"The Law Professor Refugee", 18 Syracuse J. Int'l L. & Com. 3 (1992)
Biwah
Spring, 1992
18 Syracuse J. Int'l L. & Com. 3
LENGTH: 8761 words
THE LAW PROFESSOR REFUGEE
Bernhard Grossfeld * and Peter Winship **
* Professor of Law and Director of the Institute for International Business
Law, University of Munster, Germany. Dr. Juris. 1960, U. of Munster; LL.M.
1963, Yale; Habilitation 1966, Tubingen.
** James Cleo Thompson Sr. Trustee Professor of Law, Southern Methodist
University. A.B. 1965, Harvard; LL.B. 1968, Harvard; LL.M. 1973, London.
SUMMARY:
... The average German or American lawyer today is unable to imagine the
brutality of the cultural shock that accompanied these changes. ... Rabel
also regarded himself as the mastermind behind the draft uniform
international sales law - and rightly so. ... The influence of German law on
Llewellyn is also visible in the Uniform Commercial Code, although this
influence is not acknowledged. ... On March 31, 1932, the same day he wrote
Rabel to thank him for having made it possible to learn more about European
sales law, Llewellyn wrote Dr. John Wolff, then at the Columbia Law School:
... On the one hand, we have Rabel, the civilian scholar trained in the
Roman Law, at the height of a German professor's career; on the other hand,
we have the maverick Llewellyn, trained in the Common Law, who delighted in
breaking new ground against old authorities. ...
TEXT:
[*3]
I. Introduction
A. A New Discussion
The fate of those European legal scholars who escaped the inferno of
1933-1945 has reached the level of academic discussion. n1 So far this
discussion has emphasized the extent to which these jurists have had an
impact on the development of legal ideas within their host countries,
especially within the United States.
However, focusing on the impact of these refugees does not illuminate the
full complexity of the subject. It highlights the successes abroad, while
leaving the darker background in obscurity. People might come to believe
that "emigration" - as it is wrongly called - was not that bad after all,
especially "emigration" to America. n2
B. The Darker Side
An enthusiastic picture of emigration does not show the sad reality of
expatriation - of being driven out of one's native country and into a very
different geographic and cultural environment. From Vienna to Buffalo
(Arthur Lenhoff), from Berlin to Ann Arbor (Ernst Rabel), from Prague to
Dallas (Jan Charmatz). These moves were much more than just changes in urban
environment. The average German or American lawyer today is unable to
imagine the brutality of the cultural shock that accompanied these changes.
n3
The shock is even greater for law professors than for many other
professionals. They must survive in a completely different legal system
without the instrument they are best trained in, their native lan [*4]
guage. Jurists operate with, and think in, language; it is a matter of life
or death for their professional activity. When their linguistic environment
is changed, they lose their natural freedom of expression. They are thrown
into the cage of a foreign language - a language that will seldom come as
naturally as is necessary to express their creativity. The law professor
refugee is forced to play on a violin of stone. He often loses his emotional
and intellectual identity!
This loss of identity, however, is not only a matter of language, it is also
a loss of social status - a loss the more deeply felt the higher the status
at home. Leaving your home country means leaving your social status behind
you; it means turning from "Somebody" into "Nobody." A few close friends may
recognize your eminent status, but it is a status of the past, and even your
closer academic neighbors will often not remember or not recognize it.
The harsh reality of this situation is too often overlooked. There is the
danger that only the successful are remembered - and, thus, the extent of
the tragedy is increased:
Denn die einen sind im Dunkeln
Und die andern stehn im Licht;
Und man siehet die im Lichte
Die im Dunkeln sieht man nicht.
For there are those who stand in the dark
and others who stand in the light;
and one sees those who are in the light,
but those in the dark remain unseen. n4
We should not forget those who struggled to live in a foreign culture and
who only found recognition and peace after returning to their native
culture. We should remember the names of Jan Charmatz, n5 Ludwig Hamburger,
n6 and Richard Honig. n7
In this essay we seek to cast light on this loss of identity. In doing so,
we hope to bring out from the shadows some of the frustrations and
tribulations of the law professor refugee; and, thus, to illuminate the
darker side of such an existence. [*5]
II. Arthur Lenhoff (1885-1965)
A. Success in America
We start our story with Arthur Lenhoff. Here we encounter a real success
story - at least at first glance. Arthur Lenhoff had two almost equally
successful careers, the first in Austria, the second in the United States.
n8 He was a highly successful lawyer in Austria, a judge of the Austrian
Constitutional Court, and a prolific author. n9 He became a well-known,
beloved "Distinguished Professor" at the New York State University of
Buffalo and he published extensively in the leading American law reviews.
