restricted access Six: Erich Kaufmann

From: Weimar

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six Erich Kaufmann introduction Stephen Cloyd Erich Kaufmann (1880–1972) was a critical influence in reasserting the importance of history and sociological ideas in legal and state law scholarship . His 1921 Critique of the Neo-Kantian Philosophy of Law [Kritik der neukantischen Rechtsphilosophie] offered a penetrating and influential critique of the foundations and reasoning of the then-dominant school of legal positivism . For this, he is considered one of the founders of a new “idealist” [geisteswissenschaftliche ] movement in Weimar legal scholarship, a movement that brought broader cultural and sociological perspectives to state law theory. While he never produced a comprehensive theoretical synthesis, his individual contributions taken together evolved a clearly articulated perspective on the most fundamental questions. He served both the Weimar Republic, and later, the Federal Republic, as a legal adviser and advocate on issues that mixed state law with international law, and published in both fields. His work reflected a unique combination of practical experience and philosophical and historical interest in the foundations of legal order.1 Kaufmann was a Protestant conservative. Born in Demmin, Pomerania, in 1880, he left Berlin’s Königlichen Französischen Gymnasium and entered the University of Berlin in 1898. He intended to study philosophy and literary history but ended up studying philosophy and law. Although impressed by Wilhelm Dilthey and Georg Simmel, who were ornaments of the Berlin faculty, he was not really drawn to their perspectives. The Berlin law faculty’s emphasis on the historical roots of law, however, may have had a latent influence . In any case, his philosophical hunger soon drew him elsewhere, to hear 189 190 ERICH KAUFMANN Heinrich Rickert in Freiburg, from there to Heidelberg, Halle, Erlangen, and Kiel. During this time, he considered himself a neo-Kantian. But his 1906 doctorate at Halle betrayed the influence of Otto Gierke’s historical work. In 1908 Kaufmann completed his postdoctoral dissertation—the Habilitationsschrift —under Albert Hänel at Kiel. Hänel was a student of Robert von Mohl and a sensitive follower of Gierke, and his work pointed in the direction Kaufmann wanted to go. Hänel saw that law was a product of the state and institutions and urged scholars to study it from cultural and social perspectives, as well as with the more abstract methods of construction. Kaufmann’s 1911 study, The Essence of International Law and the Clausula rebus sic stantibus [Das Wesen des Völkerrechts und die Clausula rebus sic stantibus], was dedicated to and well received by Gierke himself.2 The influence of Gierke and Hänel and his own reading of Hegel convinced Kaufmann not just that historical perspective was essential but that history offered the only insight into the problem of justice. Justice could not be discovered in the relational concepts of the science of jurisprudence, because it was a product of real, concrete institutions that could be understood only in the light of cultural history. Kaufmann also, more gradually, came to believe that despite their different historical expression, institutions were rooted in natural laws which provided an ethical foundation that could not be relativized by historical or other forms of scholarship. The insistence, on the one hand, on historical understanding, and on the other, an assertion of the limits to historical relativism set by natural law are at the heart of Kaufmann’s work. From a perspective that he termed “objective idealism,” he criticized both the positivist doctrines that Weimar’s constitutional lawyers inherited from Imperial Germany and the work of scholars who had joined him in turning toward historical, sociological, and cultural perspectives. Before the First World War, Kaufmann had adopted a Hegelian view of the state that emphasized unconditional sovereignty as a political necessity. He defined the state as “the organization that a people gives itself in order to knit itself into world history and to preserve its own character in world history.” The self-preservation of the state was therefore “self-preservation for the purpose of participation in the cultural goods of humanity . . . in world history .” Because there was no higher temporal good than this, the legal order of the national state was absolute by definition, as “the sovereign and universal . . . [order] that contains all others, limits them to their relative spheres and maintains and protects them within these.” Kaufmann viewed the sovereign power of the state as the ultimate motor of all cultural development because it sought to mobilize all the physical and moral resources available : “From the...