The works for which
Savigny is best known are the Recht des Besitzes and the Beruf unserer Zeit fr
Gesetzgebung. According to Jhering "with the Recht des Besitzes the juridical method of the
Romans was regained, and modern jurisprudence born." It was seen as a great advance both
in results and method, and rendered obsolete a large body of literature.

vi

Schools of Hindu Law: A Comparative Study

SAVIGNYS VOLKSGEIST
Volksgeist (also Volksseele, Nationalgeist or Geist der Nation, Volkscharakter, and in English
national character) is a term connoting the productive principle of a spiritual or psychic
character operating in different national entities and manifesting itself in various creations like
language, folklore, mores, and legal order.
According to Savigny, the nature of any particular system of law, was the reflection of the
Spirit of the people who evolved it. This was later characterized as the Volksgeist by Puchta,
Savignys most devoted disciple.
Hence, in a simple term, Volksgeist means the general or common consciousness or the
popular spirit of the people. Savigny believed that law is the product of the general
consciousness of the people and a manifestation of their spirit. The basis of origin of law is to
be found in Volksgeist which means peoples consciousness or will and consists of traditions,
habits, practice and beliefs of the people. The concept of Volksgeist in German legal science
states that law can only be understood as a manifestation of the spirit and consciousness of
the German people.
Savigny rejected natural law. To him a legal system was part of the culture of the people. Law
was not the result of an arbitrary act of a legislator but developed as a response to the
impersonal powers to be found in the peoples national spirit. This Volksgeist a unique,
ultimate and often mystical reality1 was, Savigny believed, linked to the biological heritage of a
people.
Savigny successfully used his Volksgeist theory to reject the French Code and the move to
codification in Germany.2 As a result German law remained, until 1900, Roman law adapted to
German conditions with the injection of certain local ideas. But Savigny was not just a theorist.
As a historian he set himself the task of studying the course of development of Roman law
from ancient times till its existing state as the foundation of the civil law of contemporary
Europe.
1

Per Stone, op. cit, p. 102.

Savignys hostility was qualified rather than absolute. He believed, as against Thibaut, that attempts to codify were
premature, and would be an obstacle to the natural development of law through the Volksgeist. But codification would be
a proper course of action when experts (jurists, historians, linguists, and perhaps, judges) discovered, and were able to
announce, that law which resided in the collective consciousness. Codification was then desirable. Savigny, it should be
noted, was the Prussian Minister of Legislation. Hegel opposed customary unwritten law and his view on English common
law as an Augean stable resembles Benthams. Hegel asserted that English law needed a scientific remodelling and
codification. See Avineri, op.cit.y pp. 186, 210-215.
2

vii

Schools of Hindu Law: A Comparative Study

This led him to hypothesise that all law originated in custom and only much later was created
by juristic activity. He concedes that in the earliest time to which authentic history extends, the
law will be found to have already attained a fixed character, peculiar to the people, like their
language, manners, and constitution.3
Rather like Spengler4 a century later, Savigny sees a nation and its state as an organism
which is born, matures and declines and dies. 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 systems major characteristics.5 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 peoples
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.
VOLKSGEIST AS A SOURCE OF LAW
Savigny firmly believed that law is a product of the general consciousness of the people and a
manifestation of their spirit. Therefore, codification of German law was not desirable for its
smooth development at that time. This eventually delayed codification of German law for
another fifty years.
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.
Savignys contribution to the development of historical school may briefly be stated under the
following heads:3

Of the Vocation of Our Age for Legislation and Jurisprudence (1831) (transl, Haywood), p. 24.
The Decline of the West (1923) (transl. C.F. Atkinson, 1928).
5
L. Pospisil, Anthropology of Law(1971), p. 142.
4

viii

Schools of Hindu Law: A Comparative Study

1. Law develops like language- Savigny pointed out 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. According to him, 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.
2.

Early development of law is spontaneous; thereafter 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 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. 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.

Savigny was opposed to codification of German law.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 emphasised 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
at that time. 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, peoples spirit or consciousness. Savigny considered its growth as a

ix

Schools of Hindu Law: A Comparative Study

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 resorted to when the legal system has fully developed and established.
5.

