一九枇紀ドイツ国法学における方法と国制

抄録

The purpose of this paper is to discuss the relation between legal methodologies and theories of constitution of C. F. v. Gerber and Paul Laband who are positivists of constitutional law (Staatsrecht) in the 19th century in Germany. Positivist theory of constitutional law and its view of state as artificial person are criticized for its formalism as outdated theory.But.in this paper. 1 will confirm that they tried to ensure that the juristic independence from other fields by limiting its object to description of national power. Moreover. I will insist following two points: (1) Gerber’s theory of status-constitution retreated as his legal methodology progressed. (2) the views about the national power in later Gerber and Laband corresponded with the modern constitutional theoretical model which distinguished state and society strictly. Finally I’d like to propose a more consistent alternative model.