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Volksgeist and Uniform Civil Code- A Critical

A
PROJECT REPORT
ON
VOLKSGEIST AND UNIFORM CIVIL CODE- A CRITICAL STUDY

SUBMITTED TO:
MR. MANWENDRA TIWARI
FACULTY OF JURISPRUDENCE

SUBMITTED BY:
VIVEK RAI
ROLL NO. 147
5TH

SEMESTER: B.A. L.L.B (HONS.)

DATE OF SUBMISSION 31ST AUGUST 2012


HIDAYATULLAH NATIONAL LAW UNIVERSITY,RAIPUR
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Volksgeist and Uniform Civil Code- A Critical

ACKNOWLEDGEMENT

I, Vivek Rai, feel myself highly elated, as it gives me tremendous pleasure to come out with
work on the topic Volksgeist and uniform civil code- A critical study.
Words fail to express my deep sense of glee to my teacher, Mr. Manwendra Tiwari who
enlightened me with his beautiful work on this topic.
I would like to thank him for guiding me in doing all sorts of researches, suggestions and having
discussions regarding my project topic by devoting his precious time. I thank H.N.L.U for
providing Internet facilities. And lastly I thank my friends and all those who have helped me in
the completion of this project.

Thanking you,
Vivek Rai
SEMESTER-V

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Volksgeist and Uniform Civil Code- A Critical

METHODOLOGY
Methodology used in this project work is both Doctrinal and Secondary electronic research. This
project work contains extensive research work on Volksgeist and uniform civil code- A critical
study. This project is based on theoretical study as well.

PREFACE
The purpose of this paper work is to bring out the gist of the whole concept in a lucid, precise
and orderly manner. I have made a strenuous effort to give a comprehensive treatment to the
subject Volksgeist and uniform civil code- A critical Study which is of considerable importance
as it is considered to be a very widely discussed concept.
The authorities that have been relied upon and used as source material have been duly referred to
and acknowledged in the footnotes. A select Bibliography has also been appended to the project.
The mode of research has been subjective analytical. Secondary sources are referred to in the
course of research. In the completion of this work my teachers specially subject faculty Mr.
Manwerdra Tiwari, have been a constant source of inspiration and encouragement to me. I must
sincerely thank them for their support.

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TABLE OF CONTENT:
1. Introduction.............................................................................................5
2. Concept of Volksgeist.........................6
3. Comments on the idea of Volksgeist........................8
4. Definition and History of Civil Law............................................9
5. Need for Uniform Civil Code in India..11
6. Supreme Court on Uniform Civil Code.12
7. Conclusion14

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INTRODUCTION:
The concept of volksgeist and the uniform civil code, both the words have their different
meanings and are opposite in nature. The word volksgeist came from Germany which was first
used by Johann Gottfried Herder and then followed by his disciple by Hagel and then the true
meaning was elaborated by Fredrich Karl Von Savigny. volksgeist, means the common spirit
of the people. It means the law system of a state must be based on the common consciousness
of the people and not by the legislation.
The concept of the Volksgeist, or the spirit of the Volk, was developed by German philosopher
Johann Gottfried von Herder (17441803). The application of Herders theory to law was made
by German jurist and legal historian Friedrich Karl von savigny (17791861).
Uniform civil code means system of codified law of a state made by legislation. France was the
first country to who made codified law system for itself. Historically, there has been a
disjunction between the civil law systems of continental Europe and the common law systems
characteristic of England and the English-settled countries. The civil law system of the continent
was thus a mixture of Roman law and local customary law. As a committee of legal historians
observed in 1914
Civil law is based upon Roman law, which was first codified in the Twelve Tables in 450 B.C.
Codification was completed in 535 A.D. in the Corpus Juris Civilis, the culminating work of
Roman legal scholarship.

