Rabel’s towering achievement
His name comes up several times a day at the Institute. Named after him are The Rabel Journal of Comparative and International Private Law, which he founded; our largest auditorium, Ernst Rabel Hall; and the biennial Ernst Rabel Lecture series and associated festivities in his honour. In 1926, Ernst Rabel became the founding director of the Kaiser Wilhelm Institute for Foreign and International Private Law. Now called the Max Planck Institute for Comparative and International Private Law, the Institute is celebrating its centennial this year. Rabel was forced to resign in 1937 and soon emigrated to the United States, but he returned to Germany a few years after the war. Most of what we know about his life is from his output as a legal scholar.
Ernst Rabel’s career is tightly intertwined with the history of legal scholarship from the late Habsburg monarchy and the German Empire to the post-war societies of Germany and the United States. From the very beginning of his career, Rabel looked far beyond the confines of German law. He was intensely preoccupied with the study of Greek and Egyptian-Greek law; not even legal papyrology escaped his interest. He also studied Roman as well as medieval German law up to the beginning of the usus modernus pandectarum (“the modern use of the Pandects”) period. Influenced by his studies of legal history, he helped pave the way for the modern study of comparative law as an independent discipline. For him, the connection between legal history and comparative law was obvious. As he once put it during a lecture, “On Comparative Research in Legal History and Modern Law”, delivered in the United States in 1944, “Any enlargement of the lawyer’s horizon will bear reward. To make lawyers rise above the level of routiniers, the proper disciplines within the strictly juridical field are legal history and comparative law, generating detailed criticism from which we may judge better our own law, its causes and effects.”
Rabel was a professor at seven universities over the course of his career and helped set up three successful legal institutes. As a scholar and teacher, his basic orientation was a consummate interest in the needs of practicing attorneys. He served for several years on the bench of the cantonal Appellationsgericht (Appellate Court) of Basel and the Landgericht (Regional Court) of Munich. He also served on the Italo-German Mixed Arbitral Tribunal and on the Permanent Court of International Justice in The Hague.
„Any enlargement of the lawyer’s horizon
will bear reward.“
– Ernst Rabel –
In 1916 – the same year he took a professorship at the LMU in Munich – Rabel led the initiative to found, and for ten years served as the director of, Germany’s first institute for comparative law. His towering achievement came afterwards, in 1926, when the Kaiser Wilhelm Society made him the founding director of the Kaiser Wilhelm Institute (the KWI) for Foreign and International Private Law in Berlin. He was also called to serve on the Governing Council of the International Institute for the Unification of Private Law (UNIDROIT) when it began working in 1928.
Rabel was regarded as an extraordinary scholar who in only a few years catapulted the Institute in Berlin from scratch into one of the world’s leading centres for the study of private international law. One of the express goals of studying other nations’ rules of private law was to identify opportunities to develop and improve the law by comparing different legal orders to one another. But another reason was that the KWI was charged with helping Germany navigate the private-law consequences of the First World War. This assistance took the form of expert opinions provided to courts, corporations, special interest groups, and public authorities as well as advice to the legislature. Through his office at UNIDROIT, Rabel advocated for the international unification of sales law, ultimately leading the effort himself. All the while, he was also working at the KWI on the first volume of his major German-language work, Das Recht des Warenkaufs. Eine rechtsvergleichende Darstellung (The law of sales: A comparative legal characterization), first published in 1936. The very next year, the Nazis terminated his tenure at the KWI.
When he first emigrated to the United States in 1939, Rabel was 65 and had no prospect of securing a job as a law professor. His time in Chicago, and later in Ann Arbor, Michigan, he devoted mainly to working on his opus magnum, The Conflict of Laws, a four-volume study that was effectively a worldwide comparative-law encyclopedia of private international law. When he returned to Germany in 1950, the Institute had been integrated into the Max Planck Society and was temporarily housed in Tübingen. Rabel was not reinstated as director; it was his wish that he be able to bring Das Recht des Warenkaufs to completion, and he managed to present it at the Hague Conference on the Unification of International Sales Law in 1951. It was eventually completed and published posthumously in 1958. The influence of this most influential of Rabel’s works precipitated in the 1964 Hague Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, as well as in the 1980 United Nations Convention on Contracts for the International Sale of Goods (the CISG).
„With problems of law, the material under consideration
must include the law all over the world.“
– Ernst Rabel –
Rabel died in Zurich in 1955, shortly before the Institute relocated to Hamburg. Little is known about his personal life. The son of a Viennese lawyer (a “Hof- und Gerichtsadvokat”), he grew up a member of the upper bourgeoisie under the Habsburg Empire, one of the trappings of which for Rabel was having Anton Bruckner for a piano teacher. Like his parents, he was baptized in the Catholic Church. His political leanings have been characterized as conservative and patriotic. The Nuremberg Race Laws forced him to resign from his academic chair at the university in 1935 and to lay down his office as director of the Institute in 1937. But it was not until 1939 that he resolved to leave Germany.
Rabel’s credo as a scholar is reflected in a remark he once made, that, “With problems of law, the material under consideration must include the law all over the world.” If he were here today and could have a look around at the Institute, it may be hoped that he would recognize – at the very least – a clear approximation of his research vision.
Professor Dr Dr h c mult Ernst Rabel was born in Vienna on 28 January 1874. He completed his doctoral studies in 1895 and thereafter sat for the state examinations in jurisprudence (1895) and government (1896) at the University of Vienna. He habilitated at Leipzig in 1902 and became a professor there in 1904, though not with an academic chair of his own. In 1906, he went to Basel, this time as ordinary professor with his own academic chair. He would go on to Kiel in 1910, Göttingen in 1911, and ultimately to Munich in 1916. In 1926, he became the founding director of the KWI for Foreign and International Private Law as well as a professor at the university in Berlin. He also served as a judge at several of these stations. He emigrated to the United States in 1939. From 1950 onward, he was a Wissenschaftliches Mitglied at the MPI for Foreign and International Private Law and taught as an honorary professor in Tübingen and Berlin. He received multiple awards, including the Great Cross of Merit with Star of the Federal Republic of Germany and the Antonio Feltrinelli Prize. He died in Zurich on 7 September 1955.
