Concept and Definition of the Free Law Theory
The Free Law Theory refers to a legal doctrine that emerged in Germany at the beginning of the 20th century. Its central concern is to close the gaps in written law through judicial decision-making, granting judges an expanded scope of discretion. The Free Law Theory consciously stands in opposition to the legal positivism predominant in the 19th century, according to which only the statute is considered a source of law and the judge merely acts as the ‘mouthpiece of the law.’
At its core, the Free Law Theory demands that judges, when faced with gaps or ambiguities in the law, create new legal rules and consider social, economic, and moral requirements. The aim is to adapt jurisprudence to changing social realities and to understand the law as a living, evolving system.
Historical Development of the Free Law Theory
Background of Its Emergence
The emergence of the Free Law Theory is closely linked to the codification of the German Civil Code (BGB) in 1900. Contemporary observers criticized the codification as inevitably incomplete, as it could not anticipate all conceivable real-life situations. Moreover, industrialization necessitated economic and societal changes that the legislator could not adequately regulate in advance.
Key Representatives and Major Works
The leading representatives of the Free Law Theory are Eugen Ehrlich, Hermann Kantorowicz, and Hugo Sinzheimer. Eugen Ehrlich particularly shaped the term ‘living law’ and studied how law is actually applied in society. Hermann Kantorowicz anonymously published his work ‘The Battle for Legal Science’ in 1906, which is understood as a foundational text.
Classical works also include Rudolf von Jhering’s ‘The Purpose in Law,’ which points to the teleological understanding of norms, although it is not exclusively attributed to the Free Law Theory.
Main Ideas and Core Principles of the Free Law Theory
Rejection of Legal Positivism
The Free Law Theory criticizes legal positivism, which postulates the judge’s strict adherence to codified law. According to its proponents, every legislative system contains gaps that must be filled by judicial activity. This approach grants the judge a creative role in the development of law.
Living Law and Reference to Society
The Free Law Theory emphasizes ‘living law’ as the entirety of the behavioral rules actually practiced and recognized in society. According to this view, law is not a rigid system, but must adapt to social reality and societal change.
Method of Legal Application
The methodology of the Free Law Theory differs from other approaches of the late 19th and early 20th centuries. Judicial decision-making is guided not only by written statutes, but also by supra-legal standards of value, such as notions of justice, social utility, or the will of the relevant parties.
Relationship to Judge-Made Law
A key aspect of the Free Law Theory is the emphasis on so-called judge-made law. This refers to the creation of legal norms through judicial decisions. If the law contains no provision, according to the Free Law Theory, the court is responsible for developing independent legal principles, considering current circumstances and general legal principles.
Legal Classification and Significance in Jurisprudence
Gaps in Codification and Judicial Development of the Law
Significant areas of application for the Free Law Theory are found wherever the law is silent or requires interpretation. In such cases, judges are called upon to close the gap through evaluative reasoning and contribute to the concretization of abstract norms. This can be relevant, for example, in labor law, commercial law, or in response to new technological developments.
Distinction from Analogy
While analogy describes the application of existing legal provisions to comparable, unregulated situations, the Free Law Theory goes beyond this boundary. According to this model, judges are not dependent on existing laws but can—within the limits of constitutional requirements—create new rules.
Constitutional Framework
The Free Law Theory is in tension with the principle of the legality of the judiciary. Especially since the Basic Law came into force, the binding nature of jurisprudence to statute and law pursuant to Article 20(3) of the Basic Law must be observed. Nevertheless, modern legal doctrine also recognizes the creative and formative role of the courts in cases for which the legislature has not yet provided regulation.
Criticism and Further Development
Points of Criticism
The Free Law Theory is occasionally accused of undermining the principle of separation of powers, since it bestows upon the courts a law-making competence that should actually reside with the legislature. Critics caution that excessive judicial discretion may conflict with the principle of democratic legislation and legal certainty.
Further Development and Influence on Modern Doctrine
Although the Free Law Theory has lost significance as an independent school today, it continues to shape the understanding of judicial development of the law. Modern movements such as value jurisprudence, interest jurisprudence, or comparative law adopt central ideas of the Free Law Theory. Consideration of social developments, openness to new factual circumstances, and ensuring justice and practicality on a case-by-case basis remain core concerns of contemporary jurisprudence.
Significance of the Free Law Theory in International Comparison
Internationally, similar developments are found in other legal traditions, such as in the French or Anglo-American legal systems. Judicial development of the law has traditionally played a significant role in Common Law in particular. For continental law, the Free Law Theory thus marks a bridge between codified rules and judicial practice as a source of law.
Conclusion
The Free Law Theory represents an influential legal doctrine whose impact on the development of legal dogmatics—and especially on the judicial development of the law—remains evident to this day. It has significantly contributed to the acceptance of courts as an independent source of law and has broadened the understanding of law as a living social order. The debate it initiated concerning the balance between statutory binding and necessary legal creativity remains relevant in an ever-changing society.
