Menger, Anton (1841–1906)

Anton Menger, born in Maniow, Poland, became professor of civil procedural law at the University of Vienna in 1878. Anton, brother of the economist Carl Menger (1840–1921), was the founder and leading author of a current of legal thinking that was very widespread in European civil law countries at the end of the nineteenth and beginning of the twentieth centuries. Friedrich Engels (1820–1895) put the critical epithet legal socialism on this school of thought.

Legal socialism used various approaches to argue the possibility by reforming the law of establishing a legal order inspired by criteria of social justice. Menger maintained a conception of law as a system of norms, emanating from a sovereign power, for the purpose of maintaining or transforming society. He expressed confidence in the creative capabilities of legislation to serve as “social engineering.”

In his leading works, Menger criticized bourgeois private law, which, under a veneer of neutrality, constituted a tool wielded by the capitalist class to dominate the working classes. He proposed a radical reform of civil law and constitutional law to take into consideration the real relationships of power at work in capitalist society and respond to the needs of the working class. For this purpose, Menger argued, in particular, that both the legislator, when enacting legal norms, and the judge, when applying them, should abandon their claim to neutrality with regard to the citizenry and the parties in question and play a proactive role in favor of the weaker members of society.

Menger criticized dogmatic legal science and the historical school of law. He argued that the task of legal science was not just to put applicable norms into some form of systematic order and interpret them, nor to study their historical development, but rather to draw comparisons between existing legal norms and [Page 1014]the concrete social situation at the time. Scholars could then recommend changes in the law for the future. Called legislativ-politische Jurisprudenz (science of legislative policy), Menger felt that by far the most important transformations in the legal order were the ones that derive from changed relationships of power between individual classes in bourgeois society. The main field of legal science should be soziale Rechtswissenschaft (social jurisprudence), which would enable the legislator, who must comply with the indications of legal science, to achieve a scientific solution to questions connected to how law actually relates to political and economic power.