free law doctrine

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June 26, 2026

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The "free law doctrine," or Freirechtslehre, was developed by Hermann Kantorowicz. This legal theory posits that judicial decision-making is a legislative function. Judges should apply existing legal rules and also create new laws based on custom and social usage to address gaps in statutes. Kantorowicz's ideas contrasted with legal positivism, and he distinguished between jurisprudence (the science of values) and sociology (the science of facts).1

The First Amendment to the U.S. Constitution also addresses freedoms, including the free exercise of religion and freedom of speech, press, assembly, and petition. It restricts government actions that would infringe upon these rights.2

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Hermann Kantorowicz
According to Kantorowicz’ free-law doctrine, judicial decision-making is properly a kind of legislative function. Judges should apply preexisting legal rules as individual cases require and should declare new law (derived from custom and social usage) to fill statutory gaps to which court proceedings call attention. In expounding these…
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According to Kantorowicz’ free-law doctrine, judicial decision-making is properly a kind of legislative function. Judges should apply preexisting legal rules as individual cases require and should declare new law (derived from custom and social usage) to fill statutory gaps to which court proceedings call attention. In expounding these…
Read More