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  • RECENT DEVELOPMENTSOF GERMAN LEGAL PHILOSOPHY:

    A REPORT AND APPRAISAL (1964-1966)

    Karl Engisch *

    Translator's Preface*

    Fundamental German thought about law, appearing under thename of legal philosophy, has greatly influenced Anglo-Americanjurisprudential thought. In the present century several of ourdistinguished jurisprudents have derived stimulus from Germanlegal philosophers, for example, Roscoe Pound from Josef Kohlerand Julius Stone from Gustav Radbruch. Since Germany con-tinues to be one of those countries where jurisprudential thoughtis cultivated in an outstanding manner, I have felt that it wouldrender a service to the cultivation of the same thought in theEnglish-speaking world if recent developments of German legalphilosophy could be brought to the notice of our legal scholars.

    Since only a few articles and no books by present Germanlegal philosophers have been translated into English, this objectcould be achieved to a degree by translating a report on Germanlegal-philosophical literature into English. The author of thisreport is one of the most distinguished contemporary German legalphilosophers. In this area, he is particularly distinguished in thefield of legal logic and the methodology of legal science andrenowned for his keen analyses and sober judgment. His re-ports on the subject are published biennially in the periodicalZeitschrift ffir die gesamte Strafrechtswissenschaft and the presentreport is the most recent of these. It appeared in 1967 in volume78, No. 3 of that periodical (pp. 490-523).

    Hoping that this translation will serve a good purpose, Iintend to continue making available in English his subsequentreports. It is to be noted that the name "report" is perhaps toomodest for these expositions. They do not only provide valuableinformation about current German legal-philosophical literature

    * Dr. jur., Dr. habil., Dr. med. (h.c.). Professor of Legal Philosophy and Criminal Law(emeritus), University of Munich.

    ** To provide as faithful a translation of the original German article as possible, the formatof the original article was retained. Ed.

  • Ottawa Law Review

    but also contain their author's penetrating explorations and in-sights into the problems discussed.

    In the original German, Karl Engisch is a brilliant and lucidwriter. However, brilliancy of expression in one language oftencannot be matched with corresponding brilliancy in another lan-guage. My main endeavour has been to render the rapporteur'sthoughts, and the thoughts by him reported, as faithfully as pos-sible without doing too much violence to English idiom. WhereI have failed on both scores, this has been due to my anxiety todo justice to both. In German philosophical parlance there aresome expressions which have no exact or elegant English equiva-lents. To render them, I have used my own judgment. Thusfor "Sosein" (literally "thus-Being") I have used appropriate peri-phrase; I have rendered "Gemeingeist" by "collective mentality"instead of "common spirit" (which would perhaps be a moreliteral translation but rather misleading); "sachlogische Struktu-ren" I have rendered by "ontological structures" instead of "thing-logical structures" (believing that the relevant German phrase issimply a rather regrettable fashion of current German philosophiclanguage and the thought conveyed by it could be expressed inGerman, too, far better by the expression "ontologische Struk-turen."

    The rapporteur has devoted about half of the space of hisreport to a book by Heinrich Henkel. This is not to be re-garded as a lack of proper balance in the exposition; Henkel'swork is undoubtedly the most comprehensive outstanding treat-ment of legal-philosophical problems in the relevant period andhas thus provided an occasion for Engisch to examine criticallyand constructively a number of current legal-philosophical issuesin a thorough and illuminating manner. Throughout the reportproblems relating to criminal law are somewhat conspicuous. Onthe one hand this is due to the fact that the books discussed havebeen prominently addressed to these problems, on the other handto the fact that the rapporteur is also a criminal lawyer and parti-cularly interested in this aspect of the books. It may be men-tioned that, undoubtedly as a matter of historical accident, mostof the illustrious German Ilegal philosophers today (e.g., ErikWolf, Hans Welzel, Arthur Kaufmann, Werner Maihofer, andKarl Engisch himself, like the late Gustav Radbruch) also happento be criminal lawyers. This has produced the situation that theattraction which they have exercised on the minds of many youngerGerman legal philosophers has led these, too, to choose criminallaw as their special legal expertise. To my mind, it has notbeen held by the German masters of legal philosophy that cri-

    [Vol. 3:47

  • German Legal Philosophy

    minal law is that legal speciality which alone can be perfectlymatched with the teaching and rescarch of legal philosophy.