His article, The Present Status of Collective Contracts in the American
Legal System, n10 was even referred to by the United States Supreme Court.
n11
B. Struggle for Survival
Compared with other refugee scholars, such as Ernst Rabel, Lenhoff had two
advantages when he arrived in the United States in 1938 after a narrow
escape from Austria. He was 53 years old and he came without the illusion of
being able to rely on former achievements. Nevertheless, his beginnings were
very hard indeed. In 1939, he started over as a librarian at the Law School
in Buffalo while at the same time undertaking to study for the New York bar
examination. Touster gives us a moving account:
His age, the fall from eminence, the new language, and the profession itself
- an entirely different system of law - all made it more likely that Arthur
Lenhoff would end as an insurance broker or clerk in an import house than as
a distinguished scholar of the common law. n12
Touster gives the following explanation:
To illuminate the success of a 53-year-old student's life, Goethe's epigram
might be read: "Everybody wants to be somebody: nobody wants to grow." And
then, as if speaking of the Dr. Lenhoff many of us knew, in words he himself
might have quoted, Goethe tells us: "To measure up to all that is demanded
of him, a man must overesti [*6] mate his capacities." n13
This required an "extreme vitality" ungeheure Spannkraft, as his Austrian
colleague, Fritz Schwind, put it. n14 This made Lenhoff the transmitter of
legal ideas across the Atlantic - a "cross-fertilizer" in the full sense of
the word. n15 But to quote Touster again:
It would perhaps have surprised him to think, during his darker moments,
that he himself would become part of that cross-current. n16
C. The Darker Moments
Arthur Lenhoff rarely mentions the "darker moments" of which Touster speaks.
A slight indication can probably be taken from his last published work, a
review of Horst Goppinger's book, Der Nationalsozialismus und die judischen
Juristen The National Socialism and the Jewish Lawyer. n17 There, Lenhoff
speaks of Goppinger's book as a "description of a historical tragedy" die
Schilderung einer historischen Tragodie, a tragedy in which Lenhoff was a
victim.
But sometimes there are places in an author's work that give us an insight
into his deeper feelings, although on the surface, he speaks of somebody or
something else. We are fortunate that Lenhoff left us his Goethe as Lawyer
and Statesman, n18 a masterpiece in the study of law and literature. His
views about Goethe mirror his own personality, his own aspirations, and his
own tribulations.
This article on Goethe is of such central importance for Lenhoff's
personality because, as Touster tells us, Goethe's works were the
"touchstone" of Lenhoff's life and Goethe's words "were in a continual flux
with his own." n19 Lenhoff characterizes himself by the quotes he selects
from Goethe's work. We give a short selection:
A vigorous advocate of a just cause and a keen mathematician searching the
firmament, both are equally god-like. n20
In Lenhoff's eyes, Goethe was true to his own standard: "The first and last
thing that is required of a genius is love of the truth." n21 And [*7]
when describing Goethe, Lenhoff describes himself:
Fate such a bold, untrammelled spirit gave him
As forward, onward, ever must endure. n22
But what about the dark moments? We think we find them at the very end of
his remarkable article. There, Lenhoff concludes:
For Faust, therefore for Goethe, freedom is an essential part of the right
Weltanschauung, a way of looking at life and, being so, it must be lived
every day and not only on some occasions. Never was this idea more clearly
expressed than in the last words of the dying Faust:
The last result of wisdom stamps it true:
He only earns his freedom and existence,
Who daily conquers them anew.
Das ist Der Weisheit letzter Schluss:
Nur der verdient sich Freiheit wie das Leben,
Der taglich sie erobern muss. n23
What a constant struggle for freedom and existence is the refugee law
professor's fate. Neither weakness nor nostalgia is allowed; the future has
to be conquered every day anew!
D. The Final Truth
The finale of Lenhoff's life shows the truth of this statement in a drastic
way. The last work he completed before his death was a major treatise on
jurisdiction and judgments in conflicts and international law. Touster
writes:
It is to be brought out as a multi-volume publication by the Parker School
of Foreign and Comparative Law of Columbia University, and may have its
place with Rabel's famous work on conflicts. n24
Schwind also announces the imminent publication of this last work:
Noch in der Emeritierung vollendete er in ungebrochener Spannkraft ein
dreibandiges Werk rechtsvergleichenden Inhalts, das im Rahmen der Parker
School der Columbia University ... herausgegeben wird.
After his Lenhoff's retirement he completed, with his characteristic energy,
a three-volume treatise on comparative law that will be published ... with
the Parker School of Columbia University. n25
This multivolume treatise never appeared. [*8]
He only earns his freedom and existence,
Who daily conquers them anew.
As long as he can!
III. Ernst Rabel (1874-1955)
A. We Did Not Know Who He Was
The contrast between apparent success and hidden frustrations marks Ernst
Rabel's story in the United States even more strongly. He had a great career
in Germany, culminating in a chair at the University of Berlin and the
directorship of the Kaiser Wilhelms-Institut fur auslandisches und
internationales Privatrecht Emperor Wilhem-Institute for Foreign and
International Private Law. He arrived in the United States in September
1939, at the age of 65, and spent most of the remaining 17 years of his life
in Ann Arbor, Michigan. Common opinion holds that he was happy in his
position as a longtime research associate at the University of Michigan Law
School. Was he not, after all, the author of the famous four-volume treatise
on the conflict of laws; n26 the masterpiece of his very productive late
period?
But how unalloyed was this success of his golden years? Did these four
massive volumes influence the direction of the conflict of laws in the
United States or anywhere else? Were they more praised than read or quoted?
Could it be that they are just the result of an effort to show that the
author was "somebody," that he was more than a research scholar relying on
the support of such friends as Max Rheinstein (his former assistant in
Munich and Berlin), Hessel Yntema (his colleague in Ann Arbor), William
Draper Lewis (Director of the American Law Institute), and others?
