Contemporary German legal philosophy

163 Pages·1996·8.284 MB·English

by  James E. Herget

Contemporary German
Legal Philosophy

Contemporary
German Legal
Philosophy
James E. Herget
PENN
University of Pennsylvania Press
Philadelphia
Copyright © 1996 by the University of Pennsylvania Press
All rights reserved
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data to come
Herget, James E.
Contemporary German legal philosophy / James E. Herget.
p. cm.
Includes bibliographical references and index.
ISBN 0-8122-3360-3 (cloth: alk. paper). —ISBN 0-8122-1591-5 (pbk.: alk. paper)
1. Law—Philosophy. 2. Jurisprudence. 3. Law—Germany—
Philosophy. 4. Jurisprudence—Germany., I. Title.
K231.H47 1996
340'.1—dc20 96-28509
CIP
Contents
Preface vii
1. Historical Introduction 1
2. A Summary Catalog of Contemporary Scholarship 13
3. Critical Rationalism 30
4. Discourse Theory 44
5. Rhetorical Theory 62
6. Systems Theory 73
7. Institutional Legal Positivism 93
8. An Assessment of German Legal Philosophy 104
Appendix: Biographical Information 123
Bibliography 131
Index 153

Preface
This book describes the current varieties of German jurisprudential
thought for an audience of scholars in law and related disciplines. Juris-
prudential writing in the United States has been on the upswing for the
past dozen years or so, and articles on legal philosophy have again
achieved respectability with the law reviews. However, American legal
scholars are traditionally somewhat provincial. For historical reasons we
tend to read only what is written in the Anglo-American tradition and to
write in that tradition as well, ignoring ideas from foreign traditions—
French, German, Italian, Japanese, or other—that only occasionally fil-
ter into our framework of thinking. These overlooked ideas are often
fertile and productive; so, a better look is due: hence this book.
My impressionistic estimate is that substantially more legal philosophy
is being written in German-speaking countries than in the United States.
This phenomenon is not surprising when one considers the two philo-
sophical and legal traditions. The abundance of scholarship published
in Germany, Austria, and Switzerland requires some sorting out among
various "schools" of thought. Consequently, in view of the purpose of
this book, I have concentrated on those philosophies that meet three
criteria: (1) they are not widely publicized among legal scholars in the
United States (although some are familiar to philosophers and sociolo-
gists); (2) they have intellectual connections with contemporary devel-
opments in other disciplines; and (3) they are characteristically German.
Applying these criteria turned out to be difficult. Therefore, in chapter
two I give thumbnail sketches of views which do not as clearly meet the
criteria as do those discussed in chapters three through seven. The bib-
liographical essay guides readers who wish to pursue the thinking of par-
ticular authors.
What the Germans usually call Staatstheorie or Staatslehre and what we
usually denominate political theory have been purposely excluded. Ob-
viously political theory often blends imperceptably into legal philosophy,
viii Preface
but the limitations of time and space require that a review of this schol-
arship be deferred to another day.
I have included a substantial critique of those philosophies that I took
to be of most interest to the book's audience (chapters 3-7). This cri-
tique is largely drawn from the general literature and is not original, al-
though I occasionally add particular criticisms where appropriate.
The book therefore proceeds as follows: (1) some introductory expla-
nation from an historical viewpoint, (2) a catalog of "schools" that do
not fully qualify as of special interest under the criteria mentioned above;
(3) discussions and critiques of Critical Rationalism, (4) Discourse
Theory, (5) Rhetorical Theory, (6) Systems Theory, (7) Institutional Le-
gal Positivism, and (8) some general observations and conclusions about
contemporary German legal philosophy.
The book could not accommodate the work of individual scholars
whose contributions to the general discourse of the discipline were sub-
stantial but who did not espouse a "school" or unique perspective. Some
of the more prominent of these are Klaus Adomeit, Ralf Dreier, Winfried
Hassemer, Eric Hilgendorf, Walter Ott, Hans-Martin Pawlowski, and
Gerd Roellecke. Special note should be made of the work of Hilgendorf,
who regularly reviews new literature in this field in various periodicals.
His reviews are penetrating and critical, agreeably short, and reflect
good judgment based on a mastery of the field. They were a valuable
source of guidance to me.
I want to thank the German Fulbright Commission for funding my
year's research at the University of Heidelberg. I also want to thank Pro-
fessor Winfried Brugger ofthat university for being my host and mentor.
He provided valuable help in every way, and the book could not have
