From “Rechtsleben” to “Lebensrecht”: On Life's Victory over Law in the Pages of the Archive for Legal and Economic Philosophy, 1907–33

Saturday, January 6, 2018: 8:30 AM
Maryland Suite A (Marriott Wardman Park)
Katharina Isabel Schmidt, Princeton University
Scholars have long recognized American jurists’ idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the American Legal Realist movement. The Legal Realists rose to prominence in the late 1920s and are today best remembered for their distinction between “law in the books” and “law in action.”

Conversely, German jurists’ doctrinal, idealistic, and apolitical approach has been tied to the relative failure of Germany’s equivalent movement: the German Free Law movement. The Free Lawyers, entering the jurisprudential scene in the 1900s and 1910s, first drew attention to the role of judges’ subjective value judgments as part of the judicial decision-making process.

While the Legal Realists transformed the consciousness of a whole generation of American jurists, the Free Lawyers supposedly never amounted to more than a “conscience-sharpening.” If this is true, how to account for the seemingly inverse fate of naturalist jurisprudential reform projects on both sides of the Atlantic? If it is not, what happened to naturalist jurisprudential reform projects in Germany?

In my research I propose to answer these questions by focusing on diverging German and American conceptions of juristically relevant reality. While German jurists, I argue, turned to “life” as a new and “modern” source of normative guidance, their American colleagues turned to “experience.”

This juxtaposition of German “life” and American “experience” allows for new interpretations of the transatlantic 1930s. It also draws attention to jurisprudential continuities between the late Wilhelmine period, Weimar, and the early Third Reich. In my presentation I will illustrate these continuities through an analysis of the conceptual shift from innocuous Rechtsleben to totalitarian Lebensrecht in the pages of the Archive for Legal and Economic Philosophy.

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