History of legal theory

from Rebirth of Legal Theory Chapter 1: Position and Function History of legal theory

• The history of Legal Theory (i.e., how to view law) and various perspectives
• Kelsen: Pure Legal Theory
  • Pursued the logical meaning of norms
    • Probably before the discussion of the Paradox of Rules
  • Dualism of Method
    • Existence: Talking about facts, “is”
      • de: Sein
      • This is explained by the “causality” of natural science
    • Ought: Talking about norms, “should”
      • de: Sollen
      • This is explained by the “normativity” of legal science
    • These two are about different worlds
      • In other words, the “should” described by law and the “is” of the real world do not necessarily coincide
      • Example: Theft
        • Ought: There is a norm that says “Do not steal”
        • Existence: There are many thefts in the world
        • Neither the Ought (norm) nor the Existence (fact) can be deduced from each other
          • They are not equal, it seems
    • Natural science deals with the theory of “existence”
      • Like F=ma in physics, for example
    • Pure Legal Theory deals with the theory of “ought”
      • Ensures systematization through fundamental theories (like constitutional law)
    • The point is not to confuse these two perspectives, but to focus on the theory of “should” in legal science
    • It is not clear how the execution of the death penalty is a “should” theory rather than “a person died” as the teacher mentioned
      • Is it a “should” theory that says “those who commit serious crimes should die”?
• Weber: Sociology of Law
  • Looking at law from a sociological approach?
  • Similar to Kelsen’s Dualism of Method, distinguishing norms and facts
    • World of “ought”: Legal (legal theory) perspective:
      • Systematizing legal propositions, for example
    • World of “existence”: Sociological perspective:

      • Law as an expression of the basis that defines human behavior as facts

        • ?
    • Difference
      • The purpose of considering the dualism is exactly the opposite
        • Kelsen wanted to pursue pure legal theory that deals with “ought,” but Weber was interested in the sociology of law that deals with “existence”
        • In other words, he emphasized law as a sociological phenomenon
      • The two worlds are not completely separate but influence each other
        • It’s understandable that they influence each other, it’s hard to understand to think that they have no interaction like Kelsen
        • In addition, it is a field of study that wants to consider how they influence each other
          • Example: Q. Why did rational continental law originate only in Europe?
            • A. Something about the lineage from Rome
            • (The influence of existence on ought)
• Ehrlich:
  • Abandoned the Dualism of Method, ought = existence
    • The two worlds overlap

  • Law arises from social relations as a living law

    • “Social relations” refers to loops mentioned in 626023dd79e1130000da36e9
      • By these loops, the law is constantly being updated, so it is said to be alive
    • This is the opposite of Kelsen’s thinking
    • Deals with legal theory on how to systematize this living law
      • So, fieldwork is the main focus
• Then: Parsons, Luhmann: Legal System Theory