Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht: Karl N. Llewellyn und seine Bedeutung heute [1 ed.] 9783428480869, 9783428080861

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Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung

Band 75

Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht Karl N. Llewellyn und seine Bedeutung heute Herausgegeben von

Ulrich Drobnig und Manfred Rehbinder

Duncker & Humblot · Berlin

Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht

Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung Begründet von Prof. Dr. Dr. h. c. Ernst E. Hirsch Herausgegeben von Prof. Dr. Manfred Rehbinder

Band 75

Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht Karl N. Llewellyn und seine Bedeutung heute

Herausgegeben von

Ulrich Drobnig und Manfred Rehbinder

DUßcker & Humblot . Berliß

Gedruckt mit Unterstützung der Fritz Thyssen Stiftung, Köln

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht: Karl N. L1ewellyn und seine Bedeutung heute / hrsg. von Ulrich Drobnig und Manfred Rehbinder. - Berlin : Duncker und Humblot, 1994 (Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung ; Bd.75) ISBN 3-428-08086-6 NE: Drobnig, Ulrich [Hrsg.]; GT

Alle Rechte vorbehalten

© 1994 Duncker & Humblot GmbH, Berlin

Fotoprint: Color-Druck Dorfi GmbH, Berlin Printed in Germany ISSN 0720-7514 ISBN 3-428-08086-6

Inhalt Vorwort der Herausgeber I.

Biographisches 1.

2.

Ir.

7

Stefan A. Riesenfeld: Reminiscences of Karl Llewellyn Uirich Drobnig: Llewellyn and Germany

11 17

Rechtssoziologische Themen

1.

2. 3. 4. 5.

6.

7.

Wolfgang Fikentscher: Die Erforschung des lebenden Rechts in einer multikulturellen Gesellschaft: Kar! N. Llewellyns Cheyenne- und Pueblo-Studien William Twining: The Idea of Juristic Method: A Tribute to Kar! Llewellyn Maria Borucka-Arctowa: Llewellyn's Concept of Law Jobs and Recent Approaches to the Function of Law Erhard Blankenburg : Vom Job rechtlichen Handelns Lawrence M. Friedman: Kar! Llewellyn and the Riddle of Judicial Decision-Making Gregorio Robles: Llewellyns Begriff der Rechtsnorm Rüdiger Lautmann: Das Eherecht in der Sicht des Rechtsrealisten Kar! Llewellyn

45

71

113

125 135

153 165

6

Inhalt

8.

III.

Man/red Rehbinder: Rechtsgefühl, Institutionen und Ganzheitspsychologie bei Karl N. Llewellyn

175

Handelsrechtliche Themen

1.

2.

3. 4.

Ulrich Drobnig: Llewellyn als Transformator deutschen Rechts zum amerikanischen Kaufrecht? Richard M. Buxbaum: Is the Uniform Commercial Code a Code? Michae/ Joachim Bone/l: International Uniform Sales Law and the Uniform Commercial Code: two models compared Günter Hager: Der Einfluß des amerikanischen Rechts auf die deutsche Schuldrechtsreform

Adressenliste der Autoren

187 197 221

243

265

Vorwort An die 30 Teilnehmer aus nahezu 10 Ländern waren der Einladung der Herausgeber dieses Bandes gefolgt und für die Tage vom 21.-23. Mai 1993 nach Leipzig gekommen. Der 100. Geburtstag von Karl N. Llewellyn sollte nicht unbemerkt verstreichen. Das Andenken an diesen bedeutenden amerikanischen Juristen sollte durch ein wissenschaftliches Symposium an dem Orte wachgehalten werden, an dem er mit großem Erfolg zwei Jahre lang als Gastprofessor gewirkt hatte. Den Auftakt des Symposiums bildeten zwei Referate zum Leben von Llewellyn. Das erste, besonders persönlich gefärbte Referat von Professor Riesenfeid (Berkeley) mußte leider mit Hilfe einer Kassette abgespielt werden, da der Verf. wegen einer schweren Erkrankung an das Bett gefesselt war. Herr Riesenfeld hatte bereits als junger Universitätsassistent Herrn Llewellyn bei einem Vortrag in Breslau im Dezember 1928 kennen gelernt und betreut. Er hat diese Bekanntschaft nach seiner Emigration in die USA im Jahre 1935 erneuert und sie bis zum Tode von Llewellyn gepflegt. Im zweiten Referat berichtete Ulrich Drobnig aufgrund von Archivstudien und brieflichen wie persönlichen Gesprächen über die vier Stationen von Llewellyns Leben in Deutschland zwischen 1907 und 1933. Die anschließenden Sachreferate standen unter dem Generalthema der heutigen Bedeutung des Werkes von Llewellyn und konzentrierten sich auf seine Wirkungen als Rechtssoziologe einerseits sowie als Fachmann des Handelsrechts, insbesondere als Hauptverfasser des amerikanischen Uniform Commercial Code, andererseits. Die Diskussionen der rechtssoziologischen Gruppe wurden eingeleitet durch ein Grundsatzreferat über Llewellyn als Rechtsanthropologe und die Bedeutung der Rechtsanthropologie für seine Rechtstheorie und Rechtssoziologie. Danach befaßten sich drei Beiträge mit Llewellyns berühmter Theorie von den «law jobs». Es folgten Beiträge über das für Llewellyn zentrale Thema der richterlichen Rechtschöpfung und der Rechtsnorm, über seine Leipziger Vorlesungen über Eherecht sowie über die Bedeutung der in Leipzig vertretenen Ganzheitspsychologie für Llewellyns Rechtssoziologie.

8

Vorwort

Die handelsrechtIiche Gruppe beschäftigte sich mit möglichen, durch Llewellyn vermittelten Einflüssen des deutschen Rechtes auf den Uniform Commercial Code; mit einem Vergleich der Kodifikationsidee in den USA und in Deutschland; mit einem Vergleich des Kaufrechtes im Uniform Commercial Code und im Wiener Übereinkommen von 1980 über internationale Warenkäufe; sowie mit Einflüssen des amerikanischen Rechtes auf die Reform des deutschen Schuldrechts. Kein Teilnehmer des Symposiums hat sich der Faszination entziehen können, die noch heute von Person und Werk Kar! N. Llewellyns ausstrahlt. Möge auch dieser Band einen Eindruck von den bedeutsamen Anregungen vermitteln, die wir noch heute Llewellyn verdanken, und damit zugleich ein Zeugnis für eine geistige Brücke sein zwischen Nordamerika und Deutschland, ja Europa und der Welt. Der Thyssen Stiftung gebührt besonderer Dank für die finanzielle Förderung des Symposiums und dieser VeröffentIichtung. Hamburg/Zürich, im Januar 1994 Ulrich Drobnig

Manfred Rehbinder

Preface Almost 30 scholars from 10 countries accepted the invitation of the editors of this volume to come to Leipzig from 21-23 May 1993. The l00th birthday of Karl N. Llewellyn was not to be allowed to pass unobserved: the memory of this important American jurist was to be honored at a symposium in the city in which he made a great impact when he was a guest professor there for two years in the late 1920s. The symposium commenced with two contributions on the life of Llewellyn. The first, a very personal tribute from Professor Riesenfeld (Berkeley), unfortunately had to be delivered by cassette because the author was confined to bed due to a serious illness. Riesenfeld was a young assistant at the University of Breslau when he first met Llewellyn. In December 1938 Llewellyn gave a lecture in Breslau und Riesenfeld looked after hirn while he was there. This acquaintance was renewed after Riesenfeld had emigrated to the United States in 1935 and contact was maintained until Llewellyn died in 1962. In the second paper, Ulrich Drobnig gave abrief account of the four periods Llewellyn spent in Germany between 1907 und 1933, relying on the Llewellyn file and on personal correspondence and conversations. The general theme of the presentations which followed was the present-day significance of Llewellyn's work. They concentrated on his influence as a legal sociologist on the one hand, and, on the other hand, as a commercial law specialist who was also the main author of the American Uniform Commercial Code (UCC). The deliberations of the sociology group began with a paper which presented a fundamental analysis of Llewellyn as a legal anthropologist and the place of anthropology in his legal and sociological theories. This was followed by three contributions on Llewellyn's famous «law jobs» theory, and then by further papers on judge-made law and the nature of legal norms (of central importance to Llewellyn's thinking), on his Leipzig lectures on the law of marriage, and on the significance of holistic psychology for his legal sociology. The commercial law group dealt with the possible impact of German law upon Llewellyn's work and, through hirn, on the Uniform Commercial

Preface

10

Code and with a comparison of the views on codification which prevail in the United States and in Germany. Other topics were the influence of American law on the reform of the German law of obligations as weIl as a comparison of the sales law in the UCC and the Vienna Convention on the International Sale of Goods of 1980. The personality and the work of Karl N. Llewellyn still fascinate present-day academic lawyers, as was amply evident in the reactions of all the participants. It is hoped that this volume will convey some impression of the stimulating ideas and impulses wh ich we owe to Llewellyn even today, and will bear testimony to the intellectual links between North America and Germany, and even Europe and the world. We thank the Fritz-Thyssen-Stiftung for its financial support of the symposium and of this publication. Hamburg/Zürich, January 1994 Ulrich Drobnig

