Introduction
Jurisprudence, the philosophy of law, provides various theories through which legal developments and judicial decisions can be understood. One such theory is that of the historical school of law, prominently articulated by Friedrich Carl von Savigny. His concept of the Volksgeist, or the "spirit of the people," posits that law is not an abstract set of rules but an organic product of a nation's unique culture, customs, and consciousness. This essay will apply Savigny's theory of Volksgeist to analyse the Indian Supreme Court's landmark judgment in Indian Young Lawyers Association v. The State of Kerala, popularly known as the Sabarimala case. It will be argued that while Savigny's theory provides a compelling framework for understanding the arguments in favour of preserving the traditional practice at the Sabarimala temple, the Supreme Court's majority decision demonstrates the limitations of this theory when confronted with the overriding principles of a modern, written constitution. The judgment highlights a fundamental tension between law as an expression of popular custom and law as an instrument for social reform.
Understanding Savigny's Theory of Volksgeist
Friedrich Carl von Savigny (1779-1861) was a German jurist who founded the historical school of law. His central thesis was a strong reaction against the natural law theories and the codification movements that were prevalent in Europe at the time, particularly the French Napoleonic Code. Savigny argued that law is not universal, nor can it be created by legislative command alone. Instead, he proposed that law is intrinsically linked to the particular character and spirit of a people, which he termed the Volksgeist (Dias, 1994).
According to Savigny, law develops organically, almost unconsciously, from the shared customs, traditions, and beliefs of a community. It grows with the people, strengthens with them, and ultimately dies away as the nation loses its distinctive identity. In its early stages, law is expressed through symbolic acts and customary rules. As society becomes more complex, this role is taken over by jurists, who are seen as representatives of the popular consciousness, tasked with articulating and refining the legal principles already present within the community (Freeman, 2014).
A key implication of this theory is Savigny's opposition to codification. He believed that codifying law would freeze its organic development and impose an artificial, rationalistic structure upon something that should remain fluid and rooted in social reality. For Savigny, law is "found, not made" (Harris, 2004, p.201). The source of law is not the command of a sovereign but the historical culture of a nation. Therefore, any attempt by a legislature or court to impose laws that are out of sync with the Volksgeist is doomed to be ineffective and illegitimate.
The Sabarimala Case: A Conflict of Custom and Constitution
The Sabarimala case presented a direct conflict between a long-standing religious custom and the fundamental rights guaranteed by the Constitution of India. The Sabarimala Temple in Kerala, dedicated to the deity Lord Ayyappan, traditionally prohibited the entry of women in their menstruating years (defined as the age-group of 10 to 50). This exclusionary practice was defended by the temple authorities and a section of devotees as an essential part of their religious tradition, rooted in the celibate nature of the deity.
The case, Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. (2018), reached the Supreme Court, which was asked to determine the constitutional validity of this practice. The petitioners argued that the ban violated several fundamental rights, including the right to equality under Article 14, the prohibition of discrimination on the grounds of sex under Article 15, and the right to freedom of religion for individuals under Article 25. The respondents, on the other hand, invoked Article 26, which grants religious denominations the right to manage their own affairs in matters of religion, and argued that the practice was an 'essential religious practice' protected by the Constitution.
In a 4:1 majority judgment, the Supreme Court held that the practice of excluding women was unconstitutional. The majority found that the exclusion was a form of gender discrimination and that the devotees of Lord Ayyappan did not constitute a separate religious denomination, meaning they could not claim the protection of Article 26. The court prioritised constitutional morality over customary practices, stating that any custom that violates the fundamental rights of individuals cannot be sustained. However, the lone dissenting judge, Justice Indu Malhotra, presented a view that diverged significantly, arguing that courts should not interfere in matters of faith and religious practice, and that notions of rationality should not be used to judge religious beliefs.
A Savignian Analysis of the Sabarimala Dispute
Applying Savigny's framework to the Sabarimala case offers a powerful lens through which to understand the position of those who sought to preserve the temple's custom. From a Savignian perspective, the practice of excluding women was not merely a rule but a manifestation of the Volksgeist of the community of Ayyappan devotees. This custom had developed over centuries and was seen as integral to the unique spiritual character of the deity and the pilgrimage. It was the 'living law' of that specific community, embodying their collective consciousness and beliefs.
