Francis Lieber (1798-1872)   Author, professor,  and public intellectual.

From Yale Dictionary of American Legal Biography (2005)

 

Born in Berlin, Lieber served in the Prussian Army, was wounded near Waterloo, and then earned a doctorate at Halle.  Imprisoned twice for his radicalism, he emigrated, reaching Boston in 1827.  First employed to manage a gymnasium, he met John Quincy Adams when he came to swim.    Impressed, the President introduced him on Beacon Hill. 

In 1828, Lieber published a book on penology making novel use of empiricism.  He then became editor of Encyclopedia Americana, completed in 1833 with help from many eminent authors whom he recruited.  He was the principal informant of Alexis de Tocqueville in the study leading to publication of Democracy in America.

In 1835, Lieber was appointed as professor at the College of South Carolina.  There, he wrote a series of books on American law as expressions of democratic government.  In 1838-1839, he published three volumes, two on Political Ethics and a related one on Legal and Political Hermeneutics.  These works applied ideas developed by Protestant theorists, including especially Immanuel Kant, to fundamental issues of democratic government.  He wrote in reaction against the uninhibited legal and political ideas of the Jacksonian era, defining the appropriate limits of ambition, friendship, popularity, ideology, religion, patriotic loyalty, education, suffrage, the media, and the habit of obedience to law in the conduct of representative government.  He affirmed as a categorical imperative that right and duty are interdependent: individual rights implying corresponding individual duties.  He was much annoyed that Karl Marx appropriated his slogan: “no rights, no duties; no duties, no rights.”    Chancellor Kent and Justice Story wrote enthusiastic reviews. 

In 1841, Lieber published Property and Labour, an economic analysis of private law celebrating in moderation the marketplace as a system of wealth distribution.  This work was also well-received.

The enthusiasm for his work reached Europe.  In 1844, he was pardoned by the King of Prussia and invited to become a royal consultant.  He serve royalty for a year and then returned to South Carolina to write Civil Liberty and Self-Government.  In a little over 400 pages, this work covered most of American Constitutional Law comparatively and historically.  It was used as a text in many colleges teaching law.

In 1858, Lieber became the founding spirit of the law school re-established at Columbia University.  He selected Theodore Dwight as his colleague to teach “municipal” or private law, while he taught public law comparatively.  Among his students were John William Burgess, his successor at Columbia and Frank Goodnow who wrote on comparative administrative law and became the President of Johns Hopkins University, and mentor to Ernst Freund, the founding spirit of the University of Chicago Law School. 

In 1863, as a consultant to the War Department, Lieber wrote a military order governing conduct of soldiers in occupied territory.  It was adopted in 1871 by the Prussian Army and became, by international agreement in 1899, the Law of War.    In 1913, Elihu Root designated him the “patron saint of American international law.”

When Lieber died in New York in 1872, he was the most eminent scholar of American law then living.  As a founder of the American Social Science Association, he was also regarded as a founding spirit in political science and sociology.  His Political Ethics and his Civil Liberty and Self-Government would be perpetuated in posthumous editions by Theodore Woolsey, who undertook that task after retiring as President of Yale.  Two volumes of Lieber’s miscellaneous writings were edited and published by equally eminent Daniel Coit Gilman, President of Johns Hopkins.  Legal Hermeneutics was revived in 1880 in an edition by William Gardiner Hammond, the most eminent legal historian of the time.  Even many of his letters were published.  The late-century revival of Lieber’s work was a reaction to the technocratization of the legal profession increasingly evident after 1870.  Langdell and others were then seeking to establish law as a technocratic and self-sufficient discipline.  To the Lieber revivalists, words written in the 1830s in opposition to the free-wheeling politicized law were also useful to oppose the constricted, apolitical law celebrated after 1870.

Much of the work of the Legal Realists of the 1920s, and of others seeking to unite law with other academic disciplines could have drawn on Lieber’s writings, but that did not happen.  Generally treated in the 20th century as the startling 19th century discovery of the proper sources of professional insight into law was Oliver Wendell Holmes’ Common Law, a work published in 1881 that made no reference to Lieber.

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