[author]Kontlowitz

[content]

Legal Science and Sociology

  

*Author Hermann Kontlowitz

Professor at the Law School of China University of Political Science and Law

   

*Translator Lei Lei

Professor at the Law School of China University of Political Science and Law

 

Abstract: Sociology of law is the most important auxiliary discipline of legal doctrine. In the process of applying statutory law, sociology of law needs to study the effects that statutory law may have on social life through individual cases, which constitutes a prerequisite for exploring the legal purpose. When legal loopholes arise, legal sociology helps to discover new sources of law (liberal law) within the threshold of enacting laws.   Sociology also plays a crucial role in factual discovery, mainly manifested in the measurement and comparison of interests. However, law cannot be replaced by sociology. As a factual science, sociology of law must be guided by the concepts and system construction of legal doctrine as a normative science in order to provide normative propositions. In short, the doctrine without sociology is hollow, and the sociology without doctrine is blind.

Keywords: Sociology of Law, Doctrine of Law, Purpose of Research, Fact Discovery, Normality

 

The debate between legal doctrine and social science law undoubtedly constitutes a beautiful scenery in the current Chinese legal community. No matter how many misunderstandings there are between each other and whether the debate ultimately reaches a minimum consensus, it reflects the new generation of legal researchers' self-identity and self awakening of legal research methods through "academic labels". In the words of the "Editor's Note" published in the 4th and 5th issues of "Dialogue between Legal Doctrine and Social Science Law" in China Law Review in 2021, "Through the comparison of 'I see people see me' (Fei Xiaotong's words), both sides have begun a self reflection on methodology." In other words, from now on, we not only know what we are studying, but also gradually realize how we are (or should) do research. This is somewhat similar to the "doing philosophy" discussed by philosophers, although the thoroughness and clarity of reflection by legal scholars have not reached the level that philosophers have achieved.

This kind of understanding is not achieved overnight (even today, the process of understanding has not yet ended). The debate between legal doctrine and social science law can be roughly divided into two stages so far. The first stage is from 2013 to 2014, and landmark events include the first "Legal Doctrinal Studies Special Topic" organized by the Journal of Chinese and Foreign Law, the debate between legal scholars Su Li and Sun Xiaoxia on "Legal Thinking", and the academic seminar on "Dialogue between Social Science Law and Legal Doctrinal Studies" held by the Law School of Central South University of Economics and Law. In the following seven to eight years, the overall situation cooled down, and both sides were no longer entangled in the confrontation of macro positions and methods, but more focused on producing works on their own research approaches. In terms of legal doctrine, the main focus is on the research and promotion of the appraisal based case teaching method by legal scholars, as well as the resurgence of research on legal methodology. In the field of social science and law, it is mainly reflected in discussions on topics such as border areas and the rule of law, cities and the rule of law, technology and the rule of law, as well as the emergence of legal anthropology research. Starting from 2021, it can be considered that this controversy has entered its second stage (which is currently not yet complete). One of the initial events was the special paper on "Dialogue between Legal Doctrine and Social Science Law" recently published by China Law Review, which invited eight scholars from legal theory, constitutional law, civil law, and criminal law to make a second argument on this topic. The other is the "Second Dialogue Conference on Social Science Law and Legal Doctrine" held by Ocean University of China, which arranged more young scholars as speakers, reflecting the latest achievements of both sides in recent years. Unlike the first stage, the discussions in this stage have to some extent eliminated unnecessary misunderstandings and even the initial hostility, and have a deeper understanding of the real differences between the two sides. An important achievement is that, in the eyes of a large number of scholars (regardless of their affiliation), the study of legal doctrine and social science law can and should cooperate in many aspects.

In fact, as early as 110 years ago, a German jurist had made a similar judgment on this. In one of his speeches and subsequent papers of the same name, he put forward the famous saying in a Kantian tone: "Doctrine without sociology is hollow, sociology without doctrine is blind!" In his view, on the one hand, legal sociology is different from legal doctrine. Sociology of law is a part of sociology that studies social life and its relationship with legal norms. As a theoretical discipline, it processes the reality of social life by referring to the cultural values of legal purposes. On the contrary, legalism is a doctrine about the content and system of legal norms, which does not theoretically refer to values, but as a normative science itself, is evaluative. On the other hand, legal sociology and legal doctrine complement each other. Legal sociology plays an irreplaceable and important role in legal interpretation (exploration of legal purposes), legal loopholes (free law), judicial judgments that deviate from the law, and factual discovery (balancing and comparing interests).   But at the same time, he believes that the relationship between legal doctrine and legal sociology is not equal: legal sociology cannot complete the "final step" of judicial judgment, that is, to achieve the leap from reality (fact) to ought to be (norm), and cannot directly propose normative propositions (such as how to interpret statutory law and how to fill its loopholes). The discovery of legal sociology must also be guided by the concepts of legal doctrine and constructed systematically. So, legal doctrine requires legal sociology, but it cannot be replaced by legal sociology. The accurate positioning of sociology of law is the most important auxiliary discipline of doctrinal jurisprudence. This is also the biggest difference between the liberal legal scholars he represents and the legal realists.

This German jurist's name is Kontrowitz, and his classic work was published in 1911 in "Legal Science and Sociology". Insight and wisdom are in line with ancient and modern times, and true knowledge knows no bounds. I believe this well conceived and thoroughly argued macro article will resonate with relevant researchers, and I also believe that this historical document can transcend a century and borders, providing a reference and surprise for the dialogue between current legal doctrine and social science law.

 

Translation:

Gentlemen!

The topic of the previous speech was the inherent substantive relationship between law and economy. A parallel study (which is the task proposed to me) must investigate the relationship between the cognition of law and the cognition of economy. Subsequently, this question seems to be asking what significance economic conclusions may have for legal science activities. However, we must raise this issue in both a broader and narrower sense. The reason why it is said to be narrower is that we have omitted the issue of legal policy in the field of legal science, which can also be considered as a broad legal science in a non professional language usage. Due to the lack of understanding of the facts that legislation wants to adjust and the legality of social life, an effective legislation is impossible. This is so obvious that it cannot even be called a problem here. We must expand our theme within this scope, that is, we must not only be able to talk about economic science, but also be able to talk about social science in general (Sozialweissenschaft), and even talk about cognition of social life in general (it does not need to always be a scientific cognition, but can usually be cognition of daily life). Because the legal order - such as national law, criminal law, and procedural law, as well as the vast field of kinship law - not only regulates the term 'economy', as long as we use it in the usual sense and do not expand it without restraint and benefit (as researchers who want to equate law and economy in an exhaustive way have done). Therefore, we must ask: What can social science cognition provide for the purpose of legal science?

