Beiträge zur Rechtsgeschichte Österreichs 2 / 2013, pp. 430-438, 2014/01/30
recht [durch] setzen - Making Things Legal.
Gesetzgebung und prozessuale Wirklichkeit in den europäischen Rechtstraditionen
This paper highlights the role juristic commentaries may play in the process of “making things legal”. In explaining, for example, a statute (or other legal text), a commentary works as a “bridge-builder”: it transforms law from a ‘solid’ textual state into ‘law in action’. This role, and its paradox shape, can aptly be illustrated by outlining a jurisprudential discussion in Germany from the time of the Third Reich. On the one hand, commentaries were seen as undesirable implementers of the positive law existing hitherto, which stood in the way of the desired legal change. On the other hand, lawyers treated commentaries as a means of implementing National Socialist ideas in the legal system and transforming statutes to comply with these ideas.