First section – Introduction

Introduction

“Feuriges Gefühl für das Seinsollende zeichnet die wachsenden Zeiten & Menschen aus.”
(Eugen Huber, dedication on the title-page of Fritz Wartenweiler’s biography)

Introduction: Manifold Characteristics Within a Heterogenous Movement

At the beginning of the twentieth century, the dominant figure in the domain of legal philosophy was undoubtedly Rudolf Stammler, a representative of Neo-Kantian philosophy. Despite a devotion to his authority, this idealistic ground-pattern is modified and altered by Swiss legal thinkers. Eugen Huber is melting the background of German idealism with impacts of the rich Historical School of law tradition, mainly with reference and reverence to Rudolf von Ihering. Walther Burckhardt is amalgamating his adoration to Stammler with renewed positivism, then predominating in the domain of public law. Another important represen­tative of constitutional law, Dietrich Schindler (senior), elects rather Hegelianism, than Kantianism as a philosophical background for his convincing legal thought.

In contrast to this intellectual predisposition, founded on the tradition of German idealism, Natural Law theory is revitalised by Hans Ryffel and Jean Darbellay. Embedded in the revival of Natural Law after the Second World War, these two representatives, however, modernise classical Natural Law theory in two very different ways: the former taking it as a starting point to explore the legal community in a principally sociological manner, the latter fecundating profound thoughts by Jacques Maritain with a personal touch and a typical Swiss inclination.

In French-speaking Switzerland, positivism is still en vogue at that time, celebrating its high tide. The eccentric person of Ernest Roguin for instance is elaborating his own personal pure theory of law in a specific esprit Vaudois. Neo-Positivism as a common ground is still flourishing, while François Gilliard is presenting his dialectical theory of the juridical expe­rience. Another original and lucent, self-declared legal philosopher gives the epigone Arnold Gysin, who connects the circle of Leonard Nelson in Göttingen with his own personal views, inspired by his teacher Eugen Huber and his tutor Walther Burckhardt.

The junctions to existential philo­sophy, phenomenology, and structuralism elaborated by Alois Troller, one of the most inspired and inspiring Swiss legal thinkers, in my opinion, turn out more forward looking, yet not trendsetting.

Excursus: Complex Intellectual Sociology and Sociocultural Mixture

The opening sentence of my summary and overview on legal philosophy and general jurisprudence in Switzerland in the twentieth century, containing an observation and an assertion at the same time, reads transcribed as follows: “In the twentieth century, there exists an original and specific Swiss tradition of lawyers and jurisprudents, who philosophically reflect on the subjects of general jurisprudence and the general theory of the state” (Michael Walter Hebeisen: Schweizer Juristen-Philosophen, in: Jahrbuch des öffentlichen Rechts der Gegenwart, N. S. vol. 50 (2002), Tübingen: J. C. B. Mohr, 2002, pp. 69-100; see entry 1.20 of this Legal Anthology). However, the representatives of this movement are not philosophers of law in the proper sense, but rather “philosopher-jurisprudents”, or “philosophising jurisprudents”, as we have pointed out in the general introduction. We would like to give a number of personal examples, to explore the circulation of legal-philosophical thought in Europe, in order to render this biographical setting more precise:

Karl Mannheim has inaugurated a typological sociological explanation of intellectual knowledge (Ideologie und Utopie, Bonn: Friedrich Cohen, 1929). Switzerland has always been a country who has received refugees for multiple reasons: early protestants from France, in the mid nineteenth century progressive Liberals from Germany, escapees from the Austrian occupation from Italy, members of the Russian intelligentsia in Fin-de-Siècle, and so forth… These individuals deeply enriched Swiss intellectual culture at any point of time. Let us briefly consider some illustrious biographical examples: the precursor of sociology and Rabbi Ludwig Stein, the philosopher Anna Tumarkin and the jurisprudent Peter von Tuhr all from Russia, for instance, or Georg (Ludwig) Cohn from (eastern) Germany, to say nothing about Jews immigrating from Germany in the period of National Socialist regime and beyond.

