Jurisprudence
The law or jurisprudence (from Latin iuris prudentia , "precise knowledge of the law "), out of date, commonly known as derogatory and / or jokingly jurisprudence , is concerned with the design, the systematic and conceptual penetration of current and historical legal texts and other legal sources. A proper interpretation of legal texts includes a humanities study of the origin and application of legal sources and norms. An understanding of legal history , legal philosophy , legal theory , legal policy and legal sociology is fundamental for this work . The aforementioned disciplines, together with legal dogmatics and methodology, are also referred to in the plural as law .
The Roman legal scholar Ulpian († 223 or 228 AD in Rome ) gives a classic definition of what jurisprudence is : Jurisprudence is the knowledge of human and divine things, the science of just and unjust. "Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia" ( Domitius Ulpianus : Ulpian primo libro reg., Digest 1,1,10,2). The “divine” in the sense of canon law was removed long after the Enlightenment at German universities , but it is still a compulsory subject from the legal curriculum.
In Germany, the plural term Jura (Latin for “the rights”) can still be found today , the singular form Jus or the Latin Ius is used in Austria and Switzerland.
In addition to secular law and its jurisprudence, there are also religiously based jurisprudence. In the German-speaking world, Christian law is often referred to as church law . The law of the Catholic Church is canon law . Islamic jurisprudence ( Fiqh ) deals with the law of Islam ( Sharia ). The Jewish right is the Halacha . In addition to theology , medicine and philosophy , law is one of the classic university disciplines.
Philosophical classification of jurisprudence
Law is one of the humanities and is a hermeneutic discipline (text science). The knowledge gained through the philosophy of hermeneutics about the conditions of the possibility of understanding meaning is applied as a legal method to the interpretation of legal texts.
Their special position compared to the other humanities she leads as far as it deals with the law, from the general applicability of the law texts from which they in terms of concrete life issues in the law must apply. From this perspective, law can ideally also be understood as research into models for avoiding and resolving social and interpersonal conflicts.
On the other hand, the hermeneutic method distinguishes it from the empirical sciences , such as natural science , medicine , economics and social science , the aim of which is not to understand texts, but to research natural or social regularities, which are established through experience, observation and scientific methodology are verifiable and refutable .
Like the other hermeneutic textual sciences ( philology , theology ), jurisprudence does not deal with objective knowledge about sensually perceptible phenomena. This is reserved for secondary branches of jurisprudence such as legal philosophy, legal sociology and criminology .
Disciplines
The sub-areas of law can be summarized as the exegetical subjects and the non-exegetical subjects (historical, philosophical or empirical subjects). In the exegetical subjects, legal dogmatics is in the foreground. In the exegetical non-dogmatic subjects, in particular the digest exegesis and the exegesis of German law sources are practiced. For example, B. cuneiform sources ( Codex Hammurapi ) interpreted.
The non-exegetical basic legal subjects are often also disciplines from related sciences, such as legal philosophy , legal history and legal sociology .
In recent times, jurisprudence has dealt a lot with legal methodology and the doctrine of the interpretation of law. Because legal methodology is important for legal exegesis , it is often taught separately.
In particular, the philosophy of law in jurisprudence and law studies has lost a lot of its importance compared to the High Middle Ages and the Renaissance . Criminology, which among other things deals with empirical research , also has a rather low status at universities .
An overview of the most important areas of law can be found in the article Law .
History of Law
The history of law is not only concerned with the historical development of the law itself, but also with the reflection on the same historical perspective. In this sense, legal history is also a legal history. Corresponding questions have been researched to varying degrees for different epochs.
In general, Roman jurisprudence is considered to be the oldest historically documented jurisprudence, which had its first climax in the Classical period . For earlier developments, such as the legal system of Mesopotamia or Egypt as well as ancient Greek law , it is assumed , according to the current state of research, that there too reflected on law, but that this did not cross the threshold of legal science. Even in Greece the problem of justice was reflected extensively, but no attempt was made to systematically penetrate the applicable law.
