Legal Science: Origins and Development

Origins and development of the legal science

• Understanding law is not straightforward as a treatise on law can be positive or currently legally binding
• Conceptualizing the object of study in law requires both clear distinctions and interconnections
• Clear distinctions allow for objective analysis by separating the object of study
• Interconnections recognize that the object of study is part of the legal framework

The Institutions

• The Institutions facilitated the learning of Law
• The Institutions was enacted as a law
• The Institutions served as both legal science and extant law

Positive Law's scope

• The scope of positive law usually aligns with national borders
• The Socialist system is where the law is swayed by socialist ideology, common in socialist states
• The Common Law system is judicial precedent based, predominating in Commonwealth countries
• The Continental system is code and statute law based, generally found in Europe

Early developments of Jurisprudence

• The origin of Western legal science is situated in Roman jurisprudence
• In ancient Greece, there was a legal system with legislation
• The figure of the jurist did not exist in ancient Greece
• Functions fulfilled by men of politics and upper classes with rhetoric expertise in Greece

Key stages in the history of Jurisprudence

• The roman jurist was an operator of legal science
• He was the person who possessed, created and practiced knowledge
• Roman jurisprudence matured in the last century of the republic
• Before that point, it was simply doctrine

Stages

• Archaic jurisprudence represents the primitive legal systems and their development from the 8th to 3rd century BC
• Pre-classical jurisprudence covers the background of structured jurisprudence before imperial times
• Classical jurisprudence marks the peak of legal developments from the 1st to 3rd century AD
• Post-classical jurisprudence centers on legal reforms during Justinian's era

Jurisprudence

• Jurisprudence developed after written legal text appeared
• The first written text that appeared was The XII Tables in the fifth century BC
• This allowed jurists to interpret and evolve a defined object of study
• Pontifical jurisprudence involved sacerdotes as experts in law and merged legal matters with religious ones
• Jurist jurisprudence of laymen entailed people practicing in their own name, not as a member of a pontifical college

Jurisprudence - Systems of Law

• Legal systems in the Roman era can be broken down as follows
  • Ius Civile- Based on the Law of the XII Tables
  • Ius Honorarium - Which was based on the contributions of jurists and praetorian edicts
• Jurisprudence in the classical era was fundamentally case-based analysis by jurists
• The main thing they did was answer particulars cases, and provide solutions

Development of Law

• The Development and Structure of Law in Early Epochs
• There was a lack of legal institutions or formal schools
• There was a small amount of people which ment they were a law-class system
• There was a shared learning-method and focus when it came to doctrine of thought

Byzantine Empire (6th Century)

• Corpus Luris was introduced
• The Code was a compilation of existing laws
• The Digest or Pandects were a compilation of jurisprudential works
• The Institutes served as a didactic work for learning law
• Novels were laws promulgated after the code
• As a result, European Jurisprudence from the 11th century started to come about

Hierarchy of Jurisprudence of the Glossators

• The first cultural products of the bourgeoisie were developed at the Bologna school of glosadores in northern Italy between the 11th and 12th centuries
• Their method was study and annotation of the glosa
• Its focus was on texts of Justinian
• Its basis was the principle of indisputable authority

Evolution of Legal Thought in Italy

• In the 14th century, a new jurisprudential direction came about in Italy
• This school of thought was The school of the practicals, also known the commentators
• The catholic church favored the mos italicus over the mos gallicus
• This resulted in representatives of legal humanism linking to protestantism and calvinism

Evolution of the English Legal System

• Unification of the Kingdom. England was formed as one kingdom, allowing for the use of cohesive Law
• There was increasing Common-Law Development. This common-law was unified throughout the nation
• There was the concept of a Legal-Cast. This was the formation of an influential Jurists-class
• In addition to a legal-class was the idea of a legal-education

Evolution of The German Legal System

• Roman Law came from the dominance of Natural Law which was caused by Rationalism
• The concept of Legal-Authority was opposed
• Codification came from the codification-movements towards the Privatization of the Recht

Modern Legal Science

• Legal science, or legal dogmatics, emerged in Europe in the early 19th century
• England developed Analytical Jurisprudence that applies a logical approach to the study of law
• France developed the School of Exegesis centering on detailed interpretation of legal texts
• Germany developed the Historical School emphasizing the evolution of laws through history
• Scientific positivism rejects metaphysics and defends observation and induction
• Legal positivism as a concept of law does not imply positivism as a concept of legal science

Nature of Law

• The main voice of the Historical School, F. K. von Savigny rejected rational creation ex nihilo
• Law is unlike this. It is more akin to language, customs, and art, as it is from the spirit of the nation

Impact of The Historic School & Law

• The historical school in science looks at the historical perspective
• Has a science of abstract law, through a development of legal theory
• Also has a Jurisprudence of Concepts with formalism in Law

