Arthur Kaufmann, German jurist and legal philosopher, is one of the foremost exponents of a hermeneutical approach to philosophical foundations of law.
Mulholland, Leslie A.Kant’s System of Rights. New York: Columbia University Press, 1990. Rosen, Allen D.Kant’s Theory of Justice. Ithaca: Cornell University Press, 1993. “Why Kant?” Columbia Law Review, 87 (special issue) (1987). Daniel M.Weinstock Kaufmann, Arthur (1923– )
Arthur Kaufmann, German jurist and legal philosopher, is one of the foremost exponents of a hermeneutical approach to philosophical foundations of law. Kaufmann’s legal philosophy developed, first of all, from axiological neokantianism (G.Radbruch in his late period) and philosophical hermeneutics (Hans-Georg Gadamer). The roots of his work may also be found in the existentialism of Karl Jaspers and the anthropology of Karl Löwith. Kaufmann’s conception is one which aspires to pinpoint the ultimate foundations of law and addresses the problems of legal philosophy at the level of basic epistemological and ontological questions. As a result, he proposes a procedural justice theory which is founded on the person (eine personal [sachlich] fundierte prozedurale Gerechtig keitstheorie). In his view, law in the primary meaning of the word always pertains to concrete cases. Legal norms or principles are solely “potential” law and the entirely real law is that which is just in a given situation (ipsa res iusta). Justice belongs to the essence of law and “unjust law” constitutes a contradiction in terms. Kaufmann opposes all those theories which accept legal norms (Gesetz) as the only foundation for establishing just law (Recht). In Kaufmann’s opinion, such theories are powerless in the face of all types of distortions of law. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called legal lawlessness (gesetzliches Unrecht). According to Kaufmann, the “legal lawlessness” of twentieth-century totalitarian states proved with the accuracy of scientific experiment that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something “nondispositive,” which is not at the free disposal either of legislator or judge and which determines the content of law.
Kaufmann accepts a concept of truth and cognition based on the principle of convergency: “nondispositive” content, emerging as the conformity of a number of cognitive acts by different subjects, indicates the presence of being. Taking into account the nondisp ositiveness of law, the fundamental questions of philosophy of law (What is law? and What are the principles of a just solution?) lead directly to ontology, to the question about a being that provides foundations of law. The determination of what is just takes place in a certain type of process. A question about the ontic foundations of law is a question about the ontic foundations of this process. In analyzing the process of determining legal judgment, Kaufmann rejects a model based on simple subsumption and proposes one based on inference by analogy in which concrete law ensues through a process of “bringing to conformity” that which is normative with that which is factual. The understanding of legal norms is determined in respect of the concrete data, and the concrete data are interpreted in the light of norms. In this process a single sense is established and equally expresses an understanding of given data and corresponding norms. The establishment of this “sense” appears to be “nondispositive” and controlled inter subjectively. So, in conformity with his convergent concept of truth, he accepts the existence of an entity corresponding to that sense and calls it the “nature of things.” The “nature of things” is a real relation that occurs between being and obligation, between the conditions of life and normative quality. A question arises about the ontic bases corresponding to the nondispositiveness of “material” undergoing “treatment” in the process of determining both judgment and the process itself. In Kaufmann’s conception this ontic basis is man, not “empirical man,” but man as a “person” understood as a set of relations between man and other people and things. A “person” is that which is given and permanent in the process of the finding of just law (the “what” of the process). On one hand, it consists of those relations which undergo “treatment” in the process. On the other hand, a “person” determines the procedure of the process (the “how” of the process). A “person” being, at the same time, the “how” and the “what” of the process of realization of law, is also, to put it in another way, a structural K A U F M A N N ,
