ACTA JURIDICA - A MTA Jogtudományi Közleményei Tom. 5 (1963)
1963 / 1-2. sz. - KULCSÁR K.: The Historical Concept in the Science of Law of the XXth Century
The Historical Concept in the Science of Law of the XXth Century by K. KULCSÁR Institute of Legal and Administrative Sciences of the Hungarian Academy of Sciences In its introduction the paper dealing with the relations between historicism and jurisprudence points out that the notion of historicism has assumed different meanings in conformity with various ages and societies and this is particularly important in its impact on the science of law. In its first part, the paper starting from the social contents of the historicism in the historical jurisprudence of Savigny tries to define what this historicism means for the science of law of today, respectively how from the viewpoint of our days this historical way of looking at things is assessed. In the second part those forms are treated in which historicism appears in the jurisprudence of today, namely in the Anglo-Saxon doctrine (historical theory of law and pragmatic sociology of law), in the natural law doctrines brought into harmony with historical ages and in conjunction with the latter in the European science of comparative law. It also touches shortly upon the changes occurred in the social and ideological contents of legal history. In its final part the paper when analysing the historicism of Marxist jurisprudence it is concluded that this manifests itself especially in three aspects: 1. Legal phenomena and the concepts expressing them developed in the course of historical evolution, consequently their cognition cannot be but of a historical character. 2. It follows that this cognition is conditional, dependent on the state of existing society in the science of law, too; but this fact does not mean that this cognition would not have resulted for the totality of the science of law in true and useful conclusions or methodological traits, though reflecting the given social conditions, too, and eventually considering as absolutely prevailing importance of the element originating therein. The history of ideas, therefore, has come particularly into prominence also in jurisprudence. 3. Historicism comprises the concrete knowledge of the present time, too, thus these two elements constitute together the sociological view of Marxist science of law. The main point, the principal gist of the critique of historicism may be characterized even now by the motto of Nietzsche: ». . . gegen die Geschichte, das heißt gegen die blinde Macht des Wirklichen . . .«* This motto, however, by Nietzsche meant the claim to an emancipation from the historical constraint of the action, to a release from the traditions, in a wider sense, from culture, and even more from science, the claim to escape from rational thought, a stand for free human action, and, as the second part of his chain of thought emphasizes, the courageous observance of the "must" (Sollen). The word "must" is used in this context as a matter of course, not a "must" determined by the laws of history, but a subjective "must", the social-historical content of which 1 F. NIETZSCHE, Vom Nutzen und Nachteil der Historie für das Leben. — Unzeit• gemäßige Betrachtungen, Werke I. Leipzig, 1903, p. 357. 1 Acta Juridica V/1—2.