In 1971, Bernhard Grossfeld, who was then a visiting professor at the
University of Michigan Law School, was asked by E. Blythe Stason (1891-1972)
to come into his office. Dean Stason, as he was still addressed, began the
conversation by referring to Grossfeld as a German professor, and he
expressed his intention to talk about a subject that had worried him for a
long time: "I want to talk with you about Ernst Rabel." Dean Stason had been
troubled for many years by the question, "Why was Ernst Rabel not happy when
he was with us in Ann Arbor, even though the faculty did everything it could
to make him feel at home?" Dean Stason answered his own question: "I have
thought about it over and over again. Now I have found the [*9] answer: We
did not know who he was!" Had they missed the genius? This impression is
partly confirmed by a letter from William Draper Lewis to Rabel:
I found him Stason very enthusiastic about you and also about the work. But
I cannot say that I went away with the impression that I had been talking to
a man who would translate such an interest and enthusiasm as he had into the
kind of co-operation that I would need to help make Michigan the center of
this work on the conflict of laws. n27
Dean Stason and the faculty at the University of Michigan Law School had
certainly done everything they could, but Rabel must have felt that it was
not known who he really was - a situation beyond the control and beyond the
responsibility of his benefactors.
B. Who Was Ernst Rabel?
Who was Ernst Rabel during these years in Ann Arbor? In what way would he
have liked to be recognized?
The American Law Institute did everything it could to "position" Rabel in
the American academic world and to provide him with funds. The Institute
sponsored his entry into the United States by contracting with him to work
on a comparative study of the conflict of laws. Following completion of the
first volume of Rabel's study in 1941, the Institute circulated a four-page
pamphlet promoting the work. n28 The pamphlet describes Rabel's career as
follows:
Dr. Rabel has had an unusual career. Born in Austria, he studied law in his
home country, in Germany and in France. He practiced law as an attorney in
Vienna, taught Roman Law and modern Civil Law in Germany and Switzerland,
and was active as a superior court judge in these two countries, on the
German-Italian Mixed Arbitral Tribunal in Rome and on the Permanent Court of
International Justice (World Court) at the Hague. He was the founder and for
many years the director of the Kaiser Wilhelm Institute of Foreign and
International Private Law, an institution devoted to research as well as to
giving practical advice and information to the German Foreign Office, the
legislative authorities, courts and lawyers of Germany and the German
business firms engaged in international trade. Under Professor Rabel's
direction, the Institute established the largest law [*10] library in
Europe and trained a staff of German experts in the various legal systems of
the world. When the League of Nations established its International
Institute for the Unification of Private Law, Professor Rabel's position as
the leading German scholar in the field was recognized by his appointment as
German member of the board and by his being commissioned with the drafting
of an internationally uniform act on the sale of goods.
When the National-Socialist regime took power in Germany it did at first not
dare to move against a man of Professor Rabel's attainments. He is a
Christian, his wife an Aryan, and a so-called "taint' of Jewish blood was
not generally known. Security for him, however, was short-lived and he was
subjected to typical Nazi treatment. He was first deprived of his position
as head of the Institute which he had created and made famous; his salary
was reduced and finally stopped; and eventually he was forbidden to go to
his Institute or to enter a public library. n29
These words accurately summarize Rabel's splendid career in Germany before
he came to the United States - but great men are not interested in
recognition of their past careers. Those with creative minds want
recognition of their creativity; this creativity is the quintessence of
their personality and of their life work. Rabel surely resented the
(unavoidable) lack of recognition. When Rabel was appointed as research
associate at the University of Michigan Law School in 1942, Max Rheinstein
wrote to William Draper Lewis: "It seems that the new turn of events will do
a great deal to restore his self-confidence, which I felt was severely
shaken by the complete neglect from which he was suffering so far." n30 With
this appointment, Rabel's situation improved - but the appointment could not
satisfy his expectations. How could it, when his main talents remained
unspent?
C. Master of Sales Law
Among Ernst Rabel's expectations was a belief that his encyclopedic
knowledge of sales law would be an asset he could draw on if and when U.S.
commercial law was revised. As Rabel was well aware, no other scholar had
his mastery of comparative and international sales law. His book, Das Recht
des Warenkaufs The Law of [*11] the Sale of Goods, n31 was the classic
text in this field. Into this book he had invested all his knowledge,
experience, and energy - and all his emotions. Paul Heinrich Neuhaus, a
long-time member of the Max Planck-Institut in Hamburg (successor to the
Kaiser Wilhelms-Institut), used to say: "Rabel suffered through the book"
Rabel hat das Buch durchlitten.
Rabel also regarded himself as the mastermind behind the draft uniform
international sales law - and rightly so. He had proposed in 1929 that the
Rome Institute undertake the preparation of a uniform sales law, and
throughout the 1930s he had actively participated in drafting the law as a
member of the Institute sales committee. n32 The resulting text, he wrote,
was a "milestone in the development of private law and of international law"
Markstein in der Entwicklung des Privatrechts und des internationalen
Rechts. n33
Surely Rabel must have thought it fortuitous when he arrived in the United
States to discover that the Uniform Sales Act was to be revised. n34 Even
more fortuitously, Karl Llewellyn - with whom Rabel had already collaborated
- was to be the principal draftsman of this sales chapter of a proposed
Uniform Commercial Code.
