Hermann Kantorowicz

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Hermann Kantorowicz (also: Hermann U. Kantorowicz , pseudonym: Gnaeus Flavius ; born November 18, 1877 in Posen , † February 12, 1940 in Cambridge ) was a German legal scholar .

Life

Kantorowicz was born as the son of Wilhelm and Rosa Kantorowicz, nee Gieldzinska, in the capital of the Prussian province of Posen in the Kingdom of Prussia . In 1884 he moved to Berlin with his parents and siblings Alfred , Erich and Else . Kantorowicz studied in Berlin and Geneva , received his doctorate in Heidelberg in 1904 and completed his habilitation in 1907 at the University of Freiburg im Breisgau . There he taught first as a private lecturer, from 1913 as a non-budgetary and from 1923 as a regular associate professor until 1929 (with an interruption in 1927 when he taught as a visiting professor at Columbia University ). He was then a full professor at Kiel University as the successor to Gustav Radbruch (1929–1933). The seizure of power by the National Socialists experienced Kantorowicz in Florence . Only a good two weeks after the law to restore the civil service came into force on April 7, 1933, he was put into temporary retirement. The final discharge followed in September 1933. The same fate befell his brother, the famous dentist Alfred Kantorowicz . Georg Dahm took over from Hermann Kantorowicz . Kantorowicz emigrated to the United States of America , where he taught at City College in New York (1933–1934) before moving to England . There he taught at the London School of Economics and at All Souls College , Oxford and at Cambridge University (1934–1937). From 1937 until his death in 1940 he was Assistant Director of Research in Law at Cambridge.

Kantorowicz married Johanna Dorothea Rosenstock on April 23, 1904, daughter of the Berlin banker Theodor Rosenstock. From the marriage the children emerged: Lorenzo, Otto Paul Theodor, Ludwig Hans and Hildegard Dorothea. From July 26, 1923, he was married to Hildegard Anna Maria Kalin, a primary and secondary school teacher, in his second marriage. With her he had two sons, Thomas Albert and Frank Wilhelm Eduard.

Hermann Kantorowicz left the Jewish religious community .

Scientific work

Kantorowicz was one of the leading representatives of the so-called Free Law School , an influential school of thought within German law at the turn of the 19th and 20th centuries. The legal positivism in the Empire , in the so-called conceptual jurisprudence found its expression, a legal theory should be opposed, which could be of increasing distance from the state-legal and social reality meet. The aim was to enforce progressive ideas in a reactionary legal system through the free decision of judges, whose commitment to legal texts should be reduced. Kantorowicz and the free law theory assumed that law is not only contained in laws. Kantorowicz calls the law not contained in the statutes - but nonetheless living - free law. “From free law, finally, the law must be closed in on itself, its gaps must be filled.” The gaps can only be filled by legal norms, because the decision of a judge must be a legal one. These norms are created by the judge, who not only has legal knowledge but also legal creation tasks. Accordingly, the judge should be given the greatest possible freedom with regard to the legal provisions. The free judicial discretion is the basic principle of the application of the law.

Who founded the doctrine of free law is still the subject of discussions today. Among others, Eugen Ehrlich made use of this service. He claimed to have formulated the corresponding thoughts as early as 1888. Under the pseudonym Gnaeus Flavius , Kantorowicz wrote a pamphlet for the doctrine of free law, the strong formulations of which actually turn this treatise into a pamphlet: "May this pamphlet advertise new fighters for the liberation struggle of jurisprudence, for the storming of the last bastion of scholasticism." Quite apart from that Of all the debates on justification, this text is today often seen as the central expression of the thinking in free law.

Kantorowicz and the doctrine of free law emanated strong impulses that not only influenced law itself, but also other areas and disciplines such as legal sociology . Nevertheless, the way of thinking in free law is to be viewed historically today. This is mainly because of the attempt made there to classify law directly under the other cultural studies . Kantorowicz says, “everything that is ought is also a being,” which is why the attempt to separate jurisprudence from the rest of the cultural sciences by means of the usual distinction between being and ought collapses from the start. This actually dissolves the law in the social sphere. This relativization of the law was seen by many jurists and legal theorists as a destabilization and tendency to dissolve and was not implemented for legal-dogmatic reasons.

