[Editors’ note: Due to its large size, the HTML version – this version – of this article is published in two parts. This is part I/II]

A.  Two Scholars 

That which we are, we are

One    equal    temper   of    heroic    hearts,

Made weak by time and fate, but strong in will

To strive, to seek, to  find,  and  not  to  yield.

                                                                                                                               

I.  Introduction

Gustav Lambert Radbruch (1878-1949) and Hermann Kantorowicz (1877-1940) were undoubtedly two of the greatest legal scholars in Germany in the first half of the twentieth century; for some of this time arguably the greatest. It is a happy coincidence that they both attended the seminar of the criminologist Franz von Liszt in Berlin at the same time in 1903. Although very different in temperament and not always in agreement, they were immediately drawn to each other, highly respectful of each other’s undoubted intellect, never jealous of the other’s achievements but always altruistically supportive. Though together for only four months initially, they maintained regular contact through letters and quickly forged a close and life long friendship.

They appreciated that they were living in the dawn of a new era, not just a new century. In particular they were concerned that the majority of legal thinkers in Germany, France and Italy were still entrenched in the legal science of the 19th century, dominated by Napoleon’s Civil Code. According to this paradigm, the law was complete and every legal question could be answered automatically by reference to it. The two scholars, neither of them yet 28 years old, decided to launch a methodological challenge to this view in the form of a manifesto, which Kantorowicz published exactly one hundred years ago, entitled Der Kampf um die Rechtswissenschaft (The Battle of Liberation for Legal Science). The manifestohad an immediate impact, arousing heated debate and bitter controversy, as had been the intention. It was claimed by Arthur Goodhart in 1958 that “it has probably been cited more frequently than...