Die deutschsprachige Rechtswissenschaft seit 1800 und der Rechtspluralismus

2020 ◽  
Vol 137 (1) ◽  
pp. 272-363
Author(s):  
Ralf Seinecke
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
The State ◽  
German Language ◽  
German Speaking ◽  
History Of ◽  
Continuous Presence ◽  
German Reich

AbstractGerman-Language Jurisprudence since 1800 and Legal Pluralism. This paper examines the history of legal pluralism in German-speaking jurisprudence since 1800 using the topoi of law without the state, alternative law, interlegality and nomos. It shows the continuous presence of these topics in the classical debates of German jurisprudence until the concept of legal pluralism was invented in the second half of the 20th century. The end of the Old Reich in 1806, the foundation of the German Reich in 1871 and the BGB from 1900 are important caesuras in this story. They indicate the assumption of a “delayed sattelzeit” in German legal theory during this period.

A Pluralism of Legal Pluralisms

2017 ◽  
Author(s):  
Emmanuel Melissaris ◽  
Mariano Croce
Keyword(s):  
Legal Pluralism ◽  
The State ◽  
Central Moments ◽  
History Of ◽  
Way Of Thinking ◽  
Varied History

Legal pluralism, as a way of thinking about law, is the seemingly straightforward idea that there is a range of normative orders, which are independent from the state and can be properly described as legal without committing any conceptual mistake. Without giving a full survey of the long and varied history of legal pluralism theory, this article will discuss some central moments in that history. It will focus specifically on the question whether it is possible and useful to capture law as conceptually separate from other normative phenomena so as to speak of specifically legal pluralism or whether it is best to take a panlegalist approach and not draw any clear distinctions between law and other instances of social normativity.

The State of the Political

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Max Weber ◽  
Political Representation ◽  
Historical Context ◽  
The State ◽  
Carl Schmitt ◽  
Political Criticism ◽  
History Of ◽  
Franz Neumann

This book offers a broad-ranging re-interpretation of the understanding of politics and the state in the writings of three major German thinkers, Max Weber, Carl Schmitt, and Franz Neumann. It rejects the typical separation of these writers on the basis of their allegedly incompatible ideological positions, and suggests instead that once properly located in their historical context, the tendentious character of these interpretative boundaries becomes clear. The book interprets the conceptions of politics and the state in the writings of these three thinkers by means of an investigation of their adaptation and modification of particular German traditions of thinking about the state, or Staatsrechtslehre. Indeed, when the theoretical considerations of this state-legal theory are combined with their contemporary political criticism, a richer and more deeply textured account of the issues that engaged the attention of Weber, Schmitt and Neumann is possible. Thus, the broad range of subjects discussed in this book include parliamentarism and democracy in Germany, academic freedom and political economy, political representation, cultural criticism and patriotism, and the relationship between rationality, law, sovereignty and the constitution. The study attempts to restore a sense of proportion to the discussion of the three authors' writings, focusing on the extensive ideas that they shared rather than insisting on their necessary ideological separation. It is a detailed re-appraisal of a crucial moment in modern intellectual history, and highlights the profound importance of Max Weber, Carl Schmitt and Franz Neumann for the history of European ideas.

Manifestations and Arguments

2020 ◽  
pp. 229-262
Author(s):  
Peer Zumbansen
Keyword(s):  
Social Order ◽  
Legal Theory ◽  
Competent Authority ◽  
Legal Pluralism ◽  
The State ◽  
Social Ordering ◽  
The Subject ◽  
Critical Legal Theory ◽  
Distinguishing Features ◽  
Legal Sociology

While the term “legal pluralism’ literally denotes a plurality of legal orders, it is their plurality of and the distinguishing features between them, which continues to make the subject matter a very charged and hotly debated one. Seen through the lens of legal sociology and anthropology, the plurality of coexisting, normative orders appears, above all, as a matter of description, as a fact of social ordering. Meanwhile, as some of these normative systems are being claimed as being “law,” while others are associated with nonlegal forms of social order, such as customary, traditional, or indigenous norms as well as, perhaps, sector-specific rules of professional or industry conduct, the categories used to draw the lines between legal and nonlegal norms become in themselves highly contentious. The chapter argues that to neglect the fundamental distinction between legal pluralism as “manifestation” and as “argument” perpetuates a troubling inability on the part of positivist and analytical legal theory to engage with law’s inherent instability. Especially at a time, where the actors, norms, and processes that together constitute and shape emerging transnational regulatory regimes are located and operating both within and beyond the state as the purportedly singularly competent authority of law creation and enforcement, the deconstruction of “legal pluralism” as “nonlaw” and threat to the state can serve as the foundation for a new, critical legal theory.