Expert opinion on the question of war guilt

Kantorowicz caused heated discussions when details of his report for the parliamentary committee of inquiry into the question of Germany's guilt for triggering the First World War became known. Contrary to the prevailing opinion in Germany, in 1923 he came to the conclusion that Germany's responsibility for the outbreak of war was of great importance. As evidence, Kantorowicz cited the official white paper of August 3, 1914, in which around 75 percent of the documents presented in it were falsified, which were supposed to deny Germany's participation in the emergence of the First World War. When Kantorowicz was proposed for election as a full professor at Kiel University shortly afterwards in 1927, the then Foreign Minister Gustav Stresemann ( DVP ) raised his concerns in a letter to the Minister of Education Becker ( SPD ). Stresemann saw Germany as innocent of the emergence of the First World War and, after consulting the former diplomat and politician Johannes Kriege (DVP), wanted to prevent Kantorowicz's self-critical view of Germany's actions from becoming "masochistic" by granting him a full professorship in Kiel experience a reinforcement. In a reply to Stresemann, Becker quoted, among other things, a statement by the right-wing politician Gustav Radbruch that the report contained nothing other than the opinion of the entire Social Democratic Party . The social democratic government of Prussia appointed Kantorowicz to the chair in Kiel. The report remained unpublished at the instigation of Stresemann and the manager of the parliamentary committee of inquiry into the war guilt issue, Eugen Fischer-Baling . The fairy tale of Germany's innocence in the emergence of the First World War and, according to Stresemann's interpretation of “the world deceit” of the Versailles Treaty, was able to be spread by the nationalist groups undisturbed. In 1967, the young historians published Imanuel Geiss , the forgotten reports and assisted the historian Fritz Fischer that Germany one in his dispute with the established historical profession of the Federal Republic of Germany, which denied even in the 1960s, partly responsible for the emergence of World War I had have.

Fonts (selection)

A detailed bibliography can be found in: Karlheinz Muscheler : Relativism and Freirecht. CF Müller Juristischer Verlag, Heidelberg 1984.

