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ABSTRACT
Scholars have long recognized American jurists' idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the realists. Conversely, German jurists' doctrinal, idealistic, and apolitical approach can be tied to the relative failure of Germany's equivalent movement: the free lawyers. How to account for the seemingly inverse fate of realistic jurisprudential reform projects on both sides of the Atlantic? In this paper I employ transnational history to shed light on this particular instance of German-American divergence.
The best lack all conviction, while the worst / Are full of passionate intensity.
- William Butler Yeats, The Second Coming (1919)
It was an illustrious group of jurists that had come together in the sleepy southern university town of Heidelberg in the summer of 1910.1 For one, there was the "trouble-maker" Hermann Kantorowicz from Prussia, then Privatdozent at the University of Heidelberg, whose anonymously published manifesto Kampf um die Rechtswissenschaft (The Battle for Legal Science) had shaken up the German jurisprudential establishment only four years earlier.2 He was joined by his equally contumacious colleague Eugen Ehrlich who had travelled to Heidelberg from far-flung Czernowicz, located at the easternmost periphery of the Austro-Hungarian Empire. Ehrlich's various books, articles, and lectures had in the years preceding the Heidelberg meeting caused intellectual outrage similar to that of Kantorowicz's manifesto.
Since the turn of the century, Kantorowicz and Ehrlich had worked tirelessly on the generation and refinement of ideas associated with what subsequently came to be known as the deutsche Freirechtsbewegung-the German free law movement.3 Together, they stood for a kind of alternative jurisprudence that aimed at replacing nineteenth-century dogmatics, historicism, and systematicity with more realistic and lifeward approaches. In the minds of the two men, the Heidelberg meeting would have been the first of many aimed at creating structures capable of catapulting slogans like "free law," "free judicial law-finding," and "free legal science" into the German jurisprudential mainstream. This paper is concerned with why and how they failed. It is also concerned with what the fact that they tried tells us about their intellectual preoccupations as well as about the intellectual preoccupations of their juristic and nonjuristic contemporaries.