The Art of Judging and Power, Pedagogy, & Praxis: Article 4 Moving the Classroom to Action
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Jhering's Concept of Rechtsgefühl and Its Role in the Struggle For
TRANSFORMACJE PRAWA PRYWATNEGO 4/2017 ISSN 1641–1609 JOSEFA BIRR* Jhering’s concept OF RECHTSGEFÜHL AND ITS ROLE IN THE STRUGGLE FOR LAW “It is the energy of our moral nature protesting against the violation of the law; it is the most beautiful and the highest testimony which Rechtsgefühl can bear to itself […]”. With these words, Rudolf von Jhering captured the attention of his audience at his Vienna lecture of The Struggle for Law in 872. The following paper is divided into three parts. I begin with a review of Jher- ing’s concept of Rechtsgefühl2. I then go on to look at its particular meaning in The Struggle for Law. Finally, I show how the function of Rechtsgefühl in The Struggle for Law fits into Jhering’s overall concept ofR echtsgefühl. In the late 9th and early 20th centuries, German jurisprudence was concerned with the phenomenology of Rechtsgefühl. This concept is enigmatic. Its range of meaning extends from an inner psychological disposition, or something that is given a priori, to an educated feeling for legal right, similar to legal intuition. Re- lated terms and frequently used synonyms such as Rechtsbewusstsein, Rechtsemp- finden, Gewissen and Sittlichkeit make a clear definition difficult. Rechtsgefühl is widely translated as “the feeling of the legal right” or “sense of justice”. The concept of “legal sentiment” comes closest. Still, in my opinion, none of these is quite accurate. Thus, in the following I use the term Rechtsgefühl. * Dipl.-Jur., Göttingen. R. von Jhering: The Struggle for Law (1872), translated from the fifth German edition by J.J. -
Roscoe Pound-The Judge
January, x942 ROSCOE POUND-THE JUDGE HAROLD GILL REUSCHLEIN t "Experience made him sage" -John Gay' To Roscoe Pound was given an invaluable experience rarely granted to a legal philosopher and teacher, 2 the experience afforded by a position upon a judicial tribunal of high rank. In April i9oi the Supreme Court of the State of Nebraska, then consisting of a chief jus- tice and two judges,3 found itself confronted with a docket hopelessly in arrears. The legislature, coming to the aid of the court, created the Nebraska Supreme Court Commission.4 Nine commissioners were appointed by unanimous vote of the supreme court to prepare and submit opinions in over fifteen hundred cases which had accumulated in the court. The commissioners were organized into three "depart- ments" each consisting of three members, one of whom served as chairman of his department. Appointed as one of the original commissioners, Roscoe Pound, was assigned to the "Second Department".5 During Pound's tenure as a commissioner, the members of the supreme court itself wrote almost no opinions. As the (locket was called, the cases were assigned equally to the departments and the chairman of each department re- assigned these cases to its members. There followed the usual hearing, t A. B., 1927, University of Iowa; LL. B., 1933, Yale University; J. S. D., 1934, Cornell University; Professor of Law, Georgetown University; author of Aludminum and Monopoly: A Phase of an Uisolved Problem (1939) 87 U. OF PA. L. REV. 509; Municipal Debt Readjustment: Present Relief and Future Policy (1938) 23 CORN. -
The First Step Remarks on the Juristic Origin of Some Weberian Concepts
From law to social science and back again - the first step Remarks on the juristic origin of some Weberian concepts Péter Cserne I. Introduction In the last decades, "Weber Studies"1 has grown to a genuine big industry of the academia. The number of books, monographs and dissertations written on or explicitly related to Weber's person and/or work increases by hundreds every year. This applies to almost every discipline in the social sciences and humanities, and characterises not only the German and English speaking world but Spain, Italy and Japan too. The approaches present in these works are diverse as well, ranging from the bio-bibliographical to the reconstructive and the analytic.2 If one is not completely sceptical about the (material) rationality of the work in social sciences, he has to acknowledge that this enduring interest is, at least to a certain extent, due to the inherent values of Weber's work – even if the quality of the interpretations is rather fluctuating.3 In what follows I shall expose the question of the legal origin of certain Weberian categories and ideas, and make some remarks in general on the possible effects of Weber being a jurist on his sociological work. This problematic, yet not fully appreciated in the secondary literature on Weber, can be considered as a small step or episode in the history of ideas (Ideengeschichte). But with two further steps we can arrive to a new perspective on Weber's oeuvre showing, to put it in a metaphor, a "way from law to social science and back again". -
