METODOLOGÍA SEGUIDA EN EL LABORATORIO

Siriteanu Lorena-Elena “Al. I. Cuza” University, Faculty of Law

Abstract: This article aims to explore the meanings of the expression “positive law” in the German

legal tradition of the nineteenth century. In this endeavor, the paper presents comparatively the positions of the representatives of the most influent German legal schools with regard to what they used to refer to under the name of “positive law.” The main focus lies in observing the evolution of the expression of “positive law” within the representatives of the Historical Law School of Jurisprudence, starting with Gustav Hugo, surprising the differences of understanding by the Romanists headed by Savigny, and Germanists, in the view of Karl Friedrich Eichhorn and Georg Beseler. In this regard, the purpose of the article is to discuss about the role German School of Historical Law played in the foundation of the legal positivism. Furthermore, the article deals also with questions about “positive law” within the “Pandektenwissenschaft” scholarship, recalling Georg Friedrich Puchta and Bernhard Windscheid and surprises the codification of the "spirit of the Volk" into positive law by “Begriffsjurisprudenz”, respectively the Jhering and the reaction against this former doctrine In the end, the discourse on “positive law” varies according to the interests and concerns of the dominant scholars of the time which may represent another evidence that the system of positive law is in permanent change.

Key words: German Historical School, ninetenth century, positivism, Savigny, Jehring, Wolff

Prior to the “Gesetzepositivismus” or “Legal positivism” and the Kelsian “pure theory of law”, the science of positive law had its debut and blossom at the beginning of the nineteenth century within the German Historical School of Law, and the branches emerged from it. However, this article does not present the rise and evolution of the legal positivism, but how the German scholarships approached the concept of “positive law” before the codification.

The interest of the paper consists in exploring the meanings of the expression of “positive

law” and arguing on the phenomena of positive law’s evolution under different theories of the

sources of law.

Applying the historical method consecrated and followed by the German Historical School, for the examination of the Roman creation so-called the science of positive law, it must be started with its original source the “Law of Nature”, presently known as the “Reason of Law”.

Prior to the appearance and rise of legal positivism during nineteenth century, the early German Enlightenment in the legal field is present through the Christian Wolff’s school of natural law. In the view of this doctrine, the relationships between men are governed by the natural law which is founded on the nature of man. Since man is the creation of God, then natural law has its ultimate foundation in God. Though acknowledging the natural law as the source of the legal norms, Wolff and his followers, assign absolute authority to positive law understood as the law emanated from the state. Therefore, it may be noted a first difference between the natural law and positive law as understood by the Wolffian school consisting in the relative character of the positive law derived from a certain state’s authority.

Opposing to the Wolffian school, the German Historical School of Law, inspired by the Kantian philosophy, criticizes the natural law theory regarding the dependence between the law and the individual will and stands for the connection between the law and the national conscious of a legal community.

In this sense, the leader of the German Historical School of Law, Fr. K. von Savigny restores the Roman theory about the positive law by reminding the means by which a person is attached to a particular positive law. Having in mind that “the positive law itself had its seat in the people as a

great natural whole, or in an ethnical (volksmässig) subdivision of this whole”1

, then, its evolution may be compared to the evolution of the language, religion or human habits.

On the other side, Rudolf von Jhering, the founder of Begriffsjurisprudenz, though accepting the theory of the organic growth of the positive law formulated by Savigny, he rejects the idea of a peaceful and automatic development of the law.

In this sense, according to Jhering, the law is not anything but a living force, it is under no circumstance a simple chain of thoughts, ideas. Thus, we interpret his perspective is that of a law as a living organism, an entity above thoughts, independent of them, that has a life of its own, interacts with alike entities and changes in an autonomous way. As a consequence law is the result of a struggle in a given context, a community, the state.

Nevertheless the separation from the subject that perceives the law is not absolute, there is no such separation or autonomy as to distinct entity from subject in a platonic way. Law is a living body but it does not exist in a world of sheer thoughts, it cannot be explained outside a certain context.

a) Savigny’s conception upon the positive sources of law

By fixing the source of the law as the consciousness of the people, Savigny goes beyond its predecessor, Gustav Hugo, the founder of the German Historical School of Law, because, based on the fact that people by their collective will form the state, then, “it is only another expression of the

same truth, when we say that law has its seat in the state, or in a particular organic part of the state”2

. Therefore, not only that improves the historical method consecrated by Hugo, but Savigny becomes the precursor of the legal positivism.

For supporting its demonstration concerning the connection between the law and the national consciousness, Savigny promotes an innovative theory about the structure of the law: “Law is

henceforth more artificial and complex, since it has a twofold life; first, as part of the aggregate existence of the community, which it does not cease to be; and secondly, as a distinct branch of knowledge in the hands of the jurists.” 3

Therefore, in order to facilitate the understanding of the law as a [upper dimension] of the “Volksgeist” and explain the development of the legal phenomena, Savigny, introduces two elements as components of the law, as follows: “the political element” represented by the connection of law with the general existence of the people, and the “technical element” designated by the distinct scientific existence of law.

