The "general science of law"

main approaches and their history

Kazimierz Opałek

pp. 15-30

in: Kazimierz Opałek, Selected papers in legal philosophy, Berlin, Springer, 1999

Abstract

This paper is aimed at discussing three main kinds of forms of the study of law in general as opposed to the study of particular branches of valid law in a given country. These kinds of the "general science of law" (allgemeine Rechtslehre) are: philosophy of law, analytical positivism, and theory of law. In the period of their formation they differed widely in the problems considered, in the philosophical foundations and methods, and they differ still to some extent in all these respects, though the distinctions between the approaches under the headings of legal philosophy, analytical positivism, and legal theory, become nowdays sometimes not so explicit as they used to be. All these attempts at creating a "general science of law" were marked factually with particularism closely connected with the philosophical and scientific trends and traditions of the countries of their origin, partly also, as in the case of analytical positivism, with the restricted scope of data taken under consideration (valid law of some particular countries as the basis of the theses on law in general). Although this particularism seems to be partly overcome now, there is still some justification in characterizing the "general science of law" in the West as "a chaos of approaches to a chaos of topics, chaotically delimited."¹ The task of this paper will be to examine the origin and development of these approaches, the present situation and the prospects of this kind of study.