Manfred Rehbinder

Reminiscences of Kar! Llewellyn By Stefan A. Riesenfeld

It is both an honor and a pleasure for me to be able to contribute a few remarks to a Conference to commemorate the l00th anniversary of one of the celebrated jurists who are natives of the V.S. It is proper that this conference is held at Leipzig because this city was the stage where Llewellyn, then already prominent among V.S. academies, ascended to international recognition. I hope that I do not sound immodest when I confess that I feel that the late Professor Llewellyn would not have disapproved of me as a speaker since our friendl y relationship spanned aperiod lasting from 13. December 1928 to KNL's death in 1962, that is half of his life. The date of the time when I first laid eyes on KNL is not deeply engraved in my memory - but the occasion is: his lecture on legal education in the V.S., given at my alma mater, the Vniversity of Breslau, as it then was called. The exact date I owe to the diligence and orderliness of my friend Vlrieh Drobnig who as visiting lecturer in Chieago organized the LleWellyn correspondence with his German colleagues and created a file entitled: File IV: German Legal Correspondence. The file contains 21 subtitles, but the Vniversity of Chieago, Law Library, to my regret, declined to xerox the whole file for me and restricted me to 8 subtitles. I chose Hedemann, Hoeniger, Nussbaum, Rosenstock-Hüssy, R. Schmidt, Schmidt-Rimpler, Schoch and Wüstendörfer, because in my later years I had contacts with all of them, except Schmidt and Wüstendörfer. The lecture which I mentioned was entitled Über das Studium der Rechtswissenschaft in Amerika, a subject whieh was also the object of a learned article in 79 Jherings Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts 1928/29 p. 234. Incidentally the written «Vortrag» does not do justiee in KNL's oral delivery. I remember distincdy the vivacious, pointed and almost possessed style, full of puns and clever formulations. Thus, if you read the laborious written version, you will not find the epithet whieh the speaker used to capsulize the gist of the case method of the V.S. law schools. He called it, using an unforgettable phrase, the «Schwimm- und Schwamm-Methode». The student is thrown into a sea

Stefan A. Riesenfeld

12

of cases and, at examination (blue-book) time, the acquired knowledge is squeezed out of her or hirn (as the case may be), like out of a sponge. True, in his written form KNL referred to the pre-case law method as the «wohlbekannte Schwamm-Methode»!, but when he discusses the present type of examination2 he avoided the label he used so impressively in his oral delivery. In general, I was struck by his unusual teaching style. As a matter of chronology, KNL was then 35 years old and I was 20 years old, planning on an academic career and avidly absorbing knowledge, areverse function of a schwamm. I was assistant to Professor Schmidt-Rimpler, in that year the Dean of the law faculty. Because of that fact, I was to entertain Professor Llewellyn during his stay if he wished to learn more about Breslau or the University and, as I see m to remember, we chatted a while about the intellectual life of the city which Goethe on ce called «distant from cultured people» (fern von gebildeten Leuten). Although areturn visit by KNL to Breslau was planned du ring his second visit to Leipzig3, I am not aware that it materialized. Unfortunately, the dean at that time was Hans-Albrecht Fischer, but I have no record of any correspondence between Fischer and KNL. I mentioned the characteristic ebullient and unorthodox style of Llewellyn as a speaker and teacher, a matter which did not escape his colleagues and students. In one of the latest biographies of KNL, that by my colleague, Prof. Thomas G. Barnes4 , the author comments on KNL's flamboyance and his highly personalized prose5 • 79 Jherings Jahrb. p. 246. 2

Op. cit. ftn. 8.

3

Letter of SCHMIDT-RIMPLER to KNL dated 18.11.29.

4

Karl Nickerson LlewellYII On Legal Realism, Notes from the Editor, 1986, The Legal Classics Library, Ltd., Division of Gryphon Editions, Inc.

5

Llewellyn's delight in puns and clever expressions did not prevent his humor from at times striking the reader as heavy-handed and convoluted. This side of this writings is illustrated by his essay on Jurisprudence, The Crown of Civilization, Being Also the Principles of Writing Jurispruden'ce Made Clear to Neophytes (1938 U. Chi. L. Rev. 171). Represented as posthumous publication of a tract written by the late Diogenes Jonathan Swift Teufelsdrökh, Q.E.D., the true author, patently inspired by Thomas Carlyle's Sartor Resartus, The Life and Opinions of Herr Teufelsdröckh - first published more than a century before Llewellyn's counterpart -, used this form of literature to vent his wrath against those dwellers in the «multidimensional House of Jurisprudence» who

Reminiscences of Karl Llewellyn

13

Llewellyn engaged in an interesting exchange of letters with his German colleagues, always using English as his language but usually in response to invitations or other letters in German. The most remarkable file which was available to me was his correspondence with Arthur Nussbaum (1877-1965), then «Universitätsprofessor» in Berlin. The first letter is by Llewellyn, dated 29.8.1929 and informed Nussbaum that he alerted W.W. Cook at John Hopkins of N.'s interest in his Institute. The letter inc1udes greetings to Mrs. Nussbaum, indicating that Llewellyn had enjoyed the hospitality of the family N. during his first stay at Leipzig. The second item in the file is a letter by N. to LL., thanking hirn for an offprint of KNL's artic1e in Jherings Jahrb., and professing to be «frappiert)) about KNL's footnote reference to N.'s work and protesting against LL.'s narrow interpretation of the Rechtstatsachenforschung. Llewellyn's reply smoothed N.'s ruffled feathers. The correspondence between the two contained a number of letters of growing cordiality, lasting from 1930 to 1933, Le. until Nussbaum's invitation to join the Columbia faculty. I might mention that Nussbaum sent a young German scholar named Dr. Wolff to be an assistant to Llewellyn and the latter expressed his satisfaction with Dr. Wolffs work. Incidentally, Dr. Wolff later had a distinguished career in the U.S. Department of Justice and he kindly sent me a welcome to the U.S. wire when the S.S. New York brought me to the U.S. I had met Professor Nussbaum when I was a student in Berlin and I again had c10se contacts with hirn when I spent a stage of my service as a Referendar with the firm Pinner, Beutner und Schmidt in Berlin in 1932. Nussbaum published my first book in his Abhandlungen. It dealt with the legal nature of the relation between insurer and insured in mutual insurance companies. Let me at this point correct amistake conceming the inc1usion of my dissertation in the Nussbaum series. It was «Rechtstatsachenforschung)). It was based on almost 100 charters (Satzungen) of this type of associations, but because of the printing costs that part never got published. misapprehended, misrepresented, miscontrued or, worse, ignored the teachings of the Realist Movement, including its major prophet KNL. Although studded with billiant formulations, such as Multiguity, the total style of the persiflage seems overly be\abored. About the impact of Sator Resartus on Llewellyn's thinking and style see Barnes, op. cit. at p. 8. Professor WILLIAM TwINING in Karl Llewellyn and the Realist Movement likewise comments on Llewellyn's attraction to Carlyle's work and style, loc. cit. p. 120. He lists the essay published under the pseudonym in the U. of Chi. L. Rev. in The Karl Llewellyn Papers (1968), Nr. 245.

14

Stefan A. Riesenfeld

The next time I saw Llewellyn was on Jan. 6, 1935 after my arrival in New York and on my way to Berkeley where I had been appointed as «research associate». I received this appointment when I was in Italy, owing to the warm recommendations of several friends and benefactors, among them on the German side Walter J. Becker (later Professor in Berlin), Professor Schmidt-Rimpler and Professor Nussbaum, and on the V.S. side Professor Radin and Dean O.K. McMurray. When I prepared this paper I found 2 letters which changed my life. One, dated 19.11.1933, was by Prof. Schmidt-Rimpler to KNL asking hirn to help in facilitating my appointment to Berkeley in a procedure already initiated by Prof. Max Radin. The other letter was by Professor Llewellyn to Dean McMurray, dated Sept. 6, 1933 (i.e. prior to Schmidt-Rimpler's letter), recommending my appointment on the strength of my dissertation and my contacts with and endorsement by Nussbaum. When I finally finished my duties in Milan and arrived in New York on Jan. 5, 1935 my first venture on the following day was a visit with Llewellyn. He received me in his office at the old Law School building, in the presence of his secretary. He spoke English which I barely understood and gave me all kinds of advice. He counselled that I must leam to speak the language «flawlessly», repeating flawlessly three times with increasing emphasis. When I meekly retorted that at my age (then 27 years), it might be impossible to comply with that requirement, he terminated that issue with a characteristic Llewellyn joke: WeIl then we will change the language. He found it funnier than I, so he leaned back to see whether the secretary thought it was a good joke. Another piece of advice impressed me more. He mentioned the failure of courses in comparative law and told me never to reveal when I relied on an idea coming from continental Europe, because that would be «the kiss of death», again reiterating that admonition three times over so that it would sink in as it did. After that I did not have any contact with Llewellyn until1938 when I joined the Vniversity of Minnesota Law School faculty. From then on I met Llewellyn frequently until his death in 1962. He as weIl as I attended the meetings of the Association of American Law Schools at the old Edgewater Beach Hotel in Chicago and met both at the serious sessions and the entertainments, usually staged by Llewellyn's friend and fellow Weishman, William Lloyd Prosser. Since Prosser was a personal friend of KNL and also a colleague and good friend of mine, Prosser, Llewellyn and I shared

Reminiscences of Karl Llewellyn

15

many get-togethers and often Llewellyn and I would have discussions about the New Deallegislation, commerciallaw and law reform. Llewellyn knew that I admired hirn greatly for his e. and D. (craftsmanship and draftsmanship) and his unparalleled skill in dealing with wh at you may call spokesmen for vested interests. I leave the assessment of Llewellyn's accomplishment as architect of the U.C.e. to other, more qualified participants. I would, however, like to make one more point: Llewellyn was intimately acquainted with German doctrinal developments. He must have been acquainted with Oertmann's theory of the Geschäftsgrundlage, a parallel to the English doctrine of frustration, and an offshoot of Windscheid's doctrine of the Presupposition (Voraussetzung), to excuse non-performance of obligations. The doctrine was relied upon by the German Reichsgericht to equalize the effects of the rampant inflation. The Llewellyn correspondence shows that he received Hedemann's Reichsgericht und Wirtschaftsrecht (1929) and the multi-volume set of the Reichsgerichtspraxis im deutschen Rechtsleben; both acknowledging Oertmann's pioneering solution of a troublesome issue. The corresponding section in the U.e.e. (Sec. 2-615) and its predecessors in the various drafts bear witness of its German model. Thus the Report and Second Draft of the Revised Uniform Sales Act of 1941 provided in Section 54: «Failure of Facilities for Transportation or other Presuppositions. (2)

The seHer is excused from liability for ... complete or partial non-delivery due to ... causes beyond the seller's control which amount the failure of an essential presupposition of the contract for which the seIler has not assumed responsibility.

