Therefore, man is driven by evident necessity to join some authority to protect himself. According to him, it is men and arms that are responsible for the maintenance of law and order in the State.
According to this theory, law has its source not in custom, not in consent but in the will and power of him, who in a commonwealth bearcat not the sword in vain. Both Kant and saving make the function of law lo be the preservation from interference of the freedom of the will.
The conception is purely negative as it excludes the operation of public as well as of private law. The end of the law is, according to Locke, not to abolish or restrain but to preserve or enlarge- freedom. Law is not all coercive.
The object of the law is lo securing the ends of justice and ii is to reach this end that courts of law have been established. The immediate objects of law, according to Holland, are the creation and protection of legal rights. The idea of right and justice is as essential as the idea of force. Law is not right alone or might alone, but the perfect union of the two.
Law according to Sevigne (a follower of Historical School) is a rule of human action and conduct sanctioned by national usage. It is always based on popular support and approval. He held that all early law was customary, and the function of legislation is merely lo supplement and redefine customary law as an expression of the general consciousness of right and not by virtue of the sanction of legislature. According to him the nature of law can be traced lo history and social function.
Numerous criticisms have been levelled against Savigny’s conception of law. In the first place, national consciousness alone cannot make law, inasmuch as every custom has not the force of law. Before it assumes the form of law, it must be immemorial and obligatory and should not be contrary to law or public morality. The final authority is, therefore, the State and the sovereign and not the people or their national consciousness.
In the second place, statute law overrides custom in the sense that the former can modify or repeal the latter. Statute law and customary law are, therefore, not co-ordinate in authority or based on the national consciousness of the people.