[author]Klaus William C
[content]
Carl Larenz's Life, Works, and Ideological Context
*Author Klaus William Canaris
Associate Professor, School of Law, East China Normal University
1.1 "Initially Hegel" - Equivalence as Objective Responsibility
Initially, it was Hegel. There is no better sentence than this one, which is more suitable for starting a report on Karl Larenz's academic career. On April 23, 1903, Larenz was born in Wessel on the banks of the Rhine River. His father, also known as Carl Larenz, later served as the Chairman of the Juridical Committee of the Berlin High Administrative Court in Prussia. Starting from the winter semester of 1921 to 1922, Larenz studied law, economics, and history at the universities of Berlin, Marburg, Munich, and G ö ttingen. Later, he quickly developed a strong interest in philosophical issues. Out of dissatisfaction with the Neo Kantianism that was prevalent in German universities at the time (which was a strict formalism, especially the strict formalism represented by Stammler's philosophical views), Larenz turned to the legal philosopher Julius Binder (1870-1939) at the University of G ö ttingen and joined the Hegelian philosophical camp. In 1926, after completing his first national judicial examination at the Cele High Court, he completed his doctoral studies under the guidance of Binder in the same year.
His doctoral thesis is titled 'Hegel's Theory of Attribution and the Concept of Objective Attribution'. The first name in Larenz's published work, which is actually the first word, is "Hegel," and his doctoral thesis still ends with "Hegel. The 24 year old young scholar confidently called out, "It depends on whether the future German legal philosophy agrees or does not agree with Hegel's views
Nowadays, the market is filled with published doctoral dissertations, which are often redundant; But the public publication of doctoral dissertations in the 1930s was an extraordinary achievement at that time. The paper was reprinted in 1970, further deepening its achievements. In fact, the article creatively showcases fruitful ideas in clear language, surpassing the level of the time, and even today, we can benefit from it: Larenz realizes that the so-called "equivalence" (Ad ä quanz) is not a criterion for causal relationships, but an objective criterion for attribution; So more importantly, he endowed the latter with an eternal position in the doctrine of damage compensation law. We take this for granted today, and at that time, it held an outstanding position in academia.
Through this doctoral thesis, we have clearly seen two iconic talents of Larenz: firstly, in that era, no second private law scholar could implement philosophical views into the category of dogmatism like him; Secondly, he has a unique talent for accurately expressing problems and their solutions, and based on the spiritual guidance of his spiritual mentor Hegel at the time, "accurately expressing" them as a new concept.
1.2 Meaning Representation as a "Validity Representation" - A Prelude to Analyzing Linguistic Philosophy
These were once again proven in Larenz's professorship paper "Methods of Interpretation of Legal Acts" published in 1930. The main contribution of this article lies in the so-called validity theory that he developed. According to this theory, the expression of intention is not characterized as a notice of the inherent intention of the person expressing the intention, but rather as a legal consequence that becomes effective. This theory has also gained widespread recognition and become the current general theory.
Only when this academic contribution is viewed in the context of analytical language philosophy mainly influenced by J.L. Austin (1911-1960) and John Searle (1932) in the 1960s can its true status be clearly recognized. This theory elaborates on the special structure of sentences, which are not simply composed of "expressions", but rather consist of promises, commands, or similar contents, and are regarded as "implementing discourse", corresponding to "narrative discourse". Based on this, implementing discourse is an act of expression, which produces the desired realization of the meaning in the discourse. The legal act as an effective order also belongs to it and becomes a typical example of implementing discourse; Because the act of speaking itself (or implied, also known as the "act of speaking"), rather than the inherent meaning conveyed by it, makes the legal consequences effective. Therefore, in the true paradigm sense, legal acts actually involve "how to act with words". He successfully performed the prelude to analytical philosophy by elaborating on the theory of effectiveness, and with a highly predictive perspective, gained insight into the core viewpoints of the latter. By using the professional term 'effectiveness representation', he optimally expresses these viewpoints' accurately '. In this sense, it can be said that this is a "legal discovery".
Werner Hume (1908-2009) refuted, stating that according to Savini's understanding, "the expression of intention clearly belongs to the expression of validity based on its content. In the postscript to the second edition of the book in 1966, Larenz countered with a gentlemanly tone: "If Frome believes that 'validity theory' is not the same as the correctly understood 'meaning theory', then I will not argue with him about it. Anyway, 'meaning theory' is not always understood as Frome wants to understand it." This is undoubtedly correct, as it is reflected in the views of important private law scholars, For example, Andreas von Tuhr (1864-1925) believed that meaning is "an act aimed at making the process of the inner world known to the outside world, an act intended to make others aware of one's own inner world. In fact, this expression fundamentally misunderstands the meaning expressed as a valid expression. Although there are also suggestions for accurately expressing this viewpoint, it was not until Larenz confirmed through philosophy that he correctly expressed the characteristic of meaning expression as a valid expression, and it is very consistent with the analytical philosophy of language that emerged decades later. Furthermore, it was not until his appearance that this persuasive concept was successfully created.
1.3 Contemporary legal philosophers and national philosophy, as well as "wanting to stay in the dark night that people call enlightenment"
Scholar Larenz, who is only 27 years old, has demonstrated his outstanding academic status through two early works. In today's words, this is outstanding. One year later (he did not hesitate to give up his legal internship training and the second national judicial examination), he bravely ventured into higher demanding research and published a book of 100 pages titled 'Contemporary Legal Philosophy and National Philosophy'. Although I don't think it's necessary to elaborate on the book, there are at least two aspects worth paying attention to.
Although it is very obvious, I should still emphasize that Larenz repeatedly emphasized the "revival of Hegel," and therefore strongly sought to find connections among contemporary legal philosophers. Consistent with it, he clearly distanced himself from the "Enlightenment" and his basic attitude towards the relationship between the state and individuals - Lenz characterized the latter's basic attitude as "individualism". So, he criticized Kant because he himself "cannot yet be liberated from the abstract rationalist thinking of enlightenment". Similarly, Larenz believes that Radbruch was influenced by Neo Kantism and held a relativistic attitude towards value cognition. Therefore, Larenz opposes Radbruch, stating that these values "want to stay in what people call the dark night of enlightenment".
Arthur Kaufmann (1923-2001) discussed this idea in his farewell speech at the University of Munich in 1991. In addition, the topic of the report pertains to the later ideological trends of the Weimar Republic and is accurately referred to as the "eternal reproduction of irrationalism", criticizing one form of "fascist irrationalism" and continuing to write:
It is actually no longer irrationalism (but it is also irrationalism that drove the liberal law movement, although it was once considered super rational, pseudo philosophical, rather than anti rational), but rather a cold thinking, naked irrationality, which is the opposite of enlightenment, namely anti enlightenment. If anyone, like Gustav Radbruch, still adheres to the values of reason and reason, they will inevitably be ridiculed as "wanting to stay in the dark night that people call enlightenment" (in the words of Karl Larentz).
Hastily linking Larentz with fascist ideology here. What Kaufman did not mention (which is also a fact that I have not yet pointed out based on the theatrical techniques of this report) is that "wanting to stay in what people call the dark night of enlightenment" is Hegel's language, and even explicitly stated by Larentz. If we consider this and that it was 1931, Larenz expressed a completely different meaning: here, it is a Hegelian who used his "master" words to attack Kantian believers. Even if I viewed the derogatory approach of the Enlightenment movement as critically as Kaufman did, I did not see any traces of "cold thinking, naked irrationality". Instead, it was just a normal debate between philosophical factions at the time. In addition, Larenz was still a 28 year old lecturer at the time, while Radbruch was a highly respected figure who had served as several Imperial Justice Ministers and was one of the most famous and influential German jurists at that time. Finally, from my perspective, from a comprehensive observation perspective, there is another detail, which is that Radbruch refuted the quote in his preface to the third edition of his 1932 "Philosophy of Law", while Larenz deleted the quote from Hegel without reservation in his 1935 "Contemporary Philosophy of Law and National Philosophy" (he was already a professor at Kiel University at the time, and Radbruch was already exiled).
