칸트와 역사법학

초록

The Historical School of Law devotes considerable effort towards elucidating the historical-systematic character of law. It rests mainly on Kant"s fundamental critique of the methodological concept of the modern Natural Legal Theory. Kant makes it clear that the main problem of the legal science is not simply a matter of the substantial ideal of law, but that of the universal form and methodology. His epistemological and ethical analysis of the capacity of human Reason leads to the elucidation of the objective measure of the legal "science" and to the formal definition of law. It allows the conclusion that the methodological autonomy of the positive legal science that is the main issue of the Historical School of Law and Pandektistik does not originate from the modern concept of Natural Law but from Kant"s idealistic and dualistic concepts. On the one hand Kant insists on the fundamentality of freedom as the ethical formal basis of law, and on the other hand on the methodological autonomy of law itself as science. To that degree it can be said that Kant replaces not only the material social ethics of Natural Law with his formal ethics, but also he provides the ethical and methodological basis for the Historical School of Law and Pandektistik, especially for Savigny"s theory of private law.

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