Hermann Kantorowicz (1877–1940), German jurist, was born in Posen (Posznan). After receiving his secondary education at the Louisen Gymnasium in Berlin, he proceeded to study law at Berlin, Geneva, and Munich, and he obtained his doctorate of laws in 1904 from the University of Heidelberg with a dissertation on the history of criminal law. After devoting several years of study in Italy to the history of European jurisprudence, he was appointed in 1907 as Privatdozent to teach criminal law, the philosophy of law, and the history of law in the University of Freiburg (Breisgau). He was made an associate professor in 1913 and full professor of auxiliary juridical sciences in 1923. In 1927 he gave a seminar at Columbia University, New York. The following year he was appointed professor of criminal law at the University of Kiel. After the Nazi government dismissed Kantorowicz in 1933, he became a professor in the graduate faculty of the New School for Social Research, New York, and he also lectured at the College of the City of New York, the London School of Economics, All Souls College, Oxford, and at Cambridge. In 1937 he was appointed assistant director of research in law at Cambridge, where he died in 1940.
Kantorowicz early turned to the problems of method in jurisprudence. His controversial pamphlet Der Kampf um die Rechtswissenschaft appeared in 1906 under the pseudonym of Gnaeus Flavius. This pamphlet aimed at uniting the growing number of those who emphasized the legislative aspect of judicial decisions into a militant movement for the “doctrine of free law” (Freirechtslehre). The pamphlet proclaimed that a judge must not only apply the rules of law to individual cases but should also create law whenever there is a hiatus in a statute. This, then, constituted a challenge to legal positivism, which based jurisprudence on the logical subsumption of any particular case under the law. Kantorowicz felt that as a con-sequence of positivist legal theory the dictates of justice were frequently ignored and the demands of social reality were neglected, and he tagged the legal-positivist judge as a “subsumption automaton.” He combined his criticism of positivism in law with a critique of “analytical jurisprudence,” which at that time still tended to dominate legal thinking, and asserted that abstract logical deduction does not suffice for the exposition of the rules of law and the formation of juridical concepts. He also maintained that judicial decisions and jurisprudence should take the emotions into account.
The study of the sources of law was also enriched by Kantorowicz. In addition to formal law, especially statute law, he considered “free law” to be such a source. (Free law consists not only of custom and usage but also of judicial opinions and the authoritative statements of legal scholars.) Supporting the validity of statute law, Kantorowicz refused to accept any judicial decision contra legem as a source of law. He regarded the judge’s commitment to the statutes to be a constitutional guarantee of the individual’s freedom and legal security and believed that only where there is a hiatus in a statute should the judge exercise his juridical creativity.
The new free-law school of thought acquired more and more adherents and made a major contribution to the defeat of legal positivism. In his Aus der Vorgeschichte der Freirechtslehre (1925), Kantorowicz traced the development of this trend from antiquity to the nineteenth century. He pointed out that the doctrine of free law was founded upon new methods and findings in the philosophy of law, in the study of juridical method, and in the study of the psychology of the judge. The influence of Neo-Kantianism is clearly perceptible in Kantorowicz’ writings on the philosophy of law and the theory of juridical method. Kantorowicz felt indebted, above all, to the Heidelberg philosopher Emil Lask. And his doctrine is akin to that of Gustav Radbruch, the Heidelberg legal philosopher, who had long been his close friend.
Like Radbruch, Kantorowicz espoused a relativism of values. In his “Staatsauffassungen” (1924a) and in “Legal Science” (Kantorowicz & Patterson 1928), Kantorowicz tried to specify the place of the science of law among the sciences. In his theory of science, he distinguished sciences of facts, sciences of meaning, and sciences of value. Although he finally classified jurisprudence among the sciences of value, he attempted to take into account its many aspects. In his posthumous book, The Definition of Law (1958), Kantorowicz dealt with the basic question, “What is law?” and demarcated law from other norm areas, “normal law” in particular. His definition of law is “a body of rules prescribing external conduct and considered justiciable” (ibid, p. 21).
Kantorowicz was one of the first German professors of law to espouse sociology, and he did so enthusiastically. Before his time Jhering, Gierke, Duguit, Gumplowicz, Menger, and others had emphasized the social aspect of the law. Kantorowicz was especially indebted to Max Weber for his socio-logical insights. Following in the latter’s footsteps, Kantorowicz tried to introduce sociology into juris-prudence. In a lecture entitled Rechtswissenschaft und Soziologie (1911), delivered at a Frankfurt convention of sociologists, he established limits for the two disciplines based on his classification of the sciences: jurisprudence was to be a science of values and sociology a science of facts. He urged that the two sciences, jurisprudence and sociology, complement each other. His “Aufbau der Soziologie” (1923) outlined the nature of sociology and located it among the sciences in such a way as to allow full play to all its tendencies, whether philosophically oriented or empirical.