(3)

The principle which underlies this section is that on failure, not due to fault, of apresupposition tacitly assumed by the parties in bargaining, exemption from liability is proper.»

In 1944 the Uniform Revised Sales Act (Sales Chapter of Proposed Commercial Code, Proposed Final Draft No. 1 of April 27, 1944), provided: «Section 88, Merchants' Excuse by Failure of Presupposed Facilities or Conditions.

16

(1)

Stefan A. Riesenfeld

Delay ... or non-delivery in whole or in part ... has been made impracticable by (a) strike, damage to plant, riot, failure of manpower or of transportation ... or other facilities, when the non-occurrence of such contingency was a basic assumption on which the contract was made and its occurrence was not avoidable by the reasonable efforts of the seIler; ... »

Professor Kötz has taunted me that I had no proof for my prior assertion. WeIl, here it iso When I think of LIewellyn today I remember his quest for being appreciated coupled with a self-assurance comparable to that of Eike von Repgow who wrote in the proemium to the Mirror of the Saxons: Maneger wenet ein meister sin binnen sineme krenge, de kume bleve ein meisterlin life he mit mir de lenge. LIeweIlyn personified his famous simile to the law, the bramble-bush, including the white flame emanating therefrom. He was a law-man and a showman, who possessed the right stuff to perform a difficuIt law-job with verve and in a grandiose manner. Today the u.c.e. has lost its lustre and is in the process of being made over lock, stock and barrel. It is only fitting to commemorate LIewellyn's great achievement.

Llewellyn and Gennany By ULrich Drobnig

In the following pages an outline will be given primarily of the more extemal contacts Llewellyn had with Germany. They are the basis which will permit to appreciate later on the intellectual influences exercised by Germany on Llewellyn and those which have emanated from hirn on Germany. Llewellyn's contacts with Germany may be divided into two fairly large periods. The time from 1908 to 1915 covers his three years at school in Schwerin and his brief war adventure. These years have been of formative influence on the young man. During the years of 1928 to 1932 he spent two extended periods of study at Leipzig University. They helped to mature the creative thinker and personality.

A.

Y outh time in Gennany (1908-1915)

In the first German period, the most decisive influences on Llewellyn's laterlife were brought about by the three years he spent at school in Schwerin from 1908 to 1911. The war adventure was only a short episode which apparently left no distinctive marks in the life of the man.

I.

School in Schwerinjrom 1908 to 1911 1

In 1908, probably at Easter, at the age of sixteen, Llewellyn came to school in Schwerin; he entered the «Obersekunda» (the third highest form) of a

The most imponant source of infonnation on this time are the personal accounts of Hans Lachmund (Berlin), a dass-mate and dose friend of LleweHyn. Other sources are indicated expressly. For the dates see further: «Das Realgymnasium zu Schwerin (Meckl.) 1835-1935)) (1935) p. 128 as weH as «Uns' oll Schaub> (Mitteilungen der Altschülerschaft des Realgymnasiums in Schwerin (Meckl.» no. 2 (March 1932) p. 38. 2 Drobnig I Rehbinder

Ulrich Drobnig

18

grammar schooJ.2 At Easter 1911, he passed his «Abitur» (maturity, A-1eve1 examination). As Hans Lachmund, a class-mate and close friend of Llewellyn at Schwerin recalls, it was due to a mere accident that Schwerin was chosen and with it a town in Germany: Llewellyn's father had had a talk with Heinrich Musäus, an American of German extraction, in a drugstore in his home-town, wh ich was probab1y Brooklyn, and had told hirn that he intended to send his talented son to Germany or France for further education. Mr. Musäus mentioned that he had a brother in Schwerin and said that he would ask hirn to put Llewellyn up in his house. And in fact Llewellyn lived with the brother of Heinrich Musäus, Adolf Musäus, and his wife «aunt» Elisabeth during all his time in Schwerin. On his arrival in Schwerin Llewellyn could already speak German reasonably weH. The language presented no real difficulties for hirn and he soon become almost word-perfect. In addition he leamed the «Mecklenburger Plattdeutsch»3 (the low German dialect spoken in Mecklenburg) from his fellows. For the rest his interest in foreign languages was not great. His French was not good and his Latin poor as he had from the beginning spared any effort with it. He never leamed Greek. 4 Surprisingly he took great interest in the English lessons given by Lachmund's father, who was especially sensitive to the linguistic richness of Shakespeare's style and who intensified Llewellyn's sense for language considerably. Llewellyn was always aware of this stimulus and was grateful for it. He repeatedly stated that it was not till he had stayed in Germany that he discovered the beauty

2

The statements of Rheinstein in his obituary on L1ewellyn (RabelsZ 27 (1965) 601 ff., 604) according to which L1ewellyn had been a pupil of the «Humanistische Gymnasium» at Wismar and had learned, among other things, Greek are due to amistake. This is evident as to the place and the type of school. In addition, Lachmund has affirmed expressly in his talk with me that neither L1ewellyn nor he himself had ever leamed Greek, as the Realgymnasium did not offer any opportunity to do so. The intention they now and then had had to learn Greek at the «Humanistische Gymnasium» never realized due to their laziness.

3

In the paper issued by the «Abitur» candidates at Easter 1911 a sampIe of an English-Low German essay can be found, «Uns oll Schaub>, see supra n. 1, no. 2 p.32) which probably has to be attributed to L1ewellyn.

4

See supra n. 2.

Llewellyn and Gennany

19

and singularity of the Shakespearean language. In a small reading cirde he introduced some of his school-friends to the humor of Mark Twain. 5 Llewellyn adapted hirnself very quickly to his environment. In his dass he was immediately accepted as an equal. Only once did the school make hirn feel he was not a German. When Llewellyn was chosen by his dass-mates as one of the three deputies who in the name of the two highest forms were to congratulate the Duke of Mecklenburg at the birth of his son, the fellows of the other dasses refused the foreigner. He was hurt by this exdusion. Those of his dass-mates who are still alive describe LleWellyn as sociable, modest, quiet, and pensive but unmistakably intelligent. 6 A photograph from 1910 shows an innocent schoolboy's face. In the «Abiturzeitung» of Spring 1911 (the paper published by the graduating dass) the six candidates were characterized and their path through life was forecast. It was said about Llewellyn (called Nelly WeIl, which was one of the many ways his name was made fun of) that he stood out because of his «titanic energy» and «fanatic ambition». He is said of wanting to become an attomey. It was predicted that he would one day be elected Mayor of New York and lateron President of the Uni ted States. In this function he would «solve the problem of the negroes wh ich had for centuries been impedimental to the development of America and attack the trusts with all his energy ... Under his govemment the People's Party will soon increase and will soon become the mightiest in the whole Uni ted States.» Lachmund told me that this characterization was to the point and acknowledged that Llewellyn had at that time often discussed the political problems mentioned. Llewellyn and Lachmund shared at the time the radical way of thinking which seems to be typical of all young people. They considered the monarchy in general and especially the monarchs of the sm all German states to be obsolete remnants of the past. Politically they both tended to the left, in sexual matters to free love and in religious matters to atheism; this last had been of lasting influence until his later years. Llewellyn had no connection with the German youth movement which had begun to flourish at the time he was staying at Schwerin. He also had at that time no taste for the large brick-built churches of Northem Germany which he later so admired. 5

Infonnation given by Mrs. Ursula Karsten (Schwerin).

6

See supra n. 3.

