Fuchs, Ernst (1859–1929)

Ernst Fuchs, born in Weingarten, Germany, was an important author and member of the Mannheim bar. He was a leader among progressive jurists who sought new approaches in legal methodology in Germany at the beginning of the twentieth century. Rejecting the traditional Pandectist approaches dominant at the time, Fuchs looked to the newly emerging social sciences for inspiration.

Fuchs was a pioneer in the Freirechtsschule or Free Law School, which promoted a maximum of justiceoriented flexibility for judges in applying positive rules of law. Claiming flaws in positivism and conceptualism, free law thinkers, led by Fuchs, encouraged judges to apply a number of interpretive strategies. Acknowledging gaps in the existing law, Fuchs promoted the use of analogies to cases covered by other provisions of the law, the application of restrictive or expansive interpretations, consideration of the lawmaker's original intent, and even reconstruction of the law within the social context.

Fuchs wrote widely to promote the Free Law Movement. His books, articles, and essays included Schreibjustiz und Richterkönigtum (1907, Written [Page 607]Justice and the Judges Kingdom),Recht und Wahrheit in unserer heutigen Justiz (1908, Law and Truth in Our Modern Justice), “Die Gemeinschädlichkeit der konstruktiven Jurisprudenz” (1909, The Common Harmfulness of Conceptual Jurisprudence),Juristischer Kulturkampf (1912, Legal Culture Wars), and Was will die Freirechtsschule? (1929, What Does the Free Law School Want?). Here Fuchs defended his opinions regarding the current process of justice, to which there was vehement opposition. Fuchs supported his beliefs through criticism of case decisions, many at the Supreme Court level. Fuchs chose these cases with the argument that if one could prove errors in decisions at this high level, one could also find them in those of lower courts.

Even Fuchs's opponents agreed that he possessed acute critical abilities and was clearly sincere when he wrote that his research found, “an ocean of injustice” and that he read of many decisions in which “justice is wrecked upon the rock of scholasticism” (“Gemeinschädlichkeit” 1909: 113, n. 7). While little biographical information is available in English regarding Fuchs, he is listed in a special issue of Justice Magazine (“Remember Berlin,” Autumn 1999). This issue commemorated Jewish jurists who perished in the Holocaust and remembered their contribution to the law. With the advent of Hitler's appointment as chancellor of the Reich in 1933, the era of German-Jewish legal culture came to a temporary halt. However, the contribution of Fuchs and other Jewish jurists to the legal development of Germany and other countries, including the United States, did not stop. The legal realists' insights regarding the defects of formal logic in legal thought and the inherent and undeniable politics of law followed by several decades the work of Ernst Fuchs and other free law thinkers.

“What we are striving for is that the courts may find the right judgment on the merits by practical sense and true comprehension of the facts, instead of the correct logical deduction by the help of scholastic subtleties” (Fuchs,Württembergische Zeitung für Rechtspflege und Verwaltung 1909: 5).