Suchergebnisse

Summary

Does this comply with the "Volksgeist" now? Questions of validity in "Modern Roman Law". The article examines the impact of the "Volksgeist" (national spirit), as the basis of the theory of legal sources developed by the Historical School of Law, on methodological history. Although in 1814 Savigny used the term "sensing the principles", the methodological history, even nowadays, assumes that the "Volksgeist" exclusively contains rational structures and is therefore 'reasonable'. Still and despite all doubts concerning this concept, the "Volksgeist" is merged with "Begriffsjurisprudenz" (conceptual jurisprudence). In contrast, this article develops a methodological program of the Historical School of Law in which rational approaches were always accompanied by irrational ones, appealing to intuition, a sense of justice, and a 'child-like sense' as an access to truth. Viewed from a philosophical perspective, the decisive key terms, introduced by Savigny in 1814, are "nature, fate and need". Methodologically, the focus reveals, around the special significance of "analogy", the "nature of things", the "practical needs" and the "sense of justice" as ways to contribute to the legal cognition.

Abstract

Case studies as part of pandectistic legal education in 19th century Germany. The traditional image of the pandectistics rested on the assumption that legal education in this area, which inspired students from all over the world, relied exclusively on the logicsystematic pandect textbooks. These days we know that case studies, too, played an important role in addition to the primarily systematic pandect lectures. The pandectists studied the interpretation of legal problems, which were mainly inspired by court practise. This paper is unprecedented in using actual lecture notes to evaluate those solutions developed during the lectures which were not included in the printed case collections. It becomes clear that the technique used for solving legal problems differs as much from the relation method, which was applied by the courts in that period, as it differs from the so-called claim method, which is common in German legal education today.