Foundations of legal doctrine – Somló’s constitutional theory and the Hungarian doctrinal school of public laws

Abstract

Juristische Grundlehre is the representative work of Felix Somló's oeuvre and is an early classic in the general theory of law. The book takes a clear position on the necessity of such a general theory. A scientific study of the law cannot be based on explanations of theories focusing on the content of positive law since these theories are necessarily particular.The question is, however, how to explain the substance of general concepts: should one do so within the framework of a general theory, one that is independent of the content of positive law, as suggested by Somló, or by referring it explicitly to the explanation of that content? In contrast, theories of positive law, such as the doctrinal approach to public law, argue for the latter and regard the scientific study of the law as related to the explanation of its content. Thus, the development of general legal concepts would also be linked to that explanation.It will be shown that Somló takes position on a number of conceptual issues within the framework of his foundational legal doctrine, which were in the focus of contemporary debates on Hungarian public law. It is for this reason that the present paper focuses on the chapters of Somló's book that make arguments similar to those of public-law theories. These considerations show closer links to the debates of contemporary public-law scholarship than what would follow from Somló's formalist theoretical aims as formulated in Grundlehre.