State Courts and Federalism in the 1980'S: Comment
William & Mary Law Review Volume 22 (1980-1981) Issue 4 National Center for State Courts Marshall-Wythe School of Law Symposium on Article 9 "State Courts and Federalism in the 1980's" May 1981 State Courts and Federalism in the 1980's: Comment Ruggero J. Aldisert Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Jurisdiction Commons Repository Citation Ruggero J. Aldisert, State Courts and Federalism in the 1980's: Comment, 22 Wm. & Mary L. Rev. 821 (1981), https://scholarship.law.wm.edu/wmlr/vol22/iss4/9 Copyright c 1981 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr STATE COURTS AND FEDERALISM IN THE 1980's: COMMENT RUGGERO J. ALDISERT* Each of the four highly analytical, uniformly thoughtful and stimulating papers that are the subject of these comments deserves an exhaustive commentary. My role is not to respond in kind by setting forth an essay of my own, but to react informally to the intellectual feast so temptingly displayed in the preceding pages. My reaction is, of necessity, personal and unabashedly influenced by my experience, and, therefore, these contentions are intuitive rather than conclusive. Moreover, my reaction is probably atypical because it is colored (or shall I say jaundiced?) by twenty years in the state and federal judiciary and about a dozen years of intimate involvement in continuing education programs for state and fed- eral appellate judges. My experience prevents me from looking upon state and federal courts as inanimate institutions, or state and federal judges as faceless dancers in a bloodless ballet. -
Summary of Academical Accomplishments 1. Christoph-Eric
Summary of academical accomplishments 1. Christoph-Eric Mecke 2. Diploma of general studies of French law (“Diplôme d'Études Juridiques Générales Françaises”) at the Faculty of Law and Economics of the University of Tours (France) obtained in 1986 after completing studies in France during one year. Diploma after legal studies at the Faculty of Law at the Georg August University in Göttingen obtained in 1991 (first state law examination). Diploma after a two-year law application in courts, public administration, public prosecutor's office and private law offices, conferral of the title of an assessor of law (entitles in Germany to practice as judge, prosecutor and attorney) granted by the High Court of Lower Saxony in Celle in 2007 (second state law examination). Degree of a Doctor of Legal Science awarded by the Council of the Faculty of Law at the Georg August University in Göttingen on July 17, 2007 on the basis of a comprehensive law examination (“Rigorosum”) and the presented monographic dissertation entitled Begriff und System des Rechts bei Georg Friedrich Puchta [= Concept and legal system in the legal thought of Georg Friedrich Puchta] marked with the highest possible final grade “summa cum laude”. 3. Information on employment in academic positions: 1991-1993 - junior researcher at the Department of Legal Theory at the Faculty of Law at the Georg August University in Göttingen; from February 1, 2008 to March 31, 2016 – researcher at the Department of Civil Law and History of Law and lecturer at the Faculty of Law at the Leibniz University in Hanover, there I’m still an academic teacher in the field of legal history from April 15, 2016 to December 31, 2017 – researcher at the Department of Roman Law and Pandetics at the Faculty of Law of the Georg August University in Göttingen; from January 1, 2018 until today – researcher and lecturer at the Brunswick European Law School at the Ostfalia University of Applied Sciences in Brunswick (Braunschweig). -
Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability
Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability EDMUND URSIN* TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 538 II. SETTING THE STAGE: TORT AND CONSTITUTIONAL LAW AT THE TURN OF THE TWENTIETH CENTURY ............................................................................ 545 III. HOLMES AND THE PATH OF THE LAW ................................................................. 550 A. Holmes and the Need for Judicial Creativity in Common Law Subjects ............................................................................................ 550 B. The Path Not Followed ............................................................................ 554 IV. THE INDUSTRIAL ACCIDENT CRISIS, THE WORKERS’ COMPENSATION SOLUTION, AND A CONSTITUTIONAL CONFRONTATION ....................................... 558 A. The Industrial Accident Crisis and the Workers’ Compensation Solution ............................................................................ 558 * © 2013 Edmund Ursin. Professor of Law, University of San Diego School of Law. Thanks to Richard Posner for valuable comments on an earlier draft of this Article and to Roy Brooks and Kevin Cole for always helpful comments on previous articles upon which I expand in this Article. See Edmund Ursin, Clarifying the Normative Dimension of Legal Realism: The Example of Holmes’s The Path of the Law, 49 SAN DIEGO L. REV. 487 (2012) [hereinafter Ursin, Clarifying]; -
