Noter 1 3rd ed, Butterworths, 1990. I make use of Part One only. 2 5th ed, de Gruyter, 1996. 3 Presses universitaires de France, 1992. 4 For an example on this, see Richard Helmholz who in the preface to his The Spirit of Classical Canon iaw(The University of Georgia Press, 1996) writes that "[m]y goal has been to discover and describe the main features of the classical canon law. Finding and explaining the communis opinioamong the commentators has been my goal" (p. xiv, English in italics mine). And in Laufs we read of the historian who ought not to be in "Konflikt mit der historischen Wahrheit" (XVI). 5 Bo Strath (ed.). Myth and Memory in the Construction of Community, Historical Patterns in Europe and Beyond, Multiple Europes No. 9, P.I.E.-Peter Lang, Brussels 2000 6 Zweigert, Konrad and Hein Kötz, An Introduction to Comparative Law, 3rd ed., Oxford University Press, 1998. Translated by Tony Weir. p. 400. 7 To avoid confusion: I do not seek to reconstruct the legal theories of Baker. Laufs and Gazzaniga but rather the legal theories of their respective books. 8 The term is mine. I use it to avoid confusion with the term historicism and to avoid use of the name historical school, to which it is intended to refer. The 'school' names are mere labels, but convenient such within the confines of this essay. Important to note is that I do not see these schools as necessarily inconsistent with each other. 9 Strömholm, Stig, Rätt, rättskällor och rättstillämpning, Stockholm: Norstedts, 1996, 5th ed., p. 82. 10 McCoubrey, Hilaire, The Development of Naturalist Legal Thought, London: Croom Helm, 1987, p. xii. 11 Laufs, p. 373-37412 Such remarks could arguably also be subsumed under the historist heading. 13 It can be noted that Eike did not write so obscurely concerning the origin of his recht: "Diz recht en habe ich selbir nicht erdacht, ez haben von aldere an uns gebracht unse gute vorevaren," quoted by Laufs (7). 14 Original quote by Guido Kisch. 15 The (un)logic appears to be that it is /awful to disobey the law, thereby for all practical purposes making, ex post facto, an obedience out of the disobedience. Unsurprisingly, it is for the judge to decide under what circumstances 'disobedience' is 'lawful'. 16 A comparison could be made with the use of reflexive verbs, discussed under historism below. Laufs writes that "die Entwicklung beider Rechte volizog sich" (54) and that "das Recht...sich geschichtlich entwickelt" (220), statements which suggest that the law somehow has a life of its own to realise. Were this the case then a good such life for the law would certainly be sensibly spoken of as having instrinsic value. 17 Caenegem, R. C. van. An historical introduction to private law, translated by D. E. L. lohnston, Cambridge University Press, 1992, p. 197. Cf. Hitler's remark that "das letzte Recht immer in der Macht liegt" (cited in Laufs, p. 380). 18 Kroeschell, Karl, Rechtsgeschichte Deutschlands im20. jahrhundert, Vandenhook & Ruprecht 1992, p. 240. 32
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