Abstract:
The social-positive perspective of today’s jurisprudence of social science can be traced all the way back to the Germanistics and even to Savigny’s historical method. In between, it also includes the rise of juridical naturalism, and the late Jhering’s teleological thought, etc. This is another bright line in nineteenth-century German legal science beyond the formation and development of systematic legal doctrine. The classic narrative of the history of private law argues that an external, social-positive perspective has been fighting against formalist legal doctrine, and that the free law movement was the culmination of this confrontation. But this narrative of anti-formalist and anti-positivist does not truly restore the historical genealogy of the social-positive perspective. The internal normative-systemic perspective and the external social-positive perspective were not in an either/or confrontation in nineteenth-century German legal science. In fact, jurisprudence at that time had been trying to balance and integrate those two perspectives. This antagonistic historical narrative is also to some extent endorsing the extreme expansion of the external, social-positive perspective of the free law movement. Both the absence of jurisprudence’s internal perspective and its blindness to external perspectives are injurious to jurisprudence itself, a historical lesson conveyed by the modern history of German private law. This historical lesson also provides a resource for reflection on the dispute between legal doctrine and jurisprudence of social science.