Admiration for Roman Law.While emphasising Volksgeist i.e. peoples 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, located Volksgeist in the Romanised German customary
law and considered Roman law as an inevitable tool for the development of unified system of
law in Germany.
PROBLEMS WITH THE VOLKSGEIST
The writers of this persuasion seem to assume that every People" is in some way an
identifiable entity, with a corporate conviction or will of its own This approach later crystallized
in Gierke's theory of the real" personality of corporate bodies, and his desire to establish the
superiority of Germanic law, as against Roman law, in countenancing this view. 6 We are thus,
in the first place, required to accept that collective groups possess some kind of metaphysical
personality distinct from the members comprised in the group, a view which recalls the old
fallacy that words are names of things, and that there must be a distinct entity denoted by
every word.7 But, more than this, it is implied that the notion of a people is a perfectly definite
one that can be applied to specific groups which possess this mysterious collective
consciousness. This appears to postulate a degree of unity of thought and action in particular
nations, races, or the inhabitants of political units, of which there is little evidence in human
history. And it seems to ignore the role and effects of conquest by war; the position of
enslaved and servile populations; and the control of nations and empires by ruling minorities,
and the manner in which these latter may impose new patterns on their subjects (whether in
the spirit of a creative minority in Toynbees sense, or of a "power elite in that of Wright
Mills8 is immaterial). Nor does this theory deal adequately with the introduction of alien law and
custom by peaceful penetration, as in the case of a Western code being adopted in such a
country as modern Japan. Savigny was much exercised by the remarkable phenomenon of
the so-called "Reception of Roman Law into Germany in the sixteenth century, which he
regarded as the greatest and most remarkable action of a common customary law in the
6

From Das deutsche Genossenschaftsrecht, passim.

Cf. ante, 39.
8
C. Wright Mills, The Power Elite (1956)
7

Schools of Hindu Law: A Comparative Study

beginning of the modern age.9 His explanation of this, however, as having being adopted into
the popular consciousness of the German People is hardly convincing, and is really little more
than a legal fiction. That to probe the spirit of the German Volk, Savigny went straight back to
Roman law is perhaps the strangest of paradoxes in Savignys thought. 10
LEGISLATION AND JURISTENRECHT
It must be admitted that the historical school had at least, if in a most confusing manner,
grasped the important truth that law is not an abstract set of rules simply imposed on society,
but is an integral part of that society, having deep roots in the social and economic habits and
attitudes of its past and present members. Moreover, equally acceptable is the view that
judges and lawyers generally, as forming part of the society in which they live and have their
being, reflect many, if not all, the basic habits and attitudes of their society, so that the
development of the law, so far as it rests in their hands, will probably conform in a broad and
general way to the patterns of behavior which are widely approved or at least accepted in that
society. But this is far from saying that the judge, in reaching a decision or framing a rule, is
acting as a mere organ of the peoples consciousness. A great deal of law, for one thing, is
highly technical, and a legal profession, like any other compact body, develops an impetus of
its own which may lead it in many directions, and by no means only in that one which would be
approved or even understood by the popular consciousness. Could it be pretended (remarks
Sir Carleton Allen) that a pious faith in the sanctity of seisin burns in the bosom of the
Commonwealth suffusing all its members with a healthy glow? 11 Again, the judge, though he
may be representative of his country and age, nevertheless has a creative function in
developing the law which cannot be exercised by merely imagining how society as a whole
would decide the question before him, even assuming society is capable of forming any view
at all. And to assert that in some inexplicable and metaphysical manner the judges thought
somehow connects on each occasion with the Peoples mind is the merest subterfuge. Even
Savigny recognizes that owing to the complexity of developed law the precise details of
decisions are a specifically juristic task beyond the scope of the popular consciousness. But
the gap is not bridged by simply postulating an automatic correlation between lawyers law and
popular consciousness (or perhaps one should say, in more modern phraseology, subconsciousness). Nor can this be laid down even as a desideratum, for on many issues public
9

System of Modern Roman Law (transl. W. Holloway), pg. 63.

