ABSTRACT
This article confronts American Legal Realism with critiques by two German authors writing in the first and second halves of the twentieth century, namely, Hermann Kantorowicz and Josef Esser. Both authors were among the most progressive legal scholars of their generation, were intimately familiar with the writings of American legal realists, and shared many of their insights and beliefs. Nonetheless, neither Kantorowicz nor Esser self-identified as a legal realist. On the contrary, each was ultimately critical of realism and refuted it as a legal theory. This article analyses their arguments and looks for the deeper reasons behind their surprisingly critical stances vis-à-vis Legal Realism. It suggests that the cogency of legal realist arguments and methods crucially depends on philosophical beliefs present as a cultural background within legal discourse. In the German context, different expressions of belief in law as a normative system might have been crucial for the rejection of Legal Realism even by some of the most progressive, most sympathetic authors. For the American context, this insight sheds new light on the cogency, as well as the limits, of realist arguments and methods.
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Marietta Auer, Can Kantians Be Realists? German Critics of American Legal Realism (1930–1970), American Journal of Jurisprudence. Published: 10 October 2025.
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