2'

20

Ulrich Drobnig

During his time at Schwerin Llewellyn was a very elose friend of his elassmate Hans Lachmund. As their interests were mutually supplemental they often worked together. Llewellyn was very good in mathematics and natural sciences whereas Lachmund put more effort into languages. This friendship lasted throughout their lives. Even after their time at school the friends continued to exchange letters; this exchange was very intensive especially in the beginning. They saw each other frequently du ring the two years Llewellyn stayed at Leipzig, and it was there that Llewellyn met Mrs. Lachmund, whom he held in very high esteern. She visited hirn at a Quaker conference which took place in Swartmore, in New Y ork in 1937. The last time that Lachmund saw Llewellyn was in 1956 in Chicago. Llewellyn as weIl as Lachmund admired at Schwerin a young girl called Liesel Spencker. She later married Wilhelm Frels, a sub-director of the «Deutsche Bücherei» (the German central book repository) at Leipzig. Llewellyn mentions this girl again and again in his letters. «And Liesel gave for ten years the example to which every girl who wanted to please me had to adapt herself. Even my wife has much in common with Liese!.»? Later at Leipzig he was a frequent guest of the Frels family and he payed much attention to her. It was with Mrs. Frels that he made his tour of the cathedrals in France in the early summer of 1932. Llewellyn retained a feeling of great attachment to his old school in Schwerin. In 1931 he joined the old boys' association which had been founded a short time previously. To settle his «moral debts at his old school» which had granted hirn reduced fees as a school-boy he donated 400 Marks. In January 1932 he also participated in a speech-day where he was praised (very much to his disgust) for his donation.8 He even passed incognito a day in the A-level elass (fearing the Latin lesson!)

11.

The war adventure 19/4/1915

In autumn 1914, Llewellyn participated for one mont" as a German volunteer in World War I and was wounded in Flanders. This adventure is one of 7

Letter written by Llewellyn to Lachmund on August 17, 1927.

8

«Uns' oll Schaui» (supra n.l) no. 2, p.32, 38; exchange of letters with director Dr. Mehr of November 13, 20 and 24, 1931; exchange of letters with Edmund Schröder of November 13 and December 12, 1931 and May 25, 1932.

Llewellyn and Gennany

21

the most surprising episodes in Llewellyn's life and, in particular, in his eontaet to Germany. The role of a soldier on the German side was in fact rather remote from Llewellyn. He was studying at the Sorbonne in Paris when the war broke out. His sehool-mate Laehmund had passed a semester at Paris before hirn, and had heard among other subjeets courses on general sociology under Charles Gide and soeiology of law under Rene Worms. He reeommended warmly to Llewellyn to go to Paris, too, be it only for one semester. When the war broke out Llewellyn was, however, neither together with Lachmund nor with any other German class-mate of his. 9 He made his way from Paris to Germany via Holland. 1O At OsnabTÜek, a garrison not far from the Duteh frontier, he reported as a volunteer to the regiment 78 ofthe infantry on August 10,1914, Le. hardly a week after the war broke out)l As he was not asked at the beginning for any papers he joined the army without difficulties. But when the first transport of volunteers departed to the battle-field late September/early Oetober 1914 the eitizenship of Llewellyn was diseovered. In addition the American ambassador in Berlin had intervened in the meantime on a demand of Llewellyn's father and had asked for his sons's dismissal. 12 Therefore, Llewellyn was dismissed and wore civil clothes again. Very mueh against his will: Furiously he immediately wrote to the ambassador saying that he had reaehed the age of 21 and that it was beyond his eomprehension why his father had the right to poke his nose into his military ambitions. 13 Thereupon the ambassador withdrew his demand for dismissal - but too late. When on October 9, 1914 a further transport of volunteers made forth to the front Llewellyn jumped as was repeatedly reported l4 - onto the train when this was cautiously ta9 10

Infonnation given by Lachmund. Infonnation given by Hans Musäus (Dierhagen).

11

The date results from the certificate of the LR. 78 of April 29, 1915, mentioned infra n. 27.

12

The ambassador mentions this episode in his book on his years in Berlin: James W. Gerard, My four years in Gennany (1917) 237-238. He emphazises that this was the only case of an American volunteer in Gennany that had come to his knowledge. Gerard ibid. Account given in a letter by Hans-Gerd Rabe (Osnabrück); also Gerard ibid. and Hans Musäus (supra n. 10).

13 14

22

Ulrieh Drobnig

king abend near Osnabrück. The civilian was cared for by the group of the sergeant Krause and he was smuggled along until the transport reached the regiment 78 of the infantry at the front on October 15.1 5 Here the «stowaway» was introduced to the commander of the fourth company (I.battalion), Lieutenant of the reserve Schulte who permitted - although with greatest scruples - that Llewellyn was integrated into the company. The civilian was transformed into a German soldier by a companion who procured some ofthe equipment lying about in the battle-field.'6 No details about the adventures Llewellyn had during his military service have come to our knowledge; there was little occasion for adventures during the positional war at the front of Flanders. In the opinion of one of his companions he was kept away from danger by his superiours as far as possible. Peter Wörmke, apparently the only soldier with whom Llewellyn lateron kept any contact mentioned later in one of his letters to Llewellyn: «Do you remember that we talked about 'De bello Gallico' in the trench at Courcy and that we praised Julius Caesar?»17 The presence of a foreign volunteer caused at that time admiration among the young German soldiers of his regiment. 18 Llewellyn's war adventure came to a sudden stop when he was wounded on November 17,1914.1 9 On this day the regiment No. 78 prepared for a rushattack on Ypres which had no success, however, in spite of terrible 10sses.2o Llewellyn received a flesh-wound by a rifle buHet on the back and probably

15

16 17 18 19 20

The date results from the eertifieate of the eommander of the eompany, mentioned infra n. 27. Aeeording to the offieial history of the regiment (Fritz Ebeling, Geschichte des Infanterie-Regiments Herzog Friedrich Wilhelm von Braunschweig (ost/riesischen) Nr. 78 im Weltkriege [History of the InfantryRegiment Herzog Friedrieh Wilhelm von Braunsehweig (ostfriesisehen) No. 78 in the World War] (1927) p. 51), on Oetober 15, 1914, a transport of five offieers and 404 soldiers (most of them volunteers) arrived at the regiment. Rabe (supra n. 14). Letter by Peter Wörmke to Llewellyn ofJuly 16, 1926. An aeeount given in a letter by the retired General Fritz Ebeling (Bad Homburg), see supra n. 15. In the letters Llewellyn and Wörmke exehanged on September 2 and 17 and Oetober 21, 1926 they wrongly fixed the date of November 14 as the day Llewellyn was wounded. For details see Ebeling (supra n. 15) p. 56 ss.

Llewellyn and Gennany

23

passed a night in the open-air before he was found. 21 He stayed in the military hospital at Nürtingen from November 21, 1914 to February 8, 1915 and was then dismissed to his unit, as his wound had healed.22 It is probably because he was wounded that he received the Iron Cross which he took with hirn to the States.23 The hearsay, however, that he was promoted to sergeant24 cannot be confirmed.25 In the meantime LleweIlyn's parents had asked the German ambassador in Washington for help who intervened with the German military authorities. 26 Llewellyn hirnself apparently no longer objected to his dismissal either. On February 16, 1915, one week after he had been dismissed from the military hospital, the military career of Llewellyn was brought to an end by an order of the horne headquarter of the X.army corps (stellvertretendes Generalkommando des X. Armeekorps); he was dismissed «because he did not want to give up his American citizenhip». The commander of the company as weIl as the commander of the horne battalion at Osnabrück issued certificates saying that he had never sworn an oath of allegiance (Fahneneid).27 A few days later, on February 20, 1915, the American ambassador in Berlin issued an emergency passport to Llewellyn for his voyage back to the States via Copenhagen; he was advanced 8 $ to cover

21

Thus the report on Llewellyn's war adventure which appeared under the tide «An Undergraduate Veteran» in the «Literary Digest» vo1.50 (1915 I) p. 908, being based on the interview Llewellyn's mother granted the newspaper. In this interview Llewellyn's mother said that Llewellyn was wounded twice, the second time at the chin; the medica1 records, however, do not affinn this statement.

22

I owe these indications from the history of the medical record to the Krankenbuchlager in Berlin (1-4608-09). The wounds at first did not cause any trouble to Llewellyn after they had healed; only in his old age he again complained of them (infonnation given by his third wife, Professor Soia Mentschikoft).

23

The interview mentioned supra in n. 21 describes correcdy the Iron Cross preserved by Llewellyn's mother.

24 25

Thus the interview mentioned supra n. 21. Rabe (supra n. 14). Also the papers issued after his dismissal by various units do not mention any rank, but mention only the volunteer Llewellyn. The official documents (Stammrollen) of the whole Prussian Army were destroyed by an air-raid in February 1945. Interview ofLiewellyn's mother (supra n. 21).

26 27

Certificate of the horne battalion LR. 78 of April 29, 1915; undated certificate of the fourth company I.R. 78.

24

Ulrich Drobnig

his travelling costs. He probably left Gennany on February 23, 1915 via Warnemünde. 28 In the beginning of March he arrived in the States.29 Before his departure Llewellyn apparently went several times to Schwerin. Since his time at school he had been a friend of Else Hagen, to whom he had considered hirnself as being engaged at that time. After he had been dismissed from the military hospital be became officially engaged to her.30 Their relation was, however, soon put under strain as the parents of Else Hagen insisted that Llewellyn should stay in Gennany. After the United States had joined the war their engagement broke off completely.3 1 After his return to the States Llewellyn gave quite a number of lectures, probably above all in Gennan-American clubs.32 It is easy to imagine that the wounded and decorated man, who was not a Gennan, was celebrated as a hero and was easily identified with Gennan patriotic desires and aims. But apparently he dissociated himself from this very soon by painting an objective picture of Gennany and of her not too favourable position in the war. In addition Llewellyn soon realized that the Americans being individualists could not take a lively interest in what Llewellyn tried to present to them as the «Gennan idea»: this «discipline, the individual's merger with the community»)3 That Llewellyn had always remained an American can even more clearly be seen from his attitude at the moment when the United Status joined the war. He returned the Iron Cross to a Gennan consulate (or some office concerned with the protection of Gennan interests»)4 He applied to the American Anny for acceptance but was refused because he was considered to be endangered after having served in the Gennan anny (although he had never sworn an oath of allegiance) and perhaps also as a security risk. He succee28

See the dates in the passport of February 20, 1915.