Dawson, The Oracles of Law (1968), pp. 451-452.
11
th
Law in the Making (7 Ed.), p. 114
10

xi

Schools of Hindu Law: A Comparative Study

opinion may be non-existent, hopelessly divided or unascertainable, and on some matters at

least the judge must be expected to set a higher standard than one which is in fact observed
or accepted by the mass of the community.12 This is to say nothing of the view, already
discussed, that law is itself the moulder of custom rather than the reverse.
As for legislation, Savigny seemed greatly to underrate its significance for modern society. 13 A
progressive society, as Maine later pointed out, has to keep adapting the law to novel social
and economic conditions,14 and legislation has proved in modern times the essential means of
attaining this end, however imperfectly. And with this objective, those who exercise the
legislative authority have frequently, while paying heed if not lip-service to public opinion, to
provide a lead in many directions where the public is confused or undecided, and even in
some cases where there may be widespread hostility to a proposed reform.

SYSTEM OF MODERN ROMAN LAW15

In the general consciousness of the people lives positive law and hence we have to call it
peoples law (Volksrecht). It is by no means to be thought that it was the particular members of
the people by whose arbitrary will, law was brought forth; in that case the will of individuals
might perhaps have selected the same law, perhaps however and more probably very varied
laws. Rather is it the spirit of the people living and working in common in all the individuals,
which give birth to positive law, which therefore is to the consciousness of each individual not
accidentally but necessarily one and the same. Since therefore we acknowledge an invisible
origin of positive law we must as to that origin, renounce documentary proof: but this defect is
common to our and every other view of that origin, since we discover in all peoples who have
ever presented themselves within the limits of authentic history an already existing positive law
of which the original generation musty lie beyond those limits. There are not wanting proofs of
another sort and suitable to the special nature of the subject-matter. Such a proof lies in the
universal, uniform recognition of positive law and in the feeling of inner necessity with which its
conception is accompanied. This feeling expresses itself most definitely in the primeval
assertion of the divine origin of law of statutes; a more manifest opposition to the idea of its

12

Lloyd, Public Policy, op. cit., pp. 126-127

Ante, 869.
14
In Ancient Law, Maine did not admire judicial legislation in English Law, and favoured codification.
15
[English Translation by W. Holloway (1867).]
13

xii

Schools of Hindu Law: A Comparative Study

arising from accident or the human will is not to be conceived. A second proof lies in the
analogy of other peculiarities of peoples which have in like manner an origin invisible and
reaching beyond authentic history, for example, social life and above all speech, In this is
found the same independence of accident and free individual choice, the same generation
from the activity of the spirit of the people working in common in each individual; in speech too
from its sensible nature, all this is more evident and recognizable than in law. Indeed the
individual nature of a particular people is determined and recognized solely by those common
directions and activities of which speech as the most evident obtains the first place. The form
however, in which law must live in the common consciousness of the people is not that of
abstract rules but as the living intuition of the institutions of law in their organic connection, so
that whenever the necessity arises for the rule to be conceived in its logical form, this must be
first formed by a scientific procedure from that total intuition. That form reveals itself in the
symbolical acts which display in visible shape the essence of the jural relation and in which the
primitive laws express themselves more intelligibly and thoroughly than in written laws.
In this view of the origin of positive law, we have at present kept out of sight the progress of
the life of a people in time. If we now look also at this operation upon law we must above all
ascribe to it an establishing force. The longer the convictions of law live in a people, the more
deeply they become rooted in it. Moreover law will develop itself by use and what originally
was present as a mere germ will by practice assume a definite shape to the consciousness.
However in this way the changing of law is also generated. For as in the life of single men, no
glimpse of complete passiveness can be perceived, but a continual organic development, so is
it with the life of peoples and with each single element of which that concrete life is composed.
Thus we wind in speech a constant gradual shaping and development and in like manner in
law. This gradual formation is subject to the same law of generation from inner power and
necessity, independent of accident and individual will, as its original arising was. But the
people experiences in this natural process of development, not merely a change in general,
but it experiences it in a settled, regular series of events and of these each has its peculiar
relation to the expression of the spirit of the people in which the law is generated. This appears
in the clearest and strongest manner in the youth of a people for then the connexion is more
intimate, the consciousness of it is more generally diffused and is less obscured by the variety
of individual cultivation. Moreover in - the same degree in which the cultivation of individuals
becomes heterogeneous and predominant and in which a sharper division of employment, of
acquirements, and of ranks produced by these, enters, the generation of law which rests upon
xiii

