part vii • legal history and legal science • heikki pihlajamäki applies to any field of human and social sciences. I will start with a few historical examples of how legal history and legal historians have fared in difficult political circumstances, and will then conclude in the present. The controversial question of how to define a totalitarian state is beyond the scope of this essay, and I will not venture an opinion on whether some other term would more adequately describe a state that does not share the basic premises of a liberal Rechtsstaat. Instead, I will use the term totalitarian state rather loosely, referring to several types of states on a sliding scale. At one end are states of the type which Hannah Arendt called totalitarian (the Soviet Union under Stalin, Nazi Germany), while at the other we find states which at least to some extent have given up liberal values and acquired totalitarian or authoritarian traits (such as today’s Hungary, Poland, and Turkey). In between, we find a large number of other, more or less authoritarian states, such as China. In the nineteenth century, modern legal history was born as the other side of the coin to legal positivism. Legal history, like positivist law, limited itself mainly to describing the chronological development of national legal rules. Because it did not get involved in explaining legal changes or comparing national development in international contexts, legal history was by no means dangerous. Legal history, like legal scholarship in general, all suffered from the birth defect of nineteenth-century nationalism. Legal history concentrated mainly on providing a legitimizing story line for black-letter legal positivism. Some legal historians, however, soon became a danger to political power-holders. Some were not at all happy with the national positivist paradigm. According to Rudolf von Jhering in the 1860s, ‘legal science was degenerating into provincial jurisprudence’, which was an ‘unworthy form of scholarship.’ Some, venturing way beyond the traditional domains of legal history, elaborated far-reaching social theories. Karl Marx, Emile Durkheim, and Max Weber – all legal historians by training – could be mentioned. I will leave them out of the discussion, however, because their being legal historians has largely been forgotten. From the early nineteenth century onwards, certain scholars spread their wings and took to the ‘universal law of civilized nations’, a law that might hope- fully civilize the ‘uncivilized 348
RkJQdWJsaXNoZXIy MjYyNDk=