This collection of essays, edited by the historian Till van Rahden und the legal scholar Michael Stolleis (who died in 2021, shortly before publication), documents the papers as well as the commentaries of a symposium that took place at the Forschungskolleg Humanwissenschaften near Frankfurt in 2019. It starts from a well-established observation that Jewish emancipation in German-speaking Central Europe led to a significant increase in the number of Jewish students who opted for law (and medicine) in order prepare for a career in the so-called free professions and later, from the second half of the nineteenth century, potentially also a career in the civil service. The liberal promise of equality proved attractive until the National Socialists came to power, yet – as the editors carefully note in their introduction – the social realities often did not meet the increasingly optimistic expectations. Emancipation was more easily achieved in the wording of the law than in society, where antisemitism, social marginalization, and personal rejection remained everyday experiences for Jews.
Against this general background, the contributors provide detailed analyses of which branches of jurisprudence proved particularly attractive to Jewish students and scholars, and why. The focus is on the eighty years between the revolutions of 1848–1849 and the end of the Weimar Republic, a period in which more and more German states allowed Jews to actively participate in the administration of justice. As the different essays demonstrate, Jewish students’ choices often reflected the liberal, optimistic mindset of the urban bourgeoisie, yet they can be interpreted also as the result of the functional needs of industry and concern for the ever-more pressing social question. However, the extent to which the individual authors subscribe to this general thesis varies considerably. For example, Boudewijn Sirks, in his essay about Jewish legal scholars who were forced to emigrate in the 1930s refutes the view that there was a genuine “Jewish perspective” of law, or at least carefully notes that the number of cases under analysis does not warrant such sweeping generalization. Yet he does not exclude the possibility that Jewish legal scholars might have opted for Roman law because of their longing for a “higher social order” (69). Gilad Ben-Nun is more outright in establishing connections between group disposition and individual legal interests and career choices. His highly original essay argues that even traditional Jewish bookishness and Orthodox religion played a role. Many of the legal scholars who were heavily involved in the drafting of international legal treaties in the immediate post-World War II years, like Hersch Lauterpacht, Raphael Lemkin, und Jacob Robinson, had received a kind of double education, which helped them master “modern international law in East Central European universities in tandem with a strong Talmudic and Jewish-law traditionalist education” (78).
Due to the political and social marginalization many Jews encountered, many took an interest in new labor and economic laws. In a comprehensive essay, Otto Ernst Kempen studies the supreme importance of Jewish legal experts for the formation of labor law in Germany, stressing the profound parallels between Jewish emancipation and the working-class movement since the nineteenth century. Some Jewish experts in labor law like the social democrat Hugo Sinzheimer were even motivated by a kind of “socio-critical humanism” (137). In most cases, however, it proved more significant that these Jewish legal experts originated from well-to-do families of entrepreneurs and thus appreciated the freedom that came with the new industrial capitalism. Consequently, they propagated labor laws that were based on their positive views of Jewish emancipation achieved through legal equality, which became particularly relevant after the introduction of the system of labor courts in 1926. In a similar way, they regarded wage agreements and state-guaranteed worker participation as a means to achieve social harmony and to protect liberal democracy in the face of new authoritarian ideologies like fascism and communism.
Johannes Liebrecht, whose essay concentrates on the Jewish contribution to commercial and business law, likewise stresses the connection between the comparatively high socioeconomic status of many Jewish legal experts and their scholarly interests, yet he is at great pains to avoid generalizations on the macro level, claiming that the microhistorical and biographical analysis of the relevant protagonists would still be insufficient. Like Sirks, Liebrecht does not believe that specific Jewish legal concepts were responsible for the strong Jewish presence in this field. Instead, he argues that for many specializing in economic law was a pragmatic decision that reflected one's own socioeconomic status, the opportunities of the new industrial age, and the fact that many Jewish scholars were forced to specialize in niche topics which only later increased in social and political relevance.
Marion Röwekamp studies the contributions of Jewish women to marriage and family law in the Weimar Republic. Such a contribution could only be made once women had been allowed to study law, which happened after 1900, and it took another two decades before the prohibition for women to work as lawyers or judges was finally abolished in 1922. Röwekamp highlights that, for many of the first generation of female jurists, civic and gender equality were closely interlinked. They regarded reform of family law as part of a wider effort to achieve full citizenship for women, a project that was even more urgent as the relevant regulations in the 1871 German Civic Code disadvantaged them systematically. Röwekamp argues that these modern women perceived gender inequality as a more significant obstacle than the discrimination they experienced because of their Jewish family background. In fact, for several of them, the successful legal careers of their brothers and fathers were a pull factor to study and practice law.
A key problem affecting all contributions to this volume is their desire to avoid essentialist attributions while searching for genuinely Jewish elements in the works of Jewish legal experts. This is particularly evident in Matthias Jestaedt's essay on Hans Kelsen and in Raphael Gross's response. While the jurist Jestaedt emphatically disputes that Kelsen's “pure theory of law” bears specific Jewish characteristics or was even significantly influenced by the events in his life, the historian Gross reproaches him for being unwilling to contextualize historically. More studies of Jewish scholars like Kelsen, one of the “German Jews beyond Judaism” (George L. Mosse), would be desirable. Such differences of opinion do not necessarily run along disciplinary lines. In fact, most of the essays in this book are marked by a sincere desire for interdisciplinary dialogue.
This stimulating volume is useful not only to specialists but also invites broader discussion about the entangled history of Jewish emancipation and the formation of the secular legal state in Central Europe. It also demonstrates that Jewish scholars’ significant contributions to German-speaking legal scholarship and practice had global effects. The scholars who survived persecution and the Holocaust were among those who leveraged the implementation of international humanitarian law, and some even managed to play a key role in shaping the international political and legal order after World War II.
