What is the point of legal debates on provenance?
uunder the title “Where are you thinking from?” On February 22, Klaus Ferdinand Gärditz published the discussion offer on the Humanities page of the FAZ essay “The provenance problem of jurisprudence” (Critical Justice, Vol. 55, 2022, Issue 4 / Nomos) accepted. The proposal formulated therein aims to deal with legal “classics” in a considered and problem-conscious manner, many of which are known to have anti-Semitic, racist, sexist or other inhuman views in their writings. More specifically: How to deal with Immanuel KantFriedrich Carl von Savigny, Carl Schmitt or Ernst Forsthoff?
This is primarily a practical question, not a programmatic one. No substantive research program is set up or demanded. There has been research for many years that also uses “object-oriented history of ideas” in the field of anti-Semitism/racism/sexism and law. Rather, the essay discusses how we can deal with the problematic “provenance” of legal knowledge today in the spirit of good scientific practice. The proposal is thus at the level of treatment, not diagnosis.
Shift to the edge area
Gärditz does not explicitly contradict the proposed treatment of the problem. Rather, he reduces the area of application to “peripheral areas of basic research under public law”. Both steps of reduction, firstly to basic research and secondly to the area of public law, decisively shift the problem of provenance. For the banishment of the provenance problem to the fringes of basic research, Gärditz argues that the bulk of legal work is solely about “punctual, constructive-deformative references to individual arguments”. Thanks to legal positivism, a function-specific reception of individual concepts or arguments “liberates” them from any metaphysical ballast.
Gärditz justifies this claim with a reference to the legal positivists of the nineteenth and twentieth centuries, who believed that the purely legal method freed the modern legal system from politics, history and philosophy, and also from the views of individuals. On the other hand, the essay suggests that legal knowledge should not be absorbed without reflection and blindly trusting in this self-disclosure of the legal positivists.
The term “municipal services of general interest” in the municipal ordinances of Bavaria (Article 87) and Baden-Württemberg (Paragraph 102) can serve as an example. Instead of simply claiming, trusting in the abstractness of legal concepts, that the term and legal application are (no longer) related to Ernst Forsthoff’s concept of “services of general interest”, it is proposed that the question of provenance in a (hypothetical) legal treatment of the material be taken seriously . Accordingly, in this example, it would first have to be recognized that Forsthoff’s publications contain deeply anti-Semitic and National Socialist text passages. Secondly, it should be asked whether the concept of “services of general interest” “transports” anti-Semitic or National Socialist ideas. Thirdly, when clarifying this question, instead of denying it across the board and without further justification, relevant secondary literature should be taken into account (e.g. Jens Kersten, “The development of the concept of public services in the work of Ernst Forsthoff”, Der Staat, vol. 44 , 2005).
For today’s basic research, the question of whether anti-Semitic or National Socialist ideas are transported through the concept of “services of general interest” does not represent a practical problem of handling, but an important research question. For the majority of legal work, however, such as a comment on municipal ordinances or an article on European competition law, dealing with Forsthoff does represent a practical problem. Admittedly, it can be assumed that this problem, the problem of provenance, arises more frequently in basic research than any other legal work. But these quantitative nuances do not justify a qualitative distinction between basic research and other legal studies.
It is also not clear why the problem of provenance should be limited to areas of public law. The fact that the essay is limited to examples of the “historically most influential German figures” in public law is primarily due to my limited knowledge, not to any structural peculiarities of public law (so explicitly on p. 439). Why should anti-Semitic civil or sexist criminal lawyers cause less of a provenance problem than racist constitutional lawyers?
Therefore, the provenance problem is fundamentally everyone’s business; to what extent, everyone should probably reflect on this for themselves.