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CONCEPT OF VOLKSGEIST

Fredrich karl Von Savigny, he was the follower of Historical school of law. He totally rejected
natural law. To him a legal system was part of the culture of the people.
Savigny considered law to be an emanation of a peoples spiritual and historical experience. It is
first developed by custom and popular acceptance, next by judicial decisionseverywhere,
therefore, by internal silently operating powers, not by the arbitrary will of the law-giver. The
essential prerequisite was a deep and far-reaching appreciation of the genius of a particular Volk;
the prescriptive content of the law must accord with the Volksgeist.
For Savigny, German law was an expression of the Volksgeist of the German people. Law is only
properly understood in the light of past and present history, and reflects the inner convictions of
Volk psychology and shared moral values. The Volksgeist, constantly changing and evolving as
the German people changed and evolved, drove the slow evolution of law over the course of
history. Savigny believed that the Volk of every land had a similar effect on each nations law.
Legal institutions and values, like music, art, or language, are an indigenous expression of the
culture. Savigny, like Herder, thought that there was an organic connection of law with the
being and character of the people. . . . Law grows with the growth, and strengthens with the
strength of the people, and finally dies away as the nation loses its nationality.
He believed that through his concept of volksgeist it came to know the interrelationship between
law and people. Law and people cannot be isolated from each other and this is well explained by
savignys concept of Volksgeist.
Hence in 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.

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The basis of 1origin 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.
Savigny2s central idea was that law is an expression of will of the people. It doesnt come from
deliberate legislation but arises as a gradual development of common consciousness of the
nation.
The essence of Savignys Volksgeist was that a nations legal system is greatly influenced by the
historical culture and traditions of the people and growth of law is to be located in their popular
acceptance. Since law should always confirm to the popular consciousness i.e. Volksgeist,
custom not only precedes legislation but is also superior to it. To him legal system is the part of
the culture of the people. Hence law was not the result of arbitrary act of the legislation.
Laws are not of universal application or validity. Each people develops its own legal habits, as it
has a peculiar language, manners and constitution. The view of Savigny was that codification
should be preceded by an organic, progressive, scientific study of the 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 Savigny, a
thorough understanding of the history of people is necessary for studying the law accurately.
1 M.D.A Freeman and Lord Lloyd, 6th Edn, 1994, pg no. 785,786.2. Dias R.W.M Jurisprudence 5th Edn 1994, pg no.
377, 378.

2 M.D.A Freeman and Lord Lloyd, 6th Edn, 1994, pg no. 785,786.. Dias R.W.M Jurisprudence 5th Edn 1994, pg no.
377, 388.

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Thus, in view of Savigny, law, like language, is a product not of an arbitrary and deliberate will
but of a slow, gradual, and organic growth.
Consistently with this theory, savigny further maintained that legislation was subordinate to
custom. It should all times conform to the volksgeist. It has been pointed out that he was not in
opposition of legislation reforming codified law at any point of time in future, but his attitude
was generally one of pessimism. Therefore he certainly opposed the project of immediate
codification of law on several grounds---In the first place, he pointed out the defects of contemporary codes which to his mind, preserved
adventitious, subsidiary principles, and often some rules of Roman law even if they rejected its
main principles.
Secondly, in matters on which there is no volksgeist, a code in his opinion, might introduce new
and inadaptable provisions and so add to prevailing difficulties.
Thirdly, codification 3of law could never deals exhaustively for all the problems that are likely to
arise in the future and therefore codification is not suitable for the future development of law.

COMMENTS ON THE IDEA OF VOLKSGEIST:


(1) Many institutions have originated, not in a volksgeist, but in the convenience of a ruling
Oligarchy, eg slavery.
(2) A different objection to the volksgeist came from savignys opponents. They pointed out
that, taken literally, his thesis would thwart the unification of Germany Permanently by
emphasising the individuality of each separate state and by fostering a parochial sense of
nationalism.
(3) There is an element of teuth in it, for there is a stream of continuity and tradition, lies in

fixing it with precision. In this was like A priori Preconception.


