What is the difference between legal history and science?

Uwe Wesel On the method of legal history ~~ I. On the general situation of legal history In his modern history of private law, Franz Wieacker writes:,.,. The change,. which brought about the actual discovery of legal history and its emancipation from legal dogmatics in the consciousness of jurisprudence itself. Can't be overlooked at all «. And he continues:,.> Set in motion by the historical school of law. Paradoxically, at the same time it finally buried the program of historical legal dogmatics as a positive science. «1 Indeed ,. the result is paradoxical. Legal history begins its work at the beginning of the 19th century with the program of the historical school. It sees itself as a historical jurisprudence. In contrast to what they consider to be the unhistorical law of reason of the 18th century, law is defined as the result of a historical development. It can only be derived and established from it. According to this, the lawyer must also, and actually, first and foremost, be a historian. He can only make the right decision in individual cases if he is aware of the historical development of the law. That's where it started. And where are we today? On the one hand, we have a highly specialized legal history developed into an independent science with an overwhelming amount of historical information about law. On the other hand, there is jurisprudence and legal practice that work completely separately from it, with a volume of information about the law of the present that has now also become unmistakable, in which the law of the past is to a large extent included, but is not recognized as a historical substance is still being reflected. Legal history and jurisprudence are separate. Right from the start - since the triumphant advance of the historical school - the development of legal history was associated with a dehistoricization of law. The result is paradoxical2 • Where is the explanation? This development in law is not a particular problem in jurisprudence. It is part of a general process. which Joachim Ritter analyzed in 19613. He described how the - historical - humanities were given the task of building up civil society, through a complete text of the abbreviated form presented at the 20th German Legal Conference in Tlibll1ge on October 1st, 974 III SCIENTIFIC COMMUNICATION. I Fran z Wieacke ", Pnvatrec htsgeschlchte der Neuzeit, (>. Aun. 1967) p. 42). 2 Likewise," ParadOXie ", In the general context of the HistOri smu s, Fran z Schnabel, zJtlert bel Joachlm Rille, ', n Next note, p.) 9 A.) 5. 3 Joachlm Riller, D, e Task of the Sciences in Modern Society. In: Johresschrift 1961 der Ge se lls chaft zur FörJerurlg der Westfälische Wilhclms - UllIverSllät zu Münster, p. 29-) 5. Since to: Helmut Schelsky, Eirlsamkelt and FreiheIt (196)) p. 280-28) and Jiirgen Habermas, Zur Logic de r So zlalwlSserlschaftcn (1967) pp. 20 f.] 38 historicization to relativize and aestheticize the relationship between people and their past. They were the organ of society that compensated for its lack of history, loosened the behavior-regulating shackles of tradition, created a distance to the past, which freed action from its ties to tradition and dehistoricized it. This dehistoricization brought about by histonsm made the development of modern industrial society possible, because only in this way could the natural and action sciences with their techniques of mastering nature and the control of social life take on the role of orientation in action. HistorISmus had the function to scientifically legitimize the suppression of history from action, to set people free from history, to make them available and to feed them into the modern production process. At the end of this development there were on the one hand the humanities, whose historical thinking has no reference to action, and on the other hand the natural and social sciences, whose action techniques have no reference to history. Only recently have both been moving towards each other again. The dehistoricization has another, an ideological function. It serves to maintain the social status quo. After the bourgeoisie had largely enforced its economic rule, it has compensated for its renunciation of political power with the presentation of history since the middle of the last century. He could only remember that common struggle with which he had succeeded in asserting economic rule, and of the old and oldest tents, in which civil liberty had developed in the bud or in which the ancient republic was a venerable legitimation for the Represented the present. The fight was over now. Any further development would have been a threat to the bourgeois economic system, a threat to the finally generally recognized free bourgeois ownership of the means of production and the free labor contract. So the conditions of bourgeois