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
1* The Historical Concept in the Science of Law 3 Consequently, speaking of historicism it should be pointed out at the outset that the concepts and so the concept of historicism, too, may only be understood historically, in conjunction with the social phenomena in their background which are reflected in them. The assessment of historicism in jurisprudence becomes particularly distorted if we look at it from the angle of identical levels, not marking the inherent differences. As a consequence, one side of the historical assessment of the historical view is the differentiation resulting from its interdependence with the social-historical conditions. There is no doubt, naturally, that in the evolution, in the formation of jurisprudence the most decisive factor is the evolution of the law itself but taken in a wider sense, that is to say, including its contents, the social conditions. The problems and claims of this evolution manifest themselves in the science of law. The mode of posing the problem and the way of its discussion, however, and particularly the attempts aimed at its solution reflect the mental and in the first place philosophical aspect of the epoch of the society. These traits express on the whole and essentially identical social trends, consequently, do not show substantial divergencies; but as the evolution during several thousands of years of the law and of the science of law has accumulated certain characteristics, which attribute specific character to legal phenomena and constitute specific elements in jurisprudence, the metajuristic, in the first place philosophical trends, categories and concepts which had had an impact upon the conception of the science of law carried with them the dead weight of their history, the assertion of which in many instances in many respects involves specific features in the methods of discussing and solving problems in jurisprudence. That is the reason why the jurisprudence of the same epoch and of the same society, although reflecting evidently essentially identical problems, has shown varied aspects. Consequently, the historical view in jurisprudence is, on the one hand, historicism of a special kind, evolved in compliance with the requirements of the legal problems, and is on the other hand, in itself a varied concept, which is tied to the philosophical appearance of historicism which reflects, however, to a certain degree, also the history of this concept. I. In analysing the historical view in the jurisprudence of the XXth century, a remark made by Saleilles at the turn of the century may be taken as a starting point according to which the application of the history on social sciences is a creative force, but the historical school has stopped half-way.4 The science of law was 4 R. SALEILLES, L'Ecole Historique et Droit Naturel, Revue Trimestrielle de Droit Civil, 1902, p. 80.