GERMAN LAW JOURNAL
Review of Developments in German,
European and International Jurisprudence
Editors–in-Chief: Russell Miller; Peer Zumbansen
Editors: Gregor Bachmann; Gralf-Peter Calliess; Matthias Casper;
Morag Goodwin; Dominik Hanf; Felix Hanschmann; Florian Hoffmann;
Karen Kaiser; Alexandra Kemmerer; Malcolm Maclaren; Stefan Magen; Ralf Michaels;
Hanri Mostert; Betsy Röben; Giesela Rühl; Christoph Safferling; Marlene Schmidt;
Frank Schorkopf; Robert Schütze; Craig Smith; Cornelia Vismann.
www.germanlawjournal.com
© Copyright 2000 - 2006 by German Law Journal GbR. All rights reserved.
Pages 71 – 256
Vol. 7 No. 2
1 February 2006
TABLE OF CONTENTS
SPECIAL ISSUE
European Integration in the Shadow of
Europe's Darker Pasts
The “Darker Legacies of Law in Europe”
revisited
Guest Editor:
Daniel Augenstein (European University Institute)
TABLE OF CONTENTS PAGE I
TABLE OF CONTENTS
Daniel Augenstein
Introduction: The reluctance to ´glance in the mirror’: ‘Darker
Legacies of Law in Europe’ revisted
71 – 82
Hauke Brunkhorst
Sleeping Dogs
83 - 86
Pietro Costa
Lawyers and the Vital Relationship between the Past and the Present
87 – 92
Cristina Costantini
The ‘timeless present’: At the roots of Europe’s identità
93 - 100
David Dyzenhaus
The unrelenting stare into the past and its justification
101 – 104
W. Tom Eijsbouts
Historical Knowledge – And What To Do With It
105 - 108
Kjell Engelbrekt
Darker Legacies, Schmitt’s Shadow and Europe
109 – 126
Andreas Fischer-Lescano
Social Networks and Individual Misdemeanours, Epistemological
Questions and Normative Orientations
Daniel Gordon
Codes of Honour
127 -136
137 - 140
TABLE OF CONTENTS PAGE II
TABLE OF CONTENTS
Clemens Jabloner
Science, Not Politics
141 – 148
Alexandra Kemmerer
Dark Legator. Where the state transcends its boundaries, Carl
Schmitt awaits us
149 – 154
Martti Koskenniemi
“By Their Acts You Shall Know Them…” (And Not by Their Legal
Theories)
155 – 172
Martin Loughlin
The Constitution of Europe: the new Kulturkampf ?
173 - 190
Thomas Mertens
But Was it Law?
191 – 198
Christoph Möllers
Comparison and History
199 - 202
Pier Giuseppe Monateri
The Shadow of Speer and Vichy on European Laws
203 – 204
Mayo Moran
“In the Glass Darkly”: Legacies of Nazi and Fascist Law in Europe
205 – 220
Julian Rivers
Provocation and Springboard
221 – 226
William E. Scheuerman
Final Words?
227 – 232
TABLE OF CONTENTS PAGE III
TABLE OF CONTENTS
Shannon Ishiyama Smithey
The Study of the Past as Exercise in Political Theory
and the History of Ideas
233 – 236
Detlev F. Vagts
How much of Nazi and Fascist Law Survived in the New Europe?
237 – 240
Peer Zumbansen
Europe’s Darker Legacies? Notes on ‘Mirror Reflections’, the
‘Constitution as Fetish’ and other such linkages between the past and
the future
TABLE OF CONTENTS PAGE IV
241 – 256
ARTICLES : SPECIAL ISSUE
Introduction: The reluctance to ‘glance in the mirror’:
‘Darker Legacies of Law in Europe’ revisited
By Daniel Augenstein*
A. Message in a Bottle
“Why explore the era of National Socialism and Fascism while Europe undertakes
such efforts to get ahead with the integration project?” The introductory sentence of
Christian Joerges’ and Navraj Singh Ghaleigh’s Darker Legacies of Law in Europe1
runs like a Leitmotif through the reviews collected here. Why set out to unravel
possible continuities between (one of) Europe’s darker legacies and its ‘brighter’
future, given that the European project was initiated as a reaction to and remedy
against Nazi Germany and constituted, post-war, a precondition for its sovereignty
and a symbol of its moral renewal? And, more interesting still, how to spell out the
lessons such a ‘working through the past’ might entail for the constitutionalization
of the European Union, a process itself still burdened with the Erblasten (dead
hand) of the European Communities’ initial deliberately non-democratic
construction?
Histories of European integration often begin, as Daniel Gordon notes in his
review, with a “spotless pedigree”, such as Enlightenment visions of perpetual
peace or Winston Churchill’s ‘we must re-create the European family’ speech of
1946. Correspondingly, the founding narrative of European law stylizes World War
II as a breaking point, that divides Europe’s past as “ideology, division and
violence” from its future as “economy, unity and peace” (Koskenniemi). While
European law thus principally projects the past as a place from which to escape,
memory politics, and for these purposes the Darker Legacies of Law in Europe, insists
*
European University Institute. Email: [email protected].
Preface to DARKER LEGACIES OF LAW IN EUROPE, ix (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003).
1
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on the need to “face the past” in order to understand the present in the interests of
the future.2
But what past should we be concerned with in the interests of the future and how
should it be remembered? The methodological approach underlying the project
purports an understanding of history as reconstruction of the past from the
viewpoint of the present, which emphasizes the way in which common identities
are forged through narratives building upon selective processes of remembering
and forgetting.3 Clearly, this alone does not suffice to justify the need to tell
Europe’s darker tales: if processes of selection are both constitutive and
unavoidable for historical narratives, appeals to collective memories remain a
double-edged sword: Successful construction depends on “certain cultural chords
and conceptual tropes”, on “narrative plots and discursive frames” that are
themselves the “products of human creation”.4 And at a moment when the
European Union undertakes such efforts to re-constitute itself in an attempt to
adjust and reconcile its economic, political and social aspirations, less ‘bitter
experiences’ might better serve to bridge the gap not merely between past and
present, but furthermore between the “high political and intellectual levels and the
levels of everyday life”.5 But such positive values are, as Mayo Moran remarks,
very difficult to derive from Europe’s dark years.
Still, the purported aim of Darker Legacies is to come to terms with these bitter
experiences precisely in order to enhance Europe’s social acceptance and
precipitate a renewed engagement with democracy in the European public. And
insofar as the alleged ‘reluctance to glance in the mirror’ is meant as a corrective to
a notoriously biased appropriation of the past, the success of the project does not
depend upon delivering non-dystopian lessons. Indeed, Vergangenheitsbewältigung,
the coming to terms with a guilty past, suggests quite the opposite.
The editors watchfully guard against the instrumentalization of history, a
precaution that Weiler specifies in his Epilogue as the exhortation to avoid
“abusive” instrumentalization: “abusive in employing the memory of the holocaust
2
Id., ix.
In the context of the Darker Legacies project compare Bo Stråth, Methodological and Substantive Remarks
on Myth, Memory and History in the Construction of a European Community, 6 GERMAN LAW JOURNAL, 255271 (2005).
3
4
Id., 257.
5
Id., 257.
2006]
The reluctance to ‘glance in the mirror’
73
for ulterior inappropriate purposes”.6 What we are then ultimately concerned with,
and this is – or so it seems – the normative thrust of Darker Legacies, is the right kind
of instrumentalization of historical facts; and with the right kind of
instrumentalization of historical facts; and, eventually, with the recognition that
some of these facts might have proved more enduring than commonly assumed, so
that the dark shadows extend well into the present (Monateri).
It is at this point that, as many commentators note, the project’s own attempt to
reconstruct the past risks falling into a trap. If, as Koskenniemi points out, the
meaning of political concepts is not fixed but determined by their use, by “what it is
invoked for and what it is invoked against, in which context and by whom”, the
alleged parallels and continuities between the past and the present become much
harder to sustain. As a consequence, Darker Legacies at times fails to distinguish
clearly enough between description and prescription (Jabloner) and, beset by the
“twin dangers” of a “too simple” unequivocal condemnation and a “too openminded” approach, risks presenting a somewhat distorted image of the relation
between ‘us’ and ‘them’ (Moran). This is the dilemma: either the book says too
much, because “tomorrow’s evil will not be exactly what yesterday’s evil was” and
“to examine our societies only to the extent that they resemble or deviate from Nazi
Germany makes us blind to our own kinds of wrong” (Koskenniemi), or the book
says too little, in that continuities are not made sufficiently explicit to significantly
“advance our understanding of the institutional arrangements of the EU and the
constitutional values that anchor that project” (Loughlin).
Some of the reviews reprinted here do not always manage to escape these and
similar dilemmas, and it might be more than just the result of prudence if the
contributions to Darker Legacies shy away from too definite conclusions.
In any case, the success of the book does not necessarily depend upon ‘proving’
such continuities or parallels between the past and the present – be it in personal,
legal, or conceptual terms. Rather, its narratives claim their own present, they “can
be”, to borrow from Paul Celan, “a message in a bottle, sent out in the – not always
greatly hopeful – belief that somewhere and sometime it could wash up on land”.7
It is, as commentators well appreciate, at least in this latter sense that the primarily
historically orientated contributions to Darker Legacies make an important
contribution to contemporary debate, even though there might be, as Detlev Vagts
JHH Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE, 389, 391 (Christian Joerges/Navraj
Singh Ghaleigh eds., 2003).
6
7 Paul Celan, Speech on the Occasion of Receiving the Literature Prize of the Free Hanseatic City of Bremen, in
SELECTED POEMS AND PROSE OF PAUL CELAN, 395, 396, John Felstiner, trans. (2001).
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remarks regarding the chapters on Italian and Spanish law during the regimes of
Mussolini and Franco, “little evidence of survival”. And it is in this sense that the
book’s legal and conceptual reflections prove fruitful despite the fact that
comparisons often function merely asymmetrically and continuities do not always
engender parallels (Möllers).
B. Legal legacies
As Peer Zumbansen notes regarding the contributions to Darker Legacies of
Lepsius8, Fraser9, Curran10 and Mahlmann11, “whether or not Nazi law was ‘law’,
whether or not the Nazi state amounted to the ‘total state’ or, rather, whether it
ought to be depicted as a complexly intertwined network of corporatist publicprivate governance, seemed to matter greatly after the Second World War and still
does today”.
But was it law? Thomas Mertens reconsiders in his review Gustav Radbruch’s
‘conversion’ from legal positivism to natural law that issued in his famous formula
according to which ‘false’ positive law has to yield to ‘true’ justice – and his
problematic conclusion that formalism engendered by legal positivism rendered
the German legal profession ‘defenseless’ against statutes that were arbitrary and
criminal. There is good evidence that, as Koskenniemi states, affirming Stolleis’
thesis, the problem with inter-war German lawyers was not their ‘positivism’ but
their dearth of courage and a general compliance.12 Furthermore, as Mertens notes
himself, recent scholarship tends towards an anti-Radbruch-thesis that identifies
the absence of formalism as the true culprit. And – even though Radbruch’s appeal
to justice still has strong normative appeal – it would indeed be somewhat
Oliver Lepsius, The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of
National Socialism, in DARKER LEGACIES OF LAW IN EUROPE, 19-42 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
8
9 David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE, 87-112 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
10 Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology, in
DARKER LEGACIES OF LAW IN EUROPE, 205-228 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES OF LAW IN
EUROPE, 229-242 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
11
12 Compare Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German
Jurisprudence after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1, 4 (Christian
Joerges/Navraj Singh Ghaleigh eds., 2003).
2006]
The reluctance to ‘glance in the mirror’
75
awkward retrospectively to disqualify fascist law as ‘not law’ – be it for Radbruch’s
own purposes or otherwise. Although some contributors to Darker Legacies seem
skeptical as to whether or not the national Socialist regime qualifies as a ‘legal
order’ there is, as Engelbrekt rightly stresses, “no denying that a system of legal
rules was in force during the greater part of 1933-1945, and that it displayed a
significant measure of coherence” – and effectiveness.
But was Nazi law then a somewhat autonomous and arbitrary tool of evil (with
positivism providing for a ready remedy), or rather just the surface manifestation of
a deeper social malaise? Lepsius’ contribution to Darker Legacies on the deterioration
of legality in Germany and Curren’s much-appreciated methodological inquiry into
formalism and anti-formalism in Germany and France make clear that there are
(still) no easy answers available. “A critically self-reflective lawyer” writes Jabloner,
underscoring Mahlmann’s endorsement of a ‘moderate positivism’, “needs to be
aware of an interpretation that is scientifically correct.” But he goes further: extralegal influences on legal interpretation become only through their positivation part
of positive law, and “it is the task of the legal interpretation to assess what the lawmaker intended”. Now while Jabloner’s admonition to methodologically
distinguish strictly between, as he has it, “Staatsrechtslehre” (constitutional doctrine)
and “Politikwissenschaft” (political science) is certainly maintainable, it fails to take
into account that legal doctrines – and for that purpose the national Socialist regime
– are also socially constructed (Koskenniemi), a fact that seems to lead right back to
Radbruch’s call for an übergesetzliches Recht. Still, as Rivers maintains, the necessity
to critically assess the social determination of legal meaning should not yield the
conclusion that methodology does not matter, nor that the subordination of method
to ideology would not be problematic.
But is it law? As Pietro Costa remarks in his review, “continuity and discontinuity,
dramatic cleavages and disguised legacies usually co-exist”. But even if, thus
conceived, the differences between totalitarianism and democracies cannot exclude
underlying continuities, more would be necessary to show that there are actual
parallels between Nazi law and modern trends in criminal justice policy
(Lustgarten13) or between Nazi notions of honor and European doctrines of human
dignity (Whitman14). Commentators tend to align with Gerald Neuman’s critical
13 Laurence Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of
Difference, in DARKER LEGACIES OF LAW IN EUROPE, 113-132 (Christian Joerges/Navraj Singh Ghaleigh
eds., 2003).
James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, in DARKER LEGACIES OF LAW IN
EUROPE, 243-266 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
14
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[Vol. 07 No. 02
comment on Whitman15, thus doubting that the Nazi era can plausibly be
understood as continuous with what preceded and followed it. The value of these
contributions, as commentators appreciate, lies in broader considerations.
Lustgarten points to similarities in justification and rhetoric involved when it comes
to the abandonment of fundamental rights and freedoms in the face of vague
reasons of ‘public morals’ and ‘threats to public security’ (Moran). And Whitman
does not deny that European dignity law is indeed hostile to Nazi racial hierarchy,
but refers to the “social dynamics of several regimes” (Costa) and underlines the
way in which “the European emphasis on civility and reputation” as “old
aristocratic priorit[ies] … has traveled into the present via fascist law” (Gordon).
Fair enough – but does this really cast a shadow of fascism over European human
rights jurisprudence?
If there is a balance to be struck between historical analysis and contemporary
application, between critical engagement and scholarly detachment, comments
Rivers, then Alexander Somek’s essay on ‘Authoritarian Constitutionalism’ is
particularly successful. Somek applies his ‘Authoritarian Test’ to the European
Union, concluding that its institutions should be characterized in terms of “the
authoritarian component of constitutional law” as it existed in post-war Europe
generally.16
Authoritarianism and totalitarianism: it is, Loughlin argues, through their
distinction that “we see the relevance of this history for present day purposes.”
And “the difficulty for the organizers of this project is that, by focusing on fascism
rather than authoritarianism as a strain in European constitutional thought, their
continuity/discontinuity theme is overstrained, and this distorts the overall
analysis”. But, as Costa maintains, the founding symbol of the European Union is
the rejection of totalitarianism, and an historical inquiry into authoritarianism alone
might neglect the former’s distinctiveness: “the unlimited manipulation of the
individual, the notion of emergency law and the liquidation of lebensunwerten
Lebens, [that] were restrained in some fringe areas of liberal civilization, while they
became the pivot of totalitarian ideology and practice”.
The curtain drawn, and many questions unsettled, as Tom Eijsbouts recapitulates:
“Is the Union basically a part of Europe’s redemption or also a channel of
Gerald L Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in DARKER LEGACIES OF
LAW IN EUROPE, 267-274 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
15
16 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361, 383 (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003).
2006]
The reluctance to ‘glance in the mirror’
77
undigested repression (refoulement)? Was law an autonomous agent of malice in
Nazi Germany or mostly an expression of malice and degeneration in more
powerful departments of reality? Is the law subsequently an autonomous agent or
mechanism for the past’s dark slumbering powers?” And, crucially, “can it redeem
the past by itself?”
C. Demos and demons
The contributors to Darker Legacies of Law in Europe do not content themselves, as
David Dyzenhaus notes, with the claim that the past will repeat itself if not
thoroughly confronted or remembered. Rather, what is at issue is the feasibility of
“constructing a liberated legal future without paying serious attention to the past
from which one hopes to be liberated.”
The deliberations about the constitutionalization of the European Union have
rekindled debate about both its institutional design and its normative
underpinning. Is it then, Christian Joerges asks in the follow-up project to Darker
Legacies, really too speculative to assume interdependence between the fact that
nowadays popular mobilization occurs in referendums against the European
project rather than for European democracy and what he calls Europe’s “social
deficit”?17 Even though “the original ideals of the post-war period are by no means
outdated, they seem to have lost their mobilizing strength” so that the fragile basis
of the Union’s legitimacy needs to be embedded in an “acquis communutaire
historique”. 18 And, as Möller maintains, the stronger the longing for a European
identity and the more pressing the need to express such an identity in a
constitutional text, the more inescapable will be the search for a common European
political tradition.
In this vain, many of the contributions to Darker Legacies revolve around the
heritage of Carl Schmitt that, as John McCormick has put it, “haunts the study of
European integration”.19 Possible continuities are discussed both regarding the
17 Christian Joerges, Introduction to the Special Issue: Confronting Memories: European “Bitter Experiences and
the Constitutionalization Process: Constructing Europe in the Shadow of its Past, 6 GERMAN LAW JOURNAL 245,
250 (2005).
18
Id., 250.
19 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration
1923-1955, 133, 141; Furthermore J Peter Burgess, Culture and the Rationality of Law from Weimar to
Maastricht, 143-166; Christian Joerges, Europe a Großraum? Shifting Legal Conceptualisations of the
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European Union’s institutional design and Schmitt’s concept of Großraum (sphere of
influence20) and regarding Europe’s search for a common identity and Schmitt’s
völkisch (folkish) thinking.
Are there then continuities between Schmitt’s Großraum theory and the
“technocratic model of an economic European sphere” (Zumbansen)? Contributors
and commentators express different views on this point. Most certainly, Europe’s
multi-level system of governance differs considerably from the Schmittian
Großraum fantasy (Kemmerer). But the structural similarities, rather than true
continuities, are noteworthy in that they point right to the heart of the European
legitimacy problem. At the very least, the Großraum concept serves well to define
Europe’s “negative” (Costantini), to illuminate what it should not be(come).
There still remains though Schmitt’s völkisch question, often associated with the
debate about how much demos must be plunged into the European Union to make
it a true democratic polity. Engelbrekt and Scheuerman maintain in their reviews,
against Ghaleigh21, that Schmitt himself considered ethnic homogeneity a necessary
pre-condition for a functioning democracy. And perhaps Dyzenhaus has a point
when he claims that one “cannot simply choose Habermas over Schmitt in reaction
to Schmitt’s repugnant views about homogeneity, because Schmitt was right that
something beyond liberal democratic values is as a matter of fact constitutive of
every successful political unity and so every successful legal order”. But, surely, to
choose Schmitt over Habermas would prove disastrous – so again a merely
dystopian value.
With or without Schmitt: what is distinctive about the European Union,
introspectively and in its encounter with the “outside world” (Costa)? Weiler notes
in his Epilogue to Darker Legacies that ideas of demos and nationalism or belonging,
freed of Schmittian associations, may be of enduring importance in a postnationalist Europe.22 And Vagts states the obvious, namely that “the curious
difficulty Europeans have in generating a European nationalism or patriotism over
and above the traditional clan feelings” is intimately connected to its darker
legacies.
Integration Project, 167- 192; Neil Walker, From Großraum to Condominium – A Comment, 193-204 all in
DARKER LEGACIES OF LAW IN EUROPE (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
20
The more literal translation ‘great space’ or ‘greater space’ is also commonly used.
Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in DARKER
LEGACIES OF LAW IN EUROPE, 43-54 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
21
22
Weiler (note 6), 402.
2006]
The reluctance to ‘glance in the mirror’
79
It is then to this end that the coming to terms with the demons of the past in an
attempt to take the shaping of a collective memory in the European public seriously
(Fischer-Lescano) might indeed increase Europe’s social acceptance through and
through. Such a re-working of the past must be coupled with renewed engagement
in democracy because, as Brunkhorst notes, another moral of the silenced prehistory of the European Union is that “liberalism without egalitarian democracy, as
practiced nowadays by the European Union and its organs, is worth nothing and is
liable to fall at the first hurdle.”
D. Argumentum e silentio
To explore the darker legacies of law in Europe is not only a “delicate” (Eijsbouts)
but also a particularly difficult undertaking. The attempt to capture its significance
for and its ambivalent heritage in the process of European integration can only
succeed if discussion extends beyond distinctively legal considerations. Because,
and this is another important insight of Darker Legacies, when it comes to the
corruption and betrayal of the very foundations of legal systems, be it in terms of
human rights, democracy or the rule of law itself, legal doctrine alone is of limited
explanatory force. This lends some support and legitimacy to the editors’ “loose
multi-disciplinary, multi-issue and multi-national exploratory approach”23 to this
new field of research (Möllers). Still, as many commentators point out, the book’s
lack of overall coherence can be frustrating, its overly broad scope at times
obscuring its message (Koskenniemi). It would have required a clearer statement of
the questions it poses and the answers it offers (Loughlin) and should have made
its contemporary implications more explicit (Smithey). There is room for
improvement here, and the follow-up project to Darker Legacies24 tries to tighten-up
the agenda and refine its objectives.
Quite apart from these deficiencies, such criticism should not obscure the general
importance of the project and the difficulties (not merely conceptual) that beset its
realization. The reluctance to ‘glance in the mirror’ on the part of the legal
profession, Koskenniemi writes, “testifies less to its insensitivity to problems in the
European past than to its utter marginalization from the core of social and political
theory”. And this “communicative silence” (Fischer-Lescano) extends from the
level of academia and social networks into, to use Arendt’s term, “the world that
23
Joerges (note 17), 245.
Confronting memories: European “Bitter Experiences” and the Constitutionalization Process, 6 GERMAN LAW
JOURNAL, 245-561 (2005).
24
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[Vol. 07 No. 02
lies between people”, a retreat to speechlessness that endangers this very ‘inbetween’, at a moment where nothing has become more dubious “than our attitude
toward the world, nothing less to be taken for granted than that concord with what
appears in public.”25
‘Alas art’, metaphors should not be overstretched, but it is noteworthy that Paul
Celan faced a different obstacle to ‘glancing in the mirror’ in post-war Europe than
the one so aptly described in Stolleis’ prologue to Darker Legacies as a process from
“self imposed damnatio memoriae” to the maintenance of taboo.26 “What kind of
times are these”, asks Celan, “when a conversation is well nigh a crime because it
includes so much that is said?”27 What Celan refers to as, pace Adorno, the problem
of the unspeakable for one who, “wirklichkeitswund und wirklichkeitssuchend“
(stricken by and seeking reality), tries to go “with his very being to language”28
returns in a different façon in contemporary discourse: How to point at
contaminations of the European project and European law if already, and
invariably, the conceptual tools and language at one’s disposal suffer from the same
disease? (The use of) language, too, is socially embedded and its purported
meaning depends, at least to a certain extent, on what kind of claims are made or
challenged by it.
“Shoah fatigue” apart – Weiler identifies different variants of such fatigues in his
Epilogue: the “Walser strain – fairly repulsive even if innocuous”, the “Nolte strain
– angry, accusatory and sanctimonious” (Habermas reply to which the editors take
as a starting point), the “pathological case of Holocaust deniers” and finally what
he calls the “Garden Variety” – the readiness to exchange a burdensome task for a
more agreeable one.29 But there are still those who take the editors’ rhetorical
question as to the ‘Why’ literally, and who do so for far less susceptible reasons.
When Dough Saunders complains about the “rhetorical crime” of the “reductio at
hitlerum” he certainly overstates the point, and the well-balanced contributions to
Darker Legacies withstand his crude analogies. But there is something disturbingly
familiar to his argument: “If you don’t approve of a political position or a war,
25 Hannah Arendt, On Humanity in Dark Times: Thoughts about Lessing, in MEN IN DARK TIMES, 3, 4
(1970).
26
STOLLEIS (note 12), 4.
27 Paul Celan, Ein Blatt, baumlos, für Bertholt Brecht, in SELECTED POEMS AND PROSE OF PAUL CELAN, 343,
John Felstiner trans. (2001).
28 Paul Celan, Speech on the occasion of receiving the Literature Price of the Free Hanseatic City of Bremen, in
SELECTED POEMS AND PROSE OF PAUL CELAN, 395, 396, John Felstiner trans. (2001).
29
Weiler (note 6), 389.
2006]
The reluctance to ‘glance in the mirror’
81
you’ll very likely be able to note some similarity to something Hitler did in the
1930’s. … Your interlocutors are likely to get very quiet and walk away, which may
make you feel like you’ve won”.30 Antifascists do not always make liberals, and the
silencing of voices and the maintenance of taboo works both ways.
Is then silence the most appropriate and last hideaway? Are we thrown back to
Schmitt’s suggestion, as described by Fischer-Lescano, to remain quiet in order to
“reflect upon ourselves and upon our divine origin”? Celan maintains against
Adorno, Schmitt and Saunders:
“It, the language, remained not lost, yes in spite of everything. But
it had to pass through its own answerlessness, pass through
frightful muting, pass through the thousand darknesses of
deathbringing speech. It passed through and gave back no words
for that which happened; yet it passed through this happening.
Passed through and could come to light again, ‘enriched’ by all
this.”31
And Hannah Arendt aligns with Lessing’s Selbstdenken (independent thinking for
oneself) who declared in “all seriousness”:
“I am not duty-bound to resolve the difficulties I create. May my
ideas always be somewhat disjunct, or even appear to contradict
one another, if only they are ideas in which readers will find
material that stirs them to think for themselves”32
This might not have been the editor’s primary aim – but it is a worthwhile one
nevertheless. Darker Legacies of Law in Europe speaks with many voices, but also
with a common concern for the past and future of the pan-European enterprise. In
this vein, the context-sensitivity and professionalism of its contributors stand out
from the multiplicity of annoying mutual allocations of guilt in the name of ‘You
know who’, in Germany and beyond.
30 Doug Saunders, Blah, blah, blah Hitler! Blah, blah, blah, Nazi!, in THE GLOBE AND MAIL (Saturday,
Nov. 27 2004 Page F3) available at: http://www.theglobeandmail.com/servlet/Page/document/
hubsv3/tgamHub. Despite the consent of the author, the Globe and Mail refused to permit the reprint of
this review.
31
CELAN (note 27), 395
32
Gotthold Ephraim Lessing as cited from Arendt (note 24), 8.
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GERMAN LAW JOURNAL
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ARTICLES : SPECIAL ISSUE
Sleeping Dogs: A Blemish on the Clean Slate of Western
Liberalism
By Hauke Brunkhorst ∗
Christian Joerges and Navraj Singh Ghaleigh, eds., Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism over Europe and Its
Legal Traditions, Oxford, 2003, ISBN 1841133108, pp. 404, $116.00.**
What does the European Union (EU), the guardian of peace and human rights that
was founded against war and fascism, have to do with the Nazis? Initially,
Europe’s union, that is, the creation of a “Großraum” (sphere of influence)
dominated by Germany, was the only reasonably realistic ambition during the war
that the fascist and neo-conservative elites of the continent could reach a consensus
with the Nazis. However, right from the beginning, the new post-war community
opposed any form of unilateral rule, particularly by the Germans. Yet, if Angela
Merkel (the current German chancellor) had her way, we would soon see a
Christian-dominated Großraum with privileged Turks; their privilege being that
they are not an equal member of the EU.
∗
Professor of Sociology, Flensburg University. Email: [email protected].
Previously published in German in FRANKFURTER RUNDSCHAU (April 25, 2005). Translated by Jo Eric
Murkens.
**
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GERMAN LAW JOURNAL
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As Christian Joerges1 and Michael Stolleis2 show in their articles in Darker Legacies of
Europe, Europe’s new legal community accommodated many an old Nazi, at least
in Germany. Thus, Nazi-lawyer Hans Peter Ipsen managed to transform himself
into the leading liberal European Community legal scholar, much like Ernst
Forsthoff or Helmut Schelsky in their respective field. Since their juvenile attraction
with the Nazis and their ethnic Volk had not worked out, they felt compelled to
affirm the inevitable rise of technical-liberal civilisation: Europe as a technocratically-steered, ordo-liberal Großraum with a purely functional constitution. This
offered enough scope to skilful elites whose rule was unruffled by any democratic
impositions. Their elitist aloofness from democracy conferred a European blessing
on the continuity of their own life stories.
The notion that liberalism was blemished by the Nazi regime is also illustrated by
the other contributions to the important volume, Darker Legacies of Europe. Inspired
by Michel Foucault and Giorgio Agamben, David Fraser and Lawrence Lustgarten3
compare Nazi law-making and jurisprudence with that of the Anglo-Saxon
liberalist tradition; a comparison that is by no means flattering.
The similarities between Nazi Germany and its western neighbours are
discomfiting. They range from debates on euthanasia, eugenics, race law, and
doctrines of prevention through elimination in 1930s criminal law to the British
anti-terror laws of the late 1960s. The few immigrant voices that were opposed to
these viewpoints were not loud enough to make themselves heard.
The post-modern critique of liberalism rubs salt into Anglo-Saxon liberalism’s
wound, even if it is itself one-eyed. The comparison of the official legislative
programmes simply ignores that the Nazi state was a “dual state”4 of public law
and extra-legal measures that, from the very first day, had its centre in the system
of concentration camps.
1 Christian Joerges, Europe, a Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE
AND ITS LEGAL TRADITIONS, 167 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003), available at:
http://www.iue.it/PUB/law02-2.pdf.
Michael Stolleis, Prologue: Reluctance to Glance the Mirror. The Changing Face of German Jurisprudence after
1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, id., 1.
2
3 David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE, id., 87; and Laurence Lustgarten, ‘A
Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of Difference, in DARKER LEGACIES
OF LAW IN EUROPE, id., 113.
4
ERNST FRAENKEL, THE DUAL STATE (1941).
2006]
A Blemish on the Clean Slate of Western Liberalism
85
But not even the liberal, formalistic procedures of legal positivism, which remain
deeply culturally embedded to this day, could prevent French judges from
repeatedly implementing the anti-Jewish decrees of the Vichy regime. France was,
of course, occupied territory at the time, and the loss of its republican core had
already severely demolished legal formalism.
It is also surprising that in Spain—as Agustin José Menéndez shows5—the most
important constitutional lawyers of the Franco regime had been flawless liberals in
the republican era. Could there be a grain of truth to Herbert Marcuse’s old thesis
that the defencelessness of liberalism in the age of fascism has internal explanations?
The moral of the silenced pre-history of the EU is that liberalism without egalitarian
democracy, as nowadays practiced by the EU and its organs, is worth nothing and
is liable to fall at the first hurdle. Even if Alexander Somek’s accurate description of
the “snobbish reference to ‘non-majoritarian’ institutions” and “authoritarian
liberalism”6 is pompously glorified as “deliberative democracy,” democracy cannot
exist without egalitarian procedures of decision-making, and contemporary Europe
does not have sufficient egalitarian procedures of decision making. But the
European elitist discourse will suppress this lesson from the past with the same
pigheadedness as the TV journalists in the world of politics.
Agustìn José Menéndez, From Republicanism to Fascist ideology under the Early Franquismo, in DARKER
LEGACIES OF LAW IN EUROPE (note 2), 337.
5
6 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, id., 361.
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ARTICLES : SPECIAL ISSUE
Lawyers and the Vital Relationship between the Past and
the Present
By Pietro Costa∗
Christian Joerges and Navraj Singh Ghaleigh, eds., Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism over Europe and Its
Legal Traditions, Oxford, 2003, ISBN 1841133108, pp. 404, BP 55/$116.00**
Darker Legacies of Law in Europe, edited by Christian Joerges and Navraj Singh
Ghaleigh, is composed of numerous interesting essays (21 essays in total) and, in
the time at my disposal, I shall not be able to expound on them with the care and
attention that they merit. Consequently, I shall be able to mention only some of the
relevant topics that this book addresses.
My general impression is that we have before us an important, original, and
complicated book. It is a book that does not run the risk of mingling in the mass of
the works devoted to the past, the present, and the future of Europe. It is a book
centered on an original and, in some ways, disturbing hypothesis: the hypothesis
that the relationship between the twentieth century totalitarian regimes and the
liberal and democratic traditions may be different from a mere antithesis, as our
common sense tends to suppose.
This book has no antiquarian approach: it tries to grasp the vital relationship
between the past and the present, and we can, on this ground, say that it takes
historiography seriously. Yet the book has not been written by historians: if I am
not mistaken, most of the essays have been written by jurists or by legal
∗
Professor of Legal History, University of Florence. Email: [email protected].
Previously published at: EUROPEAN LAW BOOKS (15 DECEMBER 2003), NEW YORK UNIVERSITY LAW
SCHOOL. http://www.europeanlawbooks.org/reviews/detail.asp?id=99.
**
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philosophers such as Massimo La Torre,1 even if the prologue has been assigned to
a prominent historian, Michael Stolleis.2 Maybe this happened by chance, but, if
there is an underlying strategy, its probable grounds are the need to stress the
relationship between the present and the past, and the conviction that memory (or
history) is a necessary component of the intellectual adventure of the jurist. It is this
shared attitude towards the past that encouraged the authors to confront the
pivotal dilemma of every historical research: that is, the relationship between
continuity and discontinuity; a relationship that only the ideologues can suppose to
describe by determining clear-cut and definite gaps, while the historians, and the
jurists as historians of themselves, are aware that continuity and discontinuity,
dramatic cleavages, and disguised legacies usually co-exist. Both the keyword and
the challenge of this book coincide with the attempt to grasp the rhythm of history,
the plot of the continuities, and the discontinuities in the eventful context of
twentieth century Europe.
Two major gaps emerge on the scene: first, the crisis of liberal civilization and the
coming of the totalitarian regimes in the 1920s and 1930s; and, second, the collapse
of fascism and national socialism and the beginning of constitutional democracies.
It is a complicated process and a further difficulty stems from the fact that the
object of the analysis is not strictly homogeneous: fascist Italy, national socialistic
Germany, Franco’s Spain, and Dollfuss’ Austria are different regimes,
notwithstanding their family feeling. How does the book accomplish its engaging
task? By focusing on specific but revealing subjects. Let us refer to the first major
gap described by this book: the relationship between liberal civilization and the
national socialist regime. In order to highlight this relationship, a particularly
interesting topic—one of many—is mentioned, mainly in the essays of David
Fraser3 and Laurence Lustgarten4: criminology and eugenics.
The call to save the social body from the plague of inveterate criminals, madmen,
and incurables is not a distinctive feature of national socialism. Indeed, it was a
program that took root in late nineteenth century civilization, when several authors
1 Massimo La Torre, The German Impact on Fascist Public Law Doctrine – Costantino Mortati’s Material
Constitution, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM
OVER EUROPE AND ITS LEGAL TRADITIONS, 305 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
Michael Stolleis, Prologue: Reluctance to Glance the Mirror: The Changing Face of German Jurisprudence after
1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, id., 1.
2
3 David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE, id., 87.
4 Laurence Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of
Difference, in DARKER LEGACIES OF LAW IN EUROPE, id., 113.
2006]
Relationship between the Past and the Present
89
began to stress the primacy of collective entities (the state, the nation, or society)
and the normalizing and disciplinary power of society over individuals. Eugenics
began in England and developed in Germany, France, Italy, and America at the end
of the nineteenth century; not only did it urge the provision of public health and of
municipal building, but also suggested interventions of obligatory sterilization and
euthanasia. The title of a famous book of Karl Binding and Alfred Hoche, published
in 1920, is revealing: the Vernichtung lebensunwerten Lebens (the extermination of life
unworthy of living).5
Nineteenth century civilization had a dark side, which emerged when concern for
security prevailed against liberty and rights. A good example is offered by the
notion of emergency law: an ancient idea (not an invention of Schmitt) that was
repeatedly invoked during the liberal era and now seems to have greatly recovered
topical interest after 11 September 2001. As Fraser’s essay points out, totalitarian
cultures were at ease with the dark side of liberal tradition, and on this ground
alone many American lawyers during the 1930s were able to consider national
socialism not as a juridical monster, but as a respectable, albeit debatable,
experiment. There were undeniable continuities between pre-totalitarian and
totalitarian cultures, but, at the same time, we cannot neglect some relevant
differences between them; we cannot forget that some key words, for instance, the
unlimited manipulation of the individual, the notion of emergency law, and the
liquidation of lebensunwerten Lebens (unworthy life), were restrained in some fringe
areas of liberal civilization, while they became the pivot of totalitarian ideology and
practice.
I come now to the second major gap described by Darker Legacies of Law in Europe:
the relationship between totalitarian regimes and post-war democracies.
A promising field of research is the analysis of intellectual elites. Continuity has to
do not only with institutions, norms, and ideologies, but also with human beings,
with human fears, needs, mentality, and so on. Stolleis’ prologue and Weiler’s
epilogue6 highlight the reluctance of several generations of jurists ”to glance in the
mirror.” The case of Reinhard Höhn, according to Ingo Hueck’s essay,7 is
exemplary: Höhn, who had been an extremist theoretician of SS power, became the
director of an important management school in the post-war years and received a
KARL BINDING/ALFRED HOCHE, DIE FREIGABE DER VERNICHTUNG LEBENSUNWERTEN LEBENS: IHR MAß
UND IHRE FORM (1920).
5
6
J.H.H. Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE (note 1), 389.
Ingo Hueck, ‘Sphere of Influence’ and ‘Völkisch’ Legal Thought: Reinhard Höhn’s Notion of Europe, in
DARKER LEGACIES OF LAW IN EUROPE, id., 72.
7
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laudatory obituary by the Frankfurter Allgemeine Zeitung three years ago. The
sociology of intellectual elites is an interesting approach, but does not exhaust the
content of this book. Two major problems come under consideration: the
relationship between totalitarian regimes and constitutional democracies, and the
relationship between totalitarianism and Europeanism.
The first problem emerges, for instance, in the essays that Massimo La Torre and
Giacinto della Cananea8 have devoted to the Italian jurist Costantino Mortati. I
probably should not have chosen Mortati as the classical representative of fascist
jurists, but Mortati is a perfect case study if we are concerned with the problem of
continuities and legacies; and the legacy, in this case, is the constitutional role of a
political party. In the post-war years, the constitutional frame dramatically changed
and free competition among different parties took the place of the fascist monoparty regime. According to Mortati, however, the party (the single party in the
fascist regime and the system of parties in the post-war democracy) remained the
indispensable medium between the individual and the political community.
The second problem is the relationship between the totalitarian ideologies and the
new European order. The hypothesis of a dark legacy may appear bizarre, in so
much as the Europeanist project took its roots in the anti-totalitarian writings and
actions of English federalists, of Rossi and of Spinelli, and the focus of this project
was the criticism of the absolute sovereignty of the nation-state (and of its
totalitarian climax) and the praise of individual autonomy. The rejection of
totalitarianism is also the foundational symbol of the new European order.
Notwithstanding this well known and obvious data, the problem of the dark
legacies may be posed with good grounds, as several essays in this book
demonstrate.
From one point of view, we must not forget that totalitarianism advanced a precise
idea of Europe: a totalitarian Europeanism, a fascist and national socialist notion of
a European order, actually existed. This is the first legacy that we must take into
account, as many essays, and Luca Nogler’s essay in particular,9 point out. This
topic is not only an important (and too often neglected) piece of the totalitarian
ideological patchwork; it also has a more general value: it is a good antidote against
a hackneyed Europeanist rhetoric, according to which the very name of Europe
Giacinto della Cannanea, Mortati and the Science of Public Law During the Fascist Period, in DARKER
LEGACIES OF LAW IN EUROPE, id., 321.
8
9 Luca Nogler, Corporatist Doctrine and the ‘new’ European Order, in DARKER LEGACIES OF LAW IN EUROPE,
id., 275.
2006]
Relationship between the Past and the Present
91
seems enough to announce the triumph of democracy and the glorious destiny of
humanity. In this sense, the totalitarian legacy, the memory of a totalitarian idea of
Europe, could be considered not as a shadow, but as a useful warning.
From a second point of view, the differences between totalitarianism and
democracies cannot exclude some underlying continuities. The most explicit
contribution to this perspective is James Whitman’s essay,10 which is discussed by
Gerald Neuman.11 Whitman’s thesis is provoking because, in his opinion, the
alleged continuity involves not some peripheral area of post-war constitutional
culture, but its core: the absolute value of the individual, the idea of the equal
”dignity” of every human being; an idea that Pufendorf had expressed two
centuries before with this colorful phrase: ”utique non canis sum; sed aeque homo,
atque tu.” In fact, Whitman clears and limits his assumption: he does not refer to
discourses but to social practices, he does not consider the philosophical side but
the social dynamics of the several regimes. From this point of view, national
socialism, according to Whitman, is a stage of a long historical process: a stage
distinguished by “a systematic effort to include low-status Germans in a world of
high-status ‘honor’.” The thesis may sound provocative, but it is a matter of fact
that totalitarian regimes promoted a mass-oriented policy, introducing family
allowances and paid holidays, organizing the worker’s free-time activities, and so
on. The continuity thesis may be provocative, but it does, at least, have some
authoritative forerunners: Hayek, who wrote his Road to Serfdom in 1944,12
described a road that coincided with state interventionism, which, according to
him, had begun in the Weimar Republic, had continued during the national
socialist regime, and now was being rashly introduced into the British realm of
liberty and rule of law by Beveridge.
We can also take it for granted that, in the long history of the so-called welfare
state, there is a bright legacy, from Weimar to national socialism, and a dark legacy,
from national socialism to post-war democratic Germany. At the same time,
however, we must grasp the specific features of several contexts, as Weiler reminds
us in his epilogue. We cannot therefore neglect that the social interventionism of
totalitarian regimes is an instrument to their major goals: economic and military
expansionism, the general mobilization of the masses, and the unrestrained
manipulation of the individual.
James Whitman, On Nazi ‘Honour and the New European ‘Dignity’, in DARKER LEGACIES OF LAW IN
EUROPE, id., 243.
10
Gerald Neumann, Judicial Methodology and Fascist and Nazi-Law – A Sceptical Response, in DARKER
LEGACIES OF LAW IN EUROPE, id., 267.
11
12
FRIEDRICH A. VON HAYEK, THE ROAD TO SERFDOM (1944).
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Another alleged dark legacy is connected with Carl Schmitt’s notion of the
Großraum (sphere of influence), analyzed by authors such as Hueck, Joerges,13
Walker,14 Nogler, and McCormick.15 Continuities and discontinuities again take
place. On the one hand, Schmitt’s idea of the Großraum, the idea of a space rooted
“essentially not in the state but in the technical, industrial and economic sphere,”
seems impressively up-to-date; however, on the other hand, as McCormick points
out, Schmitt’s Großraum has little in common with the post-war European order,
which has no centre, has no imperialistic tendency, and requires equality among
peoples. Probably the most intriguing part of Schmitt’s legacy emerges when we try
to confront the problem of Europe’s identity. We know Habermas’ solution:
identity coincides with fundamental rights and constitutional democracy. Is this a
sufficient answer? According to McCormick, Schmitt “prompts us to question what
specifically characterizes Europe’s … distinction from the outside world today”;
and Koselleck has written,16 in more general terms, that the identity of a social
group depends on concepts that allow it to define, determine, and differentiate
itself from other groups. In my opinion, Koselleck is posing a real problem, whose
importance for the new European order should not be undervalued.
In short, I must come to a conclusion and lay my cards on the table: Koselleck is
deeply impressed by Schmitt, and I am deeply impressed by Koselleck. I also
cannot exclude that the dark shadow of totalitarianism has reached, via Koselleck,
yours truly, who can, therefore, only rely on your charitable interpretation.
13 Christian Joerges, Europe a Großraum? Rupture, Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE (note 1), 167.
Neil Walker, From Großraum to Condominium – A Comment, in DARKER LEGACIES OF LAW IN EUROPE, id.,
193.
14
15 John McCormick, Carl Schmitt’s Europe: Cultural, Spatial, and Imperial Proposals for European Integration,
1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, id., 133.
Reinhart Koselleck, Per una semantica storico-politica di alcuni concetti antitetici asimmetrici, in FUTURO
PASSATO: PER UNA SEMANTICA DEI TEMPI STORICI (1986).
16
ARTICLES : SPECIAL ISSUE
The ‘timeless present’: At the roots of Europe’s identity
By Cristina Costantini*
Christian Joerges and Navraj Singh Ghaleigh, eds., Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism over Europe and Its
Legal Traditions, Oxford, 2003, ISBN 1841133108, pp. 404, BP 55/$116.00**
Until now, the several publications related to European integration have led us
along still waters and beaten tracks: they have ‘urbanized’ the juridical landscape –
so to speak –, choosing a conventional kind of construction. Sometimes, the
‘European architects’ have passed through the way of the past to select images,
collective memories and traditions which may be happily packed by the placid
bourgeois spirit as the common glue of the ‘European identity’. More often, they
have stopped at the crossroads of the present time to observe the actual
arrangements and propose their abstract classification. The journey into the future
follows predictable directions: now, the European Union is conceived as the
accredited testing laboratory for the models of the most efficient social
organization; in other cases, two levels of integration are identified in the new
world order: global integration and a merely European one.
Finally, the authors of Darker Legacies of Law in Europe pass through an unexplored
path which is able to catch us off-guard with an unexpected perspective. They cast
light upon the legacies on which we should not feed, the memories which we
would forget. We have to assume the form of the Heideggerian Zukünftigen.1
*
Lecturer in Comparative Private Law, University of Bergamo. Email: [email protected]
Previously published in. Rivista Critica Del Diritto Privato XXII: 1, 2004, 183-191 (translated by the
author)
**
1
HEIDEGGER, BEITRÄGE ZUR PHILOSOPHIE VOL. 65 395-396 (1989)
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The work is deep and wide ranging, and assembles the opinions of different
scholars from Europe and beyond. Darker Legacies is divided into four parts. Part. I
sets the tone for the book by investigating the shadows left by Nazism and Fascism
on the contemporary legal systems. Part II examines the main tenets of Nazi and
Fascist legal doctrines. Part. III shows the complex heritage of the present time
(from the idea of Europe to the kind of legal and judicial methodology). Finally,
Part. IV inspects the response to Nazism and Fascism in the contest of national legal
cultures.
