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The German Free Law Movement?

 

The term seems odd. Free the law from what?

Well, from the statute books, chiefly. 

The term was the favorite of an early 20th century academic movement typified by Hermann Kantorowicz. The idea apparently was to develop a conception of law that would allow judges to strike some of them, statutes, down -- what the US had had for a century by that point, thanks to Justice John Marshall. 

Kantorowicz called his pre-Great-War manifesto "Der Kampf um die Rechtswissenschaft." The remnants of my high school German course still living in my brain suggest that this means "The Battle for Jurisprudence." Some translations render it "The battle for the Liberation of Legal Science." 

One gathers from the title that the author's interest was more in liberating legal science, law professors and what they do, rather than in liberating law, that is, judges and what they do, from the statute books. 

Here is a passage. After making the rather obvious point that most people in most counties have and require little or no familiarity with statute books, Kantorowicz adds:

This is so true, that when a private citizen acquires a working knowledge of the statutory law, he usually belongs to a class of dark men of honor: the extortionist, the criminal’s apprentice, the hatchet‐man, the con‐artist know the rules that interest them perfectly; the merchant, the artist, the officer, the statesman, the husband have only an occasional knowledge of the code, even the articles on trade, authorship, state, international, and family law, without being disturbed by the ignorance in their activities. Who could imagine a traveler in a strange land making himself familiar with the language, history, art, folk traditions, simply by opening his civil statutory code? No one! They all live according to free law, according to what strikes the bylaws of their particular domain or their individual judgment not as arbitrary, not as convenient, but as law.      

By the way, the above photo is of Kantorowicz' son, in the 1940s. The boy, Frank, was born in 1927, the family moved to Britain in the '30s, and that photo is a Frank in his track and field period in the late '40s. I'm wondering if he made it over that hurdle: he seems to have lifted off pretty early. 

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