Since the “the true governing source of law is misunderstood as it then appears under the

most opposite names, sometimes as natural law (Naturrecht), sometimes as jurisprudence, sometimes as analogical law”4, in the view of Historical School of Law, the sources of law are chronological distinguished as the consciousness of the people followed by the jurists.

In the first place, placing the “foundation” of the law in the common consciousness of the people, the evolution of the law is strictly limited to the “intellectual” development and the grade of civilization of a nation. Under this point of view, not only that the law is relative and regionalized, but it may be challenged the idea that the progress of a community depends upon how the scientific aspect of law folds to reality, since “law has no-self dependent existence; on the contrary, its essence is the life of man itself, viewed on one particular side”5

.

Subsequently, Savigny argues that within the development of law and the progress of civilization, the legal common sense of the people is replaced by the jurists as the representatives of the community in this aspect6. This is also explained by the increase of the complexity of requests for serving the administration of the law, so “a kind of legislation may be introduced, which comes to the aid of custom, removes these doubts and uncertainties, and thus brings to the light, and keep pure, the real law, the proper will of the people.”7

.

C. F. von Savigny, A treatise on the Conflicts of Laws, and the limits of their operation in respect of

place and time, T.&T Clark, Law Publishers, Edinburgh, 1869, p. 15.

2

Idem, p. 15.

3

F. C. von Savigny, Of the vocation of our age for legislation and jurisprudence, Littlewood & Co. Old Bailey, London, 1831, p. 28.

4 Idem, p. 40. 5 Ibidem. 6 Ibidem, p. 28. 7 Ibidem, p. 33.

The course of law in history starts with the custom and popular faith, and continues by “jurisprudence, - everywhere, therefore, by internal silently – operating powers, not by the arbitrary will of a law-giver”8

.

When contemplating the nature of positive law through is evolution in time, Savigny concludes that this “does not happen to be one and the same all over the world, but varies with each nation and state; being derived in every community, partly from principles common to mankind, and partly from the operation of special agencies. It is the diversity of positive laws which makes it necessary to mark off for each, in sharp outline, the area of its authority, to fix the limits of different positive laws in respect to one another.” 9

In other words, “yet it is of the essence of positive law not to remain stationary, but to be in

continual progress and development (c); and hence secular variation is one of its recognized characteristics.”10

In respect of the organic growth of law, as the Historical School promotes, it may be ascertained that at same time amongst the same people, law will be natural law, in the sense of the “Volkgeist” legacy or, much better, tradition, and learned law, as the rules promoted by the jurists in their capacity of representatives of the legal community.

b) Ihering’s view of the organic development of positive law

Some differences are to be observed here by comparison to Savigny or Puchta’s perspectives over positive law. The birth of law and its continuous formation do not happen ”per se” or ”ex officio”, but they are the result of constantly pushing the boundaries of one society’s perspective over morality. Rights are not gained and liberties are not unveiled and established, unless there is a struggle. The law is the result of this constant fight, ”any change in the system of

law is made in violation of a particular right or interest” and ” The law cannot rejuvenate and evolve , unless it cuts any connection with the past”, according to Ihering.

The law and its formation cannot be separated from a state, a community within which the law appears and is being shaped. It may be understood that Ihering suggests that there is not an universal type of positive law, but this depends the number of the states or, generally speaking, on the nations, communities with certain characteristics. Therefore, each state has its own law that reflects certain tendencies, embodying the clash of certain factors.

The power of a nation has the same meaning the nation’s power of law. Consequently an imposed law, originating outside from a community shall not be understood by its subjects, it is the effect of the so called empty shell theory. “ The nation does not understand its Law and the Law does not understand its people” elaborated by Ihering when probably observing the nineteenth century trends in Europe, namely the tendency of newly formed nations to adopt a foreign country entire legal system.

In conclusion, the discourse on “positive law” varies according the interests and concerns of the dominant scholars of the time which may represent another evidence that this concept is in permanent change.

Bibliography

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Ibidem, p. 30.

9

Savigny von, Frederick, Charles, A treatise on the Conflicts of Laws, and the limits of their

operation in respect of place and time, T.&T Clark, Law Publishers, Edinburgh, 1869, pp. 5-6.

10

Lerminier, M. E., Introduction générale. L´histoire du droit, Ed. Alexandre Mesnier, Place de la Bourse, 1829.

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Pollock, Frederick, Sir, Essays in jurisprudence and ethics, Ed. London, Macmillan, Londra, 1882. Savigny von, Frederick, Charles, Of the vocation of our age for legislation and jurisprudence, London, Littlewood & Co. Old Bailey, 1831.

Savigny von, Frederick, Charles, A treatise on the Conflicts of Laws, and the limits of their operation

in respect of place and time, T.&T Clark, Law Publishers, Edinburgh, 1869.

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Contact information:

Phd. Siriteanu Lorena [email protected]

“Al. I. Cuza” University, Faculty of Law No. 18, Mircea cel Batran

Iasi Romania