
… but Life gives Spirit?
Debating “Law” and “Life” in American and German Constitutional Legal Scholarship ca. 1900–1930- Authors:
- Series:
- Young Academics: European Legal Theory, Volume 2
- Publisher:
- 2024
Summary
This book is a comparative study of the development of constitutional legal thought in Germany and the Unit-ed States at the beginning of the twentieth century. During this period, “life” was a common trope in the legal language of the time. Many legal scholars argued that “law” was disconnected from “life” – and they proposed various strategies to reconnect the two spheres.These developments are set against the backdrop of the enormous political, social and cultural changes that took place around 1900. In Germany, the focus is on the methodological debates of the Weimar period. In the United States, the focus is on the emergence of social jurisprudence and legal realism. Marius Mikkel Kjølstad is a lecturer in legal history at the University of Oslo. He wrote his doctoral thesis on Norwegian state theory in the 19th century.
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Bibliographic data
- Copyright year
- 2024
- ISBN-Print
- 978-3-68900-212-1
- ISBN-Online
- 978-3-68900-213-8
- Publisher
- Tectum, Baden-Baden
- Series
- Young Academics: European Legal Theory
- Volume
- 2
- Language
- English
- Pages
- 226
- Product type
- Book Titles
Table of contents
- Titelei/InhaltsverzeichnisPages I - XVI Download chapter (PDF)
- 1.1 “Life” – a socio-cultural theme at the beginning of the 20th century
- 1.2 A living topic
- 1.3 The life of this study – a brief overview
- 2.1 Introduction
- 2.2 The historical aspect: Understanding and interpreting legal pasts
- 2.3 The comparative aspect: Analogical comparisons and actual influences
- 2.4 The legal aspect: Selection of texts and construction of contexts
- 3.1 Introduction
- 3.2.1 The rise of the interventionist state
- 3.2.2 Legal paradigms in “the private law society”
- 3.2.3 Carl Friedrich von Gerber and Paul Laband: The separation of “law” and “life (I)
- 3.2.4 Hans Kelsen: The separation of “law” and “life” (II)
- 3.3.1 Counter-voices in the Imperial years and the convulsions around 1900
- 3.3.2 A contextualizing detour: free law movement and jurisprudence of interests
- 3.3.3 The Weimar context: Germany in a state of crisis
- 3.3.4 Erich Kaufmann: Neo-Kantianism as a dead end
- 3.3.5 Rudolf Smend: Approximation of “law” and “life” through the concept of integration
- 3.3.6 Heinrich Triepel: Approximation of law and the life of politics
- 3.3.7 Carl Schmitt: Transformation of “law” into “life” through decisions
- 3.4 Brief summary
- 4.1 Introduction
- 4.2.1 Industrialisation of society and modernisation of the legal system
- 4.2.2 Constitutional law: The Fourteenth Amendment and the infamous due process of law
- 4.2.3 A bird’s view on some of the legal thinkers in the period: Christopher Columbus Langdell and James C. Carter
- 4.2.4 A bird’s view on constitutional scholarship in the period: Thomas M. Cooley and Christopher G. Tiedeman
- 4.3.1 Oliver Wendell Holmes: Experience as the life of the law
- 4.3.2 Roscoe Pound: “Law” and “life” as a question of continuity and change (I)
- 4.3.3 Benjamin N. Cardozo: “Law” and “life” as a question of continuity and change (II)
- 4.3.4 Felix Frankfurter: Law as the reading of life
- 4.3.5 Legal realism and its context: The Restatement Project and proposals for educational reform
- 4.3.6 Karl N. Llewellyn: In the Beginning was Behaviour
- 4.3.7 Jerome Frank: In the Beginning was Certainty
- 4.3.8 “The Living Constitution” and the Supreme Court’s volte-face
- 5.1 Introduction
- 5.2 The rational life of the law
- 5.3 A tale of two legal cultures – the debates compared
- SourcesPages 209 - 226 Download chapter (PDF)




