Hugo Krabbe

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Hugo Krabbe
Painting of Hugo Krabbe
Born(1857-02-03)3 February 1857
Leiden
Died4 February 1936(1936-02-04) (aged 79)
Leiden
OccupationProfessor
Years active1894–1927
Academic work
DisciplinePublic Lawyer
Notable worksDie Lehre der Rechtssouveränität (1906)
De moderne Staatsidee (1915)
Kritische Darstellung der Staatslehre (1930)
Notable ideasSovereignty of the Law; Monism in International Law

Hugo Krabbe (3 February 1857 – 4 February 1936) was an influential Dutch public lawyer and legal philosopher. Notable for his contributions to the theory of sovereignty and the state, he is regarded as a precursor of Hans Kelsen. Like Kelsen, Krabbe identified state and law, and argued that state law and international law were parts of a single normative system; contrary to Kelsen, he conceived of the identity between state and law as the outcome of an evolutionary process.

Krabbe maintained that the binding force of the law is founded on the "legal consciousness" of mankind: a normative feeling inherent to human psychology. His work is expressive of the progressive and cosmopolitan ideals of interwar liberal internationalism, and his notion of "sovereignty of the law" stirred up much controversy in the legal scholarship of the time.

Life

Born in Leiden to a Dutch Reformed minister, Christiaan Krabbe, and Maria Adriana Machteld Scholten,[1][2] Hugo Krabbe attended Stedelijk Gymnasium in Leiden, where he received his diploma in 1874, and studied law and political science at Leiden University. Before starting the academic career, he was appointed to the civil service in Gelderland and in North Holland. In 1883, he obtained the doctorate in law with the dissertation De burgerlijke staatsdienst in Nederland ("The civil state service in the Netherlands"). In 1888, he became chief commissioner at the Ministry of the Interiors. Under the direction of the minister Tak van Poortvliet (progressive liberals) he played an important role in drafting a proposal for reform of the electoral system that if approved would have extended the right to vote to the whole adult male population.[2][3]

Partly through Tak van Poortvliet's intercession, in 1894 Krabbe was appointed professor of constitutional and administrative law at the University of Groningen,[1] where he succeeded Jacques Oppenheim, who had moved to the University of Leiden.[2] He accepted the professorship with an inaugural address on 2 February 1894 on De werkkring van den staat ("The office of the state").[2] When Oppenheim was appointed to the Council of State, Krabbe joined Leiden University as his successor.[1] On 4 March 1908 he accepted the professorship of constitutional and administrative law with an inaugural address on De idee der persoonlijkheid in de staatsleer ("The idea of personality in the state doctrine").

Krabbe remained at Leiden University teaching international law and public law for the rest of his career. In 1923–1924 he served as a rector. He retired in 1927 with a farewell lecture on his flagship topic, Staat en recht ("State and law";[1] "the core of the constitutional law, which I have taught for 33 years"[4]). Three years after resigning as professor, he published his Kritische Darstellung der Staatslehre ("Critical presentation of the doctrine of the state") but soon retired as chairman of the "Vereeniging voor Wijsbegeerte des Rechts" (Association for the philosophy of law), which had been set up in 1919 partly on his initiative.[5]

Krabbe was the teacher of Roelof Kranenburg (1880–1956), an important constitutional lawyer and politician, and his work is said to have influenced other constitutional lawyers and politicians such as Ernst van Raalte (1892–1975), Frederik Johan Albert Huart (1896–1935), Ivo Samkalden (1912–1995) and Johan Jozef Boasson.[6][7] Another eminent PhD student of Krabbe is the Dutch economist Gijsbert Weijer Jan Bruins.[8]

Doctrine

Main themes

Soon before the start of World War I, Krabbe developed a theory of law and state which was destined to stir up much controversy in the interwar period.[9] Some of its main ideas can be summarised as follows:[10]

  • The state is identical to its legal order, and the authority of the state is nothing but the binding force of its law.[11] The notion of state sovereignty, central to the legal positivist doctrine of the time, must be replaced with the notion of "sovereignty of the law" (rechtssouvereiniteit), which better expresses the objective and impersonal nature of authority in the modern state.
  • Legal normativity is founded on "legal consciousness"[11][12][13] or "juridical conscience"[14] (rechtsbewustzijn, also translated "sense of right"[15]), which is common to all mankind. Legal consciousness is a normative feeling inherent to human psychology, which explains and justifies the binding nature of the law. Legal consciousness also provides a linkage between legal normativity and the democratic principle: as "social consensus on the legal validity of certain propositions", it evokes "the emancipatory power of the will of the people and the institutions of popular government".[16]
  • Rechtsbewustzijn is not limited to state law. International law, like any other law, is the product of the common legal consciousness. Thus, state law and international law cannot be sharply distinguished and opposed one against the other: the validity of them both ultimately rests upon the same foundation – the rechtsbewustzijn.
  • International law is not necessarily interstate law and can impose its obligations directly upon the individuals. There is no "adaptation" or "transformation" of international law into state law.[11] International law is actually a "misnomer" as "it would be better [...] to speak of a supernational law, since this expresses the idea that we are dealing with a law which regulates a community of men embracing several states and which possesses a correspondingly higher validity than that attaching to national law".[17] Thus, according to Krabbe international law must be regarded as a supranational legal system founded on a universal legal consciousness.[14]
  • The claim of a country to regulate its own communal life according to its own legal standards is conditioned upon the values and interests of the international community,[18] and it is ultimately bound to wither as the political organisation slowly but inevitably moves towards the World State.[19]