Even if I read the first edition of "Contemporary Jurisprudence and National Philosophy" in 1931 again, I did not see any specific Nazi ideas. At the same time, the Kaufman discourse cited, although - perhaps precisely because - it is based on a misconception, is particularly important in my opinion. In this context, the opening sentence "Initially Hegel" seems to be an ominous omen. Because a deeper dimension has emerged here, Kaufman may not be clear about it or even seem to have overlooked it. Karl Popper's exploration of this topic in his book 'Open Society and Its Enemies' caught my attention, as Hegel was one of the' enemies'. After I met Larenz, it can be said with certainty that based on my evaluation, he will no longer borrow the phrase 'wanting to stay in the dark night that people call enlightenment'.
2.Fall into Nazism
Let's move on to the dark chapter: Larenz falls into Nazism. I will first make three preliminary explanations regarding this.
2.1 Three prior instructions
Firstly, I am not a historian, so I do not possess their tools. Furthermore, even though this series of reports does raise issues of contemporary historical significance, its focus is still not on modern history. Therefore, I will not write a fragment of the "Nazi period of German legal history" or similar, but only one stage of Larenz's academic career. At the same time, do not forget that he was one of the most important representatives of the German legal community before and after 1949.
Secondly, I am a student of Larenz, and I have maintained in-depth exchanges with him for over a decade, both academically and personally. Nevertheless, I naturally strive to speak "sine ira et studio" on this politically and emotionally charged topic. I hope that the following audience members will not rely solely on the articles published by my mentor during the Third Empire to criticize their distorted values and then accuse me. Even if I had a premonition about this, I wouldn't back down because of this risk. In my opinion, if Larenz's remarks during that era were misunderstood in critical literature, as a scholar, I would clearly argue and express my attitude. Additionally, I will strictly maintain distance when necessary.
Thirdly, from 1933 to 1943, there were many works published by Larenz. If I were to try to interpret all of these works, this report would have no particular focus and unclear center. At the same time, you will also gain very little. Therefore, I will focus on a core issue, which is the paradigm issue: Larenz's often heavily criticized view on the concept of power and capacity. In addition, I would like to discuss two subsidiary issues, which respectively involve normative works and a work that has not yet received attention in the later stages of the Third Empire. The former was his most famous article of the year, which was a small book titled "Content and Methods of National Legal Thought" in 1938, while the latter was a lengthy paper titled "Morality and Law" in 1943.
2.2 Larenz's personal certificate
As is well known, Larenz belongs to the so-called "Kiehl school of thought". The Nazis hoped that this school would become the main force in spreading and implementing Nazist ideas. So, as people often say, it functions as a "stormtrooper".
In a letter written to Ralf Dreier (1931-2018) on February 25, 1987, Larenz recounted his tenure at Kiel University and his role in the Nazi era. The letter was soon made public after Larenz's death. The letter mentions an article by Derrell, At the beginning, he wrote, "Since you have carefully explored Binder's students and Neo Hegelism, I have decided to let you know why I have formed contradictory and actually incomprehensible views." He continued, "We, like most people, have a 'national' belief, but believe that Nazi elements are not enough to make things happen After saying a few words about the economist Jessen (according to Larenz, this person "must have connections with Prussian ministries"), he mentioned the key to the problem. Below, I quote a long paragraph from the letter without making any substantial deletions from the text:
On May 2, 1933, Mr. Huber (Ernst Rudolf Huber, 1903-1990, representative of the Kiel School of State Law and father of contemporary civil law scholar Ulrich Huber), Mr. Dahm (1904-1963, representative of the Kiel School of Criminal Law), and I met together - we had not known each other before. Due to notorious laws, the faculty seat of Kiel University has recently been emptied, so we have been appointed as representatives of the university's faculty seat. This was originally a brief routine, but then each of us was called aside by a young man to talk. This young man seems to be the spokesperson's assistant, named Wilhelm Ahlmann (1895-1944). He comes from the family of a very famous Kiel banker and has become blind. Afterwards, we learned that at the end of World War I, he became blind in order to save his own life. Based on my speculation today, Jessen will hire him to a government department, and everything he says to us has already been discussed with Jessen in advance.
Aerman said to me: The Nazis hold power irreversibly, and it is necessary to put them on a rational path. So far, their attitude towards law and the state is not acceptable to the public. In order to spread these to them, it is necessary to make them understand the philosophy of law and the philosophy of the state, as I have demonstrated in my works on the philosophy of law and the philosophy of the state in German idealism, in this way, to rediscover them and accept them. This should be my task.
Today, what he said is completely absurd and unrealistic. However, there were indeed many people at that time who believed that Nazism still had plasticity. Perhaps because he is blind, Aerman's words are highly suggestive Although I didn't know how to carry out his "task" at the time, his words left me quite shaken. After the war, Hubert and I once talked about this matter. Alman once told him that he should propose a constitution for the Nazis so that they could be bound by it.
There is another thing that motivates me to strive to implement Alman's (and Jason's?) plan.
Then Larenz recounted in detail how he took agents Richard Kroner (1884-1974) and Hermann Glockner (1896-1979) to become the editor in chief of the Logos magazine, and said, "I thought at the time that I had a tool in my hand to implement the plan that Alman had proposed." Finally, Larenz said:
I certainly know today that I shouldn't have listened to Aerman's words. I don't want to exaggerate. However, if anyone claims today that 'Nazism relies on Hegel' or 'Hegel's supporters have exerted some influence on it', these are unfounded legends.
Based on the following two reasons, I presented this letter in such detail (I only learned about it after Dreyer published his article). Firstly, it is the only written document by Larenz that elaborates on his actions during the Nazi rule. Secondly, it is basically consistent with his relevant (rare) explanations of me, and to the best of my knowledge, it is also consistent with his explanations of other students. He has always held hope that he can make Nazist countries adhere to the minimum principles of the rule of law and prevent it from corrupting into an unjust state; He must have the same caliber as the Nazis in order to have the opportunity for them to accept his ideas. At the same time, he also emphasized in a stern self-criticism manner that his wishes were completely illusions, and as he stated in his letter to Dreyer, his attitude towards Nazism was "contradictory and actually incomprehensible." Larenz and I, like this letter, lacked explanations about the "Jewish Holocaust" or simply oppressing and discriminating against Jews (which I believe is a major flaw).
Let's focus on analyzing some representative works of Larenz at the time, paying attention to their relationship with the basic attitudes conveyed in Larenz's letters and oral explanations.
2.3 Paradigm issues: power capacity and racial ideology
2.3.1 As a "national comrade" as a rightful comrade and as a "guest" as a non rightful comrade
During the Nazi era, Larenz was most harshly criticized for his views on the issue of power and ability. Let's first take a look at what he himself said, which is a controversial paragraph written in 1934:
I possess rights, obligations, and the possibility of building legal relationships not because I am an individual, a human being, or a bearer of abstract general rationality, but because I am a member of a community endowed with a form of life by law, that is, a member of a national community. Only members living in the community, as national comrades, can individuals possess personality. Only when they become members of the community, do they possess respect Yan, as a comrade of rights, gains respect. Becoming a rights comrade refers to enjoying legal protection and specific social status, that is, the privilege of being a national comrade. In fact, it can be said that this is not due to the special qualities of people, but rather the special qualities of ethnic comrades. Only ethnic comrades are comrades in power; Only those with German ancestry are national comrades. This sentence can replace Article 1 of the German Civil Code, which stipulates that 'anyone' has the right to capacity, and become the foundation of our legal order People outside the national community are not protected by law and are not rights comrades
These sentences actually create a chilling sense of disgust for us, as they negate the most fundamental achievements in European legal thought and the foundation of human nature. I will discuss this later. Meanwhile, Larenz had more ideas, and he continued to write:
Of course, as guests, outsiders can and will be seen as having equal status with rightful comrades. Foreigners on German land are subject to the rule of the German state, enjoy protection of life and health, as well as property rights, and participate in legal interactions. He is certainly not an object of rights. We must abandon the thinking of either black or white, which means that a person is either a person and a subject, or an object of rights. Non rightful people are the subject of rights and enjoy limited rights and abilities, which are granted to them by the ethnic community as a legal community within a specific scope. Unlike ethnic comrades, he does not become a member of the community based on birth and thus enjoys rights. Even if given the power and ability, he cannot fully participate in the purity of the community. By constantly repeating this life, the law that serves as the order of the community can be formed and maintained. He cannot become a judge, city councilor, or other public official; He is excluded from the most important legal status. For example, he cannot become the heir of a hereditary farm. Therefore, even if foreigners are protected by our laws, they are not rights comrades of Germany. He participated in legal interactions and their construction on a large scale, but was still regarded as a guest.
