The worthlessness of jurisprudence as a science

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The worthlessness of jurisprudence as a science is the title of a lecture that Julius von Kirchmann , First Public Prosecutor in Berlin, gave in 1848 at the Berlin Legal Society . After endless arguments, he was removed from office 19 years later and turned to philosophy .

Despite all the polemics and criticism of his inner coherence, his lecture became a sensational milestone in a critical self-reflection of jurisprudence that continues to this day .

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As a science , jurisprudence has to understand an object , to make it conceptual, to understand it under laws and to systematize it. This subject is natural law , as felt and lived by the people . This object ( law ) is independent of science ( jurisprudence ) as nature is independent of biology; Judges and laws existed with the Greeks and Romans long before jurisprudence developed.

However, the problem is that the law is constantly changing. This makes research more difficult, and the ballast of legal history inhibits studies. According to Kirchmann, jurisprudence, in its inertia, manipulates natural legal development by measuring the new with old categories.

In addition, everyone has an emotionally charged, intuitive opinion about law. Because of this bias, the lawyer does not want to strive for the truth , but only to be right.

Julius von Kirchmann criticizes the enslavement of natural law under positive laws . Laws are only as good as the legislature ; unlike in other sciences, false laws make true law false. In addition, laws are rigid and arbitrary. He commented on Friedrich Carl von Savigny : “Not only the present, no time has the profession of legislation. [...] Law is eternally ahead of science [which wants to pour it into positive laws] . "

If science is concerned with these laws, then it must itself succumb to the schematism which they apply to legal reality; and she, too, would indulge in arbitrary stipulations such as deadlines, etc. that “rape” the individual case.

It also follows from the existence of positive laws that science, where these laws are adequate , really only trains and explains what has already been done. But if she made legislative errors her subject, she would become a servant of chance : “The lawyers are 'worms' who only live on rotten wood; Turning away from the healthy, it is only the sick in which they nest and weave. In making the accidental as its object, science itself becomes accidental; three corrective words of the legislature, and entire libraries will be wasted . "

By scientifying the subject of law , science did harm to him: “The people lose knowledge of their law and their attachment to it; it becomes the exclusive possession of a special class; [...] science gets in contradiction with itself, it just wants to understand the object and it crushes it. "

Science has lost all ground and is getting lost in a circular ivory tower discussion . Kirchmann accused the legislation of wavering and unsettled experimentation . In individual cases, the law is uncertain anyway, comparable to the dice cup, the battlefield or the oracle hall.

As an alternative, Kirchmann proposed a mere equity jurisprudence , which would be given a great deal of discretion through minimal legislation ; jurisprudence and the legal profession would be abolished. Where the sense of justice does not judge with certainty in complex cases, a comparison suffices - as with the ancient Greeks or the Romans up to the imperial era .

Von Kirchmann saw nothing useful in the jurisprudence of his time, since it did not steer its subject matter for the good of the people - unlike technology, nature. “This is the woeful thing about jurisprudence, that it isolates politics from itself, […] thereby declaring itself unable […] to control the course […] while all other sciences regard this as their next task. "

literature

  • R. Wiethölter: Julius Hermann von Kirchmann (1802-1884) . The philosopher as a true teacher of law, in: Kritische Justiz (Hrsg.): Streitbare Juristen. Another tradition. Jürgen Seifert on his 60th birthday, Baden-Baden 1988, pp. 44–58.

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