Schools of Hindu Law: A Comparative Study

the common consciousness becomes more difficult; and this mode of generation would
disappear altogether if new organs for that purpose were not formed by the influence of these
self-same new circumstances; these organs of legislation and the science of law of which the
nature will be immediately explained.
This new development of law may have an entirely different relation to the originally existing
law. New institutions of law may be generated by it, the existing law transformed or it may be
entirely swept away if it has become foreign to the thought and need of the age.
PEOPLE (VOLK)
The generation of law has been preliminarily posited in the people as the active, personal
subject. The nature of this subject will not be more accurately defined. If in the examination of
the jural relation, we remove by abstraction, all its special content, there remains over as a
common nature, the united life of a plurality of men, regulated in a defined manner. We might
naturally be led to stop short at this abstract conception of a plurality and regard law as its
discovery, without which the external freedom of no individual could subsist, but such an
accidental meeting of an undefined multitude is a conception both arbitrary and entirely
wanting in truth: and even if they found themselves so met together, the capacity for producing
law would be entirely wanting since with a need the power of at once supplying it, is not given.
In fact we find so far as history informs us upon the matter, that wherever men live together,
they stand in an intellectual communion which reveals as well as establishes and develops
itself by the use of speech. In this natural whole is the seat of the generation of law and in the
common intelligence of the nation penetrating individuals, is found the power of satisfying the
necessity above recognized.
The boundaries however of individual nations are certainly undefined and wavering and this
state of doubt also shows itself in the unity or variety of the law engendered in them. Thus as
to kindred races it may appear uncertain whether they are to be regarded as one people or as
several; in like manner we also frequently find in their law not an entire consonance, probably
however an affinity.
Even where the unity of a people is undoubted, within its limits are often found inner circles
which are included in a special connection side by side with the general union of the people,
as cities and villages, guilds and corporations of every sort which altogether form popular
divisions of the whole. In these circles again a special generation of law may have its seat as
xiv

Schools of Hindu Law: A Comparative Study

particular law, side by side with the general law of the nation which by that particular law is on
many sides complete or altered.16
When we regard the people as a natural unity and merely as the subject of positive law, we
ought not to think only of the individuals comprised in that people at any particular time; that
unity rather runs through generations constantly replacing one another, and thus it unites the
present with the past and the future. This constant preservation of law is effected by tradition
and this is conditioned by, and based upon, the not sudden but ever gradual change of
generations. The independence of the life of individuals, here asserted of law, appertains first
to the unchanged continuation of the rules of law: it is secondly too the foundation of the
gradual formation of law and in this connection we must ascribe to it a special importance.
This view in which the individual people is regarded as the generator and subject of positive or
practical law may appear too confined to some who might be inclined to ascribe that
generation rather to the general spirit of humanity than to that of a particular people. On closer
examination these two views do not appear conflicting. What works in an individual people is
merely the general human spirit which reveals itself in that people in a particular manner. The
generation of law is a fact and one common to the whole. This is conceivable only of those
between whom a communion of thought and action is not only possible but actual. Since then
such a communion exists only within the limits of an individual people so here also can
practical law alone be created, although in its production, the expression of a generative
principle common to men in general, is perceived, but not the peculiar will of individual
peoples, of which perhaps no single trace might be found in other peoples. For this product of
the peoples mind is sometimes entirely peculiar to a single people, though sometimes equally
present in several peoples.
CUSTOMARY LAW
This name may easily mislead us into the following course of thinking. When anything
whatever needed to be done in a jural relation, it was originally quite indifferent what was
done; accident and arbitrary will anyhow settle the decision. If the same case presented itself a
second time, it was easier to repeat the same decision that to deliberate upon a new one and
with each fresh repetition, this procedure of necessity appeared more convenient and more
natural. Thus after a while such a rule would become law as had originally no greater claim to
16

Thus arose in Rome, the ancient customary law of individual gentes.