The question of what is law has been answered differently over the centuries. Initially, law was equated with the prevailing moral concepts (see also natural law ). Later the idea dominated that law could only be understood as a rule that was enacted by a state sovereign (usually the "ruler") who also had the authority to enact and enforce it ( legal positivism ). In contrast, at the beginning of the 19th century, the historical school of law again emphasized the social and historical anchoring of law. The legal systems customary today have developed from these and other ideas .
Modern law then began at the University of Bologna . At the end of the 11th century, lawyers began to be trained there in traditional Roman law, which they tried to penetrate with the methods of scholasticism . With different currents, this project in Germany only came to a preliminary conclusion towards the end of the 19th century.
There are two main types of legal systems to be distinguished, namely that of codified , abstractly defined law and that of case law ( common law ).
The codified law developed essentially from Roman law . It was Emperor Justinian who was the first to compile Roman law in its entirety in what was later known as the Corpus Iuris Civilis (CIC, first published in 529) and thereby unify it throughout the entire Roman Empire. Even if earlier decisions were taken into account in the codified law , the code and the text of the law - possibly also customary law - ultimately had the highest authority.
The first faculties arose in Italy in the 11th century , where aristocratic sons received education in canon law , secular law and medicine . The Bologna School of Law in 1088 was one of the first universities . From there there was a spread of Roman law ( CIC ) throughout continental Europe, but not to Scandinavia and not to the British Isles . Roman law was then consistently used as a legal basis in the Christian-Occidental, continental European legal area in pogroms against Jews, the Inquisitions and the persecution of witches , especially with regard to the persecution of people of different faiths , stakes and torture .
The important area of civil law was revised by Napoleon and newly codified in the Civil Code in 1804 . Since then, this has been widespread in French-speaking countries, the former French colonies and other countries.
In addition, there is the German legal tradition. It arose on the basis of common law , a mixture of Roman , canonical and local law. After the establishment of the German Empire in 1871, the Civil Code was codified and published in 1896; it came into force on January 1, 1900. Today it radiates beyond Germany, especially the environmental protection legislation. The German "applicable law" exists today in addition to the obtained by the jurisprudence knowledge to a substantial part of the products developed by the Court case law principles , the judge-made law .
This contrasts with the development of the English legal tradition of common law . In principle, the law is not codified here, but is further developed by case law on the basis of prejudices . This legal system was also adopted and further developed in the USA and other former British colonies. In the USA there is a school of legal realism , according to which the law alone is what the courts will apply and enforce as law. Another special feature of US law is the great importance of jury courts (see jury ).
Instead, in Germany, for example, law has an independent function in relation to jurisprudence. The legal literature is an (effective and recognized) "legal education factor" (at least in labor law ). This can also be derived from the words of the Federal Constitutional Court that "[t] he courts [...] in the event of inadequate legal requirements [must] derive substantive law using recognized methods of legal finding from the general legal bases that are relevant to the legal relationship in question", getting closed.
Until the end of the 19th century, law in Central Europe was primarily private law, but since then it has clearly differentiated itself. An administrative science developed from the requirements of the administration, which very early expanded into a scientific study of public law.
Studies and legal training
In many legal circles, a central component of legal training is studying law at a university.
In Austria and Switzerland, the legal studies are called Jus , because the canon law is no longer a mandatory content of the study.
The term jurisprudence denotes the science of a law (secular or ecclesiastical). Law, on the other hand, means science or the study of both rights; of canonical and secular law. The term Jura, which is colloquially used in Germany for the study of law, is - from an academic point of view - misleading: Jura comes from the Latin iura , the plural of ius . So here too the distinction between one and both rights. Thus, "jurisprudence" in Germany - as in Austria and Switzerland, would have to be correctly designated as "Jus" and the jurisprudence, including canon law, as Jura, although this theory does not correspond to reality, since "jurisprudence" is a synonym for the wide-ranging subject - and regardless of canon law - is used.
