Radbruch on the Origins of the Criminal Law: Punitive Interventions before Sovereignty

This chapter is dedicated to Radbruch's seminal text on 'The origin of criminal law in the class of serfts'. 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.