Research

Research Philosophy

“The emergence of a discipline of ‘legal and constitutional history’ presupposes that law can be recognized as a historical phenomenon at all” (Michael Stolleis). Hence, law is not an order originating from divine omnipotence or natural logic which corresponds to an absolute ideal of justice and is therefore unchangeable. Rather, it is “any system of regulation set by humans for humans (= positive), regularly effective, which employs organized coercion” (Robert Walter). Just as humanity is flawed, the law established by humans is subject to error. To be sure, humans have generally tried to create fair positive laws. Yet what they have understood by “justice” has taken on different meanings at different times. “Absolute justice,” as Hans Kelsen observed, “is an irrational ideal”.

Law is thus changeable; it reflects the values of a culture. We can recognize this, noted Heinrich Mitteis, only if we “reveal” the ideological, socio-economic and otherwise political forces “which drive the development of law as the life-conditioning order of every community”. This is the task of legal and constitutional history. In in the words of Werner Ogris, the enterprise must “resolutely counter the (mistaken) belief that the development of the legal order always leads, as it were automatically, to a higher degree of perfection. The opposite is the case: No era and no legal system is free from contestation and the possibility of backsliding”. The legal historian’s gaze, therefore, must never be merely backward-looking. The scholar’s focus on the past of law always includes a reflection on the present. Legal history shows us where the law comes from and thus helps us imagine how it may develop. Any meaningful work of legal history therefore helps to shape the law of the future.