The Monist, Vol. 2, 1891-1892 : $b A quarterly magazine — John Shaqi
The Monist, Vol. 2, 1891-1892 : $b A quarterly magazineVarious
Philosophy
The Monist, Vol. 2, 1891-1892 : $b A quarterly magazine
Various
Philosophy -- Periodicals
There is in the history of jurisprudence no more significant event than
the foundation of the historical school by Gustav Hugo and Carl von
Savigny. Jurisprudence, up to that time, was not a science, at least
not a science in the modern acceptation of the term. It was an art,
which the practical lawyer learned and employed in strict conformity
with practical traditions, without reflecting on the reasons in virtue
of which a legal norm or a social institution existed. The only part
of jurisprudence of a scientific tendency was the philosophy of law.
This latter branch had, since Hugo Grotius, emancipated itself from the
church, but it had advanced no farther than to substitute for the will
of God, to which formerly right and wrong had been traced, the principle
of human nature, and to found upon the social instincts of man a system
of natural law,—an ideal jurisprudential state by reference to which
positive laws were tested in respect of their conformity with the ideally
right and the ideally wrong. This fundamental conception of the essential
character of law was only slightly modified by the substitution of the
human reason for human nature. The rational systems of jurisprudence also
derived the state and the law from the individuality of man, especially
from the social traits of this individuality, and definite notions and
principles were thus enunciated from which state and law were deductively
constructed.
The historical school first introduced a change in all this. It afforded
the legal practitioner the possibility of seeing that the law which he
applied was the slowly ripened product of a course of development that
extended over many centuries, and it afforded the philosophical juristic
inquirer the possibility of understanding, that the law was not founded
on immutable ideas and principles, but that it was a product of the
creative mind of a nation, that this product was subjected to processes
of transformation and development, and did not admit of regulation by
the individual reason of a single philosophical inquirer. But while the
history of law has become a universally recognised discipline in the
science of jurisprudence, the application of its underlying principles
to the philosophy of law has as yet by no means been universally carried
out. On the contrary, the reason still plays an extensive rôle as
foundation and evolutionary principle; and to a great extent the history
of law and the philosophy of law still pursue their solitary ways as
independent branches of knowledge.
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