D. Karl Llewellyn and German Law
Karl N. Llewellyn (1893-1962) was the American law professor Ernst Rabel
probably knew best when he came to the United States. That they were
acquainted is not surprising given Llewellyn's close contacts with Germany
and his excellent command of the German language. n35
Llewellyn stands out as the promoter of the Realist movement in the United
States; a movement that owes much to the German "Free Law" movement from the
beginning of this century. The parallels are [*12] striking. n36 The
German movement was first introduced to the American legal community by
Roscoe Pound, n37 whose "sociological jurisprudence" incorporates many ideas
from these German authors. n38 Llewellyn, in turn, found the references in
Pound and assimilated these ideas into his own jurisprudence. n39 In his
early writings, Llewellyn acknowledged Pound's vital contribution, n40
although he later tried to conceal it at times. n41
The German influence on Karl Llewellyn's legal thinking is particularly
evident in his early writings on legal realism. His provocative article, A
Realistic Jurisprudence - The Next Step, n42 shows this in quite a few
places. The same is true of his next article, Some Realism About Realism -
Responding to Dean Pound, n43 where he uses his famous phrase: "In the
beginning was not a Word, but a Doing" - a quote from Goethe's Faust I: "Im
Anfang war die Tat" In the beginning was the Doing. n44
The influence of German law on Llewellyn is also visible in the Uniform
Commercial Code, although this influence is not acknowledged. n45 Many hands
may have participated in the drafting of the Code but Llewellyn was the
acknowledged intellectual driving force. "Make no mistake," Grant Gilmore
has written, "this Code was Llewellyn's Code." n46 And Llewellyn's knowledge
of German sales [*13] law he owed to some extent to his brief
collaboration with Ernst Rabel in the early 1930s.
E. The Rabel-Llewellyn Connection
Their common interest in sales law first brought Rabel and Llewellyn
together. In April 1931, Rabel invited Llewellyn to participate as a
"private expert" privater Sachkenner on the Rome Institute's sales
committee. n47 Llewellyn promptly accepted the invitation, n48 and, with
characteristic energy, he rapidly made himself familiar with the work of the
committee. During his sabbatical in Leipzig the following year, Llewellyn
also participated for a week at one of the meetings of the sales committee
in Rome.
Following his return to New York, Llewellyn asked Rabel to have his book,
Prajudizienrecht und Rechtsprechung in Amerika Precedents and Courts in
America, n49 reviewed in the Zeitschrift fur auslandisches und
internationales Privatrecht Journal for Foreign and Private International
Law which Rabel edited:
I am hoping hard that your Journal will want to review it .... I hope you
will give the review as much space as you reasonably can, and ask the
reviewer to explore, not only the light the book may throw on the American
system of precedent, but also what it may have to offer toward an
understanding of the judicial process in Germany. n50
Rabel promptly opened his Zeitschrift to Llewellyn. In the 1933 volume of
his Zeitschrift, n51 Rabel gave Llewellyn an opportunity to present his
Cases and Materials on the Law of Sales. n52 Later in the [*14] same
volume n53 Rabel published a review of the Prajudizienrecht und
Rechtsprechung in Amerika Precedents and Courts in America, for which
Llewellyn had asked. The review must have satisfied Llewellyn's hopes. The
reviewer was Hans Wustendorfer, who taught at the University of Hamburg and
was at the time the leading German commercial law professor. His extensive
review of Llewellyn's book provides a brilliant overview and a discussion
from the German point of view. He presented the book as "an extremely
meritorious and successful undertaking" hochst dankenswerter und
wohlgelungener Versuch! and its author as "already very well known" bereits
ruhmlichst bekannt. n54
Wustendorfer's superlatives were matched by Llewellyn's own superlatives in
praise of Rabel's Institute. In his December 1932 letter to Rabel asking for
a review of his book, Llewellyn had concluded, "I feel increasingly, as my
own thinking about comparative law gains perspective, that the monographs
your Institut sic is putting out represent one of the most significant
approaches we have yet run into." n55
Both Rabel and Llewellyn recognized the importance of this collaboration. In
1940 Rabel wrote:
I have much regretted that the funds were not enough to have American
experts come across the ocean several times. Only once, I had the good
fortune to meet Professor Llewellyn in Germany and to bring him with me to
Rome for a committee meeting in Rome about the Sales Act. n56
Llewellyn also acknowledged - at least formally - the importance of this
contact. Writing Rabel at the end of his sabbatical leave, Llewellyn
expressed his high esteem for Rabel and thanked him for having made it
possible to learn more about European sales law, "mochte Ihnen meine
Anerkennung dafur aussprechen, dass Sie es mir ermoglicht haben, das
europaische Kaufrecht naher kennen zu lernen" I should like to acknowledge
that you made it possible for me to get to know European law of sales in
more detail. n57 [*15]
As a result of their collaboration, Rabel believed that he had a close
personal relationship with Llewellyn and that the latter held him in high
esteem. Would it not be reasonable for Rabel to expect the drafters of the
Uniform Commercial Code to receive him with open arms?
F. The Rome Institute's International Sales Law and the Uniform Commercial
Code
When Ernst Rabel came to the United States he brought with him the revised
text of the Rome Institute's draft on international sales law. During the
following decade, Rabel tried to persuade Llewellyn and the sponsors of the
Uniform Commercial Code to coordinate their draft with that of the Rome
Institute.