29

Interview of the mother (supra n. 21).

30

The engagement had not become much known, however (according to information given by Mrs. Ursula Karsten, supra n. 5).

31

Personal communication by Lachmund.

32

In an extract of a letter written by an unknown (German-American) author of March 10, 1915 (it probably should read: 1916 or 1917, as Llewellyn only retumed from Germany in March 1915) are mentioned: The German Club of Columbia U niversity, an association of teachers and one of veterans.

33

Letter of Lachmund of February I, 1917.

34

This is based on a personal communication by Lachmund.

Llewellyn and Gennany

25

ded, however, in having the odious classification of 4 F (morally defective) altered into 4 X - a category of disability invented especially for him.3 5 Which meaning can be attributed to the war adventure of Llewellyn from the psychological point of view? An explanation concentrating on the war months in Germany only and neglecting the total of the profile here given of Llewellyn would surely mislead. According to what we know from friends and relatives it can be taken for sure that Llewellyn did not fight on the German side because he believed in the German cause.36 There is more reason to believe that Llewellyn did not want to miss the experience of having taken part in a great war. It is comprehensible that he feIt more affection for the German side, the country where he had gone to school - at least as long as his own country had not joined the war - than for the French side or the British; the latter he loathed. That he risked his life on the German side although he was a foreigner and not of German extraction deserves all admiration and respect. This the more as he was apparently the only American who fought on the German side. None of the Americans of German stock who at the time were very patriotically minded towards Germany had dared to take this risk.3 7 But this report also shows the limits of Llewellyn's participation. After he had been wounded and had stayed for two months and a half in the military hospital he evidently made no objections to his dismissal from the German army. Above all he very firmly clang to his American citizenship. It was probably to avoid risking it that he refused to swear an oath of allegiance to Germany and that he had insisted to have this certified several times. He objected even more to the proposal to renounce his American citizenship. That he reported as a volunteer when the Uni ted States joined the war and thus accepted to fight against his former war companions is a breach, how-

35 36

Infonnation given by his widow, Professor Soia Mentschikoff. Personal infonnation from Lachmund and Llewellyn's widow, Professor Soia Mentschikoff. The letter mentioned supra n. 32: «But nowhere the slightest understanding of the justice (justness?) of the Gennan cause .... ». Finally a late testimony given by Llewellyn himself (about 1937) in the draft of a letter to Gaston Dermine (engineer at Paris) when describing the complaints of the German-Americans about his speeches: «he does not understand anything of the seriousness, of the sanctity of the cause! In fact, I did not.»

37

Gerard (supra n. 12).

26

Ulrich Drobnig

ever, which it is difficult to understand. 38 It is probably for this reason that he later talked very rarely about his service in the Gennan anny - even to Gennans. This Gennan war adventure for wh ich Llewellyn had risked so much was to arouse interest in the American as weIl as in the Gennan public. It is easily conceivable that the very personal motives of the central character were overlooked and were replaced by the general political conceptions of the respective commentator. The interview which Llewellyn's mother granted the «Eagle» - a Brooklyn paper - had, when published in the «Literary Digest»,39 a slight but all the same undeniable touch of mockery about it. This very interview was also reproduced in the Gennan press.40 There Llewellyn the hero was reproachfully presented as an example to the «dis loyal» Americans of Gennan stock - «those who deny their homecountry» - and to the own compatriots. A late consequence of this Gennan war adventure happened when Llewellyn ran for a political office in 1937 in New York. He was characterized by the opposition in a heavy type headline (probably wrongly) as «The Emperor's Sergeant».41

B.

Visits to Gennany during the years 1928 - 1932

During the years 1928 to 1932 Llewellyn came to Gennany twice for studying purposes, staying at Leipzig for about nine months each time. This city was for hirn the starting point for many joumeys and the place where he made many friends. Although each of the two visits had an intellectual significance of its own, the stays are so closely connected as to space, time and personal experiences that they can, on the whole, be presented at the same time. 38

This breach did not come about unexpectedly. Already in the letter mentioned supra n. 32 Llewellyn is believed to be capable to go to war against Germany. And in a post-card of the sister-in-law of Mrs. Musäus it is said that Llewellyn had a dispute with two gentlemen, «when he said that he would be the first who would join the army if America should fight against Germany!»

39

Supra n. 21.

40

Raetzer, Abtrünnige und ein amerikanischer Held [Disloyals and an American hero]: Tägliche Rundschau no. 297 of December 21, 1915, p. 1185-1186 (entertainment page).

41

Communication by Mrs. Margarethe Lachmund, who had heard of this in the United States by Mrs. Emma Llewellyn.

Llewellyn and Gennany

I.

27

The external circumstances

When and on which grounds the plan for the first visit to Gerrnany was born is not known. In July 1926 Llewellyn rnentions for the first time in a letter to a German that he would probably corne to Gerrnany in two years' time.42 A year later he regards his visit in 1928 as certain in a letter to Kantorowicz written in 1927. At this time Llewellyn was already concerned with the plan for wide seientific contacts (a plan which was probably presented to hirn by Kantorowicz who had visited hirn at New Y ork in 1927); he also intends to give lectures at several Gerrnan universities. Furthermore he investigates whether there are any professors at Leipzig who know the English language and who are interested in the other soeial seiences and in commereial law so that he rnight possibly arrange for an exchange of professors of the faculties of law of Colurnbia and Leipzig. 43 In March 1928 it is certain that he will pay a visit to Gerrnany.44 Llewellyn started his voyage together with his first wife in August 1928 on board the stearnship «Albert Ballifi» of the Hapag-line and arrived at Cuxhaven on August 15.45 At Leipzig the sisters Ernmi and Martha Röhn rented a roorn to hirn in the Ferdinand-Rhode-Strasse 7. 46 These two ladies saw to the heating of his roorn, his breakfast, his laundry etc. 47 More preeise details on Llewellyn's life at Leipzig have not corne to OUf knowledge. Apparently he returned already in the beginning of February 1929 via

42 43 44 45

46 47

Letter of 1 July 1926 to Peter Wönnke (see further details on hirn supra n. 17 and 19). Letter to Hennann Kantorowicz, Professor in Freiburg/Br. (later on in Kiel) öf 15 September 1927; similarly also the letter to Hans Lachmund of 17 August 1927. Letter from Kantorowicz (preceding note) to Llewellyn of 19 March 1928. A modest bill of drinks and a receipt of postage remains of the passage. The date of arrival is proved by a receipt of the customs of Cuxhaven, dated 15 August 1928, stating the deposit of 4 tins of tobacco for which Llewellyn apparently was not willing to pay the customs. Letter of the two ladies to Llewellyn of 16 April 1929. For these side-services Llewellyn was charged with about RM 28 per week or rather 10 days (bill of 23 January 1929 as weil as a letter of 16 April 1929).

28

Ulrich Drobnig

Cuxhaven to New York, this time on board the «Deutschland» of the Hapag-line.48 There is reason to believe that he knew already at his return to the States that he would come back to Germany three years later.49 In fact he left the United States about October 10, 1931 on board the steamer «Hamburg» of the Hapag-line and he probably arrived at Leipzig in the middle of October. 50 This time he was not accompanied by his wife and rented a small flat of two rooms in Schwägrinchenstrasse 17. He filled his bookshelves with the books he had brought over from the States under much trouble, and thus he had in some kind the feeling to be at home. 51 Except for the chairs he agreed to the way the room was furnished and bought a comfortable arm-chair. He also acquired a grammophone and some records of high standard to spare his eyes. He gives a detailed description of his day's programm in a letter to his father: Getting up when waking up, usually between 7:30 a.m. and 8:00 a.m.; for breakfast two and a half cups of coffee, a glass of Pilsner, rolls and jam, from time to time an apple; after breakfast reading of papers (Frankfurter Zeitung) to train his German and to obtain information on Germany; from 10 a.m. to 1:30 p.m. scientific work - writing, reading or corrections; after lunch from 2:30 p.m. to 4:30 p.m. dictation; afterwards work again until 6:30 or 7 p.m.; in the evening drinking of beer or concert or seeing friends. 52 Llewellyn extended his second visit which he evidently enjoyed very much to the summer of 1932. At the end of August he returned to New York. The couple Hirschberg accompanied hirn to the steam-ship at Hamburg53 and entrusted their daughter

48

At the end of January 1929, Llewellyn ordered to send to Cuxhaven a case and two packages (bill of Russ, enclosure to the letter ,of the ladies Röhn of 16 April 1929; letter of Erika Hirschberg to Llewellyn of 2 March 1929).

49 50

Letter of Liese! Frels to Llewellyn of 17 April 1929. Letter of the HAPAG offices in New York to Llewellyn of 5 October 1931; letter of Llewellyn to his father of 14 October 1931. Letter of Llewellyn to his father of 11 November 1931; see also the letter of the HAPAG offices in New York of 5 October 1931 by which Llewellyn was assured of the transport of his overweight luggage free of charge.