Theoretical and normative background

In Krabbe's time, Dutch public law doctrine was strongly influenced by legal positivism, which was either drawn from the English analytical jurisprudence of John Austin, Westel W. Willoughby and others, or from the German Staatsrechtslehre of Carl Friedrich von Gerber, Paul Laband, Rudolf von Jhering and Georg Jellinek.[20] These two strands of jurisprudence shared the idea that the ultimate foundation of the law lies in the will of the sovereign and/or in the will of the state. Krabbe rejected that idea and placed the notion of legal consciousness of humanity at the basis of legal normativity. Under the influence of the psychological theories of Gerardus Heymans,[21] who was a personal friend of his and had helped him to translate his works into German,[22] Krabbe developed a naturalistic jurisprudence with a psychologically and sociologically grounded concept of law. Relatively close to Otto von Gierke, Hugo Preuss,[23] Leon Duguit,[24] Léon Michoud[25] and to the theories of the Scandinavian legal realists (Lundstedt, Hägerström, Olivecrona, Ross), Krabbe's work exhibits a strong normative orientation and emphasis on progressive and cosmopolitan ideals, which make it an exemplar of a psychologically inspired natural law theory:Kiewiet 2018, p. 70

On this natural mental faculty [rechtsbewustzijn] rests the validity of all law. There are no sources of law, as the textbooks teach; there is only one source of law, viz., the feeling or sense of right which resides in man and has a place in his conscious life, like all the other tendencies that give rise to judgments of value. Upon this all law is based, whether it be positive law, customary law, or the unwritten law in general. A statute which does not rest upon this foundation is not law; it lacks validity even though it be obeyed voluntarily or by compulsion.[26]

Theory of sovereignty and State

In 1906 Krabbe published in German his seminal book Die Lehre der Rechtssouveränität ("The doctrine of the sovereignty of law"), which has been one of the most controversial works in Dutch legal science together with his following book De moderne staatsidee ("The Modern State Idea"), published in 1915 and soon translated into German, French and English.[20] The fact that the translation of the latter book was undertaken by two well-established American academics, the political philosopher Georg H. Sabine and professor of political science Walter J. Shepard, and that they wrote eighty pages of translators’ introduction, shows Krabbe's international acknowledgment,[27] his topicality at the time and the salience of his contribution to the international liberal values during the interwar period often associated with Wilsonianism.[28] Against the doctrine of state sovereignty, Krabbe opposed the notion of sovereignty of law, which he saw as an evolutionary accomplishment of the modern state and which he related to the historical process towards a "supranational law"[29] and an integrated world legal system (i.e., cosmopolitanism and monism under international law). These ideas were often received with incredulity by the legal scholar of the time;[6][30] Roelof Kranenburg, a loyal disciple of Krabbe, wrote that Krabbe had in him "as much of the prophet as of the professor".[31]

The identification of state and law, and the idea that state law and international law are integrated into a single normative system were embraced in the 1920s by the leading Austrian public lawyer and legal philosopher Hans Kelsen,[32] who recognised the debt he owed to Krabbe and praised his work as a “masterly critique of the German theory of public law".[33] As noted by Carl Schmitt, however, Krabbe did not subscribe to the neo-Kantian epistemological and methodological assumpations of Kelsen, and was rather engaged in a sociological investigation on the distinctive features of the modern state, where "[w]e no longer live under the authority of persons, be they natural or artificial (legal) persons, but under the rule of laws, (spiritual) forces. This is the essence of the modern idea of the state".[34] Krabbe, contrary to Kelsen, conceived the sovereignty of law and the identity of state and law as a historically evolved achievement rather than a necessary transcendental presupposition of legal knowledge.[35]

Writings

Books

  • Krabbe, Hugo (1883). De burgerlijke staatsdienst in Nederland (in Dutch). Leiden: S. C. van Doesburgh.
  • Krabbe, Hugo (1886). De strafwetgevende bevoegdheid der Gemeentebesturen, toegelicht met het oog op de invoering van het nieuwe Strafwetboek (in Dutch). Haarlem: Mul & Vonk.
  • Krabbe, Hugo (1901). Administratieve rechtspraak (in Dutch). Groningen: Wolters.
  • Krabbe, Hugo (1906). Die Lehre der Rechtssouveranitat: Beitrag zur Staatslehre (in German). Groningen: Wolters.
  • Krabbe, Hugo (1915). De moderne staatsidee (in Dutch). 's-Gravenhage: Martinus Nijhoff.
  • Krabbe, Hugo (1917). Het rechtsgezag. Verdediging en toelichting (in Dutch). 's-Gravenhage: Martinus Nijhoff.
  • Krabbe, Hugo (1930). Kritische Darstellung der Staatslehre (in German). Haag: Martinus Nijhoff.

