VII. Entspricht das jetzt dem Volksgeist? Geltungsfragen im „Heutigen Römischen Recht“

Abstract

Summary Does this comply with the “Volksgeist” now? Questions of validity in “Modern Roman Law”. The article examines the impact of the “Volksgeist” (national spirit), as the basis of the theory of legal sources developed by the Historical School of Law, on methodological history. Although in 1814 Savigny used the term “sensing the principles”, the methodological history, even nowadays, assumes that the “Volksgeist” exclusively contains rational structures and is therefore ‘reasonable’. Still and despite all doubts concerning this concept, the “Volksgeist” is merged with “Begriffsjurisprudenz” (conceptual jurisprudence). In contrast, this article develops a methodological program of the Historical School of Law in which rational approaches were always accompanied by irrational ones, appealing to intuition, a sense of justice, and a ‘child-like sense’ as an access to truth. Viewed from a philosophical perspective, the decisive key terms, introduced by Savigny in 1814, are “nature, fate and need”. Methodologically, the focus reveals, around the special significance of “analogy”, the “nature of things”, the “practical needs” and the “sense of justice” as ways to contribute to the legal cognition.