production had become unchangeable in the self-understanding of the bourgeoisie, determined by natural laws, independent of the influence of time. "There are eternal laws," writes Marx in "Misery of Philosophy," "which always have to rule society. Thus there has been a history, but there is no more." The nineteenth century was illustrated by Georg Lukacs: in his essay on History and Class Consciousness, he describes how the bourgeois class in its revolutionary period, in the struggle for natural law, assumed that the rationality of law was at the same time its own It was only after it had at least partially triumphed and the working class had been recognized as a threat to the future that bourgeois law had adopted the conception developed by the historical school that the content of law was something purely factual, incomprehensible from its formal categories. All that remains of natural law is the idea that the formal system of law forms a seamless connection The rationality of the content will be eliminated, the right to a formal calculation system, with the help of which the necessary legal consequences of actions can be calculated, will be de-historicized, the content will be mysterious, go the 4 car! Man. The misery of the philosophers, e, MEW 4.139. Jurists as such do not, and the real basis of the emergence of law, the change in the power relations of the classes, blur and disappear in the transfiguration of eternal, historical cultural values5 • Legal history has accepted this development without contradiction. It either willingly accepted the dehistoric process or - and to a considerable extent, it did so - did not notice it at all. Questions of method have not played a major role for her since the program of the historical school, only secondary questions were discussed - such as those of the conceptual instruments in German studies, the interpolations in Romance studies or their own insignificance complained. In contrast to other sciences, which were strongly shaken by opposing views on questions of method, the provinces were divided into a German and a Romance department, and for the rest of the time, an unconscious tacitus consensus omnium prevailed over the basis of scientific work. Discussing questions of method that concerned the basis of science was crude, was considered unhistorical, and was not part of the subject. You had to get philosophical for that. They refused. It was the same as Frzedrzeh Engels, who in the introduction to the English edition of the "Development of Socialism" quotes with a certain sympathy the sentence: The proof of the pudding is in the eating6 • Only a few exceptions confirm the rule. The most impressive is Gerhard Dulekelt, in his "Philosophy of Legal History" (1950). He is a Hegelian. For him, law is objectified free will and legal history is the realization of this concept of law, the realization of this objectified free will. It takes place as the logical development of the most general presuppositions of free will. These prerequisites are ownership, responsibility and as free a bond as possible in the community. Legal history thus proceeds in three dialectical stages, which lead from the external world of law (property) inwards (responsibility) and outwards again (community relationships), i.e. from property inwards to the subjective elements of law that develop thereafter, like intent and negligence, and then again outwardly to the community relationships of the family, economic coexistence and the state. A great construction. Had Heinrzeh MittelS said something similar, even if not with this intellectual sharpness? For many years they remained the only ones who - after the horror of the last war, after the "failure" of science under fascism - had become a problem. Incidentally, legal history - without methodological reflection - was busy with organizing and publishing the legal sources of historical law, opening up its formal set of rules as far as possible and tracing them back to its origins. It is predominantly formal textual criticism and formal interpretation, carried out with meticulous meticulousness and subtle skill at the highest level of scientific precision in detail. This admirable rationality of their techniques, their tools, is contrasted with an equally admirable irrationality in the awareness of the methodological basis and the goal of this science, a consciousness that is more of a mood, a feeling of right than one s Georg Lukdcs, Geschichte und Kla sse nbewußtsein (J 92}, Ndr. J 970) p. 2 ° 4-2 ° 7 6 Frredrr ch Engels, Introduction to the English edition of the "Development of Socialism from Utopia to Science", ME W 22 .296.7 Heinri ch MittelS, Vom Lebenswert der Rechtsgeschichte, '947. Eine Neuhegelial1lsche POSition sc ho n: Walther Schönfeld, Vom Problem der Rechtsgeschichte,' 927. 