Even before his arrival, Rabel had laid the groundwork for coordinating the
drafts. In an article published in the 1938 volume of the University of
Chicago Law Review, Rabel wrote:
The purpose of this article is to introduce to the American legal world the
Draft of an International Sale of Goods Act elaborately prepared by a
special committee of the International Institute at Rome for the Unification
of Private Law .... In the United States until now, this work seems to be
hardly known, although the committee on one occasion had the privilege of
the presence of Professor Karl N. Llewellyn .... n58
Within months after his arrival, Rabel was writing Llewellyn with detailed
advice on the proposed amendments to the Uniform Sales Act. In the following
January 1940 letter, Rabel wrote:
In our recent International Draft we have endeavored to express the
fundamental notions in accordance with the ordinary course of commercial
sales operations. So long as the American Act of 1906 is based upon
principles which are contrary to commercial notions, no amendment can be
useful. n59
While Llewellyn's subsequent drafts conformed more closely to "commercial
notions," Rabel continued to criticize the drafts for retaining too many
concepts from the past. "Repeatedly the 1944 "Proposed Final Draft No.1"
Draft seems to have accomplished unhappy compromises between the accustomed
and the desirable ways of asking and answering questions." n60 When the
solutions of the [*16] American draft and the Institute text did conform
with the expectations of merchants, the two laws almost always agreed
(concordent). n61
La relation fondamentale des deux projets est evidente, tandis que le choix
des problemes, leur presentation et les decisions de portée secondaire,
diffèrent. Dans notre Projet, apres une comparaison consciencieuse des lois
existant dans le monde, on a choisi un minimum de regles caractérisant la
structure moderne de la vente, qui formerait une base juridique solide,
commercialement saine et acceptable dans tous les pays. Le Draft américain a
été prévue en partie pour trancher des centaines de doutes d'interprétation
qui se sont accumulés au cours d'une jurisprudence immense. Mais le fait
qu'aux Etats-Unis on a pensé presque exclusivement au marché interne n'est
pas d'une importance considerable.
The fundamental relation of the two drafts is evident, even though the
choice of problems, their presentation and their solution of second-level
issues may differ. In our draft, we chose, after a conscientious comparison
of existing laws, to include the minimum number of rules that characterize
the modern sale; rules that provide a solid juridical basis, that are
commercially reasonable and that are acceptable in all countries. The
American draft is influenced by the desire to resolve the hundreds of
doubtful questions of interpretation that have arisen in a vast body of case
law. That the United States has thought almost exclusively of its internal
market is of little importance. n62
Rabel urged a bolder break with the past by creation of a fresh body of
rules. n63 If the Code drafters would only undertake extensive comparative
research Rabel was confident that they would adopt solutions similar to
those found in the Rome Institute's draft. n64
At the very least, a common comparative legislative research, on the basis
of this impressive draft, would provide fruitful lessons for each nation
involved, an effort so far never sufficiently supported from the American
side .... The Draft is such an accomplishment as to deserve perfection by
every conceivable effort. In the mutual inspiration of some international
collaboration, American legislation would achieve its own growth and
exercise a mighty influence on the [*17] world. n65
Rabel's comments, however, had little visible effect. n66
Llewellyn's reaction was ambivalent. His December 1941 report states that
the Rome Institute draft is "an interesting and significant Project ...
which deserves consideration especially in regard to any foreign-commerce
provisions." n67 Nevertheless, the accompanying draft sales act contained no
specific reference to the Institute text, and his later reports drop all
references to it. Reacting to later comments by Rabel, Llewellyn speculated
again that special rules for international trade might be inserted in the
Code, but he resisted Rabel's suggestion that the sales provisions should be
redrafted. n68
While Llewellyn, ever curious, might have hesitated, the new Director of the
American Law Institute did not hesitate at all.
We are not going into a revision of our revision of the Sales Act. We are
going to finish a Code on schedule. I hope that we are not shocking "the
lawyer trained abroad" as much as Rabel thinks. But even if we are, we shall
have to live with our mistakes. n69
Llewellyn did not protest. Whatever their merit, Rabel's comments had come
too late.
G. A Clash of Personalities
Why did Llewellyn not respond more favorably to Rabel? Why, in the
voluminous correspondence files that survive in the Llewellyn papers kept at
the University of Chicago, is there no correspondence between Rabel and
Llewellyn after January 1940?
Similar questions have already been raised by Herget and Wallace with regard
to the Realist movement. Why did the Realist writers not refer to the
Germans, "who had first advanced most, if not all, of these ideas"? Why was
the "German paternity" not acknowledged? Herget and Wallace offer the
following explanation: "Perhaps anti-German feeling generated by World War I
had an effect on the fashionability of German scholarship. There is evidence
of anti-German attitudes even in the academic community." n70 But this does
not [*18] appear to explain Llewellyn's attitude towards Rabel. Llewellyn
continued to keep close contact with Germany and with German colleagues -
never hiding them. n71
A more plausible explanation lies in Llewellyn's assessment of Rabel's
scholarship. On March 31, 1932, the same day he wrote Rabel to thank him for
having made it possible to learn more about European sales law, Llewellyn
wrote Dr. John Wolff, then at the Columbia Law School:
Eine Woche lang war ich in Rom mit ihm zusammen und arbeitete an dem Entwurf
zur Vereinheitlichung des Rechts des internationalen Kaufs. Interessant,
anstrengend, unpraktisch. Soweit ich sehen kann, ohne grosse Bedeutung.
Wissenschaftlich kommt aber Tadelloses dabei heraus.
