HISTORY OF LAW AS HISTORY OF SCIENCE 1

Transcription

1 HISTORY OF LAW AS HISTORY OF SCIENCE 1 by Professor Dag Michalsen, University of Oslo 1. Defining the issue How does the history of law in the form of history legal science relate to the general history of science? In this contribution my aim will be to reflect upon this question. My main argument is that in order to give an interesting historical interpretation of legal sciences we have to take into account the manifold activities that legal sciences normally execute in societies like the Norwegian. This observation might also be generalized in this manner: By analyzing the history of a discipline in my case the legal science one might achieve a more realistic view of the character and functions of a discipline by way of liberating it from the constraints of more sweeping normative views on science. There is no definition of legal science that could be valid for every historical interpretation. There is however a common international understanding that legal science as a certain profession came about from around the mid12th Century in Bologna. Another shared understanding is that there was a certain level of continuity of the European legal science into the early modern times. The reasons for this development were partly the normative role of Roman law in European society and the institutional closeness of the legal scientists to princely and state power. This continuity was strengthened through the formal framework of law faculties that spread rapidly as part of the diffusion of universities between 1300 and After 1500 the 1. This text is with minor changes identical with the lecture held at the symposium Perspectives on the History of Science 22 October The text is based upon earlier research, in particular Dag Michalsen, Norsk rettstenkning etter 1800 [Norwegian legal thought after 1800] (Oslo, 2013) Chapter 3 and 5.

2 380 Det Norske Videnskaps-Akademi Årbok 2013 rise of the modern state forced the legal science into more regional functions, although the hegemony of Roman law and, later on, Natural law, gave regional legal sciences a certain character of supranationality. Legal science came late to Denmark-Norway. 2 Even though the University of Copenhagen was established just before 1500, there was little activity that would be called legal science by the standards that were common at the time. This changed at the beginning of 18th Century due to three reforming factors: the legal education, state planned legal reforms and the impact of Natural law literature. In addition, a number of legal journals were set up; within the strict authoritarian legal frames of absolutism a certain legal public sphere then came about. The most flourishing decade was certainly the 1790s, before the effects of crises and warfare became too devastating. As Norway achieved its university in 1811, the faculty of law was planned and an independent faculty of law has been part of the university ever since. The same goes for the universities in Bergen and later Tromsø, both of the 20th Century. In a constitutional state like the Norwegian law and lawyers played an important part after 1814 quite simply due to the multileveled juridification that has taken place in the society since then. The new role of the popular legislator after 1814, the Parliament, and the increased role of the judiciary, both tended in that direction. The history of Norwegian legal science after 1814 has to some extent been written in a constant tension between historical and legal scholars. 3 I believe this to be quite natural. As the legal science or rather, the legal scientists, so to speak by definition had to combine science and politics, the two disciplines would naturally look for different things in the past legal science. From a legal scientific point of view a history of legal science would have to focus on the contribution of legal science to the legal system as well as to material law and legal methods. Historical and social sciences however would rather focus on the political and social dimensions of legal science. We may call these tendencies the internal perspective of the history of legal science and external perspective of the general historical science. It goes without saying that we are dealing with different aims of the history of legal science. To a methodological conscious legal science a national and international history of legal science must have a particular 2. Jørn Øyrehagen Sunde, Fornuft og Erfarenhed. Framveksten av metodisk medvit i dansknorsk rett på 1700-talet (Bergen, 2007). 3. See Michalsen, Norsk rettstenkning etter 1800 (Oslo, 2013) chapter 1 on the research of the historians Jens Arup Seip, Francis Sejersted and Rune Slagstad.

