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Legal History Theory

Posted 8. November 2022 by Logistik-Express in Allgemein

The Spanish conquistadors found it surprisingly easy to conquer the New World. However, it took more than violence and cruelty to dominate the territory. A research team led by Thomas Duve at the Max Planck Institute for European Legal History investigates the media with which the Spanish crown has consolidated its power. An international research group led by Carolin Behrmann at the Max Planck Institute for Art History in Florence is studying the significance of images for the consolidation and legitimization of law, with a focus on European history in the early modern period. The theory of the Historical School of Law is a theory of learning. It emphasizes the importance of integrating people`s history and customs into the creation of laws. [13] Hart noted that not all legal systems state: The Concept of Law 3rd edn (Oxford University Press, 2012) 221-23. The theories of Kelsen and Hart could therefore be considered authoritative rather than descriptive. For Hart we should only call “legal” systems in which there is some form of civil servant, for Kelsen we need a system of coercion.

We should use a different name for normative orders that do not have this form. As binding definitions, they can be of great use to the historian in identifying and classifying what has been found, in order to be able to compare and contrast different examples of the same thing. They allow us to identify a specific class of human activities to study. However, even for this activity, these theories give only the most general and preliminary indications and are therefore only a beginning. They invite us to examine this object of study, and then think about it further, in a way that can test and refine their theories. For example, Hart did not explain in detail what “public servants” were, other than the fact that the only officials needed were those who set out (or “applied”) the rules, not those who applied them. [12] It was clear that he did not believe that these officials should be part of a state, as his theory also attempted to explain non-state legal systems. [13] Nor did he explain how they came to acquire their authority.

[14] All that was necessary for the existence of a legal system (in Hart`s theory) was that officials had their own usual system in the foro. Instead of telling us everything we theoretically need to know about the law, a theory like Hart`s only invites us to go further; And since the theory was based, at least in part, on assumptions about empirical behavior, it invites the theorist to take a closer look at empirical evidence – including historical evidence. In summary, the book aims to provide some relevant guides to guide the reader through a political and legal debate in which the rule of law (and the doctrine of “human rights”) is both a controversial and significant concept at the national and international levels. Although CLS was widely included in the United States, it was heavily influenced by European philosophers such as Karl Marx, Max Weber, Max Horkheimer, Antonio Gramsci, and Michel Foucault. CLS drew heavily on legal realism, the school of legal thought that flourished in the 1920s and 1930s. Like CLS scholars, legal realists rebelled against the accepted legal theories of the time and urged the legal field to pay more attention to the social context of law. At the same time, medieval law was also modified by rethinking. In medieval Italy, the local law – ius proprium – enforced by local officials was transformed when jurists in Bologna and elsewhere began to reconstruct and rethink Justinian`s newly discovered summaries, developing new ways of thinking that were previously unimaginable. New legal techniques have led to new distinctions and issues that have complicated the issues pending before the courts. As in England, the law becomes much more complex; but this was not the result of the first entry into the jurisdiction; but the result of sophisticated jurisprudential concepts that penetrate. Unless you have your azonic, as the saying goes, you should stay away from the palace, from the courtroom. [46] The new legal doctrine of Bologna also had an impact on the authors of the treatise known as the bracton and the editors of the French doctors.

Other interdisciplinary symposia at New York University include the Colloquium on Law, Economics and Politics, led by eminent political scientist John Ferejohn and eminent legal economist Lewis Kornhauser, and the Colloquium on Legal History, the oldest legal history workshop in the country. The theory believes that this holds the people of a society together and distinguishes them from all other peoples. For example, a German has a “national spirit”. Such a view has many appeals for those trying to understand a mass of legal documents, as it is useful to assume that there is an underlying order in which different documents can be sorted. However, we must be wary of a view that implies that pure analysis can unravel timeless legal categories. For while it is true that there are fundamental, generalized, abstract ideas from real systems that can provide scientists with a theoretical guide that attempts to understand experience, these ideas—like Hart`s more general legal concept—are merely generalizations, the specific elaboration of which may be contingent and variable over time. As Sir Henry Maine taught us a century and a half ago, concepts do not exist in a social or chronological vacuum, but are developed at specific times and places for specific purposes. [24] Concepts can be used, shaped and combined in a variety of ways and for different purposes.

As Ian Williams` contribution shows, not all legal concepts are developed by lawyers to be used for the practical purpose of solving legal problems. He argues that early modern jurists who established maxims sought to show that the common law was a science and aimed to provide a method of learning and understanding the law. They also tried to strengthen the status of the common law. [21] Relying on Gaius` civil model, Birks argued that legal rights (which can be defended in court) always arise from the expression of consent (such as contracts or wills) or from events that operate independently of consent (such as injustice or unjust enrichment): Peter Birks, Unjust Enrichment (Oxford University Press, 2005) 21. How Clerics Used Simple Rule Books to Establish the New Legal Order in Spanish America Legal philosophers who limit themselves to the analytical discussion of legal concepts are sometimes criticized for defining the “field of jurisprudence” too narrowly and making it completely analytical, excluding questions of moral theory. political and social as if they had nothing to do with the subject matter. Moreover, it is sometimes argued that this decision is a modern twist taken by jurists such as John Austin, who departed from the more holistic philosophies of Thomas Hobbes and Jeremy Bentham. [3] By narrowing the scope of the case law – and implicitly suggesting that only formal and analytical questions about the nature of the right, rights, duties, etc. should be of interest to the lawyer – they have been accused of narrowing the field far too narrowly. [4] In responding to this criticism, analytical lawyers can argue very convincingly that they do not mean everything that can theoretically be said about law: they are simply trying to clear the ground for further study by helping us understand what we mean by certain key concepts, the meaning of which we must be aware of.

Before you can ask 5 other types of theoretical questions. Therefore, the question of the effects of the law on society can only be properly understood if we first have an idea of what we mean by “right”; [5] We cannot understand the relationship between law and morality if we do not have an idea of what distinguishes them as concepts. Analytical jurists can thus refine the critique that they are jurisprudential imperialists by modestly replying that they do not complain that others ask their own theoretical questions. As Kelsen said, “Like any science, jurisprudence must first define its object by distinguishing it from other similar objects by answering the question: What is law as the object of a particular science?” [6] Apparently, this spirit is a product of human history, customs and systems of life.

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