It is very likely from the beginning, and subsequent research will also prove that for legal science, only this kind of social science examination may be meaningful. It does not examine the specific areas of social life - economy, technology, customs, art, religion, biological psychological foundations, etc. - itself, but rather examines them from the perspective of their relationship with law. According to my language usage, the relationship between multiple social domains belongs to sociological relationships; Therefore, the study of them constitutes the theme of sociology. More precisely, it is purely 'sociology'; I understand 'applied' sociology as the application of this theory to the examination of phenomena that belong uniformly to multiple aspects of social life, such as families, big cities, public opinion, publishing, class struggle, political parties, women's issues, socialism, the essence of societies, and especially 'society' itself. Therefore, sociology is a discipline that examines the overall social life through its uninterrupted richness. It is far from a mechanical superposition of specific social science conclusions, but rather a unique comprehensive study that unifies things that are inevitably separated for technical reasons. Therefore, its relationship with the specific field of theoretical social sciences is like the relationship between cultural history description (which is actually a historical connection of sociology; its practical connection is social policy in a broad sense) and the specific field of historical description. When it comes to studying social life and its relationship with legal norms, I call it Rechtssoziologie. Correspondingly, based on whether the cultural wealth studied in relation to other social domains is economic, religious, or artistic, I refer to them as economic sociology, religious sociology, artistic sociology, and so on. I am well aware that the essence of these relationships - based on whether they are real or just imagined, and also based on the logical characteristics of their interrelated fields - is vastly different; But this is not important, because 'sociology' cannot be a homogeneous discipline in any sense. When studying not a specific field, but the relationship between social life as a whole and legal norms, this is only a special case of legal sociology. For example, crime statistics studies the factual occurrence of crimes such as treason, debauchery, blasphemy, and theft, which belong to political, pornographic, religious, and economic life based on their factual nature (Tatschlichkeit). They are not based on the perspective of these specific fields, but on the common perspective of their criminal law's prohibition of them. Therefore, it crosses a new path in the overall social reality and examines these phenomena precisely according to the method I call "sociology of law".

First of all, I want to defend this language usage, but not in this way, that is, to ask: what is sociology? Because this notorious question cannot be answered. Perhaps this question can only be answered when either all those who talk about 'sociology' actually refer to the same object (they simply construct different concepts for it), or when there is ultimately only one object worth using the beautiful term 'sociology' for. It can be pointed out without any proof that both premises are incorrect. Therefore, the defense of my language usage can be much simpler: simply point out that the object I am referring to may ultimately be the object of a discipline; It is no longer the object of another discipline; For this object, the use of sociological terms cannot be prohibited purely for linguistic reasons. I will not prohibit those who meet these three conditions from using sociology to refer to vastly different things. A glance at the phenomenon of unquestionably belonging to it (such as family) proves that my definition satisfies the first two conditions. And this fact - my usage here is consistent with the language usage of most of the gentlemen who have spoken before - indicates that the third condition is not limited to the degree of satisfaction. (My usage) Although different from the usage of Simmel and Mr. Gothein, who discussed social "sociology" and panic "sociology", these topics already belong to another discipline, the field of social psychology (much of Simmel's important "sociology" research belongs to this field); But it is consistent with the usage of other gentlemen that they do not study the "law" itself and the "economy" itself, the "technology" itself and the "culture" itself, the "race" itself, or the "society" itself, but rather study their relationships. precisely because of this, what they engage in is neither legal nor economic research, neither technical nor biological research, but a special sociological research. Even though people (I am also among them) should hold the view that these studies (as they have been so far) will be driven by professionals in specific fields, especially by a joint effort of these professionals, rather than by "professional sociologists" in the future, people must acknowledge the uniqueness of these studies. Anyway, my speech will demonstrate that sociology of law can only be effectively promoted by legal professionals (in a sense, through part-time work). However, my research today does not belong to the field of legal sociology, nor even sociology. Instead, like Mr. Tnnies' introductory speech, it belongs to the field of sociological cognition, which is a general auxiliary discipline, epistemology, or better put, scientific theory. Therefore, it is a theoretical theory, and some irredeemable utopian social reformers (who confuse sociology and social policy, for whom our purely theoretical negotiations are themselves very boring) will worry that the conclusions of today's negotiations will be extremely boring. The consequence may be a kind of 'chaos' in the' sociology 'gathered here! But if this confusion arises, then the fault lies with the speaker, not with the topic itself. Because precisely because we are no longer engaged in sociological research today, the practice of excluding all value judgments and premises in accordance with the law does not need to make us feel fearful. Because they are excluded here and must be excluded, they involve social life itself rather than the study of social life. Therefore, we can allow the value judgments that have been suppressed for four days to be released, although (I hope) Mr. Chairman has no reason to use a methodological guillotine.

In this sense, what I want to ask is: should we and can we make legal sociology beneficial to law?

The mainstream concept about the essence of legal science has given a negative answer to this. Therefore, I must use my own language to depict the characteristics of this concept for you (for you, only a small number of legal professionals hold this concept), disregarding all details (which people have tried to use to make this theory survive). Therefore, for today's legal professionals, there are only two forms of law: statutory law (Gesetzesricht) and customary law (Gewohnheitsrecht). We can ignore the latter here, because although the correct legal perspective reveals its significant importance, it has received little attention in practice; Therefore, we can limit ourselves to enacting laws.

Someone has taught us that legal professionals can judge any legal case by incorporating statutory law, and therefore must judge legal cases solely from the perspective of statutory law. As people correctly identify this viewpoint, legislation is like an automatic vending machine: people stuff cases into it and take out judgments below it. If the case is directly decided by statutory law, the judgment can be made immediately; If not, then people must push and shake this vending machine. People sometimes narrow and sometimes broadly interpret word meanings, sometimes place cases under the clarified legal provisions, sometimes under that legal provision, and then organize these provisions into a system, and then try to derive judgments from these major premises, sometimes using analogies, sometimes using reverse arguments - but always stay within the field of formulating legal norms. People's gaze has never crossed this' Great Wall of China 'and landed on the wilderness of social life (the promulgation of these laws is to adjust them); They are almost not of concern to orthodox legal scholars, just as mechanical engineers may have used their formulas, which is not of concern to pure mathematicians. I can say without hesitation: if this method is feasible, and if it is truly possible to adjudicate all cases through purely intellectual processing of legal texts, then the arrogance of the 'contemptuous jurist' (as Ludwig Knapp once said) is completely justified. But precisely not so. It is necessary to put big question marks on certain considerations of mainstream ideas. One of these points is an analogy drawn by the judge of a certain case based on similar cases. Without using analogies, we will inevitably continue to make absurd and extremely harmful judgments, even the most conservative legal scholar (Buchstaben jurist) would acknowledge this. For example, I intentionally selected an example from the Criminal Law because a widely circulated view indiscriminately holds that no analogy is allowed in the Criminal Law. Article 70 of the Criminal Code adjusts the statute of limitations for criminal penalties with res judicata, reducing the statute of limitations from 30 years for the death penalty to 2 years for fines. I forgot to specify the statute of limitations for the most minor punishment, namely the Verweise. If people do not use the analogy based on the similarity between admonishment and the second lightest punishment (contrary to the literal provisions of statutory law) now, they will come to the absurd conclusion that among all punishments, it is precisely the lightest one, that is, admonishment can have no legal effect.

