A history of attempts to delimit (state) law

Abstract

Reflections on the nature of law and on the limits of the state’s law-making competence did not escape the distorting effect of individualistic and universalistic views of human society. While the Greek-Medieval era was largely in the grip of the latter, the former dominated early modernity up to the Enlightenment. From the urge to be free and autonomous since the Renaissance, the natural science ideal aimed at a rational reconstruction of the universe which, according to social contract theories, proceeded from its simplest elements, the individuals. The subsequent reflection on the nature of law appeared to be in the grip of the inherent tension between the science ideal (nature) and the personality ideal (freedom). This applies to theories of natural law, to Kant and Hegel, as well as to the historical school, legal positivism and the subsequent developments in the 19th century. However, since the romanticism of the late 18th and early 19th century, both universalistic and individualistic theories continued to exert their influence until the 20th century. Cutting through all these developments, other conceptions also played a role, such as the idea of an eternal and immutable lex naturalis and the reaction of historicism and legal positivism which relativized these natural law claims – accompanied by the question of how one should understand constancy and change. A brief systematic alternative is outlined in the concluding remarks of the article.