xv

Schools of Hindu Law: A Comparative Study

prevail than an opposite rule and the cause of origin of this law was custom alone If one looks
at the true bases of positive law, at the actual substance of it, he will see that in that view,
cause and effect arc exactly reversed. That basis has its existence, its reality in the common
consciousness of the people. This existence is an invisible thing; by what means can be
recognize it? We do so when it reveals itself in external act when it steps forth in usage,
manners, custom; in the uniformity of a continuing and therefore lasting manner of action we
recognize the belief of the people as its common root and one diametrically opposite to bare
chance. Custom therefore is the badge and not a ground of origin of positive law. However this
error which converts custom into a ground of origin has also an ingredient of truth which must
now be reduced to its proper dimensions. Besides those bases universally recognized in the
consciousness of a people and undoubted, there are many determinations as to details which
have in themselves a less certain existence; they may obtain such an existence, by being
through constant practice brought more definitely to the consciousness of the people itself.
LEGISLATION
If we enquire first as to the contents of written law, they are already determined by the mode of
derivation of the law-giving power; the already present peoples law supplies those contents or
what is the same thing, written law is the organ of peoples law. If one were to doubt that, one
must conceive the lawgiver as standing apart from the nation; he however rather stands in its
center, so that he concentrates in himself their spirit, feelings, needs, so that we have to
regard him as the true representative of the spirit of the people. It is also entirely erroneous to
regard this position of the legislator, as dependent upon the different arrangement of the
legislative power in this or that constitution. Whether a prince makes the law or a senate or a
larger collection of people formed by election or perhaps the agreement of several such
powers is furnished for legislation, the essential relation of the legislator to the peoples law is
not at all changed and it is again owing to the error of the conception censured above, if some
believe that real peoples law is only contained in the laws made by selected representatives.
The influence of legislation upon the progress of law is more important than upon its original
formation. If through changed manners, views, needs, a change in the existing law becomes
necessary or if in the progress of time entirely new legal institutions are necessary; these new
elements may indeed be introduced into the existing law by the same innate invisible power
which originally generated the law. It is however precisely here that the influence of legislation
may become most obviously beneficial, nay indispensable. Since those operative principles
xvi

Schools of Hindu Law: A Comparative Study

only enter gradually, there of necessity arises an interval of uncertain law and this uncertainty
is brought to an end by the expression of the law. ...
Lastly into the history of every people, enter stages of development and conditions which are
no longer propitious to the creation of law by the general consciousness of a people. In this
case this activity, in all cases indispensable, will in great measure of itself devolve upon
legislation.
RELEVANCE OF SAVIGNYS VOLKSGEIST IN CONTEMPORARY TIMES
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. Law derives its
legitimacy and authority from standards that have withstood the test of time and is grounded in
a form of popular consciousness called the Volksgeist. Kant emphasized that custom is the
most important source of law and co-related the development of society with that of law. He
further stated that law develops with society and dies with society. To him, legal system was a
part of culture of a people. Hence, law wasnt the result of an arbitrary act of a legislation but
developed as a response to the impersonal powers to be found in the peoples national spirit.
Laws arent of universal validity or application. Each people develop its own legal habits, as it
has peculiar language, manners and constitution. He insists on the parallel between language
and law. Neither is capable of application to other people and countries. The view of Savigny
was that codification should be preceded by an organic, progressive, scientific study of law
by which he meant a historical study of law and reform was to wait for the results of the
historians.
Savigny felt that a proper code [of law could only] be an organic system based on the true
fundamental principles of the law as they had developed over time. Savignys method stated
that law is the product of the Volksgeist, embodying the whole history of a nations culture and
reflecting inner convictions that are rooted in the societys common experience. The
Volksgeist drives the law to slowly develop over the course of history. Thus, according to
xvii

