Henrik Zahle - A Tribute

By Kjell Å Modéer

One of the most distinguished representatives of contemporary Nordic jurisprudence, Professor Henrik Zahle is dead, 62 years old.

There are two kinds of law professors. The first kind is emphasizing theory and looks upon his or hers aims to construct perspectives, models and systems. The second kind is practical in his or her approaches. They found their analysis in legal practice.

Older generations mostly belonged to the first type, and most of the contemporaries, belonging to the post-war generations, are pragmatically affiliated to the second one. Henrik Zahle didn’t fit into these categories in being “either – or”. He couldn’t be identified in just one of these categories. He was a mix, an “as well as”, as well a practitioner as a theorist.

Zahles career
He demonstrated this concretely in his professional career. After having served as a clerk and judge in Danish district courts he made an academic career and became professor in public law at the Copenhagen law faculty in 1979.

In this position he devoted his time to constitutional law, and published a great work on Danish constitutional law, Dansk forfatningsret, which was published in three editions. He quitted this position to be a justice in the Danish High Court in 1999.

After three years on the bench he returned to the Copenhagen law faculty as a professor of jurisprudence. He was in the mid of his work at this chair when he after a short time of illness passed away in July this year.

In retrospect Henrik Zahles contributions to legal science became increasingly important. Already in the 1980’s his theories on legal pluralism or polycentricity of law became an important contribution to post modern jurisprudence.

Together with his colleagues at the Copenhagen Law Faculty Kirsten Ketscher and Hanne Petersen Henrik Zahle devoted his time to a project on legal polycentricity. The result became an important Nordic legal discourse.

In 1995 Petersen and Zahle edited an anthology on Legal Polycentricity: Consequences of Pluralism in Law. The fragmentation of law was regarded as a significant phenomenon in the late modern welfare state. The fragmentation of law also reidentified religion and church law in the increasingly secularized society.

Church and law
Henrik Zahle pointed out the importance of law and religion. He was e.g. the supervisor for Lisbet Christoffersen and her ph.d. dissertation on church law between state, society and market. He also made important contributions within the Danish Society of Church Law (Selskab for Kirkeret).

I still remember how impressed I was by his stringent presentations at these occasions. As a constitutional lawyer he constructively both criticized and defended the positive law, the church law as well as soft law principles within law as concepts of human rights and justice.

When Henrik Zahle in 2002 returned to Copenhagen University as law professor after his visit to the High Court he gave an inaugural lecture in which he programmatically presented what he wanted to do as a law professor. His great project was to develop a practical philosophy of law. He wanted to show that legal philosophy was not only a discipline within the academic world, it was also an urgent task for legal practitioners.

Last year he published a first edition of his Praktisk retsfilosofi for educational purposes, and worked on a new revised edition when he passed away. In this work he also made comments on the relations of other disciplines like history and religion to the law.

He defended the anti-modern position that as well history as religion are important parts of the law and gave propositions on how they should be used to fit into the late modern law.

An honorary degree
When Henrik Zahle in 2002 received an honorary degree from the Faculty of Law at Uppsala University he held a lecture which in a most interesting way showed how his scientific position had changed his emphasis from polycentricism and fragmentation to universal and common values.

He wanted to investigate the factors and the glue which kept the law together: what makes the law a social normative phenomenon of a certain unity? Power and justice are in this respect important elements, but they have to be kept together with help of care. This is evident for every Danish lawyer who is involved in Retspleje, Rechtspflege, “caring for the law”.

In trying to find this unity in the law and social normatives Henrik Zahle also consciously turned his interests to religion. During his last five years he actively, increasingly and curiously was involved in several discourses on law and religion.

He was actively involved in the initiative at Copenhagen University to start the interdisciplinary project Religion in the 21st Century, and consequently he also was a member of its board. At the Faculty of Law he gave papers and organized seminars and study circles related to law and religion. He was also a member of a still running network on Religion, Ethics and Law in Nordic Societies.

The deep structures of the law
Consequently another of Henrik Zahles interests was legal history. For his late modern constructs he was stimulated by confronting them with the enduring elements and deep structures of the law as well as of the dramatic changes of law as formulated by Thomas Kuhn.

In his last letter to me last spring he presented his views on legal history. He urged the legal historians to be much more oriented to the practice of law. In retrospect I look upon this proposal as a part of a larger concept. To administer legal traditions and legal cultures is – of course – a part of the lawyers understanding of his concept “care for justice” – Omsorg for Retfærdighed.

We, Henrik Zahles many domestic and Nordic friends and colleagues, will try to take care of and develop this scientific heritage of his in our projects to come.