Making of a German Constitution : a Slow Revolution

60 • The Making of a German Constitutionconsistent critique of the Savigny on the German Left, which could be traced fromHegel, through Gans, Marx and Heine down to Kantorowicz and Radbruch. On thefiftieth anniversary of Savigny’s death in 1911, Kantorowicz published his Was istuns Savigny?, a rhetorical question which he consistently answered with negative interpretations.It was here that Savigny’s legacy was first scrapped up. In an additionalpamphlet published the same year, Kantorowicz sought to undermine the place of thehistorical school altogether, charging that it was bound up with capitalist materialismand Germanistik. 12 Kantorowicz was also a founding member of the German SociologicalAssociation with Max Weber in 1909. Marked by a polemical literature ofscepticism, the Rechtssoziologie (legal sociology) Kantorowicz subscribed to pointedtoward English institutions as examples that should be studied and imitated. 13In an effort to relieve Germany of the burdens of war guilt, in 1923 the Weimargovernment commissioned him to research the causes of the First World War in thehopes that he would exculpate Germany. The plan collapsed, however, when SocialDemocrats abandoned the ruling coalition to protest Gustav Stresemann’s failure todeal firmly with the culprits of the Beer Hall Putsch of 9 November 1923. As soonas it became clear that Kantorowicz’s findings would, now, only confirm the victor’sview of German war guilt, the government suppressed the findings. Nevertheless,his Der Geist der Englischen Politik und das Gespenst der Einkreisung Deutschlands(1929) made his position clear. Guilt for the war, Kantorowicz charged, restedsquarely with ‘those scourges’, the ex-Kaiser, Bülow and Tirpitz. 14 ‘It is against Germany’sgreatest sons, therefore, and against her deepest convictions, that we mustnow do unequal battle,’ he wrote before launching into what may be described as atrashing of the Germans and the whole of their history. 15 The Germans had failed,from time immemorial, to measure up to their English cousins in chivalry, objectivity,humanitarianism and a host of virtues. 16It should come as no surprise that the cover to his Dictatorships: A SociologicalStudy, published in 1935, read: ‘Formerly Professor of Law at the University of Kiel’.Like Hannah Arendt’s The Origins of Totalitarianism (1951), the term ‘dictatorship’emerged as a pseudonym for ‘Hitlerism’ and the ‘Führerprinzip’. 17 Writing fromCambridge University by 1937, his work was marked by bitter indignation: ‘As toGermany—and I wish to make it clear from the outset, that in referring to Germany,I am referring to the period before 1933.’ 18 Although justifiably gnashing his teethand angry about the rise of Nazism and the appropriation of the free law concept forunintended political ends, Kantorowicz wrote with venom, specifically, to machetewhat was left of Savigny’s legacy. 19 From this point onward, a parallel historiographybegan to grow that located the centre of German misdevelopment in the nation’slegal history. An important foundation was laid by Kantorowicz for the historicalprofession’s reception of Krieger’s The German Idea of Freedom (1957). In his 1967study on the legal history of German private law, Franz Wieacker described Savignyas a conservative member of the ‘social elite of the Old Empire’. 20 Hans Hattenhauercondemned him as an ally of conservative forces and remained suspicious of