22 (1)
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2022
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catalogue – 43669
ANTINOMIES
Until 01.01.2019 - Scientific Yearbook of the Institute of Philosophy and Law of the Ural Branch of the Russian Academy of Sciences

ISSN 2686-7206 (Print)

ISSN 2686-925X (Оnlinе)

Emikh, Valentina

Abstract: Based on E. Gans and F. Savigny’s works of 1810s and 1820s, the article analyses main issues, which were discussed by Historical and Philosophical School of Jurisprudence, namely, understanding of law; the role of nation in forming the law; the role of history in forming the law; comparison in law; selection of legal material; the place of jurisprudence in the system of sciences; the role of Roman law in the understanding of law. Gans represents philosophically oriented jurisprudence, while Savigny’s doctrine aims at the precise presentation of legal sources, thus obtaining anti-philosophical stance. Theory on nation represents the arterial line of collaboration between Gans and Savigny. Nevertheless, following Hegel’s philosophy of law, Gans supposes that the World Spirit is an absolute judicial instance dominating over nations, while nation is a carrier of the World Spirit. For Savigny, solely Spirit of the Peoples creates law, and legal material is produced by the essence of nation and its history. Gans’ universal history of law opposes Savigny’s historicism. According to Gans, comparison is needed for the search of truth; according to Savigny – for identification of the national tradition. The author examines Gans’ classification of different branches of jurisprudence, as well as Savigny’s viewpoint on the jurisprudence as a special science for lawyers. The article concludes that Gans’ and Savigny’s conceptions have much in common; yet, their heritage has different heuristic potential for history of political-judicial thought.

Keywords: Historical School of Jurisprudence, historicism, Savigny, Gans, universal history of law, comparativism.

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