Some Reflections on History and Dogma as Jurists' Tools

We can start from a history of words. But we should point out that talking of history and dogma as instruments of the jurist already contains a series of pre­suppositions, on which discussion could be endless. It is obvious, for example (at least to me) that a jurist who creates law is very different from a jurist who does not create law. But it is just as obvious that no jurist can limit himself to using only the instruments of knowledge that are commonly employed by any­body who thinks and reasons, observes and decides. The jurist too, any jurist, in the course of his work, be it creative of law or not, necessarily observes, rea­sons, reflects, doubts, in a word thinks, and to do that employs the usual instru­ments of knowledge. But he must also give a practical answer, and provide (that is, indicate, propose, or construct) some solution, some decision that, in the circumstances, is necessary, or at least advantageous or suitable.

Let us consider the Roman case, where the jurist’s capacity to analyse an actual situation allows him, taking account of past experience and concrete facts, to predict the consequences of particular behaviour and decisions. The law that is born of this is the result of reasoning that is largely casuistic, of recourse to analogy and anomaly, of the use of dialectic guided by regulae iuris, of the recognition of vis ac potestas, of all that makes up interpretatio iuris. A good example of the need for this type of skill is the case of the creditor who is unable to prove his case, the judge who cannot see how he can decide in favour of one or other party, and hence the possibility of his following social criteria, such as the good reputation of the one or the bad name of the other. This judge decided to abandon the trial, affirming that rem sibi non liquere. But had he been a iurisperitus, which he was not, he could have given a verdict according to legal reasoning.^[93]

One could discuss all this at great length, while maintaining a generic notion of jurist. Let us see from a nearer angle whether and how history and dogma have a part in all this, beginning with a purely linguistic approach that takes as its starting point the second word, dogma.

A scholarly word, for which there is no reason to think of different meanings in different languages, “dogma” means^[94] the theoretical principle, affirmed as absolutely true (therefore it cannot itself be questioned), to which is attributed fundamental importance in a philosophical system, a scientific theory, a reli­gious or political doctrine.

Here we already stumble upon a problem. The prior interpretation of the norms involves distinguishing two moments: (a) the norms are interpreted; (b) following such interpretation they become theoretically justified. The first action (interpretation) is not identical with the act of dogmatic elaboration, and this distinction gives rise to questions. There are other definitions of juridical dogmatics:^[95] “the combination of principles or means used in such an elabora­tion” (in which case, it could well be that amongst the principles and means one could find those used for the interpretation of norms); moreover, “the result itself of such elaboration, that is the system of juridical dogmas”. The distinc­tion concerning modern juridical dogmatics is well known: (1) the combination of concepts and principles that scholars of today’s private and public law use in the study of the law; (2) the contemporary legal mentality: that is, the prepara­tion that a jurist of our time brings—as a jurist—to the knowledge of the legal phenomenon in general (I repeat: knowledge).^[96]

There are many possible developments. Without principles and concepts, there cannot be dogmatics. So, from when can we talk about juridical dogmat­ics? And from when can we talk about them in their meaning of legal mentality, different from other forms and types of mentality? The references to the topic are well-known.

There is no shortage of opinions on this problem. Some eliminate the prob­lem altogether, e.g. when Ortolan affirmed that “tout historien devrait etre Juri- consulte, tout Juriconsulte devrait etre historien”, or when it is said that every jurist (not only the romanist) should have a lively historical sense, or when a rationale for anti-dogmatism is proffered, not by denying the need for dogmat­ics but by underlining their inadequacy. We could think of others. What they tell us is that the jurist cannot do without history. We know, however, that at times in the history of legal thought the very contrary has been maintained, that is, that history and law have nothing in common. Our problem arises from such a position regarding history (and against history).

I shall try to give a brief statement of them per momenta, starting from Accursius' “omnia in corpore iuris inveniuntur”,^[98] then going on to Roman law as ratio scripta, law as rational construction built on the identification of law and reason,^[99] the belief that the humaniores litterae are not only unnecessary but also useless and even harmful to the knowledge of law, the recommendation to the jurist, that “nullius alterius disciplinae libido (nisi recreationis gratia) inge­nium distrahat”,^[100] and Alberico Gentili’s theses, in particular that “historias non est cur legat iuris interpres”.

