Zur Geschichte der juristischen Methodenlehre zwischen 1850 und 1933

Abstract

The legal methodology in Germany between 1850 and 1933 has not yet been satisfactorily presented. The author holds that the contemporary concept of law is the key to understanding this matter. In the second half of the 19th century the perception of law as a product of the legislator’s or the legal community’s will establishes itself against the historical school’s theory of persuasion. New concepts of statutes and customary law accord with this concept of law. Statutes are now seen as the expression of the will of the state. Neither the sense of justice nor the legal conviction are, as in the historical school, decisive for customary law, but intention and practice, with a subsequent sense of justice. Finally, judge-made law becomes a source of law, because, on the basis of the voluntaristic concept of law, older subsidiary sources such as natural law and academical law are no longer acknowledged. In this context judge-made law represents only the individual decision, but not a common judicial practice.
Three types of voluntarism can be distinguished: a sociological, which attributes the law creating will to its social preconditions (Jhering, Heck, Ehrlich et al.), an idealistic, which sees it as an attempt to create fair, »right« law (Stammler, Radbruch et al.), and a »normative« type, which restricts itself to the wording of a law and rejects sociological and philosophical explanations (Kelsen). The effects of these differences can be seen, for example, in the theory of interpretation. The so called »subjective« interpretation theory is rooted in the sociological, whereas the »objective« is rooted in the idealistic type of voluntarism.