Ross and Olivecrona on Rights
Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2009 Ross and Olivecrona on Rights Brian H. Bix University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Brian H. Bix, Ross and Olivecrona on Rights, 34 AUSTL. J. LEG. PHIL. 103 (2009), available at https://scholarship.law.umn.edu/faculty_articles/211. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Ross and Olivecrona on Rights BRIAN H. BIX1 Introduction The Scandinavian legal realists, critically-inclined theorists from Denmark, Norway, and Sweden, who wrote in the early and middle decades of the 20t century,2 are not as widely read as they once were in Britain, and they seemed never to have received much attention in the United States. This is unfortunate, as the work of those theorists, at their best, is as sharp in its criticisms and as sophisticated philosophically as anything written by the better known (at least better known in Britain and the United States) American legal realists, who were writing at roughly the same time. The focus of the present article, Alf Ross and Karl Olivecrona, were arguably the most accessible of the Scandinavian legal realists, with their clear prose, straight- forward style of argumentation, and the availability of a number of works in English. -
Editorial Preface to This Volume
University of Michigan Law School University of Michigan Law School Scholarship Repository Other Publications Faculty Scholarship 1914 Editorial Preface to This Volume Joseph H. Drake Available at: https://repository.law.umich.edu/other/153 Follow this and additional works at: https://repository.law.umich.edu/other Part of the Law and Philosophy Commons, and the Legal History Commons THE FORMAL BASES OF LAW BY GIORGIO DEL VECCHIO Professor of Philosophy of Law in the University of Bologna TRANSLATED BY JOHN LISLE of the PhiladelphiaBar WITH AN EDITORIAL PREFACE BY JOSEPH H. DRAKE Professor of Law in the University of Michigan AND WITH INTRODUJCTIONS BY SIR JOHN MACDONELL Professor of ComparativeLaw in University College, London AND SHEPARD BARCLAY Former Chief Justice of the Supreme Court of Missouri First Published 1914 (Boston: The Boston Book Company) Reprinted 1969 By Arrangement with the Macmillan Company EDITORIAL PREFACE TO THIS VOLUME By JOSEPH H. DRAKE' I. The Author and the Translator. GIORGIO DEL VECCHIO (born at Bologna, August 26, 1878) studied at the universities of Genoa, Rome and Berlin, obtaining in the University of Genoa his doctor's degree in the philosophy of law. In the year 1903 he was nominated professor of that subject in the University of Ferrara, where he began his teaching with the discourse "Right and Human Personality in the History of Thought." He occupied that chair till the end of 1906, giving also a course of lectures as docent in the University of Bologna during the years 1905 and 1906. In 1906 he was nominated for the professorate of the philosophy of law in the University of Sassari and remained there until the end of 1909. -
Jhering En Ortega Y Gasset Jhering in Ortega Y Gasset
Doxa. Cuadernos de Filosofía del Derecho, (2020), 43 e-ISSN: 2386-4702 | ISSN: 0214-8676 Jhering en Ortega y Gasset Jhering in Ortega y Gasset Juan José Gil Cremades Autor: Resumen Juan José Gil Cremades Universidad de Zaragoza, España A partir de 1933, abandonada la política activa, Ortega [email protected] https://orcid.org/0000-0002-2704-9352 dedicó su atención, entre otros temas, a la filosofía social; particularmente a desentrañar el «hecho social», que creyó Recibido: 8-4-2019 Aceptado: 13-11-2019 radicaba en los «usos», quizá bajo la inspiración de Jhe- ring. Cómo llegó a él, fallecido en 1892, qué lectura hizo Citar como: Gil Cremades, Juan José, (2020). Jhering en Ortega de su obra, cómo modificó sus planteamientos y cómo su y Gasset. Doxa. Cuadernos de Filosofía del Derecho, propuesta fue recibida por la coetánea filosofía española 43, pp. 31-58. https://doi.org/10.14198/ DOXA2020.43.02 del derecho, son las cuestiones estudiadas en este trabajo. Licencia: Palabras clave: Jhering; Ortega y Gasset; hecho social; Este trabajo se publica bajo una Licencia Creative uso social. Commons Atribución 4.0 Internacional. Abstract © Juan José Gil Cremades After 1933, when he abandoned active politics, Ortega devoted his attention, among other topics, to social phi- losophy; particularly to unraveling the «social fact», which he believed was rooted in «customs», perhaps under the inspiration of Jhering. How he came to it, died in 1892, what reading he made of his work, how he modified his approaches and how his proposal was received by the con- temporary spanish philosophy of law are the questions studied in this work. -
