Law and History, Law as History? On the Historicity of Law

1 Understanding the Term ‘Law’   2 Law and History (2.1 Law as Instrument / 2.2 Law as Culture)   3 Law as History   4 The Lawʼs Historicity Disciplined (4.1 Historische Rechtsschule / 4.2 Historical Jurisprudence / 4.3 Marxism / 4.4 Conclusion)

The term ‘law’ is mostly connected with certain peculiarities of (1) the usual customary course of social practice, (2) the decisions made by authorities acting in the name of the law, and (3) enactments by the bodies competent to pass laws. Only real functioning in action shows what and to what extent is real in the claim of law to autonomy. For law is shaped in interaction with social totality, which enables its autonomy to develop but at the same time this makes interaction relative and in extreme cases illusory as well. As to its evolution, Law and History have own paths differing according to whether law is considered as an instrument or as a part of culture. At the same time, Law taken as History itself shows organic unity, raising as central issue the historicity and the need of totality approach for its investigation, with a query (if at all) of a predominant moment in it. Up to now, three big disciplines have evolved for some specific analysis, namely, Historische Rechtsschule, Historical Jurisprudence, and Marxism. Our present-day knowledge suggests that, all that notwithstanding, law (a) lives an own life to a considerable extent, largely independent of apparent conditions, and (b) develops mostly by following own inertia while borrowing from available patterns. As also shown, (1) law is composed not only of rules, nor merely of rules and principles; (2) the culture giving it a meaning is historical, as carried by human practice reconventionalising conventions through their continuous re-actualisation; therefore, (3) neither immobility nor leaps in development are characteristic of it; but (4) any step it takes might be the issue of social compromise in the form of some pragmatic response.