Further, this conclusion is expressed in Windscheid’s statement that the jurist must work only deductively and systematically on the norms, because “moral, political or economical considerations do not concern jurists as such”.^[102]

Anyway, Windscheid himself on the one hand said that the concepts of Roman law are such that they are always ready to open up to new needs; in which case one can wonder whether this Roman law is or is not history, and— the question is no less important—whether these “concepts” are the same thing as Roman “law”. On the other hand, there is that statement, so rigid in deter­mining the limits of the jurist’s activity. In fact, if we open the Lehrbuch des Pandektenrechts, we find some core concepts defined: the first is the concept of Pandektenrecht, followed by those of customary law, interpretation, law (Recht), legal personality, etc.

So it is maintained that juridical dogmatics is the science of the law, and that the fundamental task of the jurist is the interpretation of that science about the norms that is the law. There is no place for history in all this. No wonder, if Nietzsche is right when he says that the fundamental operation of definition, which alone allows construction, is possible only in relation to that which has no history.

I feel the discussion has been monopolized too long by this narrow vision. We can try to point out the possibilities offered by another route, taking account of what has been thought about history as a science.

I shall first mention the distinction between “historical” and “dogmatical” made by the Historical School, for whom the objects of historical knowledge are single observations that can be expressed in single individualizing propositions; these capture the single phenomenon, whereas dogmatical propositions are gen­eralizing, abstract. In the legal world (part, as we know, of the social reality), the phenomenon is never a single one, but is typicized and therefore made abstract. Thus it cannot do without conceptual categories, and it can best be explained through a dogmatical approach (that is, with the aid of conceptual categories). Let us think about the concept of private autonomy,^[103] or the exam­ples given by Betti.^[104] These are instruments which “open the eyes of the scien­tist”, and whose constructive function is clear. It is also clear by now, nevertheless, that they are not binding, nor perennial; some are lost and some are added, and they are not always applicable. We can think here about the “dogma della volonta”, criticized in its application to subjective rights as the power of will, to which is related an obligation of behaviour (where we ought to say “burden” instead of obligation) or about “negozio giuridico” as an expression of will aimed at producing legal effects, or about the dogma of the perfection of the contract, or of the natura actionis, etc. and we can point out with Wieacker that there is little room for dogmatics when interests are disci­plined by statute. It is useful to repeat all this, in order to avoid rigid visions that would prevent us from fully understanding, for example, the attitude of an excellent Italian jurist, who declared in his spiritual testament that without the “eternal truths” of Roman law he would not have been able to be a “civilista”.^[105] “Eternal truths”, that is, dogmas, whose validity depends, however, on their functionality.

So we note things that seem obvious today, but still have not entered the cul­ture of historians; to this fact, I think, is largely due the a-historical attitude of so much legal doctrine. Why should jurists have changed their ideas if manuals of historical definitions still insist in defining jurisprudence as a systematic sci­ence, and therefore not an historical science, but merely a science auxiliary to history? and if these manuals say that not even the history of law is a historical science, unless it gives up its very object—norms, institutions, structures, con­cepts, values (all typical phenomena, anyway)—in order to study the individual, the single fact or phenomenon?

Here is not the place to introduce the well-known dispute on the relationship between history of the law and science of the law.^[106] What matters here is the more specific relationship between history and dogmatics. I am thinking in particular about Herberger’s investigation^[107] into the concept and method of dogmatics.

To summarise, until the last century dogmatics was defined as the procedure which explained causally (and therefore rationally) phenomena by way of gen­eral laws, or dogmas; this procedure allowed the construction of a legal science as a system of linguistic propositions about norms. In this way, as is clear, not only could legal science be distinguished from law, defined here as a system of norms, but also prudentia was eliminated from law. This went back to the moment when legal science, abandoning the method of analysis (Bartolus), started to use the logical-deductive method (Baldus). The hypothesis we pro­pose here (which seems to be the road followed by those scholars who see a cor­respondence between dogmatics and theories of argumentation) is thus whether the conflict between history and dogma can be overcome by reassigning to the jurist the notion of prudentia, and allowing him to become the creative jurist I mentioned at the beginning.

I shall not linger on this point and its consequences for our discussion. On the contrary, I shall base myself on what I have said about the reworking of dog­matics to discuss a different evaluation of what is history, thus overcoming— but this is another point open to discussion—the distinction we have seen drawn between history of law (law of the past) and dogmatics (current law).

Today history is not seen as offering examples to follow (as did Thuycidides or Machiavelli), or as a paradigm of humanity’s progress (Humbold, and his­toricists); rather it is seen in the sense of the workings of a system. If we bear this in mind, it will be more difficult to linger on an idea of “scientific history” d la Ranke. More than once we have noted the encounter with the social sciences which led jurists to consider not only structure and function, but also time and change. General theories of social and political development have been brought forward; hermeneutics has been tied more and more tightly to methods and problems typical of the social sciences. General laws have been proposed in his­tory, empirical laws universally valid, laws without which it is impossible to explain phenomena; the temporal rhythms have been analysed (from geograph­ical time which is almost static, to social time which is slow, to political time which is individual and extremely fast, according to the distinctions drawn by Braudel). All of these must now be related to our problem. So, bearing in mind that dogmatics is a combination of concepts full of history, we can make room for all the considerations relating to the new understanding of history, and in particular the so-called Begriffsgeschichte.

