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).
33
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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)
53
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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).
4
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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
