Hemant Kothari 31-2011

Law grows with the growth and strengthens with the strength of the people and finally dies as the nation loses its nationality.

Summary of Savignys Theory of Law

Unconscious and organic growth, like language
Peculiar, not universal Volksgeist: Spirit of the people

Custom, as a source of law, superior to legislation.

Develops with society and dies with society Binding by social pressure

Emphasis of the Research Paper

Evolution of the Indian Legal System vis--vis

Savignys Theory of Law. Sources of Law in Indian Legal System and Savignys Conception of Law: A Comparative Study

Savignys Theory of Reception of Law

Law 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 System

From 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: Savignys View

Savigny was not against legislation but he emphasized

that legislation should encompass peoples 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 1958 Preventive Detention Act 1950

Judicial Precedents
According 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 India

In India, they are widely accepted source of law by

virtue of article 13, 141, etc. Keshawanad Bharti v. State of Kerala Mohd. Ahmed Khan v. Shah Bano Begum and Ors

Customs
According 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 position
Customs are valid to the extent they are not in

contravention to the legislations. Collector of Madurai v. Moottoo Ramalinga Contradictory position in Mohd. Ahmed Khan v. Shah Bano Begum and Ors Incorporation of Customs in the legislations:
The Muslim Women (Protection of Rights on Divorce)

Act 1986 Hindu Marriage Act 1955 Indian Contract Act 1872

Conclusion
Universality 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.
Slavery Sati Child Marriage