3 History of Law as History of Science 381 meaning. 4 This history is part of the ongoing critical discussions about legal methods and thus represents a contribution to the study of legal science. My concern is that this kind of history of legal science easily becomes rather unhistorical and certainly quite idealistic as its aim is rather the actual present use of a certain kind of past legal science, not an historical interpretation first and foremost. On the other hand to study past legal science as part of the political and social formations in Norwegian society since 1814 is of importance for those obvious reasons that I have already given. The problems of this external history is however equally clear: Only focusing on the political and social functions of a past legal science leads to certain depletion of the content of this science; often the external history contents itself with connecting politics and ideology to one past particular text of legal methodology assuming it to represent a whole epoch of legal science. This approach overlooks however the main institutional tasks of legal science that have been and continue to be legal dogmatic and legislative business, and not producing legal methodological texts. In my view we have to accept these two different aims of internal and external history of legal science. An ambition must be however to integrate them in some way or other. This ambition leads me to highlight three aspects of the history of legal science that may contribute in that direction. The first one deals with the connection between a past legal science and its legal system; the second between past legal science and political order; and the third between legal science and the system of science in general. 2. History of legal science and the legal system In order to give an historical interpretation of legal science it is important to stress its connection to the legal system more generally. This dimension it shares with other professional disciplines, as medicine, psychology or theology. Historically, the activity of legal science is conducted under the institutional pressure of the legal system to which it belongs. This pressure is constituted through the expectations of the legislator, court and bureaucracy as well as to its norm production. The legal system s other actors simply rely on the contributions of legal science. This has some methodological 4. For what follows see Michalsen, Nye trender i rettshistorieforskningen, I: Asbjørn Kjønstad (red.), Nye trender i rettsvitenskapen (Oslo 2013) s

4 382 Det Norske Videnskaps-Akademi Årbok 2013 consequences, namely that any historical interpretation of legal science has to take into account the changing character of the legal system more generally when writing about legal science. To give an example: 5 According to Article 94 in the Constitution of 1814 it was stated that the Parliament should enact a comprehensive codification of private and penal law based upon the principles of the Constitution. At that time the Norwegian state lacked bureaucratic infrastructure. Thus the legal committee that the Constitutional assembly at Eidsvoll established in May 1814 with the task to produce such a codification consisted of the major legal scholars at the time. But before these scholars could get on with what in reality was a formidable legislative task, namely the making of civil and penal code, the new state wanting legislative bureaucracy constantly called on these legal scholars to draft all kinds of minor legislation as well. Thus to look for the entity legal science in the post 1814-Norwegian society would be to look for the fields in which legal scholars actually worked, namely on new legislation. This may be generalized: As the legal and political system expected legal science to deliver these legislative services, the Norwegian legal science attained what we may call an operational character its field of work was much more than scientific work in a traditional humanistic way; the task of supervising the norm producing activities in society gave legal science an almost semi-constitutional status. Any historical interpretation would have to take this into account. Thus most of the legal scholars during the 19th and most of 20th Century were heavily involved with both legislative tasks and private arbitration. Interestingly these tendencies have some bearing upon any comparative historical interpretation between legal sciences of different countries. It has been quite common to compare German and English legal science with Norwegian legal science during the 19th Century. 6 This seems immediately to be an obvious case for an interesting comparison. But Norway and Germany were of course very unequal states, an observation which must make us cautious: If we take a look at what is now called Norwegian legal science around 1870, we find that the word itself was almost absent, whereas 5. Hilde Sandvik/Dag Michalsen (red): Kodifikasjon og konstitusjon. Grunnloven 94 s krav til lovbøker i norsk historie (Oslo, 2013). 6. Dag Michalsen, Englische und Norwegische Römerrechtsideologie des 19. Jahrhunderts I: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung 2012 pp

