german law journal 2006, vol7, no2

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.

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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).

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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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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).

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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.

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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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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.

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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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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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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).

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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.

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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.

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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)

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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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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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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

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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)

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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

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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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‘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

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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)

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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).

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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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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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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)

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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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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."].

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'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

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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

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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).

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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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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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ARTICLES : SPECIAL ISSUE

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).

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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

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“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).

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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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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.

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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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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

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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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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.

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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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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).

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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.

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"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

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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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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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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.

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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:

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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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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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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)

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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)

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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

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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

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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)

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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

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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.

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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

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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).

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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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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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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

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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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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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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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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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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

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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

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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).

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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).

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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.

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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

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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

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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).

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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).

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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.

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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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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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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

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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

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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

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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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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.

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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.”

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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

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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.

2006]

Notes on ‘Mirror Reflections’…

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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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