340 independent intellectual greatness of occidental history, like the beautiful, the good and the true. This more or less unconscious idealism is often associated with positivistic moods. In memory of Max Weber, it is assumed that science must not become political, but rather n All you have to do is determine what is, that is, what is in the sources. Socio-historical thinking, as represented today in general history, for example by Hans-Vlrlch Wehler, can only be found sporadically, but increasingly recently. Wolfgang Kunkel wrote a treatise on the "Origin and Social Position of the Roman Jurists" as early as 1951. Works based on a conscious and consistent materialistic conception of history are very rare. The best known is Francesco de Martmo's "Storia della costituzione romana" 8th. But even today the unconscious idealism predominates, the verbal traces of which can usually be found in the introductions to textbooks and handbooks 9. If you consider what our young lawyers are expected to do here, in the second half of the 10th century, also in academic instruction, then one remembers Julius Langbehn, the Rembrandt German, who sighed in a similar context - albeit in the wrong direction has uttered: "The current German upbringing of young people is a kind of Bethlehemitic child murder." 10 Who is surprised that for some time now the children have hardly been ready to come to Bethlehem? ll. The methodical teachings of Franz Wieacker The accusation of lack of theory, however, has to be restricted for the present. It is to the great merit of Franz Wieacker to have received the methodological honesty of the DIszIplin. In the last few years he has repeatedly dealt with this question with admirable tenacity in several treatises, in principle adhering to the direction he once taken, but also changing his attitude slightly over time. I will try to reproduce the essentials. Wieacker believes that the legal historian should not make judgmental, historical or legal philosophical decisions, but should go to his work without prejudice. That is why he rejects, for example, Dulckelt's Hegelian system. That is the decision in favor of positivism, that is, for a factual research that is limited to the determination of the external appearances of reality: legal history as a science of reality. In his first two treatises he goes along with it - following Sten Gagnh12 B Franeeseo de Martmo, Stona della costltuzlone romana, \ volumes (J9j1-T967). Vg !. on this Wollgang Kunkel, SZ 72 (19 \ \) p. 297-3 ° 1 and SZ 77 (196o) p. 370-375. Further works are mentioned bel Max Kaser, The Roman Pnvatrecht, First Section (2. Auf !. 197 J) p. 10 A. I 4. To be added: Marxist contributions to legal history. Scientific publication series of the Humboldt, Ul1lverSltät zu Berlin 1968, ed. v. H. Küntsehke, j. Melzer, H. Seh "öder, W. Sellnow. 9 Evidence on: Working group (T Blanke, G. Böhme, T Huth, U. Müekenberger, E. Stamm, R. Wahsner, H. Wrobel), Kntik der civil legal history, KJ 1973, pp. I09-T29. 10 Rembrandt as an educator. Von einer Deutschen (I I. Auf !. 1890) p. 94. 11 The current status of the DISzIplin of the newer private law sexes, Eramon MandaklS (1963) pp. 339-366 (Eronlon); Notes on RechtshlSton's hermeneutics. News of the Academy of Sciences rn GöttIngen, philosophlsch · HlStonsche Klasse, 1963 (Notes); Remarks on RechtshlSton's hermeneutics. In: The problem of interpretation. Malnzer UniversItätsrechner 1964, edited by H. Müller and P Schneider, S. \ -13 (remarks); Pnvat · Rechtsgeschichte der Neuzeit (2. Auf]. 1967) S. 13-2 \ (PGN); Article »RechtsgeschIchte .. In: 1) .1S Fischer Lexikon, Recht (197 I) p. 13 7-J \ 2 (Fischer-Lexikon). 12 On Stern Gagnervg !. EraIllon p. 34 \ A.2 \, 354. - of neo-positive ideas a us, which he later gave up in this clear form in favor of an unspecified general positivism. On the basis of his positive-istic prohibition of philosophical preliminary decisions, Wieacker then poses the question of the relationship between history and legal history. What makes this discipline different from general history? Is there a methodological independence of legal history? The Hegelians, Gerhard Dulckezt and before him Walter Schönfeld, had it easy. For them, the independence of legal history resulted from the independence of the legal idea from the absolute spirit. General history was the history of the development of the absolute spirit, legal history that of the legal idea. However, these are philosophical preliminary decisions that Wieacker does not accept. For him, independence arises from the need for legal experience. Unlike the historian of general history, the legal historian, as a jurist, must have his own experience of law, without which he cannot understand legal history, just as an art historian interprets an art monument differently than a normal historian because he has his own experience of art. This solution shows what the other basis of his methodological considerations is. It is Dilthey's solution who, after Kant had answered the question of how reme natural science is possible in the Critique of Pure Reason, sought the answer to the question of how historical humanities are possible. His answer was: through one's own historical experience, that is, through the historical identity of the subject. "I too am historical." 