Comparative Law in Late 19th Century German Jurisprudence

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).