Frequently Asked Questions
How does the Free Law Theory differ from traditional legal methods regarding the application of law?
The Free Law Theory differs substantially from traditional legal methods such as the Pandectists or conceptual jurisprudence by not relying solely on the systematic derivation of individual case decisions from codified legal norms. While conventional methods view legal reasoning as a strict process of subsumption, the Free Law Theory considers the statute merely as one of several factors in decision-making—especially where normative gaps exist or social change requires new interpretations. It therefore emphasizes the creative role of the judge, who, when necessary, develops the law further using extra-legal sources of knowledge (such as social sciences, the popular spirit, sense of justice, or economic necessity). Thus, the judicial application of law becomes a creative act that cannot be exhaustively explained or justified solely on the basis of written law.
What role does the judge play in the Free Law Theory?
In the Free Law Theory, the judge is assigned a central, almost legislative-like role. The judge is not merely the ‘mouthpiece of the law’, but is viewed as a co-creator of the legal order, especially in cases where the law contains gaps, uncertainties, or injustices. According to the Free Law Theory, the judge must independently develop the law further and adapt it as much as possible to social circumstances and needs. It is also expected that the judge draws on non-legal knowledge, such as philosophy, ethics, or economics, to address legal gaps. The judge thus acts in areas previously reserved exclusively for the legislative branch, with his decision involving greater flexibility but also greater responsibility in its specific design.
How does the Free Law Theory influence statutory interpretation in the case of legal gaps?
The Free Law Theory significantly shapes the handling of legal gaps (‘lacunae’ or ‘unintended omissions’). Traditional methods tend to close gaps by analogy or by teleological interpretation, taking into account the presumed intent of the legislator. The Free Law Theory, by contrast, expressly regards the creation of law in areas of gaps as a creative and autonomous task for the judge. In this context, not only can judgments based on underlying legislative values be used, but also societal developments, expert fields, and current notions of justice. Closing such a gap is therefore an act of legal creativity, in which the judge openly determines the boundary between statute and law and may even develop the law beyond the wording and intention of the legislator.
What extra-legal sources of knowledge does the Free Law Theory consider in legal reasoning?
The Free Law Theory emphasizes the consideration of a variety of extra-legal sources of knowledge in order to arrive at appropriate and contemporary decisions. These include, in particular, sociology (e.g., social values, structural change), ethics and morality (e.g., general notions of justice), economics (e.g., impact of decisions on the economic system), psychology (e.g., motives for human behavior), as well as political and cultural factors. Historical developments and the so-called popular spirit, representing the ‘living conviction’ of the respective era, may also be taken into account according to Free Law approaches. This interdisciplinarity allows the judge to achieve a comprehensive jurisprudence oriented toward practical requirements.
What criticism is directed at the Free Law Theory from a rule-of-law perspective?
From a rule-of-law perspective, the Free Law Theory is criticized, among other things, for blurring the separation of powers by giving the judiciary a function that tends to be legislative in character and thus exceeds constitutional powers. Critics argue that abandoning the statute as a binding basis for the application of law leads to an excessive expansion of judicial competence, thereby endangering both the requirement of legal certainty and the principle of predictability. Moreover, too open a reliance on extra-legal materials may foster subjective value judgments and arbitrariness, thereby undermining trust in the objectivity and foreseeability of jurisprudence. There is also the question of whether individual judges possess the necessary expertise to adequately and impartially consider extra-legal fields of knowledge.
Does the Free Law Theory still have practical significance in today’s jurisprudence?
The basic ideas of the Free Law Theory have fundamentally shaped the modern understanding of the development of the law and judge-made law, and have left their mark on current jurisprudence. Particularly in areas of open and dynamic law—such as civil law, general clauses, or ambiguous norms—principles of the Free Law Theory are applied, consciously or unconsciously. The increased interdisciplinary orientation of legal argumentation also points to Free Law thinking. Nevertheless, its influence today should be seen as mediating: modern methods such as material law interpretation, the consideration of fundamental rights and constitutional values, as well as the German battle of legal methods, both integrate and limit Free Law approaches in light of rule-of-law controls.
In what historical context did the Free Law Theory arise, and why?
The Free Law Theory arose in the late 19th and early 20th centuries as a reaction to the conceptual jurisprudence, perceived as rigid and detached from life, which viewed law as an almost mathematically-abstract system. The rapid social and economic changes of the time—such as industrialization, urbanization, and the emergence of new social problems—made it clear that existing interpretations of law were often not flexible or adaptable enough to meet new demands. Led by Rudolf Stammler and Eugen Ehrlich, the Free Law Theory thus called for the judge to take an active, creative role in legal application for the sake of social life and to secure ‘living’ justice. This historical context continues to shape the understanding of the judicial development of law and the social functions of law to this day.
