Izvorni znanstveni članak
Methodology of Legal History in the Works of Marko Kostrenčić
Filip Hameršak
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
Educated in Zagreb, Prague, Warsaw, Cracow, Lemberg and Wien, Zagreb Faculty of Law professor and later academician Marko Kostrenčić (1882 – 1976), the head of the newly founded department (in 1911) and the first teacher of Croatian legal history as a separate course, did not have an easy task. Apart from the general issues concerning the status of social sciences and even epistemology as such at the beginning of 20th century, his was to face the significant lack of previous systematic research within national confines. Although his mentor Milivoj Maurović (1859 – 1926), who taught Croatian legal history as a part of general and Slavic legal history courses did make some advances from previous romanticist and Hegelian framework found in the earlier approach of Josip Pliverić (1847 – 1907) or Jaromir Hanӗl (1847 – 1910), including an informative overview of medieval sources, Kostrenčić’s lectures and writings of 1910s and 1920s had a founding significance.
Presenting a “genetic” approach to legal history, aimed at explaining not only how but also why law evolve as it does – most notably in his 1919 and 1923 textbooks – he stressed importance not only of traditional legal dogmatic interpretative methods as well as general ways of studying past, but also of sociology (represented by É. Durkheim), basing his broader epistemological framework on the various influences of Neokantianism and Pragmatism, with H. Vaihinger’s 1911 book Die Philosophie des Als Ob being directly acclaimed as a much needed supplement to the legal-theoretical views held by R. Jhering and H. Kantorowitz.
Therefore, in Kostrenčić’s view, the task of legal historian was to gradually advance from the publication of sources and partial research to broader synthesis, sometimes even using vaguely, that is to say pragmatically defined operating legal concepts, including not only written, state, statutory etc. law, but also popular, customary one; in that light, apart from introductory, methodological chapters, his earlier work encompassed rather a small number of legal institutes and monuments of Croatian Middle Ages.
As far as then actual debate on the character of various sciences is concerned, Kostrenčić did not negate a possibility of establishing some universal laws in the field of legal history, but his insistence on the importance of singularities suggests that he probably understood them closer to trends or tendencies. However, general trend of history for him, arguably, was not that of unlimited progress, not only because he stated that legal institutes tend to lose their functionality as a result of human actions, but also because of his remarks on the “neverending battle between good and evil”.
After an early retirement in late 1930s, which followed a period of activity within administrative structures of Yugoslav monarchy, Kostrenčić’s teaching career was reactivated shortly after the Second World War, in a society dominated by Communist Party and its official ideology. As a result, majority of his texts published in 1947 – 1976 contain significant references on “Dialectic materialism” as a supposedly unique tool for a “scientific” approach to law, society and history.
Although schematic in principle, especially during initial years of the strictly controlled, so called Agitprop culture, this paradigm shift towards a sort of Marxism, present in the majority of Croatian (and Yugoslav) historiographic texts of that time, was by Kostrenčić himself mostly cautiously applied to concrete data, while even his “theoretical” chapters included e.g. stating a two way relationship between legal “superstructure” and economic “basis”, importance of popular customary law (which, as he noted, eschewed dogmatic definition of law as the will of ruling class), positive remarks on methodology of “bourgeois” historiography or philosophers like Schopenhauer, Nietzsche etc.
After completing his final 1956 textbook on Croatian State and Legal History during Middle Ages, which came much closer to a synthetical overview centered on the processual changes in social structure, several shorter Kostrenčić’s texts now reflected on a kind of gradually refining philosophy of history, predicting a unification of mankind in a “socialist” community, described in Marxist but non-dogmatic terms.
All in all, existing sources do not allow firmer conclusions on Kostrenčić’s motives for described change in his publicly held methodological views. It was probably conformist to a degree, and as such could be explained within scope of lesser evil doctrine, enabling intelectualls under repressive regimes to “save” the core of their research practices. On the other hand, as Kostrenčić continued to vary his positive views on a sort of Marxism much longer then overall situation demanded, if taken together with his claims on the deficits of other theories of law, history and historiography – moreover, all the way through the postwar period he overtly described himself as a kind of methodological convert – and his earlier stressing of the social component of law (conflicting interests etc.), elements of continuous, intrinsically motivated development can also be traced.
Ključne riječi
legal history; historiography; textbooks; methodology; Faculty of Law Zagreb
Hrčak ID:
116250
URI
Datum izdavanja:
30.12.2013.
Posjeta: 1.345 *