At the Foundations of Domination. The Critical Value of Legal History in the Work of Otto von Gierke

This article argues that the German jurist Otto von Gierke developed a new type of legal criticism grounded in a peculiar form of legal and social history that links law to social life in two ways: through its origin and its effects. Furthermore, it shows that law can arise from a relation of domination/lordship (Herrschaft) or of association/fellowship (Genossenschaft), but also that it can reinforce or undermine these types of social relationships. The article then sheds light on Gierke’s concept of “Genossenschaft”, at the heart of his analysis, which should not be confused with the concept of “Gemeinschaft” (community). Neither a purely legal concept, nor an organic community, “Genossenschaft” refers to a social and historical norm of equal association of free wills, which constitutes for Gierke the basis of a legal and political critique of the law enshrining domination.