1J Wieacker's justification for the independence of legal history is accordingly: "I too think juridically". After delimiting the area of ​​DiSZIplin in this way, he turned to the methods of legal history work, here too on the basis of the hermeneutics of the humanities, and very closely based on Hans-Georg Gadamer. Gadamer succeeds Dilthey and Hezdegger 14. His hermeneutics is the consistent completion of the previous development in the conception of the historical spirit since H egel. In H egel's work, this spirit still stands outside of the individual historical events, is objective, but in the further course of the development of German idealistic philosophy - via Dilthey, Husserl, Jaspers and Hezdegger - it is increasingly included in the individual historical process, increasingly with subjective ones Enriched elements. On the path of philosophy since Hegel, objectivity has progressively narrowed, Hegelian thinking has become more and more subjectivized, extra-historical references have been suppressed more and more, and with Gadamer this path ends in a total subjectivity of the historical spirit.While with Hegel it was still the absolute objective spirit and with Dilthey life that provided the orientation for the assessment in history, and with Jaspers and the early Hezdegger it was existence, then for Gadamer history is only founded in itself, will recognize that- IJ Zu Dilthe) 'excellent: H, ms-Georg Gada mC> ", Truth and NIethode (2. Auf !. 1965) p. 205-2 I 5. Dürt also p. 1. IJ f. zur InrentlOllality, to which L ~ / ieacker refers with the "IntenrWI1 auf Recht", eg Notes p. 8-10. Howeacke? "S Justification of the self-reliance: Eralion p. 356-360, Notes p. 5-J 0, PGN p. 15 r. 14 Hans-Georg Gadamer, Truth and Method, 2. Auf !. 1965. A very good presentation by I: Walter Schu / z, Philosophy 111 der veränuerten Welt (1972) pp. 531-54 I. 342 the subject itself to an essential part of the story, which is taken up and continued through the interpretative act of knowing. Gadamer calls this active part of understanding application. And then his real achievement consists in establishing that every understanding is action-related, that every interpretation of historical evidence is necessarily connected with reflections on one's own actions in the present, or, as Habermas puts it, with the articulation of an action-oriented self-understanding 1s . For him, the historical process is the repeated application in historical understanding, action always reflected on the previous. And so the history of the impact of the human spirit emerges in the constant taking up and reshaping of the previously thought. For Gadamer, the history of effects is the necessary addition to the concept of application, the uninterrupted sequence of applications in the historical process is easy to understand for the legal historian when he thinks about how a legal text has had new effects over and over again, from its creation, for example, in the Roman imperial times, through the Middle Ages, the gloss, up to the modern age, the Usus modernus, the Pandect law and up to the modern codifications of civil law, and the interpretation of the following period is regularly based on the previous one. With this new hermeneutics, the old conception of the humanities is decisively changed, resulting in a new relationship between theory and practice. The new hermeneutics is action-related. The previous humanities were purely contemplative, aesthetic. The action orientation resulted from the narrowing of the objective to the subjective spirit. Only the subjective spirit itself became the carrier of action again. How important this change can be for the humanities can be seen when one thinks of its role in the dehistoricization of the so-called action sciences, which Joachim Ritter so clearly described. The dehistoricization was also the result of the objectivist attitude of the humanities. It was overpowered by Gadamer. For this reason he also expressly declares that his hermeneutics is universal, is not only a new basis for the humanities (which thus receive a new orientation for action), but also claims validity for understanding in the social sciences (for which this opens up the historical dimension) . Incidentally, Gadamer's hermeneutics, with its description of the technical procedure of historical understanding, is on its way from a part of the text to the whole and from this back to again as a groping, looking back and forth, referring back and forth over and over again its part, as it had already been described by Dilthey for hermeneutics - otherwise this method is clearly opposed to the unhistorical, grammatical-systematic method of the early Wittgenstein, who is a strict logician. The archetype of this searching and groping understanding, because of its abstraction from historical-temporal distance, is the translation from a foreign, living language, the "hermeneutic borderline case", as Abermas called it.16 Wieacker now adopts some of Gadamer's ideas for legal history In part, he supplements them with special techniques, which according to IS Jiirgen Habermas. On the logic of social sciences (1967) p. 170. 