Limits, Deficits and Principles of Jurisprudence
If one understands jurisprudence as the science of applicable law, then it essentially concentrates on the interpretation of laws and the case law derived from the laws and aims to gain knowledge of the applicable law from this. This finds its limits on the one hand in the amount of legal norms and on the other hand in the lack of knowledge of the actual effects of the legal norms.
In a modern, highly complex state , however, there is no longer a manageable set of legal norms. There are more than 5000 federal laws and ordinances in Germany, to which the laws and ordinances of the 16 federal states and the ordinances and statutes of the districts, districts, administrative communities and communities are added. In addition, there are a large number of administrative guidelines (such as the TA Luft , the TA Lärm ) and standards created by committees and associations, which in fact also have legal force (such as the VOB , the DIN standards , the numerous Guidelines and recommendations of the Federal Highway Research Institute (BASt) and the Research Association for Roads and Transport (FGSV) for road construction, the LAGA , etc.). Since many of these standards regulate very specific and highly technical issues, some of them can only be fully understood by specialists. This is in conflict with the fundamental goal of jurisprudence, according to which it should be possible for everyone to base their actions on legal norms that are understandable to them.
All legal norms must adhere to some basic principles . These include the principle of “no punishment without law” ( nulla poena sine lege ) , “no punishment without guilt” ( nulla poena sine culpa ) and the principles of proportionality or compliance with good faith . The rule of law principles (see also the concept of the rule of law ) also include the prohibition of retroactive effect to the detriment of the citizen , although breaches of this principle are recognized.
It is criticized that jurisprudence only recognizes the effects of legal norms in reality through the perspective of state jurisprudence, since it does almost no research on factual legal facts. Since only a comparatively tiny part of the everyday application of the law leads to disputes in court, a large part of the legally relevant human behavior does not reach the attention of jurisprudence, even if the behavior does not agree with legal theory. Furthermore, disputes that are settled out of court due to the economic or social balance of power, as well as those areas of the economy in which disputes are deliberately kept away from state courts and, if necessary, decided by arbitral tribunals, which neither their procedures nor their decisions, are not made known to public jurisdiction, are not made known make it public. The study of jurisprudence thus only conveys a tiny excerpt from the reality of the application of law.
If one understands by the applicable law not only the sum of the norms that intend to regulate human behavior in a certain area, but also their legal consequences, i.e. the actual effects of these norms or the way in which these norms are understood by those concerned and are applied, one has to come to the conclusion that jurisprudence can only recognize the surface of the applicable law and occasionally draws wrong conclusions from it.
Sub-disciplines
Jurisprudence encompasses several sub-disciplines, which are sometimes summarized with the plural jurisprudence . The most important sub-disciplines are:
- Legal dogmatics is the actual core discipline of law. She strives for a systematic penetration of the various sources of law and analyzes positive law mainly conceptually. In continental European legal circles, her methods are primarily those of exegesis and the filling of gaps through judicial legal training by means of analogy .
- The Political jurisprudence draws on the active shaping of law. For this purpose, it examines the possibilities and conditions of a change in the applicable law and develops proposals for redesign on the basis of change requests. An essential sub-area is therefore also the legal criticism , which asks about weaknesses in the applicable law.
- The comparative jurisprudence examined various legal systems similarities and differences. This involves both the various solutions for an identical socio-political goal and the various effects that a particular legal institution can have.
- The legal philosophy works inderdisziplinär and examined the right as an object using the methods of philosophy . It is closely related to legal theory , which is sometimes viewed as its branch. The latter considers the nature of law independent of the specific legal system and asks about its conditions of application and the structure of norms.
- The legal history is interdisciplinary by itself the right with the methods of the science of history turns. Her research topic is traditionally described with the triad of past norms, past legal practice and past reflection on law.
- The legal fact research deals with the actually lived right.
- The sociology of law studied law as a phenomenon of social reality. It considers the function of law in social functional contexts.