51 52 53

Letter of Llewellyn to his father of 11 November 1931. Letter of Willi Frels to Llewellyn of 22 August 1932.

Llewellyn and Gennany

29

Sabine to hirn. She stayed for about six months with Llewellyn and his father in New York. 54 This was Llewellyn's last visit to Gennany. The two further visits he had planned were never effected. Llewellyn had intended at New Year's time 1932/33 to go to Germany for a short time in June 1933,55 but this plan was frustrated in spring56 - probably because of the new political situation in Germany. Three decades later, at the end of his life, Llewellyn again contemplated a visit to Germany. He wanted to give guest lectures57 during the winter-term at the universities of Hamburg and Freiburg LBr. - but death took hirn away from us before he could realize his plans.

II.

Scientific Work

1.

Lectures at Leipzig

Llewellyn was a visiting professor at the law faculty of the university of Leipzig du ring both of his visits. In each of the two years he gave a lecture in German - 1928/29 under the tide of «Praktische Übung über das amerikanische Präjudizienwesen» (exercise on the American system of precedents) - 1931/32 a lecture on sociology of law. The subjects of these two lectures are significant for the main subject-matters he dealt with du ring his two study-years in Germany. He made an attempt to write two books on these subjects during, besides, and after the lectures. But only one of the two books appeared at that time: «Präjudizienrecht und Rechtsprechung in Amerika» (Leipzig 1933) [precedent and case-Iaw in America]; recently an English translation was published.58 The manuscript of the «Rechtsso54 55 56 57 58

Personal infonnation of the couple Hirschberg in Leipzig. Letter of the couple Hirschberg to the father of Llewellyn of 24 October and 9 December 1932. Letter to Nussbaum (Professor in Berlin) of27 December 1932; letters to Kiesselbach (President of the Hamburg Court of Appeal) of 28 December 1932 and of 2 February 1933. Letter of Llewellyn to Willi Frels of 19 May 1933. See the necrology of Rheinstein, Rabels Zeitschrift für ausländisches und internationales Privatrecht 27 (1962) 601, 604. Llewellyn, The Case Law System in America (ed. P. Gewirtz, trans!. M. Ansaldi) (1989).

30

Ulrich Drobnig

ziologie» was ready for print but was not published until 35 years later, in 1977.59 Llewellyn was very satisfied with the approval his lectures met with among the undergraduates and his colleagues. 6o His first appearance at Leipzig was, due to the originality of the problems he treated, a sensational event for the young and the old lawyers. He talked in all details of American procedure based on case law (as he later did in his book) and pointed out the discrepancy between the true reasons for which adecision came about and the tread-mill of its theoretical grounds. 61 But it was not only for the entirely new problems he touched that his lectures excited universal interest but also for his perfect German and his interesting way of presenting his ideas. 62 Llewellyn was very unconventional: he often sat on his desk and banged it with his fist or his feet to stress a point of his lecture. 63 At his second visit the undergraduates were very much interested in his lectures in the beginning (they were about 15 or 25 64), during the term, however, their interest decreased and even more decreased that of the faculty.65 Llewellyn was on very good terms with the faculty of law at Leipzig. He had very elose contacts with his younger colleagues, especially with Exner, Jahrreiss, Apelt, Jacobi, Koschaker, Wieacker and the sociologist Freyer. 66 The professor of criminallaw Exner was one of his elose friends; together with his son he attended Llewellyn's lectures more or less regularly.67 He discussed with Jahrreiss - a professor of public law - the «Berechenbar59

Llewellyn, Recht, Rechtsleben und Gesellschaft (M. Rehbinder, ed.) (Berlin 1977).

60

Letter of Llewellyn to his father of 11 November 1931; personal information of Hans Lachmund.

61

So literally Erwin Jacobi (Professor in Leipzig) in a written information of 10 July 1964 to the author.

62

A written information of Willibalt Apelt (then Professor in Leipzig, lastly in Munieh) of 17 December 1964 to the author.

63

Personal information of the couple Hirschberg.

64

Letter of Llewellyn to his father of 11 November 1931.

65

Written information of Jacobi (supra n. 61); personal information of the couple Hirschberg.

66

Personal information of the couple Hirschberg; written information of Professor Jacobi of 10 April 1964.

67

Letter of Llewellyn to his father of 11 November 1931.

Llewellyn and Gennany

31

keilslehre für Präjudizien» (doctrine of the caIculability of case law) of Jahrreiss and his reflections on self-governrnent. 68 Llewellyn participated in the sociological exercises of Freyer (just as Freyer attended his lectures69 ) and offered to lecture on the (Grundlegung) fundamental structure of sociology. He wanted to derive this from the basic term «Handle» (derived from «Handlung» [action])70. Llewellyn also studied the writings of Freyer.

Llewellyn, too, discussed frequently with the undergraduates and assistants. He often passed quite a time in cafes on these discussions. On the other hand he did not come into close contact with the older members of the faculty of law. He always mocked their title of «Geheimrat» which seemed to hirn so characteristic for them.7 1 It is not only the invitation for a second visit to Germany wh ich demonstrates the high reputation he enjoyed at Leipzig but also the effective moral and financial help the faculty granted hirn for the publication of his book «Präjudizienwesen» . 2.

Lectures outside Leipzig

Following the advice of Kantorowicz72 he gave du ring both his visits to Germany a great number of lectures at several German universities from Bonn to Breslau and from Berlin to Freiburg. Each time he had his lectures arranged beforehand - for the first time by Kantorowicz and for the second time by Mitteis. 73 It is not possible to retrace all the subjects of the lectures and the places where he gave them. During his first visit to Germany he repeatedly talked about the American study of law, e.g. at Breslau, Freiburg

68 69 70 71 72 73

Written infonnation of Professor lahrreiss of 30 March 1966; Letter of Llewellyn to lahrreiss of31 March 1932. Letter of Llewellyn to his father of 11 November 1931. Personal infonnation of Professor Freyer, Wiesbaden. Supra n. 43. Supra n. 43. Letter of Kantorowicz (supra n. 43) of 19 March 1928; as weil as a postcard of 21 lune 1928. Exchange of letters with Mitteis (then Professor in Heidelberg, lastly in Munich) of 29 luly, 12 November, 19 November, and 23 December 1931.

32

Ulrich Drobnig

i.Br. and Heidelberg, later also at Kiel.74 His lecture was soon published.75 During his second visit to Germany he gave at least three lectures on the American system of case law, at Berlin, Hamburg and Jena. 76 A further lecture of his was treating the «Problem der Beständigkeit in der Rechtspflege» (the problem of continuity in the administration of justice).77 He furthermore lectured on a subject dealing with sociology of law at Freiburg i.Br. Further lectures were given by him at Frankfurt a.M. and Bonn. Inspired by his short participation in the work on a uniform sales law (infra 3), Llewellyn had planned to lecture on the additional subject «Methodik der vergleichenden Rechtswissenschaft» (methodology of comparative law) at Rostock,78 but apparently this lecture was never given. The subjects of his lectures - except that on the study of American law - reflect the main problems Llewellyn was concerned with du ring his two visits to Germany: The system of ca se law and the sociology of law. His ideas on the methodology of comparative law (on which he did not give a lecture) were evidently born during his short collaboration in the research-work on the unification of sales law. The chance to find personal contacts to German professors of law must have been for him at least of equal importance as the possibility to discuss the ideas he was just concerned with in different circles and to recommend them there. He reached both of these aims entirely. The lectures met - according to letters that have come down to us with great approval everywhere. The letters also show that Llewellyn was held in high esteem by the young and the middle-aged eminent persons of his time. His friendship to Nussbaum in Berlin must have been especially close and beneficial and so was the friendship to Kantorowicz at Freiburg LBr. (later at Kiel), to Mitteis at Heidelberg, to Gerland and Hedemann at

74

75 76

Letter of Schmidt-Rimpler (Professor in Breslau) of 26 October 1928; exchange of letters with Hoeniger (Professor in Fr«.iburg/Br.) of 2 December 1928 and 10 October 1929; letter of Mitteis (preceding note) of 13 June 1929. Über den Rechtsunterricht in den Vereinigten Staaten. Ein Vortrag (About the Teaching of Law in the United States. A Lecture): Ihering's Jahrbücher für die Dogmatik des bürgerlichen Rechts 79 (1928/29) 233-266. Press-communique of the Reichszentrale für wissenschaftliche Berichterstattung in Berlin of 28 April 1932; exchange of letters with Wüstendorfer (Professor in Hamburg) of 12 November and 8 December 1931.

77

Letter of Llewellyn to Miss Dr. Schoch in Hamburg of 23 December 1931.

78

Letter of Llewellyn to Lachmund of 27 April 1932.

Llewellyn and Gennany

33

Jena, to the university lecturer Julius Kraft at Frankfurt a.M. and to W. Sauer at Königsberg. How highly he was esteemed in academic circles shows the fact that the university of Frankfurt a.M. entered into negotiations to offer hirn achair. Llewellyn, however, quickly put an end to this approach. 79

3.

