Puchtas und Jherings Beiträge zur heutigen Theorie der Rechtswissenschaft

• Autores: Christoph-Eric Mecke
• Localización: Archiv für Rechts-und Sozialphilosophie, ARSP, ISSN 0001-2343, Vol. 95, Nº 4, 2009, págs. 540-562
• Idioma: alemán
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• Resumen

  • Setting aside the modes of argument and idiom of their day, and focusing directly on Puchta's and Jhering's 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 Puchta's and Jhering's 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 “creativity” 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.