been done without it. The views expressed, however, are my own, not his;
indeed, we disagreed on many points. I also wish to acknowledge helpful
suggestions from Heiner Bielefeldt, who read the entire manuscript, and
from David Dow, John Mixon, Joseph Sanders, and David Dyzenhaus,
who read selected chapters.
Chapter 1
Historical Introduction
The long-range problems of a social order in competition with rival
ideas can certainly not be solved by those who fail to understand the
force of ideas. It is ancient wisdom that in the long run nothing is so
powerful as an idea when its time has come.
—Felix S. Cohen1
Sometimes ideas pop into our heads seemingly from nowhere. But theo-
ries are different; they are developed within a tradition or pattern of
thinking. A theory does not emerge full-blown from the brow of a great
thinker; rather, it is a product of an intellectual heritage, often matured
through considerable debate. It is therefore helpful, if not necessary, for
understanding a particular legal philosophy to know something about
how it came about and what intellectual concerns prompted its devel-
opment. For this reason developments in German legal philosophy from
1945 to the present will be briefly sketched in this chapter.
The Revival of Natural Law: 1945-60
The great concern that permeated the scholarly world elfter the Nazi ex-
perience was to provide an answer to the questions: How could it have
happened? How could the perverted and unjust Nazi legal system be ex-
plained? How could such mistakes be avoided in the future? For the first
decade or so after the war the conventional wisdom expressed in the
scholarly literature held that legal positivism, dominant as a legal phi-
losophy at the time of the Nazi takeover, was responsible for the ease with
which the courts and the law were corrupted. Positivism, in most ver-
1. Preface to Felix S. Cohen and Morris R. Cohen, eds., Readings in Jurisprudence and
LegalPhilosopky (Boston: Little Brown, 1951), v.
2 Chapter 1
sions, insists on the separation of law and morality; law has validity inde-
pendent of its moral content. In this view it is not the province of the
legal scholar to be concerned with right and wrong or good and bad; the
scholar's work is to clarify, conceptualize, and explain the authoritative
legal precepts. Therefore, it was argued, this unwillingness to inquire
into the morality of law by judges, lawyers, and legal scholars led to an
easy capture of the legal system by the Nazis and facilitated its modifica-
tion to meet evil Nazi goals.
With the apparent discrediting of positivism and the yearning for a
normatively grounded theory of law, mainstream scholarly activity turned
toward a revival of natural law. This took three paths: a new Thomism
sponsored primarily by Roman Catholic scholars, a secular version of
natural law based on the "material value philosophy" and the "Rad-
bruch Formula."
Thomistic natural law had been cultivated in various intellectual
circles ever since the great saint produced his Summa Theologica in the
thirteenth century. After 1945 it had great appeal to some German aca-
demics as a mature philosophy that based the validity of all law on uni-
versal moral principles. Expectations were high that natural law would
provide a framework for the new post war society, that it would answer
difficult moral and political questions both great and small, and that it
would provide a defense against the establishment of evil law. Even the
new German constitutional court flirted for some time with the use of
natural law as a justification for decisions, and this trend has not entirely
ceased.2 However, as time passed it became apparent that the expecta-
tions for natural law had been too high. The answers were not there, or
were not convincing. Some found Thomism unacceptable because it re-
quired the philosophical support of a particular metaphysics and of
certain religious assumptions. It was a "confessional" philosophy.3 Of
course, it still retains some adherents in the contemporary scholarly
world.4
A variation, not subject to the religious objection, was a natural law
based on what was called the "material value" philosophy originally
worked out by Max Scheler and developed further by Nicolai Hart-
2. See Donald Kommers, The ConstitutionalJurisprudence of the Federal Republic of Germany
(Durham, N.C.: Duke Univ. Press, 1989), 54, 312, and cases cited therein.
3. Typical of this work is Josef Fuchs, Lex Naturae: Zur Theologie des Naturrechts (Düssel-
dorf: Patmos, 1955). Of lesser impact was some Protestant-oriented work along the same
lines. See Hermann Weinkauff, "Das Naturrecht in evangelischen Sicht," Zeitwende 23
(1951): 95. For a collection of works from this period dealing with the question of natural
law, see Werner Maihofer, ed., Naturrecht oder Rechtspositivismus (Darmstadt: Wissenschaft-
liche Buchgesellschaft, 1962).
4. See Kommers, supra note 2 at 48-60.