These “new” ideas, in fact, like so much else, were already known to jurists. Giambattista Vico, for example, was already aware of them, and no wonder. Apart from the thesis that the scienza nuova is the organic development of fun­relation to theological dogmatics. The relationships that are established with the latter are in fact definitely subsequent to those that founded juridical dogmatics and are connected to medicine. Recent studies show, for example, important connections between Galen’s doctrines and Ulpian’s, independently from the type of relation that others have seen between them: see my considerations in “Ulpiano. Esperienze e responsibility del giurista”, (1976) ANRW II 15, 716, n.44. damental legal semantics,¹⁸ this position is already extremely clear in De uni­versi iuris uno principio et fine uno, when Vico, talking about the Sabinian and Proculian Schools, mentions the means (rationes) “used by jurists to manage a scientific construction of the law”. These means are principia iuris, communia placita iuris, definitiones nominum iuris, topica iuris. For Vico:¹⁹ “Ut autem eae sectae fundarentur, necesse fuit quaedam principia iuris utrique sectae commu­nia statuere, ex quorum confectis rationibus altera alteram oppugnaret, et quaedam nomina definire, quo artis vocabulario utrique alteros intelligerent. Communia autem iurisconsultis principia fuere dogmata metaphysica, de quibus nos supra diximus”. And what is one of these “principles of civil reason”, common to all jurists, or metaphysical dogmas peculiar to law? The distinction, for example, between res corporalis and res incorporalis, and the construction of rights as res incorporales.²⁰ To this Vico added: “quaedam placita, quae dicuntur �?regulae iuris antiqui’ et �?verba artis’ in quae convenirent, definita, quae sunt sub titulo De verborum significatione et passim alibi. Ex his principiis iuris, his placitis iuris, his definitis nominibus iuris et notitia omnis iuris romani conditi, iurisconsulti topicam legalem sibi crearunt”.

This passage by Vico sums up his discovery of the fact that Roman law, Roman iurisprudentia, has been the dogmatics of the European legal tradi­tion—on which I believe everybody agrees. It has a conceptual position, a work­ing of moments in history that have normative force, with a relativitity that stems from their practical function. On this material (let us leave aside for the moment Justinian’s generalizations) there has been much discussion, some of it exasperated: we can mention Schulz’ “Isolierung”, where he held that Romans did not have a historical perspective, or the medieval phenomenon of a distanc­ing from the texts, or, when the texts were turned to again, the distortion of their original meaning, but also there was a reference to principles, and there­fore values. These changes were themselves due to historical events, internal to the concept of right, law, power, state, sovereignty, norm, jurisdiction etc; crit­icism goes with their acceptance as history. Exasperation of this kind, on the other hand, which does not lose touch with the idea itself of history, has given validity to a jurists’ culture, a culture of those who insisted on the abstract value of their instruments in relation to a continuity which was never questioned.

At this point I think that it is possible to solve the conflict between history and dogma by going back to the problem of the jurist’s use of history, and by saying that the dogmas he uses are full of history, a history which is not, however, an immediate, concrete experience. In this I refer to the historiographical novelty, which should of course no longer be new, which is called the “history of con­cepts”.

I should like to believe that all this is just breaking though open doors. It has already been said that it is possible to substitute the concept of legal experience

¹⁸See my considerations in J Trabant (ed.), Vico und die Zeichen, (Tubingen, 1995) 29.

¹⁹G Vico, Opere Giuridiche. Il diritto universale, ed. P. Cristofolini (Firenze, 1974) 325.

²⁰ Vico, supra n.20, 275.

(a historical concept if ever there was one), for the concept of system.^[108] And it has already been said that dogmatics must be defined as “historical self­awareness of the inherent wholeness of the law”.^[109] Everything becomes clearer if, when talking of history and dogmas as means to an end, these terms are given the meaning of conditions and functions of the jurist’s work. And this does not make too strong a claim if we can say, given that jurisprudence is the moment when dogmatics takes its full effect, that juridical dogmatics is the specific his­tory on which the work of the jurist is turned into jurisprudence. This is a fun­damental definition compared to the neutral definition of jurist with which I started out.^[110]