Wozu Rechtsgeschichte? – Oder von den Pathologien der Rechtswissenschaft

Abstract

History is inescapable: it deals with being in time. Given the trinitarian structure of time it is possible to distinguish three pathologies once the unity of time is lost from sight: overemphasis on the things to come, the things at hand or the things long gone. These three pathologies are three aspects of the crisis of contemporary historical science. In order to find the right measure between these pathologies it is necessary to evaluate them and consider their causes more closely. The main problem is to determine the right balance between preservation and progression – or to put it more pointedly: between conservatism and (r)evolutionism. The degree of appreciation for the one or the other depends on an evaluative judgment of the status quo and an assessment of a proposed change with regard to the status quo. Is it not impossible to provide a well founded judgment on what is preferable without a sound comparison of the present as »that which has become« and the imagined future – »that which shall be«? It is part of human nature to want to fully realize a potential. But the difficult task is not simply to change things, but to assess what has already been achieved, and in that light, assess the risks and opportunities that any attempt to improve on the status quo presents. Here the old story about the master and the disciple teaches an important lesson. The disciple does not stand above the master. If he wants to stand above he has first to become a master himself. This is the ritual of history: things can only get better if they are guided by the best. And this is the logic of failure too: things merely get worse, when the disciple considers himself to be the master.
So how does legal history fit into all of this? That, of course, depends on the discipline it serves.