Kantorowicz, Hermann (1877–1940)

Hermann Kantorowicz, born in Posen (then part of Prussia, now Poland), grew up in Berlin. He studied law, philosophy, and economics in Berlin, Geneva, and Munich. Awarded a doctorate in 1900 in Heidelberg, he completed the Habilitation (postdoctoral dissertation) in 1907 in Freiburg. His progressive political views and willingness to give voice to them did not sit well with a decidedly conservative German professoriate, leading to difficulties in his acquiring a professorship. Despite these difficulties, he became widely recognized in specialized academic circles as an accomplished medievalist, legal historian, legal philosopher, legal sociologist, and scholar in criminal law. Finally, after a long stint as lecturer and then associate professor at the University of Freiburg, he was appointed to a chair, at age 51, at the University of Kiel.

His dismissal from the Kiel professorship, stemming from the notorious Law for the Restoration of the Civil Service issued by the Nazis on April 7, 1933, was a foregone conclusion. Meeting either of the conditions set out in the law was sufficient for dismissal, and Kantorowicz met both: he was “politically unreliable” and of Jewish ancestry. In September 1933, he left Germany, spending a year at the New School for Social Research in New York, then a year at the London School of Economics, followed by periods in Cambridge, Oxford, and Glasgow. He died in Cambridge in 1940.

In 1903, in Franz von Liszt's (1851–1919) criminal law seminar in Berlin, Kantorowicz met Gustav Radbruch (1878–1949), marking the beginning of their lifelong friendship. In the same year, attracted by the iconoclasm of a burgeoning movement in the German-speaking countries toward sociological jurisprudence and won over, at least initially, by its arguments, Kantorowicz, along with Radbruch and four others, formed a group to exchange views on juridico-methodological questions.

Writing under the pseudonym “Gnaeus Flavius,” Kantorowicz pursued these questions further in 1906 in a manifesto entitled Der Kampf um die Rechtswissenschaft (The Struggle for Legal Science), defending in unusually pungent terms the doctrines of—as he dubbed it—the “free law (Freirecht) movement.” He rejected the prevailing positivist assumption that the nature of law was to be explicated entirely in terms of state law, and he ridiculed the time-honored methods of legal interpretation—analogy, fiction,ratio legis (statutory meaning and purpose), and the like. These, he argued, were simply devices used to camouflage various expressions of will. Still, gaps in the law were scarcely to be denied, and Kantorowicz endorsed an active judicial role in filling them, an approach already familiar from Eugen Ehrlich (1862–1922) and others.

The manifesto gave rise to an extraordinarily heated discussion in the legal community. Even some who were generally sympathetic to the approach of the free law movement found Kantorowicz's manifesto extreme, insisting—contrary to what Kantorowicz had actually written—that he was advocating judicial decisions contra legem(against statutes). Oskar Bülow (1837–1907), [Page 877]who twenty years earlier had himself challenged the positivist status quo, now wrote that Gnaeus Flavius (Kantorowicz), daring the utmost, “was arguing for complete freedom in judicial decision making, not restricted by statutory law at all” (1906: 774). Joseph Unger (1828–1913), the most influential figure in Austrian civil law in the entire nineteenth century and receptive to the free law movement, was, like Bülow, largely dismissive of Kantorowicz's effort. Ehrlich, to be sure, was more favorably disposed, arguing that Gnaeus Flavius had written “brilliantly, adroitly, and with great knowledge of the field,” but quickly adding that, “the honor of creating the field is shared by Franz Adickes” and Ehrlich himself (1906–1907: 40–41).

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