  • Aesthetics of the lyric. The Georgesche poem (with H. Goesch), 1902, under the pseudonym Kuno Zwymann
  • Gobler's Karolinen Commentary and His Followers, 1904
  • The struggle for jurisprudence (under the pseudonym Gnaeus Flavius ), 1906
  • Una festa bolognese per l'Epifania del 1289, 1906
  • Written comparison and forgery of documents, 1906
  • Cino da Pistoja ed il primo trattato di medicina legale, 1906
  • Problems of Comparative Criminal Law, 1907
  • Albertus Gandinus and the Criminal Law of Scholasticism, Volume One: The Practice, 1907
  • The Judge's Freedom to Determine Sentences, 1908
  • On the Doctrine of Correct Law, 1909
  • On the origin of the digestive vulgata, 1910
  • The contra legem fable, 1910
  • The Draft Criminal Law and Science, 1910-11
  • Law and Sociology, 1911
  • What is Savigny to us ?, 1912
  • Volksgeist and historical law school, 1912
  • Against the death penalty, 1912
  • Max Conrat (Cohn) and Medieval Research, 1912
  • Edition of Max Conrat's book, Roman Law in the Earliest Middle Ages, 1913
  • To the sources of the Schwabenspiegel, 1913
  • The Epochs of Jurisprudence, 1914
  • Officer hatred in the German army, 1919
  • Thomas Diplovatius. De claris juris consultis. Vol. 1 (with Fritz Schulz), 1919
  • The coup in Pesaro in 1516, 1919
  • Germany's interest in the League of Nations, 1920
  • Citizenship as a subject, 1920
  • The Future of Criminal Law Education, 1920
  • Introduction to Textual Criticism, 1921
  • Bismarck's shadow, 1921
  • Behind the scenes at Versailles, 1921
  • History of the Gandinus text, part 1, 1921
  • Defense of the League of Nations. 1922
  • The Italian draft criminal law and its teaching, 1922
  • Note about Max Weber in Logos XI, 1922
  • The Principium Decretalium of Johannes de Deo, 1922
  • History of the Gandinus text, part 2, 1922
  • The League of Nations in 1922
  • The structure of sociology, in: Remembrance for Max Weber, 1923
  • The idea of ​​the League of Nations, 1923
  • Should Germany join the League of Nations? In: Foreign Affairs, 1924
  • Germany and the League of Nations, lecture to Fabian Society, 1924
  • Life and writings of Albertus Gandinus, 1924
  • Studies on the old Italian criminal process. I. Bolognese Code of Criminal Procedure of 1288; II. The Tractatus de tormentis, 1924
  • Fechenbach judgment and question of war guilt. The Friedens-Warte 1925, pages 142–145. (A treatise on the scandal caused by the German anti-democratic judiciary when it sentenced the journalist Felix Fechenbach to 11 years in prison for alleged treason in 1922. Among other things, his treason had consisted in claiming that Germany was complicit in the beginning of the First World War .)
  • Studies on the War Guilt Question, 1925
  • Pacifism and Fascism, 1925
  • Savigny letters, 1925
  • Conceptions of the state. A sketch, 1925
  • Il 'Tractatus criminum', per il cinquantenario della Rivista Penale, Citta di Castello, 1925
  • From the prehistory of free law doctrine, 1925
  • Albertus Gndinus and the Criminal Law of Scholasticism, Volume 2, 1926
  • The Irrationality of English Politics, 1926
  • Treason in German criminal law, 1926/27
  • Expert opinion on the war guilt issue 1914 . (On behalf of the parliamentary committee of inquiry into the guilty questions of the First World War , which was convened by the National Assembly in 1919. The report was ready for printing in 1927, but was not printed at the instigation of the Committee Secretary General, the Reichstag member Eugen Fischer-Baling and other nationalist members of parliament published because it should be prevented that Germany was found guilty of the beginning of World War I. The report was forgotten and was only printed in 1967. see below)
  • The New Germanic Constitution in Theory and Practice, 1927
  • Damasus, 1927
  • Naber zum Brachylogus, 1927
  • A forgotten fact: the war campaign, 1927/28
  • The Truth About Sarajevo, 1928
  • Legal Science. A summary of its methodology, 1928
  • Zeal for persecution, 1928/29
  • The sterilization of the inferior in the United States, 1929
  • Basic Concepts in the History of Literature, 1929
  • Critical studies on the source and literary history of Roman law in the Middle Ages, 1929
  • Accursio e la sua biblioteca, 1929
  • Sarajevo again, 1929
  • The spirit of English politics and the ghost of the encirclement of Germany, Rowohlt Verlag, Berlin 1929
  • A complete edition of Pillius in preparation, 1930
  • English Politics through German eyes, 1930
  • Praestantia Doctorum, Festschrift for Max Poppenheim, 1931
  • The Spirit of British Policy and the Myth of the Encirclement of Germany, 1931
  • Funeral speech for Julius Landmann, 1932
  • The Concept of the State, 1932
  • The Allegations in the Late Middle Ages, 1932
  • Savigny's Marburg Methodology, 1933
  • De ornatu Mulierum, 1933
  • Act and Guilt, 1933
  • Current misunderstandings of Hitlerism, under pseudonym of Cassander, 1933
  • Some Rationalism about Realism, 1934
  • Baldus de Ubaldis and the subjective theory of guilt, 1934
  • Rapport sur les Sources du Droit, 1934
  • Dictatorships, with a bibliography by Alexander Elkin, 1935
  • A medieval Grammarian on the sources of the law, 1936
  • Savigny and the Historical School of Law, 1937
  • Les origines françaises des Exceptiones Petri, 1937
  • De Pugna. La letteratura longobardistica sul duello giudiziario, 1938
  • Has Capitalism failed in Law ?, 1835-1935, 1938
  • De Pugna. La Letteratura Longobardistica sul Duello Giudiziario, 1938
  • Les origines françaises des Exceptiones Petri, 1938
  • The poetical sermon of a medieval jurist, 1938
  • Studies in the Glossators of the Roman Law: w. WWBuckland, 1938
  • The Quaestiones disputatae of the Glossators, 1939
  • Bractonian Problems, 1941
  • An English Theologian's view of Roman Law, w. Beryl Smalley, edited by Nicolai Rubinstein, 1941
  • A Greek Justinian Constitution, quoted in the Dissensiones Dominorum, 1945
  • The Definition of Law, with an introduction by Arthur Goodhart, 1958. The book has been translated into several languages. Italian, La definicione del Diritto, translated by Enrico di Robilant, 1962; German, The Concept of Law, translated by Werner Goldschmidt and Gerd Kastendieck, 1963; Spanish, La Definícón del Derecho, translated by JM de la Vego, 1964
  • Expert opinion on the war guilt issue 1914 . From d. Estate ed. + introduced by Imanuel Geiss. With a preface by Gustav W. Heinemann. European Publishing House, Frankfurt a. M. 1967
  • Diplovatius . 2nd volume, edited by Giuseppe Rabotti, 1968