However, staying at the similarity of cases is not enough. Because what is not ultimately similar to a tiny degree? Therefore, people may eventually change the topic, and they will also agree that a boundary must be drawn, no matter where it is. But this can only be achieved by determining the purpose of the enacted law that is applied in a similar manner. As long as the purpose remains unchanged, the 'eadem ratio juris' is sufficient, and analogy will also come into play. But how should people distinguish this purpose? This question is very complex and related to a question that involves the most modern epistemology and is far from answering the previous question: what do we mean when we talk about the meaning of a certain association or norm. Therefore, I can only provide a hint here. This popular but purely psychological viewpoint, which aims to study an individual 'legislator's will' that may not necessarily be expressed in legislation, is almost universally abandoned today. Furthermore, statutory law, at least modern statutory law, does not state its purpose in itself; Although the legislative materials contain a lot of information about this and even have a very important meaning for the application of the law that cannot be described here, they only constitute private views that are not necessarily unquestionably equivalent to the recognized will of the state; Starting from the connection between (statutory) provisions and other provisions, certain information can be extracted, especially when it can usually be confirmed that the purpose cannot be what it is, that is, it cannot be such things, and the pursuit of them will contradict those other provisions; But this confirmation is far from enough. Therefore, the remaining means are only those that cross the "Great Wall of China" to examine the field of social life (demonstrating any effect within it belongs to the task of every enacted law). What needs to be studied here is what effects the laws to be explained (more precisely, the application of these laws) will have on social life or be suitable for triggering in average type cases. It is necessary to derive the purpose of statutory law from these conventional effects, which always involve the protection of any interests deemed valuable in the sense of statutory law. Therefore, the exploration of legal purposes is based on an activity in the field of legal sociology (or sociology, as we will refer to it later for simplicity). Therefore, even mainstream views must pay great attention to the facts in the field of life: purposive exploration is a necessity of life for law, and if law does not meet this need, it will only remain at a primary stage of development, just like organic natural science only stays at a pure classification stage before realizing all deeper biological connections. It is beyond the scope of this speech to examine in detail the extent to which mainstream legal studies are generally exploring purposive thinking and engaging in sociological research.

This is just an overview. It mostly involves public law, which ultimately constitutes the healthiest part of legal studies in many aspects, and strives to protect itself from the influence of highly recommended private law "models". Here, we have found true sociological research that is beneficial to national law in national sociology, true sociological research that is beneficial to criminal law in so-called criminal investigation, and one of the most important auxiliary tools of sociology, namely extensive training in statistics. There are also good reasons to refer to a crime school widely popular in Italy and Germany [Ferri and V. Liszt] as' sociological '. But some repeated and difficult judgments (which could have been avoided in shaping and proposing legislative purposes) illustrate to what extent criminal law (as long as it highlights the need to always consider "legal interests") is still related to the idea of purpose. For example, when according to very mainstream theory and practice, a poor but upright widow steals some wood for her frozen child, but is imprisoned under Article 242 of the Criminal Law for theft, it always triggers (public) outrage. Legal scholars attribute this result to statutory law, while the public partly blames it on statutory law and partly on the iron heart of judges. As a result, the most precious legal interests in our country's life, namely the authority of statutory law and respect for the judicial profession, are quietly undermined. In fact, the only fault lies in this terrible method, which disregards and therefore neglects the purpose of Article 370 (5). It can only be considered given under the threat of a fine for the crime of "stealing alcoholic beverages" - mistakenly assumed to be an unacceptable extension to the constitutive elements of the crime of stealing fuel - based on application.

     But in the field of civil law, the situation is much worse. If anyone doesn't believe this, I suggest he can read through any chapter of the German Civil Code in this way, that is, he can question each specific provision: why is it regulated in this way, rather than in any other way? If this regulation is not made, but the opposite regulation is made, what kind of damage will social life suffer? Subsequently, he will consult all textbooks, monographs, commentaries, and judicial proceedings and see how many questions he can answer and how many questions he can only raise (but cannot answer) in this way! It is typical that there is almost a complete lack of civil law statistics, to the point where we have no way of confirming the social function of civil legal norms, especially their degree of implementation. For example, we only know that the German Civil Code regulates five forms of (marital) property rights, but we pay no attention to the specific quantitative relationships and geographical distribution of these forms in social life. Perhaps the just concluded 30th Congress of German jurists signifies a shift towards a better future. At the initiative of the renowned Austrian jurist and politician Franz Klein, this conference resolution was adopted to prepare for a planned discussion on legislative measures to eliminate the drawbacks of the real estate industry. He launched a "public opinion survey on the real estate industry" (which is currently underway). This public opinion survey does not yet possess the nature of legal sociology, as it does not aim to determine what is actually legal in the real estate industry, such as to what extent statutory leasing rights will be excluded by leasing contracts. As shown in the survey questionnaire, it would rather confirm with respondents in the real estate industry what modifications to current public and private law norms are necessary to promote real estate industry reform. Therefore, it did not initiate the study of legal sociology, but instead presupposed such research among the respondents. Therefore, the coherent implementation of this idea (based on the public opinion survey initiated by the Social Policy Association) has indirectly led to a strong activation of legal sociology research, which is not only very useful for the legislative policy work of the German Conference of Legal Scholars, but also inevitably benefits legal doctrine. They will also develop meanings for observation and induction [the enhancement of which will greatly increase the sense of crisis among today's lost legal scholars (Buchjuristen)], but at the same time, they will also teach some reformers with unclear minds: people do not need to receive these gifts from natural sciences, they would rather accept premises that are incorrect from any perspective for law. The recently established Deutsche Institut f ü r Rechtspillosophie und soziologische Forschung, funded by the Kaiser Wilhelm Foundation, will undoubtedly be the first to engage in large-scale research in the field of legal sociology (if its establishment goes beyond a devout vision - as I am concerned). On the contrary, starting from the winter semester of 1909/10, as the first attempt of this type of research, the "Seminar f ü r Lebendes Recht" taught by Eugen Ehrlich in Czernowitz was already underway; Its task is to study factual legal relationships and the customary legal norms expressed through them, thus possessing sociological characteristics. But the attempt of a civil law scholar who is generally based on mainstream views - launching a survey questionnaire to answer such questions and defending today's situation, arguing that "it should not be argued that the study of factual legal relationships in civil law doctrine is completely unfamiliar" - clearly illustrates how far we are from recognizing the necessity of such research. The conclusion of this opinion poll (for which 52 responses were compiled) is very weak. Its misfortune lies in its strong desire to confirm the factual and legal relationships in today's life; If it wants to investigate Greek guarantee law or ancient Egyptian land registration law, then based on the latest papyrus research (through which our civil law scholars meet their sociological needs), it has been given very detailed and accurate information. Therefore, the more I live, the more optimistic I have this belief: as long as the mainstream school still exists until then, we have become familiar with the factual and legal relationships of today's life since 2000, and whoever wants to be qualified to serve as a professor of effective civil law at that time in the year 4000 AD can only do so, that is, based on the literature that is still available and needs to be edited according to grammar and technical rules, such as the 1910 Frankfurt lease agreement.

