Abstract
The essay, originally written in German as an
introduction to a volume of collected papers,
shows the influence of the Historical School of
Law on legal, historical and social sciences in
Germany throughout the 19th and even 20th centuries
– a time span running contrary to the
dominate view that sees the end of the School in
the middle of the 19th century. In my view the
School constitutes not only a method for developing
norms of private law out of the historical
materials of Roman and German-Germanic laws,
but is based on a wider conception of culture, law
and history that is also connected to the political
positions of that time. In Savigny’s founding pamphlet,
»The vocation of our time ...«, two major
theoretical topics for this long-lasting influence can
be found: The Romantic one, which views law as a
part of culture and parallel to language and custom,
based on the »spirit of the people«, and, on
the other side, the rationality of the European
tradition of Roman law, which was developed
and administered by jurists. These two basic points,
in part standing in contradiction to one another,
form a fertile tension that provides an impulse to
the intellectual discussions and new movements in
jurisprudence and history analysed in the text.
Realism, founded in the connection of both sciences
to political and social life, builds a kind of
»basso continuo« and acts as a counterbalance to
the former two. And it is in this context that the
works of Jacob Grimm, Puchta and Beseler, Heinrich
Brunner, Georg von Below and others are
analysed, in particular the works of Otto von
Gierke and Max Weber. Finally, evidence is furnished
that a new image of the medieval period,
and its impact on law, as a centre of Western
identity was outlined in the 20th century by
authors like Ernst Kantorowicz, Fritz Kern, Otto
Brunner and, last but not least, by Harold J. Berman
(walking in the footsteps of Eugen Rosenstock-
Huessy), all of whom were situated in different
ways within the tradition of the broader,
cultural-based Romantic view.
Citation
ID:
147702
Ref Key:
dilcher2016rechtsgeschichtethe