Although this paragraph cannot eliminate the disgust generated by Larenz's explanation in the first part cited above, it clearly supplements it in a completely opposite direction. Because 'non rightful comrades' were not only individuals with foreign nationality, but also the' non Aryan 'often mentioned by Larenz at the time, clearly endowed with' limited capacity for rights', especially 'protection of life and health', and even 'property rights'. The excluded rights were only to hold positions as judges and city councilors or become heirs to hereditary farms. Larenz emphasizes the status of "guests" in a striking way, which has positive significance in this context. In terms of this, it must be realized that in 1935, guests were "sacred", which was the intellectual wealth of "Germany". This idea still existed at that time, which far exceeded the imagination of most people today.
Therefore, I believe that when discussing Larenz's attitude towards Nazism as described in his letter, not mentioning the discourse on power in the second part, as done by H. H. Jakobs et al. (1934), is by no means scientifically correct. Even ignoring the one-sided and unfair situation that arises from this, Larenz will plausibly emphasize the protection of life and health, as well as the property rights of non rightful comrades, as well as the specific positions that are only excluded, such as judges, city councilors, and inheritors of hereditary farms, in an attempt (even if it is completely childish in politics) to avoid evil from happening.
More interesting, richer in content, and ultimately criticized, it is the way that Bemd R ü thers (1930) handled this paragraph. He first quoted the sentence 'Only ethnic comrades are comrades in power; only those with German ancestry are ethnic comrades'. Subsequently, unlike Jacobs, he correctly quoted 'of course, as a guest, outsiders can and are seen as having equal status with rightful comrades'. However, without any analysis, he added that the two quoted paragraphs were "consistent in meaning with Articles 4 and 5 of the Nazi German Workers' Party's program". In fact, this explanation is only correct for the paragraph written by the first quoted Larentz, not for the second quoted paragraph. The reason is that Article 5 of the program stipulates: "Non German citizens can only live in Germany as guests and are subject to legislation specifically targeting foreigners." Therefore, Wei De Shi kept silent and did not mention the opposite trend of the term "guest" in Larentz's writing, which was mainly designed as a tool to protect non rightful comrades. In addition, when we delve into Larentz's "concrete general concept" (kontrellgemeiner Begriff) doctrine, like Wei Deshi, we should not be silent about his concretization. These concretizations on the one hand are protection of life and health, property rights, and on the other hand exclude serving as judges, city councilors, and inheritors of hereditary farms. Only through these concretizations can we recognize the original meaning of the concepts used by Larenz.
2.3.2 "Legalization of the deprivation of Jewish private law rights" (Zelner)?
Before I delve deeper into Wei Deshi's viewpoint, I must once again discuss the issue of Larentz's theory of power and ability. Wolfgang Z ö llner (1928) was a colleague whom I highly respected, and unfortunately, during his report on his mentor Alfred Hueck (1889-1975), he also chose to discuss Larenz. He said this:
Carl Larenz created the infamous "On the Content and Methods of National Legal Thought" (1938), advocating for the deprivation of Jewish rights in the field of private law and attempting to prove its legitimacy. When I first read the article, I was quite shocked, and now it feels like a thorn in my throat. Before that, I mainly got to know Larenz through his amazing research on debt law. I thought he was a person full of love and kindness, maybe even a fly couldn't bear to be swatted to death. Just as we find it difficult to understand the behavior of famous families torturing and slaughtering people in concentration camps, the massacre of famous jurists using pens as knives is still puzzling to this day.
However, as long as one has read the original sentence of Larenz in the cited works, it will inevitably lead to confusion about this viewpoint. Larenz wrote:
It should be clearly emphasized that ethnic legal ideology does not deny the rights, abilities, and personality of outsiders. Article 1 of the German Civil Code is therefore not affected; However, after birth, people acquire not abstract "general power abilities", but specific (as racial comrades or outsiders) power abilities.
Based on this statement, it is difficult for me to understand why Zelner claims that Larenz defended the deprivation of Jewish rights in the field of private law through this work, taking into account its legal origins. What people expect is at least word by word citation and detailed analysis, rather than just recalling the "quite shocking" reading that occurred more than a decade ago. Therefore, he owes his deceased colleagues and academic circles an explanation for Zelna's statement of "using the pen as a knife to slaughter" and his involvement in "torturing and slaughtering civilians in concentration camps".
2.3.3 "Explanatory modifications" to the current law or "legislative recommendations"?
The second suggestion of Larenz on the ability to exercise power drew our attention to Wei Deshi's viewpoint on this. In his opinion, Larenz's words "only ethnic comrades are rights comrades; people with German ancestry are members of the ethnic group", "first of all, it is not a legislative proposal, but a description of the existing legal situation after the change of power", that is, "purely explanatory (!) modification of the current fundamental private law system". Based on Wei Deshi's viewpoint, this statement has fundamental significance. The reason is that the main viewpoint in the book of Wei Deshi, as revealed by the title of the book ("Boundless Interpretation"), and as repeated by Wei Deshi tirelessly, is to explain "Boundless" and the tools that legal people can use to endow the law with different content - this content is consistent with the corresponding national order and the policies pursued by the rulers, without any changes in the legal text Consistent worldview or ideology. In addition, regarding the same sentence of Larenz, Jacobs naturally believes that it is a suggestion made to legislate (!) solely for the Aryan humanization of Article 1 of the German Civil Code.
Who is correct? I believe it is undoubtedly Jacobs. Larenz's words are all too clear because he said, "This sentence can replace (!) Article 1 of the German Civil Code, which stipulates that 'anyone' has the right to ability, and become the foundation of our legal order." He believed that this was only a suggestion based on the 'de lege fernda'. The second sentence cited in this work from 1938 fully confirms this point, as "Article 1 of the German Civil Code is not affected", which means that "national legal thinking does not deny the rights, abilities, and personality of foreigners. Of course, this power is' specific (as a racial comrade or an outsider) '. However, it is worth mentioning that (in addition to possessing positions such as farmers, business managers, and security personnel; however, in my opinion, these abilities are not possessed "according to current laws" or are deprived "according to future laws", and the answer is not clear) Larenz's example is the refusal to "intermarriage", which means the ability to enter into marriage with "foreign comrades". At that time, the law already had provisions for this, so Larenz distinguished the arguments of "based on current law" and "based on future law", and complied with the basic requirements of a rule of law country. He dealt with Article 1 of the German Civil Code, which is not an example of the possible "borderless" interpretation described by Weidelshi. It is undeniable that there were numerous instances of abusive interpretation during the Nazi regime, but we still have to oppose the indiscriminate viewpoint of the possibility of "unbounded interpretation" proposed by Wei De Shi.
2.3.4 Relativization of power and ability and discrimination against "outsiders"
The reason why I have extensively discussed this issue is because it is at the core of the relationship between Larentz and Nazism. In addition, the consensus reached between Wei Deshi and me is that in German law regarding the issue of unjust states at that time, this discussion has typical significance and hopes to have a direct impact on the distant future. In this regard, the current attempt to treat the relative power of power in anger has not touched on the crucial part of the facts. Although the result of attempting to relativise power is catastrophic, I do not believe that the idea of just "partial power capability" is inherently reprehensible, as it applies not only to human rights organizations (for which it is a matter of course), but also to individuals. After all, the German Constitution distinguishes between the rights applicable to "everyone" (Articles 2 and 5 of the German Basic Law) and the rights applicable only to "all Germans" (Articles 8, 9, 11, and 12 of the German Basic Law). In my opinion, the worst form of wrongdoing is the division of power and ability based on specific racial affiliation.