Evolution of Legal Science

• Legal scientific concepts should allow all consequences to be deduced
• The aim of legal science was a method to represent a given positive law through a system of concepts;
• The method was practically enshrined in the German Civil Code of 1900 and later applied in public Law at the end of the 19th century
• At the start of the 19th century Law varied between France and Germany due to France providing Code Civil 1804

Exegesis-Law concept of the 19th Century

• Identification of law, is the law being able to meet legal principles
• Venerating the Law means to value the core written-down rules, as they come from Legislator and Authority
• The method revolves around Interpreting and Discovering the initial idea for the law and then building on it

Foundations of Analytical Jurisprudence

• Analytical jurisprudence in England was developed in the early 19th century by John Austin
• Analytical Jurisprudence involves creating defined line between Law and Practice
• One needs to take into account what the sovereign can do through his ideas

Legal Knowledge

• All has to amount the legal knowledge so it may influence formal law
• A legal Inductions can be done and it is common today
• The law has changed from analytical to a more practical use in national systems

Understanding Formalism in Legal Science

• Formalism configures legal science based along the lines of logic or deductive-sciences
• They do this by using there power and organize things into a Systematic way

Applying Logic

• Applying deductive processes to analyze and implement rules is key to logical decision making
• These decisions and the knowledge of these rules help inform decisions based on findings of law

Understanding Legal Concepts

• Law is what Weber called formal rationality in the 19th century
• Factors that Influence things in this field can be
  • Factors found in the history of the Law that need to be implemented
  • What rationality and formal structuralism the law brings
  • Social status of parties involved
  • How effective the governance is

Revolt Against Legal Formalism

• Several movements developed as a revolt against legal formalism
• The German movement focused on legal reform and theory
• The French movement impelled legal innovation and philosophy
• The United States focused on pragmatism and legal realism in the US

Impact of Ihering

• Ihering’s work can have an impact on Formalism as follows
  • It involves opposing schools of thought, and seeing humans as an important aspect
• By doing that ,we can create a legal theory based around these two schools of thoughts
• You will give Law a creative power, of which needs Ihearing to do and contribute

Legal-Law Concept of Ihering

• Law should be a set of Coercion for the state
• This State coercism and their own individual Utilitarianism, is how laws shall be evaluated

Unwrapping Common-Law

• The way we look at application of Law through the lens of Common-Law has changed over time
• The Law involves now a type of Dependency ,which has made it more Traditional, and more open to being adaptable in our modern society

Jurisprudence

• England’s legal panorama has Austin’s ideas embedded since the early 19th century
• Critique that it looks into pure law from the US
• It comes from formalism in concepts, and looks at ways to study legal concepts

Legal Concepts

• A look at the state as a form of research to support the law
• Fetishism, also as part of the core
• As well as the state being the most relevant piece, other things matter, as they are beyond exhaustiveness

Dogmatic Law

• In itself, the idea that there are only two legal systems in the world is wrong
• To understand all fields that Law can be use, you may need
  • Multidiscipline support
  • Traditional knowledge and how to apply the knowledge you know
  • Compare them among each other and seek new knowledge

Comparison Points

• When comparing Law among regions, we may use the following to help us compare
• This includes comparing
  • General Law (as its used in each nation)
  • A Dogma (as it is used in this nation)

Theory Comparison

• When we analyze differences between regions, we may use the following
  • Elements used and shared among them
  • Recognition to areas that require Legal divisions

Applying Legal Concepts

• The Strictness and strict use/understanding of logical concepts is a needed skill, as it comes with the usage
• The people the legalities revolve around also matter, who are Jurist

Analysis

• By comparing and contrasting, we can discover dimensions
• Involve by comparing, one can learn Origins of Law & Methods we can use

Legal Modernization

• By involving El Papel del Derecho Comparado en la Evolución Legal Moderna we
• Help by Analysis: We also need The Theoretic Marco to understand general law and theories regarding it

Historical Law

• One must be knowledgeable and have deep understanding what the historical law means
• By going against that system can you create something that is useful and unique

Components of Laws

• The law is like a diagram with many inner locking systems like
  • Inner-Laws and perspectives in-check
  • Boundaries and outer laws
  • Checking to see if the function provides a function to people
  • Seeing the Laws as safe and legally backed

Law Comparison

• Law varies by solid, such as the difference between
  • Mechanized and automatic processes
  • How cooperative and reparative each style of thought is

Sociology of Legal Practice

• Sociology of Law is related to the study of it as a general practice
• You must involve Sociologists and Legal-Practices to bring forth the ideal version

Relations of Law

• Law is not meant to remain what it once was
• In most countries, the law will grow depending on a series of external effects/variables, some that need legal stabilization