scholarly journals A Short History of Western Legal Theory by J M Kelly

2000 ◽  
Vol 31 (4) ◽  
pp. 901
Author(s):  
Sandra Petersson
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Criminal Law ◽  
Natural Law ◽  
Legal Theory ◽  
The State ◽  
Short History ◽  
History Of

This article is a book review of J M Kelly A Short History of Western Legal Theory (reprint, Clarendon Press, Oxford, 1997) (466 + xvi pages, $75). Kelly's aim was to make the reader see jurisprudence in its historical setting, something that Petersson agrees was done well. The book discusses the history of Western legal theory through the ages, tracing key themes including Theory of the State, Validity of Law, Rule of Law, Nature and Purpose of Law, Natural Law, Equality, Property, Equity, Criminal Law and Punishment, and International Law. Petersson notes that Kelly's work is notably non-Anglocentric. However, Petersson comments on Kelly's failure to treat positivism as its own separate conception of law, as well as Kelly's omission of feminist legal theories. 

scholarly journals Logic Manuals for Women in the Late Enlightenment Era

2019 ◽  
Vol 38 (3) ◽  
pp. 81-106
Author(s):  
Alyona М. Kharitonova
Keyword(s):  
Eighteenth Century ◽  
University Education ◽  
German Language ◽  
Practical Implementation ◽  
The Status ◽  
German Speaking ◽  
Simple Language ◽  
History Of ◽  
Substantial Interest ◽  
Independent Branch

In the focus of my attention there are six German-language textbooks in logic published in the second half of the eighteenth century. What distinguishes these books is that they were all written specially for women. While such works were fairly common in France and Italy during this period, they had something of an exotic character in the German-speaking world. Today these works and their authors are generally seen as secondary and marginal. Nevertheless, they may be of substantial interest in the study of the history of the formation of logic, a fundamental and still relevant discipline in university education. What is the status of logic for women? Is it a kind of publishing by-product paraphrasing classical logic textbooks under a new and unusual title or do they represent a new independent branch? To answer these questions I analyse the chosen works on logic and the reviews which they prompted. I demonstrate that logic manuals for women published in Germany in the second half of the eighteenth century constitute one of the numerous varieties of the popular philosophy genre. Simple language, dialogic or epistolary form, practical orientation and eclecticism — all this brings logic within the intellectual reach of any civilised person, providing him/her with an instrument of performing their own mission, i. e. the employment of their reason. The very fact that the content of logic for women is practically no different from the content of classical compendiums was a revolutionary development, a practical implementation of the postulate that logic is universal and can be understood by everyone, a principle formulated earlier in the works of C. Thomasius and C. Wolff.

scholarly journals Ewolucja zawodu i kształcenia architektów w Niemczech od II połowy XVIII wieku do 1933 roku

2020 ◽  
Vol 16 (3) ◽  
pp. 5-22
Author(s):  
Joanna Nikel ◽  
Keyword(s):  
Industrial Revolution ◽  
18Th Century ◽  
Fine Arts ◽  
Main Research ◽  
Nazi Ideology ◽  
Starting Point ◽  
German Speaking ◽  
History Of ◽  
National Socialists ◽  
German Reich

The aim of this article is to show the range of responsibilities, professional and business titles and the evolution of the system of architectural education, functioning on the territory of selected German states, which in 1871 formed the Second German Reich. Other German-speaking countries, such as Austria or Switzerland, have been omitted, as were those Polish territories under the Prussian and Austrian partition. These issues, despite numerous German-language publications (Bolenz 1991; Schnier 2009; Mai 2012) and English publications (Kostofa 1986), pose many problems for Polish researchers, especially those researching the history of architecture of former German-speaking regions, and the lack of research is not compensated for by modest Polish publications (Serdyńska 2015). The main research questions that are posed concerned issues related to the education of architects and the conditions within their profession. The 18th century was the starting point for my reflections, when the first academic centres for the education of architects in the German-speaking area were established. The thought of the 18th century as a caesura for the architectural profession is also dictated by the effects of the Industrial Revolution, which determined the emergence of professional specialisations in construction and, in the long term, determined the modern understanding of the words architect and engineer. The year 1933 marks the endpoint of the ensuing paper, when, as a result of the takeover of power by the National Socialists, a violent and radical process of building a totalitarian society began in Germany, in which higher education and the fine arts, especially architecture, were subordinated to Nazi ideology.