Schools of Hindu Law: A Comparative Study

Savigny, a thorough understanding of the history of people is necessary for studying the law
accurately.
Savigny over-emphasized on the importance of customs and neglected the role of legislatures
in his theory. Though custom is recognized as an important source of law both at national and
international platform however custom cannot be the only source of the law. Customs need not
necessarily be always right. In India, the initial practices were inequality between men and
women, sati practice and child marriage, however over the development of society such
constrains were removed from the society. "Hindu law has always been to a great extent
customary." "The Code of Manu" was in force in India, Burma and Siam. Sruti, i.e. what was
heard, was source of law par excellence and might be referred to as the formal source of law.
Smriti, i.e. the recollections stand `next in order. Custom follows the next. The Parishads,
Puranas, Mimansa etc. come after them. Hence, custom was an important source of law in
ancient India. "Whatever custom, practices and family usages prevail in a country shall be
preserved intact, when it comes under subjection by Conquest." To quote Manu, the custom"
which has come down by immemorial tradition and obtains among the castes pure and mixed,
is called approved usage." The Sage, Devala who has been cited in Parasar-Madhava, holds
that whatever customary law is prevalent In a district, city, town, village among the learned, the
said law though contrary to smritis must not be disturbed. Hence, in certain cases the weight
of customary law was found more than the written text of smritis, the formal law. From this, the
doctrine of "Factum valet" has come which means, "For a tact cannot be altered by a hundred
texts."
The Hindu law of succession and inheritance which ultimately got codified in the form of Hindu
Succession Act, 1956, was substantially based on the customary law of Dayabhaga and
Mitakshara School. Section 2 (2) of both Hindu Succession Act, 1956 and Hindu Marriage Act,
1 955 leaves open the door or tribal customary laws. The Hindu Succession Act. 1956 and
Hindu Marriage Act. 1955 do not apply to the tribals. So there is importance of Hindu Marriage
customs. The custom of "Saptapadi" has transformed into customary law seven steps' for
completion of Hindu Marriage. Without Saptapadi' the marriage is not complete. According to
Hindu Marriage Act, 1955, divorce can only be taken by way of a decree of a court. This is
however subject to the exception that if the divorce is sanctioned by the custom, that will be
duly recognized by law. According to this Act, marriage cannot be held between the parties

xviii

Schools of Hindu Law: A Comparative Study

within the degree of prohibited relationship. Again, the proviso leaves open the option to apply
custom of marriage within the degree of prohibited relationship.
In the constitutional scheme, Articles 244, 244A, 371A Fifth and Sixth Schedules clearly
indicate the concern of the makers of the Constitution to preserve and maintain the customary
laws of the tribes. The Constituent Assembly Debates are documentary evidences in this
regard. Article 371 A unequivocally lays down that no Act of Parliament in respect of Naga
customary law shall apply to the State of Nagaland unless Legislative Assembly oi Nagaland
by a resolution so decides. In the Constituent Assembly Debates in the Constitution Hall, New
Delhi, during discussion on the 5th Schedule of the Draft Constitution on 5.9.1949, Sri Lakshmi
Narayan Sahu made some good observation regarding interaction of the Hindu and Adivasi
Customs. Some of the customs of the aboriginals have crept into Hinduism and some of the
useful customs of the Hind us have found place in the life of aboriginals. Sri Sahu worked with
aboriginals of Orissa. He had deep insight and he pleaded for protection of customary laws of
the tribes. Sri Gopinath Bardoloi joined him emphatically for preservation ol certain traditional
institution of Ao Nagas and other Hill Tribes. Quoting him; "There are certain institutions
among these hill tribals which in my opinion, are so good that, if we wanted to destroy them. I
consider it to be very wrong".
Customary law is one of the most important institutions among the tribals which are helpful for
their good administration; Bardolol also pointed out that one of the things which he felt
creditable to those hilly tribals was the manner in which they settle their disputes. The system
of village administration of Ao Nagas is very good. Their autonomy and institution should be
preserved was his plea on the floor of Constitution Hall on 6.9.1949. The Santal traditional
justice system claim same importance in the process of resolving their disputes, conflicts and
tensions. That apart, many beneficial legislations show that our legislature is fully conscious of
the customary laws of the tribesmen, and, it provides for protection of customary law in various
social and land legislations; namely, Santal Pargana Tenacy Act, 1949, Chhotanagpur
Tenancy Act, West Bengal Land Reforms Act. 1955, Raiasthan Tenancy Act, 1955, U.P.
Zamldari Abolition and Land Reform Act, 1950 etc. The makers of the procedural laws
carefully protected tribal customary laws. The basic procedural laws of India are the Code of
Civil Procedure, 1908 and the Code of Criminal Procedure, 1973. ln the very first section of the
above codes tribal customary law has been recognized. Section 1 (3) C.P. Code,1908, lays
down that the Code does not extend to Nagaland and Tribal Areas provided that the
xix