5 History of Law as History of Science 383 the opposite was the case in Germany. In Norway there were only a very few persons engaged in lecturing law, writing sparse legal literature, primarily doing politics and legislative work most of the time, and the relevant persons lived in a very modest manner in a small town in the north of Europe. Legal science of Norway was then of quite another kind than the German one or the English one, these two being very different from each other as well. In addition to this, the contexts of each of these legal sciences were very different. This was due to the different character of the countries, such as the complexities of scientific relations, structures of legal systems altogether, the character of politics, imperial dimensions, cultural patterns, sense of pasts and futures: quite simply the manners of men; perhaps so different that they cannot be compared. We are however led by the assumption of the existence of meta entities like that of legal science in that we are dealing with similar phenomena of historical comparison. But looking into these entities there are methodological problems around every corner. 3. History of legal science and political order As I mentioned, the general historical research has been interested in interpreting the political role of legal scholars. There can be no doubt that the major epochs of Norwegian political rule such as the constitutional system after 1814, the emerging state power and democratization at the end of 1900 and finally, the 20th Century s complex forms of sovereignty composed of the state, capital, corporations and the individual right system have represented important conditions for the activities of legal science. In that sense there is a constant dimension of actual politics in all legal science. Still, an historical interpretation of legal science will meet some methodological problems well worth discussing. What is a legal scientific text s relative autonomy when it comes to political structures and ideological preferences? How are we historically to identify a certain political ideological component or dimension regarding a disciplinary argumentation? And how can we historically understand a certain legal scientific text or argumentation as an expression of the logic of a legal system rather than that of politics? It goes without saying that these are questions that can only be answered as issues to be investigated in ongoing historical research. From the standpoint of general history this matter may be seen as a dichotomy between the academic and the political legitimacy in the law-

6 384 Det Norske Videnskaps-Akademi Årbok 2013 making process in society. 7 The 19th century constitutional state was an organization that, among other things, was in charge of the legal system and its adaptation to social changes. The legal system provided the political system with a variety of options to design and structure policies, but at the same time this led to much more complicated law. The debate on the role of politics, in the form of the role of the people in legislation meant among other things this: Law was not only a category of politics, but also an independent system with a logic of its own. And this logic should be the specific field of the legal specialists. In this respect the legal scientists in many ways regarded themselves as an integral part of the constitutional state with the explicit task of guarding the consistency of law, in particular by the important task of drafting new legislation. The same dilemmas exist today. But one important change is the steady growth of bureaucracies of the modern parliaments. 4. History of legal science and the system of science My last point is that legal science historically gets functional identity through its connection with the general academic system. I would like to stress one important observation. Even though the understanding of legal science in many ways was determined through its connection with the legal system and the different social sectors that law was to regulate, its general scientific models were based upon the major European legal methodological models. 8 Thus an historical interpretation of legal science will have to balance between the immense variety of influence from theoretical internationalization and its domestic legal and political functions. This central observation may be studied historically by looking at four types of legal scientific methods that could be identified in the history of legal science in Norway. They are not mutually exclusive, but they are tendencies that have been frequently recurrent in the works of legal scientists. For the lack of better terms, I call them: Analytical, Historical, Conceptual and Rule-of-law-value legal sciences. The analytical school of law has its foundation in the analytical-pragmatic legal scientific method of Anton Martin Schweigaard, initially formulated in the 1830s in direct confrontation with the parts of the German 7. See the general observation of Niklas Luhmann, Das Recht der Gesellschaft (1995) pp Franz Wieacker, A history of private law in Europe (Oxford 1995).

