Towards the end of the 19th century, the comparative method found its way into German jurisprudence through the work of Joseph Kohler. Legal anthropologist,ethnologist and historian, Kohler was one of the most prominent representatives of neo-hegelianism viewing law as the expression of social culture. In particular, Kohler suggested that law was based on past culture that was consciously adapted to the present. Law (though inherently stable) became thus still susceptible to continuous improvement.
Kohler was especially intrigued by other cultures. Based on his mindset as neo-hegelianist, he thought that all ethnic groups have norms that can be seen as laws. He was particularly interested in the legal customs among the tribes of the German colonies. In order to shed a light on these customs, Kohler developed Fragebogen (questionnaires) that were distributed to administrators and missionaries in the German colonies. Unfortunately, although the questionnaires were dutifully answered and collected, the answers merely shed partial light on the legal customs of the indigenous tribes. The underlying reason was that the questions were drafted by German jurists that were unable to strip themselves of their own dogmatic. As a result, individual cases and real life situations were neglected in this search for general rules that did not exist.
Regardless of the eventual failure of the project, Kohler’s work can be seen as the beginning of the new era of comparative law in Germany. His activity overlapped with that of Ernst Rabel who lastingly shaped modern comparative law research. In addition, Kohler’s research focus as well as his methodology have recently experienced a renaissance. Thus, a modified and improved questionnaire method is used in the Common Core project. At the same time, legal ethnology and the interest in legal culture are very popular and relevant in current comparative law research.
Bibliography
- Edwin Borchart, Jurisprudence in Germany, 12 Columbia L Rev. 301-320 (1912).
- Grossfeld et al., Rechtsvergleicher – verkannt, vergessen, verdraengt (2000).
- E. Adamson Hoebel, The Law of Primitive Man (2006).
- Roscoe Pound, The Ideal Element in Law (1958).
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Dear Anita,
Thanks for blogging about Josef Kohler! You might have added that Kohler laid foundations for later scholars also by founding the Zeitschrift für vergleichende Rechtswissenschaft. As for his ethnographical c.q. legal anthropological project with Fragebogen, I think it documents in a great way the very bias of German lawyers and missionaries answering Kohler’s questions, and the Fragebogen itself reveals no doubt something of Kohler’s own perceptions of law and “primitive” society. It teaches us the lesson that we might be hampered ourselves, too, by biases we hardly acknowledge or actively blind out…
Yours respectfully,
Otto Vervaart
Thank you for your comment. You make a valid point – lawyers tend to be intrinsically biased by the law of the country they received their education in. And this is also one of the greatest challenges in comparative law research: to write objectively about foreign legal systems without being biased by one’s “own” law.
I too want to thank you for discussing Joseph Kohler, who was a great lawyer and thinker. I had learned of him by a citation on Phillips O’Hood’s “Shakespeare and the Lawyers”. His work, “Shakespeare vor dem Forum der Jurisprudenz” (1883) was a great contribution to Shakespearean studies by a lawyer. He was discussing the legal problems in Shakespeare’s plays and formulating Shakespeare’s approach to law.
His ethnological approach was also new to his age. He was also a very good reader of antropologists, he cites Lewis Henry Morgan in his discussion on kinship terminologies and James George Frazer in his discussion of totemism. You emphasize his contribution to comparative law too clearly.
Thank you so much for your interesting comment that further points out the intellectual scope of Kohler’s thinking and writing.