Schools of Hindu Law: A Comparative Study

concerned government may apply it by notification to Nagaland and Tribal Areas. Section 1 (2)
Cr. P.Code, 1973 excludes the application of the Code, barring Chapters Vlll (Security
Proceedings), X (Public Order and Tranquility) XI (Preventive Action of Police) in the Tribal
Areas. According to the Explanation in Section1 Cr. P.C. tribal areas mean the territories as
referred in paragraph 20 of the Sixth Schedule to the Constitution. It mentions the following
districts for Assam:- (1) North Cachar Hills (2) Karbl Anglong, Hence, local and customary laws
would be applicable in those districts.
ESSENTIALS OF VALID CUSTOM
The following are the essentials of a valid custom:1. AntiquitySection 3 (a) of the Hindu Marriage Act, 1955 provides that custom should be observed for a
long time. It should be ancient. In India custom need not be immemorial In the English law
sense. The courts have time and again held that if a custom is established to be 100 years
old or more it is of sufficient antiquity. Derett thinks that if it is 40 years old it is enough.
2. ContinuityContinuity is as essential as antiquity. Discontinuity will destroy a custom. An obsolete law can
be repealed but there is no method of repealing custom except by abandonment. Suppose, it
is established that a custom has an antiquity of 400 years, but if it has not been followed since
then. It may be sufficient indication of its abandonment.
3. CertaintyCustom must be certain, and clear, not vague. One has to prove what exactly the custom is
and how far it is applicable with a reasonable amount of certainty. Let me give an example. a
vague assertion that divorce by mutual consent is allowed on the basis of customary law is not
sufficient. It has to be established that the alleged custom exists.

xx

Schools of Hindu Law: A Comparative Study

4. ReasonabilityIt should not be unreasonable. Of course, what is reasonable and unreasonable is a matter of
social values. It varies from time to time, place to place. An unreasonable custom is void,
although custom may not always be founded on reason.
5. MoralityAn immoral custom is void. Like the standard of reasonability, the standard of morality may
differ from time to time and from society to society. Thus a custom under which adoptive
parents pay a sum of money to natural parents at the time of adoption or a custom under
which the trustees of religions institution is allowed to sell their trust is void being against
morality.
6. It should not be opposed to public policy and lawA custom opposed to public policy is void. A custom among dancing girls permitting them to
adopt one or more daughters has been held to be void being opposed to public policy and
morality. A custom must not be opposed to statutory law. A custom opposed to sacred law
prevails, but no custom opposed to statutory law can be given effect.
A person who alleges or claims existence of custom has to prove it. Generally, customs are
proved by instances. There is no hard fast rule as to how many instances need be proved.
However, the court may take judicial notice of certain customs. When a custom is repeatedly
brought to the notice of the court, court may not insist on fresh proof.

CRITICISMS AGAINST SAVIGNYS THEORY OF LAW:

Savigny's theory has been opposed by his critics on several grounds, the main among those
are as follows :
1.

There are certain inconsistencies which are apparent in Savignys theory. He

emphasised the national character of law but at the same time suggested a model by which
Roman law could be adopted and accepted as the law of Germany. Again, he located origin of
law in the Volksgeist, that is popular conscience but at the same time asserted that certain
customary principles of Roman law had universal application. Savignys undue importance to
xxi

Schools of Hindu Law: A Comparative Study

Roman law has been bitterly criticized by Gichhom, Beselor and Gierke and it was because of
their intervention that German Code was drafted in subsequent years.
2.

It is often alleged that Savigny's theory of law is negative, obscure and suffers from

narrow sectarian outlook. He was against codification of law which is one of the most accepted
forms of modem progressive legislation. This anti-codification attitude of Savigny thwarted the
growth of German law for several decades.
3.

