1994 Fiscal Year Final Research Report Summary
A Study in the Conceptual Jurisprudence in Germany
Project/Area Number |
05620009
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Research Category |
Grant-in-Aid for General Scientific Research (C)
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Allocation Type | Single-year Grants |
Research Field |
Fundamental law
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Research Institution | Tokai University |
Principal Investigator |
OTSUKA Shigeru Tokai University, Faculty of Law, Professor, 法学部, 教授 (80176932)
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Project Period (FY) |
1993 – 1994
|
Keywords | Conceptual Jurisprudence / Interpretation of laws / Methodology of law / Gaps in laws / R.v.Jhering |
Research Abstract |
This study aims at verifying, through an analysis original materials, contemporary distrust of that traditional image of the Conceptual Jurisprudence in 19c Germany, which represents it cynically as denying the law-making function of judges. Its results are as follows. 1. Comparing R.v.Jhering's memorial article for F.C.v.Savigny, written immediately after the so-called "conversion" from Conceptual jurist to End-oriented jurist, with his another article, written before it, I certified that he admired Savigny as a non-Conceptual jurist, irrespective of the "conversion." 2. Comparing the first edition and the second of Jhering's book The Spirit of Roman Law, which were published before and after the "conversion", I confirmed that Jhering continued to be a non-Conceptual jurist who was looking was looking for the most adequate way of fulfillling gaps in laws, and the reason for his changing method from "construction" to argumentation from a viewpoint of the law's aim, is that the latter was much easier than the former. 3. Accoding to some recent monographs concerning theories of G.Puchta and B.Windscheid, for example, J.Schroder's work The interpretation and the evasion of law (1985), pointed out that they also regognized the existence of gaps in laws and tried to justify scientifically their ways of fulfillling them. These works, illustrating their being non-Conceptual jurists by citing their original texts, encouraged the present study. 4. Through an examination of 16 modern studies of the legal fiction, one of our familiar ways of applying laws which are not suited to the case, I could ascertain the fact that it is the way of application of laws which is characteristic of the Conceptual Jurispredence.
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Research Products
(6 results)