Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

Paul Vinogradoff as Legal Historian 213
According to Vinogradoff legal history dealt with: 6
. . . streams of doctrines and institutional facts which pass through the ages and
cross national boundaries from one historical formation to another. These constitute
what may be called the current of cultural tradition. Again, the solutions of legal
problems on different occasions fall into groups according to similarities and
contrasts, for which there is a common basis in the nature of the problems
themselves. This gives rise to the application of the comparative method. The
continuity of culture and comparative jurisprudence produce the atmosphere of
what might have been called International Law had not the term been appropriated
to other uses.
It was not necessary to dwell at length on the progress which had been made
in tracing cultural continuity in the history of legal systems. A classic example
had formerly been drawn from the reception of Roman law by medieval and
modern Europe but others could be identified in the history of Roman law
itself. Law was a historical phenomenon and hence any general theory of
law of necessity needed some historical input. The question which was more
important - systematic theoretical construction or explanation of the historical
development of the law - was futile because in any case a systematic general
theory of law would always require treatment of theories which had been
replaced under the promptings of reflection on the tasks of the human race
and the environment which conditions its response. The law as a social fact
and as a component of social experience was a very important element of
social existence and social relationships. Its function in regulating private
relationships was no less important than its function in regulating state
institutions or the division of power in a state.
Two principal methods have dominated the field of jurisprudence so far as
it has been concerned with abstract studies of law and rights: the analytical
method and the historical one. Vinogradoff considered that this contrast
was inaccurate. Logically the antithesis of the analytical approach is the
synthetical one; the counterpart of dissection is amalgamation. Abstract
concepts and terms, Vinogradoff wrote, were often treated by analytical
jurists like questions concerning logical terms and formal classifications.
They believed that these two formed the essence of jurisprudence and could
be employed without making any connection with social realities. In this way
the so-called 'world of concepts' was created. Rudolf Ihering ridiculed such a
paradise of concepts (Begriffshimmel) but, as Vinogradoff noted, the works
of Bierling, Kelsen and Stammler provided many illustrations of this kind
of scholasticism. In England analytical positivism was represented chiefly by
Austin and his followers.
Vinogradoff s own method and the task which he proposed was to show that
legal facts and ideas could be studied from a point of view which disclosed new
vistas for the student of language, folklore and religion. Comparative research,
6 The Study of Jurisprudence', Collected Papers, ii, 205-6.