It is capricious, to draw a distinction between the Pandektenrecht and the so-called Begriffsjurisprudenz,235 which is shown, for example, in the discussions regarding the methodological habitat of Puchta.236 However, the distinction introduced here, once the ideas of Puchta have been set out, will be made with respect only to the most outspoken representatives of the Begriffsjurisprudenz -Jhering, Gerber, andWindscheid. The so-called Pandektenwissenschaft, which is the generic term for the 19th Century exegetical study of Roman law,237 especially Justinian’s pandects, is a branch of private law science that is ultimately positivistic, in that it studies an historical legal product (Roman law) and is anti-metaphysical, insofar as it treats Roman law as being a part of a national system of law subsidiary to the other sources of German law.238 In all, the sources of law are: statutes239 and customary law, which includes customary law proper as well as Juristenrecht.240 However, what unites them is the idea a ca l l f o r s c i e n t i f i c p u r i t y 621 griffsjurisprudenz were conducted by. E.g., Hägerström, Obligationsbegriff 1, pp. 9, 1213, 16-18, 603-606, and 612. Because, Hägerström’s critique is that legal theory constructs various concepts of law irrespective of legal facts, hence constructs the legal concepts transcendentally with respect to their ostensible substratum of positive law, and explains various facts of law with respect to what legal theory uncritically argues to be logically superior and hence causally necessary and prior realities. Hägerström concludes that these false presuppositions of legal theory taken together lead legal theory to the dogmatic presupposition that various concepts of law exist objectively and that they are valid in their own right. In other words, legal theory is led by the faulty assumption that super-positive material rules of law actually exist. 235 What Jhering called “Die höhere Jurisprudenz oder die naturhistorische Methode” Jhering, Geist 2:II, p. 385. 236 See, e.g.,Wilhelm, Juristischen Methodenlehre, pp. 70-87; Schröder, Recht als Wissenschaft, pp. 270-271. (Begriffsjurisprudenz), whileWieacker, History, pp. 316-319, however 343, n10; However, Haferkamp mitigates the view of Puchta and seems to place him in the Pandectist tradition of Savigny. See Haferkamp, Puchta, pp. 463-471. 237 For the final definition of Pandektenrecht, seeWindscheid, Lehrbuch des Pandektenrechts, pp. 6-7. 238 See ibid., pp. 1 and 4-14; Handwörterbuch zur deutschen Rechtsgeschichte, Kaufmann, Erler, and Stammler, eds., vol. 3: List - Protonotar, Pandektenwissenschaft. 239 Windscheid, Lehrbuch des Pandektenrechts, pp. 36-38. 240 Ibid., pp. 38-41 and 43. 2 . 2 . 3 the deve lopment of the hi storical school
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