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unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a “person” is neither an object nor a subject. A “person” exists only “in between.” It is relational, dynamic, and historical. A “person” is not substance, is not a state, but an event which changes in every process of finding a just solution. References Kaufmann, Arthur. Analogie und “Natur der Sache.” Karlsruhe: Müller, 1962; 2d rev. ed. Heidelberg: Decker und Müller, 1982. Trans. I.Tammelo as “Analogy and The Nature of Things’.” Journal of the Indian Law Institute 8 (1966), 386–401. ——. Beiträge zur Juristischen Hermeneutik (Essays on Legal Hermeneutics). Köln: Heymann, 1984; 2d ed. 1993. ——. Das Schuldprinzip (The Matter of Guilt). Heidelberg: Winter 1962; 2d ed. 1976. ——. “Entre iusnaturalismo y positivismo hacia le hermeneutica juridica” (Toward a Hermeneutics of Law: Between Naturalism and Positivism). Anales Catedra Suarez 17 (1977), 351–362. ——. Grundprobleme der Rechtsphilosophie (Basic Problems of Legal Philosophy). Beck: München 1994. ——. “National Socialism and German Jurisprudence from 1933 to 1945.” Cardozo Law Review 9 (1988), 1629– 1649. ——. Rechtsphilosophie im Wandel (Changes in Philosophy of Law). Köln: Heymann, 1984. ——. “The Small-Coin Right of Resistance: An Admonition to Civil Courage.” In Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert S.Summers, ed. W.Krawietz, N.MacCormick, and G.H. von Wright, 573–579. Berlin: Duncker und Humblot, 1994. ——. Über Gerechtigkeit: Dreißig Kapitel praxisorientierter Rechtsphilosophie. Köln: Heymann, 1993. Savarese, Paolo. “Il diritto tra essere e storia nella prospettiva di Arthur Kaufmann.” Rivista internazionale di filosofia del diritto 60 (1983), 407–438. Marek Piechowiak See also EXISTENTIALIST PHILOSOPHY OF LAW; HERMENEUTICAL PHILOSOPHY OF LAW; PERSONS, IDENTITY OF 476
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Kaufmann, Felix (1895–1949)
Businessman and lawyer, Felix Kaufmann taught philosophy of law in the law faculty in Vienna; he also participated in the Vienna Circle, the only follower of Edmund Husserl to be associated with it. From 1939 onward, he taught philosophy at the New School for Social Research in New York. Although Kaufmann was always very interested in mathematics, he first studied law, in part, for practical reasons; he completed a doctorate in law under Hans Kelsen (1881–1973) in Vienna in 1920, and a doctorate in philosophy (with a thesis in philosophy of law) in 1922. He was then named a Privatdozent in Vienna on Kelsen’s recommendation. Since his university position was unpaid, he worked in the private sector, eventually becoming manager of the Anglo-Iranian Oil Company for Austria; all the while, he continued to teach, to attend meetings of Moritz Schlick’s (1882–1936) and Friedrich Waismann’s (1896–1959) circle, and to publish. After arriving in the United States in 1939, Kaufmann participated in the International Phenomenological Society and edited the phenomenological movement’s American journal, Philosophy and Phenomenological Research. During his student days, Kaufmann became acquainted with the work of Edmund Husserl, particularly the Logical Investigations, and considered himself to be a phenomenologist during his career. He never thought of himself as a logical positivist, but did have high respect for that group’s rigorous, clear, logical analyses. He had an extremely wide range of interests, publishing books on the philosophy of law, on the philosophy of mathematics, and on the logic and methodology of social sciences (including economics). He took concepts from, among other places, Husserl’s more logical and mathematical earlier works, and applied them to questions dealing with legal theory in particular and with theory in the social sciences in general. Kaufmann’s first three books, in the 1920s, dealt with the philosophy of law. Drawing on Husserl’s Logical Investigations, he attempted to work out a logic of procedural rules in order to establish the logical basis for Hans Kelsen’s pure theory of law. According to Kelsen, legal theory must abstain from making any value judgments about its object, the norm. The norm is an ought statement, can
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