Changing the perspective can generate new perspectives - not only vivid, but also dazzling. For example, Larenz's attempt to adequately protect "outsiders" as "guests" did not change his ideological foundation, which was to distinguish between Aryans and non Aryans, and inadvertently strengthened the distinction, thereby participating in the implementation of the original sin of Nazism. At the same time, it is very clear that linking Hegel's philosophy with Nazism is insulting Hegel. The phrase 'right comrades' is only a' national comrade ', although consistent with Article 4 of the Nazi German Workers' Party program and to some extent similar to Hegel's ideas, it cannot be unjustly accused that the following decisive sentence also comes from the party's program, that is,' only those with German ancestry are national comrades', which also stems from a certain philosophical foundation of Hegel. In addition, we should be sincere enough to end avoiding or demonizing 'specific and general concepts'. Because with its help, we can never create superficial rationality or legitimacy from sentences such as' only people of German descent are national comrades'. The 'specific general concept' is easily abused and constantly questioned, as can be seen elsewhere.
2.3.5 Is Larenz a 'racist'?
What prompted Larenz to base his suggestion of power on the racist ideology of Nazism is a disturbing yet unavoidable issue. If based on the description in Larenz's letter to Dreyer, that is, he wants to complete the "task" assigned to him by Aerman, the answer will be clear. In fact, if he sees a glimmer of hope, he will "dance with the wolf". Otherwise, he will lose the opportunity to complete the task from the beginning, even if he only publicly expresses his views. I am not sure if he truly believes that using his work can help complete that 'task', and I dare not make any comments. Anyway, for people like Larenz who I know well, as well as those who have had a lot of communication with him, especially those who have exchanged political and historical content, the inference that 'Larenz may be a' racist 'is completely untrustworthy and, in fact, absurd. On this point, it is necessary to point out that according to the archival evidence provided by the Federal Archives in Berlin, Larenz did not join the "Nazi German Workers' Party" until 1937- although he was a member of the "Kiel School", he differed from most other members of the school. Therefore, he is not yet a fanatic of the "Nazis" or even a believer.
It is worth noting that Larenz's party membership date is indicated as May 1, 1937, while the application for party membership date is October 25, 1937. The application for party membership was not filed in the federal archives. According to the Federal Archives, it is not uncommon to keep early records of party membership applications until May 1st - Nazis collect and organize party membership applications during holidays; And, without the knowledge of the parties involved, it tends to be impossible for them to join the party. So, there is no empirical basis for this speculation.
2.3.6 The relationship between Larenz and Kiel's predecessor, Shigerhardt Husserl
Related to the previous text, it is worth mentioning and well-known that there was a harmonious relationship between Larenz and Gerhard Husserl (1893-1973), the predecessor of the Chair at Kiel University. Husserl had to give up his seat in 1933 due to his Jewish ancestry. From 1960 to 1972, Husserl, who lived in Freiburg, wrote about 20 letters to Larenz, which were later discovered in Larenz's remains and are now preserved in the University of Munich Library. These letters are a good proof of their relationship. In the letter, it showed a completely friendly tone and relaxed state, but only discussed professional issues and did not involve Nazism. The correspondence clearly began before 1960, before Larenz published his monograph "Methodology of Law". In the "Historical Criticism" section of the book, Larenz described and evaluated Husserl's contributions in detail. But unfortunately, from these letters, we cannot tell the time and motivation of their initial contact.
The climax of their relationship was in 1968, when Larenz wrote an article in the commemorative collection commemorating Husserl's 75th birthday. I couldn't find any clues to this in their correspondence. In our communication, Larenz's satisfaction and joy after establishing contact with Husserl were evident. At that time, with his unique humility, he did not reveal any details. So, I cannot say anything substantial about this. A scholar who fell into Nazism was able to be accepted by his predecessor, the Jewish Church, and became a close correspondence partner for many years to discuss professional issues, and participated in writing commemorative articles in honor of the latter. This is self-evident and almost an extraordinary event in history.
2.4 Paradigm article: "On the Content and Methods of Ethnic Legal Thought"
Without studying Larenz's most famous work during the Nazi regime, the 50 page "On the Content and Methods of National Legal Thought", which was based on two reports during the legal education teaching process, it is impossible to explore Larenz's activities during that period.
2.4.1 Overall impression
Overall, I believe that the article is not as good as others expected based on uncomfortable topics and reputation (which is not uncommon to be seen as "notorious"), and the actual situation is better. However, each reader can have their own perspective. I think the article contains a lot of traditional technology methodology, but there is no obvious "ethnic" characteristic. However, there are indeed three paragraphs in the article that deserve critical evaluation. This certainly includes the discourse on power and ability, as well as Larenz's distinction between "racial comrades" and "outsiders". We have already discussed this in detail in the previous text, so we will not make any further supplements here.
2.4.2 Legal constraints of judges and the "Head of State principle"
More paragraphs deal with the "principle of the head of state", which is the second point that Larenz was particularly attacked. He first discusses the topic of "law and the law" in the book. From today's perspective, it must be denied for various reasons. However, when I read it again, I am greatly pleased to find that the text does not refer to "the head of state", and therefore does not mean that his words or will are the source of the highest class of law or such things. But later in the article, Larenz suddenly ventured into this field again, and mentioned it in a vague way. He first provided an example to demonstrate that "judges are bound by the law", which exhaustively listed the situations of invalid and revocable marriages in the German Civil Code. Subsequently, in an extremely vague language, it was pointed out that:
So before the enactment of the Nuremberg Act, judges could not determine that cross racial marriage between male Germans and female Jews was invalid, despite the moral values of the German people denying such marriage and the lack of corresponding prohibitive provisions. Therefore, it must be regarded as a legal loophole.
I think this is clearly another example of refuting Wei Deshi's insistence on the "borderless" explanatory argument, and also an example of proving that "methodology plays a stabilizing role", which is based on the rules of existing legal culture and the rules of "craft" correction. Larenz then said:
Today, the Protection of German Genealogy Act and its first enforcement law (see Article 5 of this enforcement law) provide an exhaustive list of situations where the erosion of Jewish bloodline leads to the invalidity of marriage. If the judge wants to ignore this rule, it will violate the basic principles of the national constitution and the absolute priority decided by the head of state.
On the one hand, this principle has been proven to be an integral part of the Constitution; On the other hand, the principle of judges being bound by law is respected because the "priority of the head of state's decision" is only within the framework of that constraint. Therefore, this rare ambiguity ultimately involved an attempt (albeit unwise) to prevent the Nazi regime from completely breaking free from legal constraints. I believe that the main purpose of these arguments is to deny judges the power to control the law or to abolish it - and in 1929, Larenz recognized this power in principle. Due to the limited space in this report, we will not delve into Larenz's local discourse.
2.4.3 Exceptional cases where judges amend pre Nazi laws and examples of racial discrimination
Today, it seems that Larenz's "national legal ideology" is very interesting, and I will conduct an in-depth analysis of it in the following text. The core of this idea is that Larentz gave judges the power to modify laws before the Nazi Party took power. Its prerequisite is that its application "from the perspective of the entire legal order of the nation, will lead to completely unbearable consequences, and the inconsistency between law and law is very obvious". Those who seek the continuity of Larentz's ideas during Nazism and post-war Germany will find the answer here. Because these standards are clearly similar to the standards in Larenz's 1960 "Methodology of Law", and on the premise of meeting this standard, Larenz clearly believes that court decisions have the right to "modify the law by continuing the law" in "emergency situations". However, the current standard is not the "national legal order" (Larenz regarded it as "law" in 1938), But rather "unfamiliar legal ideas that have already taken effect in the 'general legal consciousness'. Larenz did not use this expression later, but in my opinion, his revised viewpoint is still unsatisfactory, so that when I published a new version of "Legal Methodology", I had to develop a concept that was fundamentally different from it.