I was with Rabel in Rome for a week and worked on the Draft for the
Unification of the International Law of Sales. Interesting, strenuous,
impractical. As far as I can see, the project is without practical
importance. The scientific result, however, will be flawless. n72
Llewellyn prided himself in bringing the Uniform Sales Act into conformity
with actual mercantile usage. n73 Apparently he was not persuaded that the
international sales law had done likewise - despite Rabel's own assessment
to the contrary.
Yet even this explanation does not fully capture the relationship between
the two men. In the same letter to Dr. Wolff, Llewellyn wrote that he had
met Rabel and found him much friendlier and kinder than he had expected, but
that he could not imagine working with him. n74 He could not accept Rabel as
a role model or as a partner. Llewellyn's reaction was, in other words, a
parallel to his relationship with Pound: the creative maverick needed
freedom from the distinguished "older scholar." n75
It is no small wonder that these two great jurists were incompatible. On the
one hand, we have Rabel, the civilian scholar trained in [*19] the Roman
Law, at the height of a German professor's career; on the other hand, we
have the maverick Llewellyn, trained in the Common Law, who delighted in
breaking new ground against old authorities.
IV. Conclusion
The lives of Arthur Lenhoff and Ernst Rabel show us different, but analogous
aspects of the difficulties refugee scholars encounter in another cultural
environment. Both Lenhoff and Rabel continued to play violins. Their
violins, however, had become violins of stone, and the old notes no longer
sufficed. Their violins played the melody and the rhythm roughly, without
the natural overtones necessary for lasting success. We can evaluate the
claims of success only when we explore the shadows and discover their darker
moments, their frustrations, and their tribulations. The glitter of outward
success should never be allowed to obscure the darker side - lest we forget,
lest we forget!
Acknowledgements
The authors wish to acknowledge the great help of the members of the Law
Library of the Southern Methodist University, especially Gail Daly, Kurt
Adamson, Bruce Muck, and Greg Ivy. Without their assistance in tracking down
archival materials and references in Dallas and elsewhere, we could not have
carried out the research for this essay.
For the career of Arthur Lenhoff, the authors are indebted to Professor
Maria Lenhoff Marcus of Fordam Law School and Professor Clyde W. Summers of
the University of Pennsylvania Law School. As the daughter of Professor
Lenhoff, Professor Marcus provided us with pertinent background material and
gave us useful comments on the draft manuscript. Professor Summers, who had
been Professor Lenhoff's colleague at the law school in Buffalo, also gave
us useful background information.
To flesh out the study of Ernst Rabel, the authors carried out research in
the archives of the American Law Institute and in the Llewellyn Papers at
the University of Chicago School of Law. At the Institute, we owe special
thanks to Paul Wolkin, who arranged for one of us to examine its archival
materials. Materials related to the Rabel's connection with the Institute
are collected together in the Institute's library. Papers related to the
Uniform Commercial Code are housed in the Institute's archives. Harry
Kyriakodis, the Institute's archivist, gave valuable assistance in
uncovering relevant material. At [*20] the University of Chicago, thanks
are due especially to Judith Wright and Charles Ten Brink who not only
arranged for one of us to have access to the Llewellyn Papers, but also
supplied copies of relevant materials. We also thank the institutions for
permission to quote from, cite, and reproduce material from the Llewellyn
Papers, the Rabel collection, and the Institute's archives. More precise
locations of the sources cited may be obtained from the authors.
Dr. John Wolff, who knew both Rabel and Llewellyn, provided useful
background and has permitted us to use the cited letter addressed by
Llewellyn to him. Dr. Wolff continues to teach as an adjunct professor of
law at Georgetown University Law Center.
Our studies of Lenhoff and Rabel are part of on-going research. Dr. Abbo
Junker, the assistant to Professor Grossfeld, plans to carry out further
research into Lenhoff's career. Professor Winship is tracing in more detail
the relation between the international sales convention and the American
Uniform Commercial Code, a study that will necessarily elaborate on Rabel's
views.
FOOTNOTES:
n1. For background materials, see Horst Goppinger, Juristen judischer
Abstammung im "Dritten Reich" - Entrechtung und Verfolgung (2d ed. 1990);
Gundolf S. Freyermuth, Reisen in die Verlorenvergangenheit - Auf den Spuren
deutscher Emigranten (1990).
n2. Ernst Stiefel, Die deutsche juristische Emigration in den USA,
Juristenzeitung 421 (1988).
n3. M. Martinek, Der Rechtskulturschock. Anpassungsschwierigkeiten deutscher
Studenten in amerikanischen Law Schools, 24 J. Schulung 92 (1984).
n4. Bertolt Brecht, Die Dreigroschenoper 109 (1955) (Die Schlusstrophen des
Dreigroschenfilms) (The Concluding Verses of the Three Penny Movie).
n5. Jan Paul Charmatz (1909 - 1984).
n6. Ludwig Hamburger (1901 - 1970). See 5 Wolfgang Fikentscher, Methoden des
Rechts in vergleichender Darstellung 20-26 (1977).
n7. Richard Martin Honig (1890 - 1981). See Festschrift fur Richard M. Honig
(1970).
n8. See Saul Touster, Reflections on the Emigre Scholar: In Memory of Arthur
Lenhoff, 16 Buff. L. Rev. 1 (1966); Rudolf Schlesinger, Arthur Lenhoff, 30
Rabels Zeitschrift 201 (1966).