16} ürgen Habermas. (Note 15) p. 152. his view is especially necessary for legal history work and in some cases he firmly rejects Gadamer's ideas. He adopts the translating method of understanding, the inventio of hermeneutics, so to speak, and supplements it with the additional requirement of the formation of types. He adopts the idea of ​​the history of effects. But he rejects it, To see an application in the understanding of legal history. He takes over the hermeneutic inventio. In its method He recognizes the working methods of the legal historian by fumbling around, searching back and forth and constantly examining things backwards. He supplements this method with the demand for type formation, which for him results from his positivistic premise. The premise leads to the demand for a conceptual instrument that is variable and can be tested experimentally. How do I understand the legal problem in an old text, when one might have had fundamentally differently structured ways of thinking back then than today? It is the problem of appropriate concept formation, which is particularly well-known in legal history German studies. Wieacker is again based on his own experience. It shows that there is a large, but ultimately limited number of types of legal problem solutions, legal terms, legal institutions that appear everywhere and again and again, for example the institute of marriage, the house association, household property, succession, property, etc. He consciously avoids calling them - that is Max Weber's terminology - as ideal types. He calls them factual structures, based on Welzel's »factual logic structures«. With this set of instruments the legal historian must try to understand the historical evidence. Wieacker understands this set of instruments as a kind of positivist tool. It is not a philosophical preliminary decision if the legal historian goes to work with him to determine whether it is appropriate to the historical material. He sees this in analogy to a scientific, physical experiment. Here his approach to neopositivism can be felt, but also Popper's influence when he assumes that there will never be final certainty about the success of this hermeneutic experiment, as he expressly calls it, but only a very high probability that one understood something correctly l7. Wieacker later gave another reason for the type formation. He admits that legal history, like any science of history, must proceed in a historically individualized manner, not in a normative and dogmatic manner like the legal and social sciences. But it is the story of - at least possibly - normative processes. Therefore, like social or economic history, it also needs typical models of interpretation, in other words: models that lie roughly in the middle between the individual of the historical-individualizing humanities and the general of the norma ti and ogmatic action sciences 18. He takes over from Gadamer further the concept of the history of effects. This term is indeed very suitable for the interpretations that overlap on an old legal text, most of which are based in some form on the previous one, for example also for 17 Notes, p. R 3- '8. In contrast to Popper, however, he also speaks of »verifying«: Comments p. 6. 18 Fischer · Lexicon p. 16. This Rckertian distinction between history and social sciences is now really out of date, see above. Hans-V / rzeh Wehler, Geschichte als HistorISche SocialWwissenschaft (1973) p. 13 and note 12 on p. 37. 344 to formulate even more precisely the "canon of autonomy" of the text already formulated by Bettt, i.e. the commandment to have a source to understand only from the ideas of their own time and not from their history of impact. But, and this is, as one can easily see, of some importance for the self-understanding of the discipline, after initial hesitation Wieacker refuses to assume that legal historical understanding is connected with application For him it is only contemplative, not applicative 19. This refusal is remarkable. On the one hand, from the point of view of Gadamer's hermeneutics, it must of course appear impossible at first glance to assume the history of effects without application. Wieacker would rightly disagree that