Rules of Law, Laws of Science
Rules of Law, Laws of Science Wai Chee Dimock* My Essay is a response to legal realism,' to its well-known arguments against "rules of law." Legal realism, seeing itself as an empirical practice, was not convinced that there could be any set of rules, formalized on the grounds of logic, that would have a clear determinative power on the course of legal action or, more narrowly, on the outcome of litigated cases. The decisions made inside the courtroom-the mental processes of judges and juries-are supposedly guided by rules. Realists argued that they are actually guided by a combination of factors, some social and some idiosyncratic, harnessed to no set protocol. They are not subject to the generalizability and predictability that legal rules presuppose. That very presupposition, realists said, creates a gap, a vexing lack of correspondence, between the language of the law and the world it purports to describe. As a formal system, law operates as a propositional universe made up of highly technical terms--estoppel, surety, laches, due process, and others-accompanied by a set of rules governing their operation. Law is essentially definitional in this sense: It comes into being through the specialized meanings of words. The logical relations between these specialized meanings give it an internal order, a way to classify cases into actionable categories. These categories, because they are definitionally derived, are answerable only to their internal logic, not to the specific features of actual disputes. They capture those specific features only imperfectly, sometimes not at all. They are integral and unassailable, but hollowly so. -
Judicial Process As an Empirical Study: a Comment on Justice Brennan’S Essay
Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 1988 Judicial Process as an Empirical Study: A Comment on Justice Brennan’s Essay Charles M. Yablon Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Charles M. Yablon, Judicial Process as an Empirical Study: A Comment on Justice Brennan’s Essay, 10 Cardozo Law Review 149 (1988). Available at: https://larc.cardozo.yu.edu/faculty-articles/208 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. JUDICIAL PROCESS AS AN EMPIRICAL STUDY: A COMMENT ON JUSTICE BRENNAN'S ESSAY Charles M. Yablon* I. LOOKING AT WHAT JUDGES ACTUALLY DO One of the enduring accomplishments of the Legal Realist move ment was to shift at least some of the attention of academic lawyers away from their favorite occupation—telling judges what to do—and to get them to consider what it is that judges actually do. The genera tion of legal scholars who immediately preceded the Realists had at tacked the formalism of judicial decisionmaking, criticizing judges for mechanically applying formal rules without considering social needs or public policy.' The Realists, while sympathetic to this prescriptive claim about the proper role of judges, added to it a descriptive claim, that judges did not in fact decide cases through mechanical applica tion of general rules, that such formal rules were indeterminate at the level of practice, and did not yield certainty or predictable results.^ Certainty and predictability, to the extent they existed in the legal system, were the product of the "personality of the judge," not the • Professor of Law, Benjamin N. -
Jurisprudence and Ethics Roscoe Pound
NORTH CAROLINA LAW REVIEW Volume 23 | Number 3 Article 1 4-1-1945 Law and Morals -- Jurisprudence and Ethics Roscoe Pound Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Roscoe Pound, Law and Morals -- Jurisprudence and Ethics, 23 N.C. L. Rev. 185 (1945). Available at: http://scholarship.law.unc.edu/nclr/vol23/iss3/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 1945] LAW AND MORALS-JURISPRUDENCE AND ETHICS RoscoE POUND* I PRELIMINA Y :1 MORALS AND MORALITY The relation of law to morals was one of the three subjects chiefly debated by nineteenth-century jurists, the other two being the nature of law and the interpretation of legal history. Jhering said that it was the Cape Horn of jurisprudence. The juristic navigator who would over- come its perils ran no little risk of fatal shipwreck.2 Commenting on this, Ahrens said that the question called for a good philosophical com- pass and strict logical method.3 But Jhering showed later that the root of the difficulty lay in juristic and ethical vocabulary. On the one side, there was a poverty of terms which required the one word which we translate as "law" to carry many meanings. On the other side, there was in German an abundance of words of different degrees of ethical connotation with meanings not always clearly differentiated.