n9. See Balfour Halevy, Bibliography of the Writings of Arthur Lenhoff, 16
Buff. L. Rev. 267 (1966).
n10. 39 Mich. L. Rev. 109 (1941).
n11. Clyde W. Summers, American and European Labor Law: The Use and
Usefulness of Foreign Experience, 16 Buff. L. Rev. 210, 210 n.3 (1966).
n12. Touster, supra note 8, at 3.
n13. Id. at 4.
n14. Fritz Schwind, Prof. Dr. Arthur Lenhoff, 16 Buff. L. Rev. 6 (1966).
n15. Touster, supra note 8, at 5.
n16. Id. at 4 - 5.
n17. 30 Rabels Zeitschrift 351 (1966).
n18. 1951 Washington Univ. L.Q. 151.
n19. Touster, supra note 8, at 4.
n20. Lenhoff, supra note 18, at 155 (quoting Spruche in Prosa in 3 Goethe
Samtliche Werke 300 (1850)).
n21. Id. (quoting Maxims and Reflections Maximen und Reflexionen, No. 336,
at 133 (B. Saunders trans., 1893)).
n22. Id. at 156 (quoting Faust, Part I, Scene IV, lines 326 - 27 (Bayard
Taylor trans.).
n23. Id. at 173 (quoting Faust, Part II, Act V, Scene VI, lines 64 - 67
(Bayard Taylor trans.)).
n24. Touster, supra note 8, at 5 n.11.
n25. Schwind, supra note 14, at 6.
n26. Ernst Rabel, The Conflict of Laws, A Comparative Study (1st ed. 1945 -
1958).
n27. Letter from William Draper Lewis to Ernst Rabel (June 7, 1940)(on file
with American Law Institute Archives).
n28. American Law Institute, A Treatise on Comparative Conflict of Laws by
Ernst Rabel (undated) (circulated with a cover memorandum dated Sept. 30,
1941)(on file with American Law Institute Archives).
n29. Id. at 2 - 3. The latter part of this statement was confirmed by
Professor Ludwig Schnorr von Carolsfeld, Erlangen, Germany, in a
conversation with Bernhard Grossfeld. Von Carolsfeld's parents had been
longtime neighbors of the Rabels in Munich.
n30. Letter from Max Rheinstein to William Draper Lewis (Feb. 12, 1942)(on
file with American Law Institute Archives).
n31. Ernst Rabel, Das Recht des Warenkaufs: eine rechtsvergleichende
Darstellung (Vol. 1, 1936; Vol. 2, 1958).
n32. Institut International de Rome pour l'unification du droit prive,
Projet d'une loi internationale sur la vente (S.d.N. 1935 - U.D.P. - Projet
I) (1935); Institut International de Rome pour l'unification du droit prive,
Projet d'une Loi uniform sur la vente internationale des objets mobiliers
corporels et Rapport (S.d.N. 1939 - U.D.P. - Projet I(1)) (2d ed. 1939).
n33. Ernst Rabel, Der Entwurf eines einheitlichen Kaufgesetzes (part 1), in
9 Zeitschrift fur auslandisches und internationales Privatrecht 1, 5 (1935).
n34. Zipporah Wiseman, The Limits of Vision: Karl Llewellyn and the Merchant
Rules, 100 Harv. L. Rev. 465, 477 - 83 (1987).
n35. See William Twining, Karl Llewellyn and the Realist Movement 106, 108,
479 - 87 (1973); William Hefferman, Two Stages of Karl Llewellyn's Thought,
11 Int'l J. Soc. L. 134 (1983); Siegfried Ratzer, Abtrunnige und ein
amerikanischer Held, 35 Taglichen Rundschau at 1185 (Dec. 12, 1915).
n36. James E. Herget & Stephen Wallace, The German Free Law Movement As the
Source of American Legal Realism, 73 Va. L. Rev. 399, 437 (1987).
n37. Id. at 420.
n38. As to Pound's role, see N.E.H. Hull, Reconstructing the Origins of
Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange Over
Legal Realism, 1989 Duke L.J. 1302, 1305 (1989).
n39. Id. at 1311; Herget & Wallace, supra note 36, at 440 - 52.
n40. Karl N. Llewellyn, Some Realism about Realism - Responding to Dean
Pound, 44 Harv. L. Rev. 1222, 1255 n.74 (1931)hereinafter Some Realism; Karl
N. Llewellyn, A Realistic Jurisprudence - The Next Step, 30 Colum. L. Rev.
431, 435 n.3 (1930)hereinafter Realistic Jurisprudence; Karl N. Llewellyn,
The Effect of Legal Institutions Upon Economics, 15 Am. Econ. Rev. 665, 665
n.1 (1925).
n41. Hull, supra note 38, at 1306, 1317.
n42. Realistic Jurisprudence, supra note 40.
n43. Some Realism, supra note 40.
n44. Id. at 1222. The quotation from Goethe's Faust is to Part I, Scene III,
line 60 (authors' English translation).
n45. See generally Shael Herman, Llewellyn the Civilian: Speculations on the
Contribution of Continental Experience to the Uniform Commercial Code, 56
Tul. L. Rev. 1125 (1982); Stefan Riesenfeld, The Influence of German Legal
Theory on American Law: The Heritage of Savigny and His Disciples, 37 Am. J.
