Positivism as a Concept of Legal Historians

Author:Hans-Peter Haferkamp
Position:Prof. Dr. jur. University of Cologne

Introduction - Positivism as a concept of legal historians and philosophers - Anti-positivist positivism - Outline of the anti-positivist legal history of private law - 'Great legal thinkers' and their role in anti-positivist legal history of private law - Conclusions


There is a tale about an emperor who, once upon a time, demanded of his most able cartographers to make him a precise map of his empire. But when they presented the fruits of their strivings to their master, he was not satisfied: "This map is not precise enough," he responded. Eventually, the royal cartographers drew a map as big as the empire itself. Still, His Majesty was not pleased: "Where are the flowers; where are the animals?" After that, cartography in his kingdom died out.

It is a simple truth: You just cannot map reality. Any researcher therefore will have to focus his spotlight, his mental search lamp, on things he deems important, leaving other things in the dark. As must everybody else, a legal historian must make a choice and decide upon the question he would like to ask.

It also is a simple truth, however, that these questions ultimately decide the so-called facts. And even if you disagree and accordingly believe in the existence of 'mere facts', you still would have to concede that, since the historian cannot ask everything, he will have to select certain facts he considers to be important for a valid response to the question asked. The facts become part of a story, and that story tells us what this fact is about. Question and fact cannot be separated. Now, if you believe in this standard of rationality, it follows that the results of any study are useless without access to its initial questions and the methods applied.

And, although it is such a simple truth, experience shows that, over time, research results will grow into truths so solid that they will eventually resemble facts. Usually, this happens because people forget to critically examine the original conditions, the questions that formed the basis of the research. What we see then is the formation of some so-called basic insights that dictate general knowledge about a subject; I believe recent American language coined the term 'factoid' for this.

In the discussion that follows, I would like to critically examine one of these so-called facts that is central for many German legal historians. It is the 'fact' that the history of private law is a story of the rise and fall of positivism. Its most influential narrator still is Franz Wieacker, whose learned book Legal History of Private Law in Europe was published first in 1952, then saw translation of its revised 1967 edition to many languages1. Wieacker's book may still be the most influential book in contemporary Europe about the history of private law.

I will try to approach the topic in three steps. First, I would like to introduce the subject of positivism in brief by way of mentioning of a few seminal texts and a short philosophical analysis. Second, I will try to identify the historical eras built by the history of positivism. Third, I would like to use all of this to put a spotlight on a selected number of 'great legal minds' of the past and try to show that the way we understand their ideas today bears the heavy imprints of their late historiographers.

Positivism as a concept of legal historians and philosophers

About half a century ago, positivism was quite big as a topic. In 1944, Georg Dahm decided to present his version of the history of private law as divided into chapters as follows: 'natural law-historical school-positivism-positivism overcome'. In 1951, Gustav Boehmer chose 'natural law-historical school-jurisprudence of concepts-positivism-renewal of a meta-positivist jurisprudence of values'2. In 1952, F. Wieacker selected 'law of reason-historical school-reign of scientific positivism-passage from scientific positivism to statutory positivism-degeneration of statutory positivism-juridical naturalism'3. Karl Larenz went for a rather small-footed 'historical school-jurisprudence of concepts-positivism-leaving positivism behind-present jurisprudence of values'4.

For these writers, the idea of periodisation was particularly important-that is, a succession of distinct epochs, each dominated by a different Great Idea. For them, history came in the form of a huge struggle, a fight positivism at first fought successfully but ultimately lost. How was it that these histories of private law were all so similar, given that they all set out to scrutinise legal history for traces of 'positivism'?