A. Defining Europe: from ideality to identity
In order to deconstruct the false bourgeois certainties, we have to face the theories
that founded the Nazi and Fascist ideologies.
J.P. McCormick, Ch. Joerges and N. Walker focus their attention on the doctrines of
Carl Schmitt. The authors have a double purpose: first, they want to cast light on
the specific traits which, according to Schmitt, connote Europe as a ‘selfunderstanding’ community with a position of uniqueness in the framework of the
worldwide geo-political map; secondly, they intend to re-found the theoretical and
philosophical basis of liberalism, moving from the interpretation of Schmitt’s
philosophy.2
In the first direction, the authors mark four main steps in the elaboration of the
conclusive Schmitt’s thought.
1) In the young Schmitt’s vision, Europe is a political, social, cultural and even
human reality opposed to Soviet Russia. This conception constitutes a further
response of the European intellectuals to the challenge posed by Bolshevik Russia.
The pressing need - beyond the historical contingency – to resolve the contention
with the Soviet East have already sounded peremptory in the admonition of B.
Bauer: “This nation with human head and leonine body is the Sphinx facing Europe
with the riddle of the future. The monster’s eyes look at Europe watchful and fixed,
2
In recent years, there has been a revival of interest in the work of Carl Schmitt, even in the
English-speaking world. Ellen Kennedy says that Schmitt offers ‘the most cogent and coherent critique
of liberal institution in this century’ and that his legal and political theories ‘filled a gap in left-wing
theory, supplementing the economic and social theory of Karl Marx by analyzing the condition of the
liberal state under 20th century capitalism’. E. Kennedy, Carl Schmitt and the Frankfurt School, 39 TELOS
41-42 (1987); C. MOUFFE, THE CHALLENGE OF CARL SCHMITT (1999); D. DYZENHAUS, LEGALITY AND
LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (2000)
2006]
Timeless Present
95
the leonine leg is cocked and ready to strike; Europe has to solve the riddle and it
will be safe; but if Europe ceases to try its hand at riddling in the hope that the
answer will come by itself or by chance, then it will fall prey to the Sphinx, which
will dominate with fierce strength.”3
At this time, Schmitt justifies the sharp opposition between Europe and Russia in
theological terms. Europe is conceived as the physical incarnation of a New
Christendom clashing with Byzantine Christianity and Eastern Orthodoxy: the
Catholic, Apostolic, Roman Church represents the bulwark around which
Europeans might unit and fight against the common enemy of Soviet Russia.
Catholicism is faithful to the essence of European civilization as the public
representation of substantive principles and values such as authority, community
and justice, while Soviet anarchism and communism cannot play a significant role
in the historical process of building Europe.4
In this regard, the essay of McCormick is very clear and clever in that he draws
attention to the Schmittian identification of the orthodox, communist and anarchic
spirit in Dostoyevsky, Lenin and Bakunin respectively, united by their being the
expression of a false awareness and of being very far from Marx and Engels, who
are, fundamentally, both Europeans and intellectuals, who had faith in moral
authority.
2) Some years later, Schmitt develops his thesis concerning ‘the political’ in the ‘Age
of Neutralizations’ essays. Here, he concludes in the sense that the main difference
between Europe and Soviet Russia rests no longer with ideas and values, but with
the relationship of elites to masses in general, and elites and masses to technology
in particular.
3) In the 1940s, in referring to the American ‘Monroe doctrine’, Schmitt explains
that a specific space had to become the conceptual basis for international law, and
the Reich had to constitute the order of that space. The German Reich is conceived
as a “Großraum order dominated by particular ideological ideas and principles that
exclude intervention by powers foreign to the area, whose guarantor and guardian
is a people that has proved itself capable of this task”.5
3
B. BAUER, DIE RUSSISCHE KIRCHE (1855)
4
C. SCHMITT, RÖMISCHER KATHOLIZISMUS UND POLITISCHE FORM (1984)
C. SCHMITT, VÖLKERRECHTLICHE GROSSRAUMORDNUNG MIT INTERVENTIONSVERBOT FÜR
RAUMFREMDE MÄCHTE. EIN BEITRAG ZUM REICHSBEGRIFF IM VÖLKERRECHT, 305 (1941)
5
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4) Finally, in The Nomos of the Earth, which starts with the collapse of the
Westphalian state, Europe is the territory, the space in which the geo-political
arrangement most conducive to world peace developed.
Having stated that, it is interesting to verify which of the Schmitt’s vision of
Europe’s identity could actually survive and found a renewed self-understanding
Community. We can note that the view of Europe as a reconstructed Christendom
has been drawn on by statesmen such as Adenauer, Monnet, Schuman and De
Gasperi to shape the post-war European order. Likewise historians and literary
man have stressed the importance of religion in the construction of the European
identity. The technocratic interpretation of the EU seems to suggest that Europe
must use its technology to distinguish itself from the USA, the Soviet Union, and
eventually Asia.
In contrast, we can employ the Großraum Theory with the aim of defining what the
EU is not. It is not: a): a territory governed by a leading, political centre; b): a
political entity with imperial ambitions in the East; c): a one-dimensional order: it
appears as a multi-dimensional order, as a condominium, in which the states and
their legal orders co-operate with, and compete with other levels of legal order,
particularly the supranational order of the EU.
Obviously, the identification of Europe in the Nomos of the Earth shows its
problematical nature: after the collapse of the Soviet Union, it is a geo-political
question of whether Europe can maintain and play the same role in opposition to
the hegemony of the USA.
B. Revealing the legacies
The purpose of Darker Legacies is not limited to a static understanding of the past.
The project goes so far as to select from the past the patterns that have flooded into
the framework actually used as a means of legitimation for the new structure of
European transnational governance. The intent is to investigate the roots of the
modern idea of European supra-nationalism.
Joerges believes that two of the major formative influences of supra-nationalism
took shape in the Germany of the 1920s and 1930s, in the more general climate of
the post-Weimar critique of the limits of Parliamentary democracy and of classical
liberalism. And it is here that he alludes to ordo-liberalism and technocratic
functionalism.
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According to ordo-liberalism. developed by German economists such as Eucken,
Röpke and Böhm, the state must create a proper legal environment for the economy
and maintain a healthy level of competition through measures that adhere to
market principles. The very fact that Europe had started its integrationist path as a
mere economic community lent plausibility to the ordo-liberal arguments. The
legitimacy of the Community is grounded on the interpretation of the EC economic
law provisions as a law-based order committed to guaranteeing economic
freedoms. Consequently, the same legitimacy is independent of the state’s
democratic constitutional institutions and places limits upon the political power of
the Community.
Moreover, Joerges stresses the relevance of the German contribution to the
technocracy debate and the development of functionalist thinking, referring to
Forsthoff and Ipsen and to the precise identification of the European community
with a ‘purposive association of functional integration’.
The analysis continues. Nazism and Fascism undoubtedly left shadows on the
German and Italian legal systems. In this perspective, A. Somma and P.G. Monateri
clarify the principles of the fascist theory of contract as follows:
1) the subordination of the contract to the legal system for aims outside the pursuit
of the parties’ interests;
2) the prevalence of the legal system as functional to the promotion of the economic
structure imposed by political power;
3) the refusal of the equation which identifies contracts with bilateral juridical
transactions;
4) the matters of contract are confined to the cases in which the parties exchange
individual goods and services;
5) the external control on the contract derives from considerations concerning the
execution of its performance according to the good faith principle. But good faith is
not connected with jus-rationalist fides (to suppress the freedom of contract in favor
of contractual equity): it confirms the social function of the contract.
These characteristics of the Fascist Law of contracts have been introduced in the
civil law codification in force. This fact implies the presence of a juridical doctrine
which participates in the construction of such law, albeit only ‘through typical
content or through the omission of established solutions’. It is hence wrong to
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reserve the notion of juridical Fascism to authors who identified with the fascist
regime.
Another question is at stake in Darker Legacies: what role did the different
methodological schools play in establishing the Nazi and Fascist legal order. This is
important to verify the likelihood of the post-Fascist tendency to attribute
responsibility for judicial injustice to positivism.
According to Grosswald Curran, it is not possible to affirm the existence of a causal
nexus between the specific judicial methodologies (positivistic/anti-positivistic;
formalistic/anti-formalistic) and the substantive injustice of case results. This is
testified by the judicial injustice meted out by the Courts of Germany and France
during their Fascist period, despite the differences in their respective traditional
national judicial methodologies. The author concludes that the driving force behind
court decisions in both Germany and France was political ideology, and the
particulars of judicial methodology were far less important to the outcomes of
cases.
C. Appearances can be deceptive
The usual, melancholic landscape is now re-assembled in a new and unforeseen
setting. The latest provocation concerns the controversial issue of analogies and
connections between Nazi policies and those adopted in liberal states. According to
Laurence Lustgarten, there are at least three points of contact between the historical
implementation of Nazism and Liberalism. First, the usual account of the Nazi
attack against Jews, criminals, and ‘asocials’ is imbued with ideology, from the
moment that it makes us forget the arbitrary action taken against threatening
presence of Communism. On the other hand, in post-war liberal societies, an
attenuated version of the same process has occurred, notably in the USA in the
McCarthyite period.
Secondly, we can find the use of the same rhetorical and declamatory cluster of
ideas, terms and symbols. In particular, the use of the rhetoric of war (‘war on
drugs’, war against terrorism) conceals an attempt to restrict the traditional values
of civil society. Thus, even the language itself should be a warning.
Moreover, racial bigotry remains strong and politically influential in all European
states. If one asks why equally horrific solutions did not occur, despite evident
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parallels, this is certainly because the German attachment to liberalism was much
more problematical and its democratic institutions were much more fragile.
But Darker Legacies raises a much more enigmatic question: were some Nazi
policies, at least to some degree, the (patho-) logical working out of ideas shared by
traditionalistic movements and thinkers? Could it be said that, in some sense, Nazis
had the courage of the convictions of others?
Darker Legacies goes beyond the common belief that satisfies the bourgeois spirit.
Now the past gaining control over the present is at issue.
ARTICLES : SPECIAL ISSUE
The unrelenting stare into the past and its justification
By David Dyzenhaus*
Christian Joerges and Navraj Singh Ghaleigh, eds., Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism over Europe and Its
Legal Traditions, Oxford, 2003, ISBN 1841133108, pp. 404, BP 55/$116.00**
The central theme of this collection of essays is wonderfully evoked by the photo on
its cover of a sculpture – Liberated Man. The gaunt and shaven-headed figure
huddles with his back turned towards the future, but his hands are firmly clasped
over his face, obscuring his vision of the past. As Europeans wrestle with the
problems of integration and engage in experiments with a constitutionalism that
transcends national boundaries, do they need also to take account of the past of
Nazism and fascism? The answer the book gives is “yes”. Collectively the essays
are supposed to make the point that one cannot construct a liberated legal future
without paying serious attention to the past from which one hopes to be liberated.
With nineteen essays, plus a substantial and customarily insightful prologue by the
foremost historian of Germany’s legal order, Michael Stolleis, and a customarily
feisty epilogue by the most distinguished constitutional theorist of Europe, Joseph
Weiler, the book provides an opportunity for both an unrelenting stare into the past
and a justification for that stare. The justification goes beyond a claim that the past
is likely to repeat itself if it is not thoroughly confronted. It includes the thesis that
the principal figures of fascist and Nazi legal thought posed a question, which no
constitutional experiment can afford to ignore – the question of the basis upon
which a political unity can successfully be founded. Is it sufficient, with Jürgen
Habermas, to posit a constitutional patriotism, an allegiance to the values of liberal
democracy? Or is something thicker needed – something which can ground the
*
Professor of Law and Philosophy, University of Toronto. Email: [email protected].
**
Previously published in 67 MODERN LAW REVIEW 700 (2004).
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substantive homogeneity of the Volk (people), the Schmittian idea which occupies
many of the authors?
The two parts of the justification combine at least in the thought that if the past is
not properly confronted, völkisch (folkish) elements will play their role below the
surface of liberal legalism. But more important for some of the contributors is the
claim that the issue is not just about bringing those elements to the surface in order
to eradicate their influence. Rather, one has to see that one cannot simply choose
Habermas over Schmitt in reaction to Schmitt’s repugnant views about
homogeneity, because Schmitt was right that something beyond liberal democratic
values is as a matter of fact constitutive of every successful political unity and so
every successful legal order. If the European project of integration is to make any
sense, it must make sense for reasons other than a commitment to the rule of law,
human rights and so on, since all the countries involved in the project are already
so committed, even if some of the countries that are seeking participation have only
recently made such commitments and have still a long way to go in turning theory
into practice. These ideas are thoroughly and perceptively canvassed by Weiler,
Joerges, Neil Walker and John McCormick.
But perhaps one does not really need a detailed account of Europe’s legal past to
engage in this kind of debate. Weiler’s passing remark in his Epilogue that he does
not find the generation of German lawyers of the 1930s all that interesting might
well apply to many even most of the French, Spanish and Italian figures discussed
in the some of the essays. One’s impression after reading accounts of their
contributions to legal thought might well be that like most academics anywhere
they allied themselves with the dominant currents of political and social thought of
the day, so that the only reason they do not languish in complete and well earned
obscurity is that they lived in a very interesting time. The fact that the contributors
of this group of essays either find it difficult to construct a bridge between their
inquiry and the present or even make no attempt to construct such a bridge rather
underscores this point.
More illuminating, in my view, than the accounts of these figures is the account by
David Fraser of the contemporaneous reception of their work in Anglo-American
legal scholarship. Fraser shows that American and English academics found little
extraordinary and indeed much in common with their own work in the books and
articles published in Europe in the 1930s, which suggests that there was a
significant overlap in legal and political culture at the time. In a somewhat related
essay, Laurence Lustgarten engages with the theme of analogies between Nazi
practice in the practice of the liberal democratic states of the time and indeed in
contemporary liberal democratic practice. Yet I suspect that a proposal for a book
about the Anglo-Americans’ need to confront the legal past of the 1930s so that they
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The unrelenting stare into the past and its justification
can go forward productively into a liberated future would not garner much
support.
However, it does not seem to me that a proposal to study the role of law and
lawyers in constructing legal and political culture in Europe and the AngloAmerican world would fail to attract interest. The deterioration, and even
disintegration of legality in Germany charted by Oliver Lepsius and the
comparison of French and German judicial methodologies in Vivian Grosswald
Curran’s chapter invite reflections on the nature of law and adjudication which go
well beyond the particular contexts and times they address. In addition, James
Whitman’s essay on the roots of the idea of dignity in current constitutional
thinking in the Nazi populist take on the idea of honor is fascinating, though
subject to a robust critique by Gerald Neuman.
The opportunity the book presented is, however, somewhat spoilt by the fact that
the editors had rather too light a touch when it came to the thematic unity of the
work and gave little attention to the quality of the English, elimination of typos and
so on.
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ARTICLES : SPECIAL ISSUE
Historical-Legal Knowledge – And What To Do With It
By W.T. Eijsbouts*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A.
What’s a man to do knowing that Hans Peter Ipsen, first and long time doyen of the
Community law profession in Germany, started his career as one of Hitler’s willing
academics? And what, suspecting that the ECJ decision in Costa v. ENEL
(supremacy) drew inspiration from a speech of the same Ipsen’s harking back to his
older theories and attended by ECJ-justices just five days before their judgment?
Taken together these two facts suggest some intimate legal continuity between the
darkest period of the last century and one of its most promising political projects.
Here’s the central motif of Christian Joerges’ still running Florence research project
Darker Legacies of Law in Europe. Calling the subject delicate is an
understatement.
Continuities come in sorts. Is European law in a way infected by this dark element
in its prehistory; are Nazi ideas carried over into it? Or worse, is even the whole
European project a new guise of the same older, darker, ambitions? Or, modestly,
are some flaws in the Union, related to its law, better intelligible to one knowing
this historical affinity? Or, even more modestly, are these seeming affinities
between the two different legal worlds of the Reich and the Union food for
comparative discussion without compelling perspectives? Et cetera. With its twenty
different authors, the present book logically leans to this last modest ambition and
*
Professor of European Constitutional Law, University of Amsterdam. Email: [email protected].
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given this the result is far more than satisfactory. The solid book is exciting reading.
But unease lingers as long as it does keep afloat some suggestions of malign legal
affinities between the Union and the Reich, some vitia originis in the Union legal
doctrine, without putting them to some consistent yes-or-no test. No one would
deny Europe a dark past. To have no darkness overcome or hidden somewhere
makes for a dull personality anyway. Now is the Union basically a part of Europe’s
redemption or also a channel of undigested repression (refoulement)? Was law an
autonomous agent of malice in Nazi Germany or mostly an expression of malice
and degeneration in more powerful departments of reality? Is the law subsequently
an autonomous agent or mechanism for the past’s dark slumbering powers? And
can it redeem the past by itself? One would have wanted a keener analysis of the
project’s premise.
The book discusses three main channels of legal continuity from before to after WW
II, most obviously existing inside Germany, but now opened up for investigation
also between the Reich and the Union. They concern legal personnel, legal doctrine
and meta-legal concepts respectively. Ipsen figures in all three, as does the
inevitable Carl Schmitt.
B.
1. Persons - Michael Stolleis (Frankfurt) opens the book with a prologue on the
German mostly academic legal profession’s refusal to look its past in the eye and
make a clean break. This is sad but no real news. The good news, implicit in his
piece, is that literature on suspicious personal continuities is beginning to be
overwhelming and that almost all of the culprits have been identified. They have
been remarkably longevious but are now dead, leaving only second and third
generation echo’s. These personal connections have no great importance, certainly
not for Europe. They do help, however, to point out links in the fields of doctrine
and meta-legal ideas, including those touching on the later European law (as in
Ipsen’s case).
2. Doctrine - German legal doctrine in the fascist era had its most obvious dark
spots in the fields of criminal law, eugenics. These ideas however were not strange
to the times even in the Anglo-American world, as David Fraser (Brunel) shocks to
show. They can not have left a typical fascist legacy. Fascist constitutional doctrine
is something else, as is demonstrated by Oliver Lepsius (Bayreuth). It simply
involved the dissolution of difference between law and politics and hence the
destruction of law as such. Again, no infection. What is killed cannot carry over its
disease.
A base chord of relativism is struck by Vivian Grosswald Curren (Pittsburg). It is
on the well known allegation by Radbruch, that the German legal profession fell an
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107
easy prey to fascism for being too positivist, formalist. Radbruch has already been
amply disproved, which has led (in the uncomplicated way of scholarship) to
opposite convictions. In a good piece Curren takes the revision much further,
simply to play down any relationship between a specific legal doctrine, beit
positivism or its opposite, and actual fascist injustice. This analysis, based on a
thorough comparative study between German and French legal culture and
practice under fascism/Vichy questions the idea that legal doctrine by itself can
carry over pathologies from one political reality into another.
3. Meta-legal concepts - So much for a direct doctrinal dark legal shadow over
Europe. Now what about the Ipsen-connection and the suggested fascistoid origins
of EC legal supremacy? This is ein weiteres Feld, literally, because it relates to the
notorious Großraum theories. One agent of the infection would have been Carl
Schmitt, author of a version of the Großraum-idea (who managed to continue
peddling it well after the war!). ‘Do any of Schmitt’s visions of Europe survive in
the EU’s self-understanding today?’ John McCormick (Yale) asks. His reasoned
answer is ‘no’. The Union space concept is totally different from Schmitt’s. Joerges
however, the book’s auctor intellectualis, is not convinced. In a thorough and vital
piece he finds the above mentioned Ipsen toying with the Großraum in 1942 and
come up with the idea of an ‘external administration for the Reich’. This external
administration should be independent from the national administrations and claim
unconditional supremacy. Does one need to look further? After the war Ipsen could
freely funnel these ideas into his Community legal writings (and maybe infect
Community doctrine).
For Joerges there is an obvious similarity between the ‘triad of Großraum:
economy, technology and administration’ and the nature of the EC, so that “...
continuity with pre-democratic heritages of German legal culture is striking...”1.
I am not so sure. The Großraum was inspired by some of the well known (and still
alive) German existentialist obsessions with economy, science and technology,
rooted ultimately in Kant’s fears. In the Union many are irritated but few are
obsessed with its undeniably technocratic and dull character, which is mostly seen
as banal and often benign.
Joerges, however, finds a full salvation for the Union from its dark predicament.
‘Ironically and fortunately’ this continuity is, he continues, being redeemed by the
Union’s own success. In the way of the Mafia forced into legality by the need of a
1 Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project in
DARKER LEGACIES OF LAW IN EUROPE 167, 191 (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003).
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secure banking service and better profits, the Union is forced into constitutionalism
in order politically to secure its economic accomplishments (the analogy is mine,
WTE). All is well that ends well.
There is no room here to go into full discussion with Joerges’ challenging and well
wrought piece. The happy ending is elegant, but it is more convincing in a literary
than in an analytical way. Was European law really saved from the dark shadows
of the German legal Großraum predicament only in 2004 by the European
Constitution? Or was European law from the beginning part of a serial, political,
response to the secular German predicaments, a response sometimes fortuitously
taking the pen and the thoughts of a tainted German author? If I prefer the second
analysis it is not only because it redeems Europe gradually from 1950 instead of
totally in 2004. A reading in terms of a sustained political response to a clear failure
and a looming threat has greater explanatory and creative force for the EU than a
happy ending based on a fortunate success.
One strong motif of direct relevance to our profession, to conclude, is added by
Alexander Somek (Vienna) who feeds Austria’s history into the discussion. Why
not see that Europe, even in 2004, is simply authoritarian he argues, in the way of
Austria from 1934-38. Authoritarian government is a stage in constitutional
evolution that most countries have passed through and that is, therefore,
understandable and appraisable in the political vernacular of our European
tradition. Which analysis allows him to conclude with a vengeance: no need of
Hitler’s helpers’ idiosyncrasies nor, for that matter, of the obscure ‘present day
currency of complacent language in both [EU] law and political science’.
This is a good piece, Somek, one of those supplying this fascinating and perforce
somewhat undisciplined book, spirited by the spooks and ghosts awakened in its
title, with the needed critical clout.
ARTICLES : SPECIAL ISSUE
Darker Legacies, Schmitt’s Shadow and Europe
By Kjell Engelbrekt*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A. Introduction**
What has European law in common with National Socialism and Fascism? Nothing
at all, a number of decision makers, lawyers and political scientists might
spontaneously respond. Possibly, some would add after a moment’s reflection, the
connection is that the experiences of Nazism and Fascism paved the way for
European integration and therefore for European law. European law is in other
words positioned in an antithetical relationship to totalitarian ideologies and the
intellectual legacy that emanates from them. And beyond this negative relationship,
many would conclude, there is no significant connection.
Such answers are unlikely to impress the editors of DARKER LEGACIES OF LAW IN
EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS. In what may be perceived as the project’s program declaration
Christian Joerges, professor of economic law at the European University Institute in
Florence, and Navraj Singh Ghaleigh, lecturer of public law at Edinburgh
University, state that our relationships to the past tend to be “deeper, more
Senior Lecturer, National Defence College/Department of Political Science, Stockholm University.
Email: [email protected].
*
**
This review is forthcoming in EUROPARÄTTSLIG TIDSKRIFT, No. 1, 2006.
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complex and more troubling” than we normally anticipate and are aware of.1 It
should be noted that the National Socialist heritage of German legal scholarship has
been fairly well investigated in a number of studies, from those of Hubert Schorn
and Fritz K. Ringer2 to more recent work by Lothar Gruchmann, Joachim Rückert
and Dietmar Willoweit and Norbert Frei.3 But the corresponding traces of Fascism
in Italy and Spain have not been systematically examined and regarding the rest of
Europe the picture is even more obscure.
The 2003 edited volume has obviously emerged through several years of seminar
activities at the European University Institute in Florence, Italy, in conjunction with
a series of colloquia and conferences. In the introduction Joerges and Ghaleigh
write that they over time increasingly realized the existence of generational and
‘cultural’ differences in views of the National Socialist/Fascist era in European
history, as well as of contrasting opinions on the legal science conducted under the
influence of these ideologies. The editors further inform us that the project as a
whole, along with the seminar activities in Florence, was controversial from the
very outset. Critics apparently questioned both the relevance and utility of probing
into the connections between legal scholarship, the ongoing European integration
and this dark age of the continent’s recent history. Grant applications were rejected.
The project nevertheless had the advantage of a devoted publisher in Richard Hart,
and in 2003 the edited volume DARKER LEGACIES OF LAW IN EUROPE was published.
In this volume a diverse group of legal scientists, historians and social scientists
perform a total of twenty-one analyses of primarily German, Austrian, Italian and
Spanish jurisprudence and applications of law under periods of Nazi or Fascist
political rule. In 2005 the results of the project were followed up by a special issue
of the online GERMAN LAW JOURNAL4, in which the relevance for European law in
general, and an EU constitution in particular, was explored. To summarize this
1 Preface to DARKER LEGACIES OF LAW IN EUROPE, ix (Christian Joerges/Navraj Singh Ghaleigh
eds., 2003)
2 HUBERT SCHORN, DER RICHTER IM DRITTEN REICH (1959); HUBERT SCHORN, DIE
GESETZGEBUNG IM NATIONALSOZIALISMUS ALS MITTEL DER MACHTPOLITIK (1963); FRITZ
K. RINGER, THE DECLINE OF GERMAN MANDARINS: THE GERMAN ACADEMIC COMMUNITY,
1890-1933 (1969)
3 LOTHAR GRUCHMANN, JUSTIZ IM DRITTEN REICH 1933-1940: ANPASSUNG UND
UNTERWERFUNG DER ÄRA GÜRTNER (1988); JOACHIM RÜCKERT AND DIETMAR WILLOWEIT,
DIE DEUTSCHE RECHTSGESCHICHTE DER NS-ZEIT: IHRE VORGESCHICHTE UND IHRE
NACHWIRKUNGEN (1995); NORBERT FREI, VERGANGENHEITSPOLITIK: DIE ANFÄNGE DER
BUNDRESREPUBLIK UND DIE NS-VERGANGENHEIT (1996)
Confronting Memories: European “Bitter Experiences” and the Constitutionalization Process, 6 GERMAN LAW
JOURNAL 245-561 (2005)
4
2006]
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colorful triptych encompassing two volumes is near impossible, and I will below
therefore mainly dwell on three features of continuity to which the authors pay
more than passing attention and which can be said to have an indirect bearing on
European law. These features concern the continuity of personalities and of
doctrinal legacy and, finally, the continued influence of one individual scholar, Carl
Schmitt, on legal science.
B. Continuity of Personalities
There are today rich biographies regarding the majority of the most prominent
representatives of German legal science during the 1930s and 40s. Carl Schmitt’s
special position before, during and even after the Second World War lacks an
equivalent and will be discussed more thoroughly below. Otto Koellreutter and
Ernst Rudolf Huber (constitutional law) were able to regain a certain standing in
post-war Germany despite their pro-regime attitude under Nazi rule. More
spectacular is the successful career of Reinhard Höhn (constitutional and
administrative law) following 1945, as founder and director of the Harburger
Akademie für Führungskräfte (Harburg Academy of Management). The informative
chapter by Ingo Hueck, describing how Höhn by far surpassed Schmitt in his
efforts to readjust legal science to suit the purposes of the Third Reich, portrays a
skilful manipulator of people as well as a talented theoretician. The fact that Höhn,
professor and former SS lawyer, until his retirement in the 1970s was responsible
for the education of tens of thousands of business leaders is nonetheless a scandal
that has received too little attention.5
The legal historian Michael Stolleis affirms the generally accepted view that almost
all lawyers formerly in the service of the Third Reich were either reinstated in their
earlier positions, in private law firms or in public institutions, or promoted to a
higher level post-1945 Germany.6 Just as in the case of many other professional
communities, the Stunde Null (Zero Hour) thesis relieved lawyers from being
closely investigated by the occupational authorities and established a ‘clean slate’
policy from a political and administrative perspective. This development was
accentuated by the beginning of the cold war in the late 1940s and the successive
winding down of the activities of allied administrations. In this context one should
5 Ingo J. Hueck, ‘Spheres of Influence’ and ‘Völkisch’ Legal Thought: Reinhard Höhn’s Notion of Europe, in
DARKER LEGACIES OF LAW IN EUROPE, 71, 73-74 (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003)
Michael Stolleis, Prologue: Reluctance to Glance the Mirror. The Changing Face of German Jurisprudence after
1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1, 3 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003)
6
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also note the absence of a younger generation of qualified lawyers, resulting from
the government’s downsizing of the academies in the 1930s as well as from the war
itself. The number of registered law faculty students fell from 22,000 in 1930, to
4,555 in 1939 and 3,000 in 1941.7
In many respects the situation outside Germany, for instance in France, was a
different one as Nazi law would not have been imposed without Hitler’s military
might. Yet Vivian Grosswald Curran maintains that historical research in recent
years has shown that French judges and lawyers by and large accepted the Vichy
legislation, including the anti-Semitic Statut de Juifs, as if they were any other laws.
Curran argues that French legal tradition in general fails to encourage independent
assessments of individual pieces of legislation. But she still agrees with late political
scientist Raymond Aron that it is extraordinary that, as the judiciary was setting
aside rights and freedoms, the highest body (le Conseil d’État) failed to question
such practices. She sees one explanation in the widespread French anti-Semitism of
the early 1940s, albeit mainly directed at non-French Jews.8 As a consequence,
extremely few lawyers later had to justify their actions during the war.
Other chapters in the 2003 volume deal with Spain, among other countries, where
totalitarian ideologies do not appear to have disseminated until rather late.
According to Augustín José Menéndez the number of lawyers with Fascist
sympathies was very low during the second half of the 1930s and into the 1940s,
that is, during the Spanish civil war and the beginning of the Second World War.
Menéndez observes that the majority of Spanish legal scientists were committed to
republicanism before the outbreak of the civil war. Only later did Fascist lawyers
start to emerge and replacement of republicans and socialists ensued.
Parliamentary democracy was evidently rejected by a number of Spanish
conservative and Fascist law professors, starting with Legaz y Lacambra and
Francisco Javier Conde.9 After the death of General Franco and the breakthrough of
democracy in the 1970s, scholars gradually played down the ideological franquismo
that for three decades had dominated legal studies, at the expense of liberal ideas.
But this process of re-evaluation took place, according to Menéndez, without the
influence of Fascism over court appointment policies or jurisprudence ever being
made an issue. And criticism against the conduct of legal research and legal
7
Id., 10-11
Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Juridical Methodology, in
DARKER LEGACIES OF LAW IN EUROPE, 205, 214-215 (Christian Joerges, Navraj Singh Ghaleigh eds.,
2003)
8
9 Agustìn José Menéndez, From Republicanism to Fascist ideology under the Early Franquismo, in DARKER
LEGACIES OF LAW IN EUROPE, 337, 338-352 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
2006]
Schmitt’s Shadow
113
theorizing was, if possible, even milder than that occasionally directed at the
application of law.
Two articles included in the 2005 special issue of German Law Journal deal with the
situation in Central and Eastern Europe, most concretely with respect to Hungary.
András Sajó writes that modern Hungary actually has never acknowledged a
political, economic or moral responsibility for the fact that 600,000 of its Jews were
murdered in the Holocaust. A counterpart to the Nuremberg laws were enacted in
1941, though Sajó points out that the Hungarian parliament—with a considerable
majority—adopted the first anti-Semitic laws back in the 1920s.10 There were some
dismissals of wholehearted Nazi and Fascist sympathizers under the communist
rule of the late 1940s. But systematic vetting never took place and another
totalitarian ideology had soon replaced the previous one, precluding further steps
in that direction.
However, it would appear that throughout Europe a more nuanced debate about
law, enforcement and legal studies in the interwar period and the Second World
War has arisen in recent years. This is presumably both linked to the increasingly
critical approach adopted in Germany and Italy, as with the growing importance of
the EU and therefore of common European political and intellectual traditions. In
an elegant epilogue to the 2003 volume Joseph Weiler writes about the four
generations of lawyers that have dealt with this moral-intellectual complex, and
among which solely generation GG (Great Grand children) evidently has acquired
the distance needed to critically examining it. In Weiler’s analysis the preceding
generations were simply too closely entangled with their ‘parents’ and
‘grandparents’ to fundamentally question—not just blindly condemn—their earlier
activities.11
C. The Doctrinal Legacy
Several contributions to the 2003 edited volume illustrate the substantial advantage
that German scholarship has attained when it comes to evaluating the intellectual
and doctrinal legacy of National Socialism and Fascism. This is not least true
concerning attempts at theoretically explaining political and social processes
related to this legacy. For example, Oliver Lepsius is of the opinion that the Nazi
10 András Sajó, Legal Consequences of Past Collective Wrongdoing after Communism, 6 GERMAN LAW
JOURNAL, 425, 425-433 (2005)
11 JHH Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE, 403, 396-400 (Christian
Joerges/Navraj Singh Ghaleigh eds., 2003)
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legal order generated a negative, destructive logic, which undermined the
legitimacy of the Weimar order more effectively than it managed to produce an
alternative structure.12 More than one chapter similarly breathes skepticism as to
whether the National Socialist regime qualifies as a ‘legal order’, considering that
the Führerprinzip (leader principle) and the principles of Bewegung (movement) and
Ungebundenheit (non-boundedness) – which seem antithetical to the very notion of
law – attained a high status in that system. Moreover, there is a consensus that
Hitler himself was directly hostile to law in general.
There is, at the same time, no denying that a system of legal rules was in force
during the greater part of 1933-1945, and that it displayed a significant measure of
coherence. The ‘leadership principle’ in concrete terms meant that Hitler’s personal
orders really superseded all other legal sources.13 One can also note that the
German parliament in 1933-1942 played a wholly subservient role as legislator and
only adopted seven formal laws.14 In his chapter Lepsius further speaks about a
National Socialist ‘method,’ even an epistemology, for jurisprudential development
that underpinned the assumption of an all-powerful executive. It was not least this
political-ideological mission to create a new legal order, so Lepsius, which attracted
many young and ambitious lawyers and led them to support this process at the
level of legal scholarship.15 Already in 1946 Gustav Radbruch famously charged
legal positivism in the vein of Hans Kelsen with having made German lawyers
”defenseless against laws with arbitrary and criminal content”.16 Matthias
Mahlmann is skeptical about Radbruch’s assertion but notes that a considerable
number of prominent legal positivists after close scrutiny indeed do tend to support
moral relativism.17
In her chapter on France Curran also finds a viable connection to legal positivism,
while at the same time emphasizing that its modern version—in the spirit of
Herbert L. A. Hart—suffers less from political naivety than its theoretical
12 Oliver Lepsius, The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of
National Socialism?, in DARKER LEGACIES OF LAW IN EUROPE, 19, 22-23 (Christian Joerges/Navraj
Singh Ghaleigh eds., 2003)
13
Id., 25
14
Id., 26
15
Id., 36
16 Quoted in Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES
OF LAW IN EUROPE, 229, 232, my translation (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
17
Id., 237
2006]
Schmitt’s Shadow
115
predecessor.18 At an institutional level Curran explains that history, tradition and
customs appear to have conspired to render France especially unsuitable to resist
Vichy legislation.19 The status of the judiciary in the political system has, according
to Curran, ever since the revolution of 1789 been inferior to that of parliament and
the government (and in the 1958 Constitution courts continue to be referred to as
authorité as opposed to the other two pouvoirs). Another part of the explanation she
finds in the legal theory of the day—what she calls ‘judicial positivism’ and
‘formalism’—that is to have paved the way for the judiciary’s sanctioning of largescale Nazi abuse on French territory, including the deportation of 75,000 people, all
in breach of rights that previously had appeared deeply embedded in society.20
Interestingly, on the last point Curran does not seem at all as certain in her
subsequent contribution to the 2005 special issue of the German Law Journal. In the
meantime she has evidently investigated the application of law in Germany during
the National Socialist era and found that the formally wider scope for interpreting
laws in this country was not used to counteract the policies of the regime, but
rather to further subvert the rights of individuals. In addition, Curran has now
reconsidered her view of the room for maneuver available to French judges. In the
2005 article she points out that also French judges must have been in a position to
draw on principes genereaux to minimize the influence of the Vichy laws on French
legal practice, had they felt so inclined.21 Curran’s own conclusion is anything but
optimistic when it comes to the prospects of ’anchoring’ democracy and the rule of
law with legal means. Instead she says that we should not be expecting much in
this regard quite irrespective of the formal status of the judiciary or the content of
present doctrine. Curran ends her chapter by referring to Ernst Cassirer’s legal
philosophical concept—“the constitution as it is written in [their] heads”—as a
more fruitful approach to the question of relations between democracy, the rule of
law, legislation and application of law.22
Elsewhere in the 2003 volume it is observed that different legal areas and research
disciplines were of course not all affected in the same way by the extreme
ideologies of the 1920s, 30s and 40s. Hueck writes that international law remained a
18
CURRAN (note 8), 216, 217
19
Id., 218
20
Id., 220
21 Vivian Grosswald Curran, Law’s Past and Europe’s Future, 6 GERMAN LAW JOURNAL 483, 511-512
(2005)
22
Id., 212
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GERMAN LAW JOURNAL
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‘normal’ discipline in Germany until the outbreak of the Second World War.23 By
contrast, work began early on replacing what the regime considered as a liberalcapitalist Bürgerliches Gesetzbuch (civil code), allegedly pervaded by AngloAmerican commercialism, with a ‘truly German’ Volksgesetzbuch (people’s code).
Because the project never was awarded high priority, this People’s code was only
partly completed, as we are told by Pier Giuseppe Monateri and Alessandro
Somma.24
In another thought-provoking chapter James Whitman tries to render plausible that
there is a historical connection between the concept of Ehre (honor) in National
Socialist legislation, and the post-war term Würde (dignity) featured in, among
others, the basic law of the Federal Republic. Whitman does not assert that ‘honor’
is derived exclusively from National Socialist thought, yet he argues that there is a
more subtle link between the two in that a formerly class-based “right to take
offence” was extended to other groups in society.25 Terminologically we learn that
kollektive Beleidigung (collective insult) was introduced in Nazi Germany to prohibit
defamation of members of the SA and SS. But more importantly, in 1934 so called
Ehrengerichte (honor courts) were created in labor law. The latter reinforced the
authoritarian order within the workplace, but also provided more robust
safeguards against arbitrary dismissal and new rights to maternity leave.26
Whitman thus claims that ’dignity’ in some respects can be regarded as a modern
successor to the concept of honor in the aforementioned legislation, both implying
an egalitarian promise.27 He further suggests that political inhibitions sometimes
impede our discovery of significant legal innovations during this era, within labor
law as well as in criminal law (for instance the Nazi regime being the first to
systematically apply probation policy). However, on the question of labor law
Gerald Neuman raises serious objections in an adjoining commentary, pointing out
that German trade unions and the ILO had long struggled to enhance protection
against arbitrary dismissal. The fact that Hitler’s regime chose not to oppose these
demands can neither be assessed as progressive nor an important service rendered
23
HUECK (note 5), 85
24 Pier Giuseppe Monateri and Alessandro Somma, The Fascist Theory of Contract, in DARKER LEGACIES
OF LAW IN EUROPE, 55, 58 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
25 James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, in DARKER LEGACIES OF LAW
IN EUROPE, 243, 250 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
26
Id., 251-252
27
Id., 245-251
2006]
Schmitt’s Shadow
117
to German workers, Neuman remarks, given that the regime later ordered the
disbandment of those trade unions.28
In Catholic countries and southern Germany, meanwhile, part of the nondemocratic ideologies appear to have been largely compatible with pre-existing
legal theories and conservative philosophies pertaining to law and justice. In
Austria, Alexander Somek argues, the process of adaptation had begun already
prior to the 1938 Anschluß. In his chapter Somek then describes three responses to
Nazism and Fascism which he believes are captured with the concepts of legal
positivism, ‘Catholic corporativism’ and ‘authoritarian constitutionalism.’ The
powerful influence of legal positivism is understood as having originated from
Hans Kelsen’s own teaching in Vienna, authoritarian constitutionalism from Carl
Schmitt’s influential texts and Catholic corporativism from a series of relevant
theological publications within and outside Austria.29
In Italy and Spain conservatism associated with Catholicism appears to have, at
least to a degree, prepared the ground for Fascist ideas in legal scholarship. Yet in
Italy there was never any unambiguous link between ideology and legal theory. It
may be that the devastating criticism of Benedetto Croce and others of the
intellectual content of Fascism—most famously in the 1925 controversy over the
‘Manifesto of intellectual Fascists’—helped stimulate a degree of healthy skepticism
toward the regime among Italian academics, including lawyers. Massimo La Torre
and Giacinto della Cananea agree that the most successful Italian legal theoretician
in this period was Costantino Mortati, who among other things coined the term
‘material constitution.’ Cananea is of the opinion that Mortati’s ‘material
constitution’ cannot be seen as a Fascist concept even though it was formulated and
primarily remained applicable under Fascism.30 La Torre holds a similar view
though adds that Mortati’s critique of the legal positivist paradigm affected Italian
legal science for most part of the post-war period.
In an attempt to place continental ideological and theoretical currents in a larger
perspective Lawrence Lustgarten and David Fraser have produced one chapter
each about illiberal tendencies in Western societies, mainly during the interwar
28 Gerald L Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in DARKER LEGACIES
OF LAW IN EUROPE, 267, 269-272 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
29 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and ist
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361, 369 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003)
30 Giacinto Della Cananea, Mortati and the Science of Public Law: A Comment on La Torre, in DARKER
LEGACIES OF LAW IN EUROPE, 321, 334 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
118
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[Vol. 07 No. 02
period. They argue that sterilization campaigns directed toward disabled and
minorities, systematic ethnic discrimination policies and preventive crime fighting
geared toward ‘habitual criminals’ clearly demonstrate that inhumane
governmental programs and individual rights restrictions were not limited to
National Socialist and Fascist law.31 Similar programs and proposals were devised
in a majority of Western states and widely implemented in some of them (in
Sweden sterilization of the ‘mentally weak’ continued until 1975). Lustgarten and
Fraser stress that it was rather the war itself and information subsequently
disclosed about the character of oppression in, above all, Germany that prompted
Western decision makers to comprehensively reject illiberal law.32 For the same
reason many countries only later limited the opportunities for governments to
introduce emergency measures or martial law.
In another article in the German Law Journal special issue Fraser also makes a
nuanced comparative analysis of constitutions and anti-Semitic legislation in two
countries during the Second World War. While Belgium was occupied by Germany
and consequently forced to introduce Nazi laws into its own legal system, Bulgaria
was formally Germany’s ally and mainly political pressure was brought to bear on
the part of Berlin. At the end of the day all Jews on Bulgarian territory were saved
through a combination of domestic protests, reluctance to deport Bulgarian citizens
to a foreign power and a more moderate version of Germany’s anti-Semitic
legislation. At the same time all Jews living in Bulgarian-occupied northern Greece
and today’s Republic of Macedonia were handed over to German authorities.
Meanwhile in Belgium, 54 per cent of the Jews survived as a consequence of civil
resistance and sporadic implementation of the relevant laws by the Belgian state.33
Fraser emphasizes that deportation, non-deportation and passivity were actions all
justified with constitutional arguments, demonstrating the fragility of protection
provided by constitutions and citizenship in Europe of the first half of the 1940s.
31 David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1923-1955, 87, in DARKER LEGACIES OF LAW IN EUROPE, 87, 94-102 and Laurence
Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of Difference, 113, 114
both in DARKER LEGACIES OF LAW IN EUROPE (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003)
32
Id., 117-129
David Fraser, National Constitutions, Liberal State, Fascist State and the Holocaust in Belgium and Bulgaria,
6 GERMAN LAW JOURNAL 291, 291-294 (2005).
33
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Schmitt’s Shadow
119
D. The Schmitt Reception
The project has paid less attention to the political role played by Carl Schmitt and
more to the intellectual heritage that he represents in the context of the period here
examined. Schmitt’s brief but illustrious career within the Nazi power apparatus, as
Hitler’s ‘crown jurist’ 1933-1936, is certainly a subject that has been closely
examined elsewhere.34 The various texts therefore only allude to the legal
‘expertise’ contributed by Schmitt to the regime’s attempt to legally justify the
murders of Ernst Röhm and some seventy SA staff in 1934, as well as to the
Nuremberg laws which stripped German Jews of most citizens’ rights. Nor is there
any dispute that Schmitt during his three years inside the regime wrote and coauthored some of the most horrendous official documents produced by the regime
until the outbreak of the Second World War.