In his article “Some Rationalism About Realism” (1934), Kantorowicz took issue with the empirical tendency then dominant in the United States. He criticized the views of the legal realists, who held that the factual takes precedence over the normative and were more concerned with what the courts were doing than with what could be deduced from the norms of the laws. He stressed that the “law is not what the courts administer, but the courts are the institutions which administer the law” (1934, p. 1250). Kantorowicz also charged the realists with laying too much stress on the notion of the social determination of all law and with regarding jurisprudence exclusively as an empirical sociological science. Kantorowicz’ essay was credited with having a moderating influence upon the realist tendency in American legal science.
Kantorowicz made significant contributions to the history of law as well as to legal theory. Throughout his career he wrote and edited books about the history of Italian criminal law in the Middle Ages and the early Renaissance (1904; 1919; 1907–1926; 1938). He also studied the history of the sources of Roman law in the Middle Ages. His painstaking work in the field of the history of law is evident in his writings Entstehung der Digestenvulgata (1910) and Einfiihrung in die Textkritik (1921). Finally, Kantorowicz was concerned with the nature and significance of the historical school of law of the nineteenth century. He was greatly attracted to the ideas of F. C. von Savigny, the founder of the historical school, as indicated by Was ist uns Savigny? (1912) and “Savigny and the Historical School of Law” (1937). He also wrote about other nineteenth-century representatives of legal science, such as Jhering and Max Conrat.
Kantorowicz was a leading student of criminal law. At an early date he realized the great significance of comparative criminal law in the evolution of jurisprudence. He also took a stand on the reform of German criminal law, trying to strike a balance between the “classical” and “sociological” schools of criminal law. In his book Tat und Schuld (1933), he developed the concept of universal doctrines of criminal law by taking a critical attitude toward the German science of criminal law. This book clearly shows how broad Kantorowicz’ concepts were and how much he was imbued with a constitutional way of thinking. [ See Criminal Law.]
Kantorowicz was a militant throughout his life and was passionately concerned with the problems of politics. In works such as Germany and the League of Nations (1924b) and The Spirit of British Policy and the Myth of the Encirclement of Germany (1929) he was primarily concerned with the problems of foreign policy and the idea of world peace.
1904 Goblers Karolinen-Kommentar und seine Nachfolger. Berlin: Guttentag.
1906 Der Kampf um die Rechtswissenschaft, by Gnaeus Flavius [pseud.]. Heidelberg: Winter.
1907–1926 Albertus Gandinus und das Strafrecht der Scholastik. 2 vols. Berlin: Guttentag; de Gruyter.
1910 Entstehung der Digestenvulgata: Ergdnzungen zu Mommsen. Weimar: Bohlaus Nachfolger.
1911 Rechtswissenschaft und Soziologie. Tubingen: Mohr.
1912 Was ist uns Savigny? Berlin: Heymann.
1919 Diplovatatius, ThomasDe Claris iuris consultis. Edited by Hermann Kantorowicz and Fritz Schulz. Berlin: de Gruyter.
1921 Einfiihrung in die Textkritik: Systematische Darstellung der textkritischen Grundsdtze fur Philologen und Juristen. Leipzig: Dieterich.
1923 Der Aufbau der Soziologie. Volume 1, pages 73–96 in Hauptprobleme der Soziologie: Erinnerungsgabe fur Max Weber. Munich and Leipzig: Duncker & Humblot.
1924a Staatsauffassungen: Eine Skizze. Volume 1, pages 102–114 in Jahrbuch fur Soziologie. Karlsruhe: Braun.
1925 Aus der Vorgeschichte der Freirechtslehre. Mannheim: Bensheimer.
1928 Kantorowicz, Hermann; and Patterson, Edwin W. Legal Science: A Summary of Its Methodology. Columbia Law Review 28:679–707.
(1929) 1931 The Spirit of British Policy and the Myth of the Encirclement of Germany. London: Allen & Unwin. → First published in German.
1933 Tat und Schuld. Zurich and Leipzig: Fiissli. 1934 Some Rationalism About Realism. Yale Law Journal 43:1240–1253.
1937 Savigny and the Historical School of Law. Law Quarterly Review 53:326–343.
1938 Kantorowicz, Hermann; and Buckland, William W. Studies in the Glossators of the Roman Law: Newly Discovered Writings of the Twelfth Century. Cambridge Univ. Press.
1958 The Definition of Law. Edited by A. H. Campbell. With an introduction by A. L. Goodhart. Cambridge Univ. Press. Ė Written in 1938; first published post-humously.