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Foundational Texts in Modern Criminal Law$
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Markus D Dubber

Print publication date: 2014

Print ISBN-13: 9780199673612

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780199673612.001.0001

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Radbruch on the Origins of the Criminal Law

Radbruch on the Origins of the Criminal Law

Punitive Interventions before Sovereignty

Chapter:
(p.219) 11 Radbruch on the Origins of the Criminal Law
Source:
Foundational Texts in Modern Criminal Law
Author(s):

Mireille Hildebrandt

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199673612.003.0012

This chapter is dedicated to Radbruch’s seminal text on “The Origin of Criminal Law in the Class of Serfs.” It contains a number of counter intuitive insights on the relationship between public punishment and private revenge, derived from the domains of legal history and anthropological research in non-state societies. Radbruch’s aim was not to provide a historiography of punitive interventions in tribal Germanic society, but to remind his readers of the constitutive importance of sovereignty for the emergence of criminal law. This relates to Radbruch’s concern for legal certainty, and explains his inquiries into the continuity and discontinuities between the pater familias of the Germanic clan and the institution of the sovereign. My own investigations could similarly be understood as a kind of “historical jurisprudence,” highlighting the significance of the mutation that occurred when punitive interventions between equals (private revenge) were prohibited and became themselves punishable as criminal offences.

Keywords:   history of punishment, public criminal law, private revenge, non-state society, suzerainty, sovereignty, monopoly of violence, rule of Law, pater familias

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