On the initiative of his wife Hilda Kantorowicz (1892–1974), two collections of articles were published posthumously. Most of the texts it contains are in the list above.

  • Law and Sociology. Selected writings on science , edited by Thomas Würtenberger, Verlag CF Müller, Karlsruhe, 1962
  • Legal historical writings . Selected and edited by Helmut Coing and Gerhard Immel, Verlag CF Müller, Karlsruhe, 1970

literature

Web links

Wikisource: Hermann Kantorowicz  - Sources and full texts

Individual evidence

  1. ↑ According to Muscheler, Kantorowicz added the initial "U." to his nickname between 1904 and 1922 to distinguish himself from a namesake. Through an obituary writer who wrongly resolved this arbitrarily chosen initial to "Ulrich", this supposed middle name has become common in literature.
  2. ^ A b Leonie Breunung, Manfred Walther: Western European States, Turkey, Palestine / Israel, Latin American States, South African Union . Walter de Gruyter, October 1, 2012, ISBN 978-3-11-025910-0 , p. 219.
  3. ^ German biography: Kantorowicz, Hermann - German biography. Retrieved February 11, 2020 .
  4. ↑ Jörn Eckert: Georg Dahm (1904–1963). In: Eckart Klein / Stefan Chr. Saar / Carola Schulze (eds.): Between the rule of law and dictatorship. German lawyers in the 20th century. Frankfurt am Main 2006, pp. 131-150.
  5. ↑ Hermann Kantorowicz: Expert opinion on the war guilt issue 1914. from the estate, ed. by Imanuel Geiss, 1967
  6. ↑ Kantorowicz: Expert opinion on the war guilt issue 1914. P. 92 ff.
  7. ↑ Erich Eyck: History of the Weimar Republic. Volume 2, 1956, pp. 139 ff.
  8. ↑ Annelise Thimme : Once around the clock. The Stresemann controversy from 1927 to 1929 . In: Hartmut Lehmann (Ed.): Historikerkontroversen . Wallstein 2000, ISBN 3-89244-413-7 , p. 44.
personal data
SURNAME Kantorowicz, Hermann
ALTERNATIVE NAMES Kantorowicz, Hermann U .; Kantorowicz, Hermann Ulrich
BRIEF DESCRIPTION German lawyer
DATE OF BIRTH November 18, 1877
PLACE OF BIRTH Poses
DATE OF DEATH February 12, 1940
Place of death Cambridge