why legal history matters nations’ as well. Then there were those legal historians who consciously built their scholarship in a dialogue with the present. Hermann Kantorowicz is an excellent example. In the 1920s, this scholarly multi-talent wrote a 600-page treatise on whether Germany had been guilty of the First World War. A burning public debate around this question characterized the Germany of the 1920s. Although the German War Guilt Commission had commissioned the work, it was not published until the 1960s. The reasons were purely political: with scholarly precision, Kantorowicz concluded that Germany, although not solely guilty for the outbreak of war, was largely to blame. To the Nazi regime, all branches of law with an international dimension were potentially dangerous. To survive, legal scholars had to emigrate or compromise their scholarship with Nazi ideals. In core areas of positive law, such as criminal law, procedural law, and civil law, this could be done – when done in the prevailing black-letter style with appropriate Nazi rhetoric. Those branches of law were also needed to operate the Nazi state, just as any other modern state. To continue in comparative law, international private law, international law, and the sociology of law was far more difficult, because these branches of law and legal research breathed the air of cosmopolitanism – so alien to the Nazis. Thus, Ernst Rabel, ‘the father of modern comparative law’, was forced to emigrate, while the likes of Carl Schmitt, who was able to accommodate his international law to the Nazi frame, remained exceptions. The history of German legal history under the Nazis remains unwritten. The history is also somewhat complicated. Some parts of legal history and certain ways of doing legal history were just as cosmopolitan as comparative law or legal sociology, while others were not. Some important legal historians continued to produce lasting works of scholarship. In the history of criminal law, Friedrich Schaffstein and Georg Dahm are the best examples. Both were Germanists, scholars of mediaeval German law, and thus in search of the Germanic ‘roots’ of German law, as Germanists had been since the nineteenth century. This type of legal history was relatively easy to accommodate to contemporary political demands, and Schaffstein and Dahm were also members of the Kiel law 349
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