The obvious answer is that the concept of positivism might be simply one of the best yardsticks available. If you take a closer look, however, it turns out that there is not one but rather are many yardsticks called positivism. Franz Wieacker discerned three different variants in 1967 5 ; H. L. A. Hart, in his famous 1961 book, distinguished five different forms 6 ; and in 1966, Robert S. Summers spoke of 10 variations, 7 while Stig Strömholm spoke of six variants in 19858. If we focus our attention on the works of legal historians, the picture does not become any sharper. In the writings of nine authors only, I found a confusing number of different positivisms 9 : speculative positivism; naïve positivism; factual positivism; prescriptive or normative positivism; formal, as opposed to material, positivism; genuine and erroneous positivism; ethical, historical, juridical, logical, and materialist positivism; statutory positivism; a naturalist-materialist approach as set against positivism of legal science; pragmatic positivism; scientific and sociological positivism; enlightened, empirical, objective or subjective deontological positivism, and finally psychological positivism.

Translating these positivisms already presents a problem. When I speak of 'scientific positivism', others say 'scholarly positivism'; likewise, 'statutory positivism' is the same as 'textual positivism'.

This variety of labels shows considerable confusion about the meaning of positivism. Already in 1943, Walter Schönfeld displayed his unnervedness in the face of the variety of mutually contradicting definitions10. As the 'positive' in positivism he found norms; the material justice; the political, social, or economic reality behind the norms or a way of formal, logical, or psychological thinking. Neither was there any more agreement on what should be seen as non-positive. In 1944, Dahm stated that positivism would be unable to adequately take into consideration such things as 'material justice, practical reason, the intended purpose of a legal norm, real life, politics and economics, morals, and ethics'11. What was 'positive' to one author was non-positive to others.

Even two pre-eminent luminaries of legal history, Ernst Landsberg and Franz Wieacker, each defined 'scientific legal positivism' in a way that ruled out the validity of the other's definition. To Landsberg, 'scientific legal positivism makes use of any scientific means available, be they statutory construction, historical analysis of a statue's origin, or systematic context, but also reasonings based on rationality, practicability, or ethics, adorned by comparisons to other legal systems past and present'12. Much to the contrary, Wieacker defined the very same 'scientific legal positivism' as a 'concept of law that deduces all rules of law and the decisions based upon them out of the sum of legal notions and principles, without juridifying and therefore accepting into the discourse of law any kind of non-legal argument, be they religious, socio-ethical, or political'13.

Given all this, it is difficult to explain why so many writers still told their histories of law as the histories of their positivisms. Any use of the notion inexorably led to difficult discussions about its precise meaning 14 , and to this day, any reader is compelled to follow an author's individual understanding closely15. For example, while some saw so-called conceptual jurisprudence as a variation of positivism 16 , other writers wanted to count as positivism only movements that tried to mimic the concept of cognition adopted by natural science 17 , which others separated from positivism as 'naturalism'18.

Anti-positivist positivism

If you attempt to draw a provisional line here, you could say that, for historians, positivism is a rather troublesome concept. Its erstwhile and still continuing success may become a little clearer if we shift our attention toward the emotional images positivism usually brings to mind. For the most part, these images are not favourable; there is something inherently bad about them. In any case, the emotions evoked are strong. A positivist, it is alleged, somehow only thinks in ways of logic and form; as lawyers, such persons would erect a barrier between law and ethics that is too strict, and, equally, they are fixated on the distinction between the prescriptive and the descriptive, norms and facts, in a tradition following the German philosopher Kant.

You could say that it was this emotional potential of positivism that motivated legal historians throughout the 20th century. From around 1920 onwards and still of considerable influence today, there has been a broad alliance engaged in a polemical fight against positivism. In 1935, Hans Welzel wrote that the most distinct feature of positivism would be its inherent negativity: a strict denial of anything even remotely resembling metaphysics19. In 1943, Schönfeld sharpened this to a short 'negativism' 20 , and a year later, Wieacker saw a 'common tendency to negate'21.

As a result, positivism was habitually used to describe positions perceived as odd or even morally deviant. As Schönfeld put it, already the idea of justice was foreign to positivism22. And, even more drastically, Coing wrote in his treatise on legal philosophy-and kept it there in every edition-that, to a positivist, the...

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