If legal science implements a completely different perspective [which gives real life facts and, outside of individual psychological facts, sociological facts a much greater meaning relative to legal science], our thirst for knowledge will be much earlier satisfied. The representative of this realistic viewpoint is the Free Law Movement, which seems to be continuously implemented in various names and forms, and I am also involved in it. Even to clarify this updated viewpoint, I must implore you to listen to me for a few minutes. Because not only is there some ambiguity about the true goal of this movement among its representatives, but I must also consider the possibility that even in this lecture hall, there is a widely circulated myth that liberal law scholars want a free judge, questioning the binding force of statutory law, and allowing our judges to engage in a judicial judgment that goes against the law, which is the core of the pursued renewal movement. Our camp has raised objections to this hypothesis countless times or attempted to prevent its emergence. But this has no effect on our opponents who are ignorant of the literature and therefore immune to teaching. Therefore, I do not want to miss this opportunity and would like to raise objections to this assumption again. Just a glance at the pioneers of this movement reveals that they have been striving to avoid any kind of questioning of legal philosophy anarchism. Throughout the 19th century, their ideas (often linked to older concepts) tinkled beneath the surface of the historical school's domination, and were not uncommon in the late works of Ihering, and subsequently in the works of Dernburg, Kohler, and many other scholars. However, what is of interest here is only the methodology assignment. As one of the earliest attempts of this kind, it should be mentioned here that a work was published in 1872, titled 'On the Theory of the Sources of Law, Especially on Reason and the Essence of Things as Sources of Law'. The author of this book accidentally became a trainee lawyer, so it received little response and was even ridiculed as a legacy of natural law. Only this latest movement has brought it back into the sunlight, and people are surprised to find that many of the most modern ideas can be found in advance in this book. This trainee lawyer - who has since gained fame but has not always been able to break free from habits that are ahead of his time - is Franz Adickes, who is now the mayor of this city. But this idea was only brought into the light through a series of works by Yelin in the second stage (1860-1892) - in this perspective, the most important of which includes "Humor and Seriousness in Law" (1861-1885), through his most meaningful (though still not elaborated) plan, the monograph "The Purpose in Law" (1877) - even though its outline is not always very clear. As the most important fellow traveler, William Endemann should be mentioned, followed by Schlossmann, O. B ü low, Gustav R ü melin, Heck, and in some ways Stammler in a very large German group (but mostly only at this or that point); In the past decade, there have been Jung, Zitelmann, Sternberg, M ü ller Erzbach, Stampe, Rumpf, Radbruch, Fuchs, and Deinhardt; In Austria, there are Ofner, Ehrlich, Wurzel, and in some ways, Unger; In Switzerland, there are Huber and Gm ü r; In France (where this ideology has completely permeated), there are Saleilles and G é ny; As for the names of Italy, Belgium, the Netherlands, Russia and other countries, as they are not so well-known, let me skip them. For several years, it seems that almost no writings on the origins and methodology of law in these countries have not made maximum concessions to the ideas of liberal law. Of course, this has not prevented most scholars from opening fire on the pioneers of the liberal law movement based on this or that misunderstanding. Even practitioners, who usually have little need to use their activities as the object of methodological reflection, are now beginning to take an interest in methodological reform with great enthusiasm and firm intuition. What can be dealt with here is only to reap the fruits of the relationship between law and social sciences from this flourishing tree of thought, which covers the entire field of philosophy and legal doctrine, casting a shadow over the application and education of law, and even its legislative continuity. Starting from this understanding, law cannot be promoted as a linguistic science like it has been so far, and legal activities cannot be exhausted by the interpretation of fixed terms. It is a discipline that serves the purpose of social life. Here, on the one hand, statutory law has the significance of a landmark, that is, the purpose pursued by statutory law must be absolutely and first realized; On the other hand, it has the significance of a threshold, that is, tasks that cannot be solved by extracting solutions from statutory law - the inevitable loopholes in statutory law and the diversity and variability of life that lead to countless such tasks - must not be completed in a way that violates the purpose of statutory law. From this, it can be seen that firstly, it is necessary to reject judicial rulings that go against the law - at least in countries like Germany today and in the era of temporary legislation; In addition, this issue is very complex and cannot be denied with empty language of a priori theory, but can only be determined based on a specific legal order, but this article is not interested in this point. Secondly, it is necessary to support judicial decisions based on the law (Judizieren ex leg), which will certainly remain the main task of jurisprudence in the future: to reject the letter jurisprudence (Buchstabenjurisprudenz) and conceptual jurisprudence (Begriffsjurisprudenz) that do not care about the purpose and needs of law making, and thus reject mainstream methods. On the other hand, it is also necessary to support the tendency to study precisely these purposes and needs. Since (as stated) these studies must be conducted in a sociological manner, sociology is not only occasionally cited (as it always happens), but must serve as the primary auxiliary discipline of doctrinal jurisprudence, providing preparation and supplementation for the latter's work point by point. This work must and will be provided, as it demonstrates that law will gain a completely different face, both in its methods and its conclusions.

 

 

 

But the most important consequence of the relationship between legal science and social science lies in the third field, which is the field of Judizieren in law. Today, it is still difficult for people to understand how this vast field has received almost no attention so far, although judges are involved in this field hundreds of times every day, and the value neutral logical analysis of any judgment inevitably indicates that it is based on the existence of these elements. Another simple example from the field of criminal law (in this field, judicial decisions divorced from the law play a much more important role than any other place): if a judge sentenced a thief to three months' imprisonment, then this sentence (if it should not be just arbitrary) will inevitably take this norm as a prerequisite, that is, in the case of such acts and suspect, all theft acts will be sentenced to three months' imprisonment. Although this norm is compatible with statutory law (as the latter only establishes a penalty framework ranging from one day to five years of imprisonment), it cannot be logically derived from statutory law precisely because of this. Therefore, in this regard, the judge - who happens to have to choose the statutory sentence within 5 × 365=1825 days - is making a judgment that deviates from the law, not from the norm. His norms obviously do not belong to extra legal norms, such as customs or etiquette norms, and obviously do not belong to customary law;   By referring to the famous Article 1 of the Swiss Civil Code of December 10, 1907, which states that when the judgment of a case cannot be extracted from statutory law or customary law, judges should "judge according to the rules they would have proposed as legislators", the situation may become clearer.   In the process of discovering these propositions of freedom law, judges - whose evidence (in opposition to an absolute legal value) belongs to an unwritten hierarchy of legal forms - may maintain the value judgments that have dominated the nation at all times.   However, it should be noted that what is more important here is sound, accessible, and not "disconnected" feelings and direct intelligence, rather than theoretical cognition: not everything that people can learn and must learn needs to be taught in a scientific form. If the value judgments that dominate among the public are not clarified, or if they contradict each other, then judges must ultimately engage in creative activities through the free legal rules they propose, and judgments must be made based on the "rules they should propose as legislators themselves". But since it is impossible to propose ultimate goals here (for judges, these goals are given with authority and untouchability within the purpose of the legal order), the main focus is on discovering the means to achieve these goals. Therefore, this is a theoretical task oriented towards causal relationships, which needs to be accomplished through means involving different disciplines of social life. Here, judges, just like true legislators, must accurately consider the relationship between the facts presented to them and various possible legal regulations. Therefore, the innovative discovery of freedom law also requires the verification of sociology of law. Due to the crucial role played by the discovery of free law (as an auxiliary legal form in all fields of legal science), as demonstrated, sociological research is equally significant and essential in answering legal questions.

