From the School of Germanic Law to the School of Free Law: Genealogy of Social-Positive Perspective of German Jurisprudence

The social-positive perspective of jurisprudence of social science today can be traced back to the school of Germanic law and even to Savigny’s historical method. In the meantime, it also includes the rise of juridical naturalism, and Jhering’s teleological thought in the later period, which is another clue of German Jurisprudence in the nineteenth century besides the formation and development of systematic legal doctrine. The classic narrative of the history of private law held that an external social-positive perspective had been confronting the legal doctrine of formalism, and that the free law movement was the culmination of this confrontation. But this narrative of anti-formalism and anti-positivism can 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 German Jurisprudence in the nineteenth-century. In fact, jurisprudence at that time had been trying to balance and integrate the two perspectives. This antagonistic historical narrative also to some extent endorsed the extreme expansion of the external social-positive perspective of the free law movement. Both the absence of internal perspective of jurisprudence and the blindness to external perspectives are harmful to jurisprudence itself, which is also 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.