The Contra-Legem Fable: A Reexamination of the History of Legal Theory and Private Law in the Formative Moments of the German Free Law School

Abstract

This article revisits the formative context of the Germanic Free Law Movement, one of the most influential theoretical developments in twentieth-century German and Austrian legal thought. The study aims to reconstruct, in a synthetic manner, the emergence of the so-called contra legem fable, a narrative that has persistently shaped interpretations of the Movement. The analysis is divided into two parts. First, it outlines the intellectual trajectory of Hermann Kantorowicz and Gustav Radbruch, emphasizing the relevance of Private Law and its early twentieth-century transformations in shaping their theoretical perspectives. Second, it investigates the historical and discursive conditions that led to the construction of the contra legem fable, particularly in response to the 1906 Manifesto. The article argues that this fable resulted from exaggerated, decontextualized, and strategically motivated interpretations advanced by contemporary critics, aimed at delegitimizing the Movement and its proponents. By reassessing primary sources and contextual elements, the study demonstrates that the Free Law Movement did not advocate arbitrary judicial decision-making, but rather proposed a renewal of legal science through a more complex and reflexive understanding of normativity and of theory. The article contributes to the clarification of a persistent historiographical distortion and highlights its broader theoretical implications.