So far, only this meaning has been discussed. Because sociology holds crucial importance for factual issues, it is generally not possible to provide a serious rebuttal to this. The essential elements for making legal judgments are the facts of social life (as long as they do not possess the nature of individual psychology, as mainly in criminal law); An objective understanding of them constitutes a prerequisite for the correct legal measures to be taken. In many cases, a sound human intellect and daily life experience are sufficient to meet such objective understanding, and judicial activities really cannot prevent the acquisition of such objective understanding; Especially our judges are often criticized for being down-to-earth, and in my opinion, this criticism is only based on a summary of the inevitable personal imperfections. But they and we legal scholars always lack sufficient social science training, especially the ability to think in national economics. Without the latter, we cannot correctly understand the complex constituent elements of commercial law and labor law. Merely relying on the thinking of national economics is naturally not enough. Its significance is only to become the foundation of legal sociology thinking, which emphasizes the fundamental elements of legal judgment (these elements are not necessarily consistent with economic elements fundamentally). Even where judges have long relied on business or technical experts, our goal is inevitably to liberate them from uncritical dependence on these experts by training their independent legal and sociological thinking. Furthermore, it is important to note that in countless cases, potential difficulties do not arise in the realm of legal issues, but rather in the realm of factual issues; Therefore, even with advanced legal skills and expertise in handling legal materials, there is no guarantee that anyone will not become a bad judge in all of these situations. As a result, there will naturally be criticism of our legal education that only focuses on conceptual technology and legal knowledge, especially our learning and examination relationship. There will also be demands that it must place new ideas in this field, and only it can realize these new ideas. Because even if the old conceptual jurisprudence has no motivation to deny the importance of sociological research on constituent elements, it can only be expected (especially related to this) that the interest of legal scholars in this field is built on the soil of this viewpoint - which has recognized and confirmed the importance of sociology for legal issues. Therefore, only by infiltrating the perspective of freedom law can we expect that judgments based on ignorance of specialized knowledge of economic relations will disappear. Although these judgments have completely disappeared in a large number of substantively correct judgments, due to the spirit they express, they are enough to tarnish the reputation of our judicial organs in a regrettable way among the groups that are most interested in their flourishing development. Today, we are standing in the face of the fact that there is often a fear of prosecution or ordinary litigation among these groups (i.e. business and industrial circles), and people either bring lawsuits to arbitration tribunals or allow illegal situations to exist - many businessmen do not bring lawsuits at all unless the amount involved is huge and involves a very clear legal situation, among which... It has been pointed out that the majority of the judgments of this court are considered incorrect by some judges (who belong to the minority rejected by the majority vote) (even after carefully reading the reasons for the judgments), so these judgments are entirely made by specific trial tribunals randomly assigned by the committee, and this skepticism is completely understandable. In fact, the methodological criticism of our movement shows that all the methods used today can only provide accidental conclusions, because they want to determine countless factual situations through limited means of formulating French texts, which is only possible through false means, that is, in a logically condemnable way.

 The keyword 'Interessenw gung' that is frequently mentioned today also belongs to this association. Many scholars believe that this linguistic symbol can meet the requirements of sociology and are willing to use it as a non subversive but effective means to oppose bad liberal legal scholars, in order to overcome the shortcomings of today's legal system.   In addition, because balancing interests does not belong to answering legal questions, but only to answering factual questions. Of course, as long as the interests protected by legislators are studied (in the sense implied by this keyword), then "interest law" belongs to the field of legal issues; But in this way, it is equivalent to exploring the purpose - because statutory law always aims to protect interests, we can refer to the previous text without further processing.

But at the same time, representatives of "interest law" (such as Heck, Gustav L ü merlin, M ü ller Etzbach, Stampe, etc.) use this term to refer to something completely different, that is, a method of "balancing" and coordinating conflicts of interest (including both abstract conflicts of interest legal issues and specific conflicts of interest legal cases). If we follow this language usage, the shift towards' legal science 'would be redundant. According to a well-known viewpoint recently put forward by an outstanding member of the Imperial Court, we recognize that the balance of interests is based on conflicts of interest, while the purpose exploration is based on its purpose ("interest connotation") for the legal norms being explored. Therefore, the former belongs to factual issues, while the latter belongs to legal issues. The two need to be separated (which has not yet been achieved): purpose exploration is the prerequisite for weighing interests, while the latter is the application of the former. Because the correct handling of the "interest situation" is based on the understanding of the purpose of the law, it is possible to determine which interests actually exist without considering it, but it cannot determine which interests should be prioritized from a legal perspective.

The method of balancing interests is a method with inherent differences, which can weigh the relevant interests against each other or based on external third measures. Both of these operational methods are theoretically possible. Because we cannot let ourselves be intimidated by such inferior opposition: due to the lack of weighing scales and weights, this balance will encounter insurmountable difficulties, especially when public interests and private interests are in opposition to each other. Because if we do not continue to treat incalculable things as estimable, there may be neither political nor commercial trade-offs and calculations, neither ethical nor artistic trade-offs and estimations, but these are indisputable facts. These facts must be clarified by science, not debated endlessly.

Balancing interests with each other - we would like to call this form of interest comparison (Interessenvergleichung) - is certainly a necessary component in clarifying the constituent elements. Wherever it is possible to make a judgment that satisfies the interests of both parties (as long as they are legitimate) through legislation, a well-trained sociological understanding will surely find a satisfactory solution. The works of legal scholars mentioned earlier provide a wealth of examples. Many of the judgments collected by Ernst Fox provide counterexamples, which (not proven in any way in mandatory statutory provisions) have been arbitrarily constructed through language and concepts to arrive at judgments that violate all legitimate interests. The main formalism that belongs here are those commonly seen in civil litigation, which do not benefit anyone but bring unbearable delays, such as when the lawsuit is immediately "blown out" due to foolish formal flaws.

But usually people have to choose one of these two interests, and what is initially incomprehensible is to what extent the specific value of the interests identified through weighing should determine their legal importance. When a worker who was run over on the street accuses a very wealthy car owner of owing him a retirement pension, his interests are thousands of times more important than the other party's interests, although fault and legal issues must be determined without considering the "interest situation" from constitutive elements and statutory law. However, as we now know, in countless cases, it is impossible to extract answers from statutory law through purely logical means, and the question now is what significance interest balancing may have in determining such questionable issues.

If people believe that the representatives of interest comparison only want to mechanically give priority to the larger of the specific interests between the two parties, then they misunderstand them. What they envisioned was not this purely mechanical method - it certainly cannot be underestimated as a last resort and is always used, for example, in certain emergency avoidance issues (Articles 228 and 904 of the German Civil Code), but it has absolutely nothing to do with jurisprudence. What they refer to is rather the emphasis on the typical social significance of the interests to be weighed, thus it is a measure of interests that serves as an intermediary (Interessentenw gung) at the same time. But even if these two possibilities are subsequently given, they must be rejected from a legal perspective.

The first suggestion to be rejected is to judge without hesitation based on the so-called "social sense" (das soziale Empfinden), which means to judge in a way that benefits the interests of the disadvantaged party in society. Because this' social sense 'involves the position of the parties involved, its commonality with objective sociological considerations naturally cannot be greater than some similarity in terms of address. Social justice is a form of class justice. However, it is often confused with 'sociology'. The classic representative of this position is the "good judge" (bon juge) Magnaud, the president of the Ch â teau Thierry court. On the contrary, a large part of Anton Menger's lifelong career was devoted to the pursuit of "social law" (soziale Rechtswassenschaft), which for him was only a branch of "legislative policy law", determined for legislators rather than judges.  

Another opposing viewpoint that must be rejected is the need to judge in favor of the socially dominant party when in doubt, as reflected in a certain sense of juristisches Uebermenschentum. In the law, we have been largely unaffected by this method so far. But this viewpoint not only occasionally appears in statements such as Kohler's, but also in the book "Legal Problems" by Lazarsfeld, a talented Austrian liberal jurist and Viennese lawyer. In his view, law or justice must "know which group is stronger and more important, which group has more future and vitality"; For this scholar [as seen, he was deeply influenced by Gumplowicz], there is a task of sociology serving law in the transmission of decisive knowledge for adjudication. On the contrary, we only need to remember that although for legal philosophy, law and power may be in a closer relationship (of course, this is far from a clumsy identity relationship), legal observation must so sharply separate law from power, just as ethical observation must separate good from usefulness.