7 History of Law as History of Science 385 legal science at the time. 9 It seems to be the theoretical foundation of a certain practical realism, where the material for legal reasoning is identical with that of the court. This analytical approach developed a keen sense for the task of the Legislator, as was the case of the equivalent English version connected with the name John Austin and his analytical jurisprudence. But there is an interesting paradox in this Norwegian version. On the one hand, the constitutional workings of the legal system ensured the authority of the Parliament [Storting] as a legislator. On the other hand, the role of legal science was very much integrated in this constitutional state because so many of its representatives were active politicians: The result was a dynamic legal science actively taking part in daily politics and formulating methodological issues with this institutional setting as a tacit dimension. To some extent, the later Norwegian legal realism of the mid 20th Century is an example of this model. During the latter half of the 19th century, the historical turn came to Norwegian legal science. 10 Historical legal science was not at all merely historical in the traditional sense of the word: In Norway, its intellectual premises were derived from the German historical school; at the turn of the century this approach was very much widened by linking legal science to the new social sciences. The historical legal science enlarged the scope of law to historical material and consciously embedded Norwegian law in the European legal traditions of Romanism and Germanism. As to legal methods, its most influential step was to establish a pluralistic theory of legal sources and, through historical investigations, to define the court as a law-making institution. In this sense there are convergences with the later legal realism of the 20th Century. The third model is conceptual legal science which paid particular attention to legal principles and systematic legal argumentation. The foremost representative was Francis Hagerup. 11 The strength of Norwegian constitutionalism structured the legal methods of Hagerup. He did not openly question the constitutional exclusive role of the legislative parliament. Acknowledging the constant processes of social change, his preoccupation 9. See for different interpretations in Ola Mestad (red), Anton Martin Schweigaard. Professorpolitikeren (Oslo 2009). 10. Michalsen, Norsk rettstenkning etter 1800 (Oslo 2013) pp Rune Slagstad, Rettens ironi (2. utg. Oslo, 2011) pp Sverre Blandhol/Dag Michalsen (red.), Rettsforsker, politiker, internasjonalist: Perspektiver på Francis Hagerup (Oslo, 2007).

8 386 Det Norske Videnskaps-Akademi Årbok 2013 was with coordinating the legitimacy of the Legislator with the role of legal science, a preoccupation that led to a cautious conceptual legal method. He was an active Member of Parliament and twice Prime Minister, actively pursuing legal reforms on all arenas. In this sense, he was a typical operational legal scientist. But equally preoccupied with the scientific character of legal science, he was partly worried about Parliament s lack of interest regarding the systematic aspect of the legislative business. Thus the legal science had a very important role both in preparing legislation and in delive - ring a systematic interpretation that would establish Norwegian law in an international academic setting. During recent decades there has been renewed interest in conceptual systematic legal thinking mainly because of the internationalisation of legal material that requires new types of systemic organisation. My last model of legal science is what I somewhat inelegantly call Rule of law-value legal science; this term is equivalent to the German and Norwegian words Rechtsstaat or rettsstat. 12 Its intellectual premises are taken from different forms of liberal theories with particular attention to constitutional thinking, some of them also with affinities to the natural law tradition. As I have accentuated, this has always been a significant trend in legal science in Norway. The renewed interest in this thinking after 1990 is well known, partly as a result of the practical breakthrough of the human right regimes and partly as a result of the increased importance of normative theories on law in general. 5. Conclusion The history of legal science is related to the general history of science to a certain degree and in complicated ways. The main argument of this contribution has been twofold: Firstly, I have maintained that an historical interpretation of a past legal science must take into account the manifold tasks of the legal science in the legal system, tasks that are institutionally expected from the legislator, the court, the bureaucracy and the legal practice in general. Secondly, I have emphasized that the academic connections of legal science first and foremost is structured by combinations of this inte- 12. See the general tendencies in Jan Fridthjof Bernt / Synne Sæther Mæhle, Rett, samfunn og demokrati (Oslo, 2007).

9 History of Law as History of Science 387 gration in the legal and social system and the international models of legal science as they have been interpreted by successive generations of legal scientists. The abstract notion of science in general or the history of science (and not sciences) has seldom been brought into the theoretical debates and one may question the relevance of this understanding of science for the purpose of an historical interpretation of a legal science. This may lead to a more discomforting question: Does so to speak a History of science that seeks its existence beyond the realm of the numerous academic disciplines bears any relevance to the historical study of these academic disciplines? The answer seems to depend upon how this sort of history will relate to the plurality of narratives of sciences.