Following this logic, the Supreme Court's intervention represents precisely the kind of external imposition that Savigny warned against. The majority judgment, based on abstract and universal principles of equality and non-discrimination drawn from the Constitution, can be seen as an attempt to impose a form of 'code' that is alien to the specific cultural context of the Sabarimala tradition. Savigny would argue that law should reflect the will of the people it governs, and in this case, the 'people' could be defined as the community of devotees who accepted and revered the custom. A court decision that overrides this deeply ingrained consciousness is, in Savigny's view, an act of "legal tyranny" that disregards the organic nature of law (Freeman, 2014).
Justice Indu Malhotra's dissenting opinion resonates strongly with a Savignian approach. She argued that, "What constitutes an essential religious practice is for the religious community to decide" and that "notions of rationality cannot be invoked in matters of religion" (Indian Young Lawyers Association, 2018, para 14.1). This argument reflects a core Savignian idea: that the internal logic and consciousness of a community, especially in matters of faith, should be the source of its rules, and that these rules should not be subject to review by an external, rationalist authority like a court applying secular constitutional principles. Her emphasis on respecting the practices of a religious community, even if they appear discriminatory to outsiders, aligns with the historical school's focus on custom and tradition as the primary sources of law.
Limitations of the Volksgeist in a Constitutional Democracy
While Savigny's theory helps to explain the resistance to the judgment and the force of the dissenting opinion, the Sabarimala case also starkly reveals the theory's limitations, particularly in the context of a modern, pluralistic, and constitutional state like India.
Firstly, the concept of Volksgeist is notoriously vague. Who constitutes the 'volk'? In the Sabarimala context, is it the specific community of Ayyappan devotees who defend the ban? Or does it include the female devotees who wished to enter? Or does it encompass the entire population of Kerala, or even India? In a diverse country with multiple overlapping communities, identifying a single, coherent 'spirit of the people' is practically impossible. The Constitution of India, by contrast, provides a framework of rights and duties for all citizens, creating a new, inclusive 'volk' of the Indian republic.
Secondly, and more importantly, a blind adherence to the Volksgeist can entrench and sanctify unjust and discriminatory practices. History is replete with customs that are now considered abhorrent, such as Sati or untouchability in the Indian context, which were once defended as integral parts of tradition. Savigny's theory lacks a critical, normative dimension to distinguish between benign customs and those that violate fundamental human dignity. The Indian Supreme Court, in its majority opinion, chose to uphold constitutional morality, which is based on principles of liberty, equality, and fraternity, over the customary morality of a specific group. The role of the Court was not simply to 'find' the law in existing custom but to 'make' law by interpreting the Constitution in a way that advances social justice and individual rights. This demonstrates that law must sometimes lead popular consciousness rather than merely follow it.
Conclusion
In conclusion, applying Friedrich Carl von Savigny's theory of Volksgeist to the Sabarimala case provides valuable insights. It illuminates the deep-seated cultural and religious arguments behind the preservation of the temple's exclusionary custom and provides a theoretical basis for the powerful dissent of Justice Indu Malhotra, who championed judicial restraint in matters of faith. From this perspective, the majority judgment can be seen as an imposition of an external, abstract legal code onto the organic, living law of a community.
However, the case ultimately demonstrates the inadequacy of the historical school of law in addressing the complexities of a modern constitutional democracy. The ambiguity of the Volksgeist, and its potential to justify discrimination, is in direct conflict with the Indian Constitution's commitment to individual dignity and equality. The Supreme Court's majority decision asserted the supremacy of the written constitution over unwritten custom, positioning the judiciary as a guardian of fundamental rights and an engine for social transformation. While the Volksgeist of a community may shape its traditions, the Sabarimala judgment affirms that in the Indian legal landscape, this spirit must ultimately yield to the overarching spirit of the Constitution.
References
Dias, R.W.M. (1994) Jurisprudence. 5th edn. Aditya Books.
Freeman, M.D.A. (2014) Lloyd's Introduction to Jurisprudence. 9th edn. Sweet & Maxwell.
Harris, J.W. (2004) Legal Philosophies. 2nd edn. Oxford University Press.
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. (2018) Writ Petition (Civil) No. 373 of 2006. Supreme Court of India.
