Free law school
The free school of law is a movement in the jurisprudence of the early 20th century that the judge a "free administration of justice" in legal loopholes , sometimes even against the current law would allow. Outstanding authors of this legal methodology are Hermann Kantorowicz (1907 and 1911), Ernst Stampe (1907 and 1911) and Fritz Berolzheimer (1911). Ernst Fuchs (until 1899 Samuel Fuchs), who is also assigned to the Free Law School, describes his method as "sociological".
Free choice of law
Legal scholars with different views call themselves representatives of the free law movement. The number of legal scholars who have emerged with larger papers and call their own method the Freicht method is small. The common catchphrase free rights movement is understood in different ways. The term "free legal finding" was coined by the Austrian Eugen Ehrlich . Ehrlich wanted to use it to denote case decisions that are not guided by the law . The free justice movement wants to push back the judge's commitment to the law in favor of judicial discretion .
Ehrlich's investigations, which form the starting point of the Free Law School, are based on the basic notion that the individual case is best decided when the judge can appreciate the individual case in its own way ("free choice of law"). The polemic against conceptual jurisprudence, which is striking for the free law school , does not yet play a role for Ehrlich. Ehrlich only wants to allow free choice of law if there is no clear decision of the law.
Fuchs, Karl Schmölder (1907) and Johann Georg Gmelin (1910) also call for the free choice of law to be preferred to legal regulation , whereby the focus for Fuchs is on combating term jurisprudence . Gmelin formulates that the judge is bound by the specific wording, but that the judge's free discretion can intervene beyond it. Wilhelm Kulemann expresses the position of the Free Law School quite openly by demanding de lege ferenda that the courts should be transformed from merely righteous authorities into organs of legal creation in fundamental equality with the legislature . Stampe even gives the judge the power to change the law .
criticism
The free law school met with rejection. Her critic Philipp Heck admitted to her that the law could lead to hardship and that an “ideal judge” released from the legal requirements could in many cases make a more appropriate decision than the law. The legislature can only pass legislation for the "normal" rule relationships, in which the law leads to more appropriate results than the completely free acquisition of rights. The "far-sighted judge king" of the free law school is not the rule. In the purely individual consideration, dangers lurked especially when different social views prevailed in the area of life in question. The real judge runs the risk of becoming partisan or appearing partisan without being legally bound . Nor is the ideal of the “reasonable decision” the only ideal of the administration of justice. Legal security and avoidance of disputes through clever contract drafting are often more important than the dispute resolution . For these and other considerations, the free law school was therefore rejected in law.
literature
- Ernst Fuchs : Justice Science. Selected writings on the doctrine of liberal law (edited by Albert S. Foulkes and Arthur Kaufmann ), CF Müller, Karlsruhe 1965.
- Ernst Fuchs: Collected writings on free law and legal reform (edited by Albert S. Foulkes), three volumes, Scientia Verlag, Aalen.
- Hermann Kantorowicz : From the prehistory of free law theory , Bensheimer, Mannheim / Berlin / Leipzig 1925
- Klaus Riebschläger : The Free Right Movement: On the Development of a Sociological School of Law , Duncker & Humblot, Berlin 1968.
- Joachim Rückert : From “Freirecht” to “Evaluation Jurisprudence”. A story full of legends , magazine of the Savigny Foundation for Legal History : German Department, Volume 125, Issue 1 (2008), pp. 199–255.
Individual evidence
- ^ Wilhelm Kulemann: Economy and Law I , p. 145 ff.
- ↑ Philipp Heck : Problems of legal acquisition , Tübingen, 1912, p. 26.
