VOLKSGEIST VS. SOVEREIGN COMMAND: A COMPARATIVE ANALYSIS OF LAW’S SOURCE IN SAVIGNY AND AUSTIN ABSTRACT

Abstract

The question of law’s ultimate source has divided jurists for centuries, with profound implications for how legal systems are built, reformed, and legitimated. This paper undertakes a comparative analysis of two seminal 19th-century answers: John Austin’s command theory, which locates law in the will of a determinate sovereign backed by sanction, and Friedrich Carl von Savigny’s doctrine of the Volksgeist, which sees law as the organic expression of a people’s historical and cultural consciousness. The study first reconstructs Austin’s positivist model of law as “properly so called,” highlighting its emphasis on clarity, sovereignty, and the separation of law from morality. It then examines Savigny’s historical jurisprudence, which rejects deliberate legislation in favour of custom and juristic science as conduits for the national spirit. A systematic comparison reveals fundamental divergences on the nature of legal validity, the role of history, attitudes to codification, and the relationship between law and society. While Austin’s theory underpins modern statute-based systems and offers analytical precision, it struggles to account for customary and international law or to identify the sovereign in complex democracies. Savigny’s Volksgeist, though influential in comparative law and postcolonial jurisprudence, risks romanticism and cannot easily accommodate plural, multi-ethnic states. Using Nigeria’s dual legal heritage of received English law and indigenous customary law as a reference point, the paper argues that neither theory alone provides a complete account of law’s source. Instead, a durable legal order requires both Austinian authoritative pedigree and Savignian social congruence. Law, it concludes, is at once command and culture.