Of course, as scholars represented by Wei Deshi have claimed, one can imagine that this is evidence of "unlimited" manipulation of legal methodology. If the example given by Larenz in 1938 for the court to amend the law were introduced, this would seem even more obvious. According to Article 1594 of the German Civil Code at the time, the husband could only question the illegitimate nature of the child within one year from the date of his knowledge of the child's birth, even if he later became aware of the illegitimate nature of the child. Larenz made an (unwritten) exception to this, which is that "after exceeding the statute of limitations set forth in Article 1594, a man of German descent learns that the child born to his wife, who would be considered illegitimate under the German Civil Code, is a child born to Jews who undermines marriage". Of course, as the practice of dividing rights and abilities based on racial perspectives involves racial discrimination, it must be condemned. However, simply denying and rejecting cannot solve the problem. Larenz's clear argument is that the opposite viewpoint is "contradictory to the pure racial separation pursued by the Nuremberg Act". Here, the methodology seems to be in a dilemma, as the legal norms and their display of evaluation's "long-term effects" (Fernwirkung) belong to its recognized weapon, which has been undisputed since Philip Heck (1858-1943). Therefore, only through craftsmanship can the issue be convincingly resolved, that is, to make Nuremberg's legality what it used to be: the shocking injustice disguised in legal form, and therefore not binding on those who apply the law. So, based on its potential for argumentation, law does not come to an end here, even if the regulations of the Nazi regime actually limit this possibility. Of course, for Larenz, we must continue to question why he gave this disgusting example if he took the 'task' seriously.
2.5 Neglected Papers: 1943's "Ethics and Law" - Antigone and York in Taulogan
Those who study Larenz's fall into Nazism attach great importance to literature related to "national legal thought", but clearly overlook another work, the approximately 250 page paper "Morality and Law" published in 1943. Exploring this article is my responsibility as a "chronicler", and of course, it is also a requirement of fairness. Any thoughtful reader can read from the title of this section, where they have read something different from the traditional view of Larenz's attitude towards Nazism.
After a lengthy discourse on the history of thought, Larenz came to a systematic conclusion, mainly his emphasis on conscience, which was not mentioned in previous articles. For example, when it comes to legislators, he believes that they are "responsible only for their own conscience, God, and history" based on the "organizational perspective" (he clearly supports this view while opposing the national contract theory in the sense of Christian Wolff (1679-1754)). He continued to write:
The foundation for a true head of state and legislator to bear particularly difficult responsibilities is the moral constraints of the collective where they and their followers reside (as no secular agency can relieve their burden), based on various forms of morality, customary law, non becoming law, law, and judge's judgments.
Here, at least the "responsibility" of the legislator and the "true head of state", as well as the "collective moral constraints" between him and his followers, are mentioned.
The fascinating aspect of this article is that Larenz continues to discuss individual consciences and attempts to integrate them into the 'objective order', resulting in the following sentence:
The final guarantee of legal resistance against abuse, such as the abuse of legislative power, judges or law enforcement power, does not lie in coercion (because in any case, the ultimate enforcer cannot be forced again), but in the individual's sense of responsibility.
Larenz's viewpoint is clearly opposite to that of his teacher Bindel, acknowledging that there may be a "real moral conflict", which is "necessarily a tragic conflict" (which prompted me to include this discussion in the report), which can be illustrated by two examples. In this context, any reader of Hegel would have anticipated that he actually mentioned Hegel's famous interpretation of the Athenian poet Sophocles' Antigone. From this perspective, Antigone is a representative figure who opposes the national orders of tyrant Cleo and defends religious precepts. Therefore, in the 1950s and 1960s, Antigone was usually interpreted as the ancient Sophie Sauer. Larenz gave a second example that convinced me. This example involves General York's actions in Taulogan, which serves as evidence to illustrate that "contradictions may arise between objective moral obligations (i.e. obedience obligations in the face of war commanders and heads of state) and spontaneously formed obligations within the collective, and this experience is also tragic". In 1812, York signed a separate peace treaty named after the Russian commander in Taulogan. Therefore, he violated the orders of his war commander and head of state, King Frederick William III, and even rebelled, because Prussia had already formed an alliance with France at that time, while Napoleon publicly declared war on Russia. In response, Larenz wrote, "He must accept his sins as fate; obedience to his conscience is sufficient." This was during the war in 1942!
My intention was not to portray Larenz as a character who rebelled against Hitler, especially because the text was also filled with ideas of "bloodline," "race," and "ethnicity. I cannot judge what his thoughts were when he was writing those sentences. However, it must be acknowledged that Larenz called for Antigone and York in 1942, demonstrating their commendable courage, which cannot be ignored when evaluating Larenz's relationship with Nazism.
2.6 Why didn't we, as Larenz's academic assistant, ask?
At this point, some people may ask that as his academic assistants, we ultimately rarely learn from him about his attitude towards Nazism. As for me, the main reason is that it is not ethical to expect my academic advisor to defend his actions during Nazism in front of me. Moreover, when discussing and 'solving' this issue, I believe it is the task of the entire politics and society, rather than arrogantly positioning oneself as or even acting as their spokesperson. I believe that my peers also have this or similar views. We are very aware that in our parents and grandparents' generation, there are countless' supporters', and many of the main culprits and accomplices of the illegal regime are still at large. We are equally clear that even us, almost certainly, will not do better, and none of us can possess noble qualities such as the 'Shaw brothers and sisters'. Helmut Schelsky (1912-1984) aptly referred to our generation as the "skeptical" generation. Unlike the next generation, we are not cynical or arrogant, and the "1968 generation" are mostly supporters of ideology, even referred to as ideological poisoning, the opposite of the "skeptical" generation. Their generation's arrogance (which has angered me since then) gained self-awareness and feelings through outdated and pretentious ways in the later process of "resisting" Nazi authoritarianism.
Our attitude has nothing to do with our disregard for history. In my primary and secondary school years, at Humboldt High School in Dusseldorf, the topic of "The Holocaust of the Jews" (the keyword at that time was usually "Auschwitz", located in Poland and the location of Jewish concentration camps) was presented in multiple forms (even though our history class did not actually cover history after 1933). Therefore, for me, it is a natural thing to become a member of the Christian Jewish cooperative society; For those of us who still have a sense of poetry, Paul Celan's poem 'Death Fugue' is a key work. Among my peers in my personal circle, there is no one who does not believe that Hans Globke (1898-1973), the commentator of the Nuremberg Act, serving as the State Secretary of the Prime Minister's Office, is not a scandal (even so, we still recognize the significant contributions of the Adenauer and Ahmed governments at that time). In this way, I can continue to provide more examples.
The widely circulated clich é s today suggest that people in the 1950s and early 1960s had characteristics such as "dullness," "darkness," "pedantry," and backwardness. In my opinion, this is just slander. This is a distortion of history by the "left" and a result of ideology. In the worst sense, it is' pseudo consciousness'. In fact, they promoted a "silent" revolution in many ways (based on the trajectory of German history so far) by initiating European integration, turning the war with France into a friendship, establishing diplomatic relations between the Federal Republic of Germany and Israel, and establishing a competitive but socially buffered market economy. All of this happened without the participation of the "left", and even to a large extent opposed the angered "left". After people belonging to or close to the "left" circle gained the right to explain history, this largely led to the devaluation of that era. Those who, like me, have observed those years (with the political consciousness of the "skeptical" generation, from our own experience perspective, and not associated with the bias of the "left") recognize their passionate and dynamic characteristics as revolutionary, although they may still be "silent" revolutions.
3. A Classic Writer of Life
After discussing some extensions of self witness, now we return to Karl Larenz himself. After 1945, he began a new third stage of his academic career. After World War II, he continued to teach. Afterwards, from the summer semester of 1947 to the summer semester of 1950, he was suspended from teaching, but later resumed his position as a teaching chair. After refusing an invitation to teach from the University of Minster in 1957, Larenz transferred to the University of Munich in 1960 until his death in 1993. During his time at Kiel University, he had already written two volumes of debt law textbooks and drafts of 'Legal Methodology'. The debt law textbook was published in 1953 and 1956, respectively, and the Legal Methodology was published in 1960. Although he had fallen into Nazism, through these works and a series of other academic publications, he still achieved what people had expected of him before 1933: as Ralph Dreyer put it, "the classic writer of life.
3.1 Textbook on General Theory of Debt Law and Civil Law: A Highly Successful History
Because I have already elaborated on Larenz's debt law textbook elsewhere, I will only briefly discuss it here.
