1987 Fiscal Year Final Research Report Summary
The Formation of "Rechtswissenschaft"
| Project/Area Number |
60520007
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| Research Category |
Grant-in-Aid for General Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Research Field |
Fundamental law
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| Research Institution | Osaka City University |
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Principal Investigator |
ISHIBE MASASUKE OSAKA CITY UNIVERSITY,FACULTY OF LAW, 法学部, 教授 (90046970)
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| Project Period (FY) |
1985 – 1987
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| Keywords | jurisprudence / method of law-finding / Savigny / 方法論 / 法人理論 |
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| Research Abstract |
It is since the end of the eighteenth century that jurisprudence has come to be called Rechtswissenschaft in Germany. There are various reasons for this change. The followings should be pointed out, in particular: (1) Under the regime of Enlightened Absolutism, the Doctorine of Natural Law and Legislation considered civeil laws had the character of generality, certainty and perpetuity, and urged their systematization and codification. (2) The task to educate the lawyers was separated between the court and the university. The practical education should be conducted by the court, and the theoretical education by the university. (3) In the early civil states, lawyers as representative for the citizens had the task to guarantee the civil freedoms, and thus it was thought that jurisprudence should respond to this task. (4) According to the philosophy of Idealismus the doctorinal, systematic nuification of knowledge was made the goal of learning. At the same time the concepts learning, system and history changed. (5) Under this paradigm the historical jurisprudence attempted to form a jurisprudence which would integrate theory and practice.
Thus jurisprudence has come to find its task in elucidating the inner-relevance of legal cognizance and the legal system. Nevertheless, the aspect of prudentia, practical knowledge, is fused into jurisprudence as its inner-factors; for example academic concepte, such as jurisprudence as free art, or legal cognition by animated intuition. Under this framework, I clarified the method of the historical jurisprudence using unpublished materials, and analyzed the doctorine of legal person as an example of its application.
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