Only when we understand the balance of interests in the second sense, that is, it is not a balance between interests, but a balance compared to the third measurement outside of specific legal cases, can we obtain the correct answer to this question - what sociological research can provide for law in the situations we are dealing with. This type of measurement can only be a value, a cultural value, because otherwise it cannot determine which interests are more valuable, and therefore should be given priority. As can be confirmed from the previous text, cultural values - the entire field of jurisprudence and all its parts (legal doctrine and sociology, legal theory and legal policy) - are oriented towards this value - which is the entirety of the purpose pursued by a specific legal order. Therefore, sociology of law must also be oriented towards this cultural value. Therefore, as a sociological method, interest measurement simply means judging interests based on this, that is, to what extent promoting this interest or that interest is in line with the purpose of the legal order. (Of course, this does not always play a decisive role; balancing interests is not exactly a legal method as some people believe.). However, the relationship between specific interests and mainstream cultural values of legal purposes is not based on individual cases, but can only be identified through observation. It discards the randomness of factual situations and grasps the typical social significance of the case, which can only be achieved through sociological cognition. People must attempt to resolve specific conflicts of interest between factory owners and inventors, fathers and children, husbands and wives, townships and landowners in this way. At this point, we have already acknowledged that sociology is necessary in order to prepare in advance for the purpose of presenting the laws themselves. Therefore, whether it starts from the top or the bottom, whether it starts from legal issues or factual issues, it highlights the elements of sociology in correctly understanding the measurement or judgment of interests (as we can call these two forms). From this perspective, we also believe that it is fundamental for all legal studies.

     Here, we can now determine the scientific status of sociology of law. In my opinion, we can only accomplish this task on the basis of Rickert's scientific theory. Its fundamental significance is also highlighted in this field of science, and so far, Lickert has only paid incidental attention to them (just like law), but this attention is always beneficial. If we were to present this theory in a concise and clear manner, with a distinct schema (which has had little effect on law so far), on the contrary, Max Weber applied this theory to the field of national economics and produced so many results, then it can be said that Likert used a dual classification system, namely substantive classification and formal classification, to replace the classification system that he considered too bad but undoubtedly only beneficial in a few directions in methodology, that is, the practice of dividing empirical science into natural science and spiritual science. The substantive classification system, namely natural science and cultural science, is based on whether they observe their objects fundamentally in a way that does not involve cultural values, or not. Observe the object fundamentally in a way that involves cultural values. Formal classification refers to the classification of science primarily constructed using generalized concepts and science primarily constructed using individualized concepts. Li Kelt himself (especially in older writings) naturally prefers to construct the concepts of "natural science" and "history" (which increases the difficulty of understanding his theory); But the former statement has a dual meaning: according to this, "nature" is either a reality that has no value involved, or a reality observed in a generalized way; The latter statement expresses a substantive, rather than logical category, and is too narrow: the concept construction of "history" is only a special case of individualized concept construction (think of the purely topographical, but cannot be reduced to a purely "data compilation" component of geography). The relationship between these two classifications is not an overlapping relationship (which is the most common misunderstanding of Li Kelt due to the terminology he used), but rather (at least primarily) an intersecting relationship. Therefore, people cannot distinguish between two "extremes" in the scientific system, namely "natural science style natural science" and "historical cultural science", as well as two "intermediate fields", namely "historical natural science" and "natural science style cultural science" (the latter, due to its mixed name, has already raised doubts that it is not very clear logically). As can be seen from the revision of the above terms, it is better to produce four sets of logically equivalent theories - empirical science: (1) natural science constructed using generalized concepts, such as mechanics; (2) Natural sciences constructed using individualized concepts, such as geography; (3) Cultural sciences constructed using individualized concepts, such as legal history; (4) Cultural sciences constructed using generalized concepts, such as scientific theory and sociology, also include sociology of law. Therefore, sociology of law is a theoretical discipline that processes the reality of social life by referring to the cultural values of legal purposes. On the contrary, doctrinal jurisprudence, which is the doctrine of the content and system of legal norms, is outside of this theme, because as we can easily recognize after overcoming the old rationalist legal science theory, this discipline does not - in theory - refer to values, but - as a normative science - is itself evaluative (more precisely, evaluated in a generalized way). In both cases, it does not matter whether the individual jurist themselves approves of the "given" transpersonal values processed by their doctrinal or legal sociology.

Now we realize how wrong it is to believe that law can be replaced by sociology, and now it is time to do so. This theory is not new at all (as many legal scholars believe), but rather as outdated as it is, just like the concepts of sociology themselves. Just say Auguste Comte's name is enough. In Germany, its main representative is Lorenz von Stein (1876), and it can also find a large number of supporters in France, Italy, and Russia. But the most famous opposition also developed there: I mean - also translated into German - the famous Russian scholar and senator Pachmann's 1882 speech "On the Current Movement in Legal Science". But now this' current movement '- which he sees Yelin as its founder - is nothing more than an effort to replace legalism with sociology of law and thus' elevate' jurisprudence as a science. On the contrary, Pachmann (who proposed the theory and terminology of methodological dualism ten years earlier than Jelinek), although pointing out the significance of the "social theory of law" for the study of philosophy and the history of law, and acknowledging its significance for legal doctrine, firmly criticized the practice of mixing the two through a large number of examples and opposed the confusion of this concept (which is the basis for that confusion, but is caused by it). But these protests have long been forgotten, especially in Germany. Because here, contrary to most other disciplines, the so-called historical school (due to its anti philosophical tendency and aversion to introspection) has almost completely erased the methodology and history of science from textbooks: in today's Germany, law students have no opportunity to attend a class on the history of their discipline. The result of using this method of detachment from culture is that each generation of legal scholars constantly repeats old mistakes, and these mistakes must be overcome again. In Germany, this is also evident in the current stage of this movement.

The spokesperson for this movement is Ernst Fox, who has been mentioned multiple times and is a lawyer practicing in Karlsruhe. At present, he is the "black monster" (B ê te noire) of the liberal legal movement in the eyes of opponents. Earlier, I enjoyed this delightful status under the name Gnaeus Flavius. Thank you (him) for relieving my pressure. I want to support his widely criticized writings: their wide-ranging and healing effects are attributed to this immense pain, and this fighter of law and justice, accompanied by this pain - which reflects his originality - attacked our judiciary and jurisprudence. Even though the non academic and exaggerated nature of his debates has damaged the good quality of his work, which has caused some legal professionals, especially scholars, to distance themselves from this debate, this flaw can be offset by the fact that he ultimately opened the door to methodological reflection for a large number of judges (after themselves and some of them also publicly witnessed it), and at least pointed out to them what they cannot do. But Fox's positive suggestions were not so fortunate; What is striking here is that they lack scientific insights. He believes that the remedy lies in replacing what he calls "linguistic," "constructivist," or "Pendleton logical" jurisprudence with a "sociological" approach, where (according to condemnable language usage) "sociological" means "social science," especially national economics, and the special meaning of "legal sociology" is completely unfamiliar to him. Although this does not necessarily mean that sociological methods cannot be rejected as a replacement for legal methods, namely that the latter is general and the former is individualized - because as mentioned earlier, (among other things) legal studies only engage in individualized work as a legal history, and the rest of it adopts generalized work, in the case of legal application (which is the only relevant here); Because even here, it still needs to regulate the case under general norms, otherwise it is not the application of the law, that is, the application of (general) legal provisions. However, Fox completely misunderstood the nature of the applied provisions as norms. Only by doing so can we illustrate a proposition such as: 'In the field of legal investigation, the work of sociology is the only true work of law, just as in the field of truth investigation (i.e. litigation), it is the work of psychology.'. However, in other places - his works neither use strict terminology nor pursue this - Fox understands sociology as a normative science in itself, namely social ethics, social policy, and social philosophy. But in this way, the approach of opposing such a "sociological" jurisprudence with doctrinal jurisprudence appears disjointed, because only when it is oriented towards the purpose of positive law, can it gain meaning for judges, and these purposes cannot be separated from the grasp of doctrinal jurisprudence. Therefore, in order not to render Fox's struggle meaningless, we must adhere to applying the above concepts in a purely theoretical sociological sense.