3.1.1 Continuously reprinted
The book has achieved great success, which is reflected in its publication frequency and interval. The first volume of the book produced a total of 14 editions from 1953 to 1987, while the second volume produced a total of 13 editions from 1956 to 1986, resulting in an average of one new edition every two years. In addition, the "General Theory of German Civil Law" published a total of 7 editions from 1967 to 1989, almost at the same publishing pace as debt law textbooks. This not only reflects his outstanding work ability, but also his excellent work discipline. These traits are deeply ingrained in the bone marrow. When I served as Larenz's academic assistant, I witnessed firsthand the tremendous joy brought to him by his research work, and besides his family, this was the center of his life. Fortunately, until his death, he remained in an undamaged state of mind and continued to engage in scientific research.
As Rilke said, the typical feature of a Larentz textbook is that it is completed in a "enlarged circle" manner. For example, the first edition of the first volume of the debt law textbook has 300 pages, and in the final edition it reaches 670 pages; The first edition of Volume 2 has approximately 400 pages, with the final edition reaching 760 pages. This continuous and gradual approach reflects Larenz's way of thinking and his understanding of academia. Even for complex or new problems, he is not "once and for all" trying to find answers as deeply and comprehensively as possible, but is satisfied with leaving the problem for time, believing that there will be opportunities for improvement in future reprints, and calmly waiting for more time to unfold and delve into the problem.
3.1.2 The main characteristics of Larentz textbooks
One of Larenz's most commendable talents is his ability to "accurately express" questions and their answers, especially in finding appropriate and recognized professional terms. A classic example, It is the concept created by him, "Schuldverh ä ltnis ohne prim ä re Leistimgspflicht", which greatly simplifies the understanding of the main aspects of debt relationships. If the focus is on the word "prim ä r", it can be concluded that there are also debt relationships that only "sekund ä r" pays, and then a doctrinal understanding can be drawn: based on the German Civil Code, for example Article 275 (1): After the termination of the main obligation to pay, a "subordinate" obligation to pay arises based on the same debt relationship; For example, according to the obligations in Article 285 of the German Civil Code regarding the right to claim compensation, and based on Article 280 (3) and Articles 281-283 replacing the obligation to pay compensation for damages; Alternatively, the termination of the contract does not cause the debt relationship to disappear, but rather transforms into a relationship of returning property while maintaining its legal status. More significant is the emphasis on "obligation to pay". Therefore, it is possible to effortlessly derive a debt relationship where there is no obligation to pay, but only an obligation to protect or pay attention. During the reform of German debt law, the latter was clearly stipulated in the second paragraph of Article 241 of the German Civil Code. In the context of the "debt relationship with no obligation to pay", Larenz also created the concept of "contract with protective effect on third parties" ("Vertrag mit Schutzwirkung f ü r Dritte"), which was subsequently accepted by the German Supreme Court. This is also a key milestone in his success story. From here, we can once again see the traces of Hegel in Larentz's thought, while here it is a paradigm that showcases the "productive" power of concepts and their construction. In this regard, the category of creating a "debt relationship with no obligation to pay" can be fully regarded as a "legal discovery".
It is very amazing, and what is truly admirable is Larenz's elegant writing style and clear thinking. To a large extent, these are undoubtedly the reasons for the success of his works. However, in terms of my personal experience and the information I have learned from many others, this also carries certain risks. Because Larenz's persuasive exploration of the problem hides the difficulties beneath its surface, readers are easily misled into believing that they have fully understood the problem and its solution. Larenz tends to provide purposeful arguments for almost every important sentence (which was not a natural thing at the time, and therefore had a standard setting effect that I didn't realize in my student days until I became an academic assistant and scholar), but it usually only contains one idea, and it was obtained through long-term thinking by Larenz, but readers saw no difficulty in it. Larenz wrote textbooks, 'More for himself than for others; therefore, his textbooks are monologue type, not dialogue type,' which is not without reason. In fact, he once told me that his main purpose in writing is to make himself understand questions and their answers.
It is rare to hear about it, but it is worth mentioning that Larenz has always been open to the development of legal thinking, often capturing the clues of development trends early on. For example, almost no one knows today that Larenz was one of the earliest proponents of controlling the content of standard clauses, and his views on this matter also have significant influence today. In addition, he delved into "new types of contracts" early on, such as financing sales contracts and financing lease contracts.
3.2 Methodology of Law: A Breakthrough
3.2.1 The foundation of completely unexplored academic materials
When Larenz published his monograph "Methodology of Law" in 1960, it was a complete breakthrough. In the field of methodology, the latest literature is basically only Engish's "Introduction to Legal Thinking", which is exciting but has a very narrow theme. If anyone criticizes Larenz's "Methodology of Law," don't forget that it was the publication of this book that initiated centralized academic research on these materials and enriched the field.
In addition, the book has a special advantage of adding an almost equally weighted "historical criticism section" before the "systematization section" to deal with "German law and methodology since Savigny". For this part, I have heard praise from legal historians. Based on the progress of legal history research in 19th century Germany, it is difficult for non legal history scholars to achieve comparable achievements today. Therefore, following the approach taken by Larenz himself in the two editions of the "Student Edition" of the "Methodology of Law," I continued to publish the third edition after his death, deleting the historical critical section of the book and revising the systematic section (without reduction). Wei Deshi criticized this as a "methodological guide to continuing blind flight". Because Larenz did not mention the Nazist era of interest to Weidesh in the historical criticism section, his criticism was meaningless. I personally believed at the time (now) that there was no reason to include that era as a separate chapter in "Legal Methodology". As I explained in the section on "Aliens of Race", I believe that the unrestrained handling of law and its practices at that time was not part of the history of methodology and should be removed from it. According to our understanding today of law based on a centuries old European tradition, methodology specifically refers to the discovery and acquisition of legal content through scientific methods. When racist ideology becomes the foundation of methodology, methodology is fundamentally not about creating new paths. I believe that a review of that era has left us with not a failure to properly handle law and law from a methodological perspective, but rather a greater involvement in the relationship between legal individuals and unjust states, thus forming a broader legal philosophy framework. The famous quote of Ernst Wolfgang B ö ckenf ö rde (1930) applies to legal philosophy aimed at justice and the rule of law, as well as methodology that has earned scientific titles: they themselves cannot guarantee, create, and ensure the conditions for their survival, but they can at least make some contributions to it.
Finally, the following text focuses on three representative issues, presenting a comprehensive overview of Larentz's "methodology" and its contemporary significance for our discipline. These questions were chosen because, overall, they made the majority of the overall architecture of the mind clear (this overall architecture itself is his "methodology", and I also "reside" in it), and the key factors in its construction were presented.
3.2.2 Abandoning the "specific and general concept" in the sense of Hegel
Firstly, it needs to be defined in a negative way: the most obvious change in Larenz's subsequent editions of his "Methodology of Law" is the abandonment of the "specific and general concept" in the sense of Hegel. The first edition of the book in 1960 concluded with this, reaching a certain level of perfection. Starting from the third edition in 1975, it was moved to the front and only placed in the "extension" section. During the Nazi rule, Larenz began to use the concept of "concrete and general" in law, but it cannot be mistakenly associated with Nazism, although Larenz did indeed abuse this concept. As for the motivation for abandoning Hegel, Larenz explained in 1975 that he also incorporated modern hermeneutics into his methodological philosophy, and
Hegel's several viewpoints of great significance to the humanities have undoubtedly been integrated into modern hermeneutics, And "this system (and the system proposed by its followers), which advocates its absoluteness, has become history... (And) not only for law, but also for 'practical' philosophy (i.e. ethics and legal philosophy), an open and to some extent 'dynamic' system (which will never come to a satisfactory end and can always be questioned) is the only possible form of systematic thinking
As his disciples, we tactfully and firmly convinced him not to directly apply Hegel's ideas when it comes to methodological issues, which also played a certain role in the changes in his views. He explicitly dedicated this book in the third edition of "Legal Methodology" to specific students as "constant conversation partners", which may be related to it. Personally, long before I met Larentz, I regarded Kant (and Plato) as my philosophical "star of enlightenment", and under Popper's influence, I maintained a long distance from Hegel. Mainly because I have always believed that legal methodology should have a minimum general philosophical foundation, and in my opinion, Larenz initially followed Hegel on this point, which was counterproductive.
