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Famous scholars from Kiel:
Hermann Kantorowicz made groundbreaking contributions in the areas of legal theory, history of law and criminal law which are still of significance today. He was an important representative of the "Free Law Movement" (Freirechtsbewegung) and was committed like few other professors to the Weimar Republic.
(1877 - 1940)
As early as 1906 Kantorowicz, under the pseudonym Gnaeus Flavius, published his essay "The Battle of Liberation for Legal Science" (Der Kampf um die Rechtswissenschaft), probably the most frequently cited legal essay in the first half of the 20th century. He pointed out the importance of "free law" in adjudication and criticised legal positivism, particularly its theory of the completeness of law. Kantorowicz opposed the legal-conceptual and positivist principle of law with the freedom of the lawyer in finding justice. This freedom is firstly a freedom from law. Since the law must be incomplete and the formal legal subsumption approach is often fruitless, the judge in order to find justice must free himself from them. His application of the law should be geared to what is called "free," i.e. not state-decreed law. This includes such criteria as common law, prevailing practice, the type of matter involved, conscience, fairness, equity, or even a sense of justice. The judge should take into account the life and interests of the parties, he should also take account of psychological, sociological or economic aspects in reaching his judgment. There are consequently special demands made of the judge. Classifying Kantorowicz only as a proponent of the Free Law Movement would however be failing to do justice to his considerable legacy. He was also primarily an outstanding legal historian who, like few others, researched medieval law, primarily criminal law.
From 1923 to 1929 he was commissioned by the investigative committee of the Reichstag to work on a report on the question of guilt in the First World War. In doing so he reached the politically undesirable conclusion that the Central Powers were primarily responsible for the war. The political decision makers insisted on banning publication of this report, contrary to Kantorowicz's express intention. It was not published until 1967.
Despite his excellent professional qualifications Kantorowicz's political commitment also caused difficulties with his appointment to Kiel. When Gustav Radbruch left his Kiel chair in criminal law in the fall of 1926 he brought up the subject of Kantorowicz succeeding him. Both had studied jurisprudence in Berlin and since that time had been close friends. In addition to Radbruch the constitutional and administrative lawyer Walter Jellinek also argued forcefully in favour of Kantorowicz's appointment. Some of the faculty members saw the danger that appointing Kantorowicz might lead to unrest in the (predominantly national conservative-minded) student body. Even Foreign Minister Gustav Stresemann was initially against appointing Kantorowicz because of the War Guilt Report. Despite these concerns the faculty put Kantorowicz at the top of its list of candidates to succeed Radbruch and stuck to this vote virtually unanimously.
Kantorowicz felt happy in Kiel, particularly in scientific terms. The faculty's research interests after the First World War focused on legal philosophy and history of law. In the 1920's colleagues like Werner Wedemeyer, Walter Schücking, Eberhard Schmidt and Gustav Radbruch also gave lectures on legal history topics. Kantorowicz held a chair in criminal law but also offered courses in medieval history of law and legal philosophy as well as courses on social science topics. "Act and Guilt"(Tat und Schuld) was his principal work on criminal law, in which he developed the idea that guilt, contrary to the prevailing view at that time, was not an act-based, but a perpetrator-based characteristic.
Kiel and Kiel University, however, were in those years a long way from being an "isle of the blessed." The National Socialists' takeover and his dismissal after only four years' teaching in Kiel was something Kantorowicz learned of in 1933 in Florence. At the Faculty of Jurisprudence after the takeover nine of ten full professors were replaced by professors who were of the same political persuasion as the new rulers. It became the national socialist "shock troop faculty" which no longer held a place for academics such as Kantorowicz. Although he wanted to return to Kiel after the takeover his wife succeeded in dissuading him from that plan.
Through contacts he ended up at Columbia University in New York and in 1934 he accepted a chair in Cambridge. 1938 saw the publication of his "Studies in the Glossators of the Roman Law," considered to be the most important publication on law in medieval times since Savigny's "History of Roman Law in the Middle Ages." Kantorowicz died in 1940 at the age of 62 in Cambridge.
His life story is instructive in that it provides an understanding of 20th century history, and not least the history of Christiana Albertina. His dismissal was a grave loss for Kiel but also for jurisprudence in Germany generally. Kantorowicz is one of the very few émigrés who also succeeded in making important scientific contributions abroad. He worked intensely hard to promote dialogue between continental European law and the Common Law. With his academic style full of "sparkling wit" and "indestructible cheerfulness", which was (and still is) to be found more often in England and the USA than in Germany, he was more predestined than anyone else to build a bridge between both legal cultures.
At the Faculty of Jurisprudence this important scholar is remembered today not only by a lecture hall in the chair of legal philosophy, the Hermann-Kantorowicz room - his life and his work too are the subject of numerous courses in the "history and philosophy of law."
Prof. Dr. Rudolf Meyer-Pritzl
First published in: »Christiana Albertina, Forschungen und Berichte aus der Christian-Albrechts-Universität zu Kiel«, Issue 65
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