the history of effects is of for him it has only been accepted for the history of legal testimonies that are themselves to be applied to the law belong to. In the area of ​​the application of the law there would of course also be applications for him, but for the historical consideration of the development of this application of the law there would be neither application nor history of effects. They are purely contemplative. Overall, he refuses to take over the substance of Gadamer's hermeneutics, namely the history of effects and application, for legal historical understanding. However, Gadamer developed his ideas precisely using the example of legal history. Let's look at its reasons. Gadamer refers to a lecture by Ernst Farsthaff from 1940 on "Law and Language" 20. Then Farsthaff explains that in jurisprudence there is no difference between dogmatic and historical thinking. The mistake of the historical school was only to think philologically, antiquarian and - in a subjective interpretation - to be more interested in the original will of the legislature than in a meaningful application of the law in the present. Basically, her program was right. Law can only be understood historically, also for its dogmatic application. What is right can only be understood from its development, in which in the course of historical change the original meaning of a legal proposition has changed up to its present meaning. Gadamer complements this idea in the other direction. It is not only about application when the legal dogmatician thinks from the past into the present in order to recognize what is law and how he has to decide, but also when the legal historian looks into the past from the present. He is only concerned with the original meaning. But he cannot recognize it without making himself aware of the change in circumstances. He, too, must do what the judge does: distinguish between the original meaning of the law and the present day, in whose pre-understanding he lives as a present. Of course, Gadamer also sees a difference in the activity of the dogmatic jurist and the legal historian. But for him this difference is not of a fundamental nature, is not qualitative, but rather quantitative and should be seen from the perspective of the respective perspective. The decisive factor is that historical knowledge can only take place in such a way that in every case the past is seen in its continuity with the present. This relationship between past and present 19 \ Virklln gsgcschl chtc: Era rll on p. 359 L, Notes p. 4, 8 - 10, Autonomy of the text: Er.lnlOIl p. J62 1., Notes p. 10 Application: initial fluctuation "'Erallion S. J 5 7 A. 54 and S. J 5 9 1'., Rejection see note p. 9, 12-20 Gadamer (note IJ) on application: P. 292- J2J, wr Junstl sc hellun d rechtshlSLOrlSchen hcrmeneutics: from p. J07 Ernst fars / haff, law and language (Nd r. J 96-1) p. J-17 in legal hermeneutics is not a special case for him but a model for all understanding, which is always historical. Every implementation in understanding is a mediation with the present. Even before Wieacker, this principle of Gadamer's hermeneutics had found its opponents. Emilio Betti was the first. He is among the legal historians the one who has dealt most with methodological questions: from the beginning he was interested in questions of interpretation and later on occupied almost exclusively with the general methodology of the humanities. He is a Hegelian, an objectivist, and stands in marked contrast to the subjectivist existential philosophy of Jaspers, Hetdegger and Gadamer. Of course, he has to declare himself against the assumption of application in historical understanding. For him, of course, the objective spirit stands outside the histonic tumult. Everything else, that is his justification, would open the door to subjective arbitrariness 21. Alfred Heuss, the Göttingen historian, agreed. For the equation of histonic and dogmatic understanding would mean historicizing human life even in its presence22. Wieacker cannot accept this justification. That would violate his prohibition of philosophical preliminary decisions. He gives his own reason. And derives it from his - very carefully formulated and basically only provisionally conceived, but unambiguous - legal theory. For him, in close association with Hans Welzel, law is ethically founded, but ultimately also over-positive, over-historical, and indeed founded in personal conscience and thus in individual responsibility23. So his justification for the rejection of the application in legal history is: The legal historian shares with the legal dogmatist the interest in law, but not his responsibility. He does not have his responsibility for the correctness in the practical public actions of the jurist of the present24. The interpre tation activity of the legal historian is thus contemporaneous. It consists of