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I. THE DOCTRINE OF COMMUNAL ORIGINS
The period following the French Revolution was deeply interested in "the people" as a mass conception, in all that belonged to them and all that they created. It was in this period that theorists on the origin of law, customs, religion, language, literature-particularly the folk-song and the folk- tale-liked to advocate the doctrine of spontaneous, unconscious growth "from the heart of the people," as the phrase went. Such conceptions of origin had their critics from the first; but they remained more or less orthodox throughout the nineteenth century, and they still have foothold in both England and America. They have, however, receded in the wake of more reserved second-thoughts about human nature, along with the recession of the "romantic" vehemence, and of the Hegelian philosophy of the "over-soul," and of our own demagogic admiration of the undifferentiated demos.
In law, for a first illustration, the theory of the German jurist, Friedrich Karl von Savigny (1779-1861) remained entrenched pretty much throughout the century. Savigny's theory may be summarized in a few sentences:'
Yet we are not at all to think of it [the common la,w] as such in the sense that the several individuals who compose the people have produced it by an exercise of their will; for this will of the individuals might perhaps sometimes bring forth the same law but might also, perhaps, and with more likelihood
bring forth very diverse laws. It is rather the spirit of the people [Volksgeist] living and working in all individuals that gives rise to the positive law; which, therefore is not a matter of chance for the consciousness of each individual but is necessarily one and the same law for each . . . This feeling [of the internal necessity which goes with the recognition of positive law] is expressed with most positiveness in the ancient assertion of a divine origin for law or for enactments; for one could not conceive of a more distinct denial that law originates by chance or through human will.
In other words, law is something that grows by sheer power of unfolding itself in men's miscegenated conscious states. About 1878 R. von Ihering attacked this doctrine with his theory of law as a conscious product of men seeking to achieve social ends, and Savigny's theory was gradually dropped in continental Europe. By the end of the nineteenth century, it was practically given up everywhere except in England and America.
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PMLA, Vol. 39, No. 2 (Jun., 1924), pp. 440-454