- The law didactics deals with issues of employability of law. It is probably one of the oldest disciplines in law. In Germany, it experienced a considerable boom, especially in the 1970s. After it almost disappeared into insignificance, it was able to establish itself again in recent years.
See also
literature
General introductions
- Klaus Adomeit , Susanne Hähnchen : Legal theory with legal methodology. 7th, revised edition. CF Müller. Heidelberg 2018, ISBN 978-3-8114-4644-1 .
- Karl Engisch : Introduction to legal thinking. Edited and edited by Thomas Würtenberger and Dirk Otto. 11th edition. Kohlhammer, Stuttgart 2010, ISBN 978-3-17-021414-9 .
- Kristian Kühl , Hermann Reichold , Michael Ronellenfitsch : Introduction to Law - Legal System and Legal Technology. CH Beck, Munich 2011, ISBN 978-3-406-36575-1 .
- Kurt Seelmann , Daniela Demko : Philosophy of Law. 6th, revised and expanded edition. CH Beck, Munich 2014, ISBN 978-3-406-67172-2 .
- Karl Larenz , Claus-Wilhelm Canaris : Methodology of jurisprudence. 3. Edition. Springer, Berlin 1995, ISBN 978-3-540-59086-6 .
To the history of the subject
- Thomas Duve , Stefan Ruppert (Hrsg.): Law in the Berlin Republic . First edition. Suhrkamp-Taschenbuch Wissenschaft 2230.Suhrkamp, Berlin 2018, ISBN 978-3-518-29830-5 .
- Ingo Müller : Terrible Jurists , The unresolved past of our justice, 7th edition. Berlin 2014, ISBN 978-3-89320-179-2 .
- Fritz Schulz : History of Roman jurisprudence. Weimar 1961.
- Dieter Simon (Ed.) Law in the Bonn Republic: Studies on the history of science in jurisprudence. 1st edition. Suhrkamp-Taschenbuch Wissenschaft 1150. Suhrkamp, Frankfurt am Main 1994, ISBN 978-3-518-28750-7 .
-
Michael Stolleis : History of Public Law in Germany ,
- Volume 1, Reich Journalism and Police Science 1600–1800 , Munich 2002.
- Volume 2, Constitutional Law and Administrative Science 1800–1914 , Munich 1992.
- Volume 3, Constitutional Law and Administrative Law in the Republic and Dictatorship 1914–1945 , Munich 2002.
- Volume 4, Constitutional and Administrative Law Studies in West and East 1945–1990 , Munich 2017.
- Franz Wieacker : History of Private Law in Modern Times , 2nd edition. Göttingen 1967.
- Karl Hyldgaard-Jensen: Legal Word Geographical Studies, 1. Upsala 1964 (= Acta universitatis Gothoburgensis. Göterborger Germanistische Forschungen. Volume 7).
To science policy
- Anna-Lena Scholz: An excellent failure. The University of Frankfurt did everything right in the elite competition for top research. Still, it wasn't enough. How could this happen? In: Die Zeit, 2017, No. 53, p. 75 (on the rejection of the DFG application from the Normative Orders Cluster of Excellence at Goethe University Frankfurt am Main).
- Wissenschaftsrat : Perspectives in law in Germany. Situation, analyzes, recommendations ( Drs. 2558-12 ; PDF; 483 kB), November 2012.
- Peter A. Zervakis and University Rectors' Conference (Ed.): Legal training today: between Berlin and Bologna. Project nexus - Concepts and good practice for study and teaching . University Rectors' Conference. Bonn, 2014. ISBN 978-3-942600-32-3 .
Scientific writings on law
- Aristotle : De re publica Atheniensium (Politics and State of the Athenians). Artemis, Zurich et al. 1955.
- Plato : Nomoi. Academic publishing house, Berlin 1992.
- Plato: Politeia (The State). Kröner, Stuttgart 1973.
- Thomas Aquinas : Summa contra gentiles. Scientific Book Society, Darmstadt.
- Niccolò Machiavelli : The Prince. Kröner, Stuttgart 1978.