scholarly journals Leggere Thomas Mann in Laguna

2018 ◽  
Author(s):  
Ulrike Kindl
Keyword(s):  
Literary Text ◽  
Thomas Mann ◽  
German Language ◽  
German Studies ◽  
Language Philosophy ◽  
German Speaking ◽  
History Of ◽  
Firm Basis ◽  
Distinguished Scholar ◽  
The University

In the form of a personal memoir, this essay outlines the work of the distinguished scholar Ladislao Mittner (1902-75) and the development of German studies at the University of Venice in the second half of the 20th century. Mittner arrived at Ca’ Foscari in 1942 and took charge of German studies in the first Italian Faculty of Foreign Languages and Literatures (established in 1954), and became a point of reference for over thirty years. During these years, he decisively shaped the guidelines of the discipline at Ca’ Foscari. Due to his own plurilingual Hapsburg roots, he considered a good command of languages pivotal. This is why he can also be considered a pioneer of the establishment of German language teaching as an independent subject from literature, which was not a self-evident truth at the time. However, he also underlined the importance of the literary text through very refined critical tools. He was an acute philologist and a broad-minded historian who, from the very beginning, added to the German courses such subjects as Germanic Philology, History of the German Language, Philosophy and Music of the German-speaking countries, transforming German studies in Italy into a modern and open-minded field of studies, far from just technical knowledge. From the beginning his vision of the German world was in a context of comparative cultures. Mittner’s work provided the firm basis for the educational commitment required to meet the daily challenge of a multicultural Europe.

Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009) (Aldershot, UK: Ashgate, 2009) [ISBN 978-0-7546-2542-1] [Ubiquitous Law]. All page references in parenthesis are to this book.

2012 ◽  
Vol 25 (1) ◽  
pp. 177-182
Author(s):  
Seán Patrick Donlan
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
The State ◽  
Social Structures ◽  
Substantial Contribution ◽  
Power Relationships ◽  
State Law ◽  
Descriptive Theory ◽  
In Parenthesis ◽  
Popular Control

A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’. But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.

The Pluralistic Roots of Religious Zionism

2020 ◽  
pp. 24-50
Author(s):  
Alexander Kaye
Keyword(s):  
Legal Pluralism ◽  
The State ◽  
Jewish Law ◽  
Legal Institutions ◽  
Legal Regimes ◽  
History Of ◽  
The Way ◽  
Religious Zionism

This chapter shows that before 1948, religious Zionists were legal pluralists: that is, that they imagined the state being run by several parallel legal regimes, of which only one would be halakha, traditional Jewish law as interpreted by the rabbis. They were willing to accept a democratic legislature and did not call for halakha to rule Israel. This legal pluralism drew on a very long history of Jewish law and was congruent with the way that Jews had organized their legal institutions for centuries. Thinkers who adopted this position included Reuven Margulies, Shlomo Gorontchik (Goren), Shimon Federbusch, and Haim Ozer Grodzinski.

scholarly journals Theoretical heritage of E. N. Berendts – contribution to the development of Russian police and legal theory

2019 ◽  
Vol 2019 (2) ◽  
pp. 53-70
Author(s):  
Надежда Нижник ◽  
Nadezhda Nizhnik ◽  
Славяна Никифорова ◽  
Slavyana Nikiforova
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Research Direction ◽  
The State ◽  
Comprehensive Description ◽  
Prominent Scientist ◽  
State Administration ◽  
History Of ◽  
Formation And Evolution ◽  
New Research

The authors note that in modern historical and legal science, a new research direction has emerged – politsiyevedeniye. At the same time, an important part of the history of the police, the history of state administration and the history of the state legal system – the police and legal theory is still not fully understood. The main stages of the formation and evolution of the police and legal theory in Russia are described in the article. It is concluded that an important contribution to the development of the police and legal theory was made by a prominent scientist, public and statesman Eduard N. Berendts (1860–1930). The study of the theoretical heritage of E. N. Berendts by modern researchers and the range of sources necessary for its comprehension are characterized. Attention is focused on the state and legal views of E. N. Berends, his contribution to the development of national polyceistics and scientific problems that need to be solved for a comprehensive description of the police and legal theory in Russia.

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