Special Workshop Abstract

Claes Peterson and Marie Sandström

Despite decades of intense criticism, legal dogmatics would seem to be thriving in the civil law-countries. In fact, judging by the development of Swedish jurisprudence in the 1990’s, it even appears to have gained momentum over the last decade. As a result of its predominance it’s all but impossible to pursue legal studies without at least a reference to the importance of legal dogmatics and its method. 

In this context it might seem surprising that the history of this particular brand of jurisprudence stretches back no more than 200 years. The genesis of legal dogmatics in the civil law-tradition is closely connected with the rise of the German Historical School in the early 19^th century. Primarily, the doctrine of legal dogmatics was advanced by Friedrich Carl von Savigny and his colleagues as a means to create legal unity in Germany. The underlying factors of the emergence of legal dogmatics are however more complicated. 

In a broader sense the doctrine of legal dogmatics constituted a battering ram against the concept of natural law and the natural lawyers of the late 18^th century. The scholars of the Historical School launched a furious attack against the natural lawyer’s inability to assist legal practice. Since judges, according to the Historical School, had been left to their own devices, citizens, as a result, had suffered unpredictable and arbitrary judgements. Instead, the Historical School maintained, jurisprudence must be regarded as an applicable science, since only legal scholars ultimately can guarantee the uniformity of law. This, however, presupposes that all jurists, including legal scholars, concentrate their efforts on the only thing they all have in common, namely positive law. 

In changing the focus of jurisprudence – from natural law to positive law – the Historical School unwittingly caused legal scholars a host of epistemological problems. By 1848 the issue of the scientific value of jurisprudence had become the object of a heated discussion between two prominent German jurists, Friedrich Julius Stahl and Julius von Kirchmann. According to Kirchmann jurisprudence is of little value to society, as well as the universities. Since positive law is continually changing legal scholars are reduced to playing the role of the 19^th century equivalent of a bag lady, forever on the look-out for the discards of law on the scrap yard of history. In defence of jurisprudence, Stahl advanced a new and improved definition of positive law; the interest of jurists, as opposed to lay-men and politicians, mainly concerns geltendes Recht (law in force). 

Stahl arrived at the conclusion that law in force can be distinguished from other aspects of legal reasoning by its connection to the doctrine of legal sources. Only those norms that are supported by a legal source can be considered legally relevant. Stahl’s definition of positive law is nevertheless lined with reservations. The concept of law in force is, according to Stahl, a fiction. Like every other fiction it has a limited scope and, although it can’t be proven wrong, clearly reflects as simplified and “dogmatic” representation of the law. Subsequently jurists have to transcend the boundary lines between law in force – the sole object of legal dogmatics - and other aspects of law when dealing with so-called hard cases. 

Despite Stahl’s persuasive argument this caveat would turn out to be short lived. The emergence of the Begriffsjurisprudenz – conceptual jurisprudence – in Europe meant that the notion of law in force became more of a fact than a fiction. Law, in the form of legal concepts and principles, not only could, but also should be set apart from society. Legal dogmatics, especially in private law, would no longer be restrained by historical and economical conditions. Instead the mainly descriptive jurisprudence of the Historical School was transformed into the productive – or constructive – jurisprudence of the Begriffsjurisprudenz.