 An example tells us how Fox uses it. At the previous conference of jurists held in Karlsruhe, there was a heated debate about the legal significance of trade boycotts, such as the liability for compensation for property damage caused by the issuance of boycott statements. People strive to determine through research whether undisturbed business rights belong to the "special rights" protected by Article 823 (1) of the German Civil Code, and to what extent Article 826 of the German Civil Code, which is established for acts that violate good customs, has an impact. Fox accused the debate of being "Pendleton logical", "wordplay", and so on. In his view, if this debate is sparked by sociologists openly based on the standpoint of national economics, that is, based on the measurement of interests rather than paragraph statements, then it is right. What I am worried about now is whether our national economists and social scientists will ultimately be grateful for this, that is, called upon to be witnesses to whether trade boycotts are legally allowed or not. As representatives of theoretical science, what they ultimately teach us is what a trade boycott is, what consequences it actually brings, what consequences it will bring (if the country allows it to demonstrate the consequences without hindrance), and finally, they can explain the interests involved and try to obtain materials for weighing them. Furthermore, legal sociology oriented towards legal values can take a few more steps: it can highlight the various aspects of trade resistance that are fundamental to legal regulation, indicate the factual effects of civil and criminal law norms applicable to trade resistance, and also anticipate the effects of proposed legislative interpretations. But only doctrinal scholars can take the final step and use these doctrines as support to study how to interpret statutory law, how to fill its loopholes, and thus make adjustments to trade boycotts in accordance with the purpose of statutory law in individual cases. If a case is not "constructed" as a case under a general norm, and if the "expression" of this norm is not studied (if it is ultimately possible to do so), this will also be unrecognized. On the contrary, a very simple example can be used to illustrate how sociology of law relies on doctrinal jurisprudence. Among all sociological studies of law, the most useful today is the study of criminal sociology, among which the most useful is criminal statistics. But all of this usefulness will be immediately offset if, for example, criminologists suddenly want to group based on moral or economic concepts rather than criminal law concepts (derived from doctrinal studies and formed from statutory law).

Therefore, sociology of law cannot be liberated from the study of legal doctrine, as initially pointed out, and it must still be the task of professional legal professionals. The legal doctrine system certainly does not need to accept it, and can thus meet the needs that are inevitably still unmet in the latter field. Due to the fact that legal materials are inevitably divided into specific legal departments in technology, dogmatic legal professionals are not fully aware of the interlocking connections between norms belonging to different fields. For example, when he considers the concept of land ownership, although he immediately remembers the insignificant restrictions set by civil law on the control of all people, he does not remember all the important restrictions imposed by public law, especially the construction sector, on this control. It is expected that the method of sociology of law (consistent with the comprehensive spirit of sociology in general) will inevitably demonstrate the state of life relationships as an uninterrupted whole. Therefore, in fact, it can be considered whether such a method is worthy of priority consideration for pure theoretical legal courses in so-called higher vocational colleges. Of course, this does not involve the rejection of doctrinal concepts, but rather the unique connection of these concepts. Therefore, Sinzheimer, a lawyer from Frankfurt am Main, correctly stated in his inspiring work "Sociological Methods in the Science of Private Law" that sociological methods cannot replace doctrinal studies; rather, they already presuppose the "results" (or better put, concepts) of the latter when applied. Here, even though they play an important role in the vivid value judgments within a nation, and as mentioned earlier, they themselves are facts of social life, this requirement - which now needs to be taken into account - is not a proposition of a theoretical science like sociology, but rather needs to be proven from the perspective of positive law science and legal philosophy, and implemented and limited in a concrete way.

These comments also hold true for some of the efforts of Eugen Ehrlich, a distinguished Austrian Roman jurist dedicated to legal reform. Ehrlich hoped that if law could abandon its one-sided approach to "judicial norms" and instead study and consider the "organizational forms" of social life, it would be able to develop from a practical discipline to a branch of sociology, using other disciplines as a model. But people can easily recognize from the previous discussion that in its concept of "organizational form", there is a chaotic flow of facts and norms, mainly those of customary law. As long as he places the study of customary law in the hearts of today's legal professionals, he is certainly right compared to the forgetting of it today; However, people cannot forget that customary law (although its effectiveness may only be a factual one) is to be understood as a complex of norms, just like statutory law, although some of these norms themselves have not been recognized by anyone and must be gradually revealed through "Rechtsfindung": they are "free customary law" (freies Gewohnheitsrecht), a branch of "free law". Therefore, it cannot be the object of sociology at all (even according to Ehrlich's viewpoint, it can only be grasped through factual correlations). Advocates of the theory of liberal law - who have so sharply emphasized the practical ("evaluative") elements of all doctrinal studies - should precisely prevent themselves from regressing to the view that law is a purely theoretical ("evaluative") discipline.

Furthermore, since Jelinek - like Parchmann - only insufficiently recognized the mutual limitations of these two fields and thus isolated them from the outside - adopted a "methodological dualism" and constructed his "general national studies" based on the distinction between law as a norm and law as a social fact, German legal professionals may have become familiar with this distinction. These ideas (which some consider so modern) are indeed a regression of Kant's basic understanding: 'To lead the rules about what I should do to the rules about what I can do, or to limit the former to the latter, is to be severely condemned'. Therefore, the correct path here is also the path of criticism: it must also stay away from the written law that does not pay attention to the facts of life at all, and understand all legal studies as lifeless calculations through rigid concepts (Buchjurisprudenz), as well as the exaggerated views of contemporary times that misunderstand the characteristics of law as a normative science. Doctrine without sociology is hollow, and sociology without doctrine is blind.

But there is one thing we still need to remember on the roster of the historical school (whose representatives arrogantly overlook this' naturalistic 'exaggerated viewpoint): these whims are the spirit of its spirit. It teaches that the correct application of our laws cannot be separated from the understanding of doctrinal history up to ancient times, and based on some subtle truths - which exist in this preconception that has never been attempted to prove in typical situations - constructs all the preparatory knowledge of law, such as - from an educational perspective - placing the history profession at the beginning of (all education). Unfortunately, it arranges in legal literature and practice what it can provide through purposeful training, which precisely alienates true legal professionals from this kind of research and does not teach them anything else to provide. It happens to be (intellectually biased and therefore blindly opposed to actions that are fundamental to all legal activities) that it has misunderstood: for our actions, legal provisions that are no longer valid are no longer seen as norms, but only as facts; Of course, from a methodological perspective, both current facts and past facts (from which people infer what should exist) are the same thing. Here, historicism and naturalism have been proven to be inseparable, despite wearing different hats. Those who have mastered the methodology of liberal law and realized that legal thinking is not a causal operation, but a teleological task, not an empirical sociological operation, but precisely a legal normative task that questions not why (Warum), but why (Wozu). They are never afraid to oppose historical pranks like they oppose overly fashionable exaggeration.