    It should be noted that the report by Engisch does notconsider Austrian and Swiss legal-philosophical publications ofthe same period.

    Ilnar TamnneloUniversity of Sydney, Australia

    Heinrich Henkel, Einfiihrung in die Rechtsphilosophie. Grundlagen desRechts [Introduction to Legal Philosophy : Foundations of Lav]. Publishedby C. H. Beck'sche Verlagsbuchhandlung, Munich and Berlin, 1964. Pp.vii and 468.

    This substantial book is one of the most important legal-philosophicalpublications of recent years and has accordingly received due attention.From the reader, it requires patient study. The author performs his taskwith great thoroughness and conscientious utilization of literature. Clarityof expression, soberness of reasoning, solidity of argumentation, prudenceof judgment, and reserve regarding topical slogans are distinctive featuresof this Introduction. These qualities render the book particularly appro-priate to educate students for serious, unbiassed reflection and to protectthem against one-sided and exorbitant "ideological" conceptions. Sagaciousdialectics or even challenging originality are not to be found in it. Henkelrather tends to harmonize opposing trends in legal philosophy. He seeksfor the "golden middle road" between positions such as absolutism andrelativism, idealism and realism, transcendentalism and historicism. Hismethod of treatment exhibits features of dogmatic jurisprudence appropriateto legal textbooks and corresponding to "the second way of legal-philoso-phical treatment" recommended by the author, which "is independent inrelation to general philosophy and treats legal philosophy emphatically asa branch of legal science" (p. 6.).

    Instead of elaborate ideological designs, the book contains a treat-ment of special legal-philosophical problems in depth. There is scarcelyan essential legal-philosophical issue which has been left out of account(I have noted only the neglect of the problem of "revolution and law").The author has not entered into the history of legal philosophy (in con-trast to the excellent treatment of this matter in Del Vecchio's textbook).Even historical vistas or hindsights are rare, even though it is to be observedthat Henkel does know his classics. In general, he keeps to the literatureof the recent past and to that of the present time. Of the great philosophersof our century, Nicolai Hartmann is especially congenial to him.

    Although Henkel declines to treat legal philosophy on the basis of adefinite philosophical system (pp. 5 ff.), he adopts Hartmann's theory ofstrata in the first part of his work, which contains a kind of legal ontology

    Fall 1968]

  • Ottawa Law Review

    ("Law and Being"); in particular he draws on Hartmann's treatise DasProblem des geistigen Seins [The Problem of No~tic Being] (2d ed. 1949)(pp. 8 ff.), which is indeed a most important work for legal philosophers.Henkel locates the "position of law in the 'stratified structure' of thisworld" as follows: "Law resides in the area of noftic Being, and namelyin the collective mentality of the human groups which are organized asa legal community" (p. 14). Both the "material" stratum and the stratumof mental phenomena are merely "supporting strata." The "collectivementality" is "objective mentality," "independent in respect of the mindsof individuals"; nevertheless it is not a mystical substance but "that which,independently of individual divergencies of single persons, is thought, judg-ed, or aspired in the group" (p. 15; also pp. 29 f.). In this sense it isalways "unique," "living," "dynamic," "changeful," and constantly operativein actuality (p. 15). As the minds of the individuals become objectivizedin works, so the collective mentality has for its objectivizations language,culture, economy, and also law. Law is "an objectivized social configu-ration" (p. 17); it is "a component area of the social order" (pp. 18 ff.).Law is linked with "social entities," that is, with groups of men which havea certain internal coherence and external seclusion; they are governed byan order of life independently of the changes in the composition of thegroup members; they are entities sui generis: unities and totalities whichare rooted in "the dual nature of man as an individual and as a member ofsociety" (p. 18-cf. Maihofer's distinction between "self-Being" and "as-Being").

    The social entities are characterized by "social structures" and "socialrules of game"; they are formed by posited "normative orders," of whichlaw is one. Within the social entities there is "the polarity of self-deter-mination and of being-fitted-into" (pp. 25 ff.). Being fitted into anorder of the Ought, which confronts the individual in an extensively he-teronomous manner, poses the problem of the manner in which this orderarises as an objectivization of the common mentality. A dialectical tensionbecomes, of course,

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