Of course, the task that Larenz attempted to accomplish with the help of "specific and general concepts" was not completed. On the contrary, it should be accomplished through other ways of thinking, such as type (which Larenz had already proposed in 1938 and regarded as a way of thinking equivalent to "specific and general concepts"), functional concepts, and the concretization of general legal principles. In fact, although abstract concepts in law are indispensable, their significance is small, and therefore other modes of thinking need to be supplemented. In this sense, it is necessary for law to absorb Walter Wilburg's "dynamic system" (1905-1991). In this regard, it is necessary to start from different focuses and conduct in-depth research. Therefore, I believe that this is one of the most important research areas in the field of methodology in the future.
3.2.3 "Subjective Interpretation Theory" and "Objective Interpretation Theory", as well as rejecting the academic concepts of "positivism" and "scientism"
In addition to conceptual construction, another fundamental issue in methodology is the problem of explaining objectives. In short, this question involves exploring the meaning of "historical" legislators (from a "subjective" perspective), or ultimately exploring whether the "normative" meaning of the law takes precedence over "the intent of the rules and the specific normative assumptions of legislators in history".
The natural reason for supporting the "subjective theory" is that judicial decisions are, in principle, subject to legal constraints; Methodology should follow the same principles. In its own right, methodology is a specific theory of legal application, discovery, and continuation, as well as a guide for judicial decision-making. As is well known, the first weakness of "subjectivism" is that people often do not know what the meaning of "historical" legislators is, inevitably giving them a certain "rational" or "objective" meaning. The more important and crucial issue is who is the "historical" legislator: the parliament, although it has legislative power, often does not think or at least does not accurately think of specific laws; Officials from ministries and commissions, who have drafted legal drafts and their official legislative statements; Or are they expert committees, the source of legal ideas and expressions? I don't think there is a convincing answer yet, especially the so-called 'contract theory'. At the level of EU law, the problem will be even more serious.
In addition, the famous saying 'the text is smarter than its author' (meaning that the interpreter may have a better understanding of the text than the author) is fundamentally correct. Anyone who mocks this maxim, or even denigrates it, believing that "the argument is clearly similar to the interpretive theory of Nazism," should be ashamed and silent once they know that Kant is naturally based on this maxim and is arguing with Plato's theory of thought in a very famous place, that is, in the Critique of Pure Reason. In fact, these viewpoints have long been recognized as components of general hermeneutics. Due to complexity, even if we temporarily ignore the historical nature of the text and the current perspective of the legal applicability, as well as the significant controversy surrounding the argument, the rationality of the above views is still evident. There are two simple yet persuasive arguments that support the above viewpoint: firstly, the text author's expression is not comprehensive enough, only indirectly or incompletely expressing the intended meaning. Secondly, the author inevitably incorporates some elements into the article, which are included in his "material" and he is not even aware of these elements. Materials such as "Oedipus", "King Lear", "Wallenstein", or "Faust" all follow their own rules, and some of them are displayed in performances, even if the author never thought of them. Similarly, the "legal ideology" integrated into a law often exhibits a unique dynamic development trajectory that goes beyond the imagination of the creators of legal ideology. When I am studying the doctrinal implementation of the Defective Payment Law in the framework of the new concept of the Larentz Debt Law textbook today, I am often surprised that we did not anticipate any consequences or "long-term effects" in the Defective Payment Law Committee. Of course, these are completely beyond the sight of legislators and have formed specific rules and the scheme models they rely on.
In my opinion, this question is closely related to several fundamental questions that Larenz has already answered in his "Methodology of Law", so I have provided a relatively detailed discussion on these questions. For example, issues related to the ontological status of law or its "way of existence". Larenz believes that the essence of the problem lies in "effectiveness". In fact, because effectiveness constitutes a special aspect of the natural order of law, and the rules of law are clearly (but by no means trivial) subject to the scope of time and space: a law and any other legal norm only have "effectiveness" in a specific time period and specific region. Therefore, the following statement is very meaningful: the "way of existence" of law essentially lies in producing effectiveness in time and space. From this, Larenz reasonably concludes that law cannot be reduced to a material process or a psychological process, but rather belongs to the "spiritual existence" in the sense of Nicolai Hartmann's "hierarchy theory", which is significantly different from the former. Instead, I believe it can also be attributed to Karl Popper's concept of the 'world', who first attributed human language and mathematics to it; Popper, as the main representative figure of "critical rationalism" and the author of his work "The Logic of Research", which is mainly oriented towards natural sciences, is definitely not suspected of engaging in hypocritical and academic repair. This can also include other creations of human thought, such as philosophy, literature, music, creative art, and law. If this background is clarified, it will be clearly understood that the opposition between subjectivism and objectivism, as often hinted or even openly promoted nowadays, is only or mainly about the legal constraints of judicial decisions and the methodological basis in the Constitution, while (logically prioritized!) involving deeper philosophical issues, especially those of general hermeneutics.
On the other hand, subjectivity cannot be simplified as the driving force of the constitution. On the contrary, it must be seen that there is a specific scientific concept behind it (even if it is not expressed or even realized in most cases): only phenomena that are understood and tested on an empirical basis are historical facts and can become legitimate objects of scientific knowledge. This is consistent with the scientific concept of "positivism" - based on which, in principle, only logic, mathematics, and empirical evidence are recognized as tools of science. One of the main goals of Larenz's "Methodology of Law" is to fight against this and similar "scientific" scientific concepts. In fact, legal doctrine, as the core field of law, has no place here. The reason is that the development of law relies on neither pure logic or mathematics, nor empirical methods; This principle also applies to other disciplines, such as literature, art, or theology, as long as they develop through commentary rather than history. If this scientific concept is adopted for research, it will have catastrophic consequences for the law society: it will be excluded from science, and there will be no more university education, leading to various consequences in organizational, financial, and professional activities. I believe that we cannot underestimate this danger today. Based on the enormous appeal of natural science, the scientific concepts of "positivism" or "scientism" are popular in modern times, and their representatives often use surprising and sometimes shocking offensive methods to gain recognition in academic policy. The current example is the transformation of the economics department chair in German universities. I believe that the ability of universities to focus on building mathematical models should be interpreted as being guided by scientific concepts of "positivism" or "scientism" (based on the shared responsibility of the 2007 financial crisis and specific economic trends, this transformation is due to the blind and selfish behavior of representative figures in the field, which seems to be a form of self harm).
On the contrary, we should clearly consider the drawbacks of this academic concept: as is well known, European universities (around the 12th century) emerged from the law schools in Bologna and the theological schools in Paris. Any scientific understanding that excludes these disciplines is a sign of forgetting culture and history. Therefore, from a historical perspective, the above scientific concepts have no legitimacy. From a systemic perspective, it lacks consistency because it does not provide sufficient reasons to explain that scientific methods only rely on logic, mathematics, and empirical evidence; Especially in principle, it does not have the opportunity to integrate the process of "measurement" into the scientific system, even though it has already "flowed" into countless argumentative processes, making it fundamental and indispensable in the process of rational thinking. For the positioning of our profession, Larenz's "Methodology of Law" plays a crucial role, as the integration of the perspectives of commentary and hermeneutics into legal thinking naturally becomes his ideological foundation. Furthermore, it is a fallacy to believe that using the scientific concept of "positivism" to make subjective theories persuasive. The reason is that even if we agree with this view, it does not mean that we have achieved rationality. Therefore, the discussion should be shifted to another field, which is no longer referred to as "science" or "academia", but rather as the "art" of interpretation.
What we are directly facing now is the third and final fundamental question: when legal professionals cannot find a solution based on subjective theory, what direction should they take? In this regard, it is often hastily mentioned that the judge's "method loyalty", "self-evaluation", or "decision-making". Because Larenz has always (auxiliary) adopted the "objective purpose" standard, he has distanced himself from the above considerations. On the contrary, especially represented by Wei Deshi, a confrontational activity against his methods has been initiated for a long time, promoting it through tough or aggressive means, which will be discussed below.
