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Garrido Martín, Joaquín, Die historische Rechtsschule in Spanien? Puchtas Begriff des Gewohnheitsrechts und seine Rezeption in der spanischen Rechtswissenschaft

Garrido Martín, Joaquín, Die historische Rechtsschule in Spanien? Puchtas Begriff des... AbstractThe German Historical School in Spain? Puchta’s concept of customary law and its reception in Spanish Jurisprudence. During the 19th century, German Jurisprudence, through the work of the Historical School of Law and the Pandectist Studies, had a decisive influence on Spanish legal science as well as in other surrounding countries. However, the introduction of the doctrines of the Historical School in Spain has generally been regarded with skepticism by legal historians: the common conclusion is that in Spain there is no reception of the Rechtsschule. After a critical review of this traditional understanding of the reception of the School, I offer an analysis of the mid-century introduction of the concept of customary law developed within the Historical School, based on the doctrine of the Überzeugungstheorie (Puchta). The German doctrine of customary law was well received by the jurists who, from the first codification projects, privileged legal custom as the primary source of law. I maintain that one can speak on the one hand of the ‘projection’ in Spain of a philosophy – the vague legal historicism condensed in the notion of the Volksgeist –, and on the other hand of a clearer ‘reception’ of the doctrinal concept of legal custom elaborated within the Historical School. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung de Gruyter

Garrido Martín, Joaquín, Die historische Rechtsschule in Spanien? Puchtas Begriff des Gewohnheitsrechts und seine Rezeption in der spanischen Rechtswissenschaft

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Publisher
de Gruyter
Copyright
© 2019 Walter de Gruyter GmbH, Berlin/Boston
ISSN
0323-4045
eISSN
2304-4861
DOI
10.1515/zrgg-2019-0007
Publisher site
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Abstract

AbstractThe German Historical School in Spain? Puchta’s concept of customary law and its reception in Spanish Jurisprudence. During the 19th century, German Jurisprudence, through the work of the Historical School of Law and the Pandectist Studies, had a decisive influence on Spanish legal science as well as in other surrounding countries. However, the introduction of the doctrines of the Historical School in Spain has generally been regarded with skepticism by legal historians: the common conclusion is that in Spain there is no reception of the Rechtsschule. After a critical review of this traditional understanding of the reception of the School, I offer an analysis of the mid-century introduction of the concept of customary law developed within the Historical School, based on the doctrine of the Überzeugungstheorie (Puchta). The German doctrine of customary law was well received by the jurists who, from the first codification projects, privileged legal custom as the primary source of law. I maintain that one can speak on the one hand of the ‘projection’ in Spain of a philosophy – the vague legal historicism condensed in the notion of the Volksgeist –, and on the other hand of a clearer ‘reception’ of the doctrinal concept of legal custom elaborated within the Historical School.

Journal

Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung – de Gruyter

Published: Jun 26, 2019

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