- Cesare Beccaria : Dei delitti e delle pene. The Lord's Marquis of Beccaria immortal work of crimes and punishments. Scientia, Aalen 1990.
- Jean-Jacques Rousseau : Contract social. Reclam, Stuttgart.
- Charles de Montesquieu : On the Spirit of Laws. Reclam, Stuttgart 1976.
- Jean Bodin : About the state. Six books on the state. Reclam, Stuttgart 1986.
- Friedrich Carl von Savigny : From the profession of our time for legislation and jurisprudence. Olms, Hildesheim 1967.
- Alexander Hamilton , James Madison , John Jay : The Federalist Articles. Schöningh (UTB), Paderborn 1994.
- Thomas Hobbes : Leviathan. Reclam, Stuttgart 1984.
- Georg WF Hegel : Basic lines of the philosophy of law or natural law and political science in outline. Reclam, Stuttgart 1970.
- Wilhelm von Humboldt : Ideas for an attempt to determine the limits of the effectiveness of the state. (1792; first published 1851) Reclam, Stuttgart 2002.
- Julius Hermann von Kirchmann : The worthlessness of jurisprudence as a science. A speech from 1847. Ed. By Gottfried Neeße . Kohlhammer, Stuttgart et al. 1988.
- Friedrich Carl von Savigny : System of today's Roman law . 8 volumes, 1840 to 1849.
- Rudolf von Jhering : The purpose is right. Olms, Hildesheim 1970.
- Rudolf von Jhering: The fight for law. 8th edition. Klostermann, Frankfurt am Main 2003.
- Georg Jellinek : General state theory. 1900th - 3rd edition. Julius Springer, Berlin 1929.
- Carl Schmitt : constitutional theory. 1928 - 8th edition. Berlin: Academic Publishing House, 1993.
- Rudolf Smend : Constitution and Constitutional Law. Duncker & Humblot, Berlin et al. 1928.
- Gustav Radbruch : Philosophy of Law. 1932. - KF Koehler, Stuttgart 1973.
- Hans Kelsen : Pure legal theory. Introduction to legal problems. 1934. - Franz Deuticke, Vienna 1985.
- HLA Hart : The concept of law . 1961. - German: The concept of law . Suhrkamp, Berlin 2011.
- John Rawls : A theory of justice . 1971. A Theory of Justice. Suhrkamp, Frankfurt am Main 1975.
- Ronald Dworkin : Taking rights seriuosly . 1977. - German: civil rights taken seriously . Suhrkamp, Frankfurt am Main, 1984.
- Niklas Luhmann : The law of society. Suhrkamp, Frankfurt am Main 1993.
Web links
- Website of the Virtual Law Library
- Raimund Brühl: Introduction to the legal way of thinking and working BAKöV , 14th, revised edition May 2016
Remarks
- ↑ See the lecture " The worthlessness of jurisprudence as a science ", 1848.
- ↑ a b Encyclopaedia Britannica 2004, university
- ↑ Bernd Rüthers : Legal dogmatics and legal policy under the influence of judicial law, Institute for Legal Policy at the University of Trier , lecture, June 30, 2003.
- ^ A b Reinhard Richardi (editor): Munich manual on labor law . Ed .: Reinhard Richardi, Hellmut Wißmann , Otfried Wlotzke, Hartmut Oetker . 3. Edition. tape 1 . CH Beck, Munich 2010, ISBN 978-3-406-55553-4 , § 6 State Legislation and Jurisprudence Rn. 35.
- ↑ BVerfG, decision of June 26, 1991, Az .: 1 BvR 779/85 = BVerfGE 84, 212 (226) = NJW 1991, p. 2549 (2550) - Admissibility and limits of the lockout: “In addition, the decision of the great Senate encountered such serious criticism that the unchanged continuation of this case law could not appear certain. "
- ^ Michael Stolleis : History of Public Law in Germany - Constitutional Law and Administrative Law. 4th volumes.
- ↑ Overview at the BMJ on essential laws