Essays and lectures

Liber amicorum

Notes

  1. ^ a b c d Peletier 1979.
  2. ^ a b c d Kranenburg 1937b, p. LIV.
  3. ^ Kranenburg 1937a, p. 155.
  4. ^ Krabbe 1927, p. 407.
  5. ^ Kranenburg 1937a, p. 160.
  6. ^ a b Kiewiet 2018, p. 67.
  7. ^ Elzinga 1990, p. 72–73.
  8. ^ Dullaart, M.H.J. (12 November 2013). "Bruins, Gijsbert Weijer Jan (1883-1948)".
  9. ^ Kranenburg 1937a, p. 157–158.
  10. ^ La Torre 2010, p. 20-23, Stella 2016, Kiewiet 2018, Navari 2021.
  11. ^ a b c Gragl, Paul (2018). Legal Monism: Law, Philosophy, and Politics. Oxford University Press. pp. 23–24. ISBN 978-0-19-879626-8.
  12. ^ Stella 2016, p. 68.
  13. ^ Kiewiet 2018, p. 70.
  14. ^ a b Navari 2021, p. 110. See also Kolla, Edward James (2017). Sovereignty, International Law, and the French Revolution. Cambridge University Press. p. 297. ISBN 978-1-107-17954-7, who also speaks of Krabbe's "legal conscience" as "social consensus on the legal validity of certain propositions" deriving its force "from the emancipatory power of the will of the people and the institutions of popular government".
  15. ^ Krabbe 1922, p. 46ff.
  16. ^ Kolla, Edward James (2017). Sovereignty, International Law, and the French Revolution. Cambridge University Press. p. 297. ISBN 978-1-107-17954-7.
  17. ^ Krabbe 1922, p. 245.
  18. ^ Krabbe 1922, p. 238.
  19. ^ Krabbe 1922, p. 269.
  20. ^ a b Kranenburg 1937a, p. 157.
  21. ^ Kiewiet 2018, p. 68.
  22. ^ Kranenburg 1937a, p. 159.
  23. ^ Schmitt, Carl (2005) [Originally published in 1922, revised edition in 1934]. Political Theology. Four Chapters on the Concept of Sovereignty. Translated by Schwab, George. Chicago and London: University of Chicago Press. p. 24. ISBN 978-0-226-73889-5.
  24. ^ Wilson, Francis G. (1934). "A Relativistic View of Sovereignty". Political Science Quarterly. 49 (3): 393. doi:10.2307/2143219. ISSN 0032-3195. JSTOR 2143219.
  25. ^ La Torre 2010, p. 18.
  26. ^ Krabbe 1922, p. 47.
  27. ^ Kiewiet 2018, p. 67.
  28. ^ Schmidt 1998, p. 448 notes the influence of "Krabbe's pluralistic account of sovereignty and law" on Edwin M. Borchard – a leading critic of the theory of sovereignty as it applied to international law.
  29. ^ Canihac, Hugo (19 February 2019). "From nostalgia to Utopia: A Genealogy of French Conceptions of Supranationality (1848–1948)". Modern Intellectual History. 17 (3): 721. doi:10.1017/S1479244318000562. ISSN 1479-2443. Retrieved 12 June 2022. Canihac places Krabbe at the heart of the "peace-thorugh-law movement" together with Walther Schücking, Hans Wehberg, Erich Kaufmann, Max Huber and Alfred Verdross, as he "contrasted international law with a 'supernational' law that took precedence over national laws".
  30. ^ Peletier 1979.
  31. ^ Kranenburg 1937a, p. 155.
  32. ^ Stella 2016, p. 65.
  33. ^ Kelsen, Hans (1920). Das Problem der Souveränität und die Theorie des Völkerrechts (in German). Tübingen: Mohr. pp. 22.
  34. ^ Schmitt, Carl (2005) [Originally published in 1922, revised edition in 1934]. Political Theology. Four Chapters on the Concept of Sovereignty. Translated by Schwab, George. Chicago and London: University of Chicago Press. p. 22. ISBN 978-0-226-73889-5. Schmitt is quoting from Krabbe 1919, p. 39.
  35. ^ von Bernstorff, Jochen (2010). The Public International Law Theory of Hans Kelsen. Believing in Universal Law. Cambridge University Press. pp. 65 footnote 104. ISBN 978-0-521-51618-1.

References

External links

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