Judgments are more mixed when it comes to the merits and contemporary
relevance of Schmitt’s academic texts. His comprehensive treatment of
constitutional systems, especially the question of clauses on emergency measures
and martial law, are expressly recognized by several authors as original
contributions to German and Western legal scholarship. For instance, Ghaleigh
considers Schmitt to be an eminently interesting though inconsistent author, who
tends to regard each problem from a new angle. In overall terms he therefore
characterizes the Schmitt heritage as heterogeneous.35
At a general level the majority of authors appear to have views that resemble that
of Ghaleigh. Peter Burgess writes about the continued relevance of Schmitt in that
he represents “our conduit to an understanding of the European present”.36 For his
part Joseph Weiler describes Schmitt as “a mesmerizing intellect which was
seductive and evidently transcended any moral qualms”.37 John McCormick
appears in agreement with Weiler in talking about ”the alluring and tantalizing
JOSEF W. BENDERSKY, CARL SCHMITT: THEORIST FOR THE REICH (1983); PAUL NOACK, CARL SCHMITT:
EINE BIOGRAPHIE (1993); GOPAL ALAKRSHNAN, THE ENEMY: AN INTELLECTUAL PROTRAIT OF CARL
SCHMITT (2000); DIRK BLASIUS, CARL SCHMITT: PREUSSISCHER STAATSRAT IN HITLER’S REICH (2001)
34
Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in DARKER
LEGACIES OF LAW IN EUROPE, 43, 45 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
35
Peter Burgess, Culture and the Rationality of Law from Weimar to Maastricht, in DARKER LEGACIES OF
LAW IN EUROPE, 143, 144 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
36
37
WEILER (note 11), 399
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quality of his thought”.38 McCormick adds another dimension by recalling that
Schmitt himself regarded liberalism as an ideology that embodies and promotes
economic rationality, whereas Catholicism represents the values of humanity.39
Schmitt’s influence over European legal science in general is attributed significant
space in the 2003 volume, particularly in the contributions on Italian and Spanish
doctrinal legacies. The special relationship between Schmitt and Spain, Menéndez
suggests, cannot exclusively be explained by a conservative theoretician retaining
his appeal in a bastion of Fascist thought. The reason is also that Schmitt chose the
Spanish 19th Century philosopher José Donoso Cortés to sharpen his own criticism
of parliamentary democracy. Among other things, Schmitt agreed with the radical
conservative Donoso Cortés that deliberation and constant debate always risked
undermining the foundations of government and the sense of responsibility among
political leaders.40
The Schmitt reception in Italy is more complex, due to a variety of German-Italian
political and academic bonds that extended beyond extreme ideologies. Schmitt’s
ideas were certainly well received in some circles, above all in the Lo Stato journal
edited by Carlo Curcio and Carlo Costamagna.41 But the incorporation of Schmitt’s
thinking was according to Lucia Nogler’s chapter selective and the impact therefore
limited in terms of the wider community of legal scholars. One should not forget
that Schmitt himself had developed his ideas under the influence of Fascist thought
in Italy itself, the ideology of power since 1922. In this context La Torre criticizes the
legal philosopher Norberto Bobbio’s characterization of Italian fascism as
opportunistic, non-reflective and inconsistent.42 La Torre goes on to say that not
even legal theoreticians who sympathized with Fascism accepted Schmitt’s ideas
uncritically.43 As one illustration he mentions that Mortati to a greater extent was
inspired by the constitutional theory of Rudolf Smend than that of Schmitt.44
38 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European
Integration, 1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, 133, 134 (Christian Joerges/Navraj
Singh Ghaleigh eds., 2003)
39
Id., 134, 135
40
MENENDEZ (note 9), 353
41 Luca Nogler, Corporatist Doctrine and the ‘New European Order’, in DARKER LEGACIES OF LAW IN
EUROPE, 275, 299 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
Massimo La Torre, The German Impact on Fascist Public Law Doctrine – Costantino Mortati’s Material
Constitution, in DARKER LEGACIES OF LAW IN EUROPE, 305, 307
42
43
Id., 309-317
44
Id., 318
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Schmitt’s Shadow
121
But a more immediate reason to reflect on the significance of Schmitt in connection
with European law is his theory of a legal order over and beyond the nation-state,
at an international-regional level, some authors believe. Schmitt presented his
famous Großraum-theory in Kiel on 1 April 1939, that is, several months before the
attack on Poland but after German troops had entered Austria and Czechoslovakia.
It is obvious that the theory outlines a legal order based on German law in Central
and Eastern Europe, although it is less clear with what means Schmitt expected that
German influence in that region would expand. In some respects the lecture gives
the impression that he ‘merely’ advocated a counterpart to the so-called Monroe
doctrine of the United States in Latin America.45 In his lecture Schmitt especially
emphasized the time-specific character of his conception, and asserted that
Germany was less war-prone than the United States and Britain.46
On this particular aspect the project participants relate to Schmitt’s Großraumtheory in highly contrasting ways. For instance, McCormick expresses the view that
the theory is wholly inapplicable to the EU for three reasons. The Union lacks a
center; it is Western in its political orientation and lacks imperial ambitions in the
east; and finally, it generally respects the desires of its members.47 Neil Walker, to
the contrary, feels that Schmitt’s Großraum-theory is quite useful at the present
juncture of European integration. In his understanding the Großraum represents a
dystopia for the EU, both because of the associations it evokes and due to the
power asymmetry—between nations that lead and those that follow—which it
presupposes.48
Burgess, for his part, identifies what he feels are significant parallels between the
crisis of the Weimar Republic of the 1920s and 30s and that of EU legitimacy
today.49 Burgess especially believes that Schmitt’s thesis that each constitution has
an ontological status, in his 1928 Verfassungslehre (Constitutional Theory),
represents an important insight. The notion that the term constitution cannot be
reduced to a ‘relative concept’ based on the relation between the different elements
of a constitution and its overall form, but that it has an ‘absolute’ and metaphysical
45
McCORMICK (note 38), 138
46 HUECK (note 5), 80-81 and Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of
the Integration Project, in DARKER LEGACIES OF LAW IN EUROPE, 167, 177 (Christian Joerges/Navraj
Singh Ghaleigh eds., 2003)
47
McCORMICK (note 38), 140
48 Neil Walker, From Großraum to condominium – A Comment, in DARKER LEGACIES OF LAW IN
EUROPE, 193, 195-198
49
BURGESS (note 36), 144
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[Vol. 07 No. 02
dimension, also has the potential to reconcile the legal and political study of
constitutions.50 Indeed, a contemporary observer may be led to speculate that it was
this metaphysical dimension which induced French and Dutch voters, in the
summer of 2005, to reject the proposed EU constitution.
Schmitt’s 1928 Constitutional Theory also includes a distinct typology of
intergovernmental relations in four variants, of which Bündnis (alliance) and Bund
(union) constitute the two most demanding political formations. Post-Maastricht
EU has according to Burgess shifted from alliance to union in Schmitt’s sense, with
substantial consequences.51 It is in Schmitt’s opinion only when a union is formed –
a step which in principle is long-term or even irreversible – that the ‘existential
position’ of its member states is challenged. Moreover, no union is according to
Schmitt possible without its member states being prepared to enter war collectively.
On the other hand, Schmitt acknowledges that an antinomy always is retained
between the constituent parts and the collective in a union. And a viable
equilibrium can be attained, in his view, through a unifying ingredient which may
be either nationality, class, religion, civilization or some other centripetal force.52
Except for the Großraum-concept and the typology mentioned above it is on this last
point that certain scholars have perceived Schmitt as relevant for the European
problematic of today, in terms of the legacy of his thought on constitutional theory.
Schmitt’s potential influence over European law became a focal point of a heated
debate through the criticism directed by Joseph Weiler at the so-called Brunner
ruling of the German Constitutional Court in 1994. Weiler then suggested that the
court’s justification of a restrictive interpretation of Community law was based on a
‘missing demos’ thesis, a notion of an organic political community, with roots in a
Schmittian figure of thought.
Such a figure certainly does exist in Schmittian texts from the interwar period, most
prominently in the 1926 political theory treatise addressing the state of the Weimar
Republic.53 But on this particular point Weiler’s claim is contradicted by Ghaleigh,
who instead refers to Schmitt’s magisterial constitutional theory from 1928. In
Verfassungslehre not only is ethnic homogeneity never made a requirement for
50
Id., 151-152
51
Id., 158-159
52
Id., 160
CARL SCHMITT, DIE GEISTESGESCHICHTLICHE LAGE DES HEUTIGE PARLAMENTARISMUS
(1926)
53
2006]
Schmitt’s Shadow
123
political union, but Ghaleigh thinks Schmitt’s discussion of pre-conditions of
democratic rule ought to be acceptable to most liberal political theorists.54
Given that the two texts are written at almost the same time, this reviewer
nevertheless considers it unreasonable to interpret Schmitt’s thought without
taking the 1926 treatise, including its concept of democracy based on an organic
political community, into account. There Schmitt famously writes that democracy
requires homogeneity and “if need arises, the elimination or eradication of
heterogeneity.”55 He also exemplifies with the expulsion of Greeks from Turkey
and Australia’s (at the time) austere immigration laws, making it clear that
ethnicity and nationality represent the ‘substance of equality’ that democracy needs
as foundation.
Christian Joerges, who together with La Torre first initiated this project and its
retrospective approach to law and legal science during the National Socialist and
Fascist era, appears more interested in Schmitt as a backdrop and an antipode to
what the EU might achieve in a European perspective. Whereas Schmitt insists on
the primacy of politics and inevitability of social conflict in the Großraum lecture,
Joerges turns to the ordo-liberal tradition in German scholarship, aiming to strike a
balance between different values in the basic arrangements regulating society,
constitutionally and otherwise.56 Partly elaborated in a polemic against Schmitt’s
ideas already in the interwar period, the classical ordo-liberal scholars held that
welfare, individual rights and social cohesion represent indispensable components
of any well-functioning society.
Joerges notes that these scholars and their ideas played a major role in shaping
West German legal approaches and policies, also with regard to Europe, in the
post-war period. The authoritarian intimations inherent in a concept like the
‘organized economy’ were dissolved through the marriage with Social Democratic
notions of a ‘social market economy,’ while the admixture sustained a bias toward
regulated markets and paternalism.57 In Joerges opinion, ordo-liberalism has (along
with social science functionalism) served “the EEC’s Sonderweg” well in providing a
theoretical foundation for its (lack of) democratic legitimacy. By the turn of the 21st
Century, however, this particular legitimacy basis may well have run its course.
Economic globalization and the dramatically widened scope of EU activities seem
to be rendering this option obsolete.
54
GHALEIGH (note 35), 49-50
55
SCHMITT (note 53), 14
56
JOERGES (note 46), 178-180
57
Id., 187-189
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E. Concluding remarks
The Special issue of the German Law Journal contains contributions that directly
relate to the 2005 debate on the proposed EU constitution and therefore supposedly
are less significant for long-term research on European law and its historical roots.
Among certain authors there are also political overtones that a (less ‘EU-phoric’)
Scandinavian reader may find somewhat bizarre. That is the case with the direct
appeal on the part of Mattias Kumm to scholars to participate in the construction of
a European legal history and therefore in “proactive politics of memory”.58 In this
context Kumm adds that he would find it natural that the EU Commission
financially supported universities and other seats of higher learning for giving
courses in European legal history at their law faculties.
Such an appeal is probably not even needed. The idea of establishing an acquis
historique communautaire has been part of the European vision since the 1950s.59 And
more or less consciously a growing number of scholars appear to be hard at work
providing European law with a genealogy, that is, an ideational and doctrinal
lineage.60 Considering that legal science, along with political science, for a couple of
centuries has suffered from a ‘national bias’ it cannot be detrimental to broaden our
intellectual horizon beyond our closest domain, quite regardless of the significance
of the EU. Such a project can make us aware of a number of kinships, connections,
and resemblances common to national legal systems long before Europeanization
and globalization entered our terminology.
But what would be the appropriate starting point for this lineage? Do we begin
with Codex Justinianus or with the Treaty of Rome? With legislative acts or with the
political and historical conditions behind their emergence? And why is European
law almost without exception presented as a ‘success story?’ Why not problematize
this peculiar, theoretically challenging, legal order? Why not, for that purpose, use
precisely the uncomfortable and politically controversial portions of legal history
which form part of its foundation? And why not try and analyze the communist
totalitarian legacy, which in the two volumes mentioned here only are discussed in
passing? The latter should preferably take place in a manner that avoids—as in the
58 Mattias Kumm, Thick Constitutional Patriotism and Political Liberalism: On the Role and Structure of
European Legal History, 6 GERMAN LAW JOURNAL, 319, 355 (2005)
59 Fabrice Larat, Present-ing the Past: Political Narratives on European History and the Justification of EU
Integration, 6 GERMAN LAW JOURNAL, 273, 287-290 (2005)
60 Alexander Somek, Constitutional Erinnerungsarbeit: Ambivalence and Translation, 6 GERMAN LAW
JOURNAL, 357 (2005)
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Schmitt’s Shadow
125
Federal Republic a number of years back—reinvigorating fruitless debates about
moral equivalency.
The project reviewed here delivers few answers to these broader questions. After
two volumes and several years of seminar and conference activities, one might
even critically ask whether the Darker legacies-project has successfully established a
theoretical connection between European law and the legacy from totalitarian
ideologies with which our continent still grapples. But then again, this was never a
traditional, tightly planned research project with a fixed agenda. It was at the same
time backward- and forward-looking, and it paid attention to a large number of
legal fields while constitutional issues remained at the core. Nor was there much
unity concerning the use of a certain methodological approach.
Instead, the project has investigated what used to be largely unexamined problems
and puzzles at the intersection between several sub-disciplines of the legal and
social sciences. In the absence of a systematic plan the authors have utilized an
exploratory approach in areas where there are few precedents to draw on. An
interest in discipline transgressing research problems seems to have been an
essential requirement for participation in the project, and several of the authors
appear to have been inspired precisely by its heterogeneity. The majority of texts
eventually published indicate the presence of a powerful intellectual curiosity
regarding the status of European law in relation to national law, democratic forms
of government, and knowledge acquired through methods of legal science. Some of
the authors have clearly achieved more than mere exploration. Several
contributions are of very high quality and will no doubt be frequently cited in
further research.
As regards the three questions that I personally have wished to discuss in light of
the aggregate results of this project, the answers may be summarized in a few
sentences. The two volumes show that the issue of continuity of personalities is
increasingly well publicized through ongoing research at the same time as
contemporary scholars and practicing lawyers are more detached to the topic,
something that helps depoliticize the area. By contrast, a comprehensive
description of doctrinal legacy constitutes a much bigger challenge, because traces
of this legacy only becomes visible after thorough analysis and disclosure of
linkages beyond that between persons and institutions. Especially in countries
where totalitarian ideologies indirectly affected society the phenomenon seems to
have been suppressed, with the result that research never paid much attention
either. In this respect a project relying on a systematic theoretical and
methodological approach could probably achieve more.
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And finally, there is the question of Carl Schmitt’s influence in the past and in the
present. Several project participants declared the view that Schmitt’s impact on
German legal science and, by extension, over the entire continental tradition,
should not be overestimated. Many nevertheless agreed that it is nearly
unthinkable to apply the terms constitution and legitimacy at a level ‘above’ that of
the classical nation-state without Schmitt’s work, in one way or another, being
mentioned or critically assessed. If this is true it seems more fruitful to
acknowledge, as have concluded the majority of participants in the Darker legaciesproject, that particular influence and openly discuss its possible implications and
relevance for legal science and European law of today.
ARTICLES : SPECIAL ISSUE
Social Networks and Individual Misdemeanors,
Epistemological Questions and Normative Orientations
By Andreas Fischer-Lescano∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism
over Europe and its Legal Traditions. Edited by Christian Joerges and Navraj Singh
Ghaleigh with a prologue by Michael Stolleis and an epilogue by JHH Weiler. Hart
Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A. Ex Captivitate Salus**
"I am the last, conscious advocate of the jus publicum Europaeum and, in an
existentialist sense, I am its last teacher and researcher, and experience its ending
like Benito Cereno experienced the journey of the pirate ship. Hence, silence is now
appropriate and timely. It should not worry us. By keeping silent, we reflect upon
ourselves and upon our divine origin."1 Carl Schmitt's narrative in EX CAPTIVITATE
SALUS portrays the journey of Benito Cereno, captain and commander of a slave
ship. After a successful slave revolt, he can only rescue himself by keeping silent
about the ship's true fate and by getting involved in an eerie spectacle. For Schmitt,
Cereno figures as a symbol of relief, as a stylized man, whose fate resembles that of
the intelligentsia in a mass-system, i.e. in National Socialism. For Schmitt, this
∗
PhD, Frankfurt University (2003); LL.M., EUI, Florence (2003); Assistant at the Institute of Economic
Law, J. W. Goethe University, Frankfurt/Main, and Member of the research group "International
Organization, Democratic Peace and the Rule of Law", Peace Research Institute Frankfurt; [email protected]
**
Originally published in:: Kritische Justiz, 2004:1, 106-110. Translated by Harry Bauer
1 The original reads: "Ich bin der letzte, bewusste Vertreter des jus publicum Europaeum, sein letzter
Lehrer und Forscher in einem existenziellen Sinne und erfahre sein Ende so, wie Benito Cereno die Fahrt
des Piratenschiffs erfuhr. Da ist das Schweigen am Platz und an der Zeit. Wir brauchen uns nicht davor
zu fürchten. Indem wir schweigen, besinnen wir uns auf uns selbst und auf unsere göttliche Herkunft."
CARL SCHMITT, EX CAPTIVITATE SALUS 21 (1950).
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captain from New England is thus historical innocence personified:2 Schmitt
describes Benito Cereno as a "hero"3 and thereby describes himself.
It is rather well known that the life of Carl Schmitt lasted somewhat longer than the
life of the aforementioned Benito Cereno, the protagonist in Herman Melville's
story of the same title.4 Whereas Cereno, who could never forget the shadow that El
Negro had cast on him, entered a monastery shortly after his journey to put an end
to his life,5 no dark shadow of the past, neither El Negro nor El Moreno, did silence
Carl Schmitt or ended his far-reaching influence in the early Federal Republic.6 This
might have a plethora of reasons, yet Schmitt was certainly not of a contemplative
taciturnity.7 Although others have, indeed, kept silent, in a European context, it is
particularly striking that the Schmitt's lasting impact remains rather underresearched. It may well be the case that the enduring and dominant polarization of
Schmitt's readership mirrors the antithetic character of his work, but the way of
dealing with Carl Schmitt could also manifest a broader and urgent European
problem, namely that the reflection upon the condition for the possibility and the
organization of the European project comes with a fundamental uneasiness—the
uneasiness of facing the darker legacies of this very project, as the glance into the
2 An instructive examination of Schmitt's self-description as taciturn captain ("At that time, I felt
superior. I intended to give the term National Socialism a new meaning." ["Ich fühlte mich damals
überlegen. Ich wollte dem Wort Nationalsozialismus von mir aus einen Sinn geben." CARL SCHMITT,
CARL SCHMITT—ANTWORTEN IN NÜRNBERG 65 (Helmut Quaritsch ed., 2000)]) which contrasts sharply
with Walter Benjamin, who felt like a "shipwrecked person drifting on a wreck by climbing on the top of
the already shattered mast" ("Schiffbrüchiger, der auf einem Wrack treibt, in dem er auf die Spitze des
Mastbaums klettert, der schon zermürbt ist", WALTER BENJAMIN: BRIEFE 1 UND 2 532 (Theodor Adorno
ed., 1978)) can be found in SUSANNE HEIL, 'GEFÄHRLICHE BEZIEHUNGEN'—WALTER BENJAMIN UND CARL
SCHMITT (1996); see also Richard Faber, 'Benito Cereno' oder die Entmythologisierung Euro-Amerikas: Zur
Kritik Carl Schmitts und seiner Schule, in KULTURSOZIOLOGE—SYMPTOM DES ZEITGEISTES, 688 (Helmuth
Berking/Richard Faber eds., 1989).
3
SCHMITT (supra, note 1), 21.
4
HERMANN MELVILLE, BENITO CERENO, in WORKS, VOL. 10 sec. 8 (Raymond Weaver ed., 2nd ed., 1963).
5 Id.,"[...] you generalize, Don Benito; and mournfully enough. But the past is passed; why moralize upon
it? Forget it. [...] You are saved; what has cast such a shadow upon you?—The Negro.—There was
silence [...]".
See DIRK VAN LAAK, GESPRÄCHE IN DER SICHERHEIT DES SCHWEIGENS: CARL SCHMITT IN DER POLITISCHEN
GEISTESGESCHICHTE DER FRÜHEN BUNDESREPUBLIK (1993).
6
SCHMITT (supra, note 2), 54-55: "Ich möchte betonen, den hochwissenschaftlichen Zusammenhang der
Stelle zu beachten. Der Intention, der Methode und der Formulierung nach eine reine Diagnose [...]
Alles, was ich gesagt habe, [...] ist nach Motiv und Intention wissenschaftlich gemeint, als
wissenschaftliche These". ["I would like to stress the highly scientific context of this passage. According
to its intention, method and formulation, it is pure diagnosis […] All I have said […] was, concerning its
method and intention, meant scientifically, as a scientific argument."].
7
2006]
Social Networks and Individual Misdemeanors
129
'European mirror' would at the same time involve the gaze into the common
European abyss.
B. Glance into the Mirror
A picture of Georg Kolbe's bronze sculpture 'the liberated' is shown on the cover of
the hitherto only volume8 which aims "to face our past in order to understand our
present [...] in the interests of our future"9 in the context of European legal history
and theory10. For Kolbe, the crouched man keeping his face covered in his hands
with his eyes shut was a symbol of the shock and shame the Germans felt after their
liberation from National Socialism.
Christian Joerges and Navraj Singh Ghaleigh aptly chose this motive in order to
launch a debate about the DARKER LEGACIES OF LAW IN EUROPE. As Michael Stolleis
puts it, the book deals with the reluctance to glance in the mirror11, and Kolbe's
'liberated' as someone unwilling to see and unable to see is an accurate symbol for
what Joerges and Ghaleigh repeatedly emphasize in their preface and
contributions: their project—to confront European jurists with the dark side of their
history, to bring out continuities and discontinuities, and to conceive of right-wing
populist movements in numerous European countries as the emanation of an
urgent and old challenge to the theoretical and normative orientation of the
European legal order—finds hardly any sympathy; furthermore, they aver that at
"various points during the gestation of this work, eyebrows were raised as to its
relevance, political valency and even moral qualifications"12, that the question of
"why deal with Europe from such perspectives?"13 was ubiquitous and that also at
8
DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE
(Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
AND ITS LEGAL TRADITIONS
9 Christian Joerges/Navraj Singh Ghaleigh, Preface and Acknowledgements, in DARKER LEGACIES OF
LAW IN EUROPE, ix (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
As an inquiry into this matter JOHN LAUGHLAND's THE TAINTED SOURCE: THE UNDEMOCRATIC ORIGINS
can be mentioned here; yet his account offers an all too general and due to
its polemical tone a rather problematic perspective. For a study into the nexus of European history and
its significance for law, see FELIX HANSCHMANN, 'Geschichtsgemeinschaft': Ein problematischer Begriff und
seine Verwendung im Staats- und Europarecht, 5 RECHTSGESCHICHTE 150 (2004).
10
OF THE EUROPEAN IDEA (1997)
11 Michael Stolleis, Reluctance to Glance in the Mirror, in DARKER LEGACIES OF LAW IN EUROPE, 1 (Christian
Joerges/Navraj Singh Ghaleigh eds., 2003).
Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in Europe, in DARKER
LEGACIES OF LAW IN EUROPE, 43 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
12
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the European University Institute (EUI), where this project arose, a dignified silence
à la Benito Cereno has been preferred. "The project of European integration is an
answer to Germany's aggressive nationalism, which must not be suspected to have
inherited elements of the past."14
Despite similar difficulties, Joerges and Ghaleigh's first step towards this edited
volume dates back to 1999. Then, Massimo La Torre and Christian Joerges
organized a seminar series at the EUI in order to prepare a conference in September
2000 dedicated to 'Perceptions of Europe and Perspectives on a European Order in
Legal Scholarship - During the Era of Fascism and National Socialism'. This volume
now makes the papers of this conference, of a seminar at the EUI and of a
conference panel in Chicago in March 2002, organized by the Councils for
European Studies, available to a European public. The editors applied themselves
to their task with remarkable stamina: "one cannot, thus but have much admiration
for that segment of German political culture of which this volume is part. It has
repeatedly refused the many calls from within for closure and continues to carry
the heavy custodial burden of the discomfiting memory. It is fitting and
appropriate that those who had the courage to lift the mirror and unflinchingly
gaze at themselves, have now found the courage to lift up a mirror to the European
self of which they are part, a European mirror into which other Europeans are
reluctant to glance or which they wish to disown."15
C. "Schmitt begat Ipsen and Ipsen begat ..."
Joerges/Ghaleigh structure their volume in four major parts, framed by a prologue
by Michael Stolleis (Reluctance to Glance in the Mirror: The Changing Face of German
Jurisprudence after 1933 and post-1945) and an epilogue by Joseph Weiler (Europe's
Dark Legacy: Reclaiming Nationalism and Patriotism). This set up not only provides
the beginning and end of the volume, but the book's end strives to begin a debate
about the European history of law—or, rather about the European histories of
law—while the beginning puts an end to all purely national histories of law. This is
a truly European task: to bring together national memories as European memories
13 Christian Joerges, Europe a Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
14 This is how Joerges and Ghaleigh summarize the reservations carried forward at the EUI, see
JOERGES/GHALEIGH (supra, note 9), ix.
Joseph HH Weiler, Europe’s Dark Legacy: Reclaiming Nationalism and Patriotism, in DARKER LEGACIES OF
LAW IN EUROPE, 389, 394 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
15
2006]
Social Networks and Individual Misdemeanors
131
and to thereby not only make a political space16 visible within a collective,
describing itself as Europe, but to also remedy this collective's—"that seemed not to
have a history"17—amnesia.18
Stolleis reminds us of the particular German "rogues' gallery of enthusiasts,
apologists and sundry fellow travellers"19, of the fate of those honorable and sincere
returned emigrants, who suddenly found themselves at 'National Socialist shadow
faculties' where numerous Nazis had retained their positions, of "the meteoric
success"20 of jurists like Hermann von Mangoldt, Hans-Peter Ipsen, Hans-Carl
Nipperdey and Theodor Maunz, of the almost conspiratorial correspondence of
Carl Schmitt, Rudolf Smend, Walter Jellinek, Erich Kaufmann and Friedrich Giese,
and especially of the ever unchanged patterns of communicative silence: "in short,
the members of the new faculties gradually reached a mutual accommodation and
took the pragmatic approach of letting sleeping dogs lie, especially since many
colleagues kept their distance from the more sensitive issues and may even have
made it clear in private that they had put their past behind them."21
Stolleis claims that the genuine surprise is not the communicative silence as such; it
is more the fact that this technique of 'mastering the past'
(Vergangenheitsbewältigung) has worked so well and for such a long time and he
offers a sociological explanation: "small groups, such as the clergy, business
managers or academics have a tendency to co-opt younger colleagues. In other
words, they push their own disciples through the eye of a needle to make them part
of the system. This makes the up and coming generation extremely dependent on
the patronage and good will of the older generation. In such a situation, breaking
the taboo of mentioning the past can be a risky business."22
16 For the notion of a space of visibilities and ascriptions as precondition for collectivity, see Armin
Nassehi, Politik des Staates oder Politik der Gesellschaft? Kollektivität als Problemformel des Politischen, in
NIKLAS LUHMANNS POLITISCHE SOZIOLOGIE 38, 45-48 (Kai-Uwe Hellmann/Rainer Schmalz-Bruns eds.,
2002).
17
WEILER (supra, note 15), 389.
18
Zur Politik des kollektiven Gedächtnisses: JAN ASSMANN, DAS KULTURELLE GEDÄCHTNIS 36 (2000).
19
WEILER (supra, note 15), 386.
20
STOLLEIS (supra, note 11), 6.
21
Id., at 7.
22
Id., at 16.
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The volume's prologue therefore provides a comprehensive, knowledgeable and
instructive survey of German studies conducted hitherto and at the same time goes
beyond the German debate by including research from France, Italy, Poland, the
Netherlands and accession countries: "these studies would have to focus
microscopically on individual figures while at the same time drawing macroscopic
structural outlines. What is more, they would have to be written with moral
courage, without fear of the reactions of colleagues or their students, especially
when the insignificant is to be deemed insignificant."23
Weiler's epilogue also emphasizes that a deconstruction of "resistance myths" is still
to come in many European states and, hence, that Ditlev Tamms' study of Danish
collaboration with the Nazi regime24 still remains an unaccompanied endeavor. Yet,
Weiler's epilogue can also be read as a prologue for a European legal history to
come: his genealogical sketch, already hinted at by Stolleis, combined with his
categorization of professorial generations leads to an intellectual genealogy of a
European history of ideas and ideologies which is not only well worthwhile
reading but also promises "that there is much fun still in store"25. Furthermore, it
mainly avers one point:
The answers given by the European project in response to its own darker legacies—
be they European constitutionalism, post-nationalism or supranationalism—cannot
be discussed without reflecting on the condition of their possibility; they cannot be
isolated from the agonizing question of which problems they had intended to solve
and which Trojan horses have up until now remained influential in the networks of
the European (legal) profession: "Schmitt begat Ipsen and Ipsen begat ... etc. right
into the heart of the (German) European law professiorate."26
It might hardly be necessary to stress that Carl Schmitt, Europe's self-chosen Benito
Cereno and self-appointed hero of silence has remained a key figure in the
networks of the profession. Neither is it a new insight that the darker legacies in the
law of world society can regularly be linked to Carl Schmitt and that a genealogical
bond connects him even to the realpolitical legal nihilism of the falcons in
Washington—via the figures of Leo Strauss and Hans Morgenthau.27 Hence, it is
23
Id., at 17.
24
DITLEV TAMM, RETSOPGÖRET EFTER BESAETTELSEN (2nd ed., 1985).
25
WEILER (supra, note 15), at 400.
26
WEILER (supra, note 15), at 397; for Ipsen, see JOERGES (Supra, note 12), 182, footnote 92.
27 For the relationship between Hans Morgenthau and Carl Schmitt, see Martti Koskenniemi, Carl
Schmitt, Hans Morgenthau, and the Image of Law in International Relations, in THE ROLE OF LAW IN
INTERNATIONAL POLITICS 17 (Michael Byers ed., 1999); MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF
2006]
Social Networks and Individual Misdemeanors
133
also hardly a surprise that references to Carl Schmitt are legion in the contributions
to this tome.
Already in the first part 'Continuity and Rupture' following a chapter about legal
theory in National Socialism by Oliver Lepsius, Navraj Singh Ghaleigh attends to
Schmittian moments in the project of European integration. His argument is
carefully balanced; it refers to the security architecture after 9/11, to both
constitutional and emergency moments, and, in its core, focuses on how the question
of homogeneity has been treated from Schmitt's (not always accurately portrayed)
position to the decisions of the German constitutional court, from Dieter Grimm to
Joseph Weiler. The volume's third part also centers around the pertinence of a
normative orientation of European law à la Schmitt: John McCormick (Carl Schmitt's
Europe: Cultural, Imperial and Spatial, Proposals for European Integration, 1923-1955),
Peter Burgess (Culture and the Rationality of Law from Weimar to Maastricht) and
especially Christian Joerges' contribution (Europe a Großraum? Shifting Legal
Conceptualisations of the Integration Project), commented on by Neil Walker (From
Großraum to Condominium), trace the roots of ordoliberal and functionalist attempts
to legitimize the European legal domain in the history of ideas. Where these can be
found, what kind of continuities exist and how they can be overcome is already
alluded to in the title of Joerges' chapter: "here, the continuity with pre-democratic
heritages of German legal culture is striking, but that, after all, is not very
surprising. Ironically and fortunately, it is the successes of the European project
that fundamentally challenge those traditions: Europe has developed in such a way
that it needs a constitution that structures and legitimises its politics."28
This volume provides a thorough examination, avoiding a hasty end of reflection,
an examination that does not retire to a supposedly incontestable, morally
grounded polemic but that seeks a committed engagement. This is the leitmotiv of
the entire volume, which indeed challenges its readership, as the quest for the
uncomfortable includes the questioning even of the European concept of human
dignity (James Whitman), of contractual theory (Guiseppe Monateri and
NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 465 (2002). As explicated in a review of
WILHELM GREWE's THE EPOCHS OF INTERNATIONAL LAW (35 KRITISCHE JUSTIZ 277 (2002)), Koskenniemi
too acknowledges the need for further inquiry. As Grewe's work and its treatment "demonstrates that
even in this field, the work of Vergangenheitsbewältigung ('mastering the past') is far from having been
fully accomplished" (id., 281). For the mutual reception and nexus of Leo Strauss and Carl Schmitt, see
HEINRICH MEIER's instructive study CARL SCHMITT, LEO STRAUSS UND 'DER BEGRIFF DES POLITISCHEN'
(1988), which also makes available three letters of Strauss addressed to Schmitt and which sets Schmitt's
revision of his concept of the political in direct connection to Strauss' criticism of Schmitt's original
argument, published in the ARCHIV FÜR SOZIALWISSENSCHAFT UND SOZIALPOLITIK in 1932 (id., 16; Strauss'
article Anmerkungen zu Carl Schmitt: Der Begriff des Politischen can be found id., 97).
28
JOERGES (supra, note 13), 191.
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Alessandro Somma) and of industrial law (Luca Nogler). These are sensitive topics
of some current practical relevance, controversially discussed in the volume itself
(Gerald Neumann comments on the contribution by Whitman) and usefully
supplemented by more theoretical contributions on national (völkisch) legal thought
(Ingo Hueck), on democratic theory (Laurence Lustgarten) and on legal
methodology (Matthias Mahlmann, Vivian Grosswald Curran).
The edited volume's fourth part is then explicitly dedicated to national legal
systems. The contributions by Massimo La Torre and Giacinto Della Cananeo on
the Italian constitutional theorist Costatino Mortati, the study by Augustìn José
Menéndez on Spanish Franquismo and Alexander Somek's text on Austrian
constitutional law between 1933 and 1938 are courageous violations of the
communicative silence with a clear de-mythologizing ambition: "the story begins
with a myth and ends with a folk tale. The myth is that of the so-called 'selfelimination' (Selbstausschaltung) of the Austrian Parliament on 4 April 1933. […] The
folk tale emerges in post-World War II Austria: with the Anschluss in 1938 Austria
became the first 'victim' of the Third Reich."29
In all this, the volume chooses a rather innovative approach. Even if David Fraser,
for example, affirms the legal quality of Nazi law, this does not imply that he has
forgotten about Radbruch's formula, but indicates that he follows an interesting
strain of thought touching upon the concept of law itself30 as well as interferences
and continuities across states: "when American legislators, doctors and lawyers
were actively pursuing the eugenic sterilisation of their own citizens within the
context of democracy and the rule of law, German doctors and lawyers were
pursuing the same policies and practices within the context of a 'criminal state'. At
this level, it was difficult then, as it appears to be now, to know where one began
and the other ended. Eugenic sterilisation was not the only element of Nazi law to
have found a counterpart in Anglo-American jurisdictions. Nor was it the only
central element of Nazi legal ideology to have been contemplated and accepted by
English-speaking jurists or by Anglophone learned journals."31
29 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361 (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003).
30
For a comprehensive account, see DAVID FRASER, LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE
OF THE HOLOCAUST (2005).
31 David Fraser, 'The outsider does not see all the game...': Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE, 87, 110 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
2006]
Social Networks and Individual Misdemeanors
135
D. Politics of Collective Memories
With this volume, Joerges/Ghaleigh succeed in combining a perspective of
European legal legacies, which is European and national, individual-microscopic
and social-macroscopic. They provide a volume which convincingly combines two
convictions—as stated by Jacques Derrida: "the first concerns the undeniable link,
on the one hand, between this thought of the political as political thinking, and, on
the other, those entanglements of Schmitt, which led to his arrest and conviction
after the war and which were often, in more than one respect, more weighty and
more repulsive than Heidegger's [...] Yet, at the same time, and this is the second
conviction, this should not hinder us neither from serious examination nor from
taking such thinking and work into account—thinking which roots in numerous
fruitful traditions of the theological, legal, philosophical and political culture of
Europe, which belongs to a European law whose last defender this catholic thinker
[...] thought of being himself."32
The book draws its relevance from stressing both, the level of social networks as
well as its individual misdemeanors, and the conceptual level, its guiding
epistemological questions and normative orientations. One can only hope that this
volume is to bring European law to turn towards the narratives within its own
history, that it is able to break the communicative silence, and that it allows to take
the shaping of collective memories within European public spaces serious. One can
only wish that such debates will rise to the high level of Joerges and Ghaleigh's
tome.
32
JACQUES DERRIDA, POLITIK DER FREUNDSCHAFT 123-124, footnote 4 (2002).
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ARTICLES : SPECIAL ISSUE
Codes of Honour
By Daniel Gordon∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A.**
Histories of European integration often begin with a spotless pedigree:
Enlightenment visions of perpetual peace, Victor Hugo’s call for a “United States of
Europe”, Winston Churchill’s “we must re-create the European family” speech of
1946. Darker Legacies of Law In Europe, in contrast, fits the European Union into what
the Germans call Vergangenheitsbewältigung – coming to terms with a guilty past.
“All of the legal disciplines that later contributed to the legal conceptualization of
the European Community had been infected by völkisch legal thinking” writes
Christian Joerges, a German law professor who organized the conference on which
the book is based. “The anti-liberal and anti-democratic legal concepts so highly
rated in National Socialism represent a disquieting heritage.”1
Disquieting indeed. To regain independence after 1945, West Germany had to
renounce nationalism and militarism. The constitution, or Basic Law, of 1949 starts
with a pledge to become a partner in a united Europe. For Germany, membership
in a wider Europe is a precondition, not a sacrifice, of sovereignty. It is also a
symbol of moral renewal. This special history explains Germany’s dominance in the
∗
Professor of History, University of Massachusetts, Amherst. Email: [email protected].
**
Originally published as ‘Codes of Honour’ in: TIMES LITERARY SUPPLEMENT, 13 August 2004.
1 Christian Joerges, Europe a Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167, 169 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
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processes of European unification. It also explains why Joerges is in a bind. As a
scholar, he wants to raise hard questions about the persistence of the fascist past.
Yet, as a German, he cannot interrogate the European idea without being mistaken
for a nationalist. The book’s co-editor, Navraj Singh Ghaleigh, a lecturer at the
Edinburgh Law School, mentions that a conference observer even referred to
“Christian Joerges and his Nazis”. The twenty papers in Darker Legacies, almost all
by law professors, are heavy going. But they are written with courage and succeed
in unsettling the reader.
In the 1930s and 40s, fascist jurists cultivated two important doctrines. The first is
anti-formalism. Many of the papers explore its inflections: legal forms and
procedures – elections, due process, jurisdictional distinctions – are secondary to
the ‘purpose’ of a regime; the essence of a state is not its written charter but its
“material constitution”, its ruling officialdom; leadership is necessary to overcome
chronic national “crises”, so executive command is the normal mode of governance.
Several contributors discern a spirit of anti-formalism in the EU today. They do not
posit a fascist conspiracy. Instead, they suggest that residues of the fascist legal
vocabulary strengthen apathy in Brussels about thorny constitutional problems.
Alexander Somek disparages the “currency of complacent language” that obscures
the democratic deficit.2 With the recent effort to make a European Constitution, this
question of language deserves more attention. A popular constitution, such as the
American, is the result of rules prescribing brevity (4,500 words in the original),
numerology (three branches, ten amendments) and repetition (“the people”, “this
constitution”, “No state shall”). At 64,000 words, many of them technical, the draft
of the European Constitution is not for laypeople. The Maastricht Treaty, too, is
unreadable – it is a series of references and revisions of earlier treaties. Has the
fascist contempt for “mere” paper formalities helped to undermine the art of
turning public law into public literature?
The second important doctrine in fascist law is the transcendence of borders, the
forging of commonality. Many of the contributors focus on Carl Schmitt, the ‘crown
jurist’ of the Third Reich, and his concept of Großraum (sphere of influence). Schmitt
argued that technology creates “material problems” which spill across borders and
erode the territorial state. Germany, he claimed, had a special destiny to impose a
new transnational order on Europe. Well after 1945, German legal thinkers
continued to describe the European community as a unique area of “technical
realization”, where administrative tasks should not be burdened by democratic
requirements.
2 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE 361, 387 (Christian Joerges/Navraj Singh Galeigh eds.,
2003).
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139
James Q. Whitman looks at another side of Nazi commonality, the effort to “level
up” the prestige of social classes.3 Where Communists promised a redistribution of
property, the Nazis promised a redistribution of honor. They diffused traditional
marks of aristocratic dignity to all members of the Volk (people). They passed new
laws against insulting ordinary people. Some of these laws still exist and form the
basis of workplace harassment regulations and other limits on free speech.
Whitman suggests that a precious fixation on the right to an honorable image is
shaping continental human-rights law. In a critical response, Gerald L. Neuman
upholds the conventional position:4 European law since 1945 is a reaction against
the Nazis; it proclaims the dignity of all persons, not just Germans. He
underestimates the subtlety of Whitman’s interpretation. According to Whitman,
European dignity law is indeed hostile to Nazi racial hierarchy, but the European
emphases on civility and reputation, as distinct from the American accent on liberty
and autonomy, is not new. It is an old aristocratic priority that has traveled into the
present via fascist law.
B.
If this provocation is true, if there are traces of fascism even in continental humanrights jurisprudence, then historical research can lead only to paradox. European
legal history will not separate the democratic and authoritarian traditions but will
increasingly show them to be intertwined. Scholars will have to debate the merits of
every law in terms of general principles, not guilt by association. Two of the
contributors, J.H.H. Weiler5 and Matthias Mahlmann,6 wisely emphasize the need
to supplement Vergangenheitsbewältigung (coming to terms with the past) with a
fresh exposition of democratic legal principles. Darker Legacies of Law in Europe will
please Eurosceptics more than Europhiles, yet its meaning is uncertain; it feeds
criticism of Europe but also nurtures hope for a better European constitution.
James Q. Whitman, On Nazi “Honour” and the New European “Dignity”, in DARKER LEGACIES OF LAW IN
EUROPE 243, (Christian Joerges/Navraj Singh Galeigh eds., 2003).
3
Gerald L. Neuman, On Fascist Honour and Human Dignity: A Skeptical Response, in DARKER LEGACIES OF
LAW IN EUROPE 267, (Christian Joerges/Navraj Singh Galeigh eds., 2003).
4
5 J.H.H. Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE 389, (Christian Joerges/Navraj Singh
Galeigh eds., 2003).
Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES OF LAW IN
EUROPE 229, (Christian Joerges/Navraj Singh Galeigh eds., 2003).
6
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Science, Not Politics
By Clemens Jabloner∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8**
Legal institutions and legal thought survive political systems. But is this also true of
the “darker legacies of National Socialism and Fascism” in contemporary Europe?
The 23 authors of this edited volume, which is the result of a project at the
European University Institute, Florence, have tried to find answers to that question.
The essays are structured under four main headings: Continuity and Rupture, The
Era of National Socialism and Fascism, Continuity and Reconfiguration, Responses
to National Socialism and Fascism in National Legal Cultures. However, in terms of
orientation this structure only scratches the surface as interconnections (which are
inevitable and even desired) exist between the individual essays. Stolleis’ Prologue
and Weiler’s Epilogue frame the entire work, which will be discussed "seriatim".
Michael Stolleis shows that the resilient thesis, namely that positivism rendered
German lawyers helpless against totalitarian impertinence, is not supported by
historical or methodological evidence, although it did have the effect of depicting
the main perpetrators as victims, thus absolving them of their moral responsibility.
In particular, the predominantly anti-positivist German Staatsrechtslehre developed
theories during the Weimar Republic, which were designed to debase positive
democratic constitutional law with reference to the “actual” constitution, which in
∗
President of the Verwaltungsgerichtshof, Vienna, Austria. Email: [email protected].
JOURNAL FÜR RECHTSPOLITIK 2005 (forthcoming). The English translation was prepared by Jo Eric
Murkens, EUI, Florence, Italy.
**
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turn legitimated and anticipated the authoritarian seizure of power. The theory
accordingly contributed to the efficiency of the Nazi state with seemingly juristic
concepts that concealed their ideological currency: konkret allgemeiner Begriff
(concrete general term), justizloser Hoheitsakt an act of state, not subject to judicial
review, and so on. There is no shortage of methodological continuities regarding
the post-war interpretation: the “constitution” beyond constitutional law continues
in the spectrum of values that transcend the Basic Law.
Oliver Lepsius commences proceedings with the difficult task of analyzing
National Socialist thought on the state. Its supporting elements Volk (the people),
Führer (leader principle), and Bewegung (movement), were deliberately employed in
a vague and contradictory manner, an idiosyncratic method that Lepsius
characterizes as a concept formation that reconciles opposites. A constitutional
theory of National Socialism exists, if at all, only in a negative sense, since its
thought was geared to the textual and formal disintegration of law and legal
thinking.
The Bundesverfassungsgericht (German Federal Constitutional Court) held in the
Maastricht decision that a state ought to be founded on a relative homogeneous
Volk, which can be interpreted as a continuation of Carl Schmitt’s theory. However,
in his Verfassungslehre (Constitutional Theory) Schmitt does not (yet) conceive the
concept of homogeneity in ethnic terms, as seems to be the case with the Federal
Constitutional Court. This leads Navraj Singh Ghaleigh to befriend Schmitt to us.
However, in the opinion of the reviewer, political concepts must be analyzed in
terms of the maximum political danger that they present. The author also
underestimates Schmitt’s anti-Semitism if he views it merely as opportunistic.1
The second part begins with a contribution by Pier Giuseppe Monateri and
Alessandro Somma on fascist contract theory. The collectivist elements of someone
like Karl Larenz, who viewed employment, for instance, not as a labour contract
but as the integration of the entire personality in society, were hardly effective in
Italian civil law, which retained its roots in Roman law.
Ingo I. Hueck turns his attention to a sinister figure in Himmler’s circle, Reinhard
Höhn. Hoehn’s crude Großraum (sphere of influence) phantasies speak for
themselves. What is astonishing, however, is his survival in the Federal Republic as
the inventor of the “Harzburg Model” for Führungskräfte (chief executives).
1
See RAPHAEL GROSS, CARL SCHMITT UND DIE JUDEN (2002).
2006]
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David Fraser reports that contemporary Anglo-American legal opinion took Nazi
law seriously, in other words, as “law”. Expatriation and individual measures, such
as eugenic sterilization, even had parallels in America. A similar point is made by
Laurence Lustgarten, who focuses on examples in criminal law – for instance the
treatment of habitual offenders, and the end of the Analogieverbot (prohibition on
analogies) to fill lacunae in criminal law – in order to highlight parallels and
continuities between the legal politics of the National Socialist regime. Certain
contemporary developments appear ominous in light of this contribution, but, as
Weiler notes in the Epilogue, the author overshoots the mark. The phenomena he
mentions stem from the police state, and are not typical of National Socialism, even
if it was typical of the Nazis to revert back to them.
The third part continues with Carl Schmitt. According to John P. MacCormick the
European Union is “mercifully” not a Großraum in the sense of Schmitt’s diverse
concepts, although Schmitt did raise the current issue what exactly defined
Europe’s internal community and how it was different from the outside world.
In view of the widely alleged legitimacy crisis of the European Union, I. Peter
Burgess draws parallels to the situation in Weimar and even resorts to Schmitt’s
dark “Nomos theory”. Fascinated by Raumordnung (spatial order), a term which
seems to pulse with meaning in the English text, the author ultimately gets lost in
dialectic speculations which are impenetrable to the reviewer. In contrast, Christian
Joerges draws attention to personal and ideational continuities in his abundant
contribution. What is of initial interest is the biographical note on H.P. Ipsen, who
began his academic career in the Third Reich before becoming one of the leading
public lawyers of the Bonn Republic and a dogmatic Community lawyer, and who,
according to Joerges, is anchored in the principle of priority of application. Joerges
too is gripped by the legitimacy problem, but he keeps a healthy distance from the
subject-matter. The author views two concepts that were developed in Germany in
antithesis to National Socialism and “which do without parliamentary democratic
affirmation” as responses to the European “legitimacy dilemma”: “ordoliberalism”, according to which the state guarantees market development, and
Ipsen’s model of “purposive associations of functional organizations”.2 Neil Walker
in his comment emphasizes that the European values – following Dahrendorf,
prosperity, social solidarity, and political freedom – need to be continuously
restated and equilibrated more precisely.
Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167, 189-191 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
2
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Vivian Grosswald Curran and Matthias Mahlmann deal with questions of legal
methodology in the subsequent contributions. Curran inquires into the relevance of
the different methods of legal interpretation for the assertion of the National
Socialist will by examining the practice of German and French courts during the
Nazi and the Vichy regime respectively. Even though the German judges tended
towards the “objective” interpretation to the point of judicial legal development,
with the French courts tending towards a literal “formalism”, it was ultimately the
political ideology of the judges, rather than their methodological position, that
determined the extent to which they followed the moral concepts of the respective
regime: "While the contrasts between the judicial approaches of Germany and
France, coupled with grave injustice in substantive results in both countries, allow
one to question whether causality linked the specific methodologies to the
substantive nature of case results, the uncertain role of methodology in terms of
substantive outcome may be most starkly visible by the example of Germany alone.
The post-war about-face from initially criticizing judicial formalism to subsequently
criticizing anti-formalism, when the view that German courts had been positivistic
changed to a view that they had not been positivistic, signals starkly the strength of
the impetus to blame the particular methodology that had been tainted by
association with Nazism, and casts doubt on the validity of the conclusion that
either methodology by nature mandates injustice in substantive result. In addition,
the German judicial use of Generalklauseln yielded results as terrible in kind as
France's judicial positivism, with its rejection of principes généreaux, France's version
of general clauses. The accumulated evidence demonstrates that we will not be able
to identify the responsible culprit for fascist-era judicial injustice in France or
Germany in the methodological distinctions that separate positivism from antipositivism, or formalism from anti-formalism. The driving force behind court
decisions in both Germany and France was political ideology, and the particulars of
judicial methodology were far less important to the outcomes of cases."3
Curren does not, however, write from a legal theoretical perspective. She does not
inquire into the correctness of each method. Instead she views – from a political
perspective – the plurality of legal methods as pivotal in order to prevent the
assertion of objectionable ideologies. This may hold true for the constellation of
“evil law and good judge”. But a critically self-reflective lawyer needs to be aware
of an interpretation that is scientifically correct. This is the point of Mahlmann’s
comment. He advocates a view of “moderate positivism”, which the reviewer by
and large endorses. To be sure, the author goes too far when he refers, for instance
in relation to fundamental rights, to the existence of important extra-legal
Vivian Grosswald Curran, Formalism and Anti-Formalism: Judicial Methodology, in DARKER LEGACIES OF
LAW IN EUROPE, 205, 225 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
3
2006]
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145
“influences” on legal interpretation. That is only true in the sense that positive legal
norms may refer to values, which do not have their seeds in the law. But through
positivisation even their material content becomes part of positive law, and it is the
task of legal interpretation to assess what the law-maker intended. (Maybe the
difference is only terminological, because Mahlmann also suggests that it is the task
of legal theory to make these influences transparent, to open them up to criticism,
and to develop rationality standards for the evaluation of these extra-legal
considerations).
The following contribution by James Q. Whitman is very interesting and also
slightly chilling. The author is concerned with a reconstruction of the National
Socialist concept of honor. He argues that, from a sociological perspective, National
Socialism generalized “honor” which had hitherto been the reserve of the higher
estates, and that this development found expression in the erection and in the
judicature of Ehrengerichte (courts of honor) as required by labor law. In any event,
the suggestion is that a direct legal sociological link could be established between
this – quasi democratized – honor and the fundamental right of “human dignity”,
which is common property today. Gerald L. Neuman’s comment shows that this
conclusion is not supported by evidence in legal history. Yet that does not diminish
the value of Whitman’s careful consideration. As a matter of fact, the National
Socialist regime was not unfriendly towards those that it embraced. What Whitman
elaborates on regarding relations covered by labor law has parallels in the
economic-historical research by Götz, which engage us today. It reveals a certain
modernity of the Nazi system and contributes to an understanding of the
phenomenon why many people felt attached to this system. The topic “labor law”
is concluded by Luca Nogler’s comparative study on the influence of corporatist
theory in Germany and Italy that is rich on detail.
The contributions in the final part of this volume deal with the legal cultures in
Italy, Spain and Austria. They reveal that Carl Schmitt’s thought lived on in various
guises: in Italy they found expression in the theories of Constantino Mortati (as
demonstrated by Massimo La Torre and Giacinto Della Cananea), in Spain by
Legaz y Lacambra (Agustin José Menéndez), and by Eric Voegelin in the context of
establishing the corporative state in Austria (Alexander Somek). Menéndez is
particularly informative on the indirect effect that the nineteenth century
conservative Spanish state theorist Donoso Cortes had in Spain, having been
influential on Schmitt.
The contribution by Somek will, naturally, be read critically by an Austrian
reviewer. The account of the role of the dominant public law scholars (after
Kelsen’s departure in the mid 1930s), Merkl and Adamovich, is not
unsubstantiated, but is relayed with an undercurrent of psychological spin.
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Somek’s attempt to dismiss Kelsens’ Pure Theory of Law in a footnote is
questionable. He assumes that he has clarified that it is a “toothless instrument
against the subversion of a constitutional order”, because every seemingly
unconstitutional act can be justified as having found a footing in a new legal order.
According to the reviewer, Somek gets it wrong in a number of ways. First of all,
the “subversion” of a valid constitution is not something negative in principle.
After all, it could be the transformation from a dictatorial constitution to a
democracy. The Pure Theory of Law, which focuses on the description and not on
the justification of a legal order, remains neutral both in relation to the existing and
in relation to the new constitutional order. To be sure, the Pure Theory can review
the objective validity of an act that subjectively purports to be a legal act by
referring it to mechanisms of constitutional interpretation. If a constitution contains
a differentiated system of legal elimination through the explicit repeal of
unconstitutional acts, for instance through a constitutional court, then the process
of wrapping a cloak of legality around an unconstitutional act (by citing the “true”
constitution to establish legitimacy) is made much more difficult. The constitutional
breach is brought to light; a theory of law cannot hope to do more. Aside from this
criticism, Somek’s contribution does offer valuable insights when he criticizes
Austro-Fascism’s image of the state as a concept of democratically illegitimate rule
of experts, which could be attractive for European Union elites.
The volume concludes with an Epilogue by Joseph H.H. Weiler. The underlying
sense of the continuous commemoration of the Shoa can be found in the Jewish
tradition of the “appointed Mourner”, who is personally unaffected by the death of
a person, but who has been appointed by the community to mourn. The death of a
person should not go un-mourned. According to Weiler, Europe ought to be able to
think of itself as a community of fate "in the sense that different peoples and
different States committed in their internal organization to democracy, human
rights and the rule of law have decided to face the challenges of the future together,
to share a destiny and hence a responsibility (even redistributive) towards each
other, to make one's fate dependent, co-dependent on the fate of Others".4
The advantage of this impressive piece of work lies in the variety of its topics and
in the differentiated perspectives of the contributors. Neither can be adequately
conveyed in the context of book review. The editors did not strive for consistency,
and it did not come naturally either. The reviewer is most impressed by those
contributions, which focus on the legal historical reconstruction and highlight
questions of methodology. It becomes clearer, in the course of reading the
JHH Weiler, Epilogue to DARKER LEGACIES OF LAW IN EUROPE, 389, 402 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
4
2006]
Science, Not Politics
147
individual essays, that the “dark years” are discussed in light of the European crisis
of legitimacy. Carl Schmitt undoubtedly raised the legitimacy question with
particular incisiveness. It is, therefore, not surprising that more than half of the
contributions deal with this thinker, partly with perceptible “lust for anxiety”
(Angstlust), in psychoanalytical terms. It is unobjectionable to inquire into the
legitimacy of a community, so long as this question is posed as a political one. The
history of ideas suggests that the division of “legitimacy” and “legality” had an
antidemocratic function. Schmitt might be an attractive option for a European
situation in which the democratic legitimacy of the EU is (or appears to be)
unattainable and in which one may want to make a virtue of necessity. From a
methodological perspective the distinction between a theory of public law and
political science should be made as precisely as possible (which does not prohibit
the same authors from dealing with both areas so long as they disclose what they
are doing). Some political science contributions to this edited volume are
problematic if they fail to distinguish between description and prescription, which,
according to the reviewer, is a necessary condition for scientific analysis. This
objection aside, the volume at hand offers a fascinating fullness of insights and
open questions. That the latter prevail is an advantage, since we are talking about
science and not politics.
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ARTICLES : SPECIAL ISSUE
Dark Legator: Where the state transcends its boundaries,
Carl Schmitt awaits us
By Alexandra Kemmerer∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A. Fragmentations**
In his commentary on the first paragraph of Carl Schmitt’s seminal essay “The
Concept of the Political” (Der Begriff des Politischen), Christoph Schönberger,
constitutional lawyer at the University of Freiburg, suggests it is the variety of
“aspects of his writings that leave behind the concept of the state that inspire our
interest in Carl Schmitt”.1 Schönberger comments on the book’s now classic second
edition, published in 1932, revised and substantially changed by the author
subsequently to a lesser known first edition of 1927. Schmitt, he argues, discussing
the problématiques of an international law based on humanitarian interventionism
and of the challenges created by international terrorism, provides “in his
Bundeslehre (federal theory) a theory of federal systems no longer confined to the
∗
Research assistant at the Jean Monnet Chair for European Law, University of Würzburg. Email:
[email protected]
**
Previously published (in German) in Frankfurter Allgemeine Zeitung (12 May 2004, No. 110, p. N 3,
Geisteswissenschaften).
1
Christoph Schönberger, “Staatlich und Politisch” (20-26). Der Begriff des Staates in Carl Schmitts BEGRIFF DES
POLITISCHEN, in CARL SCHMITT: DER BEGRIFF DES POLITISCHEN. EIN KOOPERATIVER KOMMENTAR 21, at 43 (R.
Mehring, ed., 2003).
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concept of the nation state, leaving behind the impractical dichotomy of Staatenbund
(federation of states) and Bundesstaat (federal state)”.2
Is it possible that in the writings of Schmitt there are hidden truths, which have
eluded us, truths regarding the contemporary fragmentation of the nation state and
its dissolution into the supranational, and consequently, truths on the political
gestalt of Europe? Are scholars such as Christoph Schönberger correct in assuming
that the works of the disputed legal theorist speak more about current problems
and challenges than the very works explicitly claim? Do the writings of Schmitt
provide insight on the complex European multi-level-system with its characteristic
“sovereign power, transcending the nation state”?3
Maybe Schmitt’s conceptualizations are as present in the legal and political
structures of EU governance as they are in recent juridico-political discourses on
globalization and Europeanization. Taking a bold and courageous approach,
Christian Joerges, Professor of Law at the European University Institute, Florence,
and at Bremen University, traces back the complex and sometimes obscurely
intertwined lines of influence of Carl Schmitt’s Großraumtheorie (theory of spheres
of influence) on the post-war European integration-project.4
At a conference of the Reichsgruppe Hochschullehrer des Nationalsozialistischen
Rechtswahrerbundes (Reich section of professors in the National Socialist Association
of Lawyers), held in Kiel in early April 1939, only days after the German invasion of
Prague, Schmitt, for the first time, introduced his new theory of international law,
the “Großraum order in international law, with a ban on intervention for powers
from outside the sphere” (“echtes, Interventionen raumfremder Mächte abwehrendes
Großraumprinzip”). Against the backdrop of the establishment of the “Protektorat
Böhmen und Mähren” and the instalment of the pseudo-sovereign Slovak state,
Schmitt’s theory garnered wide attention in the national and international press.
Before the end of the same month as the conference, the paper appeared in print.
Schmitt based his concept of spheres of influence on a rather unorthodox
interpretation of the 1823 Monroe Doctrine. However, as Hasso Hofmann stressed
in 1964 in his classic dissertation on Schmitt’s political philosophy, at the core of
Schmitt’s argument is not the idea of greater spheres as implied by the Monroe
2
Id., at 43.
3
Horst Dreier, Wirtschaftsraum – Großraum –Lebensraum. Facetten eines belasteten Begriffs, in RAUM UND
RECHT. FESTSCHRIFT 600 JAHRE WÜRZBURGER JURISTENFAKULTÄT 47, at 68 (Horst Dreier, Karl F. Kreuzer &
Hans Forkel, eds., 2002).
4
Christian Joerges, Europe, a Großraum? Shifting Legal Conceptualisations of the Integration Project, in DARKER
LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS 167 (Christian Joerges & Navraj Singh Ghaleigh, eds., 2003).
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151
Doctrine, but merely an attempt to link the “idea of geographical repartition with a
progressive political concept”.5
B. From State to Großraum
Schmitt argued that international law’s classic paradigm of a co-ordination of equal
and sovereign states is in a process of dissolution. There would be various
Großräume (spheres of influence), where, at the centre of each, a Reich acts as the
leading political power. Among Schmitt’s völkisch-radical contemporaries from the
élite group of SS lawyers—some of whom brought his rapid rise to the top of the
Third Reich’s politico-academic hierarchy to a sudden halt by the end of 1936—the
idea of the concept of Reich as the core notion for a new system of international law
elicited harsh criticism. Schmitt set out, as Reinhard Mehring emphasizes, “to reconceptualize power-dominated political realities as political order and system of
legal relations”.6 For völkisch propagandists such as Reinhard Höhn or Werner Best,
there was definitely too much Staat at the core of such a conceptualization. The
relations emerging between Großraum and Reich could, suggested Best, not properly
be labelled as “international law” – the völkisch order of the Großraum provided
merely a framework for new power structures balancing zwischenvölkische (interpeople) relationships and interests. In Best’s theoretical approach which sought to
legitimize the German policy of annihilation and expulsion, Schmitt’s Großraum
underwent a profound transfiguration into Lebensraum, a sphere of “real” power
politics falling outside all categories of international law.
Indeed, Schmitt’s reflections gained their suggestive plausibility only against the
background of the Weimar era discourse on an emerging Großraumwirtschaft
(Großraum economy), as Horst Dreier recently explained in a detailed analysis of
the changing meanings and functions of spatial concepts.7 Yet, while Schmitt
strikingly describes the dissolution of the post-Westphalian system, at the centre of
his Großraum lurks an empty space. It was left to others to sketch new structures
replacing the classical—in Schmitt’s view outdated—system of sovereign nation
states. Hans-Peter Ipsen, the later doyen of European Law in Germany, figures
prominently among these theorists, with what was his at first glance inconspicuous
article on Reichsaußenverwaltung (External administration of the Reich), published in
1942.
5
HASSO HOFMANN, LEGITIMITÄT GEGEN LEGALITÄT. DER WEG DER POLITISCHEN PHILOSOPHIE CARL SCHMITTS
209 (2002).
6
Reinhard Mehring, Macht im Recht. Carl Schmitts Rechtsbegriff in seiner Entwicklung in 43 DER STAAT 1-22
(2004).
7
Supra, note 3, at 66-67.
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C. Europe a Zweckverband?
Twenty years later, in the midst of the rapid development of the European
integration project, which was intended as a response to the traumatic experience
of Europeans under National Socialism and Fascism, Ipsen identified the three
European Communities as “purposive associations of functional integration”
(Zweckverbände funktionaler Integration). Based on Ernst Forsthoff’s theory of the
industrial society, Ipsen thereby provided an influential model, a starting point for
further analysis and conceptual development of the unprecedented construction of
a supranational system of economic law, binding for sovereign nation states.
In his reflections on the “disquieting legacy” of National-Socialist legal thinking,
Christian Joerges writes:
“The concept ‘purposive association’ opened up Community law to
tasks that had no place in an ordo-liberal world – without exposing it,
on that account, to democratic requirements.”8
Ordo-liberalism and functionalism promised answers to the legitimation dilemma
of a new and unprecedented system of supranational governance. When taking a
closer look at the limits of both positions, Joerges argues, the continuities with predemocratic heritages of German legal culture become strikingly visible. Yet,
Europe, in search of its constitutional structure, does not have to content itself with
inherited alternatives.
Being a multi-level-system with multi-faceted levels and fora of political action, the
actual EU is not a Schmittian Großraum. However – as John P. McCormick points
out – it might be a worthwile effort to take up the challenges provided by Carl
Schmitt when reflecting upon the characteristics of European identity. In his
contribution to the volume edited by Christian Joerges and Navraj Singh Ghaleigh,
a collection of essays resulting from research conducted beginning in 1999 at the
European University Institute on the continuities and ruptures of European
jurisprudence in the twentieth century, McCormick traces Schmitt’s conceptions of
Europe, from the splendid 1923 essay “Roman Catholicism and Political Form”
(Römischer Katholizismus und politische Form) through the Großraumtheorie of 1939 to
Schmitt’s 1950 opus magnum “The Nomos of the Earth in the International Law of
8
Christian Joerges, Europe, a Großraum? Shifting Legal Conceptualisations of the Integration Project, in DARKER
LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS, supra note 4, at 190.
2006]
Dark Legator
153
the Jus Publicum Europaeum” (Der Nomos der Erde im Völkerrecht des Jus Publicum
Europaeum).9
The latter, first published in English in 2003, rapidly made its way into current
supra-, trans- and international legal discourse: Robert Howse, professor of
international economic law at the University of Michigan Law School and a leading
theorist of “federal visions”, juxtaposes Schmitt’s conceptualizations and the works
of Alexandre Kojève.10 Yet, apart from the works of authors taking as subtle a
contextual approach as Howse, the barriers of language often narrow scholarly
perspectives to an eclectic and rather coincidental examination of single writings
and constructions of the Begriffskünstler Schmitt, who was a skilful master in the
legal universe of words and concepts. The complexity of his questions, which is the
essence and reason for their continuing timeliness, remains in the dark.
A more differentiated approach is also needed when confronting European law’s
“darker legacy”. An important and decisive step on this path could be, as Michael
Stolleis proposes in his preface to Joerges’ and Ghaleigh’s edited volume, a
comparative history of twentieth century European jurisprudence which takes a
demanding double-perspective by focussing microscopically on individual figures
while at the same time unveiling macroscopical structures.11 Stolleis stresses that
such a project requires scholarly courage that cannot to be shattered by collegial
marginalizations.
9
John P. McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial Proposals for European Integration,
1923-1955, in DARKER LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER
EUROPE AND ITS LEGAL TRADITIONS, supra note 4, at 133.
10
Robert Howse, Europe and the New World Order: Lessons from Alexandre Kojève’s Engagement with Schmitt’s
“Nomos der Erde” in 19 LEIDEN JOURNAL OF INTERNATIONAL LAW (Special issue: International Theory of Carl
Schmitt) (forthcoming 2006).
11
Michael Stolleis, Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence after 1933
and Post-1945, in DARKER LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM
OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 4, at 1, 17–18.
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GERMAN LAW JOURNAL
[Vol. 07 No. 02
ARTICLES : SPECIAL ISSUE
“By Their Acts You Shall Know Them…” (And Not by
Their Legal Theories)
By Martti Koskenniemi∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A.**
"Christian Joerges and his Nazis…" – this was the reaction of many of the
colleagues of the two editors, as recorded by one of them, Navraj Ghaleigh, to the
project from which this collection of essays emerges. That this should have been the
reaction of a part of the legal profession - or perhaps of the European law
profession - testifies less to its insensitivity to problems in the European past than
to its utter marginalization from the core of social and political theory for which the
ethics and politics of "memory" has for some years been the subject of intense
debate. Viewing itself as above all a technical craft and, if pressed, finding its
justifying ethos from an optimistic functionalism, European law projects the past
principally as a place from which to escape. Its founding narrative situates war as
the breaking-point: the immediate past as ideology, division and violence, the
future as economy, unity, and peace. This move is seen as pedigree history, that is,
as the fulfillment of the latent promise of (Europe's) origin in the present.1 By this
means, everything between, say, the French Enlightenment and the Schuman Plan
∗
Professor of International Law, University of Helsinki. Email: [email protected].
**
Previously published in 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 839 (2004).
On "pedigree history" see RAYMOND GEUSS, MORALITY, CULTURE, AND HISTORY. ESSAYS ON GERMAN
PHILOSOPHY 1-5 (1999).
1
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may be seen as an obscurantist mistake, significant only for today's Europeans'
recognizing what we are not.
No doubt these essays are highly due. One feels almost embarrassed to read author
after author testify to the urgency of a task that should have been started years ago.
Joseph Weiler is right to stress in his Epilogue that the problems of Nazism and
Fascism are European problems as much as "German" or "Italian" problems. In
contrast to the extensive Vergangenheitsbewältigung (coming to terms with the past)
carried out by German society, and finally also the German legal profession, as
recounted in Michael Stolleis’ introductory chapter, the rest of Europe, particularly
Eastern and Central Europe, have barely embarked upon working on their past.
Now is certainly the time to remind ourselves that the European Union was and is
an economic project only in a secondary sense, and that its core lay in 1950 as it
does today in a political rejection of precisely the "darker legacies" of which this
book speaks. Whatever the merits of the specific studies carried out herein, the
principal virtue of this book – for which the editors should be warmly thanked – is
that it is there, standing hopefully at the outset of a widespread and intensive new
research agenda for European law. It would be a scandal if this work did not
trigger subsequent studies on the role and influence of Fascist or National-Socialist
thinking in individual European locations – not out of archival interest (though that
should not be underestimated) but as a contribution to today’s European politics.
Most of the 19 essays together with the Prologue by Stolleis and Epilogue by Weiler
do seek to reach beyond chronicling the role of Nazi or Fascist legal thinking in the
inter-war period. Almost all of the authors are law professors. Many of them are
German or Italian, but there are also essays by British and American scholars. The
editors’ ambition has been "to deal not only with ruptures but with continuity"2
(Joerges, 169). This is easier said than done. One needs first to generalize from
whatever exist as significant aspects of a contentious past - and then to link those
generalizations to an intellectual and institutional present in which one is a
participant oneself. Neither task is politically innocent and no conclusion assured to
be proof against politically obnoxious uses. In this regard, the ambition of the
essays may have focused on the wrong place. Legal and historical analyses are
surely necessary in order to enlighten today's political decision-makers. But the
past does not produce ready-made answers for today's problems. No history can
set aside the indeterminacy of legal and political doctrines, including doctrines of
European integration and law, and free the decision-makers from the essential
contingency of the situation in which legal and political choices are made.
Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE
AND ITS LEGAL TRADITIONS 167, 169 (Christian Joerges & Navraj Singh Ghaleigh eds., 2003).
2
2006]
By Their Acts You Shall Know Them
157
B.
One approach to studying the "legacy" of the darker aspects of European law that is
unlikely to succeed is to seek to define, by some general formula, what might count
as a "National Socialist" or "Fascist" legal doctrine so as to be able to identify its
eventual contemporary recurrence. In itself, such an effort might seem laudable
enough. Oliver Lepsius, for instance, suggests that to single out:
"definite special features of National Socialist law [might make] it possible to
attribute positions and concepts to National Socialism, and correspondingly also
show continuities and breaks in the development of legal thinking."3
The temptation is to assume that such a definition might work as a litmus test
making possible the early recognition of incipient forms of "evil" thinking before
they have reached positions of influence. Like early cancerous formations, they
might then be removed before it is too late.
Put in this way (which the contributors do not do), the problematic nature of the
suggestion becomes, I think, plain. Surely the one thing European societies do not
need, are standards of political correctness (together with eventual watchdog
institutions) that identify forms of thinking, or legal doctrines or methods as
somehow intrinsically geared towards Fascism, irrespective of what those doctrines
themselves teach. Though most of the authors concede that the fluid and eclectic
nature of Fascist theorizing makes it hard to define it by reference to specific
doctrinal positions, most of them nonetheless stress the need of some such
definition, at least, as Lepsius puts it, in terms of a "comparative yardstick".4 I am
uncertain about the necessity of this. The genuinely political task of identifying
attitudes or positions that should be rejected because of what we know from history
is both easier and more difficult than the way of such "definition".
It is easier because a doctrine that suggests, for example, that an ethnic community
is of "lower" level than one's own is a racist doctrine and should be treated as such
whatever reasoning or method it invokes to support itself. We know racist
doctrines by what it is they propose to do. No litmus test is needed. Likewise, a
Oliver Lepsius, The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of
National Socialism, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND
FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS supra note 2, at 19, 20.
3
4
Id., 39.
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[Vol. 07 No. 02
doctrine such as Höhn’s in Germany or Panunzio’s in Italy that suggests that the
Nazi/Fascist Party’s word should be law is undoubtedly a Nazi/Fascist doctrine.
But the matter becomes much more complex when one tries to identify some views
as "intrinsically racist", whatever it is they teach because, we think, racist policies
are necessary outcomes of such doctrines. This approach has an altogether excessive
faith in the social determinacy of political or legal doctrines, that is, in the tendency
of particular doctrines to bring out particular outcomes, whatever the
circumstances. To take an example, it is certainly possible to buttress racist policies
by, for example, Darwinist and creationist arguments alike. Perhaps some
communities are thought inferior because this has been decreed by the "laws of
evolution" or the "laws of god". But surely the fact that some people may make such
arguments does not compel us to view Darwinism and creationism as inherently
"racist".
The problem lies not in the doctrines, but in their interpretation, the consequences
that people draw from them. What do "laws of evolution" or "divine laws" actually
say? On this, as on any other conceivable doctrine, people may disagree. We are
inevitably in an area of historical undecidability, and thus of political evaluation.
Evolutionism and creationism can both be associated with racist and non-racist
policies and the interesting stories are those that recount how this has taken place
in particular environments and at particular periods. Intellectual history should not
just describe abstract doctrines without regard to how they have been used in
particular contexts. This is why those essays that have concentrated in single
countries – the prologue by Stolleis (the only one that expressly discusses also the
difficulty of “coming to terms” with a Nazi or Fascist past), as well as the essays on
Italy, Spain and Austria – are in fact most effective in demonstrating the elusiveness
of abstract doctrinal categories and the ease with which different positions or
methods – even initially liberal or merely “authoritarian” positions (such as, for
instance, those having to do with the use of the bona fides principle in the law of
contract or with the protection of workers and against sexual discrimination in
labor law – turn to support abominable causes.5
The effort to pin down legal doctrines or methods as "Nazi" or "Fascist" is doomed
to fail for precisely the reasons that make it nonsense to say that Darwinism or
creationism are "inherently racist" forms of reasoning. The problem about such
claims resides in the inflated expectations of legal determinacy pinned on such
doctrines. Though none of the essays makes this point expressly, many arrive in it
5 See e.g. Pier Giuseppe Monateri and Alessandro Somma, The Fascist Legal Theory of Contract, 55, 61-63
and James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, 243, 251-264, in DARKER
LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS, supra note 2.
2006]
By Their Acts You Shall Know Them
159
in different ways. Vivian Grosswald Curran demonstrates that it is possible to
connect extreme right wing policies (but one surely needs to add, extreme left-wing
policies, too) with positivist and as well as naturalist arguments, formalist as well
as anti-formalist styles or reasoning: of this Vichy France and Hitler's Germany
provide good examples. And as Monateri and Somma note, while the Nazis
rejected the use of Roman law for a more völkisch (folkish) German legal
orientation, Fascists grasped it to buttress the authority of Il Duce.6 The stories
about the ways of jurisprudence and legal practice in Nazi Germany, Vichy France,
Mussolini's Italy, but also South Africa under apartheid or totalitarian regimes in
South America (these are only fleetingly referred to in this book) provide examples
of the cunning of extreme right-wing reason as it is able to co-opt almost any
fashionable legal vocabulary so as to defend Fascist policies. As Menéndez puts it
in regard to the problem of how to characterize Franco’s regime in Spain: “To those
at the wrong end of arms, so to say, it was quite irrelevant whether fascists or
authoritarians were violating their rights.”7 By their acts you shall know them, and not
by their words…
A related point has to do with the association of French jurisprudence with
"positivism" and German with "anti-positivism" - as well as the rather easy way in
which these essays use such labels. Though such a contrast may have its uses for
cultural description (as in Massimo La Torre’s excellent analysis of the German
influences on Constantino Mortati’s constitutional doctrine, it should not be taken
to mean that the French were as they were owing to their "positivism" and the
Germans as they were owing to their "anti-positivism". First, it if far from clear
what "positivism" and "anti-positivism" mean, and that doctrines can be defined as
such independently of their cultural environments. And in any case, second,
"positivism" and "anti-positivism" also depend on each other: something like a legal
"positivism" is justified only by reference to "anti-positivist" arguments (about the
significance of "will", or the stature of legislative sovereignty ) while any "antiformalism" can make its content known only by reference to what is "positively"
there (as practice, custom, institution, class bias or other "fact").8 Again, the
indeterminacy of legal theories should make us wary of their association
permanently (that is, irrespective of the cultural context) with particular outcomes:
they cannot be so associated because the doctrines are, after all, not so different:
6
see Monateri and Somma, supra note 5, at 59.
Agustìn José Menéndez, From Republicanism to Fascist ideology under the Early Franquismo, in DARKER
LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS, supra note 2, at 337, 341n11.
7
Compare MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF INTERNATIONAL LEGAL
ARGUMENT (1989).
8
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[Vol. 07 No. 02
Darwinists and creationists point at the same fossils in order to argue their
contradicting theses.
Lepsius notes that Nazi legal doctrines were constituted of eclectic borrowings
from many sources and that they cannot therefore be defined by reference to their
particular content. Anything went, as long as it seemed an efficient defense of Nazi
policy. This leads him to suggest that what was specific in Nazi law was its
"method", namely that it was "open and undefined in content and even downright
invited interpretation".9 It is conventional to argue that Nazi and Fascist legal
thinking typically used large anti-formal and functional arguments to adapt
existing law to new ideologies.10 Massimo La Torre, for instance, views
“occasionalism” as a “cultural, ideological trait” inherently linked with Fascism11
while Monateri and Somma highlight the use of the good faith principle so as to
detach contract doctrine from its individualist basis and to re-interpret it in a
functionalist, communitarian fashion.12
And yet, instrumental reasoning, openness and deformalization (together with
decisionism, despite the association of that word with Schmitt) are surely no Nazi
exclusivity, but rather defining aspects of much law from "cadi justice" to complex
modernity, as Max Weber famously pointed out.13 Deformalization has its logic and
role: it is a technique of functional (or “dynamic”) adaptation to override the dead
weight of some (obsolete) form in order to realize the law-applier’s view of what is
substantively right.14
9
Lepsius, supra note 3.
See also WILLIAM E. SCHEUERMAN, BETWEEN THE NORM AND THE EXCEPTION. FRANKFURT SCHOOL AND
THE RULE OF LAW, 34, 145-147 (1997) and passim.
10
11 Massimo La Torre, The German Impact on Fascist Public Law Doctrine – Constantino Mortati’s Material
Constitution, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND
FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 305, 307, 319.
12
Monateri and Somma, supra note 5, at 62.
13 It may be suggested that a distinction should be made between rampant, all-absorbing, totalitarian
deformalization and the type of technical deformalization witnessed in late liberal modernity. But I find
that this rather reflects contemporary distinctions between "normal" and "exceptional" (or perhaps
"transitional") moments in the legal system. I suppose many people would be inclined to characterise the
scaling down of public law and public administration in order to bring in the liberal market in the
former socialist countries, for instance, precisely in terms of this type of deformalization.
14
See for example ROBERTO UNGER, LAW IN MODERN SOCIETY 198-223 (1986).
2006]
By Their Acts You Shall Know Them
161
The search for “intellectual rigor” and “realism”15 was typical of the inter-war
attacks from various sides on the “formalism” and “idealism” of the liberal mind.16
It has been equally available to new generations of socialist, conservative - and Nazi
- jurists seeking to challenge jurisprudential orthodoxy or results of past legislation.
To defend the breach of formal legality by appeal to a “substantive constitution”
may have united Italian and Spanish Fascists with Schmittian theory but it is no
different from, say, US arguments about the Iraqi war fulfilling the purposes of the
UN Charter while violating its provisions - "illegal but legitimate".17 Surely the use
of the Radbruch formula in West Germany after the war (the holding of formally
valid Nazi law as invalid owing to its substantive content) and the creative use of
East German statutes in the border guard trials in the 1990's also manifest types of
anti-formal reasoning, the quest to reach substantive justice by condemning and
transgressing the regressive formalism of an abnormal normality, a staatliches
Unrecht (state injustice).
The conclusion that Nazi law could only be defined in methodological terms may
seem reasonable if that "method" is seen as a ramshackle of contradictory elements
from which some "contradiction-transcending" "higher" synthesis or a "new stage of
knowledge" is received,18 especially if connected with a celebration of the
exceptional or the Führerprinzip (leader principle). But in fact most mainstream
liberal legal theory builds on or seeks to live with contradictory assumptions and
trends of reasoning (e.g Rawls' "overlapping consensus"). Working with and
attempting to transcend contradictions is a celebrated technique that has developed
from Hegel into a variety of directions, some of which (e.g. much of post-Marxian
left writing by theorists such as Judith Butler or Alain Badiou) are
programmatically anti-fascist.
But one need not be a Marxist or a postmodernist to accept that pluralistic and
conflictual societies give rise to contradictory and eclectic forms of jurisprudence in
which the "decision" is always undetermined by the available legal materials. It
seems quite plausible that much Nazi or Fascist theorizing comes out as
contradictory and abstraction-ridden mumble-jumble in which only the
hypothesized "new levels of consciousness" that always form part of totalitarian
Giacinto Della Cananea, Mortati and the Science of Public Law: A Comment on La Torre, in DARKER
LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS, supra note 2, at 321, 323.
15
16
See e.g. HANS MORGENTHAU, SCIENTIFIC MAN VS. POWER POLICY (1946).
17
See e.g. Anne-Marie Slaughter, Good Reasons For Going Around The UN, N.Y. Times, 18 March 2003.
18
Lepsius, supra note 3, 35.
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rhetoric make it impossible for its adherents to recognize it for what it is: bad
jurisprudence – "a disaster in academic terms".19 But the fact that a legal theory is
failed qua theory, confusing, erratic, or just plain nonsense does not make it a
Fascist theory, perhaps unfortunately inasmuch as the contrary may also be true:
the academic brilliance of a doctrine is not proof against its being used to set up a
concentration camp. Again, the issue is political and has to do with the
undetermined consequences that any doctrine may be used to support.
For such reasons, essays focusing on individuals, their choices and careers, such as
Ingo Hueck’s overview of the German Völkerrechtler (professor of international law)
Reinhard Höhn and La Torre’s and Giocinto della Cananea’s in-depth surveys of
the “material constitution” of Constantino Mortati are more in touch with the
complexity of the positions that reified doctrines reach at the hands of interesting
individuals. Likewise, Menéndez’ account of the rise of Fascist jurisprudence in
Spain usefully contextualizes abstract doctrines showing the contingency of the
past (that it might have gone the other way) and highlighting the need for sharp
political awareness in the present. Developing “better” legal doctrines is useful in
times of normality, but insufficient during moments of transformation. Instead, the
conclusion by Stolleis is surely right. The problem with inter-war German lawyers
was not their “positivism” but “a dearth of courage and a general compliance.”20
Similar considerations lead me to suggest that David Fraser's analysis of the failure
of Western European lawyers to condemn Nazi law as not-law in the 1930's
"because of its substance"21 builds on a "Radbruchian" anti-formalism that smacks
of anachronism. Surely, as Hart insisted, merely holding a rule as formally valid is
not a morally suspect complicity in its creation or application. When the Germanorigin Carl J. Friedrich was commenting (instead of condemning) Nazi law from his
position as Professor at Harvard, there is as little reason to establish guilt by
association as there is for Lustgarten to fear that because there have been common
strands of argument in Nazi and Anglo-American law (over the nulla poena sine lege
principle, the use of eugenics and the treatment of habitual criminals)22, the latter is
19
Joerges, supra note 2, 175.
Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence
after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM
AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 1, 4.
20
David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM
AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 87, 91.
21
22 Laurence Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of
Difference, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM
OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 113, 118-127.
2006]
By Their Acts You Shall Know Them
163
"similar" to the former. It would have been odd to condemn a doctrine in Germany
(the political task) without first outlining what in fact was the "doctrine in
Germany" (the task of elucidating valid law). It would have been odd for
comparativists (I have no idea of the representative nature of the authors discussed
by Fraser and Lustgarten) to interest themselves in foreign legal systems in order to
reject them from safe distance away. Themes in genetics or criminology were and
continue to be discussed and constitutional interest in states of exception is shown
in many places outside Germany. Trends in civil and criminal law cross boundaries
as experts in these fields do, and give rise to parallel debates about "eugenics",
"abortion", "euthanasia" or indeed "death penalty" without this signifying that the
social practices in those societies are the same. One need not have studied
structural anthropology to realize that the "same" ritual or doctrine has different
meanings in different societies and that the meaning of legal doctrines, too, is
socially constructed. To discuss death penalty and not to discuss death penalty are,
as forms of social practice, at equal distance from putting someone to death by
State-sponsored means.
The same points may be made in regard to Whitman’s essay on the historical
continuum between Nazi notions of "honor" and modern European doctrines of
"dignity", the sense in which dignity as a leveling instrument of social discourse is a
generalization of older notions of "social honor".23 However much the two doctrines
may be used in the relevant contexts to buttress contradictory social practices, the
two are culturally and sociologically speaking continuous and none the worse for
that fact. The correctness of the old Schmittian argument about the notion of
"universal humanity" being a useful instrument to cast someone out of "humanity"
altogether so as apply extreme measures against that person is no reason to stop
speaking about "universal humanity". That this has been so difficult to understand
has followed from the unfounded "essentialist" assumption that words, positions,
doctrines or arguments have fixed meanings that can be translated into determinate
social consequences. Again, as Quentin Skinner, above all, has repeatedly insisted,
the meaning of a political concept (such as "honor" or "dignity", or "universality" or
"humanity", "or indeed "Fascism" or "liberalism") is its use: what it is invoked for
and what it is invoked against, in which context, and by whom?24
James Q Whitman, On Nazi ‘Honour’ and the new European ‘Dignity’ in DARKER LEGACIES OF LAW IN
EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS,
supra note 2, at 243, 254.
23
See especially Quentin Skinner, Meaning and Understanding in the History of Ideas, in VISIONS OF
POLITICS VOL. I, at 57-89 (2003).
24
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It is undoubtedly true, as pointed out by Lustgarten, that although the themes
debated in Germany, Britain and the US may have been similar, the "democratic"
nature of the latter prevented them from going the German way.25 But how helpful
is this? Stalin used to be the head of a political entity that called itself "democratic"
and ended up murdering perhaps 80 million of its citizens. To invoke "democracy"
as an explanation of why parallel doctrines did not lead to identical outcomes is too
general: after all, Schmitt (why does that name crop up constantly?) was able to
make the point that sometimes only a (commissarial) dictatorship is compatible
with democracy because only it can safeguard the essential homogeneity between
the ruler and the ruled.26
Invoking "democracy" explains too little. England and the US did not go the
German way because they were England and the United States and not Germany. But
now we have reached the paradox of prediction: in order to learn the past we must
know the details of the past very well: but the better we know those details (the
specific histories of England and the United States), the less we are able to find a
general lesson - for no country can repeat the history that once made England or the
United States.
This is what makes Mahlmann's essay useful and frustrating at the same time.
Legal substances or methodologies do not explain the birth or influence of Fascism
or Nazism. The general beliefs and attitudes of the legal communities account for
the emergence of the Nazi legal order.27 Though true, and important, this is of
course wholly unhelpful as a means of tracing Fascist doctrines in the present. To
say that German jurisprudence supported Nazi positions because it had Nazuprone attitudes while such attitudes did not exist in UK or the US is a petito
principii. Germany became Nazi because it was Germany. Well fall back on
situationalism. But there is more. To examine our own socities only to the extent
that they resemble or deviate from Nazi Germany makes us blind to our own kinds
of wrong: the persistent racism in the United States, class society and what Joerges
calls ordo-liberal market authoritarianism in Europe.
25
Lustgarten supra note 22, 127.
See CARL SCHMITT-DOROTIC, DIE DIKTATUR: VON DEN ANFÄNGEN
SOUVERÄNITÄTSGEDANKENS BIS ZUM PROLETARISCHEN KLASSENKAMPF (1928).
26
DES
MODERNEN
Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES OF LAW IN
EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS,
supra note 2, at 229, 232-235.
27
2006]
By Their Acts You Shall Know Them
165
C.
The essays on Europe revolve understandably around the legacy of Carl Schmitt
whose shadow, as noted by John McCormick, “haunts the study of European
integration”.28 Though the essays carefully highlight the objectionable character of
Schmitt's politics and of the elusiveness of his writing, Joerges reminds us that
Schmitt needs to be engaged as "the weightiest exponent of anti-liberal thought in
the German tradition".29 Schmitt's writing has various links with constitutionalism
in general and the identity and role of Europe in the world in particular. Invoking
the theme of European identity, one enters almost automatically a Schmittian
world, one in which the issues of cultural homogeneity30 and geographical
localization31 become central. In addition, as highlighted in Ghaleigh’s essay, there
are the striking parallels between how Schmitt viewed the new world order in his
Der Nomos der Erde in 195032 and the hegemonic activities of the United States in the
world today. Even for an American liberal such as Bruce Ackerman it is difficult to
avoid an engagement with Schmittian themes when discussing the unlimited state
of exception declared by the Americans on the world in waging their morally
inspired (or at least defended) “discriminatory” war against terrorist “outlaws”
throughout the world.
But for these essays, it is above all constitutional theory where the Schmittian
legacy is most pressing. The theme of Europe’s identity and the sense of the
integration project emerged sharply with the German Constitutional Court's
controversial Maastricht decision of 1994. Was the citizenry of Europe
“homogeneous” enough to constitute a demos and qualifying it as a democratic
polity? For Schmitt, democracy in terms of “homogeneity” was antithetical to a
liberalism which celebrated diversity. Democracy could only be realized through
an idea or a person with whom the demos could identify. This, again, was possible
only through an existential decision about who one’s enemy was. Homogeneity
depended, as it still does, on exclusion. Because exclusion cannot be fitted within
John P. McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European
Integration, 1923-1955, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM
AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 133, 141.
28
29
Joerges, supra note 2, 171.
30
Especially McCormick (note 28), 140, 141.
Especially Peter Burgess, Culture and the Rationality of Law from Weimar to Maastricht, in DARKER
LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS
LEGAL TRADITIONS, supra note 2, at 143, 160-163.
31
32
CARL SCHMITT, DER NOMOS DER ERDE DES JUS PUBLICUM EUROPAEUM (1950).
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Europe’s liberal ethos, the question emerges about how to construct an identity for
Europe without assuming that it must refer back to some homogeneity. McCormick
invokes the Habermasian response of Europe's identity as a cosmopolitan identity:
out of diversity, homogeneity. The same direction is taken by Peter J. Burgess in his
insightful Schmitt-exegesis, looking for an evolutionary concept of the constitution,
one that would be open to the “debate and dissent” between citizens. To the extent
that the constitution is seen (in Schmittian terms) as "the political unity of the
people"33, this need not necessarily be taken to mean that it seeks to realize some
fixed, pre-constitutional and authentic datum: a “legitimacy” before the “law”. In a
Habermasian vein, Burgess accepts the co-constitutive role of formal legality and
substantive legitimacy34: neither is “foundational” in respect of the other.
Some such paradoxical notion seems indeed necessary in order to avoid the more
objectionable effects of European identity politics. In contrast to the apparently
overwhelming difficulties of that task conceived in terms of political theory, some
consolation may be received from the sense that European debates were already in
the Middle Ages torn between localism and cosmopolitanism,35 and that the demos
that in fact may exist (contrary to the German Constitutional Court) is split within
itself; instead of a fixed pre-political fact, its identity may be constructed by one of
several tensions (particular/general, secular/religious, etc.) in which case work for
European identity could be understood as therapy instead of ideology.
The discussion of Europe's international role suffers from a neglect of Schmitt’s
friend/enemy theme. Nothing has put the question of European identity in the past
year more sharply than the opposition to the United States. Joerges makes the good
point about the contemporary relevance of distinction between Großraum and
Empire in Schmittian theory. Might Schmitt have been right to think that only by
constituting itself as a Großraum, Europe could counter (American) Empire?36 As I
read him, Joerges would respond to this question (which in all fairness I have to
admit he does not pose) by a qualified yes. At least he suggests that certain themes
do suggest Europe as a kind of Großraum, defending itself (against external
intervention) by developing into a large space whose concrete order would be
based on economy, technology and administration, instead of a determined (and
33
Burgess, supra note 31, 151.
34
Id., 143-166.
William Chester Jordan, “Europe” in the Middle Ages, in: THE IDEA OF EUROPE. FROM ANTIQUITY TO THE
EUROPEAN UNION, 72-90 (Anthony Pagden ed., 2002).
35
See Carl Schmitt, Der neue Nomos der Erde, in STAAT, GROSSRAUM, NOMOS. ARBEITEN AUS DEN JAHREN
1916-1969, 518-522 (1995).
36
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167
thus possibly antagonistic) political claim. One of the more important points in this
book is his suggestion that Europe might have already have developed into an
authoritarian form of “ordo”-liberalism on the one hand (free market created by
European law and enforced by European bureaucracy), and functional integration
through public law on the other.37 Whichever way the stakes fall here,
depolitization seems to be Europe’s fate.
This conclusion is ironically strengthened by Neil Walker’s response according to
which Europe (meaning Brussels) need be careful not to jump too hastily to support
any of the suggested “core values” it is being offered. Instead, it needs to balance
the different values carefully against each other. His conclusion spells out clearly
where I think the problem lies: “the institutional implications of the balancing of
the core values are themselves deeply complex.”38 “Balancing” is the rule by
bureaucrats in accordance with technical “measuring” undertaken by experts. I
myself would have nothing against Europe’s single-minded pursuit of the “core
value” or eradicating poverty in the third world almost at whatever cost to Europe
itself.39 The “reasonable” solution here as well as in the essays on legal method
underwrites a de facto eclecticism that may be just a prelude for in fact doing
nothing.
What is Europe's Nomos as its spatial order, its Raumordnung? asks Burgess.40 If that
Nomos is no longer spatially based, and popular “homogeneity” is a forbidden
theme, what then? Clearly, there is no natural spatial entity such as “Europe”.
