Rechtswissenschaft, Geschichte und die institutionelle Natur des Rechts

In this paper, I argue that history deserves a more central place in jurisprudential thinking. The argument rests on an understanding of law as having a fundamental institutional dimension, as well as being a product of social power and interests. Since law realises itself in terms of intersecting institutional arrangements and since these change over time, institutional history is central to the very idea of law which jurisprudence aspires to illuminate. The argument is pursued through a case study in special jurisprudence: an analysis of the trajectory of ideas of criminal responsibility in English law since the 18th century. While a broad family resemblance among ideas of responsibility in different eras can be identified, the variations on those ideas, and their relative importance and impact, depend fundamentally on historically contingent constellations of ideas, institutions and interests.