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A Treatise of Legal Philosophy and General Jurisprudence Volume 12 Legal Philosophy in the Twentieth Century: the Civil Law Worl A Treatise of Legal Philosophy and General Jurisprudence Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World A Treatise of Legal Philosophy and General Jurisprudence Editor-in-Chief Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy Advisory Board Norberto Bobbio † Ronald M. Dworkin † Lawrence M. Friedman, Stanford Law School, Stanford University, USA Knud Haakonssen, Department of History, University of Sussex, UK Associate Editors Gerald J. Postema, Department of Philosophy, The University of North Carolina at Chapel Hill, USA Peter G. Stein, Emeritus Regius Professor of Civil Law, University of Cambridge, UK Assistant Editor Antonino Rotolo, Department of Legal Studies and CIRSFID, University of Bologna, Italy A Treatise of Legal Philosophy and General Jurisprudence Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World Tome 1: Language Areas edited by Enrico Pattaro CIRSFID and Law Faculty, University of Bologna and Corrado Roversi Department of Legal Studies and CIRSFID, University of Bologna with contributions by Mikhail Antonov, André Jean Arnaud, José Manuel Aroso Linhares, Manuel Atienza, Carla Henriete Bevilacqua Piccolo, Uta Bindreiter, Vihren Bouzov, Alexander Bröstl, Pierre Brunet, Agostino Carrino, Veronique Champeil-Desplats, Svein Eng, Carla Faralli, Tomasz Gizbert-Studnicki, Jean Louis Halpérin, Jasminka Hasanbegoviü, Carlos Miguel Herrera, Hasso Hofmann, Adrian-Paul Iliescu, Federico Lijoi, Susanna Lindroos-Hovinheimo, Ronaldo Macedo, Luís Meneses do Vale, Eric Millard, Ivan Padjen, Henrik Palmer Olsen, Marijan Pavþnik, Krzysztof Páeszka, Benjamín Rivaya, Antonino Scalone, Alessandro Serpe, Ana Margarida Simões Gaudêncio, Arend Soeteman, José de Sousa e Brito, Constantinos Stamatis, Giuliana Stella, Simina Tănăsescu, Mark Van Hoecke, Csaba Varga, Rodolfo Vázquez, Jan WoleĔski Assistant Editors: Erica Calardo, Francesca Faenza, Nicoletta Bersier Ladavac, Migle Laukyte, and Filippo Valente Editors Enrico Pattaro Corrado Roversi CIRSFID CIRSFID University of Bologna University of Bologna Bologna, Italy Bologna, Italy ISBN 978-94-007-1478-6 ISBN 978-94-007-1479-3 (eBook) DOI 10.1007/978-94-007-1479-3 Library of Congress Control Number: 2016945793 © Springer Netherlands 2016 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer Netherlands Niente è fatto finché tutto non è fatto. Nothing is done until everything is done. (Pietro Nenni, Diari, 25 July 1944) TABLE OF CONTENTS A Note on the Authors and the Editors XXI General Editor’s Preface XXXIII Preface by the Editors of Volume 12 (by Enrico Pattaro and Corrado Roversi) XXXV Part One - The German-Speaking Countries Premise (by Agostino Carrino and Hasso Hofmann) 3 Introduction: Philosophy of Law and Conceptions of the World (by Agostino Carrino) 5 Chapter 1 - The Rebirth of Legal Philosophy within the Frame of Neo-Kantianism (by Agostino Carrino) 13 1.1. Neo-Kantianism of the Baden School as a Philosophy of Values: Windelband, Rickert, and Lask 13 1.2. The Neo-Kantianism of the Marburg School: Cohen, Natorp, Cassirer 16 1.3. Rudolf Stammler’s Social Idealism 18 1.4. Emil Lask’s Philosophy of Law 23 1.5. Ethics and the Science of Law in Hermann Cohen 26 1.6. Ethics and Law in Paul Natorp (by Federico Lijoi) 29 1.7. Ernst Cassirer and Natural Law 31 1.8. Law and Worldviews: Gustav Radbruch’s Three-Dimensional Conception of Law 34 1.9. Sovereignty and Legal Consciousness in Leonard Nelson’s Legal Philosophy 39 1.10. Fritz Münch’s and Max Ernst Mayer’s Philosophy of Culture 42 1.10.1. The Philosophy of Culture 42 1.10.2. Fritz Münch 45 1.10.3. Max Ernst Mayer’s Philosophy of Law 47 VIII TREATISE, 12 (1) - 20TH CENTURY: THE CIVIL LAW WORLD Chapter 2 - Logistic Normativism: The Wiener rechtstheoretische Schule (by Agostino Carrino) 51 2.1. Precursors of the Pure Theory of Law: František Weyr 51 2.1.1. Introductory Remarks 51 2.1.2. The Law as a Unitary System 51 2.1.3. Validity and Causality 53 