“Europe” is a political choice, its boundaries contingent and contestable. But if this
is so, how can Europe be anything but an imperial policy from the perspective of
those whose self-identification is spatial? If Europe is a political idea (as, along with
most of the writers of these essays I think it should be), then it is also a hegemonic
project and in this regard there is no difference between it and what it sees the
United States involved in today. The difference must then be invoked in political
terms: why is it hegemony by me is better than yours? This is a large theme that falls
outside the scope of the present essays.41 It leads into debates about the possibility
37
Joerges, supra note 2, 168-191.
Neil Walker, From Großraum to Condominium – A Comment, in DARKER LEGACIES OF LAW IN EUROPE:
THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, supra note
2, at 193, 202.
38
39 Never mind that the cost might not be too great, and soon offset by a working Third World economy.
See THOMAS POGGE, WORLD POVERTY AND HUMAN RIGHTS, 18-20, 96-100 (2002).
40
Burgess, supra note 31, 160-166.
But I have dealt with it in my THE GENTLE CIVILIZER OF NATIONS. THE RISE AND FALL OF
INTERNATIONAL LAW 1870-1960, 480-509 (2002).
41
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of distinguishing between “false” and “genuine” universalisms that can here be
invoked only by the metaphoric opposition between “frontier” and “horizon”,
implicit in many of the complex and open-ended directions that the authors of
these essays have provided for debates on Europe’s identity.
Overall, the essays on the “darker legacy” for conceptions of Europe might have
been sharper had they actually identified questionable features in present European
politics. But the authors have with few exceptions been unwilling to assess the
continuity between Nazi and Fascist thinking during the inter-war and post-war
European developments. The review by Stolleis of developments in German
jurisprudence after 1945, however, usefully highlights some techniques whereby
glancing in the mirror may be avoided. But it has surely been not only Germany
where collaborating colleagues “could greet one another with an enigmatic smile,
united in silence about the past”.42 Little of stock-staking about the post-war is
included in these essays, and almost nothing on “enigmatic smiles” on the faces of
former communist apparatchiks.
Not that parallels could not be made. Luca Nogler’s insightful discussion of joint
German and Italian labor law projects in the early 1940’s, for instance, leaves it to
the reader to draw them. It seems clear that Fascist corporatist ideas are not at all
alien to present functionalist and positivist views on economy and society. Also
interesting is the study by Alexander Somek of inter-war Austrian
authoritarianism. The latter actually applies his “Authoritarian Test” to the
institutions of the European Union, concluding that their present functioning
“depends vitally” on the existence of the democratic deficit and thus should be
characterized in the mode of “the authoritarian component of constitutional law” as
it has existed in post-war Europe generally.43 The reality, according to Somer, is
that Member States use the Commission and the Court to exercise authoritarian
rule over their populations in order to create a space of economic freedom that is
“deeply at odds with a functioning democracy”.44 This is an important conclusion
that emerges well-argued from Somer’s brief review. One would have hoped for
more such interventions for the simple sense of reinvigorating a political debate on
what (and on the need for this? there seems little disagreement among the authors)
the European Union should be.
42
Stolleis, supra note 20, 6.
43 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM
OVER EUROPE AND ITS LEGAL TRADITIONS, supra note 2, at 361, 383.
44
Id., 386
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169
D.
One of the paradoxical lessons of these studies is that no single legal doctrine or
method is by itself inherently geared towards Fascism. The meaning of a doctrine
depends on what kinds of claims are made or challenged by it, what institutions are
supported by and what decisions justified by it. The endless debate about whether
"positivism" or "anti-positivism", formalism or anti-formalism was responsible for
the legal profession's turn to supporting Hitler’s rule in Germany or Mussolini’s in
Italy fails to grasp that the meaning of such doctrines can only be situationally
determined. This appears to undermine even the minimal conclusion (by La Torre)
that even as it may be impossible to link Nazism or Fascism with any single
substantive legal doctrine, there is still a common denominator in all Nazi or Fascist
thinking that lies in its "occasionalism" or "decisionism", its inherent bent towards
freeing the decision-maker from the constraint of "rules", a pervasive preference for
the "exceptional" over the "normal". But if it is possible to recognise a position as
"Fascist" only by reference to the context, then this means that anti-fascism, too,
may become dependent on equally occasionalist or "decisionist" premises.
This is suggested also by the numerous studies (not included here) that link types
of authoritarian personality not with the occasionalism or non-conformity and
impulsiveness of political romanticism but to an obsessive following of the
(rational) rules and unhinged deference to formal authority. This, after all, is one of
the key points made in Zygmunt Bauman's dictum about the Holocaust being "a
legitimate offspring in the house of modernity".45 It may be possible to challenge
the controversial portrait of the "banality of evil" drawn by Hannah Arendt through
the person of Adolf Eichmann.46 But the sketch of the Nazi as the one that follows
the order to the hilt, suspending all sense of personal (romantic) decision, is surely
as much suggested by experience as its contrary. As an aesthetic attitude or
psychological disposition, classicism is no less compatible with the gas chambers
than romanticism.
The evil that resided in the inter-war Fascist or Nazi policies cannot be compressed
in doctrines, attitudes, positions or methods. One need not be a conservative
political theorist of the vein of Judith Shklar, to believe that the most pressing of
political problems is cruelty and that cruelty is in fact compatible with many kinds
of doctrine, particularly with utopian doctrine, or may in fact be an offshoot of
45 ZYGMUT BAUMAN, MODERNITY AND THE HOLOCAUST (1989): “The more rational is the organization of
action, the easier it is to cause suffering – and remaining in peace with oneself” (155).
46
HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1984).
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utopianism.47 Mahlmann and Walker come close to Shklar in suggesting a middleor-the-road liberal (“moderate, pragmatic positivism”48, “balancing of the core
values”49) attitude as the only workable antidote. But this suggestion is unhelpful
for at least three reasons. First, I think, such "moderate" minds exist in societies that
are anyway not going down the Nazi way. There is again a petitio principii involved.
Fascist solutions start to seem tempting only when liberal normality has broken
down, when “pragmatism” and balancing” have, for some reason, come to seem
unacceptable and need to be either supported or replaced by something beyond
themselves.
Second, the middle-of-the-road suggestion (as presented in Mahlmann, for
example) misunderstands the indeterminacy thesis as presented by legal realists
and critical lawyers. This is not a semantic thesis about the linguistic vagueness of
norms. Some rules are clearer than other rules. The indeterminacy theses deals with
relationships between rules and exceptions, counter-rules and the reasons for rules, and
shows that even a valid, clear rule may be inapplicable due to the need to apply a
narrow exception or a standard so as to realize the purpose of the rule. Because
rules are no more important than the purposes for which they are enacted, and
because there is disagreement about those purposes (as rules always come about
through legislative compromise over "conflicting considerations"), it is always
possible to set aside a rule. Thus, all law (and not just semantically unclear law) is
infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at
all: even one that initially seems such, is an occasionalist reliance on a momentarily
hegemonic solution.
Third, no totalitarian society can be transformed through "moderate, pragmatic
positivism". Courage and political wisdom are needed, as Stolleis reminds us, but
also risk-taking. In such conditions, “moderation” may often spell passivity, and
even as IT is counseled by a tragic sense of the human possibility it may turn into a
defense of the status quo. The significance of a doctrine - including the doctrine of
moderation - is its use. With this, one arrives at the most pressing, and the most
worrying of the historical lessons. It is this: tomorrow's evil will not be exactly what
yesterday's evil was. On the contrary, the one thing we are entitled to say about it
with some confidence is that a future evil worthy of being struggled against will
not have the familiar face of National Socialism or Fascism. It will not emerge with
Swastikas or fasces. As Tzvetan Todorov's discussion of the legacy of the 20th
See especially Judith Shklar, The Liberalism of Fear, in POLITICAL THOUGHT AND POLITICAL THINKERS, 320 (1998).
47
48
Mahlmann, supra note 27, 239.
49
Walker, supra note 38, 202.
2006]
By Their Acts You Shall Know Them
171
century suggests, it will emerge as the dark side of some novel and widely
supported program to do good in some regard.50 The only certainty we can receive
about this dark side is retrospective. By their acts you shall know them…
Nothing of this constitutes an argument to refrain from politics, or from thinking in
utopian terms, and sometimes engaging in utopian action. On the contrary. Politics
is unavoidable but it is also difficult. Historical experience is an indispensable
aspect of it but is insufficient without more. Even as courage, wisdom and all the
old Weberian virtues that push the "calling" of politics into an "ethics of
responsibility" are necessary, the best argument for democracy may be that it insists
on such calling to be generalized. To seek to replace it by economics, technology or
administration is to be blind to the truth that if the ability to do evil is an aspect of
our shared humanity, so is the urge to do good, whatever risks it may bring.
50
TZVETAN TODOROV, MEMOIRE DE LA MAL, TENTATION DU BIEN. ENQUETE SUR LE SIECLE (2000).
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ARTICLES : SPECIAL ISSUE
The Constitution of Europe: the new Kulturkampf ?
By Martin Loughlin∗
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8**
A.
Deliberation over the proposed constitution of the European Union has rekindled
debate about the nature of the political project underpinning the original treaty
arrangements. The idea of creating a federal “United States of Europe” might today
be spoken only in the softest of tones. Yet, other than in the most trivial sense, talk
about a constitution suggests that the EU is not simply an endeavor of nation states
deploying treaty-making powers but also involves the building of new
relationships between the peoples of Europe and their institutions of government.
Debate over its constitution thus raises the question of whether the EU might be
transformed into a constitutive project of the most basic kind: that of forging a
unitary governmental framework rooted in a common identity of the European
people.
We get some sense of the difficulties this type of question raises once it is
appreciated that discussion of these constitutional issues invites us to look beyond
the structure of modern constitutional documents and reflect on the source of
governmental authority in the contemporary world. Do governments commend
themselves simply by virtue of their achievements in delivering security or
∗
Professor of Public
[email protected]
**
Law,
London
School
of
Economics
Previously published in 29 EUROPEAN LAW REVIEW 557 (2004)
and
Political
Science.
Email:
174
GERMAN LAW JOURNAL
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prosperity or must they be anchored in certain basic values? If the authority of a
constitutional text stems from the fact that it explicates a set of common values,
where are we to find such values? Are they rooted in theology or, if not in a
religious source, then in some customary or traditional ways of acting? Or are we
able to make a more rationalistic claim that the authority of a constitution rests on
the fact that, in some sense, it has been “author-ized” by “a people”? And if we are
inclined to find a solution in popular authorization, are we obliged (in the EU
context) to ask whether there exists such a thing as a European people and, if so, to
identify what values they share?
Although most contributors to the EU constitutional debate suggest that we must
look beyond the principle of governmental effectiveness, there is less consensus
over the source of the authorizing values. Official discourse tends to promote the
conviction that the peoples of Europe are united around the tenets of “liberal
democracy”. There is plenty of evidence to support this belief; after all, adherence
to liberal democracy is a criterion of EU membership, as is demonstrated in the
cases of Spain and Portugal, and more recently with respect to the countries of
central and eastern Europe. But we are also obliged to concede that “liberal
democracy” is a rather general (and, some might say, self-serving) label, and it does
little to acknowledge the significance of various elitist, corporatist and authoritarian
strains in European practices of government.
Official discourses also imply that liberal democratic values are ones that have been
(or can be) embraced through deliberative processes leading to rational agreement.
But some might argue that even if we accept this common core of liberal
democracy, these beliefs are rooted in the European religious traditions of
Christianity. At least since Montesquieu,1 the tension between west and east between Christianity and Islam – has been a central motif of European political
discourse, one that finds its contemporary expression in the status of Turkey’s bid
for accession to the EU. From this “thicker”, cultural perspective, the idea of a
European constitution receives its basic values not so much from some universal
principles of equal respect but from a traditional, religiously derived core of
(exclusionary) substantive values. And from this perspective, constitutional
authority is bolstered not so much by the precepts of universalism but by a form of
historical particularism and, ultimately, by a belief in the superiority of the
European way.
1 The opposition between west and east was also an important theme in ancient Greek writing: see
Anthony Pagden, Europe: Conceptualizing a Continent in THE IDEA OF EUROPE FROM ANTIQUITY TO THE
EUROPEAN UNION, ch.1, (Pagden ed., 2002)
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175
Lurking beneath the surface of the debate over the constitution of Europe, then, lies
a set of contentious issues concerning the question of European identity. The
volume under review, edited by Christian Joerges and Navraj Singh Ghaleigh, can
be read as a challenging contribution to the debate, especially since its objective is
to draw attention to some of the shadier aspects of European governmental
practices during the twentieth century. The preamble to the draft Treaty
establishing a Constitution for Europe informs us that Europe “brought forth
civilization” and “developed the values underlying humanism: equality of persons,
freedom, respect for reason”.2 Perhaps, though there are other stories to be told.
Darker Legacies of Law in Europe, which assesses the influence of National Socialism
and Fascism on the legal traditions of member states, is one of these. Most
provocatively, the study raises the question of whether the structure and values of
the European project owes much to these darker legacies of this “dark continent”.3
In reviewing this volume, my argument will be that this is an interesting and
thought-provoking contribution, but that it is too uneven in its treatment of the
range of issues it raises and ultimately seems misconceived. Suggestive though a
number of the contributions are, the volume itself is too sprawling and diffuse, and
requires a clearer statement of the questions it poses (and the answers it offers) to
be able significantly to advance our understanding of the institutional
arrangements of the EU and the constitutional values that anchor that project. It
would appear that the formulation of the constitutional issues that Darker Legacies
touches on has been significantly influenced by a specifically German debate
known as the Historikerstreit (the quarrel amongst historians), and this has caused it
to skew the issues at stake in the European constitutional debate.
B.
Darker Legacies began life as a conference on perceptions of Europe in legal
scholarship during the Nazi/fascist era, and this conference work was extended to
“explore the continuities and discontinuities in legal thought from the 1920s to the
post-War reconstruction of the constitutional state and the legal design of the
European integration project.”4 The resulting volume contains a number of
instructive contributions on aspects of these totalitarian regimes, including fascist
2 European Convention, Draft Treaty establishing a Constitution for Europe (submitted to President of
the European Council, 18 July 2003), CONV 850/03, Preamble.
3
MARK MAZOWER, DARK CONTINENT: EUROPE’S TWENTIETH CENTURY (1998)
4 Preface to DARKER LEGACIES OF LAW IN EUROPE, x, (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003)
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notions of “honor” (Whitman, Neuman), theories of contract (Monateri and
Somma), aspects of criminal policy and eugenics (Lustgarten), judicial
methodologies (Curran, Mahlmann) and perceptions of Nazi law in contemporary
Anglo-American scholarship (Fraser). My interest in the volume is quite limited: I
intend to examine the contribution it makes to our understanding of the
constitutional thought of Nazism and fascism, and to ask whether this body of
thought offers any insights into the nature of the present integration project.
My starting point can be presented bluntly. Nazism was a rhetorical,
manipulative ideology that preyed on man’s most base instincts and was
motivated by a lust for power. Because of this, Nazism was entirely tactical in its
mode of operation. As a consequence, it was incapable of sustaining a set of
beliefs about its governing framework of sufficient stability and coherence to
justify the designation of a “constitutional theory”. There is nothing in these
essays that causes a revision of these views.
The topic is most directly addressed by Oliver Lepsius, who asks: “was there a
constitutional theory of National Socialism?” There was a unifying impetus – the
bringing together party and state, movement and people, in some indefinable
“blood and soil” idea of Volksgemeinschaft through which racist language often
surfaced. But even this idea was subservient to the Führerprinzip (leader principle),
which meant that the Führer’s orders – even those that were entirely informal - had
primacy over all other sources of law. Lepsius shows how under the Nazis “there
was no longer any constitution, and its ruling order could not be grasped by legal
categories”5, and that constitutional theory lost not only its object (the state in a
traditional sense) but also its categories. He concludes that “there was objectively
no constitutional law or theory” and “no longer any area of law deserving of that
name.”6 Some lawyers, such as Huber, Koellreutter, Eckhardt and Höhn (the last
being dealt with separately in an essay in this volume by Hueck) did attempt the
Oliver Lepsius, The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of
National Socialism?, in DARKER LEGACIES OF LAW IN EUROPE, 19, 28 (Christian Joerges, Navraj Singh
Ghaleigh eds., 2003)
5
6 Id., 30. Neil Walker therefore writes too loosely when referring to “the relentless Nazi emphasis on the
primacy of the political”. See Neil Walker, From Großraum to Condominium, in DARKER LEGACIES OF LAW
IN EUROPE, 193, 199 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003). Since Nazism was unable to
generate a sustainable dynamic between “the people” and their institutions of government, it is better
characterized as a regime marked by the absence of politics rather than the primacy of the political.
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177
exercise, but they were essentially apologists who have left nothing of value to the
stock of juristic knowledge.7
But this assessment does not end the discussion. The fascist governments of Italy,
Spain and Dollfuss’ Austria were not identical to Nazi Germany, and the study of
these regimes may still prove instructive. In a discussion of the legal theories of
fascist Spain, for example, Agustín José Menéndez indicates how such theories
were rooted in notions of organicism and decisionism. He also notes, significantly,
that “the most outstanding members” of the regime’s intelligentsia “were liberal
republicans who adopted fascism at relatively short notice”.8 This suggests an
interesting line of inquiry: a sociological analysis of the way in which eminent law
professors, proclaiming scholarly values but also seeking to keep close to powerwielders, became co-opted by such regimes. Two questions therefore present
themselves. Are there any variants of inter-war fascist regimes whose constitutional
ideas remain of current significance? What, if anything, can we learn from the work
of constitutional scholars who connived with these regimes? I will address each in
turn.
C.
The most interesting fascistic model for our purposes is that of the “authoritarian
constitutionalism” of the Austrian state, 1934-38. Building on Eric Voegelin’s
pioneering 1936 study,9 Alexander Somek presents an account of a regime that
accepted many of the precepts of constitutionalism – the rule of law, protection of
basic rights, and rudimentary elements of a separation of powers - but excluded the
most basic element of constitutional democracy: the election of governments and
their control by popular assemblies.
The 1920 constitution had declared Austria a democratic republic whose laws
issued from the people. The preamble to the 1934 constitution, by contrast,
declared: “In the name of God the Almighty, from whom all laws proceed, the
Austrian people receives this Constitution for its Christian, German federal
See MICHAEL STOLLEIS, A HISTORY OF PUBLIC LAW IN GERMANY 1914-1945, ch.8, Thomas Dunlap trans.
(2004); R.C. VAN CAENEGEM, EUROPEAN LAW IN THE PAST AND THE FUTURE, 103-30 (2002)
7
Agustìn José Menéndez, From Republicanism to Fascist ideology under the Early Franquismo, in DARKER
LEGACIES OF LAW IN EUROPE, 337, 359 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
8
ERIC VOEGELIN, COLLECTED WORKS VOL. 4. THE AUTHORITARIAN STATE: AN ESSAY ON THE PROBLEM OF
THE AUTSTRIAN STATE, Ruth Hein trans. (1999)
9
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corporatist state”.10 In its distinctive authoritarian form, the 1934 arrangements
were presented as offering an alternative to the perceived instability of
parliamentary democracy. Having made the transition from legitimation through
the monarchical principle to that of popular sovereignty, a recurrent concern of
conservative scholars was that, once the unifying principle of “the people” became
divided as a result of the emergence of disciplined political parties, the state would
be unable to maintain its authority. It was therefore only a matter of time before a
ruling party – through lawful means – made the change to a new nonparliamentary constitutional form.11
Although authoritarian, however, the Dollfuss regime, was – because of its
constitutional form – not totalitarian. Fascist regimes do not easily accept any
limitations to the range of their functions, and they do not acknowledge a
distinction between public and private. The fascist state seeks to permeate the
individual will and to discipline the total person. For the Fascist, notes Voegelin,
“everything is within the state; nothing can have value that exists outside it”.12 And
it is through this distinction between the authoritarian and the totalitarian that we
see the relevance of this history for present day purposes.
In a compelling account, Somek argues that the governing arrangements of the
European Union can best be understood as a contemporary form of authoritarian
constitutionalism. Should we not, he asks, talk about an “authoritarian network of
national and European bureaucrats” rather than of “deliberative
supranationalism”?13 And rather than assuming that the “democratic deficit” is a
deficiency that can be remedied as a result of evolutionary change, might it not be
the case that this “deficiency” is a structural aspect of these institutional
arrangements and a condition of its effective operation? The EU institutional form,
10
Cited in VOEGELIN Id., 22
See, e.g. CARL SCHMITT, LEGALITY AND LEGITIMACY (Jeffrey Seitzer trans., 2004). In case this concern
seems foreign to British scholars, it might be pointed out that, as a standard practice, the British
conferred parliamentary constitutions on their former colonies throughout the twentieth century only to
see that within relatively short periods these were invariably transformed into presidential systems, and
often in conjunction with the formation of a one-party state.
11
12 VOEGELIN (supra, note 9), 74. See Mussolini’s famous phrase: “Everything for the state, nothing
outside the state, nothing against the state”, cited in Julius Stone, Theories of Law and Justice of Fascist Italy,
1 MODERN LAW REVIEW 177, 193 (1937)
13 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361, 383 (Christian Joerges/Navraj Singh Ghaleigh eds.,
2003)
2006]
Constitution of Europe
179
Somek suggests, is “the mode in which the authoritarian component of
constitutional law has re-asserted itself in Europe after the Second World War.”14
Within this frame, European government is to be viewed as an elaborate network of
executive arrangements operated by an authoritarian ruling elite of ministers,
commissioners, judges and officials, most of whom have only a tangential
connection with democratic legitimacy. During the post-war era, authoritarianism
thus entered a new phase as national governments, for the purpose of escaping the
grip of democratic responsibility, institutionalized regulatory responsibilities at the
European level and fostered the culture of “national blame avoidance.”15 The
parallels with the Dollfuss regime are instructive,16 and the contemporary Eurorhetoric of “multi-level governance”, “policy networks” and “metaconstitutionalism” does little to mask the essentially authoritarian form of EU
arrangements.
The difficulty for the organizers of this project is that, by focusing on fascism
rather than authoritarianism as a strain in European constitutional thought, their
continuity/ discontinuity theme is overstrained, and this distorts the overall
analysis. I will return to this issue in the concluding section, though I will also
argue that this limitation is replicated with respect to the second question.
D.
The second theme of investigation concerns the continuing influence during the
post-war era of certain constitutional lawyers who were, to varying degrees,
associated with these totalitarian regimes. Does association with fascism taint their
intellectual legacy? In an obvious sense it must. It will certainly cause us to read
their work as a product of their times and in a particular, rather jaundiced light. On
the other hand, if we are altogether incapable of distinguishing the work from the
individual, there seems little hope of advancing knowledge.
This undoubtedly causes difficulties, as is illustrated by the case of Karl August
Eckhardt who became one of the most learned medieval legal historians of the
14
Id., 383
15
Id., 384
16 It might also be noted that the Austrian model garnered some support from PIUS XI’s,
QUADRAGESIMO ANNO encyclical (1931), which not only promoted the idea of the corporative
organization of society but also (80) recommended the principle of subsidiarity.
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twentieth century but who also had served as a Sturmbannführer in the SS.17 We
encounter similar dilemmas in this volume in the cases of Reinhard Höhn and Hans
Peter Ipsen. The former, the subject of an essay by Ingo Hueck, was not only a
prominent academic lawyer during the Nazi regime but also a senior SS officer.
Höhn promoted extreme völkisch (folkish) ideas about the priority of community to
state which, even within the regime, “ran into a phalanx of jurisprudential
opponents”.18 The latter, discussed in Christian Joerges’ essay, wrote his Habilitation
thesis in 1937 on the non-justiciability of certain sovereign acts, including arrest by
the Gestapo. Michael Stolleis has observed that Ipsen “was fully aware of the
political nature of his theses and their direct relevance for the measures of the
Gestapo” and noted that “[o]nly a person who affirmed the new state would
approve of the results of his arguments”.19 Of this “bad book”, Joerges comments:
“I am not aware of any theoretical and methodological standard which would
provide us with a defense of [this] type of thinking”20
Höhn and Ipsen are of interest, however, mainly because of their post-war careers.
Though stripped of his university post, Höhn founded an influential management
school after the war, and in later life (he died in 2000 at the age of 95) was feted as a
management expert. Ipsen remained in his chair, went on to develop his career as a
specialist in European Community law, and eventually retired as the doyen of the
subject in Germany. These are essentially cases of a “reluctance to glance in the
mirror”21, specific illustrations of the politics of memory and forgetting,22 and, in
this context, of little general constitutional significance.
Of greater interest is the analysis of such constitutional scholars as Costantino
Mortati and Carl Schmitt. Massimo La Torre notes that Mortati was a leading critic
of legal formalism and founder of “the concept of the ‘material constitution’, a
See VAN CAENEGEM (supra, note 7), 120-6. He asks, rhetorically: “am I having a hallucination or were
there in fact two different men with the same name?” (121)
17
18
STOLLEIS (supra, note 7), 346.
19
Id., 356.
Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167, 184 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
20
Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence
after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1, 1 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003)
21
22
See, e.g., RUTI G. TEITEL, TRANSITIONAL JUSTICE (2000)
2006]
Constitution of Europe
181
notion that enjoyed a successful career in post-fascist republican Italy.”23 Mortati
conceives the relationship between formal and material constitution “not in
Marxian terms as the dynamics between a superstructure and a structure, but as a
functional relationship driven by the need for a rationalization of power”.24 The
formal constitution, he argues, is necessarily incomplete and needs some
authoritative value to render the constitution coherent. This is supplied by the
values of the “ruling party”. Of Mortati’s conceptualisation of government, La
Torre comments: “The necessity of going beyond the liberal and formal theory of
separation of powers, replacing the liberal technique of separation with a
communitarian art of ruling, points to the emergence of a new fourth power which
is typical of governing, the power by which the various State activities get their
unifying direction and sanctioning needed to be effective”.25
Mortati appears to be offering a positive theory of public law that engages in an
insightful manner with the tension between fact and norm, one which has obvious
analogies to Gramsci’s idea of the new prince. But this La Torre labels a fascist
theory. It is acknowledged that there “are no racist tones” in his work26, and there
is clear recognition of the official, and therefore representative, nature of
governmental roles. In evidence La Torre cites27 the following statement from
Mortati’s work: “The very concentration of a huge quantity of powers in the Head
of Government presupposes that the person invested with that office possess
superior political capacity”. This is an unexceptional statement of, for example, the
position of the prime minister in the British system. For La Torre, however, it
indicates that Mortati “defends a version of the Führerprinzip”.28 This, to say the
least, is unconvincing, and I am reassured by Giacinto della Cananea’s commentary
on La Torre’s essay, which challenges the designation of Mortati’s work as fascist.
La Torre’s treatment of Mortati is symptomatic of a growing intolerance by
normativist thinkers of the functionalist style in public law. Labeling such a theory
23 Massimo La Torre, The German Impact on Fascist Public Law Doctrine – Constantino Mortati’s Material
Constitution, in DARKER LEGACIES OF LAW IN EUROPE, 305, 305 (Christian Joerges/Navraj Singh Ghaleigh
eds., 2003)
24
Id., 313
25
Id., 316
26
Id., 313
27
Id., 319
28
Id., 319
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“fascist” does nothing to advance the cause of scholarly understanding. And such
difficulties are heightened when we come to assess the work of Carl Schmitt.
E.
The contributors do not speak with one voice on the subject of Schmitt. Ghaleigh
asks rhetorically: “Do we have anything to learn from this staggeringly
objectionable man and his patchwork quilt of interventionist, often opportunistic,
writings?” Lest we are in doubt, he immediately offers an answer: “the reader who
looks for consistent thought in Schmitt is doomed to disappointment.”29 La Torre
argues that Schmitt’s attitude cannot be dismissed as “the moral weakness of a
dubious character” but – and here we get closer to the point – he is also a
theoretical failure.30 Unfortunately, La Torre’s explanation - that Schmitt should
ultimately been seen, malgré lui, as a political romantic - is wrapped up in a
generalized assessment of fascism. By contrast, whilst acknowledging that Schmitt
“flirts with fascism”, Somek classifies him as an advocate of “authoritarian
constitutionalism.”31 And Peter Burgess suggests that “[m]ore than any other legal
thinker of the twentieth century, his categories and concepts, queries, incoherencies
and paranoia expose the irreducible problems of late modernity, both in
historiographical and juridical terms.”32
If an attempt to evaluate the work through the man is to be made, Stolleis’
assessment in his magisterial study of the history of German public law surely
cannot be bettered.33 Stolleis notes that Schmitt’s “brilliant writings” were “read by
philosophers, theologians, historians, sociologists, and political scientists”, and
scholars of public law “were certain that they were dealing with an outstanding
mind”. While they “admired his acuity and style”, however, they “were suspicious
of his constitutional deductions”. One problem was that Schmitt “had a tendency to
impart a sharply pointed, one-sided emphasis to his theorems, not only to advance
a particular thought and in a sense test it at its breaking point, but also from the
intellectual’s sheer pleasure at playing with antitheses, pithy-sounding concepts,
Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in DARKER
LEGACIES OF LAW IN EUROPE, 43, 45 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
29
30
La Torre (supra, note 23), 307
31
Somek (supra, note 13), 381-2
J Peter Burgess, Culture and the Rationality of Law from Weimar to Maastricht, in DARKER LEGACIES OF
LAW IN EUROPE, 143, 144 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)
32
33
Stolleis (supra, note 7), 169-173
2006]
Constitution of Europe
183
and polemical formulas.” Schmitt’s line was anti-liberal and anti-parliamentarian,
and when it came to the Weimar crisis he “opted for the Reich president as the
‘guardian of the constitution’.” There is no doubt that prior to 1933 he “was not
aiming for a völkisch Führer-state”. But it was his decision ultimately to throw in his
lot with the Nazis “that pulled him into the maelstrom of later moral
condemnation”. And “his hectic participation in the Nazi state … [was] pursued
with the zeal of the convert who senses deep down that he is doing the wrong thing
but cannot bring himself to stop”.
Schmitt was anti-Semitic, conceited and exhibited a strong attraction to power. His
rejection of bourgeois rights and security thinking and his insistence on existential
opposites had obvious psychological dimensions; Stolleis tactfully comments that
these traits “may have been based on certain phobias and idiosyncrasies” and he
recognizes that behind the political disagreements Schmitt “may have even seen an
eschatological religious battle between a world determined by God and a world
emptied of meaning”.34 For many, Schmitt’s behavior from March 1933 places him
beyond the pale. This period of intense activity on behalf of the Nazi regime “lasted
only until 1936, when he was attacked by the SS, lost his party offices, and even had
his right to administer the Staatsexamen revoked”, and thereafter his life was “while
not comfortable, not exactly dangerous”.35 This does not excuse his actions.36 But
we also cannot avoid the point that Schmitt’s academic work is essentially that of a
Weimar jurist whose penetrating and provocative writing addressed central issues
of law and state in an original manner. Notwithstanding the faults of the man, we
ignore his Weimar writing only at the cost of diminishing the discipline itself.
One of Schmitt’s later ideas that could be of specific relevance to the question of the
status of the EU is that of his Großraum (sphere of influence) concept. First proposed
in a lecture in 1939, Schmitt was, it would appear, attempting to negotiate a middle
ground between universal, natural law inspired conceptions of international law
(which Nazism rejected) and an aggressive, völkisch belief that empires are based on
warfare in which the superior race ruled and imposed “international” law on its
peoples (which could gain no resonance outside Germany). The Großraum concept
was rooted in a conviction that empires rather than sovereign states shaped the
world order. Utilizing this idea, Schmitt argued that western Europe had been
34
Id.,172
35
Id., 264
36 His despicable behavior includes that of chairing of an infamous conference on “Jewry in Legal
Studies” in 1936, which called “for a ‘cleansing’ of minds and libraries” (Id., 257) and the publication of a
paper, “The Führer Protects the Law” (1934), which “gave its blessing to a piece of gangsterism and
ruined the moral reputation of its author” (Id., 335).
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absorbed into the US sphere of influence and, in John McCormick’s words, he
“brilliantly exposes the hypocrisies of the League of Nations and the Monroe
doctrine”.37 Schmitt countered US hegemony with the argument that Germany’s
sphere of influence was expanding in east-central Europe, and that this was
required in order to oppose the Bolshevik threat.
Although Schmitt proposed the development of a German-dominated sphere of
influence, one in which all states would no longer possess an equality of status, as
Joerges notes “he himself remained largely silent as to the internal order of the
Großraum”.38 The Großraum concept was in fact little more than “a toolkit for the
regime”39, as became evident when it was taken up by other Nazis who argued that
German aggression was not a striving for world domination but amounted only to
the consolidation of völkisch land by the incorporation of all racially related peoples
into the Reich.40 Großraum would probably not deserve further consideration but
for the fact that the concept animated the discussions of “an astonishingly large
number” of German jurists of international law in the early 1940s, “among them a
majority of those who were later active in the Federal Republic”.41 And Joerges
argues that Ipsen’s treatment of the EC as a purposive association operating a third
way between state law and international law was not so far removed from the
Großraum concept.42
This analogy can, however, be over-stretched. McCormick suggests that in certain
obvious ways the EU is not a Schmittian Großraum: “It is (1) a Großraum without a
centre, (2) a Großraum with affection towards the West, and without imperial
ambitions in the East, and (3) a Großraum that embraces equanimity among
European peoples”.43 In a formal sense, McCormick is right, though after
enlargement and adoption of a new constitutional form, certain geopolitical
questions of influence will need to be closely investigated. And although Neil
Walker also makes pertinent points in his commentary on Joerges, the Großraum
37 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European
Integration, 1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, 133, 138 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003)
38
Joerges (supra, note 20), 171
39
Id., 177
40
See Stolleis (supra, note 7), 421-2.
41
Id., 421
42
Joerges (supra, note 20), 190-1
43
Mc Cormick (supra, note 37), 140
2006]
Constitution of Europe
185
concept may come to play a greater role than simply that of “a relevant dystopia for
the European Union”.44
Nonetheless, if Schmitt’s ideas remain of interest to contemporary European
debates, it is mainly because of his earlier work. Schmitt’s constitutional theory was
essentially state-centered and, as Ghaleigh notes, his conception of the nation is an
entirely political one and cannot be assimilated to that of the Volk as an ethnic
group.45 At the heart of his constitutional theory lies the distinction between the
constitution as a way of being and the constitution as a text, the positive law which
provides a formal expression of that existential foundation. In its most basic
meaning, “constitution” is the irreducible essence of a thing, and in relation to the
constitution of the State this is “the political unity of a people”.46 In this ontological
sense, the constitution is an expression of the constituent power of a people, with
“people” here standing as the representation of a unified political will. For Schmitt,
this yields the “absolute concept” of a constitution, or a constitution in its
“concrete” mode of existence.47 And this absolute concept is to be contrasted with
the “relative concept”, the rules and regulations of the norm-based constitutional
text – the constitution in its “formal” sense.48
Schmitt’s distinctions are elaborated in Peter Burgess’ essay, which explains that for
Schmitt the unity and order of a political system lies “not in its legal system, nor in
the rules and laws or normative dictates, but in the political being of the State”.49
The state is thus not simply an administrative agency charged with a range of
political and economic tasks. While this “legislative” conception of the state has
assumed an enhanced importance as the range and complexity of its tasks has
extended, “legality” cannot entirely subsume the question of “legitimacy”.50 This
normative order must maintain a relationship with a sense of political unity.
The parallels with Mortati’s distinction between the formal and material
constitution should be evident. But, contrary to the conviction expressed in some of
44
Walker (supra, note 6), 195
45
Ghaleigh (supra, note 29), 51
CARL SCHMITT, VERFASSUNGSLEHRE, ch.1 (1928). I am using the French translation: THEORIE DE LA
CONSTITUTION, 131 (Lilyane Deroche trans., 1993)
46
47
Id., 132.
48
Id., ch.2.
49
Burgess (supra, note 32), 155
50
This is the main theme of CARL SCHMITT, LEGALITY AND LEGITIMACY (supra, note 11)
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these papers, the critical division is not between fascism and liberalism; it is
between normativism and functionalism as styles of public law thought.51 Legality
is, without doubt, today a powerful source of legitimacy. But, as Voegelin
expressed it, “the requirement of ‘legality’ in the sense of behavior having to
conform to the norm establishes a relationship between act and norm that is based
on the tacit understanding that the norm’s legitimacy in turn is founded upon the
ethical order of life in society”.52 And when this tacit understanding is lost sight of
“there develops the formalized faith in legality, empty of any substance”.53 This
faith in legality is the key characteristic of normativist thought. For many, it
amounts to an evasion of the most basic issues of public law, which require some
form of inquiry into the legitimacy of legality, or the constitutionality of the
constitution. That this mode of inquiry – a key characteristic of the functionalist
style – raises methodological and juridical difficulties is evident. But (peculiar
though it may seem to have to state this) there is nothing in this mode of inquiry
that leads inevitably to totalitarianism or fascism. Those who raise this type of
question are seeking to excavate the most basic foundations of constitutional
understanding, and are raising questions that constitutional theory cannot sensibly
avoid. On the contrary, a constitutional doctrine that is unable to offer an
explanation of these foundational matters is at risk of deviating into a form of
“authoritarian constitutionalism”.54
F.
Before considering the implications of this analysis for deliberations over the
constitution of Europe, we might first reflect briefly on a debate that emerged
within West Germany during the late-1980s over the extent to which Germans
might once again turn to history as a source of national identity. After forty years of
evolution of a Federal Republic anchored in liberal democratic constitutional values
and orientated to the west, was it not time to put the experience of Nazism into a
broader historical frame? Were Germans forever to be burdened with the atrocities
of that regime? Must this twelve-year period cast a shadow over the entire modern
history of German achievement? Is not a more positive image of the national past
51
See MARTIN LOUGHLIN, PUBLIC LAW AND POLITICAL THEORY (1992)
52
VOEGELIN (supra, note 9), 216-7.
53
Id., 217
54 On this issue, we might note the similarities between the authoritarian liberalism of Hayek and
Schmitt, which are well drawn in RENATO CRISTI, CARL SCHMITT AND AUTHORITARIAN LIBERALISM ch.7
(1998)
2006]
Constitution of Europe
187
needed to enable today’s Germans to play a more constructive present and future
political role?
Swirling through these debates, which became known the Historikerstreit, were
undercurrents of revisionist history. This revisionism took the form of a challenge
to the idea of the German Sonderweg, the argument that modern Germany had
followed an erroneous path of development, and that Nazism was rooted in deeper
structural continuities. The thesis that the entire trajectory of modern German
development had become distorted by dreams of imperial expansion, by the
perpetuation of authoritarian rule and by the correlatively weakened nature of
parliamentary and democratic forms was thus challenged by the claim that until
1933 there was nothing much distinguishing Germany’s development from that of
the European mainstream. The “crime” of Nazism – the annihilation of the Jews
and other peoples and the waging of aggressive war – was therefore to be seen as a
singular outburst of irrationalism fuelled by the strains of the Depression.
The essence of this debate did not really concern technical issues of historical
interpretation. The stance adopted on history was, as Geoff Eley has noted, tied “to
a larger statement of principle, because taking a position on the origins of Nazism
means simultaneously placing oneself in a present-related discourse about the
bases of legitimacy in contemporary Germany”.55 By focusing on Nazism’s antiSemitism, revisionists sought to shift the discussion onto the plane of prejudice and
persecution, leading to the suggestion that the seizure of control by this bunch of
ideological fanatics resulted not only in the oppression of the Jews but also, in a
sense, of the German people themselves. By presenting the twelve years of Nazism
as an aberration, the revisionists hoped to restore a healthier sense of national
identity.
The revisionist argument thus carried with it a powerful political message,
especially since a nation’s collective identity can shape the character of the
constituent power of a people, which in turn drives constitutional development. In
the words of Hagen Schulze: “A nation can confuse itself with a society aiming at
the highest possible gross national product for only so long … For individuals just
as for peoples, there can be no future without history; and what is not worked
through in the memory will re-emerge as neurosis or hysteria.”56 One difficulty
55 Geoff Eley, Nazism, Politics and the Image of the Past: Thoughts on the West German Historikerstreit, 19861987, 121 PAST AND PRESENT 171, 172 (1988)
56 Cited in ELEY (supra, note 55), 193. Eley also cites the Orwellian language used by Michael Stürmer: “In
a land without history, whoever fills the memory, defines the concepts and interprets the past, wins the
future.” (Id., 194)
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with the revisionist case, however, is the way it has been harnessed to a neoconservative agenda. Echoing Schmitt’s Großraum concept, the neo-conservative
message has been that Germany’s geo-political role has been to maintain stability in
central Europe. Viewed in this light, not only were Nazi Germany’s foreign policy
objectives necessary to counter the Bolshevik threat to Europe,57 but also the “Final
Solution” itself should not be conceived as a singular atrocity; rather, it was an
“Asiatic deed” which the Nazis had learned from the Bolsheviks.58
This revisionism met with a robust response from Jürgen Habermas, who has been
a determined opponent of attempts to return to national themes in German political
life. Having had a liberal democratic constitution imposed by the Allies after the
war, the challenge for the Federal Republic was that of developing a political
culture that could sustain the institutional framework. And this, Habermas argues,
has been the greatest German achievement of the post-war period.59 For Habermas,
there can be no going back. Since Auschwitz, the only German patriotism
compatible with western values is what he calls “constitutional patriotism”, a
collective identity based on respect for the general principles of human rights and
democratic procedures incorporated in the Basic Law.
The strands of this debate are complicated. Geoff Eley has, for example, argued that
a re-evaluation of the case of German exceptionalism does not lead automatically to
conservative revisionism: “revisionism and apologetics in this context are not
automatic couplets”.60 And some on the left in Germany doubt whether democracy
can be strongly anchored by the appeal to universal principles of morality. For our
purposes, however, the Historikerstreit is significant for two main reasons. First, it
helps us to see how, by placing the spotlight on Nazism when examining the
“darker
legacies”
of
national
European
systems,
the
issue
of
continuity/discontinuity is obscured. If the lens had focused more broadly on the
various authoritarian traditions of modern European government (including the
general trajectory of modern German development), and on the extent to which
they rest on a Christian inheritance that has treated “the east” as “the other”, the
sense of continuity of practice within the EU (as a form of reconstructed
See, e.g., Carl Schmitt, The Age of Neutralizations and Depoliticizations, 96 TELOS 130, 130 (1993): “We in
Central Europe live under the eyes of the Russians.”
57
58
See ELEY (supra, note 29), 173
59 Jürgen Habermas, A Kind of Settlement of Damages: the Apologetic Tendencies in German History Writing,
in FOREVER IN THE SHADOW OF HITLER?, 30, 43 (James Knowlton/Truett Cates trans., 1993): “The
unconditional opening of the Federal republic to the political culture of the West is the greatest
achievement of the postwar period.”
60
Eley (supra, note 55), 204
2006]
Constitution of Europe
189
Christendom61) might be more clearly revealed. Secondly, we see how the faith that
Habermas places in the universalistic morality of liberal normativism is bound up
with an explicit political stance that he adopts – for understandable reasons – with
respect to a specifically German debate. But if we are to treat the debates over the
constitution of Europe as an extension of a particular German quarrel over history,
is there not a danger that that debate might itself be skewed? And might not the
focus on the extreme totalitarian case also, in its own way, be a means of avoiding
the critical issues?
G.
Notwithstanding these various limitations, Darker Legacies does have the singular
advantage of offering a range of perspectives on the European legal heritage that
are in danger of being overlooked when we contemplate the future shape of the
European project. The critical issue it poses is whether such politico-cultural
legacies are carried forward into the constitution of the European Union or whether
we are able to overcome national traditions in the forging of this “post-national
constellation”.
On this European question, Habermas has also been an influential participant. He
argues, in effect, that the German case does indeed offer some guidance. Unlike the
Federal Republic, the case of the EU does not involve the imposition of a
constitution by a foreign power, but it is nonetheless unusual. The European
venture has been driven by certain functional requirements of nation-states,62 with
the discussion of constitutional legitimacy following far behind.63 The
“constitutional” project thus presents itself as an unusual “modernist” variant of
the species. Deliberation over constitutional form does not precede the formation of
the entity; rather (to borrow the Bauhaus adage) form follows function. For
Habermas, the functional challenge is presented by the phenomenon of
globalization.64 He argues that globalization not only challenges the supremacy of
the nation-state as a model of governmental organization, but also the dominance
of national cultures as the source of individual identity. In a world of global
61 Compare McCormick (supra, note 37), 140: “Certainly the view of Europe as reconstructed
Christendom had resonance in Adenauer’s and Monnet’s understanding of what animated the post-war
Community”. And see CARL SCHMITT, ROMAN CATHOLICISM AND POLITICAL FORM (G.L. Ulmen trans.,
1996), discussed by McCormick 134-6.
62
See, e.g., ALAN S. MILWARD, THE EUROPEAN RESCUE OF THE NATION STATE (1994)
63
See, e.g., FRITZ W. SCHARPF, GOVERNING IN EUROPE: EFFECTIVE AND DEMOCRATIC? (1999)
64 Habermas, Learning from Catastrophe?, in POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS, 38, esp.
53-57 (Max Pensky trans., 2001)
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economic interdependencies and world-wide communication networks, there can
be no alternative to the adoption of a universalistic value orientation.65 It is
globalization that constitutes the break and which requires a shift away from those
values rooted in particular national historical traditions and towards universal
ideas of justice, democracy and rights.
Habermas’ analysis raises many rudimentary questions. Is the nation state really
being superseded or are these European-level arrangements better understood as
aspects of state strategy? Do we even have the tools to be able to conceptualize
political order without the idea of the state?66 Can a constitutive process be set in
train at the European level without the emergence of the “European people” who
are capable of forming a political unity? And is not the distinction between
particularistic tradition and universalistic reason presented in a highly polarized
form?
When we closely examine Habermas’ answers to these questions, it is noticeable
that his argument becomes more nuanced and less universalist in tone. He accepts
that the nation-state will not easily be transcended and that European governing
arrangements are needed for the cultural purpose of protecting “the European way
of life”. And while criticizing the belief that “a people” is “a community of fate
shaped by a common descent, language and history” he recognizes the need to
locate collective civic identity within a common political culture.67 Once these
modifications are made, it becomes apparent that the debate of the constitution of
Europe can take place on a common plane. For what Habermas must be taken
implicitly to be acknowledging is that the meaning and significance that general
constitutional principles have within the European social imaginary is a product of
particular struggles within actual historical traditions of governing. The debate is
not one of transcendent reason versus embedded culture, but that of the type of
reason that is shared across the political traditions of a group of related historic
communities. While the themes that Darker Legacies brings to the surface cannot be
eliminated from the continuing debate, discerning this shared tradition requires a
much broader-based cultural analysis; after all, from a British perspective, the
dynamic between traditional practices and rationalist forms is played out in very
different ways. There is nonetheless one message that we can draw from the
volume that seems clearly correct, and this is that such constitutional matters will
ultimately be resolved not by principle but (if we are lucky) in accordance with the
precepts of prudence.
