Christoph-Eric Mecke, Hannover: Puchtas und Jherings
BeitrŠge zur heutigen Theorie der Rechtswissenschaft
Abstract: Setting aside the modes of
argument and idiom of their day, and focusing directly on PuchtaÔs and
JheringÔs legal thought, one finds three issues of current interest that are
directly traceably to their work. These issues are, first, the status of legal
science in the light of legal research, second, the role of creativity in legal
science, and, third, the limits necessarily imposed on the creative dimension
of legal science. Where PuchtaÔs and JheringÔs unified concept of science is
concerned, both proceeded from a view of the field that has since been rendered
obsolete. Still, their juridico-scientific thinking lends itself to comparison
with current models of substantive law that are based either on an analytic or
on a hermeneutic understanding of science. Second, the idea, widely held to the
present day, that both epistemic ÒcreativityÓ and creativity in judge-made law
inform work in legal science, is traceable back to Puchta and Jhering. Third,
also a reflection of current views, creativity in legal science presupposes the
content of the substantive law on the one hand and is to be distinguished from
statutory and customary law on the other.
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