3 . Dias R.W.M Jurisprudence 5th Edn 1994, pg no.378 370 380.
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DEFINITION AND HISTORY OF CIVIL LAW:


A phrase applied principally to that group of laws which has grown upon the continent of Europe
as a combination of Roman and Germanic traditions together with ecclesiastical, feudal and local
influences. The civil law has traditionally been the law of most of Continental Europe; from
there it spread to Latin America and later to those countries of Asia and Africa which found it
necessary to westernize their laws; i.e. Japan (1890-98), China (1929-31), Thailand (1925),
Turkey (1926) and Ethiopia (1958-60). It also prevails, supplemented by religious laws or native
customs by and large in those regions which were, or still are, colonies, protectorates or trust
territories of France(Morocco, Tunisia, Algeria, Guinea, Mali and other territories in Africa, the
West Indies and Oceania, Belgium, Congo, Ruanda- Urundi), the Netherlands(Indonesia, Dutch,
West Indies), Portugal and Italy(Somalia). Civil Law, supplemented by Islamic law has also
come to prevail in the countries of the nearest east but not in Libya and Iraq, where Common law
has been influential.
This legal system is derived from Roman law. It is different from the Common law; the system
generally adhered to in England and other English speaking countries. Civil Law is based on a
system of codes, the most famous of which is the Code Napoleon(1804), and decisions are
precisely worked out from general basic principles a priori. Thus the Civil law judge follows the
evidence and is bound by the conditions of the written law and not by previous judicial
interpretation. Civil law influences Common law in jurisprudence and in Admiralty,
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Testamentary and Domestic relations; it is also the basis for the system of equality. It is prevalent
in Continental Europe.

COMPARISION OF CIVIL LAW AND COMMON LAW:


It is difficult to define what constitutes the real difference between Common Law and Civil law.
It would be erroneous simply to identify Civil law with codified or even statutory Law, and the
Common Law with Judge-made or Case law. The main difference between the systems consists
of the ways in which the norms of the law are articulated and in which new rules are derived
from the older ones in novel cases.

Postcolonial India's modernist ambition to have a Uniform Civil Code, impressively written into
Article 44 of the Indian Constitution of 1950 as a non-justifiable Directive Principle of State
Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal
systems.
Uniform civil code is a term originating from the concept of a civil law code. It envisages
administering the same set of secular civil laws to govern different people belonging to different
religions and regions. This supersedes the right of citizens to subject themselves to different
personal laws based on their religion or ethnicity. The common areas covered by a civil code
include:

personal status

rights related to acquisition and administration of property

marriage, divorce and adoption

Usage of this term is prevalent in India where the Constitution of India lays down the
administration of a uniform civil code for its citizens as a Directive Principle, but has not been
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implemented till now. The secular Uniform Civil Code is opposed by Muslims, Christians and
parties like the Indian National Congress and the Communist Party of India (Marxist).
The highly debated Article 44 of the Indian Constitution provides that "the State shall endeavor
to secure for the citizens a uniform civil code throughout the territory of India." 4 If ever fulfilled,
Article 44 would almost certainly sound the end to religious personal law, requiring all Indians to
be governed by one secular civil code.
There is, however, no guarantee that this will ever happen because the Article is found in the
Constitution's Directive Principles and is therefore not judicially enforceable. 5 This designation
of the Article as a Directive Principle was driven by the Assembly's desire to achieve national
unity-and not gender equality-by reassuring Muslims that their personal laws would not be upset.
The Indian Constitution's gender equality provisions and its protection of religious practices
subject to those provisions appear to provide Indian women with assurance that their rights will
be equal to those of men.
However, the operation of religious personal laws largely outside the reach of the Constitution
has left women vulnerable. Given the patriarchal bias present in all religious personal laws,
Indian women will not be able to realize their constitutional right to equality until these laws are
exchanged for a uniform civil code that both reflects the values of all groups within India and
adheres to the constitutional commitment to gender equality.