 Therefore, we need to briefly discuss the last issue: it is not the significance of sociology for the study of legal doctrine and the application of law, but its significance for the research of legal history. This question is particularly difficult to answer because the methodological structure of this research is complex and difficult to understand, and additional difficulties only begin here - as is well known, Windelband, Simmel, and Lickert only generally solved this problem for historical research. The only specific issue that has been repeatedly discussed is the applicability of doctrinal studies to laws that are no longer effective. On the other hand, outstanding legal historians refer to all such research as' useless' and 'redundant'. But these arguments do not take into account that such research builds its claims on the assumption that current legal history research without strict methodological awareness has provided the best conclusions, but this assumption itself can only be proven through methodological means. If we are not intimidated by this malicious deception, let us start from this unproven principle: methodological dualism should also be implemented in the study of legal history. Therefore, the issue we need to address, namely the significance of sociology for it, must be distinguished from the normative history of law (Normengschichte des Rechts) (when the history of doctrine does not belong to the scientific history of law, it also belongs to the normative history of law) and the social history of law (Sozialgeshichte des Rechts).

If the normative history of law can avoid three types of errors, it has been studied correctly. The first mistake lies in misjudging the immeasurable intrinsic value of history and only misusing it as a means of interpreting current law. We have just explained the frequency of such errors and the consequences they have caused; Further research will not be conducted here as it does not involve any violation of sociological requirements. But in the other two types of errors, it is indeed the case.

When legal history is treated in isolation, when the reasons for (legal) changes are always sought in its previous legal phenomena, the second mistake is made. Because there, as taught by the historical school, law can only be understood as a part of the culture to which it belongs at all times, so this isolation is arbitrary and unscientific. Unfortunately, the plan of the historical school only stays at the stage of planning; For most (even very famous) legal historians, Yelin's criticism of them still holds true: they are like "men who plan to teach children how to recognize clocks, reminding children how the hands move from position". Readers have almost never gained the impression that things must be this way, not that way, and their causal needs are almost unfulfilled, just like when reading medieval chronicles. However, the connection with spiritual culture is occasionally emphasized. On the contrary, contrary to economic historians, legal historians (who are so passionate about studying the impact of legal order on economic life) have too little research on the opposite relationship. However, legal history still has sufficient motivation to apply the relatively thin but precisely significant truth core of materialist conception of history. Based on this heuristic principle, it is necessary to study to what extent the "ideological superstructure" of legal norms is functionally dependent on the "economic foundation" (for the correct interpretation of Marxism, in addition to "production relations", factual legal relations, especially ownership distribution, also belong to the economic foundation). Only when legal history resurrects withered facts (legal history today is obsessed with confirming their details) through this sociological study, can it satisfy today's demand for science. So far, most of its achievements cannot be regarded as historical works in the modern sense, but can only be regarded as preparatory work for such works, although it is exemplary in terms of formal accuracy and sharp criticism of origins.

The third type of violation of the legal history method (error) is manifested in the doctrinal (more accurately, system constructed) treatment of norms that are no longer valid, manifested in obtaining a systematically proven answer to every question from even past laws, as if it were a flawless and contradictory system. The idea of viewing law as such a system only serves the purpose of preparing judges with laws that can be determined and immediately applied. This purpose did not exist in the past laws, not only because it could no longer be applied in practice, but also because it had become a pure fact; There is no one who should exist to go back "(Jelinek). Subsequently, norms should also be imagined as pure facts that are in social contact with others, rather than being understood as a self satisfied whole. Therefore, a sociological foundation should also be added here. Especially, it is not possible to derive any conclusions from legal provisions that have not been actually deduced by the survivors at that time and cannot be deduced by them. It is not possible to use legal techniques to resolve controversial contradictions, but rather to explain these contradictions through historical conditions, especially through the conflicting interests they usually express. Only for practical applications such as those interested in historical research, it is necessary to apply doctrinal processing to norms, while maintaining maximum restraint and not using legal techniques. For example, the interest in the history of Friedrich der Groe is not only in how he judged the case of Miller Arnold, but also in whether he was able to do so under the law at the time; Just like war history not only describes the actions of commanders, but also judges their actions based on the strategies of the time. It is precisely in these occasional situations in the history of law that it has the motivation, not just to engage in value related tasks, but to conduct evaluations. In addition, in the history of law, doctrinal studies also have a certain "temporary" significance as a "heuristic or display tool" (Max Weber), but this cannot be overestimated, as in individual cases it can easily lead to crossing the boundaries set by historiography as a purely factual science. It must be acknowledged that since Roman law no longer has any practical effect (at least among professional legal historians), this third type of error (which was previously particularly distorted by Roman jurisprudence) has begun to disappear; On the contrary, it is still quite common among doctrinal scholars involved in the field of Roman law. This approach to legal history is only relatively mainstream in Germanic jurisprudence, which has always been indifferent to legal philosophy, especially methodology, and now must bear the consequences.

Sociology is certainly much more important for the study of the social history of law. This should be understood as the study of the development of social life, taking into account the relationship between social life and the legal norms it governs. By definition, this type of research is essentially a fragment of historical sociology or cultural history composed of methodological perspectives (although for obvious reasons, it must be linked to law through multiple roles). For example, it is undoubtedly evident that in the social history of law, even unlawful phenomena must be examined. If we consider the changes in criminal forms brought about by technological and social changes, the history of criminal law in the 19th century is one-sided; Similarly, without depicting the corruption of officials under the rule of Friedrich I., the history of Prussian administrative law would also be one-sided. If anyone disputes this, please try to place the history of illegal phenomena in other disciplines; Subsequently, he will consider cultural history in the sense of folk history, thus confusing law and customs, or consider the overall cultural history of a specific cultural branch, and continue to engage in legal history research under a general term. In the field of substantive law, the understanding of social facts in legal history (including both legal and illegal social facts) must first be extracted from these documents - the cognitive origins of the social history that determines law from them. For the field of litigation law, the actual litigation situation - which is far from the provisions of statutory law in all times - constitutes a social fact that needs to be studied; The cognitive origin here (not such as judgment, but rather litigation behavior).

As expected by the mainstream view, the study of the social history of law is far inferior in factual evaluation compared to the study of normative history; Based on this, the conclusions drawn so far are still too weak here. But after all, the social history of criminal law has at least demonstrated an inductive function that is beneficial for understanding the "task of criminal justice", and these studies (based on contractual documents and judgments) have long been particularly vigorously conducted in the Germanic branch of law; But recently, they have also infiltrated Roman jurisprudence through the medium of papyrus. Of course, their independent significance has not been fully estimated, and they are mostly evaluated as auxiliary means. People only hope to supplement, review, and revise the normative history of law (which was previously the only research conducted and derived from literature and legislation) through them. In this way, disappointment is inevitable. The study of the social history of litigation law is still very bleak. It is typical that when a compilation of medieval litigation materials was edited and published three years ago, this was the first time this type of research was conducted, and it was inevitably only used as an auxiliary tool for ancient litigation document studies in a general sense. In the case of abundant materials, this research branch will also produce fruitful results; On the contrary, future social researchers will feel uncomfortable with this, as due to financial reasons, almost all archived litigation materials in most German states, especially in Prussia, are occasionally destroyed. On the contrary, I also want to protest against the excessive destruction of expensive raw materials.

Thus, I have reached the focus of my argument, but before concluding, I would like to emphasize that sociology of law not only has value due to its essential role in legal studies, but also has value in itself (like any discipline). If my argument mainly focuses on the former, then it is only because the latter is taken for granted.