However, there has not only occurred this kind of importation of foreign intelligence, but in another sense there has also been a considerable exportation: for example, Johann Caspar Bluntschli to Munich, Fritz Fleiner to the Universities of Heidelberg and Tübingen, and Hans Ryffel to the “Hochschule für Verwaltungswissenschaften” in Speyer.

General Situation of Academic Philosophy and Sociology in Switzerland

As a context for legal philosophy and general jurisprudence, the general situation of philosophy in Switzerland cannot be ignored. We encounter Phenomenology and Existentialism as dominating in French-speaking part, German Idealism and Historical School of Law in the German-speaking part of the country, with an inclination to political philosophy (for instance in Hermann Lübbe or Otfried Höffe, both visitors from). The strong idealist tradition goes back to the nineteenth century, namely to the representatives Johann Samuel Ith, Philipp Albert Stapfer, Jens Baggesen, Anne Louise Germaine de Staël-Holstein (Madame de Staël, née Necker), or Benjamin Constant, who hold various forms of Kantianism and Fichteanism, as well as Ignaz Paul Vital Troxler, Carl Hebler, Alexandre Vinet, Charles Secrétan, Ernest Naville, and Henri-Frédéric Amiel, who are primarily oriented toward the philosophical systems established by Friedrich Wilhelm Joseph Schelling and Georg Wilhelm Friedrich Hegel. Moreover we also encounter significant references to the figures of Friedrich Albert Lange, Wilhelm Windelband, Wilhelm Dilthey and Friedrich Nietzsche, in Switzerland with their characteristic inclination toward so-called “Lebensphilosophie“. Finally, there are important representatives of modernist philosophical movements, for example ontology and anthropology in Paul Häberlin, existentialist philosophy in Karl Jaspers, Heinrich Barth, and Ludwig Binswanger, as well as socialist criticism in Jeanne Hersch and Hans Saner. This variety is enriched with the special cases of Karl Jaspers in Basel, an eminent exponent of Existentialism, together with his fellow scholar Annemarie Piper, and the Dominican Congregation, that held the monopoly for philosophy at the University of Fribourg for a long time.

Legal-sociological theory-building is also of great importance for jurisprudence and legal philosophy in Switzerland. After an early and strong presence at the University of Geneva (with Louis Wuarin, Jean Piaget, and Vilfredo Pareto), at the University of Berne (with Ludwig Stein), as well as at the University of Basel (with Edgar Salin), there has been an interrup­tion of the presence of sociology at Swiss Universities due to the student’s revolt in Paris in 1968 (see article “Soziologie”, in: Historisches Lexikon der Schweiz; and Markus Zürcher: Unter­brochene Tradition – Die Anfänge der Soziologie in der Schweiz, Zürich: Chronos-Verlag, 1995). Finally, after far too long, this constellation has normalised and has given way to the foundation of a Swiss Committee of Legal Sociology (“Forschungskommission für Rechtssoziologie und Rechtstatsachenforschung”, within the Swiss Society of Sociology), in 2002.

For Further Reading

Thomas Löffelholz: Die Rechtsphilosophie des Pragmatismus – Eine kritische Studie (in: Monographien zur philosophischen Forschung, vol. 31), Meisenheim am Glan: Anton Hain, 1961;

Manfred Ludwig: Rechtstheorie als Sprachkritik – Zum Einfluss Wittgensteins auf die Rechtstheorie (Dissertation Universität Göttingen 1994; idem: Schriften zur Philosophie und Rechtstheorie, vol. 8), Baden-Baden: Nomos, 1995;

Hans Schultz: Existenzphilosophie und Rechtsphilosophie – Kritischer Bericht über einige Neuerscheinungen, in: Studia Philosophica, vol. 18, Basel: Recht und Gesellschaft, 1958.