Review article
https://doi.org/10.3935/zpfz.69.56.04
Hermann U. Kantorowicz’s Legal Thought and the Era of National Socialism
Ivana Tucak
orcid.org/0000-0001-9694-2315
; Faculty of Law, Josip Juraj Strossmayer University of Osijek, Osijek, Croatia
Abstract
This paper is aimed at challenging the role of the anti-formalist criticism of law by Hermann Kantorowicz, one of the most prominent members of the Free Law Movement (Freirechtsbewegung) in German legal theory during the era of national socialism. Members of that movement highlighted the principle of justice and the necessity of the existence of legal gaps (lacunae), and invited judges to abandon legal positivism/formalism and replace it with a system which would take account of the social circumstances in which a legal dispute arises. A number of contemporary authors have questioned whether Kantorowicz and other members of the movement actually made what German judges did in Nazi Germany in the period from 1933 to 1945 possible or, in other words, whether they set the grounds for the “legal terror” which characterized that period. The paper is divided into two parts. The first part examines the fundamental concepts of law and legal science, and the role of judges, conveyed in Kantorowicz’s book The Battle for Legal Science. The second part explores a number of arguments published in distinguished legal journals, which support or contest the allegations against Kantorowicz and the Free Law Movement.
Keywords
free law; natural law; legal positivism; jurisprudence of concepts; legal gaps
Hrčak ID:
233801
URI
Publication date:
31.1.2020.
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