Otto Kahn-Freund

Sir Otto Kahn-Freund
Frankfurt am Main, German Empire
Died	16 August 1979 Oxford, England, UK
Citizenship	German
Education	Goethe-Gymnasium, Frankfurt
Alma mater	Frankfurt University London School of Economics
Occupation(s)	Academic lawyer, judge
Employer(s)	London School of Economics Brasenose College, Oxford

Sir Otto Kahn-Freund,

.

Biography

Kahn-Freund was born in

Career

Berlin

He became judge of the Berlin labour court, 1929. Kahn-Freund wrote a pathbreaking article, contending that the Reichsarbeitsgericht (Empire Labour Court) was pursuing a "fascist" doctrine in 1931. According to Kahn-Freund, fascism shared liberalism’s dislike of state intervention and preference for private ownership, social conservatism’s embrace of welfare provision for insiders, and collectivism’s view that associations are key actors in class conflict.^[2]

In the case law, Kahn-Freund presented, the Reichsarbeitsgericht had been systematically undermining collective rights in

, demanding that trade unionists owed a duty to the Betrieb (the workplace) which was indistinguishable from the employer. On the other hand, the court had demanded that individual workplace rights (for instance, to social insurance) were strongly protected. The article was shunned by the German Legal Academy and the trade unions at the time, but in retrospect has been seen as tragically accurate.

Kahn-Freund continued working as a judge until 1933, shortly after

]

London

He became an assistant lecturer in law there in 1936 and professor in 1951. He was called to the bar (Middle Temple) in 1936. He became a British subject in 1940.^{[citation needed]}

Oxford

He was appointed

in 1976.

He played an important part in the establishment of labour law as an independent area of legal study, and is credited as the doyen of

He laid the groundwork of a philosophical approach toward Labour Law in British scholarship, which had hitherto been characterised by empiricism. In particular, his concept of "collective laissez-faire" was both a description of the British model of industrial relations in the 1960s and a normative model of how industrial relations should be. Industrial relations is conceived as tripartite, with Employers, Employees (through Trade Unions) and the State all engaged as actors. "The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination."^[5]

The concept of collective laissez-faire sets out the idea that the law (and the State) should be abstentionist, meaning that the state should allow capital and collective labour to negotiate freely, without extensive legislative interference, unless collective representation is unlikely to yield industrial justice or stability. Philosophically, this can be contrasted with the "market individualism" approach or the "floor-of rights" approach.

He was a member of the Royal Commission on Reform of Trade Unions and Employers' Associations 1965. This became known as the

.

Otto Kahn-Freund had a substantial and extensive influence on a generation of British labour lawyers, many of whom themselves passed on his influence in their own academic work, such as

, Roy Lewis and Jon Clarke.

Publications

• Das soziale Ideal des Reichsarbeitsgerichts (Bensheimer, Mannheim, Berlin, Leipzig 1931) translated as ‘The Social Ideal of the Reich Labour Court - A Critical Examination of the Practice of the Reich Labour Court’ (1931) in
  O Kahn-Freund
  , R Lewis and J Clark (eds), Labour Law and Politics in the Weimar Republic (Social Science Research Council 1981) ch 3, 108-111.
• The law of carriage by inland transport (Stevens, London 1939)
• Beiträge zum Neuaufbau des deutschen Arbeitsrechts (Renaissance Publ., Welwyn Garden City 1944)
• The Growth of Internationalism in English Private International Law (1960)
• Die Rechtsinstitute des Privatrechts und ihre soziale Funktion (Fischer, Stuttgart 1965) with Karl Renner, translation by Elisabeth Kahn-Freund
• Delictual Liability and the Conflict of Laws (1968)
• Parallelen und Gegensätze im englischen und amerikanischen Privatrecht (Hanstein, Bonn 1970) with Viktor Weidner
• General Problems of Private International Law (1975)
• Labour and the Law (Hamlyn Trust 1972)
  ISBN 0-420-45210-9
• Arbeit und Recht (Bund, Köln, Frankfurt am Main 1979) translation by Franz Mestitz.
• Kahn-Freund's Labour and the Law (3rd edn Stevens & Sons 1983) introduction by
  PL Davies
  and M Freedland
• Arbeitsbeziehungen (Nomos, Baden-Baden 1981)

Notes

References

• O Kahn-Freund, 'Autobiographical Memories of the Weimar Republic: A Conversation with Wolfgang Luthardt' (February 1978) (1981) 14(2) Kritische Justiz 183, translated by E McGaughey (2016)
• Sir Otto Kahn-Freund, Q.C., F.B.A 1900–1979 B.A.H. (1979) 8 Industrial Law Journal 193^{[dead link]}
• E McGaughey, 'Fascism-Lite in America (or the Social Ideal of Donald Trump)' (2016) TLI Think! Paper
• Lord Wedderburn, R Lewis and J Clark, Labour Law and Industrial Relations: Building on Kahn-Freund (1983) reviewed by F Einbinder (1987) 81(2) American Journal of International Law 547
  JSTOR 2202460
• Freedland, Mark (2004). "Otto Kahn-Freund (1900–1979)". In Beatson, J.; Zimmermann, R. (eds.). Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain. pp. 299–324.
  ISBN 0-19-927058-9
  .