The competitive nature of the sources of law

Abstract

The concept of "sources of law" is perhaps one of the most widespread and popular of contemporary legal sciences. However, it is recently dated.

It is considered that the creator of the term was the illustrious German jurist Karl Von Savigny, who first used it in the mid-19th century. 1 Savigny was perhaps one of the most integral jurists of all time. The history of law recognizes him with multiple contributions, as well as an erudition and an passionateness in defending his ideas that went hand in hand with each other.

Savigny coined the hydraulic metaphor that the law originates from a source, to propose that the spirit of the people was the one that gave legitimacy to legal science. For him, the "source of the right" was the spirit of the people (Volksgeist). So he collected it in his abundant legal work. For Savigny:

The law is essentially popular, national, human. The right is the work, not of arbitrary will, as Rousseau intended, but of the conscience of the spirit of the people. He affirmed the importance of custom as a source of positive law, I emphasize the need to study the intimate history of peoples, as a means of penetrating their spirit and understanding, just as it elaborates the law, their right; Finally, it determined that the role of the legislature should not be to create the right, to invent it, but rather to purify it and to order it in view of the dominant currents within societies or better of the peoples.