part vii • legal history and legal science • dag michalsen 332 hand and the social sciences, and humanities on the other. The recurring debates about the place of legal science in the world of knowledge are part of the deliberations about the character of legal science, which have gone on as long there has been a legal science to discuss.9 So, by reminding legal science of the fluid borders of legal time and legal knowledge, the legal historian has an interesting and to my mind important part to play in contemporary legal science. This is my methodological viewpoint. What, then, of time and legal knowledge in relation to the two fundamental legal forms of the last two centuries, namely codification and constitution? There is an obvious friction in how these legal forms seem to exhibit the complex levels of time in the law. The initial idea was that both forms – constitution and codification – should transcend the flux of time and create stable legal institutions and time-independent legal norms for unforeseeable futures.10 Constitutions represented the legal-political forms of society; codifications the legal-private economic world. They were both created to drive back the temporal experience of the law, which in the post-natural law era was marked by change and flux. By giving constitutions and codifications these functions, the lawgivers and lawyers at the turn of the nineteenth century seem to set up new boundaries around the law. What were inside and outside constitutions and codifications were simultaneously law and not law – fuelling a new understanding of the autonomy of law in society which would characterize the image of law in the nineteenth and twentieth centuries. Constitutions produce differences in law and politics, whereas codifications produce differences between law and social private practices. What ensued was a legal positivism that has persisted from the nineteenth century to the present, part of a social transformation which also saw the strengthening of the legal experts’ standing in society as a profession that claimed independent authority over law, whatever the politics. 9 An important contribution is Martin Loughlin, Foundations of Public Law(Oxford: OUP, 2010). 10 For the initial research, see Dag Michalsen & Hilde Sandvik (eds.), Kodifikasjon og Konstitusjon(Oslo: Pax, 2013).
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