Conceptual jurisprudence

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The term jurisprudence refers to the methodology of jurisprudence of the middle and later 19th century - in a rather derogatory sense today . The term was coined by Rudolph von Jhering with his writing Scherz und Ernst in jurisprudence . He was criticized in particular by Philipp Heck , who criticized the prevailing legal methodology of his time.

Through Leibniz's influence on Wolff (both important philosophers of the Early Enlightenment ), the mathematical-logical way of working had an influence on the discipline of law. Wolff's work Ius naturae methodo scientifico pertractatum was received with great effect, because he developed the idea of ​​the logical derivation of legal decisions from general terms and major propositions, which had determined values ​​in a fixed system. In this way, Wolff can be regarded as the “forefather” of the term jurisprudence. Later main representatives of the term jurisprudence were Georg Friedrich Puchta and Bernhard Windscheid . At its core, it is still shaped by rational law and influenced the fathers of law of the German Civil Code (BGB) and served to narrow down the possibilities for interpretation . According to Karl Larenz, the underlying legal system can be represented as a “conceptual pyramid”, as a system that he attested to have a “peculiar intermediate position”.

Conceptual pyramid and inversion method

The basis of the term jurisprudence is the application of logic to the law. With their help, sentences and terms should be converted mathematically and geometrically into a seamless and consistent system. From this, a legal decision should be able to be made with the help of major principles, definitions and subsumptions . The critics of “conceptual jurisprudence” (especially Jhering, Heck and Rümelin) attacked in particular the “ inversion method” applied to this logical system , with which “new - and alien - law would be created from existing positive norms” . Although all legal clauses are in a logical conceptual context, which is suitable to serve as a source of knowledge of as yet unknown legal clauses, the critics claimed that the “conceptual jurisprudence” leaves no room for creative work and individual justice by the judge.

As Hans-Peter Haferkamp was able to demonstrate with a view to Puchta, his work took into account practical needs in many ways. Haferkamp also defends Windscheid against the “serious charges”, as he prepared the interest jurisprudence as a representative and symbol . Joachim Rückert and Marc Heidemann make it clear that elements of “conceptual jurisprudence ”, as Jhering declared in joke and seriousness in jurisprudence , were not present in Windscheid's methodology . Maximiliane Kriechbaum finds “applicative elements”, i. H. Individual justice -oriented discretion already at the Historical School of Law Friedrich Carl von Savignys . The criticism of the term jurisprudence was in this respect not inconsiderably connected with the general misunderstanding of Savigny's methodology. The devaluation of the jurisprudence of the 19th century, driven primarily by the Pandectic and its (mostly polemical) titling as "term jurisprudence " could thus be seen as refuted according to Haferkamp.

Today it is attested as a result that the term jurisprudence has done “careful detail work” and created the sometimes most complicated and most difficult to access, but nevertheless thoroughly thought-out legal figures of civil law. Evidence of this was in the legal areas of the right of preemption in rem , the mortgage and the reservation .

Legal environment

In the civil law of the 19th century there were hardly any laws, especially none that would have lived up to the claims of the model of the historical school of law. This led to the construction of pandect law , by means of which the historically legitimized foundations of Roman law were used. On the other hand, modern natural law had recently helped to logically and systematically define a number of terms, so that methodological considerations could be made to convert this development stage, accompanied by the currents of thought of the exact natural sciences, into a conceptual positivism. This should make it possible to close the remaining legal loopholes by means of the purity of the terminology and its abstractions in a meaningful way so that the judge would be deprived of legal scope for action. The social question, however, had been consistently excluded from the law. After the jurisprudence of interests, which developed from the term jurisprudence, first tentatively, then more vigorously, insisted on the inclusion of social and economic purposes in law, the way finally paved for a new discipline: the sociology of law . This completely contradicted the pandectistic terminological jurisprudence, which, however, led to different evaluations in research, provided that the different interpretations by Eugen Ehrlich and Max Weber are compared with one another.

literature

Individual evidence

  1. ↑ Rudolph von Jhering : Joke and Ernst in Jurisprudence. A Christmas present. Breitkopf and Härtel, Leipzig 1884, p. 337. (Reprint: Max Leitner (Ed.): Scherz and Ernst in der Jurisprudenz . Vienna, Linde 2009, ISBN 978-3-7093-0281-1 )
  2. ^ Helmut Coing : Commentary on the civil code with introductory law and subsidiary laws . 13. Editing and revisions, 1993 ff (1995). ISBN 3-8059-0784-2 , Einl. 177 to the BGB.
  3. ^ Karl Larenz : Methodology of Jurisprudence. 6th edition. Springer, Berlin 1991, ISBN 3-540-52872-5 , pp. 19ff.
  4. ^ Karl Larenz: Methodology of Jurisprudence. 6th edition. Springer, Berlin 1991, ISBN 3-540-52872-5 , p. 29.
  5. ↑ a b Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 293.
  6. ↑ Marc Heidemann: Windscheid and “Konzeptsjurisprudenz” , 2015, Grin Verlag, ISBN 978-3-668-08101-7 , p. 5 with reference to Oertmann, Interest and Concept, p. 75; Likewise interpreting: Kipp, in Windscheid, Lehrbuch des Pandektenrechts, § 24, Fn. 2 .: "This [term jurisprudence] creates new norms by constructing new terms from existing terms, alien to life and abusive to the system, contrary to the [sic! ] “Legal Whole” or contrary to the [sic!] “Spirit” of the law, in order to achieve a result desired by the designer, but alien to the system. The aim of this criticism is (also Oertmann, Heck and Rümelin) to warn of the dangers which consist in misusing legal terms through the so-called and impermissible "inversion method" in order to generate new positive law. "
  7. ↑ Ulrich Falk: A scholar like Windscheid .
  8. ↑ a b Hans-Peter Haferkamp: Georg Friedrich Puchta and the “conceptual jurisprudence ”. Klostermann, Frankfurt am Main 2004, ISBN 3-465-03327-2 .
  9. ↑ Ulrich Falk: A scholar like Windscheid. Explorations in the fields of so-called term jurisprudence. Frankfurt am Main, 1989 (Ius Commune, publications by the Max Planck Institute for European Legal History, special issues, 38)
  10. ↑ Joachim Rückert: Methodology of Civil Law - From Savigny to Teubner . 2012
  11. ^ A b Marc Heidemann: Windscheid and "Conceptual Jurisprudence" . 2015, Grin Verlag, ISBN 978-3-668-08101-7 .
  12. ↑ Maximiliane Kriechbaum: Roman law and recent history of private law in Savigny's view , in: Zimmermann / Knütel / Meincke, Rechtsgeschichte und Privatrechtsgeschichte , p. 58.
  13. ↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 267.
  14. ↑ Legal jurisprudence . Hans-Peter Haferkamp, ​​in Encyclopedia on Legal Philosophy of the German Society for Philosophy, 2011