3.2.4 Objective purposive standards for legal discovery and continuation, issues of "legal order beyond the law", and drawbacks of judges' "self-evaluation"
Before discussing, it should be noted that Article 20 (3) of the German Basic Law stipulates that judges are bound by "law and the law". Based on the fundamental ideas of our constitution, there is also "law" beyond the law. The extensive binary system has no constitutional basis at all, that is, on the one hand, it is bound by (through "historical" interpretation) laws, and on the other hand, judges adopt a "decisive" method to "create their own laws". Here, "law" not only serves to amend standards compared to (inconsistent with) law, but also provides supplementary legal sources in the absence of appropriate legal solutions. Franz Wieacker (1908-1994) proposed the appropriate professional term 'legal order beyond the law'. It has long been proven (as evidenced by empirical methods) that not only does this order exist, but it can also be sought and (partially) discovered at the "principle level", which has become one of the key arguments against narrow legal positivism. This is also consistent with the natural understanding of judicial adjudication and law; Because judges or scholars with the ability to understand rationally often deny that the answer they support is still a "legal" answer when faced with the inability of the law to provide an answer, and immediately begin "self-evaluation" or "decision-making", as if the judicial judgment has the function of creating the law. Understanding how to obtain and handle a 'legal order beyond the law' will become a challenging task for law in the future. In this regard, Larenz laid the foundation in his "Methodology of Law" and his "Correct Law" written during his retirement period, and provided enlightening views on some details (due to time and space constraints, we will not delve into it here).
On the contrary, if the requirement of "method loyalty" is mentioned to promote the judge's "self-evaluation", in principle, I would be skeptical. These calls are worth respecting to a certain extent, but they are like "upeccafartitern", which is "subjective judgment": because "self-evaluation" is inevitable no matter what, do judges still need to use it! This is equivalent to the surrender of law to the task of legal methodology, and it is not something that Larenz is willing to do. In fact, inappropriately citing a sentence from Faust, the essence of a judge's "self-evaluation" is "to carry on worldly affairs, which is a difficult task". In reality, this is inevitable because the court must make decisions within limited time and intellectual capacity; In the ideal, this is unacceptable, so in principle, it must be based on the correctness requirements of the referee in the sense of "regulatory ideology".
Especially when there is a lack of clear order in different interpretation standards, contrary to Joseph Esser's (1910-1999) viewpoint, the method chosen by judges freely cannot be recognized, and his "pre understanding" dominates here. Regarding this, Larenz calmly and correctly said, "The weight of different interpretation standards is ultimately determined by their role in specific situations. This viewpoint does not reflect "methodological recklessness", nor is it a "principled principle", but rather (even if it is a very simplified one) expresses the correct viewpoint that when there is a conflict between the explanatory standards (only in this case, the issue of rank is raised), in principle, weights need to be set for them. From the perspective of negotiation theory, it is actually just a typical summary of special argumentative viewpoints (their significance has been convincingly determined in the framework of interpretation and generally recognized, so there is no need to legitimize them again. At the end of the thinking process (as long as the true priority rule is not used in exceptional circumstances), of course, it needs to be classified Weights and quantities are inevitably measured in contradictory arguments.
3.3 Academic mentor Larenz and his interactions with students
3.3.1 Let me briefly describe the situation of Lenz as an academic mentor. In terms of his relationship with his students, in short, he is as poor as most people of his time in big classes; In case studies, he is often an excellent expert in solving specific cases; In the seminar, he fully demonstrated his style, which is why he is very outstanding.
In the big class, he almost always reads the lecture notes, and sometimes even puts the manuscript of his latest textbook on the podium, and never asks questions to the audience. One day, after taking a major class in Civil Procedure Law, he returned to the research institute and said to me, "Mr. Canaris, think about what terrible thing happened to me today: I forgot my lecture notes at home; unexpectedly, I am even better than ever, Larenz seems to agree with the view at the time (which unfortunately was quite prevalent) that teaching large courses was an annoying subsidiary obligation. On the contrary, in case classes, he certainly cannot follow suit. His outstanding free speech ability and excellent legal judgment ability are thus demonstrated, making him a master in case solving techniques. The seminar is the core and climax of his teaching activities. He regarded all participants in the seminar as potential researchers - completely in line with Humboldt's ideal model of "unity of research and teaching". He refuses any form of solo play and will allow the speaker to express his views without restriction until he adds and makes necessary revisions. As a result, some doctoral theses were born in his seminar, including my own doctoral thesis "Legal Vulnerability Identification".
3.3.2 Larenz and his wife like his students. Once, he asked me where my former student is currently working. As I hesitated, he scolded me, "You must know what your student is doing
He has not intervened in my academic research in principle, even before completing his doctoral thesis. Nevertheless, not only did I learn a lot of 'manual skills' from him, but the vast majority of important viewpoints were influenced by him (even if he only updated and strengthened my long-standing views). He discovered the "weak points" of argument in every draft from an almost infallible perspective and criticized it. I said to myself: it will never happen to me again. This' lesson 'has urged me to work harder and greatly improved my level of argumentation.
He is very eager to have academic exchanges with his students. When he returns to the research institute from his major, there must be one (but only one) academic assistant waiting for him so that someone can continue to explore. After retirement, he and his wife invited his former students at the University of Munich and their wives to his home to discuss philosophical issues - we read and discussed Hans Georg Gadamer (1900-2002), Jiirgen Habermas (1929), and Plato's "Gorgia". When we entered Hegel's Introduction to Phenomenology of Mind, we gave up. The reason is that not only is this text very difficult, but there are also some signaling reasons: Larenz ultimately showed no interest in it and no longer wanted to impart it to us.
3.4 Larenz and Attempting to Construct Academic Authority
When communicating with us students, new legal cases often arise. Regarding this, Larenz often says, "Please take a look at what is written in my textbook. Some of us have already memorized this and it is very common. Of course, I have never been like this before. Larenz himself is not concerned about whether to keep it in mind.
If there is no relevant content in his textbook, the next step is to review the current literature and judicial opinions on the issues involved. If we find that the viewpoint is exactly consistent with the one he just formed, he will say, "Great, I should clarify this in my new textbook. This attitude is truly admirable. Almost all scholars with certain academic attainments tend to be vain (in a more subtle way than actors and politicians) (this is not impolite behavior, but it is precisely one of the core driving forces of academic productivity), and feel disappointed when they discover that their ideas have already been publicly published by others before they discover them. But Larenz is not like that! His motivation, which is to clearly articulate and advocate the correct viewpoint (relative to the innate need for scholars to gain prestige, I believe this motivation has priority), surpasses his own need to become a 'copyright owner'. I believe my hypothesis is correct, that looking back at his actions after 1933 (most of which may have been unforeseeable and deeply rooted in his consciousness), he saw the desire for prestige driven by the spirit of the times, which would tempt scholars to go astray. Therefore, he kept a long distance from his academic "creative" meaning, thus giving him special independence. Of course, this is not to say that Larenz "doesn't show off", but he is one of the few people who can handle this danger well.
4. What is left behind
Looking back at such fruitful achievements and passionate academic life, we may ask a question that may not have been necessary for most people from the beginning - what has been left behind?
Larenz once said to me, "My ideal in life is to write a commentary on Hegelian philosophy. What success can I be proud of? I just wrote a debt law textbook that will soon become outdated, and a methodology that will soon become outdated, although not immediately!" When he criticized Hegelian's "absolute requirement" and completely abandoned his philosophy, he gave the answer himself. He is not only a follower of Hegel, but also a "classic writer" in the field of German debt law and methodology. In the second half of the 20th century, he opened up a field that no one can match! As for the replacement and elimination of academic works, in the words of Max Weber, the significance of academia is that it "will be 'defeated', but is actually willing to be outdated.
Finally, let's wrap up with Hegel. Hegel is the beginning of Larentz's work, the beginning of this report, and the end of this report! Karl Larentz, although not completely deviating from Hegel, particularly highly praised the word "sublation" in Hegel's dialectics. The term not only refers to transcendence, but also includes retention, and ultimately includes new and higher-level transcendence. In this sense, we can say that Larenz had already excellently and flawlessly started his career before 1933, and continued in an exemplary manner after 1949, reaching a climax and carrying out a triple "sublation": although in many ways, times have passed, it continues to influence our thinking and has become a natural thing. In this regard, It has had a huge impact and has become a component (even a core part) of new theories - for the Federal Republic of Germany, both in the continued development of civil law doctrinal thinking and in the fundamental part of legal methodology.
原文刊载于《中德法学论坛》2019年第16辑，感谢微信公众号“法律思想”授权推送！