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| Disputed term/author/ism | Author |
Entry |
Reference |
|---|---|---|---|
| Laws | Savigny | Gadamer I 331 Laws/Sense of Laws/History of Laws/Juridical Hermeneutics/Laws/Savigny/Gadamer: How does the turn to the historical happen? In the face of a valid law, one lives in the natural preconception that its legal sense is unambiguous and that the legal practice of the present simply follows the original sense. If this were always the case, then the question of the sense of a law would be one and the same question both legally and historically. Even for the Gadamer I 332 lawyer, the hermeneutical task would then consist in nothing else than establishing the original meaning of the law and applying it correctly. In 1840, for example, Savigny still considered the task of legal hermeneutics in the "system of Roman law" to be purely historical. Just as Schleiermacher saw no problem in the fact that the interpreter must equate him- or herself with the original reader, Savigny too ignores the tension between the original and the present legal sense.(1) >F. Schleiermacher. ForsthoffVsSavigny/Gadamer: That this is a legally untenable fiction has become clear enough over time. Ernst Forsthoff has shown in a valuable investigation how, for purely legal reasons, a separate reflection on the historical change of things had to emerge, through which the original meaning of a law and that applied in legal practice can be distinguished from each other.(2) Jurisdiction: Certainly the lawyer always means the law itself. But its normative content must be determined for the given case to which it is to be applied. In order to determine this precisely, historical knowledge of the original meaning is required, and it is only for this reason that the legal interpreter takes into account the historical significance that the law has through the act of legislation. He or she cannot, however, be bound by what, for example, the parliamentary protocols on the intentions of those who drafted the law teach him or her. Rather, he or she must admit to the change in circumstances that has occurred and must therefore redefine the normative function of the law. >Jurisdiction. History of law: is quite different from the legal historian. The legal historian apparently means nothing more than the original meaning of the law as it was meant and applied when it was enacted. But how can he or she recognize it? Gadamer I 333 The historian must provide the same reflection that guides the jurist. [However]: the historian, who for his or her part has no legal task before him or her, but the historical significance of this law - such as Gadamer I 334 any other content of historical tradition, but not to disregard the fact that this is a creation of law that needs to be understood in legal terms. He or she must be able to think not only historically but also legally. >Laws, >Law. 1. Is it a coincidence that Schleiermacher's hermeneutics lecture was first published in the estate edition just two years before Savigny's book? One would have to specifically examine the development of hermeneutic theory in Savigny's work, which Forsthoff left out of his investigation. (On Savigny, see Franz Wieacker's remark in "Gründer und Bewahrer" p. 11. 2. E. Forsthoff, Recht und Sprache, Abh. Der Königsberger Gelehrten Gesellschaft 1940 |
Sav I E. von Savigny Grundkurs im logischen Schließen Göttingen 1993 Gadamer I Hans-Georg Gadamer Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik 7. durchgesehene Auflage Tübingen 1960/2010 Gadamer II H. G. Gadamer The Relevance of the Beautiful, London 1986 German Edition: Die Aktualität des Schönen: Kunst als Spiel, Symbol und Fest Stuttgart 1977 |
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