2.1.4. The Autonomy of Legal Science 54 2.1.5. Public Law and Private Law 55 2.1.6. The Hierarchical Structure of the Legal System and the “Metanormative” 57 2.1.7. Sein and Sollen 58 2.1.8. Teleology 60 2.1.9. The Practice and Theory of Law 61 2.1.10. On the Concept of Sovereignty 62 2.2. Precursors of the Pure Theory of Law: Hugo Krabbe (by Giuliana Stella) 65 2.3. Hans Kelsen’s Normativist Logicism (from 1911 to 1934) 72 2.3.1. Substance and Function in Kelsen’s Philosophy of Law 72 2.3.2. The Problem of Legal Science in Kelsen’s Pure Theory of Law 83 2.3.2.1. The Disavowal 83 2.3.2.2. The Irrationalism Marking the Second Phase of the RRL 89 2.3.2.3. The Aporias in the RRL 93 2.3.2.4. What Is the RRL Good For? 99 2.3.2.5. A Pessimistic Anthropology 103 2.3.2.6. The Basic Norm: Critical Idealism or Critical Positivism? 105 2.3.2.7. Formal Logical Natural-Law Theory and Pacifism 108 2.3.2.8. Kelsen and Hegel 110 2.3.2.9. Kelsen’s Theory of Law as a Logic of Law 112 2.3.2.10. Between Purity and Reality: The Theory of Legal Interpretation in the RRL 114 2.4. The Vienna School of Law: Merkl and Verdross 116 2.4.1. Adolf J. Merkl and the Hierarchical Construction of Law 116 2.4.2. Alfred Verdross and the Grundnorm of International Law 119 2.5. Kelsen’s Critics 124 2.5.1. Introduction 124 2.5.2. Fritz Sander (by Federico Lijoi) 124 2.5.3. Alexander Hold von Ferneck (by Antonino Scalone) 129 TABLE OF CONTENTS IX 2.5.4. Ernst Schwind: Between History and the Philosophy of Law 131 Chapter 3 - The Sociological Philosophy of Law as an Alternative to Normativism (by Agostino Carrino) 133 3.1. Hermann Ulrich Kantorowicz and the Free Law Movement 133 3.2. Ignatz Kornfeld and the Law as Force 139 3.3. Eugen Ehrlich and the Foundation of Legal Sociology 142 3.4. Karl Georg Wurzel and the Social Dynamics of Law 149 3.5. Ernst Seidler and Empirical Social Science 152 3.6. Legal Science and Psychology According to Wilhelm Wundt (by Federico Lijoi) 154 Chapter 4 - From Criticism to the Phenomenology of Law (by Giuliana Stella) 157 4.1. Introduction: The Genesis of the Method 157 4.2. Adolf Reinach and the A Priori Elements of Law 159 4.3. Gerhart Husserl and Law between Time and History 165 4.4. Felix Kaufmann: The Form and Meaning of Legal Norms 174 4.5. Fritz Schreier and Legal Interpretation 180 Chapter 5 - From the Criticism of Neo-Kantianism to Neo-Hegelianism in the Philosophy of Law (by Agostino Carrino) 189 5.1. The Crisis of Neo-Kantianism in Erich Kaufmann’s Philosophy of Law 189 5.2. Two Precursors of Legal Neo-Hegelianism: Josef Kohler and Fritz Berolzheimer 193 5.3. Julius Binder, Founder of the Neo-Hegelian School 194 5.4. Karl Larenz up to 1933 202 5.5. Walther Schönfeld: From Idealistic Personalism to Christian Theology of Law 204 Chapter 6 - Law and the State in the Conservative Revolution (by Agostino Carrino) 209 6.1. Law and the State in Oswald Spengler 209 6.2. Law and the State in Othmar Spann’s Universalist Philosophy 212 6.3. Nihilism, Power, and Bourgeois Law in Ernst Jünger 216 6.4. Rudolf Smend and the Constitution as “Integration” 220 X TREATISE, 12 (1) - 20TH CENTURY: THE CIVIL LAW WORLD Chapter 7 - Marxism in the Philosophy of Law (by Agostino Carrino) 223 7.1. Anton Menger and “Ex Cathedra Socialism” 223 7.2. Austro-Marxism 224 7.2.1. Karl Renner 225 7.2.2. Max Adler 230 7.3. Georg Lukács, Karl Korsch, and “Western Marxism” 232 7.3.1. The Concrete Totality in Georg Lukács’s History and Class Consciousness 233 7.3.2. Karl Korsch: From the Free Law Movement to the Materialist Critique of Law 237 7.4. Hermann Heller: Socialism, the State, and Culture 241 7.5. Franz L. Neumann’s Critical Theory of the State 244 Chapter 8 - From Norm to Decision to the Concrete Order: The Legal Philosophy of Carl Schmitt (by Agostino Carrino) 247 8.1. Constitutional Theory 247 8.2. On European Jurisprudence 256 Chapter 9 - Nazi Philosophy of Law and of the State (by Agostino Carrino) 269 9.1. Introduction 269 9.2. Race as the Foundation of Law: Helmut Nicolai and Others 270 9.3. The Fight against Rights 272 9.4.
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