65
See Jürgen Habermas, The Limits of Neo-Historicism, in AUTONOMY AND SOLIDARITY, 238 (1992)
66
See JENS BARELSON, THE CRITIQUE OF THE STATE (2001)
67
Jürgen Habermas, Why Europe needs a constitution, 11 NEW LEFT REVIEW 5, 5 (2001)
ARTICLES : SPECIAL ISSUE
But Was it Law?
By Thomas Mertens*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8**
Gustav Radbruch, an already well- known legal philosopher and former SPD
minister of Justice in the Weimar Republic, published an article in 1946 that
cemented his reputation and is now regarded as one of the most important texts in
20th century legal philosophy. Earlier, long before the National Socialists’ rise to
power, Radbruch had already left active politics and, in 1926, returned to the
academic world. He held a position as Professor of Penal Law and Legal
Philosophy at the University of Heidelberg. The Nazis, however, had not forgotten
his ‘left’ commitments and removed him from his post after their assumption of
power in early 1933 on the basis of the notorious Gesetz zur Wiederherstellung des
Berufsbeamtentums. During the years that followed, Radbruch maintained his moral
integrity, refusing to compromise with the regime, and after the war, he was
quickly restored to his former position at Heidelberg. Radbruch saw it as one of his
primary tasks to provide some sense of orientation for a both physically and
morally devastated German society. To this end, he wrote a number of articles, both
scholarly and public, until his untimely death in 1949, of which the 1946 article,
entitled Gesetzliches Unrecht und übergesetzliches Recht1 (Statutory Injustice and
Suprastatutory Law), is one. The now well-known theme of the article is
Radbruch’s ‘conversion’ from legal positivism to natural law and his
*
**
Professor of Legal Philosophy, University of Nijmegen. Email: [email protected].
Previously published in 18 RATIO JURIS 285 (2005).
Gustav Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, 1 SÜDDEUTSCHE JURISTENZEITUNG 105108.
1
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recommendation that the legal profession in Germany should follow him in order
to build, from the ruins of W.W. II, a new, decent society.
Connected with this jurisprudential theme, Radbruch’s article contains a number of
powerful statements, the most famous being that legal positivism and its formalism
led to the moral collapse under the Nazi regime. Positivism was held directly
responsible for the fact that lawyers and judges so easily adapted to the new order,
and therefore to statutory, state legitimized injustice. The principle of ‘law is law’,
predominant in Germany already decades before the Nazi take-over, made any
moral examination of statutes seem superfluous, with abhorrent results. The
absence of any supra-statutory, ‘natural’ criterion was an important contributor to
the aberrations of Nazism. From this general observation, Radbruch ‘deduced’ the
following important corollary, namely, that legal positivism, with its principle of
‘law is law,’ rendered the German legal profession ‘defenceless’ against statutes
that were arbitrary and criminal.
Radbruch’s guidance on ‘hard cases’ of what we would now call ‘transitional
justice’, when statutory law was to be over-ruled by something ‘higher’, is wellknown too: in extreme cases, the unjust statute should give way to the demands of
justice. This requirement is located in his so-called ‘formula’: “Preference is given to
the positive law, … , unless its conflict with justice reaches so intolerable a level that
the statute becomes, in effect, unrichtiges Recht (false law) and must therefore yield
to justice.” This formula of ‘intolerability’ is immediately followed by another one,
namely, that of ‘betrayal’. Here, Radbruch writes: “Where there is not even an
attempt at justice, where equality, the core of justice, is deliberately betrayed in the
issuance of positive law, then the statute is not merely unrichtiges Recht, it lacks
completely the very nature of law”. This formula of betrayal has attracted
considerably less attention than its twin formula, but unfairly so, since it was this
that enabled Radbruch to reach the following conclusion: since the Nazis
intentionally and deliberately denied ‘equality’ as the core element of justice –
Hitler and Nazism clearly suffered from an absence of any sense of truth and justice
– and since equality in the sense of treating equal cases equally is the essential
characteristic of legal certainty, consequently, large parts of national-socialist ‘law’
lack the quality of law. Thus denies Radbruch the legal quality of the provisions
with which the National-Socialist party claimed for itself the totality of the state, the
laws on which the inhuman treatment of certain ‘categories’ of human beings was
based, and the violations of the proportionality principle in sentencing criminals.
All these regulations were for him clear examples of statutory injustice. From his
text, it is less obvious whether he would accept that National Socialist ‘legislation’
was invalid from ‘the very beginning’. A number of his post-war contemporaries,
one of them quoted in his article, defended this position on the basis of the alleged
unconstitutionality of the so-called ‘Emergency Powers Act’ of March 1933, since it
2006]
But Was it Law?
193
was passed without the required two-thirds majority. They argued that ‘Hitler had
forcibly prevented the Communist representatives from participating in the
parliamentary session by having them arrested, in spite of their immunity. The
remaining representatives, namely, those in the political middle, were threatened
by Nazi storm troopers, and thereby compelled to vote for the emergency powers.’
There is, however, little doubt that Radbruch believed that as much as the Nazis
constituted a break with the past, that in 1946 a clear break with the Nazi era was
most needed. Writing with an eye to the future, his many publications were
intended to guide the restoration of justice after ‘twelve years of statutory injustice
and of the denial of legal certainty’.
Darker Legacies in Europe grew out of a conference held at the European University
Institute in Florence in September 2000 and of a seminar series as the follow-up of
that. The project was launched and sustained under the energetic leadership of
Joerges who, with his personal enthusiasm and broad intellectual view, succeeded
in bringing together a group of devoted scholars from a diversity of academic
disciplines and national fora with an overlapping consensus on the importance “to
explore the era of National Socialism and Fascism while Europe [at the same time]
undertakes such efforts to get ahead with its integration project.”2 The quoted
opening sentence of the book summarizes very well the unique character of the
project of which this book is the first result. The aim of the book is not only and
even not primarily to add to our historical knowledge of the era under
consideration. It may very well be that a certain number of the articles in this book
have a mainly historical outlook. But the underlying aim of the project as a whole
was to enhance and broaden our knowledge of the past in order to understand
better who we are and where we stand now, both in our national societies and in
the process of the European integration. The book is thus unique in the perspective
its inquiry takes into European identity, both in its diversity and in its unity. It is
thus entirely appropriate that the book is opened by an excellent prologue by one of
Europe’s leading legal historians in constitutional law, Stolleis, addressing the
unwillingness of the German legal profession, and of society as a whole, to look
itself in the mirror in the period immediately following defeat in 1945 – a reluctance
Radbruch apparently shared. Stolleis suggests that the unwillingness to reflect can
partly be explained sociologically, since small groups tend to make “the coming
generation extremely dependent on patronage” and enforce a “cartel of silence”.3
Preface and Acknowledgements to DARKER LEGACIES OF LAW IN EUROPE (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
2
3 Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence
after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1-19 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
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The epilogue is provided by Weiler, not only a leading theorist in European
constitutional law but also the author of a novel dealing explicitly with the process
described by Stolleis, Der Fall Steinmann.4 Weiler has repeatedly argued that the
unique character of the European post-war integration process lies in the way
Europe tries to define its relation with the other and the others. That is to say, in its
unique way of trying to overcome its ‘dark past,’ not by creating a European superstate, but by constitutional tolerance, and by an ‘open’ community of European
nation states, sharing their sovereign rights without obliterating national identities.
In his effort to understand the ‘darker legacies’ sketched out in the book, he
suggests that the answer should not lie in the reverse of what Nazism and fascism
taught, namely, the deification of national unity and the highest form of
constitutional intolerance, but rather, in “reclaiming” nationalism and patriotism
from its aberrational, intolerant form, within Europe as an genuinely ethical
community.5
The remaining essays in Darker Legacies in Europe can to a large extent be grouped
into the two themes highlighted earlier in relation to Radbruch’s 1946 article.
Firstly, the lawyers and their doctrines both with regard to the Nazi regime and
other fascist regimes in Europe and, secondly, the question of the law, i.e. the role
of legal methodology and the question of continuity or discontinuity between the
‘dark past’ and its temporal and spatial environment. In its detailed, sometimes
somewhat heterogeneous and diffuse treatment of these themes, this book adds
significantly to the disenchantment of the picture that could, and was in fact
deduced from the story told by Radbruch, and others, and willingly believed for a
considerable period of time. The Nazis (and other fascists) were a bunch of
criminals who with deceptive means and by exploiting the economic crisis of the
late twenties took control of German society (and some other societies). They
abused, victimised and seduced important groups in those societies in order to
pursue their criminal purposes. By starting a war, the darkness they brought to
Germany was extended to Europe. Fortunately, the forces of light proved stronger
than those of darkness to the point that gradually, Europe could reclaim its high
moral ground.
Firstly, then, by sketching, sometimes in depth, the lives and works of some major
German lawyers and their commitment to the ‘Movement,’ the book under review
strengthens the message underlining the work of scholars like Rüthers and Müller,
that large parts of the German population and of the legal intelligentsia lacked
4
JHH WEILER, DER FALL STEINMANN (2000).
JHH Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE, 389-403 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
5
2006]
But Was it Law?
195
loyalty to the Weimar Republic, were keen on sustaining the new regime and on
developing the views by which the Nazi policies could be legitimized. Rather then
being ‘defenseless’ victims of the regime they were active supporters. It goes
without saying that Schmitt figures prominently in the book especially in
connection with questions as to whether his concept of ‘Großraum’ (sphere of
influence) is helpful in understanding the present European project. The following
contributors, Galeigh, McCormick, Burgess, Joerges, and Walker answered the
question in the negative.6 The case of other legal intellectuals both in Germany and
further a field are examined too, such as Höhn (Hueck), Mortati (La Torre, Della
Cananea), as well as legal doctrines and political ideologies such as the fascist
theory of contract (Monateri and Somma), labor law (Nogler; in connection with
Nazi practices of ‘honor’ and ‘dignity’, Whitman and in a critical response to him,
Neuman), criminal law (in comparison with ‘liberal’ societies of those days,
Lustgarten), as well as the fascist, Franquist ideology in Spain and the authoritarian
constitutionalist ideology in Austria (Menéndez and Somek).
Secondly, but was it law? Some of the best essays in the book address the issue
raised by Radbruch, that the lack of ‘equality’ in the lawmaking robbed the Nazi
rules from being ‘law’ properly so called. From a jurisprudential perspective, this is
the most interesting part. What would it mean to accept that large parts of Nazi
legislation were not ‘law’? From what external perspective is it then to be
evaluated? For Radbruch, the unequal, later brutal, and genocidal treatment of the
Jews and other minorities cannot be deemed ‘in accordance with the law’
irrespective of whether the lawgiver has issued regulations in that regard. But –
and this touches upon the question of continuity and discontinuity as well as on the
question of the exceptionality of the Nazi regime – were the Nazi policies in the
beginning stages seen at the time by other nations as a radical break, as being at
odds with ordinary legal practices in these other, more ‘civilized’ nations? Fraser
directly addresses this question and argues that whether or not certain state
regulations deserve to be called ‘law’ is to a large extent dependent on how these
regulations are seen from this outsider perspective. The truth is in the eye of the
beholder. He argues that whilst Radbruch’s argument may have been a moral
necessity in 1946 in order to establish a clear-cut break with the past and thus
perhaps the necessary condition for the building of a new society, the
discomforting fact is that “Anglo-American lawyers, in their discussions of Nazi
legality, did not universally reject the German legal system after 1933 as being ‘nonlaw’... the portrayal of the Nazi state as an unlawful, illegitimate, criminal
enterprise, operating outside Western understandings of law was not dominant in
6 Compare John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European
Integration, in DARKER LEGACIES OF LAW IN EUROPE 133, 140 (Christian Joerges/Navraj Singh Ghaleigh
eds., 2003).
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the period between the Nazis’ coming to power in 1933 and the time of entry of the
United States into the war”.7 For example, the infamous 1935 Nuremberg
legislation regarding citizenship sits less uncomfortably within the Western
tradition of ‘equal citizenship’ than is often assumed, particularly where compared
with racial legislation in the United States and in other Western democracies that
was still in force long after the demise of the Nuremberg laws. And similar remarks
can be made with regard to eugenics and compulsory sterilization, seen as
legitimate forms of crime prevention.8
But if Nazi legislation cannot fully be separated from ‘civilized’ law by the fact that
the former does not, whilst the latter does, conform to ‘law’, wherein resides the
specificity of the national socialist law, e.g. its constitutional theory? As the
refutation of the ‘positivist’ answer given by Radbruch has long been generally
accepted (Mahlmann), Lepsius tries to answer this question by reference to the
“dynamic principle in National Socialism. ... The method of conceptualization, not
the substantive definition of the concepts, thus contains the specific feature that
marks out National Socialist law. I would call this method ‘contradictiontranscending concept formation”.9 Lepsius’ assertions are noteworthy, although
less new than perhaps he thinks. The concept unbegrenzte Auslegung (infinite
interpretation) coined in 1968 by Rüthers10 made a similar claim for civil law (as
well as paved the way to a much more historically sound consideration of the role
of law in the Nazi period). It then might seem as if anti-formalism has replaced
Radbruch’s positivist formalism as one of the main culprits in the legal history of
Nazi and fascist atrocities: it was not the uncritical application of the law issued by
a criminal lawgiver but the willingness to mould concepts so as to suit criminal
purposes that did the job, and a return to formalism, not much unlike the one
advocated by Hart’s claim that ‘the law is one thing, morality another’, could be
seen as the hidden moral message. However, the essay by Grosswald Curran, in my
view the best in the book, makes clear that easy methodological answers are not
7 David Fraser, ‘The outsider does not see all the game…’: Perceptions of German Law in Anglo-American Legal
Scholarship, 1933-1940, in DARKER LEGACIES OF LAW IN EUROPE, 87, 89 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
8 Compare also Laurence Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the
Qualities of Difference, in DARKER LEGACIES OF LAW IN EUROPE 113, 125 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
9 Oliver Lepsius, ‘The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of
National Socialism?, in DARKER LEGACIES OF LAW IN EUROPE 19, 35 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
BERND RÜTHERS, DIE UNBEGRENZTE AUSLEGUNG. ZUM WANDEL DER PRIVATRECHTSORDNUNG IM
NATIONALSOZIALISMUS (5th edition 1997).
10
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But Was it Law?
197
available. Formalism and Anti-Formalism in French and German Methodology makes it
abundantly clear that judicial injustice is not dependent on either methodology.
Resulting from her detailed comparison between the substantive, unjust outcome in
occupied France based on formalism and the same unjust outcome in Germany
based on anti-formalism, she concludes that judicial methodological approach
correlated weakly with substantive outcome in France and Germany during the
fascist period.11 In one sense, this is a discomforting conclusion, as the remedy
proposed by Radbruch in 1946 of a switch to a natural law methodology will not
then be sufficient. Yet Grosswald Curran provides an indication of the direction in
which she believes preventive measures for future aberrations of the law must be
sought. Here her views interestingly parallel those advocated by Weiler in response
to today’s European legal issues. Instead of method, the defining mark, she argues,
of the fascist era was ‘unicity’, the value of oneness and the willed erasure of
otherness. This can only effectively be countered by a fierce defense of a culture of a
diversity of methods, cultures, languages and values, in other words by a culture of
‘constitutional tolerance.’ Such culture, however, will only sustain if it is, to use
Cassirer’s words, written in the citizens’ minds.12
11 Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology, in
DARKER LEGACIES OF LAW IN EUROPE 205 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003), 224-226.
12
Id., 208 with reference to ERNST CASSIRER, THE MYTH OF THE STATE (1946).
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ARTICLES : SPECIAL ISSUE
Comparison and History
By Christoph Möllers*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8**
A.
In the years between World War One and World War Two, the already established
forms of democratic government failed in most European states. Their place was
taken by totalitarian or authoritarian systems of right-wing origin. Besides the
Weimar Republic, this concerned, for example, Greece, Austria, Spain, Portugal,
and Poland. Until the time of the German occupation, democracy rarely survived,
examples being in Britain and France, old democratic countries, and in the
Netherlands and in Scandinavia. Not often enough, it seems, does one realize that
there is a common European past of authoritarianism. A “darker legacy”, which is
not restricted to the unequalled national socialist loss of civilization developed
within Germany and was subsequently exported beyond. The volume at hand
takes on this legacy with regards to European traditions of law. It is the result of a
scientific project at the European University Institute in Fiesole/Florence. In the
preface, its editors remark how unusual it is even for EU research funding to have
this combination of research into Europeanization and into totalitarianism. The
volume at hand shows how fruitful this combination can be.
*
**
Professor of Public Law, University of Göttingen. Email: [email protected].
Previously published (in German) in 64 HEIDELBERG JOURNAL OF INTERNATIONAL LAW (ZEITSCHRIFT
(2004).
FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT) 1182
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GERMAN LAW JOURNAL
[Vol. 07 No. 02
The fundamental problem, to formulate the issue of discussion in this volume, will
be illustrated by two differentiations. Firstly, there is the question of to what extent
the dark legacy of the authoritarian epoch should actually be treated as a common
European phenomenon or to what extent the analysis goes into the singular
relevance of German national socialism for this epoch. Secondly, one has to ask to
what extent a common European past, if we assume such a thing to exist, as a
cultural phenomenon does, in fact, relate to the concrete political project of
European integration. In this context, it has to be considered what such a
relationship implies for the present. Joseph Weiler aptly summarizes the problem in
his Epilogue:
“The purpose is noble through and through, though the triple dangers of guilt by
association, of trivializing the truly evil by facile analogy and of inadvertently
becoming an apologist for that for which no apology is needed are not easy to
escape.”
The volume does not opt for either. It opens the field into very different directions.
This is legitimate in order to approach a new object of research. It is not necessarily
unproblematic for readers who want to know to which questions this volume holds
answers. The open field of research is joined – which is more welcome – by open
answers, as some contributions are supplemented by critical commentaries.
B.
Speaking about right-wing totalitarianism means speaking about Germany. First of
all, Michael Stolleis gives us once more a compelling survey of the post-war history
of national socialism in the legal studies of West Germany. An originally national
conservative professional guild became part of national socialism and was then
quite seamlessly integrated into the Federal Republic of Germany. The legal guild
continued what had to be continued. It avoided retrospection and still does so, if
retrospection can be avoided, as many an obituary shows right up to the present
day. Oliver Lepsius develops the idea that this smoothness could also originate
from the constitutional emptiness of German national socialism. He does that by
arguing the thesis that German national socialism had no constitutional theory of
its own. Instead, it systematically de-legalized its own structures of authority in a
de-formalizing manner. This can be juxtaposed from a comparative perspective
with the contribution of Vivian Grosswald Curran. Comparing the legal orders of
Germany and Vichy-France, her study supports the supposition that racist law in
Vichy was different from German law in that it was based on a formalist
understanding of methodology. A similar problem inspires the comparison of
German and Italian contract law in the contribution of Pier Giuseppe Monateri and
2006]
Comparison and History
183
Alessandro Somma. The remarkable analysis of the fundamental differences
between national socialist and fascist labor law by Luca Nogler approaches
Europe’s darker legacy from a comparative perspective as well. Not every
comparison achieves its objectives, however. David Fraser’s analysis of the
scientific reception of German racial laws in Britain and the United States comes to
a noteworthy result: criticism was rare, and curious approval dominated the legal
scientific scene. But can this relativize the differences between the Anglo-Saxon and
the national socialist legal order – or would this be a precipitous equation of legal
science and the legal system? In his contribution, Laurence Lustgarten expresses
critique of the latter kind.
In many cases, only asymmetric comparisons work. For many reasons, German
national socialism – the beast in the zoo of “normal” European fascism – can only
be gripped in particular ways. In particular, if one traces the anti-democratic
traditions of Europe, one has to neglect the special case of Germany from time to
time. Instead, one should direct one’s perspective to the legal orders of Italy, Spain
or Austria before 1938. In this volume, such contributions are among the most
interesting for German readers, particularly, if they are presented as discussions
among researchers. One example of this is the controversy between Giacinto della
Cananea and Massimo La Torre. Their argument concerns the classification of the
Italian constitutional theorist Mortati. This, in turn, is a controversy on the function
of the category of the material constitution for the preparation and enforcement of a
fascist legal order. Another example of such a discussion is the dexterous depiction
of the fascist turn in Spanish constitutional law after the Civil War by Augustin José
Menéndez. The analysis of the end of Austrian democracy by Alexander Somek
also falls into this category.
Writers on the law of national socialism often write about Carl Schmitt. In this
volume, John P. McCormick contributes such an article. This is possibly too much
of an honor, as much research on this topic has already been done. In particular,
Schmitt’s theses on the international law of the Großraum (sphere of influence)
suggest an examination of the European project. But maybe it is not even necessary
to swerve to Schmitt. Having performed such a detour, Ingo J. Hueck correctly
relativizes the significance of Schmitt and focuses on other historical figures.
But is not all of this history? How does it relate to the process of Europeanization?
The most precise attempt at an answer to this question is provided by one of the
editors: in a subtle reconstruction, Christian Joerges links the theory of the national
socialist Großraum with semantics from the days of early European integration:
technocracy, market organization und the prominent role of administration are the
lines that are transported from one order to another, for example, by ordoliberalism or by the tradition of German administrative and European law (Hans
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GERMAN LAW JOURNAL
[Vol. 07 No. 02
Peter Ipsen). This analysis is desirably concrete, but could be continued and further
examined on the institutional policies of the early EEC. According to Somek,
however, it remains questionable as to what extent the authoritarian order of
Austria in the 1930s can be turned to a reference magnitude for the present
European Union. Continuities do not necessarily imply parallels.
C.
The common European past will not quickly wear away, quite to the contrary: the
more forceful the longing for a European identity voices itself and the more it is
institutionalized in the form of constitution-like legal texts, the more inevitable the
search for elements of a common European political tradition will become. In
particular for Germany, this is painful, as Germany has always liked to turn to
Europe in order to turn away from its own past. It is also difficult for countries
upon which no shadow is cast, for example, Great Britain or the Netherlands. But if
European identity is not to be restricted to pure garment-dyeing, the long time
resistance of many European nations with regard to an order of common liberty
cannot be worded away by any kind of preamble. There are also more tangible
reasons which speak for the coverage begun in this contribution, for example, the
clash of European identity policy with European foreign policy. In the event of such
a clash, Europe will have to answer the question of how it is going to deal with the
Turkish genocide of Armenians – or with what right European intellectuals can
begin to give moral lectures to the United States instead of exercising political
criticism. With regard to growing anti-Semitism in Europe, the French philosopher
Alain Finkielkraut states:
“L’Europe démocratique a eu raison du nazisme, mais le nazisme est européen. La
memoire rapelle sa vocation à l’Amérique, et à l’Europe sa fragilité.”1
This statement implies such a link of past and present. The justification of such a
link needs historical examination as well. On our way to Europe, our shadows will
still haunt us for a long time to come. In fact, there is some evidence that they will
have to come much closer in order for us to understand them, and for Europe to
understand itself. The contribution at hand is a milestone on this painful path.
1
ALAIN FINKIELKRAUT, AU NOM DE L’AUTRE, REFLEXIONS SUR L’ANTISEMITISME QUI VIENT 16 (2003).
ARTICLES : SPECIAL ISSUE
The Shadow of Speer and Vichy on European Laws
By Pierre Giuseppe Monateri*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A. **
The subject of the essays collected in Darker Legacies selects from models still used
today in order to legitimate the new supranational European ‘governance’. To date,
publications dealing with European integration have lead us down a tranquil path;
however, a renewed awareness of the past leads one to questions regarding the role
and importance of the most embarrassing periods in European history, particularly
since it is in this period in which we find the first theories on the modern European
political space. Among these, one must begin with Carl Schmitt, who posed the
question of European identity as a “self-consciously different community” on the
geopolitical scene.
Here we find the definition of Europe as Großraum, a large area of influence, and
as Nomos, a territorial sphere capable of giving rise to the proper geopolitical order
to ensure world peace. It is not difficult to note the relevance of these observations,
the context of which is embarrassing, to say the least. While Schmitt’s reconstituted
Christian conception of Europe was taken and built upon by Adenauer, Monnet,
Schuman, and De Gasperi, Schmitt’s references to technology are often used still
today to distinguish the European position vis-à-vis that of other areas around the
world.
*
Professor of Comparative Law, Universities of Turin and Strasbourg. Email: [email protected].
** Previously published in 22 LIBERAL (February-March 2004), www.liberalfondazione.it/. Translated by
David Dorkin. Louisville, KY/Florence
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B.
The authors analyze how various components of fascist law are the same as those
still used in democratic and liberal systems. In particular, fascist contract law, vital
to the market, is identical to its liberal bourgeois equivalent. The aim of Darker
Legacies is, in effect, to go beyond an academic understanding of the past and to
examine the models, which have been employed in the framework used today to
legitimate the new European structures of supranational governance. That is to say,
its aim is to indicate how individual components and ideas may endure dramatic
historical change.
According to Joerges, in the German juridical tradition, there is a clear legacy which
has deep roots in the delicate equilibrium constituted by the Weimar Republic. This
legacy is German Ordo-liberalism: the theory according to which the institutions
have the task of creating a legal and social context in which the economic
conditions which would prevail under natural circumstances are protected: only
the establishment of a complete institutional setting can direct this concrete
economic order towards the ideal order. This is a singular legacy which passes from
Albert Speer’s defense of private property (!), through to the process of integration
of the European “economic community” with much of the phraseology intact. In
the same manner, much of the same “Europeanist” phraseology, from Vichy to the
present, has remained intact. Claude Chabrol’s documentary on Vichy (1993) is
instructive in this regard.
Here we pose a cryptic question: were Nazi politics perhaps the (path)ological
development of ideas that are in fact much more “permanent”? Did Nazism have
the “effrontery” of its convictions which others shared? Darker Legacies goes beyond
the common beliefs that allow bourgeois souls to rest untroubled, having cordoned
off Nazism as a “disagreeable parenthesis.” Instead, one must recognize the past in
order to understand the potential for domination, with no Hollywood ending.
ARTICLES : SPECIAL ISSUE
“In the Glass Darkly”: Legacies of Nazi and Fascist Law
in Europe
By Mayo Moran*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A. Introduction**
The dust jacket of Darker Legacies of Law in Europe reproduces Georg Kolbe's 1945
sculpture “Liberated Man”. The tragic figure provides a fitting opening to this
volume of thought-provoking essays on the legacy of Nazi and Fascist law in
Europe, and perhaps beyond. Kolbe's naked figure bent over in a posture of
profound shame and disgrace transforms the triumphant implications of 'liberation'
into a chilling irony. The essays gathered in Darker Legacies remind us of the
continuing implications of the shadow of disgrace that accompanied the liberation
of Europe from National Socialism and Fascism. However, Kolbe's figure also
bespeaks the specific disgrace of the law in its willing service of brutal and
totalitarian projects. Law, like man, was liberated to face its horrifying
responsibility. Darker Legacies probes the nature of this responsibility, asking
important questions about the meaning and endurance of law's complicity in evil.
The collection is rich in breadth and depth, with scholars from Europe and beyond
tackling topics as diverse as fascist public and private law, the role of the legal
profession and of adjudication in confronting evil law, the link between the
European integration project and fascist re-conceptualizations of international law,
*
**
Dean, University of Toronto. Faculty of Law. Email: [email protected]
The review was previously published in 54 UNIVERSITY OF TORONTO LAW JOURNAL 449 (2004).
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and the complex heritage of modern human rights discourse. The scope of Darker
Legacies is important, for it takes questions that have been primarily directed
towards Nazi law and puts them into a broader European framework. As Joseph
Weiler's epilogue rightly reminds us, this may threaten to elide significant
differences. But with the integration of Europe, it nonetheless seems important to
consider the ways in which the legacy of law during the period of National
Socialism and Fascism continues to cast its shadow across Europe and perhaps
beyond.
One of the contributions of this volume is to draw our attention to the legacy of
fascism in European legal institutions beyond Nazi Germany. A nice illustration is
found in Pier Giuseppe Monateri and Alessandro Somma's discussion of Nazi and
Fascist theories of contract. These theories, the authors note, were united by a
shared antipathy to the liberal political values expressed by traditional contract
theory but divided because of the Roman law heritage of traditional theories of
private law. The two regimes thus shared a commitment to the primacy of the
individual's responsibility to the collectivity, a commitment they theorized and
discussed. The Italians, however, were more reluctant to abandon their Roman
heritage and implement fascist reconstructions of contract. Another helpful
contribution to our understanding of the breadth of the fascist legacy is found in
Luca Nogler's account of how Nazi conceptions of a 'new European order,'
characterized in part by the treatment of labor, played out in Fascist Italy. As
Nogler outlines, in the Italian context the much-discussed Nazi conceptions of labor
and corporatism met with a complex reaction of both reception and resistance, not
unlike the reaction that Monateri and Somma point to in contract law.
The volume also contains a number of pieces that remind us of the extent and
complexity of the European fascist debates about public and constitutional law.
Given Carl Schmitt's prominence as the pre-eminent legal theorist of Nazism, it is
unsurprising that consideration of his work forms a major theme in this volume.
But before discussing what this volume contributes on that point, it is worth noting
that Darker Legacies reveals not only Schmitt's dominance as a theoretician but also
the extent to which consideration of and debate with Schmitt was critical to the
fascist understanding of public law in Italy, Spain, and Austria as well. An example
is found in Massimo La Torre's insightful discussion of Constantino Mortati's
conception of the 'material constitution' and the extent to which he drew on and
was critical of Schmitt's account. In Augustin José Menédez's account of the growth
of fascist ideology in Spain, too, we see the influence of Schmitt, particularly of
Schmitt's interpretation of the early Spanish anti-liberal José Donoso Cortés. The
consequence, Menédez notes, was a powerful political conception of Catholicism.
The role of anti-liberal political Catholicism, also indebted at least in part to
Schmitt, is also stressed in Alexander Somek's account of Austria's development of
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“In the Glass Darkly”
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a conception of authoritarian constitutionalism. Thus we see the extent to which the
discussions of the anti-liberal state and constitution were European ones and were
characterized both by significant continuities (Schmitt and the role of political
Catholicism stand out here) and by significant national diversity. But the authors
also draw our attention to the fact that outside Germany, this legacy has received
little attention. As Menédez puts it, the “forgetful character of the Spanish
transition to democracy” blunted sensitivity to the troubling continuities with the
past.1 By drawing out the nature of the interconnections, then, these pieces do
important work in making visible the more shadowy parts of the dark legacy.
Making visible the unacknowledged parts of one's own shadowy legacy, as the
authors discussed above do, is perhaps the least fraught – though certainly not the
least important – task of this volume. But much of Darker Legacies is taken up with
more charted and more difficult terrain. And this terrain, which focuses on how to
understand the legacy of Nazi law, is not particularly hospitable to the scholar and
interpreter. We tend to assume that the many forms of legal injustice under the
Nazis are relatively well documented. This is, of course, not entirely true, and
several pieces in this volume - including Michael Stolleis' prologue and Ingo
Hueck's piece on Reinhard Höhn - remind us that our knowledge may well be
limited and partial. Indeed, Stolleis notes how the general complicity of the legal
profession under Nazism belies the dominant post-war image of the 'suffering
judiciary' and the profession more generally as a victim, not a perpetrator, of Nazi
horror. And he traces this 'reluctance to glance in the mirror' far beyond the end of
the war years. What is ultimately surprising, for Stolleis, is not the existence of the
“cartel of silence” but the fact that it lasted well into the 1960s.2
But while legalized Nazi injustice has already been well explored and national selfdeceptions unmasked, subsequent writers and scholars find themselves in a more
difficult position. Twin dangers seem to beset those who venture into a detailed
analysis of profoundly evil institutions like many of those represented in this book.
The analysis of the role of law in brutal and fascist regimes yields so automatically
to an unequivocal condemnation that it appears to confine the scholar to a role that
is in some sense too simple. But while it may therefore seem problematic to study
Nazi law simply to confirm its invidiousness, it seems at least as inapt to approach
the task in a more open-minded way. More deeply, these unpalatable extremes
Augustìn José Menéndez, From Republicanism to Fascist Ideology under the Early Franquismo, in DARKER
LEGACIES OF LAW IN EUROPE, 337, 360 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
1
2 Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence
after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1, 16 (CHRISTIAN JOERGES/NAVRAJ
SINGH GHALEIGH EDS., 2003).
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speak to how to understand the relation between us and them. Though the
'prosecutorial' stance does not inevitably imply moral infallibility, the danger of
infusing justifiable condemnation with a sense of our own superiority is one
temptation that that stance holds out. There is no easy response available here,
however, for less judgmental readings, especially those that emphasize the
continuities between ‘us’ and ‘them’, often threaten to collapse crucial differences to
the vanishing point, and this too seems too simple. Many of the materials in this
volume struggle with these questions explicitly or implicitly, and if few are fully
successful, that speaks more to the difficulty of the task than to the deficiencies of
these works.
The inherent difficulty and unease of a project like this is present in almost every
piece that deals with the Nazi legacy. The preface discusses the 'sensitivity' of the
project, and the book ends with Weiler's epilogue, which explores the dangers of an
instrumentalist reading of this history. These dangers are most threatening when
scholars stray away from the straightforwardly condemnatory position. Thus, as
many of the pieces in this collection seriously consider and debate the works of Carl
Schmitt, almost all express some unease or need to justify their attention. Those
writers who seek to trace the relationship between Nazi law and ideology and legal
debates beyond the confines of fascism undertake a yet more delicate task, as we
see in the work of Lawrence Lustgarten and David Fraser. But perhaps the most
challenging question underlying this volume is whether the darker legacy is to be
studied for anything beyond what Neil Walker aptly terms its 'dystopian' value.
For while the negative value of this legacy seems relatively clear, some of the
authors here also ask whether Nazi conceptions now hold any positive value for
our understanding of Europe, legal liberalism, or even - most controversially human rights discourse. Is there something, they wonder, in this deeper (though
certainly also narrower) sense of community that might be rescued to enrich the
apparent 'thinness' of post-liberal conceptions of belonging? Ultimately, while we
may admire the boldness of even voicing this question, there is little in the volume
to persuade the reader that the dark legacy is other than dystopian. This, of course,
is not incompatible with the fact that Nazism and Fascism may well have made
invidious use of ideals in which enduring value may yet be located. The possibility
of resurrecting ideals of demos, even ethnos, and nationalism from the grip of the
fascist imagination thus forms an important theme of this book. Recognizing that
the legacy of law under fascism is profoundly dystopian also reveals how critical it
is that we fully grasp the teaching of these painful lessons and try to understand the
sources and the troubling appeal of Europe's dark years. This collection contributes
in an important way to that elusive task.
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B. Sources and Legacies: Schmitt and Europe, then and now
If one needed testimony to the intellectual dominance of Carl Schmitt in theorizing
the ambitions of the fascist legal order, within and beyond the borders of the state,
Darker Legacies undoubtedly provides it. As noted above, several articles in this
collection reveal the extent to which Schmitt's ideas 'migrated' (in contemporary
constitutional parlance) to fascist Europe more generally, serving as a focal point
for national critiques of liberalism, the state, and the international order. But
unsurprisingly, given that the collection concerns the significance of the dark legacy
for Europe, perhaps its most important theme is found in the exchanges that
consider the sources and meaning of that legacy for the European integration
project in particular. Unified Europe is commonly understood as the definitive
repudiation of Nazis ideals. But this volume queries that characterization, asking to
what extent Europe may in fact be the realization of the Nazi project. Is Schmitt the
architect of Europe, and, if the EU bears his imprint, what is the significance of that
revelation? These and like questions form the core of Darker Legacies.
One issue that preoccupies many commentators is the völkisch (national) question,
or, more broadly, the question of what kind of homogeneity democratic community
demands. As many readers will be aware, one reason for the contemporary salience
of this debate is found in the German Constitutional Court's Brunner decision on
the Treaty on European Union.3 In that controversial decision, the Constitutional
Court held that the European Union was not a federal entity into which the German
Federal Republic could legally be integrated under the terms of the Maastricht
Treaty. In the Court's view, the necessary preconditions for democracy were absent
because no democratic policy could be said to exist. A democratic polity required
an observable demos brought into being by an empirically observable people. For
the Court, the simple amalgamation of European peoples did not create a people
because that would require a relatively homogeneous population.
The Brunner decision has already been the subject of significant criticism, most
notably by Joseph Weiler, who tackles the troubling implications and Schmittian
undertones of the German Constitutional Court's 'no demos' thesis.4 But Weiler's
epilogue to Darker Legacies also insists that, freed of Schmittian associations, ideas of
demos and nationalism or belonging may have some enduring importance in a
post-nationalist Europe. A number of the contributions to this volume take up this
debate.
3
Brunner v. European Union Treaty, 75 COMMON MARKET LAW REVIEW (1994).
4 Joseph Weiler, Does Europe Need a Constitution?: Demos, Telos and the German Maastricht Decision, 1
EUROPEAN LAW JOURNAL 219 (1995).
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One theme concerns whether it is indeed correct to identify Schmitt as the author of
the ethnically based understanding of homogeneity that Weiler and others associate
with Brunner's 'no demos' thesis. Navraj Singh Ghaleigh takes issue with the
attribution of the racist conception of the demos to Schmitt. In fact, Ghaleigh
argues, while there are undoubtedly many reasons to criticize Schmitt, a closer look
at Schmitt's texts suggests that he articulated a more heterogeneous conception of
the demos. This conception of belonging, based on a commitment to a shared future
and shared values and aspirations, may well be read as contributing something to
our understanding of democratic polity.
While Ghaleigh simply points away from Schmitt as the author of the racist
conception of the demos, Ingo Hueck identifies the more likely culprit - Reinhold
Höhn. Höhn was another prominent Nazi jurist and a bitter rival of Schmitt's.
Schmitt was an outsider and a brilliant lawyer and theoretician, while Höhn was an
ambitious career Nazi whose skills were primarily political and rhetorical.
According to Hueck's account, it was Höhn who appropriated Schmitt's idea of
Großraum (sphere of influence) and infused it with a racist interpretation of master
and slave peoples. Yet, ironically, while a disgraced Schmitt returned to his
birthplace after the war and never really re-entered public life, Höhn made an
extremely successful re-entry after a brief absence. He established a management
school that employed former SS colleagues and trained the new country's future
leaders. Hueck notes that when Höhn died in 2000, obituaries in the leading
newspapers praised his managerial career and made no mention of his leading role
as an ideologue for Nazi expulsion and extermination policies.
Other commentators are less concerned with attribution and more concerned with
the continued salience of the Nazi imperialist model for Europe. The most pressing
question for many in this collection is whether the project of integrating Europe is
in some way premised on a conception of belonging that finds its roots in the
imperialist and homogenizing Nazi doctrine of Großraum or sphere of influence,
first articulated by Schmitt and developed by others, including Höhn. The
similarity of the Großraum to the EU is such that it raises special questions about
the roots of the integration project. And, as noted above, the Brunner decision only
heightened concerns that the EU may find its roots in older and troubling
conceptions of belonging. Thus, the commentators here who consider the problem
of how to understand Europe and belonging in light of the Nazi legacy seem to
search for a kind of midpoint between the troublingly homogenizing implications
of the Brunner decision and the spiritual vacuousness of a fully post-nationalist
conception of belonging.
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An example is found in J. Peter Burgess's suggestion that there is indeed a
European ethnos, albeit one that tends to manifest itself negatively in political
conflicts on issues like immigration, religious freedom, minority rights, language
policy, and educational policy. But understanding ethnicity as essentially
constituted through contention and renewal suggests, for Burgess, a reframing of
the contemporary question about Europe. A form of polity, he suggests, may be
located in shared resistance to that homogenizing idea. As Jürgen Habermas
identifies the overcoming of nationalism as the unifying principle and cautionary
tale of the new Europe5, Burgess suggests that the troubling implications of ethnos
can be reframed as the very resistance to homogenization. This, in turn, can form
the basis of a polity that rejects the orthodox understanding of that concept.
But John P. McCormick points out in his contribution that while this approach may
respond to the question of Europe's commonality in distinctively un- (indeed, one
might say anti-) Schmittian terms, it is not similarly responsive to the question of
Europe's specificity. McCormick does find in the EU important traces of Schmitt's
Catholicism and of his technocratic commitments. However, because of its
connections East and West and because of its fundamental commitment to the
equality of member states, the EU is also importantly different from the Schmittian
conception. But even if we can identify a post-nationalist commonality, McCormick
asks, what is it that delineates Europe from the rest of the world? In the absence of
meaningful and democratic structures of governance McCormick, at least, discerns
a worry about the endurance of Nazi conceptions of ethnic superiority and
enforced homogeneity that characterized the earlier Schmittian vision of
integration.
For others, too, the strictly post-nationalist conception of belonging is at best an
incomplete understanding of what constitutes Europe. In his epilogue, Weiler notes
how McCormick rightly points to a nagging question about the commonality and
specificity of Europe. Like Burgess, McCormick, Ghaleigh, and others in this
volume, Weiler discerns in the dark legacy a particularly invidious loss: the loss of
the ability to access and develop conceptions of nationalism and patriotism in
specifically liberal ways. The potential value of nationalism as an expression of
loyalty, responsibility, and social solidarity that simultaneously tolerates and
transcends multicultural diversity is, he argues, simply too valuable to be ceded to
retrograde nationalists like Jean-Marie Le Pen and Jörg Haider.
5 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration,
1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, 133, 141 (CHRISTIAN JOERGES/NAVRAJ SINGH
GHALEIGH EDS., 2003), quoting Jurgen Habermas, THE INCLUSION OF THE OTHER: STUDIES IN POLITICAL
THEORY (C. CRONIN & P. DE GREIFF EDS., 1998); Jurgen Habermas, THE POSTNATIONAL CONSTELLATION:
POLITICAL ESSAYS, (MAX PENSKY ED., 2001).
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But what exactly is the content of this liberal nationalism? For many contributors to
Darker Legacies, it must be more than the simple transcending of nationalism or
ethnicity - it must speak, in a sense, to the heart and not simply the head. Burgess,
for instance, congratulates Weiler on his unwillingness to abandon these old ideals,
though one may well wonder whether Burgess's own reconfiguration of ethnos as a
shared resistance to homogenization does not retain the language but give up the
idea. Perhaps, though, the conception of ethnos that Burgess tries to work with is
simply too resistant to his ambitions. Ghaleigh's effort takes hold at a more abstract
level, asking not about ethnos but about whether there is any form of
homogenization that might rightly be understood to be implicit in any meaningful
concept of belonging. He suggests that a more robust and positive conception of
belonging, which draws on Pettit's idea of commitment to common interest,6 may
actually be an unlikely legacy of Schmitt for Europe. Weiler, too, invokes the
contribution of the 'dark years,' here in the form of the language of destiny and fate,
to express an idea that cuts against the old meaning of such rhetoric. For the
community of fate here is characterized by its commitment to those institutions such as the rule of law, democracy, and human rights - that were built up after the
dark years, largely in response to the legacy of fascism. The extent to which such
conceptions do and, more troublingly perhaps, ought to speak to the heart and
resonate with older conceptions of belonging is, unsurprisingly, still an open
question. But then again, the emergence of an integrated and perhaps
constitutionalized Europe is very much a work in progress, and we might rightly
expect that the same will be the case with liberal nationalism more generally.
The Schmittian heritage of the idea of Europe also provokes other contributions to
this volume. Christian Joerges, for instance, pursues the question of what threads of
continuity might exist between Schmitt and contemporary Europe on the question
of the internal ordering of the Großraum. What Joerges notes here is the paucity of
the internal account of the Großraum. This is hardly surprising, given the nature of
Nazi theory of the state. For, as Oliver Lepsius' discussion of Nazi constitutional
theory suggests, the radical reconfiguration of all of the key structures of the state
in the Nazi political imagination makes it difficult to describe that understanding as
a constitutional theory. This, of course, as both Lepsius and Joerges remind us, is
entirely in keeping with National Socialist ambitions, which envisaged a radical
rupture with both traditional international law and liberal-legal conceptions of the
state. And there were other reasons to resist replacing the traditional internal
structures with new ones.
6
Phillip Pettit, A THEORY OF FREEDOM: FROM THE PSYCHOLOGY TO THE POLITICS OF AGENCY (2001).
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“In the Glass Darkly”
213
Despite the paucity of the theory of the state, Joerges notes, Schmitt's 'gloomy
vision of a "strong state" and a "healthy economy"7 continued to exert its pull on the
post-war understanding of supranationalism, and European supranationalism in
particular. This is evident, for Joerges, in the way that both of the dominant postwar conceptions of supranationalism promised answers to the European
legitimation dilemma that rested on the healthy economy/strong state idea rather
than on national democratic affirmation. And though these strands of ‘continuity
with the pre-democratic’ German heritage are striking, we ought not to take this to
mean that they are also limiting. The most resounding counter to this heritage is
presumably that, in strikingly anti-Schmittian fashion, the growth of Europe has
actually generated the need for a legitimating constitution, albeit one that must
inevitably depart from inherited national alternatives. For Joerges, this task is
squarely in the terrain of political imagination, not history.
Nonetheless, recognizing the Nazi heritage of some of the problems that Joerges
rightly identifies as common to the Großraum and the EU may actually sharpen our
sense about what it is that is at stake in contemporary EU governance debates.
Thus, as Walker argues, though problems such as the management of the economy,
the tension between political choice and technical expertise, and the difficulty of
achieving accountable and transparent administration are not unique to multi-level
polities like the EU, they are certainly exacerbated by such structures. And behind
these problems lies the core difficulty of modern politics: how to reconcile the
“three virtues of economic well-being, social cohesion and political freedom”.8 The
Nazi solution insisted on the primacy of politics, even though, as Walker suggests,
this turned out to undermine the value of politics itself. But the negative lesson is,
as usual, easier to draw than the positive one. So if, as Walker notes, we can be
confident about where the Nazi solution went wrong and can thereby insist on an
equal focus on all the core values, this does not simplify the task of determining
how they ought properly to be balanced in any particular case. And for Walker, as
for Joerges, examining the successes and the failures of history will be important in
determining when and how far the inherited structures of national
constitutionalism will be helpful.