NEED FOR UNIFORM CIVIL CODE IN INDIA


4 Indian Const. art. 44
5 India Const. art. 37 ("The provisions contained in this Part shall not
be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall
be the duty of the State to apply these principles in making laws.").
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Despite the hostile divide along religious and political lines in India regarding adoption of a
uniform civil code, India must nonetheless work to reframe the debate and eventually realize its
constitutional vision.
The Supreme Court is not capable of solving the problems between religious rights and gender
equality because of the piecemeal fashion under which the laws must change and the Court's
poor public relationship with Muslims. Likewise, Parliament is unsuited to draft a uniform civil
code, given the damage politicization of the debate has already done and the distrust minority
groups have of the majority Hindu Parliament.

Supreme Court on Uniform Civil Code

The Supreme Court of India again called for a UCC. The Supreme Court first directed the
Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah
Bano Begum6, popularly known as the Shah Bano case. In this case, a penurious Muslim woman
claimed for maintenance from her husband under Section 125 of the Code of Criminal
Procedure7 after she was given triple talaq from him.
The Supreme Court held that the Muslim woman have a right to get maintenance from her
husband under Section 125. The Court also held that Article 44 of the Constitution has remained
a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that,
"A common civil code will help the cause of national integration by removing disparate loyalties
to law which have conflicting ideologies"
6 AIR 1985 SC 945
7."
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After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv
Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women
(Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for
maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for
implementing this Act was that the Supreme Court had merely made an observation for enacting
the UCC, not binding on the government or the Parliament and that there should be no
interference with the personal laws unless the demand comes from within.
The second instance in which the Supreme Court again directed the government of Article 44
was in the case of Sarla Mudgal v. Union of India 8. In this case, the question was whether a
Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second
marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be
dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And,
thus, a second marriage solemnised after converting to Islam would be an offence under Section
494 of the Indian Penal Code.
Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where
it is lying since 1949. The Honble Justice referred to the codification of the Hindu personal law
and held, "Where more than 80 percent of the citizens have already been brought under the
codified personal law there is no justification whatsoever to keep in abeyance, any more, the
introduction of the uniform civil code for all the citizens in the territory of India.
While explaining the reason for including Article 44 in the Directives Principles, it was
observed: "When you want to consolidate a community, you have to take into consideration the
benefits which may accrue to the whole community and not to the customs of a part of it. If you
look at the countries in Europe, which have a Civil Code, everyone who goes there forms a part
of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to
the minorities."9
8 AIR 1995 SC 153
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CONCLUSION

In his civil law casebook (1994), John Henry Merryman asked (but did not answer) the question:
Does a nation have only one Volksgeist or do ethnically diverse nations have a Volksgeist for
each cultural group?
In multiracial ex-white nations, the dominant Volk, the Jews, freely express their Volksgeist
through Jewish and general law, but other groups are limited by the will of the rulers. This is true
even of currently favored groups like Muslims, with their Sharia law.
9 Constitutional Assembly Debates Volume VII pg. 547
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But oppressed whites no longer have a Volksgeist. Culture distortion simultaneously destroys
both the collective life of the people and its law, which is supplanted by a rigid, racist legal
positivism characteristic of contemporary totalitarian regimes.
But civil code gives a codified system of law all over the country, and there is no discrimination
in between the peoples regarding race, caste, religion. And there is one law for all. And now a
days in all most all the countries of the world are following this codified system of law and
because of the universality of this application and its uniformity in nature, this is called uniform
civil code.

BIBLIOGRAPHY

1.

Dias, R W M, Jurisprudence, Butterworths, Aditya Books Pvt. Ltd, 5th Edn., 1994.

2. Freeman M.D.A and Lord Loyd of Hampsted, Jurisprudence,6th Edn,. 1994.


3. Jain M.P Indian Constituional Law , 5th edn, 2009, LexisNexis butterworths wadhwa Nagpur

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4.

SHUKLA

lucknow

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V. N, Constitution of India, 10th ed, 2007, Eastern Book Comapany ,

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