What are the historical limitations of the traditional paradigm of legal method?

The so-called defects of the school of historical law only lie in its limitations of the times and idealistic views. Generally speaking, the historical law school has more advantages, as follows:

Brief introduction of historical law school:

/kloc-at the end of 0/8 and the beginning of 2009, a German historical school headed by Hu Guo and savigny was formed. This school represented the interests of the German feudal aristocracy at the beginning of its birth, and gradually evolved into one of the important legal schools of the bourgeoisie in the later development, ruling the European legal community for nearly a century. /kloc-in the 9th century, the school of historical law basically represented the mainstream of the development of legal thought.

Second, the idealistic view of historical law school is mainly represented by savigny, as follows:

Savigny was born into a noble family. 18 10 Berlin university has been a professor of Roman law since its establishment, and once served as the president and law teacher of the prince of Prussia. From 1842 to 1848, he served as Minister of Justice of the Prussian government. In order to refute Depp, he wrote a pamphlet "On Contemporary Mission in Legislation and Law". For the first time, the viewpoint of historical law school was systematically expounded. Later, he founded mud journal of Historical Law to spread this view.

Depp didn't directly comment on the Napoleonic Code in his pamphlet, nor did he publicize his initiative to formulate a code as a theory, but savigny and his protege directly and indirectly decided that Depp demanded the Napoleonic Code. His suggestion embodies the legislative viewpoint of rationalism of classical natural law school; He also claimed that the dispute between the two sides represented the opposition between the historical law school and the natural law school.

The basic viewpoints put forward by savigny in his pamphlet on behalf of German historical law school written in 18 14 are as follows: the rationalistic legislative viewpoint of classical natural law school, that is, the viewpoint of formulating a code universally applicable to human beings through the universal rationality of human beings, is completely "fantasy" and "absurd"; Since ancient times, law, like language, customs and political system, has "national characteristics", "national identity" and "inseparable organic connection from generation to generation". It "grows with the growth of the nation, grows with the growth of the nation, and tends to disappear with the loss of personality of the nation." In short, "law is the embodiment of national spirit"; With the progress of civilization, a class of jurists has emerged, who represent the same institution and are responsible for the technical aspects of law. Since then, the law has a duality, on the one hand, as a part of the same subject, on the other hand, as a unique knowledge in the hands of jurists, that is to say, the law has a political component (that is, national consciousness) and a technical component; Law is mainly embodied in customary law, which is the most vital, and its status far exceeds that of legislation, because law grows spontaneously, slowly and gradually, rather than being consciously and arbitrarily created by legislators, and so on. His conclusion is that not only legislation is secondary, but also Germany is "incapable of formulating a good code" according to the condition that German jurists still lack the historical spirit.

Savigny's views are based on historical idealism, just like the classical natural law schools in17th century and18th century, but there are significant differences between them. The rationalist legislation mentioned by the classical natural law school is essentially to formulate bourgeois idealized laws. But during the bourgeois revolution, this view was anti-theological and anti-feudal. The historical law school represented by savigny, though boasting about "history", distorted the history itself. Because the historical fact is that law is not a phenomenon beyond history and class, but develops with the development of social material living conditions and class struggle. Different from language, law is by no means the embodiment of abstract "national spirit", but the embodiment of the will of the ruling class, which is ultimately determined by the material living conditions of this class. The law contains the influence of historical factors such as national tradition, but this influence works through the will of the ruling class.

Savigny's view is not only idealistic, but also represents a reactionary trend of historical retro-ism under the historical conditions of Europe in the19th century, which is consistent with the spirit of the Vienna Conference and the "Holy Alliance", that is, the spirit of maintaining feudal rule. Although he didn't completely deny the role of legislation and code-making, he reduced legislation or code-making to an insignificant position subordinate to customary law. Its essence was to oppose the formulation of new capitalist laws similar to the Napoleonic Code in Germany at that time and safeguard the customary law representing the interests of decadent feudal rulers, that is, the provincial law, local law, common law and church law promoted by Germany and other States at that time.

His point of view, of course, fundamentally denied Depp's initiative to realize the reunification of Germany and France, that is to say, he opposed the national reunification of Germany and demanded that the fragmented feudal separatist situation continue to be preserved.