His participation in the unification 0/ international sales law

a)

Some general points

During his second visit to Germany Llewellyn participated for a short time in the work of the International Institute for the Unification of Private Law (UNIDROIT) at Rome, the aim of wh ich it was to elaborate a plan for a unified sales law. It was Rabel upon whose initiative this project had come into being. In April 1931 he asked Llewellyn for his collaboration on behalf of the council of directors of the Institute at Rome. The Institute wanted to assure the collaboration of an American expert, although the Uni ted States, not being a member of the League of Nations, had no representative in the administration of the Institute and although the Institute could not afford to invite a permanent American member. For this reason Llewellyn was to support the consultations from far away as a private collaborator.8° It is probably to his book on Sales law, which had just appeared, that Llewellyn owes his appointment. Still in New York he declared that he was prepared to collaborate and the documents on the consultations held so far were forwarded to him. 81 Rabel invited Llewellyn, who had come to Leipzig in the same year, to take part in all the sessions of the committee for sales law that were to take place du ring his visit to Germany.8 2 However, Llewellyn accepted but one invitation, namely that for a session at Rome (in March 1932). There he had discussions for one week with the «Grand old men» of the unification

79

Letter to Dr. John Wo!ff in New York of 31 March 1932.

80

Letter of Rabe! to Llewellyn of 28 Apri! 1931.

81

Letter of Rabe! to Llewellyn of 11 June !931.

82

Exchanges of !etters between Rabe! and Llewell yn of 10/15 December 1931, 14 March and 22 June 1932.

3 Drobnig I Rehbinder

34

Ulrich Drobnig

of law - Bagge, Gutteridge, Harnel and Rabel. In a letter he describes his work shortly after his return frorn Rorne: «Interesting, straining, unpractical. As far as I can see of no great significance. But from the scientific point of view of excellent results.»83 Llewellyn worked busily at Rome itself and later occasionally at the Kaiser-Wilhelrn-Institute for Foreign and International Private Law in Berlin. In Rorne he proposed a compromise for solving the question which rights should be granted to the buyer for defects of the goods bought. At the Institute in Berlin he contributed to the elaboration of the Anglo-American parts of the comparative law account on sales law,84 which later appeared in a revised edition as «Das Recht des Warenkaufs» (sales law) by Rabel.85 With Rabel he discussed in Berlin the outlines of a uniform law on which Rabel just worked. He wrote down his notes on the first version of the provisional draft.8 6 He did not take part, however, in any other session of the cornmittee and apparently did not collaborate any more after his return to New York. Nevertheless Llewellyn's name was mentioned in the reasons for the first draft of the uniform sales law and he was presented as an expert who occasionally collaborated.8 7 By his short collaboration on the uniform sales law Llewellyn was animated to reflect on the fundamental structure and the rnethods of comparative law. During April 1932 he worked for some weeks on this subject and took it up in the repertoire of planned lectures.&s But apparently the topic became neither the subject of a lecture nor was it written down.

83

Letter to lohn Wolff(New York) of31 March 1932.

84 85

Letter of Max Rheinstein (university lecturer at that time and associate of the Kaiser-Wilhelrn-Institut) to Llewellyn of 19 March 1933. E. Rabel, Das Recht des Warenkaufs I (1936), II (1958).

86

Undated Rernarks on Docurnent no. 33.

87

Societe des Nations - Institut International de Rorne pour I'Unification du Droit prive, Projet d'une Loi Internationale sur la Vente (Rorne 1935) p. 9; see also Rabel, Der Entwurf eines einheitlichen Kaufgesetzes: RabelsZ 9 (1935) 1-79, 339-363 (4).

88

Letter of Llewellyn to Hans Lachmund of 27 April 1932. See also supra 3 at n. 78.

Llewellyn and Gennany

b)

35

Proposals on the sales law

In the notes that have come down to us Llewellyn makes the following proposals on details of the unifonn sales law: 89

He considered it to be of great importance that, when concluding a contract, it was clearly defined how the risk of a loss of the declaration of acceptance was to be distributed; it seemed less important to hirn which party had to be held responsible for the risk. In his opinion it was inadmissible to revoke the acceptance after dispatch and before receipt of the goods. He was in favour of a fonn-requirement for contracts of sale sunnounting 500 $; law should oblige the merchants to send a letter of confinnation to the contracting party. He supported the dissociation of the transfer of risk from the transfer of title but criticized that transfer of title was retained at all. A commercial court - consisting of merchants of the same branch - should be entrusted by the unifonn sales law with the decision whether goods are «merchantable» or not. Llewellyn pointed out that on some points the Americans had deeply rooted prejudices (e.g. against the binding force of an unlimited offer) and practices (e.g. the payment by cheque, wh ich does not oblige the addressee to issue a receipt). 4.

Sociology and soci%gy o/law

a) When Llewellyn planned his first visit to Gennany he tried to obtain se-

veral Gennan books. The authors he was interested in were not lawyers but sociologists of law. To start with, Llewellyn ordered a volume of the works of Max Weber: «Grundriß der Sozialökonomie» (an outline of social economics), namely the volume «Economics and Society» containing the sociology of law. He also asked for an offer on all the other works of Weber.90 In addition he ordered the «Grundlegung der Soziologie des Rechts» 89

See especially the remarks mentioned in n. 86 on Document no. 33 as weil as side-remarks of Llewellyn at the margin of the manuscript of Rabel's speech.

90

Letter to Peter Wörmke, the fellow-soldier already mentioned (supra at n.17 and 19) of 1 July 1926. In fact he only bought then Marianne Weber, Max Weber. A biographical work, in order to investigate the influence of an intelligent, independent woman over a highly qualified scholar. The other books were too expensive for hirn (letters to Wörmke of 18 August and 17 September 1926).

3*

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Ulrich Drobnig

(fundamental sociology of law) and «Juristische Logik» (legal logic)91 by Ehrlich. Llewellyn intended at that time to have the «Grundlegung)) translated into English and to add annotations. He thought that a translation of the works would be successful as Ehrlich knew the English law reasonably weIl and was, above aIl, able to abstract from the technical details of the different systems of law and to give a general definition of law.92 As with many other projects for his writings he did not realize this plan either. But it shows his high esteem for Ehrlich. b) The two main subjects on wh ich Llewellyn was dwelling during his two study years at Leipzig were connected with the sociology of law. But they differed considerably from each other by their national dimension: He did not treat the system of case law in general, but restricted it to American conditions; on the other hand, the sociology of law he later dealt with was not limited to one nation but referred to other countries, too. aa) This is not to say that Llewellyn shut his eyes to the German conditions

when working on American ca se law. This is completely out of question for a man like hirn. As weIl the lecture of his first visit at Leipzig as the many lectures he later gave on this subject93 did not only serve to report on the observations he had made on the American law. On the contrary, he consciously sought for areaction on the German side to measure his findings and conclusions with the experiences which had been made in a completely different system of law. It is for this reason that Llewellyn found great satisfaction seeing that his theories on the way the courts proceed were approved by one judge after the other.94

His striving to obtain German approval did, however, not exceed discussions. Llewellyn did not deal thoroughly with the German system of case law. He confesses in a letter to Fischer that he had only very little knowledge of the decisions of the «Reichsgericht))95 (Supreme Court of the German Reich). Therefore all he comments on the way the case law is handled by this court is: «I often have the feeling that the court proceeds very cau91

Letters to Peter Wörrnke of 18 August, 17 September and 11 November 1926.

92

Letter to Peter Wörrnke of 18 August 1926. See also the letter to Kantorowicz of 15 September 1927.

93

See supra section 11 1) and 11 2).

94

Letter to Llewellyn's father of 9 February 1932.

95

Letter to the attorney Professor Dr. Fischer in Hamburg of 27 April 1932.

Llewellyn and Gennany

37

tiously when treating a new problem, so that what I should like to call 'Präjudizienrecht' (rule of decision) comes into being in quite a hesitating manner, just like in our country. On the other hand the 'Reichsgericht' often seems, as you rightly remark, to introduce and to reject in a doubtful abstraction the 'Rechtssatz' it once elaborated.»96 Besides he does not entirely share Fischer's scruples at the lack of continuity in decisions. «If a court, which believes to be looking into the matter, has set up a 'Rechtssatz' (rule) which later proves to be deficient, the correction of it seems to be uncomparably more important than the clinging to continuity.» It would be much worse if this correction was not made because the court considered it to be its task to find law and therefore did not dare to create law. And an actually effected correction created (for the same reason?) an ex post Jacto rule. In this Llewellyn sees the really weak point of the American system.97 It is weIl possible that Llewellyn went of all towns just to Leipzig because he wanted to be very close to the Reichsgericht where he could closely observe the process of formation of law by decisions. 98 How far he could gain insight into the work of the Reichsgericht cannot be said. With the president of the Reichsgericht of that time, Simons, he only exchanged letters,99 and so did he with one of the justices, Zeiller100 ; both men had much sympathy for Llewellyn's ideas. Llewellyn apparently did no real «fact re-

96

97 98 99 100

See the letter mentioned in the preceding note. The addressee had mentioned amongst other things in his preceding letter (of 9 January 1932, written as a reaction to the just held lecture in Hamburg on the doctrine of precedent): In general, and especially also the Reichsgericht, cite always only the abstract theoretical principle of law contained in the previous decisions, while all details (shades) of the facts are ignored. If in a later case the application of this abstract principle of law becomes unbearable, the court would have to drop it and this would appear as a breach in the development of the law, as a change of mind of the court. This fluctuation of the decisions could have been avoided if the courts would have tried to fonnulate a less abstract principle of law, but rather find adecision for the actual facts of the case. Penultimate note. This is an assumption of Hans Lachmund. He also thinks that Llewellyn has once tried to attend a session of the Grosser Zivi/senat des Reichsgerichts (Great Civil Senate of the Supreme Court). See letters of Simons to Llewellyn of 4 December 1928,20 November 1929, 27 July 1931 and 17 February 1933. Letter of Zeiller to Llewellyn of 8 April 1933.