Comp. L. 1, 4 - 6 (1989); James Whitman, Commercial Law and the American
Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code,
97 Yale L.J. 156 (1987); Wiseman, supra note 34.
n46. Grant Gilmore, In Memoriam: Karl Llewellyn, 71 Yale L.J. 813, 814
(1962).
n47. Letter from Ernst Rabel to Karl N. Llewellyn (Apr. 28, 1931), in
Llewellyn Papers, German Materials D.IX ("Unification of Law").
n48. Letter from Karl N. Llewellyn to Ernst Rabel (May 31, 1931) noted in
letter from Ernst Rabel to Karl Llewellyn (June 11, 1931), in Llewellyn
Papers, German Materials D.IX ("Unification of Law").
n49. Karl N. Llewellyn, Prajudizienrecht und Rechtsprechung in Amerika
(1932) translated in The Case Law System in America (Paul Gewirtz ed. &
Michael Ansaldi trans., 1989).
n50. Letter from Karl N. Llewellyn to Ernst Rabel (Dec. 29, 1932), in
Llewellyn Papers, German Materials D.IX ("Unification of Law").
n51. Karl N. Llewellyn, Book Review, 7 Zeitschrift fur auslandisches und
internationales Privatrecht 168 (1933). A footnote to the review explains
why Rabel asked Llewellyn to write this "self-notice":
Books of authors who are close to the Institute and books published by the
Institute, will normally not be reviewed. To inform the reader of the
Zeitschrift about the content and the intentions of such books, the editor
asks the authors to present the book themselves.
Id. at 168 n.1 (authors' translation).
n52. Karl N. Llewellyn, Cases and Materials on the Law of Sales (1930).
n53. Hans Wustendorfer, Book Review, 7 Zeitschrift fur auslandisches und
internationales Privatrecht 739 (1933).
n54. Id. at 739.
n55. Letter from Karl N. Llewellyn to Ernst Rabel (Dec. 29, 1932), in
Llewellyn Papers, German Materials D.IX ("Unification of Law").
n56. Ernst Rabel (1874-1955): Schriften aus dem Nachlass "Vortrage -
Unprinted Lectures," 50 Rabels Zeitschrift 251, 301 - 02 (1986). Cf. Ernst
Rabel, Der Entwurf eines einheitlichen Kaufgesetzes (part 1), 9 Zeitschrift
fur auslandisches und internationales Privatrecht 1, 4 (1935).
n57. Letter from Karl N. Llewellyn to Ernst Rabel (Mar. 31, 1932)(authors'
English translation), in Llewellyn Papers, German Materials D.IX
("Unification of Law").
n58. Ernst Rabel, A Draft of an International Law of Sales, 5 U. Chi. L.
Rev. 543 (1938).
n59. Letter from Ernst Rabel to Karl N. Llewellyn (Jan. 4, 1939 sic 1940),
in Llewellyn Papers, Uniform Commercial Code J.XXV.3 (Correspondence: 1939).
n60. Ernst Rabel, Observations On the Revised Uniform Sales Act, Final Draft
No. 1, at 3 (June 25, 1946), in Llewellyn Papers, Uniform Commercial Code
J.VIII.2.d (1946: Sales).
n61. Actes de la Conference convoquee par le Gouvernement royal des Pays-Bas
sur un Projet de Convention relatif a une loi uniforme sur la vente d'objets
mobiliers corporels (La Haye, 1er-10 Novembre 1951) 110 (1952).
n62. Id. at 110 - 11.
n63. Ernst Rabel, The Sales Law in the Proposed Commercial Code, 17 U. Chi.
L. Rev. 427, 429 (1950).
n64. Id. at 440.
n65. Id.
n66. Twining, supra note 35, at 312 - 13, 465 n.36.
n67. The Revised Uniform Sales Act: Report and Second Draft 4 (Dec. 1941).
n68. Letters from Karl N. Llewellyn to Herbert F. Goodrich (Jan. 14, 1947)
and (Oct. 1, 1947)(on file with American Law Institute Archives).
n69. Letter from Herbert F. Goodrich to Karl N. Llewellyn (Oct. 6, 1947)(on
file with American Law Institute Archives).
n70. Herget & Wallace, supra note 36, at 432. For examples of those
feelings, these authors cite Robert Ludlow Fowler, The New Philosophies of
Law, 27 Harv. L. Rev. 718, 731 (1914)(containing critical annotation of
Roscoe Pound); John M. Zane, German Legal Philosophy, 16 Mich. L. Rev. 287
(1918); contra Edwin M. Borchard, Jurisprudence in Germany, 12 Colum. L.
Rev. 301 (1912).
n71. See William Twining, The Case Law System in America, 100 Yale L.J. 1093
(1991)(reviewing Karl N. Llewellyn, The Case Law System in America (Paul
Gewirtz ed. & Michael Ansaldi trans., 1989)).
n72. Letter from Karl N. Llewellyn to Dr. John Wolff (Mar. 31, 1932) in
Llewellyn Papers, German Materials D.IX ("Unification of Law")(authors'
English translation).
n73. See Wiseman, supra note 34, at 492 - 95.
n74. Letter to Dr. John Wolff, supra note 72.
n75. N.E.H. Hull, Some Realism About the Llewellyn-Pound Exchange Over
Realism: The Newly Uncovered Private Correspondence, 1927 - 1931, 1987 Wis.
L. Rev. 921 (1987).