scanning the historical material with the instruments of historical types, of factual structures, and of checking your own inventory of concepts over and over again. But what is the result if it cannot be the application? Wieacker describes the result - and this is not without significance for the assessment of this method - in the following words: In the progressive success of such interpretations, perhaps only in the work of many generations, we possibly increasingly ascertain an extrahistorical or superhistorical legal experience and that is the happiness that the legal historian experiences in the best hours of his work. ,, 25 So much for the summary of the methodological teachings of Franz Wieacker. It must be added that in the end (197 I) he also saw a part of social history in legal history. To that extent, it is the history of forms of socialization, property constitutions, socially recognized rules of conduct and their socio-psychological preconditions 26. That could be a certain 21 Emilio Belll, Die Hermeneuti k als Allgemeine Meth odi k der GeistesWISSen Schaften (1962) pp. 48-52. In the last part of the work, General Interpretation as Methodology of the Humanities, 1967, it is not discussed again. Cf. there p. 492 A. 4. 22 Alfred Heuss, On the Hermeneutics of the St. Johns and Juristic Normative Sentence, Studi Bett! I (1962) S. Tjl - 172, \ gl. esp. p. 159. 23 PGN p. 609-619. "Notes p. 12. 25 Comments p. 13, Vg l. Notes 5.19 and 11. 2 6 Fischer-Lexikon p. 137 i. 346 mean turning away from his previously strong intellectual-historical program. That is not certain. And more detailed He has not yet taken a position on this. In the last three years, however, others have expressed themselves, partly in agreement, partly critical. The shocks in the self-image of science caused by the student revolt of the 1960s had finally reached legal history with the usual phase shift Brief description in chronological order: Wieacker found approval from Max Kaser. In the second edition of his handbook on Roman private law, published in 1971, he included a short section on methodological issues, in which he states that legal history cannot rely solely on description the external facts of legal life, but must also investigate their causes. But she has, and here he appeals to Wieacker, to keep free from historical or legal philosophical preliminary decisions 27. And an essential element of Wieacker's method, the idea of ​​factual structures, has been confirmed by Theo Mayer-Maly. For him, however, they are timeless from the outset, historical, and keep reappearing because the reservoir of legal construction possibilities is necessarily limited. 28 Dleter Simon states that legal history has to show socio-historical conditions for legal development, if one determines its task in terms of a social theory, so tends to see its task for the future not so much in the history of dogma, but essentially in social history . He contradicts Wieacker in determining the subject area. The very personal experience of the lawyer who works in legal history is not a sufficient criterion for this. Only what has been viewed as right by a historical society itself can only be described as historical right by legal history.And he then supplements this demarcation with the requirement that legal history also has to examine the entire available nomological (i.e. regular, rule-based) knowledge about systems of order and organization in human society, i.e. also objects that we consider today consider legal ones, which at that time were not regarded as law29. In a detailed, in some details attackable, but basically correct "Critique of the bourgeois legal history", which of course also turns against the views of Franz Wieacker, a working group of lawyers from Giessen and Frankfurt now used the previous idealistic method of working in the history of ideas Legal history attacked ideology-critically30. You pointed out the dehistoricization associated with this method and called for a materialistic theory of history to be used to restore the necessary historical orientation in action. The task of this new legal history is to radically regain a consciousness of the historical and thus also of the present conditions and possibilities of collective emancipatory practice within the socialist movement. This task she could only 27 Max Kaser, Das Roman PrIvatrecbt (note 8) p. 10. 2. Theo Mayer-Maly, Die Wiederkehr von Rechtsfiguren, JZ 1971 p. 1-3. 