Savignys assertion that popular consciousness is the sole source of law is not wholly

true. The theory of Volksgeist overlooks the impact of other sources of law such as legislation,
precedent etc. in the evolution of law. There are many areas which would have been left
without legal rules because there never existed any popular consciousness about them.
4.

Again, Savignys view that customs are always based on the popular consciousness is

also not acceptable. Many customs such as slavery, bonded labour etc. originated to
accomplish the selfish interests of those who were in power. They are adopted because they
are being blindly followed and continued for a long time and not because they are righteous
and have the support of popular consciousness.
5.

Roscoe Pound has criticised for his juristic pessimism. Savignys theory hindered legal

reforms and modernisation of law in the name of Volksgeist.

CONCLUSION:
The insufficiency of natural law school and analytical school had provided a fertile land where
Savigny sowed seeds of historical school. In his view on law, he emphasized on Volksgeist, a
unique, ultimate and often mystical reality linked to the biological heritage of a people.17 For
him, law was not the result of arbitrary act of legislature but the result of certain traditions and
customs. Only by a careful study of these traditions the true content of law was found. He
marked the Volksgeist or the national spirit as the criteria for the validity of any law. Although
the concept is insufficient and is subjected to criticism by many jurists, still its importance in
understanding the theory of law is a milestone as it emphasized the need of peoples
acceptance for the formulation of any law, which is a universal principle today. Despite the
above criticism, Savignys legal theory marks the beginning of modem jurisprudence. His
17

th

Freeman M.D.A., Lloyds Introduction to Jurisprudence, 7 edi., Sweet and Maxwell Ltd.,London,2001 p.g. 906.

xxii

Schools of Hindu Law: A Comparative Study

theory of Volksgeist interpreted jurisprudence in terms of peoples will. Thus it paved way to
the modern sociological approach to law laying greater emphasis on relation of law with
society. Savignys theory came as a reaction and revolt against the 18th century natural law
theory and analytical positivism. The only defect in his theory was that he carried the doctrine
of popular will too far.
The essence of Savignys Volksgeist was that a nations legal system is greatly influenced by
the historical culture and traditions of the people and the growth of law is to be located in their
popular acceptance. This laid the foundation of historical school of jurisprudence which was
carried further by Sir Henry Maine in England, Vinodradoff, Lord Bryce and many others.
Ehrlich devised his theory of interest on the foundation laid by Savigny. Savignys approach to
law also gave birth to comparative jurisprudence which has been accepted as one of the most
important branches of legal studies in modem times. Maitland has supported Savignys
approach to jurisprudence and pointed out that the course of development of common law in
England was determined by socio-political conditions obtaining in England at that time.
Above all, Savignys legal theory served as a sound warning against harsh legislation and
introduction of revolutionary abstract ideas in the legal system unless the ushered support of
the popular will i.e. Volksgeist.

BIBLIOGRAPHY

Lloyd's Introduction to Jurisprudence by Michael Freeman, 8th Edition, 2007

Lectures In Jurisprudence by N.K Jayakumar, 2nd Edition, 2006, Publisher: Butterworth

Heinemann

The Authority of Law by Joseph Raz, 16th Edition, 2003, Publisher: Oxford University
Press

Studies in Jurisprudence & Legal Theory by Dr. N.V. Paranjape, 6th Edition, 2013,
Publisher: Central Law Agency

Jurisprudence & Indian Legal Theory by Prof. S.N. Dhyani, 4th Edition, 2011, Publisher:
Central Law Agency

xxiii

Schools of Hindu Law: A Comparative Study

Jurisprudence & Legal Theory by V.D. Mahajan, 5th Edition, 2011, Publisher: Eastern
Book Company

WEBLIOGRAPHY

http://www.legalserviceindia.com/articles/juju.htm

http://www.lawteacher.net/jurisprudence/essays/jurisprudence-legal.php

http://www.gov.harvard.edu/files/Liviatan-AJICL.pdf

http://www.missouriwestern.edu/orgs/polanyi/TAD%20WEB%20ARCHIVE/TAD182/TAD18-2-fnl-pg22-32-pdf.pdf

xxiv