7 Christian Joerges, Europe as Großraum? Shifting Legal Conceptualizations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167, 187 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
Neil Walker, From Großraum to Condominium – A Comment, in DARKER LEGACIES OF LAW IN EUROPE, 193,
200 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
8
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C. Lessons for Europe and Beyond
Given the nature of this collection and its timing, it is unsurprising that the
significance of the dark legacy for the future of European integration is one of the
dominant themes. However, there is also much in the volume that speaks to those
not specifically focused on Europe. The debates about multiculturalism,
nationalism, and belonging discussed above are an obvious point of commonality
between questions that preoccupy Canadian identity and those that currently
preoccupy Europeans. (Indeed, in light of the richness and sophistication of the
Canadian debate on these very issues, it is somewhat surprising to find so little
awareness of it here.) There are also, however, more obvious and more explicit
connections to legacies beyond those of Europe in particular. Some sense of the
breadth of the collection may therefore be conveyed by briefly exploring a few of
these more explicit connections.
One of the dangers of too near a focus on the evil of the dark years, as I noted in the
introduction to this review, is that as it inculpates some, it may also seem to
exculpate others. The very fact of focusing on the darker legacy of law in Europe,
particularly in fascist Europe, may thus seem to convey a troubling message about
whose law has a legacy that must be contended with and whose does not. Though
the epilogue to Darker Legacies decries, and rightly, the dangers of an
instrumentalist use of such a period, the dangers of overlooking parallels where
they are relevant are perhaps no less worrisome. This is particularly so as World
War II allies such as Canada and the United States face increasing scrutiny of their
own legal pasts. The temptation, in such moments, to insist that the burden of
accounting belongs to others may be especially powerful. Indeed, in a recent
decision the Ontario Court of Appeal ruled that there could be no recovery for a
racist head tax levied against Chinese immigrants in the early decades of the
twentieth century.9 The court explicitly denounced the discriminatory and unjust
nature of the law at issue; however, it did not follow the lead of post-war German
cases that refused to give juristic force to evil laws. In response to those arguments,
the court noted that the racist legislation was enacted not by a 'totalitarian
government' but by a democracy.10 The Head Tax law at issue in that case, explicitly
and blatantly racist though it was, was certainly not Decree 11, the infamous Nazi
9
Mack v. Canada A.G. 6 O.R. (3d) 2002, 737 (Ont. C.A.)
10 This invocation of democracy was despite the evidence before the Court of Appeal that the franchise at
the time of the relevant laws was severely restricted on race and gender lines and, in particular,
excluded Chinese-Canadian citizens from the right to vote. Appellant's Factum, Ontario Court of
Appeal, at para. 108-9, citing Minister of Public Works and Government Services Canada, HISTORY OF
THE VOTE,
and Cummingham v. Tomey Homma A.C. 1903, 151 (P.C.), available at
http://www.utoronto.ca/documents/conferences/reparations_mack-appellantsfactum.pdf.
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“In the Glass Darkly”
215
decree that abrogated the citizenship of Jews who had left Germany and
expropriated their property. Nonetheless, there is something rather too quick in the
court's use of the acknowledged evil of other regimes to deflect attention from an
examination of the injustices of our own. After all, it is hardly newsworthy that
even generally just regimes have legal pasts characterized by profound legalized
injustice. What seems rather more unsettling is the idea that 'just' regimes have any
duty to account, to make amends, of the kind commonly assumed to be desirable in
the case of regimes with evil pasts. In light of this asymmetry, it seems particularly
important to ensure that the entirely justified condemnation of some does not
imply the exoneration of others. But the task itself poses difficult questions about
how to understand the connections and disjunctures.
In his contribution to Darker Legacies, Laurence Lustgarten directly considers this
question, suggesting that rather than an alien “them”, those who perpetrate moral
horror might be more illuminatingly thought of as “a distorted image of
ourselves”.11 And if there is a continuum rather than a chasm between them and us,
then that may raise difficult questions about the actual differences between
elements of Nazism and the practices of 'liberal' societies. Because threats to public
safety or order place the greatest strain on the values of liberal democracy, the
treatment of issues like crime, social control, and disorder seems to form the area of
greatest commonality between Nazism and liberalism. A number of his examples,
eugenics in particular, have already been the subject of extensive comment on the
question of their relation to Nazi policies. So what Lustgarten usefully does here is
not so much to draw the examples themselves to our attention, but to trace the
similarity of the justification and the rhetoric involved. Though it is not always
clear that his contemporary analogues can bear the weight his argument puts on
them, the larger value of his piece lies elsewhere. By tracing the common
willingness to abandon fundamental rights and freedoms in the face of vague
reasons of 'public morals' and threats to public security, he points to a worrying
weakness in our commitments to liberalism. This is also the larger point of which
Ghaleigh reminds us in his discussion of the use of emergency powers in a postSeptember 11 world. And the fact that it is all too easy to manipulate our collective
credulity in such moments is a worry that does resonate with Nazi Germany's far
more profound violations of human ideals.
David Fraser's excellent essay on the treatment of Nazi law in contemporaneous
Anglo-American jurisprudence raises similar problems but strikes rather closer to
home. In fact, it can be seen as the Anglo-American counterpart to Stolleis' account
11 Laurence Lustgarten, ‘A Distorted Image of Ourselves’: Nazism, ‘Liberal’ Societies and the Qualities of
Difference, in DARKER LEGACIES OF LAW IN EUROPE, 113, 113 (CHRISTIAN JOERGES, NAVRAJ SINGH
GHALEIGH EDS., 2003).
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of the legal profession in Germany, since both authors reveal how the legal
profession betrayed its own highest ideals. In Fraser's case, this involves examining
how Anglo-American legal scholars understood Nazi law during the period of its
promulgation. Did they see it as 'not law,' as radically discontinuous with what
they took the legal project to be? Though this 'discontinuity thesis' is now an
orthodox reading of Nazi law, Fraser's insightful reconstruction calls its
venerability into question. In fact, the writings of Anglo-American legal scholars at
the time actually tell against the discontinuity thesis by revealing the extent of
continuity between the rules and discourse of post-1933 Germany and that of the
English-speaking world during the same period. Thus Fraser traces how leading
Anglo-American scholars treated issues now thought of as paradigmatic examples
of Nazi corruption of the legal form, such as Nazi citizenship laws, the recourse to
emergency powers, the removal of non-Aryans from the civil service, the process of
exclusion of Jews, eugenics, and criminal law 'reforms.' The most chilling aspect of
Fraser's archival work here is the 'matter-of-factness' of many contemporaneous
Anglo-American accounts of Nazi law. Tellingly, for most Anglo-American
commentators on Nazi law at the time, the question of whether or not it was 'law'
did not even seem to arise; instead, Hitler's regime was largely understood as more
or less normal. Similarly unsettling to the modern reader is the explicit invocation
of a by now familiar form of relativism, the hesitation to judge that which we do
not fully know. Fraser's account rightly reminds us that among its many tasks, the
discontinuity thesis has served to distinguish between those legal traditions that
need to face up to their legal pasts and those that do not. Yet the fact that much
Nazi law was seen, at the time, as simply normal points to the shared nature of at
least some elements of the 'dark legacy.' The extent to which the injustice of the
Nazi regime was invisible because of its similarity to contemporaneous AngloAmerican legal practices and theories that scholars themselves noted reveals a more
general failure of the most scholarly of virtues – self-criticism. Now that the AngloAmerican legal academy has acknowledged the failure of Nazi law to live up to the
legal form, perhaps it is time, as Fraser's argument suggests, to bring that difficult
lesson home and to face the demons of our own past.
As Fraser's piece points out, the complicity of law in regimes like that of National
Socialism in particular raises questions about the self-understanding and meaning
of law itself. It also implicates problems of legal theory that go back at least to the
Hart-Fuller debate and that have become more pressing with the contemporary
wave of constitutionalization and the concomitant increase in judicial review. What
lessons can the existence and adjudication of evil law contribute to the ongoing
debate over the appropriate role of the judge and the implications of that role for
legal theory more generally? Curran and Matthias Mahlmann consider the
implications of the darker legacy for the ongoing debate about
positivism/formalism and anti-formalism. Vivian Curran takes up the question
2006]
“In the Glass Darkly”
217
that was at the heart of the Hart-Fuller debate: To what extent did the positivistic
understanding of the judicial role contribute to the injustice perpetrated through
the Nazi legal system? The orthodox post-war view, Curran notes, holds that
positivism did play a role. But Curran challenges this by contrasting German and
French courts during the fascist period. This contrast is illuminating, Curran
suggests, because the French courts adopted a more formalist stance while the
German courts enjoyed more interpretive freedom. Despite this difference in
judicial methodology, however, Curran argues that the “judicial injustice in the two
countries was comparable”.12 From this she concludes that judicial methodology is
“correlated weakly' with judicial injustice”.13 The real culprit lies elsewhere - it is
found in the fact that the relevant orders were anti-pluralist, permeated by what
Curran calls 'unicity.' Thus, focusing on the seductive power and the danger of a
unifying vision may actually hold more important lessons for the future of Europe,
and its relation to its fascist past, than the question of the relation between judicial
methodology and legal injustice.
Matthias Mahlmann takes up various aspects of Curran's argument. Usefully, he
tackles one version of the normative work done by the condemnation of positivism,
noting the view that that “positivism made German lawyers defenseless against the
onslaught of Nazi law.”14 So one troubling implication of the thesis may be to shift
blame from the judges to their methodology - the legal profession, and perhaps
even the legal system more generally, are, on this view, victims of positivism. But
this is belied, Mahlmann notes, by the judicial activism in cases such as 'mixed
marriages.' In fact, cases such as these suggest that judges were, to some significant
degree, the authors of legal injustice, not its victims. Thus, he concurs with Curran
that ideology, not methodology, is doing the real work here. Yet Mahlmann's own
proposal betrays ambivalence about Curran's thesis on the irrelevance of
methodology. In fact, he suggests that positivism might actually have prevented
some of the early excesses of Nazi law. On his view, then, moderate pragmatic
positivism is desirable for a democracy because it increases the binding power of
legal norms and thus the power of the people to translate majority will into law.
Taking this view back to the example of Nazi law thus suggests, contra Curran, that
methodology does matter. Indeed, the reason that positivism appeals to Mahlmann
is that he believes it would have restrained the judiciary from its own invidious
12 Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology, in
DARKER LEGACIES OF LAW IN EUROPE, 205, 205 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
13 Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology, in
DARKER LEGACIES OF LAW IN EUROPE, 205, 205 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES OF LAW IN
EUROPE, 229, 232 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
14
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'innovations,' which outstripped, for a while at least, even the pronouncements of
the Nazi state. It is worth noting, however, that this point sits a bit oddly with the
traditional debate, which focuses on the position of the just judge faced with the
application of evil law. Mahlmann's point, and perhaps Curran's as well, may
therefore speak more to the question of who populates the judiciary than to the
significance of methodology per se. Where Mahlmann is explicit about his
difference with Curran is on the attachment to pluralism. Thus, he rightly notes the
moral neutrality of pluralism and reminds us that it can provide a suitable basis for
a social and legal order only if it is understood on a “firm universalistic basis, in
modern times in essential parts codified in human rights.”15
D. Beyond Dystopia?
A difficult question that runs through many of the pieces in this collection concerns
the extent to which the dark legacy may be useful beyond its obvious dystopian
value. As we have seen, one version of this question raised here concerns the
continued viability of conceptions of ethnos or demos and robust conceptions of
nationalism. Even here, though, the lessons of the fascist period are primarily
negative, for, to the extent that such ideals are resurrected, the very value of any
such resurrection rests on its divergence from the Nazi conception. But James
Whitman's piece tracing the contemporary idea of dignity back to roots that are
found, in part, in distinctive Nazi initiatives is a more complex rendering of the
lessons of history. Whitman notes that the standard reading is that primacy of
dignity in the post-war legal order was a reaction against the fundamental
violations of dignity that characterized the Nazi era. But he argues that the history
is more complex and that the contemporary conception of dignity in fact owes a
substantial debt to the Nazi period. The history of human dignity is at least in part
a history of 'leveling up' - that is, extending the benefits of elevated social status to
all. Importantly for Whitman's argument, this leveling up also characterized the
Nazi period in a particular way. Thus, he traces how Nazi concepts of honor, once
reserved only for high-status individuals, were gradually extended to low-status
persons. This had significant implications for labor relations, on Whitman's
reading, because the courts of social honor established by the Nazis were often
used by vulnerable workers, such as women and apprentices, and thus “heralded a
real attack on traditional hierarchical norms in the workplace.”16 This attack was
Matthias Mahlmann, Judicial Methodology and Fascist and Nazi Law, in DARKER LEGACIES OF LAW IN
EUROPE, 229, 232 (CHRISTIAN JOERGES/NAVRAJ SINGH GHALEIGH EDS., 2003).
15
James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, in DARKER LEGACIES OF LAW IN
EUROPE 243, 258 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
16
2006]
“In the Glass Darkly”
219
accompanied by more well-known Nazi labor innovations that aimed to elevate the
status of blue-collar workers in particular. For Whitman, this systematic effort on
the part of the Nazis to 'level up' low-status workers to the privileges of high-status
honor is part of the long history of German dignity that began well before the Nazi
era and continued after it. So with respect to certain aspects of dignity, he suggests
that the Nazi era is most plausibly understood as continuous with what preceded
and followed it. In part this is because the promise of dignity – of being better than
someone else – was “thoroughly compatible with the worst horrors of the Nazi
order.”17 Recognizing the Nazi legacy of dignity may also force awareness of the
darker truths of the human psyche, in particular that our sense of value too often
derives from identifying someone of lesser value or status. Whitman does
acknowledge that anti-Nazi conceptions of dignity take hold at the moment when
dignity is extended to those who do not possess the claim to membership on which
Nazi dignity was premised. But what he finds the hardest question is revealing.
The question is not whether Nazi history is consistent with the contemporary drive
of dignity to 'level up' those without social status, for it is. Rather, the underlying
and essentially hierarchical conception of dignity that Whitman's account depends
upon is apparent in the fact that, for him, the hard question is whether “it is really
going to be possible to maintain everybody at the top of the social scale”.18
Gerald Neuman's comment does not explicitly critique this idea that dignity is
premised on exclusion and privilege. But he does strike at its foundation and,
implicitly, also at the idea that Nazi dignity contributed positively to the
contemporary ideal by drawing our attention to the important distinction between
dignity and human dignity. So while the history of dignity may be premised upon
a 'leveling up' of historically differential forms of dignity, the whole premise of
human dignity is that it is “intrinsic to humanity, that it is shared by every
individual human being.”19 And although there may be continuity between these
conceptions, it would be “shocking” to discover “a genuine moral insight that the
Nazis were the first to perceive and act upon, and that has become part of the
modern law of human dignity”.20 More likely sources of human dignity may
instead be found in post-war 'constitutive international acts.' Thus Neuman notes
James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, in DARKER LEGACIES OF LAW IN
EUROPE, 265 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
17
James Q Whitman, On Nazi ‘Honour’ and the New European ‘Dignity’, in DARKER LEGACIES OF LAW IN
EUROPE, 266 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
18
Gerald L. Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in DARKER LEGACIES OF
LAW IN EUROPE, 267, (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
19
Gerald L. Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in DARKER LEGACIES OF
LAW IN EUROPE, 268 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
20
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the prominence of human dignity in the Preamble to the United Nations Charter
and in the Universal Declaration of Human Rights. As he puts it, the positive
contribution of Nazi honor to the international conception of human dignity in
these documents “was nil”.21 Thus, for Neuman, the evidence supports rather than
undermines the thesis that the lessons of the Nazi conception of dignity were
fundamentally negative in character; indeed, the causative links go from the
international community to Germany rather than the other way around. Neuman
also suggests that the evidence concerning the treatment of workers is rather mixed
and that many Nazi 'innovations' actually have more complex roots, often in the
Weimar trade union movement or in international labor goals. Ultimately, Neuman
is skeptical about the view that old conceptions of honor have much to teach us
about the difficult questions of human dignity in modern constitutional regimes.
E. Conclusion
Darker Legacies is an important contribution to a growing field. Ironically, recent
developments both in Europe and beyond have perhaps made facing the
implications of that legacy even more pressing now than it was in decades past. The
most obvious reason for this is found in the constellation of questions concerning
the foundations and implications of European integration. By facing and examining
the range of meanings that the dark years might hold for the future of Europe, this
volume makes important contributions to a debate that is significant for Europe
and beyond. The legacy of the dark years for conceptions of belonging, for the
meaning of a shared destiny, extends far beyond the borders of what was once
fascist Europe and haunts all who seek to articulate a non-coercive conception of
membership. But Europe holds a special place in our imaginations as we embark on
such projects, for Europe is both the site of terrible abuses of human rights in the
name of nationalism and the harbinger of a complex post-nationalist conception of
belonging. As we also see in Darker Legacies the lessons of Europe under fascism
also go further, forcing difficult questions about the depth and tenacity of legalized
injustice even in notionally just regimes. Darker Legacies even goes so far as to ask
whether, paradoxically, there might be any non-dystopian value to be found in
Europe's dark years. It is admirable that this collection even considers that question
and that it takes the possibility seriously, but ultimately - and perhaps
unsurprisingly - it simply does not seem possible to retrieve such a lesson from this
period of brutal inhumanity. But the lessons we can derive, as the collection amply
demonstrates, are nonetheless useful and important, especially now.
Gerald L. Neuman, On Fascist Honour and Human Dignity: A Sceptical Response, in DARKER LEGACIES OF
LAW IN EUROPE, 269 (CHRISTIAN JOERGES/NAVRAJ SINGH GALEIGH EDS., 2003).
21
ARTICLES : SPECIAL ISSUE
Provocation and Springboard
By Julian Rivers*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A.**
This substantial collection of essays (nineteen altogether) arose out of a conference
held at the European University Institute in September 2000 and from a seminar
series in 2001-2002. As the editors acknowledge, the essays cover a “broad range of
interdependent topics” addressing in various ways the nature and impact of
National Socialist and Fascist ideology on law at the time and European legal
traditions since. The essays are nicely bracketed by a prologue by Michael Stolleis
and an epilogue by J.H.H. Weiler.
In his prologue Michael Stolleis sets out in a way particularly helpful to the reader
unfamiliar with the structure of German higher education the conspiracy of silence
and distancing from the recent past, which took place immediately after the Second
World War. What is surprising is the extent of time for which the ‘reluctance to
glance in the mirror’ survived. The explanation, he suggests, lies in the way in
which older generations of scholars are able to co-opt the rising generation into the
maintenance of taboo. Here we catch a glimpse of the implicit networks of
dependency still present in German law faculties. But while the time is now ripe for
reappraisal, Stolleis suggests that the project of “drawing up a comparative history
of twentieth century European jurisprudence” is “dogged by insurmountable
*
**
Senior Lecturer in Law, University of Bristol School of Law. Email: [email protected].
Previously published in PUBLIC LAW 456 (2004).
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difficulties”1. On that rather pessimistic note, the reader is introduced to a book that
tries to do something rather like that. Whatever the difficulties, at the end, J.H.H.
Weiler picks up on the themes of academic silence and the calls for closure to argue
the need to take Europe – and the European Union’s – “dark legacy of Schmitt &
Co.”2 seriously.
B.
Here then was a potential agenda for the entire collection: the engagement with
Carl Schmitt, the question of continuity with the past, the inspiration and nature of
the European Union. Regrettably, however, the essays are simply too varied to
admit of such a coherent focus. Although there is a core fulfilling this agenda,
represented most notably by the matched pair of excellent essays by Christian
Joerges and Neil Walker, other pieces fall at various points on a much broader
historical – jurisprudential – didactic spectrum. Occasional attempts by individual
authors to make the connections with European integration do not always work.
For example, Vivian Grosswald Curran’s otherwise helpful study of comparative
judicial methodology in Nazi Germany and Vichy France is not helped by a brief
final plea for the European Union to reject “unicity” and take value pluralism
seriously.
The attempt to create order and purpose out of the material available therefore
must have presented the editors with a significant challenge, and it is not clear that
the section headings and sequence adopted are entirely successful. Part I
(Continuity and Rupture) could well feature as a subtitle for nearly all the essays;
Part II (The Era of National Socialism and Fascism) leads one to expect a more
purely historical and analytical account of the workings of Nazi law, yet it includes
one of the most powerful critiques of modern trends in criminal justice. It remains a
mystery why Luca Nogler’s piece Corporatist Doctrine and the New European Order
on labor law should fall into Part III (Continuity and Reconfiguration) whereas the
following essays by Massimo La Torre and Giacinto della Cananea on the
constitutional theory of Costantino Mortati should fall into Part IV (Responses to
National Socialism and Fascism in National Legal Cultures). All three are scholarly
Michael Stolleis, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence
after 1933 and post-1945, in DARKER LEGACIES OF LAW IN EUROPE, 1, 17 (Christian Joerges/Navraj
Singh Ghaleigh eds., 2003).
1
2 JHH Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE, 389, 401 (Christian
Joerges/Navraj Singh Ghaleigh eds., 2003).
2006]
Provocation and Springboard
223
accounts of aspects of Italian law in the 1930s, with no attempt to draw conclusions
about continuities with the present or the European Union.
So for the purposes of this review it may help to hive off three groups of essays
(historical, jurisprudential and didactic) which do not fall into the core theme as
identified above.
C.
To start with the historical. As well as the three essays noted above, Pier Giuseppe
Monateri and Alessandro Somma consider The Fascist Theory of Contract tracing the
trends and modifications to contract law, along with differences between Italian
and German approaches. They note the increasing subordination of individual
interest to that of the collectivity, albeit more marked in scholarship than in
practice. In a somewhat disjointed essay, Ingo Hueck sets out the role of Reinhard
Höhn in relation to the development of Großraum (sphere-of-influence) theory.
Towards the end of the collection, Agustín José Menéndez discusses fascist
elements in the legal and political theory of franquismo.
The historical merges into the jurisprudential by way of a general consideration of
the nature of Nazi law. Oliver Lepsius provides a straightforward account of the
collapse of the idea of law under National Socialism under the influence of three
key ideas: the Volksgemeinschaft (national community), the Führerprinzip (leader
principle), and the dynamic principle of the unity of party and State. These ideas
transcended existing conceptualizations, thus undermining any attempt to fix legal
concepts and content. So it is not possible to restate a National Socialist
constitutional theory as if it were one of a legal type. National Socialism was lawdestroying in theory and increasingly so in practice. As mentioned already, Vivian
Grosswald Curran challenges the widespread assumption that the weakness of
Nazi law lay in its method. Radbruch famously argued that it was the formalism
engendered by positivism which made lawyers willing servants of their Nazi
masters; by contrast, recent scholarship tends towards an anti-Radbruch-thesis,
which blames the absence of formalism instead. Curran shows the complexity of
any judgment in this area, tracing different combinations of formalism and antiformalism in both Germany and France. But rather surprisingly the moral she
draws is that method doesn’t matter very much; not that the subordination of
method to ideology is problematic.
A number of essays can be typified as didactic. David Fraser considers the response
of Anglo-American legal scholarship in the 1930s and 1940s to German
developments. He shows that while aspects were considered not ideal, there was
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considerable support for some of Hitler’s racialist and eugenic policies. Certainly
there was no question that Nazi law was ‘not law’; the idea that Hitler’s Germany
was a criminal state is a post-1945 reconstruction. (One cavil here: the fact that an
outsider to a system describes a set of practices as ‘law’ does not foreclose the
possibility that for an insider it is not law.) If David Fraser’s essay is designed to
make us a little uncomfortable, Laurence Lustgarten sets up a powerful and
disturbing critique of modern trends in criminal justice policy. The parallels
between Nazi preventative detention and interpretative development in criminal
law on one hand, and English common law and government policy on the other are
remarkable. Of course, Lustgarten is careful not to overstate his case, and slippery
slope arguments need supplementing ultimately by a discussion of distinctions.
Finally, against the background of German debate about legal method, Matthias
Mahlmann makes a brief, rather programmatic, argument for rational moral
universalism and ‘moderate positivism’ (understood as a method that ties the judge
to the democratic legislature). Questions of labels aside, this is precisely the lesson
that Radbruch himself learned.
D.
This leaves us with 8 essays that do fit rather well into the core theme of European
continuity with Nazism. John P. McCormick sketches in Carl Schmitt’s evolving
vision of European integration through four stages: neo-Christendom (1923), antiRussia (1929), Großraum (1939) and as the origin of a now-threatened order of
international law (1950). He notes some obvious distinctions between these models
and the EU, but also notes that Schmitt’s attempts to identify European
distinctiveness “haunts the study of European integration”.3
This leads naturally on to the debate between Christian Joerges and Neil Walker. In
a very careful and thoughtful piece, Joerges unpicks the possible lines of continuity
between Schmitt’s Großraum theory and the post-war European integration project.
The possibility of continuity is indicated above all by Schmitt’s refusal to reject in
their entirety traditional notions of state sovereignty in favor of an undifferentiated
Reich. The Großraum – particularly as later articulated by Ernst Rudolf Huber – was
a ‘structure of graduated order’ in which Germany had dominance. The internal
structure of the Großraum (in terms of economics, technicity and administration)
was left largely undeveloped by Schmitt, except that in the latter field Hans Peter
3 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration,
1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, 133, 141 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
2006]
Provocation and Springboard
225
Ipsen was able to build on notions of an external administrative competence of the
Reich (in the light of his subsequent leading role in German European law, Ipsen
gets an enormous biographical footnote.) Joerges accepts that the most immediate
German contributions to European integration lie in the ideas of ordo-liberalism
and Forsthoff’s technocratic functionalism. Yet he argues that the conceptualization
of Europe in public law terms enabled a linkage with Schmittian ideas.
Neil Walker affirms Joerges’s project, and in general supports the emphasis he
gives to German contributions to European integration, albeit playing down the
significance of Forsthoff and Ipsen’s functionalism. In particular Walker
characterizes the Großraum as a “relevant dystopia for the European Union”4. Not
simply does it warn against the primacy of the political; it highlights in its tension
with economic and technical rationality (arguably over-dominant in the EU) the
need to preserve a balance of core values of economic well-being, social cohesion
and political freedom in the multi-level governance structures of the European
Union.
If there is a balance to be struck between historical analysis and contemporary
application, between critical engagement and scholarly detachment, then
Alexander Somek’s essay on Authoritarian Constitutionalism: Austrian
Constitutional Doctrine 1933 to 1938 and its legacy is particularly successful. In
trying to understand the regime in Austria after the ‘self-elimination’ of Parliament
in 1934 and annexation in 1938, he creates an ideal-type of authoritarian
constitutionalism. This is replicated at the level of the European Union, and indeed
within its member states as a form of liberalism “deeply at odds with a functioning
democracy”.5 Schmitt was thus right to observe that the de-politicization of the
economy presupposes a very strong state, and Europe’s democratic deficit is no
mere temporary insufficiency. Somek’s conclusion is that we might be better off
conceptualizing European order with this ‘traditional’ term, rather than trying to
find new words to capture supposed European distinctiveness.
Navraj Singh Ghaleigh’s short essay is also keen to draw connections between
Schmitt and the present day, and does so by making essentially two points: Carl
Schmitt defended the use of emergency powers and the notion that political
community must have some sort of cultural basis. It was a little disappointing that
4 Neil Walker, From Großraum to Condominium – A Comment, in DARKER LEGACIES OF LAW IN
EUROPE, 193, 195 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
55 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361, 386 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
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the author did not spend more time identifying what was distinctively problematic
in Schmitt’s conception of these ideas, which are after all both familiar elements of
contemporary legal and political thought.
James Q Whitman and Gerald Neuman take issue with each other over continuities
of a different sort. In what must be one of the most entertaining essays in the
collection, James Whitman argues that that the tradition leading up to the European
concept of ‘dignity’ as a human right was developed in no small part by the Nazi
democratization of prior status-bound notions of ‘honor’. He focuses in particular
on the Ehrengerichte (courts of social honor) of Nazi labor law and their function in
requiring employers to respect the honor of ‘lower class’ employees. As he
recognizes, viewed ‘close up’ Nazi ‘dignity’ was horrendously abusive, but viewed
from a distance it was a stage in pushing the boundaries of aristocratic status
‘downwards’, a process which contemporary jurisprudence continues. In a brief
response Gerald Neuman suggests a range of reasons for not taking the role of
older norms of social honor too seriously in the development of conceptions of
‘dignity’. Touché.
Finally, one must draw attention (if only in the hope of improvements on another
occasion) to the very large number of typographical errors marring the presentation
of this work. Some of these are of the now-familiar type that cannot be picked up
by spell-checkers, only by careful reading. But even a spell-checker could have
made a significant contribution. Furthermore, although the standard of English of
the non-native speaking contributors who had not made use of the translating
services of Iain Fraser is enviable, it is not always idiomatic. A little more gentle
editorial smoothing would not have gone amiss.
Does the book work? As has been indicated, the points at which dialogue seemed
about to take off are not sufficiently sustained to draw the reader in. The variety of
essays is simply too great to build up a coherent thesis. But as a resource, a
springboard for further work, it certainly does. Some of the individual essays are
highly instructive and thought-provoking. Not only does the collection define and
defend an agenda, it also exemplifies a range of methods by which to approach the
task.
ARTICLES : SPECIAL ISSUE
Final Words?
By William E. Scheuerman*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.
A.**
This ambitious volume undertakes a number of distinct tasks. First, it seeks to
provide English-language readers with a general introduction to debates about
Nazi law and its most prominent practitioners. Thus, the book includes a number
of specialized essays on jurists associated with the Nazi past. Navraj Singh
Ghaleigh and John P. McCormick, for example, offer specialized surveys of Carl
Schmitt’s ideas. By no means surprising in light of his enormous influence, Schmitt
makes numerous appearances in other essays as well. In the same mode, Ingo
Hueck provides a useful learned discussion of the Nazi international lawyer –and
nemesis of Schmitt-- Reinhard Hoehn. More generally, Oliver Lepsius outlines core
features of Nazi legal methodology; David Fraser examines the by no means
consistently critical 1930s and 1940s Anglo-American reception of Nazi law;
Michael Stolleis offers an overview of the main issues in recent scholarship on Nazi
law and revisits the familiar theme of postwar German jurisprudential amnesia in
the face of the Nazi past; James Whitman provides a provocative account of Nazi
ideas about “honor” and their ambivalent place in the democratization of
twentieth-century German law and society, while Gerald L. Neuman offers a
thoughtful critical response to Whitman. Many other essays in the volume also
flesh out the sordid details of the “dark legacy” of Nazi and fascist law.
*
**
Professor of Political Science, Indiana University. Email: [email protected].
Forthcoming in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 0 (2006).
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Unfortunately, this facet of the volume makes up its weakest link. Some of the
essays overlap with previously published pieces, and their arguments will be
familiar to students of German law and legal theory. A number of them are simply
unsatisfactory. Ghaleigh, for example, occasionally reproduces many of the overly
apologetic clichés still commonplace in Anglo-American scholarship about Schmitt
without providing sufficient evidence for his assertions. German-language scholars,
I assume, will be surprised to learn that Schmitt’s ideas about Artgleichheit lacked
ethnicist or racist connotations. Ghaleigh relies on the Die Verfassungslehre to make
this claim while fundamentally ignoring Schmitt’s prolific post-1933 Nazi writings.
His tendency to underplay Schmitt’s theoretically systematic and not simply
personally opportunistic enthusiasm for Nazism is counteracted, fortunately, by the
fact that many other essays in the volume pay appropriate attention to his
significant role in debates among far right-wing scholars in the 1930s and 1940s
both in Germany and in other far right-wing dictatorships. In addition, political
theorists will be stunned to find out from Ghaleigh that Schmitt’s ideas about
homogeneity can be reasonably associated with republican political theory a la
Philip Pettit or even Juergen Habermas’ conception of Verfassungspatriotismus
(constitutional patriotism).1 Ghaleigh’s essay fails to make necessary conceptual
distinctions and thus unerringly trivializes the most problematic facets of Schmitt’s
theory. Accordingly, Bruce Ackerman’s interesting democratic and eminently
formalist ideas about the need for constitutionalized emergency power clauses not
only suggest the existence of “parallels” to Schmitt’s ideas, Ghaleigh posits, but also
supposedly underscore Schmitt’s great contemporary relevance.2
Ghaleigh is unfortunately right to see Schmitt as relevant to the post 9/11 political
universe. Liberal democracies everywhere are indeed embracing authoritarian
devices eerily reminiscent of Schmitt’s ideas as part of the so-called “war against
terrorism.” However, he is not relevant to our contemporary situation because
eminently sensible scholars like Ackerman or Habermas echo his ideas; they clearly
do not. Nor is he relevant because his constructive or normative ideas are of much
use.
In his provocative discussion of U.K. law, Laurence Lustgarten probably offers a
sounder starting point for making sense of Schmitt’s contemporary meaning by
forcefully reminding us that present-day liberal democracies contain many deeply
illiberal and authoritarian legal features. As long as we permit such elements to
1 Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in DARKER
LEGACIES OF LAW IN EUROPE, 43, 54 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
2
Id., 48.
2006]
Final Words?
229
remain constitutive elements of our legal orders, Schmitt’s ideas will always
possess a certain resonance. We should probably take this resonance as evidence for
the pressing necessity for political and legal reform, however, and not as proof of
Schmitt’s great theoretical acumen.
A certain amount of historical amnesia also plagues this facet of the volume.
Although some of the pieces occasionally reproduce or at least echo classical
debates about Nazi law, little mention is made of those debates. One finds, for
example, a number of comments reminiscent of issues raised in the fascinating
debate from the early 1940s between Franz Neumann and Ernst Fraenkel, but
neither author makes much of an appearance here. This is both unfortunate and
surprising in a volume which has as one of its main aims the attempt to tackle
historical amnesia.
B.
A second aim of the volume is to place Nazi law in a broader comparative
perspective. From the perspective of this reviewer, this is the most successful
feature of the book. The volume does a fine job comparing and contrasting Nazi
law with legal developments in Vichy France, Fascist Italy, Franco’s Spain, and
1930s Austria. In particular, Vivian Grosswald Curran offers a rigorous
comparative discussion of formalism and anti-formalism in Germany and Vichy
France, provocatively arguing that many traditional jurisprudential positions about
the broader relevance of Nazi law no longer hold water. Pace Radbruch and many
others, it is by no means evident that positivism helped open the floodgates to
fascism. Of course, this is a familiar argument especially to recent scholars of Nazi
law. Yet Curran takes it a step further: she doubts that judicial methodology –
positivist or otherwise—played much of a role in generating subservience to
authoritarianism among jurists in either France or Germany.
Whether one agrees or not with her skepticism about the ultimate practical and
political significance of methodology, this essay provides a superb model for future
investigations. If I am not mistaken, too much scholarship on the nexus between
jurisprudence and authoritarianism still focuses on single national cases, with
scholars typically rushing to make general claims about the complicity (or,
alternately, innocence) of a particular legal method (e.g., positivism). In the social
sciences, this approach would be rightly criticized, but even the most impressive
contemporary legal scholars (think, for example, of David Dyzenhaus’ excellent
work on South African apartheid) continue to pursue it. Curran’s essay –as well as
a number of other pieces here that are consciously comparative (including Mattias
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Mahlmann’s on legal method)—show how we might begin to overcome a
widespread scholarly provincialism in legal studies about dictatorship.
In the same vein, Alexander Somek offers a fascinating discussion of what he calls
“authoritarian constitutionalism” in 1930s Austria, and a number of Italian scholars
offer systematic comparative discussions of Italian fascist law and Nazi German
law (Pier Giuseppe Monateri, Alessandro Somma, and Luca Nogler). The enigmatic
figure of Costantino Mortati – an ethnic Albanian who played a prominent role in
trying to construct an identifiably fascist legal doctrine for Mussolini – is featured
extensively in at least two helpful essays here (by Massimo La Torre and Giacinto
Della Cananea). No less useful is Agustin Jose Menendez’s analysis of legal
doctrine in Franco’s Spain. Here as well, Schmitt makes an appearance: fascist
scholars in Spain were deeply influenced by him, and Schmitt’s attempt to salvage
the ideas of Catholic counterrevolutionaries like Donoso Cortes is described as
composing a vital feature of the legal history of Franco’s Spain.
My only quibble with this second facet of the volume is that the contributors are
not always adequately sensitive to the broader theoretical significance of the issues
they raise. Take again, for example, the longstanding debate about the (alleged)
complicity of positivism or at least formalism in authoritarian government.
Unfortunately, some of the essays here risk getting bogged down in the details of
Nazi or fascist doctrine and ultimately fail to address the broader implications of
their findings.
C.
A third aim of the volume is to underscore the potential relevance of
Nazism and fascism for contemporary European legal thought in general and
present-day debates about the European Union in particular. This is the volume’s
most creative and, unfortunately, incomplete undertaking, despite the fact that it
includes pieces by prominent scholars like J.H. Weiler and Neil Walker. With the
possible exception of J. Peter Burgess, whose idiosyncratic contribution uncritically
reproduces traditional rightist critiques of the Weimar Constitution, the authors
included here are legitimately skeptical of crude attempts to draw direct links
between contemporary European legal trends and mid-century dictatorship. Yet
they simultaneously worry about a certain historical amnesia which might lead us
to ignore possible lessons from earlier historical experiences.
As part of this project, Christian Joerges offers an illuminating summary of Naziera ideas about a greater region or Großraum (sphere of influence), demonstrating
persuasively that some important tendencies within the early European Union can
be traced to ordo-liberalism and technocratic functionalism, both of which had
2006]
Final Words?
231
important roots in German authoritarian traditions. As Joerges notes, a real eyeopener is the career of Hans Peter Ipsen, who began his career as a Nazi jurist
before becoming a highly influential German commentator on European legal
development. Despite the dreary historical story he tells, Joerges resists relying on
it in order to discredit recent European legal trends. For him it simply means that as
Europe seeks to develop a viable legal and constitutional alternative to nation-state
democracy, it cannot “content itself with inherited alternatives.”3
On an even more anxious note, Somek worries that the commonplace view of
European legitimacy as resting “on the idea that certain economic objectives may be
better achieved…by deregulating markets and…by withdrawing re-regulation
from the democratic ballot and entrusting it to the judgment of expert bodies”4
reproduces salient traits of mid-century authoritarianism, and he goes even further
than Joerges in questioning whether we should abandon traditional ideas about
democratic sovereignty in favor of newfangled ideas about “multi-level
governance” or “deliberative comitology”.5 His is a pointed response to scholars of
European law who may be rushing prematurely to discard the traditional
conceptual paraphernalia of political and legal theory in order to make sense of the
special conditions of European law.
Too few scholars of the European Union are sufficiently familiar with mid-century
legal development or authoritarian legal thinking (as Walker openly admits, and
Weiler’s somewhat journalistic and ultimately disappointing contribution tends to
demonstrate), while relatively few scholars of mid-century authoritarian legal
theory and practice pay much attention to the European Union. The attempt to
overcome this gap is, obviously, praiseworthy, even if the volume at hand cannot
claim to have provided the final word on the topic. In any event, much can be
learned from this book, and it is highly recommended to anyone interested in
twentieth-century European legal thought.
3 Christian Joerges, Europe a Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE 167, 191.
4 Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, in DARKER LEGACIES OF LAW IN EUROPE, 361, 385 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
5
Id., 383-388.
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ARTICLES : SPECIAL ISSUE
The Study of the Past as Exercise in Political Theory and
the History of Ideas
By Shannon Ishiyama Smithey*
Darker Legacies of Law in Europe. The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions (Christian Joerges & Navraj Singh
Ghaleigh eds.) (Oxford and Portland/OR: Hart Publishing, 2003). XVI, 416 pp.,
ISBN: 1-84113-310-8; BP 55,--**
High expectations can be a curse. When I read the title of this book, I hoped (and
expected) that it would contribute a great deal to my own research about courts in
regimes transitioning from authoritarianism to democracy. I expected (and
wanted) it to be about the efforts of post-WWII elites to establish legal institutions
and rules in order to avoid repeating the mistakes of the fascist period, or perhaps
to cover the difficulties that modern democratic regimes face in trying to overcome
the “dark legacies” of their past. I was disappointed to find that the book does
none of these things.
Darker Legacies is an edited volume, with most of the chapters having been
presented at a conference on “Perceptions of Europe and Perspectives on a
European Order in Legal Scholarship During the Era of Fascism and National
Socialism,” or as part of a seminar at the European University Institute. As with
many edited volumes, some of the chapters respond to one another fairly directly,
while others seem only tangentially related to a common theme. The majority of
the articles focus on Germany and various aspects of National Socialism, with
additional pieces on fascism in Austria, Italy, France and Spain.
*
**
Assistant Professor, Westminster College, New Wilmington, PA. Email: [email protected]
Originally published in: 15 THE LAW AND POLITICS 764 (August 2005).
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The book is primarily an exercise in political theory and the history of ideas.
Readers will likely encounter new details on fascist politics, and find some topics
more absorbing than others, based on personal taste and interest. Those interested
in the ideas of Carl Schmitt will find much to read as multiple chapters (by Navraj
Ghaleigh, Ingo Hueck, John McCormick, Peter Burgess, and Christian Joerges)
discuss the nuances and implications of Schmitt’s views. Since Schmitt is not one of
my particular interests, I felt like I was entering mid-debate without a good feel for
the arguments or the stakes of the various disagreements. I expect those most
intrigued by Schmitt and fascism to react differently.
Similarly, there are two chapters on Constantin Mortati (a prominent judge and
legal commentator in Mussolini’s Italy), which should appeal most directly to those
who already have a stake in any ongoing debate about Italian fascism. There are
also a couple of chapters comparing similarities and differences between German
and Italian fascism, which might be of use to someone teaching political history or
ideologies. Of more personal interest to me was Oliver Lepsius’ chapter on the
participation of German lawyers in undermining the rule of law and dismantling
the Weimar constitution.
Other chapters should have wider appeal to non-specialists. The best of these, in
my opinion, is Vivian Curran’s chapter Formalism and Anti-formalism in French and
German Judicial Methodology. Fascist judges’ tendency to apply positive law
formalistically, despite manifest injustices, has left judicial positivism with a
negative reputation. But, Curran argues, legal formalism was not to blame for the
actions of fascist judges in Germany and France. Curran documents differences in
French and German judicial “methodology,” and contends that, “we will not be
able to identify the responsible culprit for fascist-era injustice in France or Germany
in the methodological distinctions that separate positivism from anti-positivism, or
formalism from anti-formalism. The driving force behind court decisions in both
Germany and France was political ideology.”1 She blames the lack of pluralism, the
“unicity” of fascist societies, instead of the methods of judicial interpretation
employed. Curran then goes on to argue that “the European Union should develop
from this history a resolve to prevent its constituents from merging into oneness,
even at a sacrifice of some efficiency.”2 I enjoyed the way this argument draws
attention to the limits of institutional design—we can carefully craft statutes and
constitutional provisions, but their efficacy depends on their application by judges
and other policy makers.
Vivian Grosswald Curran, Formalism and Anti-Formalism in French and German Judicial Methodology,
DARKER LEGACIES OF LAW IN EUROPE, 205, 225 (Christian Joerges and Navraj Singh Ghaleigh eds., 2003).
1
2
Id., 226
2006]
Study of the Past
235
I particularly appreciate Curran’s ability to find relevance for current politics and
institutional design in contrast to the rest of the book. As a whole, the book
concentrates on discussing the nuances of an isolated though important historical
period. There are occasional references to modern concerns. For example, Navraj
Ghaleigh compares government claims for emergency powers in the wake of
September 11th to Schmitt’s justification of constitutional dictatorship. Neil Walker
considers whether there is any hint of Nazi Großraum in the current move to
“European supranationalism.” And, Alexander Somek discusses the ways in which
authoritarian constitutional law in Austria “exclude[d] the election of, and control
by, popular assemblies,” creating faint echoes of some of the arguments about
democratic deficits facing EU institutions.”3 These contemporary references,
though, tend not to be the central concern of the authors.
Personally, I find the historical focus frustrating. I would have liked the book to be
more forward looking in its discussion of these issues. I do not think it would have
taken more than a few additional paragraphs per essay to make current
implications explicit. So, while I feel a bit awkward for complaining that they
wrote the book they wanted to write it, I also expect other readers interested in
modern judicial or European politics to have similar complaints.
Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its
Legacy, DARKER LEGACIES OF LAW IN EUROPE, 361, 362 (Christian Joerges and Navraj Singh Ghaleigh
eds., 2003).
3
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ARTICLES : SPECIAL ISSUE
How much of Nazi and Fascist Law survived in the new
Europe?
By Detlev F. Vagts*
Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions. Edited by Christian Joerges and
Navraj Singh Ghaleigh with a prologue by Michael Stolleis and an epilogue by
JHH Weiler. Hart Publishing, 2003. ISBN 1-84113-310-8. BP 55/$ 116.**
Nazism and Fascism undoubtedly left shadows on the German and Italian legal
systems. However, most of the contributions to this volume do more to record the
state of German and Italian thinking before 1945 than they do to evidence links to
the post-1945 Europe. This review will focus on some papers that do strive to show
links. One is particularly glad to have Michael Stolleis' review of the ways in which
successive cohorts of German law teachers have reacted to the Nazi background.
That will be particularly true for readers who cannot make their way through his
more comprehensive and detailed account contained in his large history of German
public law. James Whitman of Yale has written a provocative account of Nazi
concepts of "honor" and its relationship to later European concepts of human
dignity – to which Gerald Neuman of Columbia has written a skeptical response.
Neuman notes that some institutions prevalent in Germany before and after 1945
had their roots in the monarchy or in the Weimar republic and were not Nazi
inventions. The fact that a given idea was once expressed by a Nazi does not mean
that it was wrong; Hitler was ahead of Churchill, Roosevelt and Stalin in
recognizing the evils of nicotine. As one with a background only in German legal
history I found the chapters on Italian and Spanish law during the regimes of
*
**
Bemis Professor of International Law, Harvard Law School. Email: [email protected].
The Review was previously published in 51 AMERICAN JOURNAL OF COMPARATIVE LAW 959 (2003).
238
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[Vol. 07 No. 02
Mussolini and Franco very new and enlightening, but saw little evidence of
survival.
The biggest portion of the book and the most tantalizing is the part devoted to the
question whether the Nazi order casts a shadow on the European Union. Basically
seven of the nineteen chapters deal with this topic and it will be the focus of this
review. Unfortunately none of them really squarely takes a position on this issue.
