TY - JOUR
AU - Bryant, Michael S.
AB - In times of anomie and crisis, intellectuals search for shared ties capable of knitting the torn social order back together. Kaius Tuori’s book argues that the efforts of twentieth-century German legal scholars to derive a common European identity from a millennia-old European legal tradition expresses just such a quest for unity after the catastrophe of National Socialism. Seared by war and dictatorship, they altered their research to emphasize a shared “common legal heritage that could form a foundation for [Europe’s] future integration” (2). Because the cradle of this heritage was Roman law, Tuori’s focus is on German scholars who championed Roman Law as the genesis of a European legal and political identity. Moreover, these figures offered cosmopolitan Roman Law as an alternative to the totalitarianisms of the right and the left. Tuori’s study rests on two groups of German Roman Law scholars active between 1933 and 1964. The first consists of figures who were either exiled or marginalized during the Third Reich: Fritz Schulz, Fritz Pringsheim, and Paul Koschaker. Figures in the second group, by contrast, remained in Germany during the Third Reich as either collaborators or bystanders: Franz Wieacker and Helmut Coing. Each one of Tuori’s five chapters is devoted to one of these scholars as he reevaluates the Western legal tradition, seeking within it the traces of a humane, rights-centered jurisprudence as a response to the crisis of Nazism and communism. The author’s analysis throughout seeks to answer two questions: how the theory of a shared European legal heritage emerged and was affected by totalitarianism and the experience of exile; and second, how the theory became dominant, buoyed by legal, political, and cultural factors. The first chapter deals with Fritz Schulz, an exile whose brush with Nazi totalitarianism changed his research focus, prompting him to explore in his studies of Roman law the relationship between freedom and authority—a theme at the heart of the “Western tradition of liberty in the Roman law tradition” (41). Influenced not only by Roman Law but by nineteenth-century classical liberalism absorbed from his country of exile, Schulz portrayed the Roman concept of liberty as individual freedom, forming a foil to the Nazi idea of liberty as collective freedom (the freedom of the nation rather than the individual). Schulz also came to stress the independence of law from politics as a foundational principle of the Western legal tradition dating back to the Romans. Where Schulz emphasized individual freedom, the focus of the second chapter, another exile named Fritz Pringsheim, focused instead on legal equality and the rule of law in the Roman Empire. Despite different emphases, Tuori contends that each man’s encounter with Nazi tyranny led him to identify essential features of a Western legal tradition and to proffer these as alternatives to totalitarianism. This theme continues in the chapter devoted to Paul Koschaker and his discovery of “relative natural law” in Roman Law. The fourth chapter turns to Franz Wieacker, a possible Nazi collaborator who popularized the narrative of “Europe” in academia, while the final chapter concentrates on Helmut Coing, another scholar who remained in Germany during the war years and, under their impact, propounded the view that human rights were integral to the European legal tradition. By the book’s end, Tuori has answered both of his research questions. The idea of a shared legal European heritage emerged between the early 1930s and mid-1960s, advanced by these two cohorts of German legal scholars burned by their encounters with Nazism. Moreover, this idea disseminated in the writings of these men found a home in the Zeitgeist of the postwar period, an era when Western Europeans needed a bracing concept of shared values to underpin international coalitions like the European Coal and Steel Community (out of which the EU would eventually grow) and NATO. A common Western legal and intellectual tradition with roots in Roman Law was serviceable for both organizations—the first centered on liberal trade policies, the second on collective security aimed at defending the West from Soviet totalitarianism. As the summary above suggests, Tuori’s book is challenging, complex, and intellectually serious. Many of the subjects the author mentions are intriguing, such as his insistence that the rule of law and democracy emerged as conservative ideals. So, too, is the “main issue” that stands behind Tuori’s intricate argument—his belief that intellectual traditions are “reformulated” and “reinterpreted” to suit the needs and interests of the present (3). The past does not exist like an archaeological relic awaiting the trowel and spade of the archaeologist to expose it; rather, it is standing in reserve for the agendas of the moment, the bricolage to contemporary bricoleurs who adapt it to their purposes. Riffing on Benedict Anderson, Tuori calls the notion of a European legal tradition an “imagined community” (272), thereby underscoring the facticity of how we appropriate the past. There is much to celebrate in Empire of Law, but the book is flawed at several levels. Some of Tuori’s key interpretations of his subjects’ writings are conjectural. He readily concedes this point (see e.g., 74, 85, 101), but the lack of firm evidence nonetheless tells against his thesis. The precarity of his readings is especially evident in the chapters on Schulz and Pringsheim. The lack of solid proof is less disquieting with regard to the exiles than to scholars in the collaborator/bystander group like Franz Wieacker, a Nazi Party member whose writings are tinged with a brown vocabulary. In addition, it is unclear precisely how the concept of a common European legal tradition rooted in Roman law functioned after 1945. Tuori occasionally touches on this point, as in his assertion that Wieacker “popularized the narrative of Europe in the academic world” (174), yet the specific nature of the concept’s influence is not systematically developed. These shortcomings, as well as numerous typos, solecisms, and a dense writing style, blemish an otherwise profound and valuable work. © The Author(s) 2022. Published by Oxford University Press on behalf of the American Historical Association. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/pages/standard-publication-reuse-rights) © The Author(s) 2022. Published by Oxford University Press on behalf of the American Historical Association. All rights reserved. For permissions, please email: journals.permissions@oup.com
TI - Kaius Tuori. Empire of Law: Nazi Germany, Exile Scholars and the Battle for the Future of Europe.
JF - The American Historical Review
DO - 10.1093/ahr/rhac240
DA - 2022-11-29
UR - https://www.deepdyve.com/lp/oxford-university-press/kaius-tuori-empire-of-law-nazi-germany-exile-scholars-and-the-battle-t20ET8p0py
SP - 1473
EP - 1475
VL - 127
IS - 3
DP - DeepDyve
ER -