29 Dleter Simon, article "Rechtsgeschichte" In: Handlexikon zur RechtswISSenschaft, bg. v. Axcl Görlitz (1972) pp. 8, 3 I 5 f. 30 note 9. by not pursuing the idea of ​​a timeless and interhistoric immutable law, but understanding the present as a historical stage that is changing and is accessible to conscious change in solidarity. Ahnlieh expressed himself - in a very personal and more sociologically oriented criticism - Hans Erieh TroJe. He asks the legal historian how he actually justifies not asking the question of the oppression of the oppressed. In any case, this kind of legal history does not make the oppressed free. Peter Landau examined the question of whether Kar! Marx legal history as a single science is possible. In a very thorough interpretation, especially of the “Grundrisse der Critique of Political Economy” - the rough draft of “Capital” from 1857 and 1858 - he states32: For Marx there are non-simultaneities, disproportions, as he calls them, in the development of the material Production and the relations of production. Furthermore, given the same development of the productive forces, different social and legal solutions are possible in the shaping of the relations of production. With this Peter Landau comes to the conclusion: Legal history as an independent discipline is also possible for Marx. I come to the end of this overview. And report on a more practical consequence of the development so far, which seems to me to be typical. It consists of adding an adjective to the last edition of the textbook on German legal history by MittelS and Lleberteh. In the 12th edition of 1972 it was said: »It (the legal history, UW) shows the political and social conditions under which legal norms are formed and how these themselves have an effect on the course of history, just as history is often nothing other than realization of the law «. This sentence was quoted in the criticism of the working group and - in its broader context - attacked. In the 13th edition of 1974, Lieberteh added the word "economic" so that it is now the political, economic and social conditions under which legal norms are formed. After all. In the following we will have to ask ourselves whether this is sufficient. 111. K rttik der Wieaeker's teachings considerations for the future have to start in the criticism of the present. Should we work as Franz Wieaeker put it? There are, however, many concerns. His teaching is the combination of positivistic, hermeneutic, ideal-typical structuralistic and idealistic elements. Can all of this be methodically reconciled with one another? First there is the juxtaposition of positivistic demands and idealistic ideas. On the one hand, Wieaeker demands that legal history should keep free of philosophical preliminary decisions. Be it reality science. For the legal historian, there is no turning back behind an illusion-free neopositivism. On the other hand, there is the methodological goal of increasingly using a hermeneutic experiment to focus on an extra-historical or supra-historical 31 Hans Erleb Tro] e, Legal History: What Can We Do? In: Recht und Politik 1974, pp. 10--17 J2 Peler Landau, Karl Marx und die RechtsgeschIchte, TR 4 I (t 97 »p.} 61-} 7 I. 348 to ensure legal experience by bringing problem structures into view, which - to a certain extent, but at least - are relieved of historicity. For Wieacker, the progressive success of this reassurance is that happiness that the legal historian experiences in the best hours of his work. In other words, if he cannot find out that it is supra-historical legal experience Then he is unlucky. Because liberal legal experience is good. In this context, positivism has the task of legitimizing the empirical investigation of individual questions. The idealistic conception concerns the overarching development context that results from the concept of spirit itself. Wieacker writes on this: "In the light of this demand, the historical metaphysics of Hegel, Schelling and Croce, the ideal type of Max Weber and d he hermeneutics of Betti (more or less in need of revision) versions of one and the same indispensable problem of legal history. “And he adds that without this idealistic context, empirical, positivistic research would be completely useless. It is a completely normal idealism, the conviction that there are notions, ideas of law and justice that have been common to all people at all times and, of course, this is not entirely unimportant, will remain common. However, after so many experiences of the failure of idealistic conceptions of history and after the confrontation with the challenge of the materialistic conception of history, it is an idealism that is formulated on the last remaining and strongly differentiated position, after the others have long since been out of intellectual honesty had to be evacuated. An idealism with a guilty conscience. An idealism that basically realizes that historically it has come to an end, but which nevertheless does not want to give up. Wieacker says it is bst explicitly: “Anyone who repeatedly experiences the dependence of valid law on historical, political and social coincidences will easily despair of recognizing historical manifestations of justice themselves in them, and ultimately only the well-known in their standard>