Thus we have to analyze the question on our own. There are several possible ways
in which that shadow might be generated. First, there is the simple fact that Hitler's
Großraum (sphere of influence) occupied almost all of the geographical space as
does the European Union. But various other orders have covered the same ground.
The Romans were masters of all the original Treaty of Rome countries except a thin
sliver between the Roman wall and the post-1945 division between the Germanies.
Similarly the Holy Roman Empire and later Napoleon covered that territory. But
spatial congruence is not enough; a building can in succession house an imperial
government, a democratic parliament and a foreign viceroy in the same space
without making them continuous.
Second, each of the pan-European systems cast a shadow on future legal systems
but in very different ways and one must ask in each case just what that shadow
was. For example, long after the legions left northern Europe Roman law was
dominant in France and Germany. Napoleon's Code Civil still influences systems
other than the French. Did ideas about the Großraum as found in the works of Carl
Schmitt and Reinhard Höhn have a similar impact on the European Union? Several
of the authors cite THE TAINTED SOURCE: THE UNDEMOCRATIC ORIGINS OF THE
EUROPEAN IDEA, by John Laughland1. He makes the point that leaders of the Nazi
regime thought in terms of a Europe which would have no tariffs or other barriers
to a single economy. One Nazi official wrote of "the European Economic
Community" (with initial capitals) Laughland might have noted that German
thinking in 1914 also ran to advocacy of a continent-wide economic framework.2
Indeed one might refer to the German Zollverein (customs union) which anticipated
the German empire. Laughland moves on to criticize the Union for its lack of
democracy though he does not really trace a link between the Nazi-fascist past and
that characteristic of the Community and the Union. He seems rather to attribute
that quality-now known as the "democratic deficit" – to the influence of economist-
1 JOHN LAUGHLAND, THE TAINTED SOURCE: THE UNDEMOCRATIC ORIGINS OF THE EUROPEAN IDEA 35
(1997).
This argument is developed in NIALL FERGUSON, THE PITY OF WAR 171, 460 (1999), who even suggests
that if Britain had not entered World War I "continental Europe could therefore have been transformed
into something not wholly unlike the European Union we know today" 460.
2
2006]
How Much Survived?
239
technicians. One would have to consider on the other hand how much effort has
been expended in Europe to make sure that no Nazi empire re-emerges. That is,
after all, what the European Convention on the Protection of Human Rights and
Fundamental Freedoms – not an institution Kaiser Wilhelm or Adolf Hitler would
have found appealing – is all about. And the same is true of NATO, which was
supposedly designed to keep the Americans in, the Russians out and the Germans
down. As Joerges remarks “[t]he European unification efforts that started with the
1950 Schuman plan and led to the Treaty of Rome in 1957 meant a very deliberate
overcoming of the racist imperialism of the Nazi regime."3
Third, one can look at the personal carry over. As Joseph Weiler writes in the
epilogue "sociologically, the Dark Legacy is said to have a human genealogy which
extends far beyond the twelve years. Schmitt begat Ipsen and Ipsen begat...etc. right
into the heart of the German European law professoriate."4 Schmitt is of course the
star of the book, the only exciting law professor of the Third Reich and Ipsen was a
law professor and occupation functionary in Belgium under the Nazis who wrote
in 1942 on the German administration of the non-German parts of Europe and later
wrote the first great textbook in German on European law. But Ipsen was not a
"father" of the Treaty of Rome in that he played no role in its drafting. It is said that
a lecture of his may have influenced the judges of the Court of Justice in deciding
the Costa case.5 A reading of that opinion fails to turn up anything particularly
Nazi. It famously asserts that the EEC treaty has created its own legal system but
emphasizes that the states have voluntarily – unlike 1939-45 – limited their
sovereign rights.
Fourth, there is a more generalized emotional level. Weiler remarks that "[I]t is one
of the more pernicious aspects of the Dark Legacy that nationalism and patriotism
have been left to the likes of Haider and Le Pen and the pens at their service."6 Or as
McCormick says, "but Habermas has not answered what might definitively justify
the very demarcation of a European Großraum from the rest of the world, and his
plan for legal-democratic government in the EU is hardly operational at the present
time. Until these questions and problems are addressed, Schmitt's work and career,
Christian Joerges, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project, in
DARKER LEGACIES OF LAW IN EUROPE, 167, 185 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003).
3
4 JHH Weiler, Epilogue, in DARKER LEGACIES OF LAW IN EUROPE, 389, 397 (Christian Joerges/Navraj Singh
Ghaleigh eds., 2003).
5
Joerges, supra note 3, at 183.
6
Weiler, supra note 4, at 401.
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GERMAN LAW JOURNAL
[Vol. 07 No. 02
like a specter, haunts (sic) the study of European integration."7 This raises the issue
whether Europe is at some psychic level a Christian community, with all the
repercussions that has for Jewish and Muslim participation. This is an issue that
only in part is attributable to the world of law as distinguished from the general
racist and nationalist atmosphere generated by the Nazi regime. Hitler, Goebbels
and Streicher have far more responsibility for this than does Schmitt. And it
implicates the curious difficulty Europeans have in generating a European
nationalism or patriotism over and above the traditional clan feelings.
One is left at the end with the impression, as before, that the German generation of
the 1970s succeeded quite well, if belatedly, in cleaning German law and the
German judiciary of traces of Nazism and that there was very little connection
between Nazi ideas of Großraum and the European Community/Union. That is
particularly true if one brushes aside the references to Carl Schmitt that sprinkle the
book as well as a large body of other recent literature. His important ideas were
largely pre-Nazi rather than Hitlerite although he tried opportunistically to take on
a Nazi coloration. With uncharacteristic reserve Joseph Weiler rather apologetically
describes him as a "rascal." I would apply to him the epithet that one nineteenth
century American legislator hurled at another – both brilliant and corrupt he stinks
and shines like a dead mackerel in the moonlight.”8
7 John P McCormick, Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration,
1923-1955, in DARKER LEGACIES OF LAW IN EUROPE, 133, 141 (Christian Joerges/Navraj Singh Ghaleigh
eds., 2003).
8 For further defense of this position see Detlev F. Vagts, Carl Schmitt in Context: Reflections on a
Symposium, 23 CARDOZO LAW REVIEW, 2157 (2002).
ARTICLES : SPECIAL ISSUE
Europe’s Darker Legacies? Notes on ‘Mirror Reflections’,
the ‘Constitution as Fetish’ and Other Such Linkages
between the Past and the Future
By Peer Zumbansen*
Darker Legacies of Law in Europe. The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions (Christian Joerges & Navraj Singh
Ghaleigh eds.) (Oxford and Portland/OR: Hart Publishing, 2003). XVI, 416 pp.,
ISBN: 1-84113-310-8; BP 55,-European Constitutionalism Beyond the State (JHH Weiler & Marlene Wind
eds.) (Cambridge: Cambridge University Press, 2003). VIII, 244 pp., ISBN: 0 521
79671 7 (Pb.); 0521 79225 8 (Hb.); $ 23,--/$ 65,--
A. Introduction**
Darker Legacies and European Consitutionalism will doubtless remain timely reading
for quite a while to come, despite the fact that they were published in 2003—a date
that has only relative valude in the fastmoving world of academic publications.
The contributions to Darker Legacies engage in an sensitive inquiry into the
structural, semantical, conscious, political and – helas! – legal heritage in European
member states and unfold a highly complex history and historiography of Europe’s
past. The nineteen contributions to the volume, framed by a prologue by German
Canada Research Chair in the Transnational and Comparative Law of Corporate Governance, Osgoode
Hall Law School, York University, Toronto, Canada (www.osgoode.yorku.ca/zumbansen). Founding
Director and Editor, CLPE COMPARATIVE RESEARCH IN LAW AND POLITICAL ECONOMY Network,
http://www.comparativeresearch.net; Co-Founder and Co-Editor in Chief: German Law Journal,
http://www.germanlawjournal.com. Email: [email protected].
*
** This review was previously published in 43:3 OSGOODE HALL LAW JOURNAL 321-334 (2005). The author
wishes to thank OHLJ for their permission to reprint this review.
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GERMAN LAW JOURNAL
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Legal Historian and Director of the Max Planck Institute for European Legal
History in Frankfurt, Michael Stolleis, and an epilogue by European and
International Law Scholar and Director of the Jean Monnet Program at New York
University Law School, Joseph Weiler, impressively succeed in making a range of
voices heard in a European discussion that has taken on – for some time now – an
ever-more multifaceted and complex direction. With the EU long arrived on the
daily news and minds, on all levels of policy making and in curricular programs
from High School to University, a book that calls attention to the troubled histories
of member states, their façon de vivre avec ses histoires sombres, their capacity to
identify, remember and grapple with their history, can be expected to make some
noise. The editors themselves point to the skeptical reactions that the volume’s
research project received in its course.1 And still: noisy it was. A follow-up project
swiftly followed suit2, bringing together some of the authors of the first volume,
and altogether deepening the research agenda to the particular links between
historical and contemporary national memory discourses and the ongoing search
for the constitutional foundations of the EU.3
The eight chapters in European Constitutionalism, the other volume under review
here, are co-edited and introduced by Marlene Wind, a professor of European
Integration in the Political Science Department at the University of Copenhagen,
and by Joseph Weiler, both of whom have also authored an article in the volume.
European Constitutionalism, as I will argue in the following, should be seen as a very
insightful book to read together with Darker Legacies. Both volumes address the
challenges to contemporary political imagination, stemming from the EU’s complex
nature, its historical Post-War legacy, coupled with its functionalist heritage and its
own no less than striking constitutional history. Both books, read together, allow us
to recognize the necessity of imagining the “past future” of a project such as that of
the EU.4 In order to understand a present that continues to unfold upon the ruins
Navraj Singh Ghaleigh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in: DARKER
LEGACIES OF LAW IN EUROPE, 43 (Joerges/Ghaleigh eds., 2003), this theme is also picked up by Martti
Koskenniemi (in this volume of the German Law Journal).
1
2 See GERMAN LAW JOURNAL, Special Issue: Confronting Memories: European ‘Bitter Experiences’ and the
Constitutionalization Process (1 February 2005) (Guest Editors: Christian Joerges and Paul Blokker, with
Chris Engert), available at: www.germanlawjournal.com.
3 See Bo Stråth, Fabrice Larat, Matthias Mahlmann, Mattias Kumm, Alexander Somek, Stefan Seidendorf
and Vivian Grosswald Curran, in 6 GERMAN LAW JOURNAL 2 (1 February 2005), available at
www.germanlawjournal.com.
For an exposition of the concept of the ‘past future’, see Reinhart Koselleck, Vergangene Zukunft der
frühen Neuzeit, in: KOSELLECK, VERGANGENE ZUKUNFT. ZUR SEMANTIK GESCHICHTLICHER ZEITEN 17 (1979)
[previously published in EPIRRHOSIS. FESTGABE FÜR CARL SCHMITT 549 (Hans Barion/Ernst-Wolfgang
Böckenförde/Ernst Forsthoff/Werner Weber eds., 1968, vol. 2). For an illustration of this concept in the
context of Public International Law, see Peer Zumbansen, The Past Future of International Law, in
4
2006]
Notes on ‘Mirror Reflections’…
243
and the wasteland of a past put to rest, for the description and utopia of which we
are always employing concepts borrowed from other times and other places, it
should make perfect sense to bring together the only at first sight exclusively
retrospect explorations of Darker Legacies with the future looking constitutional
inquiries in European Constitutionalism.
European Constitutionalism is an important contribution not only to today’s internal
European discussion over the adequate pathways to constitutionalizing the
European integration process into the twenty-first century, but also to the
contemporary transnational inquiry into the legitimacy of political and legal order
in the “postnational constellation.”5 The contributors approach the evolution and
the making of constitutions from historical, doctrinal, and structural perspectives,
but the overriding theme in their assessments of European constitutionalism is,
when speaking of its form, its fundamentally procedural and incremental character,
and, when speaking of its substance, its transnational nature. The EU’s hybrid
nature with the dramatical weight of decisions taken in Brussels, Strasbourg and
Luxembourg6 demands constitutional assessment. It is this challenge that is aptly
taken up by the authors in European Constitutionalism. Both volumes, as much as
they might appear to be written against different time horizons−the one directed
towards the past, the other towards the future−are in fact complementary. Both
books underscore the contemporary challenge of legitimate governance in a
dramatically changing political, legal, and economic environment.
B. The Privatrechtsgesellschaft – A Legacy for the EU?
It soon becomes apparent how investigations into Europe’s past and future might
teach us more than just something about Europe. Both the scope of their theoretical
exploration and the range of materials relied upon by the authors in both volumes
only emphasizes the open-naturedness of contemporary constitutional inquiries.7
PROGRESS IN INTERNATIONAL ORGANIZATION (Russell Miller/Rebecca Bratspies, eds., 2006, forthcoming)
[previously published as Die vergangene Zukunft des Völkerrechts, 34 KRITISCHE JUSTIZ 46 (2001)].
5 Jürgen Habermas, THE POST-NATIONAL CONSTELLATION AND THE FUTURE OF DEMOCRACY (Max Pensky,
Transl. and ed. , 2001).
6 See Renaud Dehousse, Beyond representative democracy: constitutionalism in a polycentric polity, in:
EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 135, 143 (Weiler/Wind eds., 2003); see also the astute
observations by Karl-Heinz Ladeur, in Id., The Europeanisation of Administrative Law 1, 13 (2002).
See Neil Walker, Postnational constitutionalism and the problem of translation, in: EUROPEAN
CONSTITUTIONALISM BEYOND THE STATE 27 (Weiler/Wind eds., 2003); Navraj Singh Ghaleigh, Looking into
the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in: DARKER LEGACIES OF LAW IN EUROPE 43
7
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As such, Europe offers itself as a laboratory of postnational democracy while it is
burdened with the danger of experimenting with many untested materials. The
answer to this conundrum lies in broadening the picture.8 The strength of both
volumes follows from the quality of analysis presented by the authors and,
inseparably, the farsightedness of the editors in convening and encouraging them
in the undertaking. Joerges and Ghaleigh brought together authors from Austria,
Germany, Great Britain, Italy, Norway, and the United States and asked them to
explore the historical debts that arguably underly and influence the European
integration project.
It is not only the prominent role that Carl Schmitt, a German constitutional and
administrative law scholar, played in the ubiquitous struggle to understand the
nature of law and government in the Third Reich that, ties many of the
contributions of Darker Legacies together. Schmitt continues to ignite and inspire
contemporary journeys into law’s fragile foundations9 because the abyss into which
the rule of law and its weak defenders had been sucked in the Third Reich still
haunts our legal workings today. Whether or not Nazi law was “law”10, whether or
not the Nazi state amounted to the “total state”11 or, rather, ought to be depicted as
a complexly intertwined network of corporatist public-private governance12,
(Joerges/Ghaleigh eds.,2003); Vivian Grosswald Curran, Formalism and Anti-Formalism in French and
German Judicial Methodology, Id., 205.
8 See Neil Walker, The Idea of Constitutional Pluralism, 65 MODERN LAW REVIEW 317 (2002), rightly placing
Europe’s constitutional question against the background of post- Cold War and post-colonialist state and
democracy building and increasingly complex challenges of identity and participation politics. See also
Joseph Weiler, In defence of the status quo: Europe’s constitutional Sonderweg, in: EUROPEAN
CONSTITUTIONALISM BEYOND THE STATE, 7 (J.H.H. Weiler & Marlene Wind eds., 2003), stressing the
importance on drawing on Europe’s integration history when struggling with the adoption of a formal
constitution.
9 See David Dyzenhaus, The Permanence of the Exception, in: The Permanence of the Temporary: Can
Emergency Powers be Normalized?, in: THE SECURITY OF FREEDOM. ESSAYS ON CANADA’S ANTI-TERRORISM
BILL, 21-37, 22 (R J Daniels/P Macklem/K Roach eds. 2001, repr. 2002); JAN-WERNER MÜLLER, A
DANGEROUS MIND: CARL SCHMITT IN POST-WAR EUROPEAN THOUGHT (2003); Peer Zumbansen, Carl
Schmitt und die Suche nach politischer Einheit, 30 KRITISCHE JUSTIZ 63-79 (1997).
See the contributions by Matthias Mahlmann, Oliver Lepsius and David Fraser, in: DARKER LEGACIES
LAW IN EUROPE (Joerges/Ghaleigh eds., 2003); see also Vivian Grosswald Curran’s discussion of
Gustav Radbruch’s famous thesis of the Weimar lawyers’ formalism’s defencelessness against the
arbitrariness of Nazi Law, in: 6 GERMAN LAW JOURNAL, Special Issue: Confronting Memories: European
‘Bitter Experiences’ and the Constitutionalization Process (Guest Editors: Christian Joerges and Paul Blokker,
with Chris Engert), available at: www.germanlawjournal.com.
10
OF
11
ERNST FORSTHOFF, DER TOTALE STAAT (1933).
MASTERFUL FRANZ L. NEUMANN, BEHEMOTH. THE STRUCTURE AND PRACTICE OF NATIONAL SOCIALISM
(1942).
12
2006]
Notes on ‘Mirror Reflections’…
245
seemed to matter greatly after the Second World War and still does so today.13 It
also comes as no surprise then, that Schmitt figures prominently in the
contemporary assessments of the changed state of international law, human rights
and security law since September 11th.
That there allegedly was an extremely troubling influence of German
administrative thinking of technical governance of a administered (verwaltete) and
controlled social sphere on the European integration project, is impressively argued
by Christian Joerges.14 One central thrust of his contribution clearly lies in the
identification of the pervasiveness of this technocratic model of an economic
European sphere – something that Joerges has at one point aptly depicted by use of
the idiom: “The Market without a State – States without a Market?”15 His
investigation into the nature of political regulation of market processes contributes
to a better understanding of the problems arising from a political order that would
assume market regulation as following from a merely technical and practical
approach to applying economic expertise.16 The background to this discussion is
provided by the early conceptualizations of a Privatrechtsgesellschaft, forwarded
predominantly by Franz Böhm17 and later taken up by influential German private
lawyers such as Ernst-Joachim Mestmäcker.18 Central to this concept is the idea of a
self-contained, private law based on market freedoms and competition. The law of
the ‘private law society’ is conceived as private and as such all-encompassing,
constitutional and civil rights analogous, while being framed and enforced by the
See the contribution by David Fraser, in: DARKER LEGACIES OF LAW IN EUROPE 87-111
(Joerges/Ghaleigh eds., 2003), at 87: “If we cannot distinguish law before and after Auschwitz, what
does that say about our ability, as a theoretical or principled matter, to characterise the rule of law as
‘good’ or desirable?”
13
14 Christian Joerges, Europe a Großraum? Shifting Legal Conceptualisations of the European Integration
Project, in : Id., DARKER LEGACIES OF LAW IN EUROPE 167, 177 (Joerges/Ghaleigh eds 2003), with reference
to Carl Schmitt’s 1941 notion of the “valueless rationality of technology driven developments, which
further the ‘dictatorship of technicity’ [Technizität].”
Christian Joerges, The Market without a State – States without a Market?, European UNIVERSITY INSTITUTE
WORKING PAPER, ECONOMICS 1996/2, available at: http://ideas.repec.org/p/fth/euroin/96-2.html (last
visited 5 February 2005).
15
16
Supra note 14 at 180.
17
See Franz Böhm, Privatrechtsgesellschaft und Marktwirtschaft, 17 ORDO 75 (1966).
18 Ernst-Joachim Mestmäcker, Der Kampf ums Recht in der offenen Gesellschaft, 20 Rechtstheorie 273 (1989);
Ernst-Joachim Mestmäcker, Die Wiederkehr der bürgerlichen Gesellschaft und ihres Rechts, 10
Rechtshistorisches Journal 177 (1991).
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state. Premeditating much of Europe’s regulatory dilemma today,19 the concept of
Privatrechtsgesellschaft is primarily based on the separation of the state and the
market, ultimately de-politizing the market processes and private law while,
simultaneously, labelling all political intervention into the market as basically an
unjustified curtailment of an otherwise “natural” process of self-regulation. The
disputes that have been provoked by the concept span over several decades and
have still not come to rest.20
While the discussion over the Privatrechtsgesellschaft has occupied lawyers in their
assessment of the EU’s legal and economic order for the longest time, Joerges’
contribution to Darker Legacies reaches out even to administrative and constitutional
law and illuminates the shared presuppositions among public and private lawyers
towards Europe’s “market witout a state.” Joerges’ reconstruction of Schmitt’s
theorizing of the rise of the “administrative state”21 to the work of Hans-Peter
Ipsen, the prominent German Public and European Law Scholar during and after
the Second World War, does much to ellucidate the complex heritage of post-war
German personality and thinking.22 For Joerges, “[Hans Peter Ipsen’s] vita and
academic career illuminate the intellectual continuity/discontinuity problématique
and Germany’s ‘reluctance to glance in the mirror’ (…) in an exemplary way.”23 In
Joerges’ perception, the study of Ipsen helps to study in-depth “the continuities and
discontinuities of legal concepts, on the necessity and difficulty to grasp a new
19 See Christian Joerges & Jürgen Neyer, From Intergovernmental Bargaining to Deliberative Political
Processes: The Constitutionalisation of Comitology, 3 Eur. L.J. 273 (1997); FRITZ SCHARPF, GOVERNING
EUROPE: EFFECTIVE AND DEMOCRATIC? (1999).
20 See already the skepticism by Böhm’s Chair Successor at the University of Frankfurt, Rudolf
Wiethölter, Art. Bürgerliches Recht in: HANDLEXIKON ZUR RECHTSWISSENSCHAFT 47 (Axel Görlitz ed.,,
1972); Peer Zumbansen, Ordnungsmuster im modernen Wohlfahrtsstaat. Lernerfahrungen zwischen Staat,
Gesellschaft und Verrag 210 (2000); for a revival of the concept see FRANZ BYDLINSKI, DAS PRIVATRECHT IM
RECHTSSYSTEM EINER “PRIVATRECHTSGESELLSCHAFT” (1994); Peter-Christian Müller-Graff, Europäische
Verfassungsrechtspolitik für Wirtschaft und Union: Europäische Privatrechtsgesellschaft und überstaatliche
Autorität in: PERSPEKTIVEN DES RECHTS IN DER EUROPÄISCHEN UNION 183 (Peter-Christian Müller-Graff
ed., 1998); Ernst-Joachim Mestmäcker, Wirtschaftsordnung und Geschichtsgesetz in: WIRTSCHAFTSORDNUNG
ALS AUFGABE. ZUM 100. GEBURTSTAG VON FRANZ BÖHM 111 (Ludwig-Erhard Stiftung ed., 1995).
See Carl Schmitt, Legalität und Legitimität, in: Id., VERFASSUNGSRECHTLICHE AUFSÄTZE AUS DEN JAHREN
1924-1945, 265-293 (1973); now available in English: CS, Legality and Legitimacy (Transl. and ed. by Jeffrey
Seitzer, with a foreword by John McCormick, 2004).
21
22
See the masterful study by RUDOLF WIETHÖLTER, RECHTSWISSENSCHAFT (1968).
Joerges, Europe a Großraum?, op. cit., at 182-3, with reference to the prologue by Michael Stolleis, id., at
1-18.
23
2006]
Notes on ‘Mirror Reflections’…
247
situation conceptually, and, in so doing, to differentiate between discredited,
undamaged and renewable elements of a complex legal heritage.”24
The central importance of Joerges’ contribution lies in the combination of a critique
of the private law-originating theory of ordoliberalism with the Post-War
mainstream public law-conceptions of the European market building project, the
latter of which are shown to encompass the challenges to the international law
concepts of the Community.25 Building on earlier studies26, Joerges traces the
developments by which conceptions of the “organised economy”, in Schmitt’s
words, a “healthy market,” understood as a practically autonomized and as such
internally depolitized, “technical” market sphere (while certainly being under last
instance control by a “strong state”) survived the regime’s defeat in 1945, only to
reflourish during the post-war Bonn Republic and eventually finding their way into
the theoretical conceptualization of the European Economic Community. It is here
that the thrust of the research project finds powerful expression. Through Joerges’
underscoring of the fact that contemporary private law histories of Post-War
Germany omit the writings and influence of Ernst Forsthoff27 and thus must
eventually fail to recognize the immanent connections between public and private
law thinking in the context of political intervention and market (self-)regulation,28
we are immediately thrown back onto our very own – and very present – struggles
over the adequate relationship between political legitimacy, social justice and
private ordering.29
Far from establishing a simple or otherwise crude line of causality between Nazi
Germany and Europe, Joerges calls our attention to the continued blindness in our
perception of the interdependencies between the state and the market. While his
contribution is clearly making the argument of an intellectual influence by German
24
Id., at 186.
25 The latter is excellently analyzed by Neil Walker, From Großraum to Condominium. A Comment, in:
DARKER LEGACIES OF LAW IN EUROPE supra note 1 at 193, 196-197.
26 See Joerges, A Market without a State, op. cit.; Id., The Science of Private Law and the Nation-State, in: The
Europeanization of Law 47-82 (Francis Snyder ed., 2000).
See KNUT-WOLFGANG NÖRR, DIE REPUBLIK DER WIRTSCHAFT. TEIL I: VON DER BESATZUNGSZEIT BIS ZUR
GROßEN KOALITION (1999).
27
Hereto, see, Rudolf Wiethölter, Art. Wirtschaftsrecht, in: HANDWÖRTERBUCH DER RECHTSWISSENSCHAFT
531-539 (Axel Görlitz ed., 1972); PEER ZUMBANSEN, ORDNUNGSMUSTER IM MODERNEN
WOHLFAHRTSSTAAT. LERNERFAHRUNGEN ZWISCHEN STAAT, GESELLSCHAFT UND VERTRAG (2000), 93-136.
28
See Kerry Rittich, Enchantments of Reason/Coercions of Law, 57 U. Miami L. Rev. 727 (2003); Duncan
Kennedy, The Disenchantment of Logically Formed Legal Rationality, 55 Hastings L.J. 1031 (2004) at 1034-47.
29
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[Vol. 07 No. 02
conservative thinkers such as Ipsen and Schmitt on the Community’s early
structure, it might not be the only one. As carefully extrapolated by Neil Walker’s
comment on Joerges’ paper30, the establishment of “connections” between a distinct
political, legal, socio-economic and ideological past and a just as much definable
present is an activity unfolding in the realm of ideas. These may be very powerful
and influential, and their very availability, their identification and association with
a distinct ‘past’, one that matters for the understanding of what followed, signifies
their fluid character. Walker contrasts one possible reading of Joerges’ text,
whereby certain German thinkers and the state’s authoritarian, executive-centred,
regulatory experience cast a strong ideological, structural influence on the early
constitutional design of the Community, with that of political ideas and values
between “periods and contexts that have certain features in common”31, being
appropriated, reflected upon and constantly made to enter into the legal and
political imagination. In this post-traditional sphere, ideas travel as do regulatory
experiences and constitutional aspirations, informing struggles over political
identity, belonging and sovereignty in radically pluralized contexts.32 Yet, this
realm of ideas is not insulated from the historical context in which actors offer and
dispute, fight for or reject ideas. With reference to Ralf Dahrendorf, Walker
highlights the disintegration and uncoupling of three Eigenvalues, ‘economic wellbeing, social cohesion and political freedom’33, that he (with Dahrendorf)
recognizes to lye at the outset of contemporary political thought. Yet, with their
desintegration, in a radically pluralized regulatory context, which is marked by
new actors engaged in transnational relationships and exchanges, the tendency to
stress one value at the expense of the other is exacerbated by the very processual
character of a polity in becoming. Ultimately, in order to generate answers to “the
complex political puzzle which lies at the core of the European Union, as of any
multi-level polity, means that in the final analysis all the relevant values must be
held equally in focus.”34 Walker recognizes Joerges’ project as contributing to the
necessary study of how to reflect adequately on political utopia while building
institutions out of their dystopian pasts.
30 Neil Walker, From Großraum to Condominium. A Comment, in: DARKER LEGACIES OF LAW IN EUROPE
supra note 1 at193-203, at 195.
31
Walker, id.
32 Hereto, Neil Walker, The Idea of Constitutional Pluralism, 65 MODERN L. REV. 317 (2002); Walker, The
Legacy of Europe’s Constitutional Moment, 11 CONSTELLATIONS 368 (2004), at 371-375, outlining different
possibilities of imagining ‘constitutionalizing moments’.
33
Walker, From Großraum to Condominium, in: DARKER LEGACIES OF LAW IN EUROPE supra note 1 at 200.
34
Walker, From Großraum to Condominium, in: DARKER LEGACIES OF LAW IN EUROPE supra note 1 at 202.
2006]
Notes on ‘Mirror Reflections’…
249
From yet another angle, Joerges’ contribution might well be read as a further
support for contemporary studies in the “varieties of capitalism”35 and the different
trajectories of political economy in the face of a deafening shareholder value
discourse.36 Furthermore, the inquiry into the forgotten historical and political
implications of private ordering ideologies should invite fruitful synergies with
current work done on the “New Constitutionalism”37 or the ongoing investigations
into the political economy of the knowledge society.38 Today’s often still
unreflected application of public-private dichotomies, when speaking of states and
markets or of political and private ordering,39 would greatly benefit from revisiting
earlier work by Polanyi, Shonfield, Galbraith or Veblen who drew our attention to
the constructed and conditioned nature of markets and to the fallacy of equating
‘society’ with the ‘market’.40
Taking a broader perspective on an allegedly “historically” oriented project – such
as Joerges’ and Ghaleigh’s – might then help to unfold hitherto hidden agendas of
current academic debates, debates that are often confined to boundaries sternly
defended by the gate keepers of epistemic communities. In contrast, by trying to
identify the motivation and underlying source of the researchers’ curiosity we can
hope to establish links between their themes and yet unconnected discussions in
parallel worlds. Bringing together investigations into Europe’s past with inquiries
See in particular VARIETIES OF CAPITALISM: THE INSTITUTIONAL FOUNDATIONS OF COMPARATIVE
ADVANTAGE (Peter Hall & David Soskice eds., 2001); see now the very insightful study by PETER
GOUREVITCH/JAMES SHINN, POLITICAL POWER AND CORPORATE CONTROL. THE NEW GLOBAL POLITICS OF
CORPORATE GOVERNANCE (2005).
35
36 See the illuminating study by John Cioffi & Stephen Cohen, The state, law and corporate
governance: The advantage of forwardness in: CORPORATE GOVERNANCE AND GLOBALIZATION: LONG RANGE
PLANNING ISSUES 307 (Stephen Cohen & Gavin Boyd eds.,2000).
37 See David Schneiderman, Investment Rules and the New Constitutionalism, 25 LAW & SOCIAL INQUIRY 757
(2000); Kerry Rittich, Enchantments/Coercions of Law, 57 U MIAMI L REV 727 (2003).
ALAN BURTON JONES, KNOWLEDGE CAPITALISM: BUSINESS, WORK, AND LEARNING IN THE NEW ECONOMY
(1999); NICO STEHR, WISSEN UND WIRTSCHAFTEN. DIE GESELLSCHAFTLICHEN GRUNDLAGEN DER MODERNEN
ÖKONOMIE (2001).
38
See for a powerful critique, A.CLAIRE CUTLER, PRIVATE POWER AND PUBLIC AUTHORITY.
TRANSNATIONAL MERCHANT LAW IN THE GLOBAL POLITICAL ECONOMY (2003); ALFRED C. AMAN JR., THE
DEMOCRACY DEFICIT. TAMING GLOBALIZATION THROUGH LAW REFORM (2004).
39
40 ANDREW SHONFIELD, MODERN CAPITALSM: THE CHANGING BALANCE OF PUBLIC AND PRIVATE
POWER (1965); JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (1958); JOHN KENNETH GALBRAITH,
THE NEW INDUSTRIAL STATE (1967); THORSTEIN VEBLEN, THE THEORY OF THE LEISURE CLASS (1902); an
excellent example of revisiting the work of the preceding authors is the collection of essays POLITICAL
ECONOMY OF MODERN CAPITALISM: MAPPING CONVERGENCE AND DIVERGENCE (Colin Crouch &
Wolfgang Streeck eds., 1997).
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into its future, however, should not be a far stretch. After all, both are concerned
with Europe – or are they? This indeed deserves closer inspection. Taking, for
example a very prominent work on the state of the art of EU law research in an
overwhelming number of fields, 41 we can find a striking example of the
preoccupation that EU scholars have with a Europe in becoming, a Europe in practice.
With few exceptions,42 EU scholarship focuses on the EU, and surely, that is what it
should do. Yet, it is through the sensitive assertions of the before – the subtext of the
integration program43– that we are alerted to the difference between the European
constitutional project and that of, say, another western nation-state – let alone a
post-conflict transition state.44 The inquiry into postnational constitutionalism is
itself postnational, decentralized, transnational in spirit and nature.45 At the same
time, and it is ultimately this core message that, in the reviewer’s perception, is
presented most clearly by both books: the postnational inquiry into the foundations
of governance, with a view to both the history leading up to today and the
unknown lying beyond tomorrow must always build on a careful assessment of
where some of our present preoccupations and concepts came from.46
C. The EU in search of itself
With the European Union continuing to change since its inception in 1957 –
through the Single European Act 1986, the Maastricht Treaty 1992, the subsequent
Amsterdam and Nice Treaties 1996 and 2000, the Laeken Declaration that preceded the
inauguration of the Constitutional Convention in 2001 to the presentation of the
41
THE EVOLUTION OF EU LAW (Paul Craig/Grainne de Búrca eds., 1999).
42
E.g. the magnificent contributions by Craig and Harlow, id. (preceding note).
See JHH Weiler, The Transformation of Europe, 100 YALE L J 2403 (1991); id., In defence of the status quo:
Europe’s constitutional Sonderweg, in: European Constitutionalism Beyond the State 7, 20 (J.H.H. Weiler &
Marlene Wind eds., 2003),.
43
Hereto, see the brillant study by RUTI TEITEL, TRANSITIONAL JUSTICE (, 2000); in contrast, see NOAH
FELDMAN, WHAT WE OWE IRAQ (2004), in particular Chapter 2, pages 52 ff, with regard to the impact of
international law on the nation building project.
44
45 See the contributions in DEMOCRACY BEYOND THE STATE? (Michael Th. Greven & Louis W. Pauly eds.,
2000); see also JAMES TULLY, STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY (1995);
Peer Zumbansen, Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and
International Law, 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 197 (2004).
46 History itself, however, has come to be seen as a contested narrative that prohibits us from merely
“looking.”
2006]
Notes on ‘Mirror Reflections’…
251
Convention’s results between 2003 and 2004,47 and the signature of the
Constitutional Treaty on 29 October 2004 in Rome – it is clear to all that this
development does not in itself offer all answers.48 Instead, the EU is, and remains, a
needy target for investigation and inquiry, for concern and critique, for puzzle and
ascertainment. In this respect, the EU and its continued search for itself, and its
political and legal nature, might just become another historical artifact such as the
Bastille, Philadelphia, Prague, or Berlin.
The assessment of the EU’s historical genealogies, however, posits the EU at a point
that is not frozen in time. Instead, speaking about the EU necessitates that we take a
position vis-à-vis its future and, so we are led to believe by both books under
review, its past. Soon after ten new states joined the EU on 1 May 2004, the
Constitutional Treaty was signed in the very location of the 1957 Rome Treaties. Now
the buzz of today’s “EU talk” is all about the future, the chances of seeing the
Constitutional Treaty ratified by the national parliaments, the prospects of a further
consolidation of a European political Union, and the concerns about the EU’s
capacity to appropriately address international and internal challenges such as
terrorism, war, trade conflicts within the new EU states, legitimacy, and political
apathy in the western nations.
Even in light of this forward-directedness, both books under review stunningly
succeed in arguing for the necessity of engaging in a process of reflection. A
reflection that must be seen by many as untimely, unnecessary or even impossible –
as the EU is trying to deal with the future and might be less well equipped with an
unsettling knowledge of the past, which would, of course, have to be Europe’s past.
At a time where it is adequately being discussed what this Europe really is, it just as
challenging to state what this Europe was. It is here, where the reader of each book
is provided with a breathtaking discovery of the inner connections between the
historical and constitutional research agendas.
The authors of European Constitutionalism courageously and convincingly arguing
for both a EU specific and, at the same time, a much wider and different
constitutional perspective on the very issue of a European constitution, we begin to
uncover the underlying motivation that brings them to their specific approaches.
The EU presents a radical challenge that Joseph Weiler and Neil Walker have
47 See for an overview Johannes Jarlebring, Taking Stock of the European Convention: What added value does
the Convention bring to the Process of Treaty Revision?, 4 GERMAN LAW JOURNAL 785 (2003), available at:
http://www.germanlawjournal.com/article.php?id=305.
48 See, Alexandra Kemmerer, Like Ancient Beacons: The European Union and the International Criminal Court
– Reflections from afar on a Chapter of European Foreign Policy, 5 GERMAN LAW JOURNAL 1449 (2004),
available at: http://www.germanlawjournal.com/article.php?id=525.
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depicted as being one of translation. Issues of translation have come to the fore in
other multi-level governance examples as well, one being the challenge of bringing
traditional state understandings to the governance phenomena of a globalized
world.49 But, in addressing the difficulty in translating, the focus perceptively shifts
to embrace both the process as well as the element of translation. Engaging in a
process, of translating the learned language of legitimacy from the nation-state
level to that of Europe, urges the translator to reflect on the viability and security –
on the very nature – of the allegedly well-known and securely attained legitimacy
of a given legal system. Flying to the moon allows, for the first time perhaps, a
clearer vision of the earth.
D. Linking the Past to the unknown and unpredictable future
In his epilogue to Darker Legacies, Joseph Weiler places the contributions in the book
against the background of a discourse that is generally not part of the lively
discussions on the origins, nature, and future prospects of Europe. Without
attempting to retell the respective stories of the member states’ often troubled pasts
and their individual ways of having achieved or failed to address them, Weiler’s
concluding text is a thoughtful recommendation to carefully consider the ambiguity
of the pre-Union pasts (as plural they must be) and the ways in which these pasts
might cast their shadow over the ongoing integration project. Perceived as such, the
volume appears in tandem and symbiosis with the literature on societal memory,
reconciliation and nations’ struggle to come to terms with the past.50
Darker Legacies is the perfect excuse to review the ordering catalogue for a common
European Law library. To add other volumes to the collection, it now becomes
possible to re-open books that, perhaps, were overlooked before.51 The view back
into the past of individual member states is particularly essential when considering
that many among them experienced very contested political and legal regimes. The
See Aman, Administrative law for a new century, in: THE PROVINCE OF ADMINISTRATIVE LAW 90 (Michael
Taggart ed., 1997),; Peer Zumbansen, Piercing the Legal Veil: Commercial Arbitration and Transnational Law,
8 EUROPEAN LAW JOURNAL400 (2002), , 417-425.
49
50 See the contributions in GERMAN LAW JOURNAL, 1 February 2005: Special Issue: Confronting Memories:
European ‘Bitter Experiences’ and the Constitutionalization Process (Guest Editors: Christian Joerges and Paul
Blokker, with Chris Engert), available at: www.germanlawjournal.com.
Among those books we should consider ARMIN HÖLAND, CSARBA VARGA & VOLKMAR GESSNER EDS.,
EUROPEAN LEGAL CULTURES (1996); NORBERT FREI, ADENAUER’S GERMANY AND THE NAZI PAST: THE
POLITICS OF AMNESTY AND INTEGRATION (, 2002) [orig. published as VERGANGENHEITSPOLITIK (1996)].
51
2006]
Notes on ‘Mirror Reflections’…
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EU itself does not have merely “one history, but must bring together many histories
some of which are contradictory, competing and full of violence.”52
The other reason why the challenge to address and revisit the origins of European
integration, can be found in the integration project itself. Weiler almost playfully
embarasses us by calling the familiar story of the EU beginnings as an economic
project which eventually grew into a political one, a “veritable Old-Wives’ Tale”.53
Suggesting that we ought to “re-read (or perhaps read)“ the Schumann declaration
and the Preamble to the Treaty of Paris, he recalls the deep political nature of the
Union’s early beginnings: “Europe began as a political project par excellence served
by economic interests.”54 The importance of this finding cannot be overestimated in
light of the thesis explored and researched in Weiler’s text and throughout the rest
of the volume. That there is a darker legacy of which the lawyers of European
integration ought to be aware, attains an inevitably convincing force when we are
faced with acknowledging the simple and as such undeniable truth that every
member state did have some prior life that shaped the consciousness of the nation
at large and of its members.55 In the absence of an overriding rationale, or meta-récit,
for a good story, we are left out on our own in building and creating, repeating, or
repelling the crimes committed in our past. So, whether or not we want to, we must
listen to our heart and to what our memory has to offer and, eventually, decide
what to make of it.
E. The Democratic Deficit
Ah yes, the democratic deficit. The unending rumors about the EU’s democratic
and other deficits reflect nothing less than wide-spread concerns with its highly
fragile and sensitive basis of legitimacy. However, Europe should not strike us to
be much different than any post-modern society; a large number of today’s societies
find themselves constantly engaged in more or less explosive integration and
consolidation processes.56 The EU as such is faced with the same challenge
52 Ulrich Haltern, Gestalt und Finalität, in: EUROPÄISCHES VERFASSUNGSRECHT 803, 832 (Armin von
Bogdandy ed. 2003).
53
54
Weiler, Epilogue in: DARKER LEGACIES IN EUROPE, supra note 1 at 395.
Id.
See the contribution by Scott Veitch, Legal Right and Political Amnesia in: EUROPE IN SEARCH OF
“MEANING AND PURPOSE” 89 (Kimmo Nuotio ed., 2004).
55
56 See. Catherine Dauvergne, Sovereignty, Migration and the Rule of Law in Global Times 54 MOD. L. REV. 588
(2004); MICHAEL WALZER, SPHERES OF JUSTICE (1983) at 31-42, 48-61.
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inherently embodied in the bringing together of a most varied people for a
continuing engagement in political, economic, and cultural deliberation. Certainly,
this task is not made any easier by the drastic lack of precedent.57 The integration
process is not only a “study in becoming”, but is also an on-going practice and
reality. It lives from the daily, tireless input by way of political debate and
compromise, economic bargaining, cultural acknowledgment and endless – yes,
endless – academic debate.58 Revisiting the trajectories of theory and practice of a
country’s political organization during this study is the natural and necessary
ingredient and prerequisite to its future development.59 So, there is some value in
studying the parallels between the EU’s “study in becoming” and a Nation’s
unceasing intro- and retrospection in its search to better understand its past and the
conditions for its future.
The “European construct” may be of recent post World War II vintage, but, want it
or not, the history of its Member States and of its peoples is Europe’s history. The
memory of a marriage goes back to courting, engagement and subsequent
matrimonial life. But the identity of the couple who make up the marriage will also
be determined by the previous pasts and memories of each of the partners. Europe
is not only a phenomenon of historical European integration but of an integration
of European history.60
What the EU is, is often discussed by way of arguing what the EU should become.
The discussion over a European Constitution, then, might offer yet another
welcome opportunity for a fruitful exploration of the EU’s nature. Again, we are
coming at it from all sides: as statists, as communitarians, as international
relationists, as international public lawyers, federalists, supranationalists, and so
57 See Joseph Weiler, Federalism and Constitutionalism: Europe’s Sonderweg, JEAN MONNET PAPER 10/2000,
(available at: http://www.jeanmonnetprogram.org/papers/00/001001.html) (last accessed 27
December 2004); Haltern, supra note 52, at 832.
58 See the report on the deliberations taking place at the constitutional forum, Jesse Scott, The Culture of
Constitution Making: ‘Listening’ at the Convention on the Future of Europe 3 GERMAN LAW JOURNAL (2002),
available at: http://www.germanlawjournal.com/article.php?id=193; Johannes Jarlebring, Taking Stock
of the European Convention: What added value does the Convention Process bring to the process of treaty
revision? 4 German Law Journal 785 (2003) (available at: http://www.germanlawjournal.com/
article.php?id=305).
See Louis W. Pauly, Introduction: Democracy and Globalization in Theory and Practice, in: DEMOCRACY
1 (Michael Th. Greven & Louis W. Pauly eds., 2000), 3-4; Klaus Günther, The Legacies
of Injustice and Fear, in: THE EU AND HUMAN RIGHTS 117 (Philip Alston ed. 1997); Anne Orford, Critical
Intimacy: Jacques Derrida and the Friendship of Politics, in: 6 GERMAN LAW JOURNAL (2005), available at:
http://www.germanlawjournal.com/article.php?id=534.
59
BEYOND THE STATE?
60
Weiler, Epilogue, 394-5.
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Notes on ‘Mirror Reflections’…
255
on.61 Our obvious reliance on premeditated experiences in social and political
organization should make us aware of those theories. These theories are all in
competition for giving the “beast” a fitting name. Yet, a beast is what it is. Thus, it
cannot be the long awaited “answer to the problem of achieving democracy,
protecting human rights or establishing the rule of law within our societies”62 “Its
originality and deepest value, constitutional tolerance,“ must be found in
constructing a different relational matrix which transcends and recasts the
boundaries among its member states and its constitutive peoples.63
In conclusion64 Weiler sketches an alternative program to the EU’s theoretical, less
normative, struggle in defining what the EU itself is. Citing Carl Schmitt’s Roman
Catholicism and Political Form, one of Schmitt’s most poignant and brillant works,65
Weiler wishes to denote Schmitt’s simplifying bi-polar value system of friends and
foes (and their Aufhebung in the Roman Catholic Church’s complexio oppositorum)
and instead to herald a European patriotism of love. In loving our neighbours we
understand ourselves, and in that humbleness we continue on the EU’s quite
astonishing way of integrating without forcing the sacrifice of identity. If you love
somebody, set them free – or invite them to join the EU.
61 For a concise overview of the positions see Armin von Bogdandy, Beobachtungen zur Wissenschaft vom
Europarecht, in: 40 DER STAAT 3, 25 (2001).
62
Weiler, Epilogue, 395.
63
Id.
See J.H.H. WEILER, EIN CHRISTLICHES EUROPA (with a foreword by Ernst-Wolfgang Böckenförde),
(2004), originally published in Italian as Un’Europa Cristiana (2003) and also translated into Spanish : Una
Europa cristiana (Ed. Encuentro, Madrid, 2003).
64
65 CARL SCHMITT, RÖMISCHER KATHOLIZIMUS UND POLITISCHE FORM. Originally published with
THEATINER VERLAG, (1923), and JACOB HEGNER, (1923). Subsequently published with KLETT-COTTA,
several editions. In English published with GREENWOOD(1996).
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