Free Law School

Philosophical Context

At the very beginning of the twentieth century, the prevailing view in Western jurisprudence, especially in Germany and Austria, regarded law as an autonomous, complete, and logical system of concepts and rules providing solutions for all cases. The German Civil Code (Bürgerliches Gesetzbuch) of 1900 reflected this system and gave it legislative force. Jurists widely believed that to decide cases correctly, judges must simply apply the code's provisions or, where none was directly on point, deduce answers logically from the code's guiding principles. Thus, most jurists saw adjudication as an essentially mechanical enterprise that required little, if any, attention to justice in the individual case or to social realities and consequences.

Like the jurisprudence of interests, free law protested against these views. It had its roots in the ideas of the German jurist Rudolf von Jhering (1818–1892), especially his critique of conceptual jurisprudence and his argument that the law's main purpose was to settle struggles between competing interests. A generation after Jhering, the free law movement (Freirechtsbewegung) then developed its own, iconoclastic theory of adjudication. While its main protagonists—Eugen Ehrlich (1862–1922), Ernst Fuchs (1859–1929), and Hermann Kantorowicz (1877–1940)—were not always in full agreement, their views clustered around a handful of ideas.

Free Law's Principal Ideas

First, law is not a logical and gapless system of principles and rules—at least not entirely. Instead, it is full of gaps and internal contradictions. In addition to state-created (legislative) rules, there is “free law” created by legal scientists, courts, and custom. This “free law” reflected social interests and popular convictions.

Second, meaningful solutions to legal problems, therefore, cannot be deduced simply from statutory rules. The apparent determinacy of such deductions is illusory and pernicious because it entails smoke-screen reasoning that hides the true grounds for decision.

Third, judging is necessarily a creative activity. In applying rules, and even more so in filling gaps, judges inevitably make choices. Thus, adjudication is a matter of willful decision for the perceived right outcome and driven by a (perhaps irrational) feeling of justice. Judges mostly invent official reasons afterward to legitimize the result.

Fourth, judges, rather than legislators, are therefore the most significant legal actors, and the law is heavily determined by their personalities and predilections. This requires the appointment of adjudicators who can be trusted to exercise their freedom wisely. For some members of the Freirechtsbewegung, the pertinent model was the (considerably idealized) English judge.

Finally, in deciding cases, judges must consciously go beyond rule application and resort to the regime of “free law.” They must both consider justice in the individual case and the well-being of society. In short, judges must be prudent settlers of disputes as well as effective social engineers. This requires that judges train in the social sciences as well as in law.

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