Ulrich Drobnig

38

search in law», e.g. by looking through the files of the courts - but he intended to do this at his third visit to Gennany.101 However, Llewellyn provided hirnself infonnation on theory and practice of Gennan civil procedure through areport (very probably requested by hirnself) written by his friend Lachmund. The latter sent hirn in early 1932 several instalments of a very concise description (comprising 30 pages) of the evolution of a nonnal court proceeding, starting with the bringing of the action and service and reaching till execution and costs.l02 In this brief report Lachmund emphasized especially those points where actual practice deviated from the legal rules - thus, e.g. the irreality of the legally required orality of the proceeding and also the deviations from the legal rules concerning oaths of witnesses and parties. Lachmund was weIl infonned, not only as a practising lawyer with long experience and as an official of the Mecklenburg Ministry of Justice, but also as a thoughtful observer. Llewellyn was so impressed by the report that he planned to translate it into English and to publish it, together with the text of legislative provisions and with cOlnmentaries from the American point of view. 103 This plan, however, was never realized. bb) Llewellyn developed his general views on sociology during his years in Leipzig apparently in the main in discussions and controversies with the sociologist Hans Freyer, whose friend he was.l 04 Llewellyn discussed extensively Freyer's main work, «Die Soziologie als Wirklichkeitswissenschaft» (Sociology as the theory of reality) (1930). He wrote an article reviewing this book under the title «Die Verwirklichung einer Soziologie als Wirklichkeitswissenschaft» (The realization of a sociology as a theory of reality). The article was offered to the leading Gennan journal on sociology, the «Archiv für Sozialwissenschaft and Sozialpoli-

101

103

Llewellyn fixed this with Kiesselbach, the President of the Hamburg Court of Appeal (exchange of letters of 28 December 1932/20 January 1933). The manuscript with some handwritten corrections of Hans Lachmund is in file no. lOa) of the «German file» of Llewellyn. Letter of Llewellyn to Hans Lachmund of 27 April 1932.

104

Supra at n. 66.

102

Llewellyn and Gennany

39

tik», but publication was declined since another article on the same book had already been published.'05 Llewellyn also offered a short notice on Freyer's popular «Einleitung in die Soziologie» (Introduction into Sociology) (1931) to the «Archiv»l06, but apparently this has not been published either. Of the five sentences of this notice, the last two are critical. Llewellyn criticizes the neglect of the positive results of sociological research as against Freyer's emphasis on the theoretical approaches and the discussion of the various doctrines. A last testimony, also unpublished, of Llewellyn's sociological interests is a German manuscript of 10 pages on «Soziologie und Münster» (Sociology and Minster).'07 It was probably written du ring or after the trip to the French cathedrals (May/June 1932) which impressed Llewellyn deeply. To his friend Freyer he even remarked that every sociologist ought to regard such a trip as a necessary part of his training. 108

5.

German publications and reactions to them

This short biographical note is not the proper pI ace to discuss the contents of the large writings which Llewellyn published in German. A short survey over them and over the reactions to them in Germany must suffice. Llewellyn's German bibliography counts seven items. Of these, however, four are only short papers of not more than three pages. Of the three larger pieces one, the «Einführung in das amerikanische Präjudizienwesen» (Introduction into the American system of precedents), published as a manuscript in 1928, is but a partial pre-print of the later book on «Präjudizienrecht und Rechtsprechung in Amerika» (Precedents and Case Law in America). The second title of some size reproduces the text of one of the German lectures.

105

106 107 108

See the correspondence between the editorial office of the «Archiv» and Llewellyn of9 March/31 March/13 April/21 May/22 June 1932. Also with Freyer Llewellyn discussed the article, see letter of Llewellyn to Freyer of 22 June 1932. - The manuscript of the article is in Chicago and not accessible for me. Annex to letter of Llewellyn to the editors of the «Archiv» of 22 June 1932. Also this manuscript is in Chicago and not accessible for me. Letter of Llewellyn to Freyer of 22 June 1932.

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Ulrich Drobnig

a) The first important work in German is Llewellyn's «Präjudizienrecht und Rechtsprechung in Amerika». The book that appeared in early 1933 is in its first part identical with the «Einführung in das amerikanische Präjudizienwesen» published five years earlier - apart from two passagesYJ9

The book grew out of the «Praetice exercise on the American preeedent system», which Llewellyn had held in the winter term of 1928/29 at the University of Leipzig.! 10 However, he still had to spend mueh time and effort on the formulation of the introduetory text and the translation of the exeerpts from Ameriean eases, before and during his seeond visit to Leipzig. In this, he enjoyed the assistanee of several German lawyers. 11I The book was published under the auspices of the Leipzig Faeulty of Law. Originally it had been eomtemplated to publish it in the series published by the faeulty under the title of «Leipzig er Rechtswissenschaftliche Studien». Due to the size of the book, finally its separate publication was decided. The eosts of RM 4.000 were borne by the faeulty.1I2 The book is dedieated to Walter Simons, former president of the German Supreme Court, and to Benjamin Cardozo, lustice at the United States Federal Supreme Court. Contrary to German usage Llewellyn apparently had not sought Simons' eonsent to the dedication. Simons registered his «enjoyed surprise» and merely repeated onee more his appreciation of ease law.!\3 Llewellyn did not allow aeeident to determine the reviews of his book. Months prior to publieation he wrote to Germans whom he knew and whom he hoped to be interested in his theses and asked them for reviews. 109

This «Introduction» has been printed in 1928 as a manuscript and is therefore only known to a small group. It represents already literally the fIrst part, book 1 of the fInal book - there are only two short amendments: on p. 43 a sentence is inserted (§ 38 no. 2 last sentence); on p. 45 in the summary of § 39 the important penultimate point (no. 7) is new.

110 111

See supra sub II 1. Llewellyn mentions Graf Hoyos, Heinrich Lange, Wolfram v. Metzler, John Wolff and a Mr. Zander (Preface p. VII f.).

112

See the contract between Llewellyn and the Faculty of 20 February 1930. Apparently the previously planned participation of Llewellyn in the printing costs became unnecessary (see letter of Llewellyn to Heinrich Lange, at that time assistant of the Faculty in Leipzig, now Professor in Würzburg, of 5 September 1929).

113

Letter of Simons of 17 February 1933.

Llewellyn and Gennany

41

In order to avoid duplication, he distributed at the same time the journals in wh ich his candidates were to publish their reviews. When in January 1933 14 review copies were sent to German language journals, seven reviewers had already been fixed by Llewellyn: Beyerle, Gerland, Kiesselbach, Mannheim, Nussbaum, UImer, Wüstendörfer.I 14 However, political developments were to destroy this cleverly prepared arrangement: four or five of the chosen reviewers were Jews, who were prohibited after January 30, 1933 to publish in German journals. Also Martin Wolff had to give up a review. 115 Only UImer and Wüstendörfer were permitted to continue publishing, though in other journals than those which Llewellyn had selected for them. Apart from their extensive reviews the critiques of Riezler and v. Mangoldt deserve mention. 116 Most of the reviewers feIt obliged to a slight bow before the new political regime and therefore emphasized that Llewellyn's insights might perhaps be useful also for areform of German law. 117 Especially the publication of the names of the judges appeared to be recommendable to some of the reviewers.I 18 The proposals to introduce some of Llewellyn's insights and experiences were prompted by the fact that Llewellyn's observations on the system of precedents were also true for Germany and therefore were not revolutionary for German lawyers. Llewellyn only managed to perceive and express these facts with particular boldness and impressiveness.I 19 Thus several reviewers (and also a Justice of the German Supreme Court) remarked that the art of distinguishing had also been cuItivated by the se114

117 118

See the list in «Gennan file» 6 b (Law of Precedent, Printing and distribution in Gennany). Exchange of letters with Martin Wolff, at that time Professor in Berlin, later on in Oxford, of 5 September/25 September 1933. Ulmer, Archiv für die civilistische Praxis 141 (1935) 121-127; Wüstendörfer, Zeitschrift für ausländisches und internationales Privatrecht 7 (1933) 737-742; Riezler, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 63 (1934) 11-17; v. Mangoldt, Archiv für Rechts- und Wirtschaftsphilosophie 27 (1934) 304-307. Some shorter announcements were published by Neuner, Prager Juristische Zeitschrift 14 (1934) 512; Reinbeck, Hanseatische Rechts- und Gerichts-Zeitschrift 16 (1933) 405-408; K. Arndt, Juristische Wochenschrift 1933, 2577-2578 as weil as an Anonymus (probably the editor Moriz Sternberg), Gerichtshalle 77 (1933) 149. Arndt; v. Mangoldt 304,307; Ulmer 127. v. Mangoldt 306 and Riezler 12.

119

Thus Ulmer 124; sirnilarly Riezler 15.

115 116

42

Ulrich Drobnig

nates of the German Supreme Court in their tendency to avoid contradictions with other senates of the court wh ich would have necessitated the reference ofthe case to the Great Civil Senate (