"The Law That We Feel Living Within Us": German Jurists and the Search for "Life" in Modern Legal Science, 1900-1946

Abstract

“The Law That We Feel Living Within Us” challenges established narratives of continuity and rupture in modern German legal history. Postwar scholars claimed that Germany’s long-standing tradition of legal positivism, based on the maxim “law is law,” had left jurists susceptible to Hitler. Subsequent scholars, by contrast, analyzed the Third Reich in terms of “bionomy,” a novel kind of race-jurisprudence based on the maxim “life is law.” Charting a middle ground between these views, my dissertation demonstrates that German law was life-law long before the Nazis came to power. Life, leading up to the Third Reich, had implied not so much race as flexibility of method, structure, and procedure. Though life continued to have that meaning past 1933, the Nazis added an extra dimension: blood. Legal vitalism, for Wilhelmine and Weimar jurists, had been compatible with legal science. Hitler’s governing elites, however, tried to gradually eradicate the discipline and its practitioners. Nothing, and no one, could come between the German people and the law they felt in their hearts. My dissertation explores changing meanings of life in law through the medium of life as biography. Based on published and unpublished sources from three continents, I tell the story of a cohort of German jurists, born between 1877 and 1878, who were central members of the so-called free law movement: Gustav Radbruch, Hermann Kantorowicz, Max Rumpf, Theodor Sternberg, and Justus Wilhelm Hedemann. Drawing on the life sciences, life philosophy, and life reform, all five criticized conventional legality for being abstract, unworldly, and out of touch with life. Through scholarship and social activism, they popularized the idea that law was not what the Code said it was but what reality demanded. Their maxim “life is law” transformed German jurisprudence from the bottom up—so much so that it still captivated Nazi jurists a generation later. By 1933, some free lawyers were living as exiles in Japan and the U.S., while others were working their way up the Nazi career ladder. My dissertation traces how all five of my protagonists reckoned with uncomfortable parallels between their youthful free law ideas and Nazi life-jurisprudence.