Professor emeritus Joachim Rückert at the Goethe University in Frankfurt is a distinguished specialist on Savigny and the co-editor, with Mathias Schmoeckel and Reinhard Zimmermann, of the Historisch-kritischer Kommentar zum Bürgerlichen Gesetzbuch (Tübingen: Mohr Siebeck, 2003-2013). In this new book, nineteen of his papers written between 1996 and 2014 are republished under the enigmatic title Abschiede vom Unrecht (‘departures from injustice’). As the author explains in his preface, the common subject of these papers is the contemporary history (Zeitgeschichte) of German law after 1945. The concept of Unrecht (unjust law) is used to qualify Nazi law, and Rückert announces the publication of another collection of his articles on this theme under the title Unrecht durch Recht (‘injustice through law’), which shows clearly that there was also a Nazi legal order likely to be studied as something legal and simultaneously fundamentally unjust by legal historians. The plural form of the German word Abschiede tells us that there were different ways to depart from Nazi law: it is not only all the breaks and ruptures of German law with the past of 1933-1945 (like a ‘farewell to Nazi law’), but the various paths chosen by German jurists and historians to ‘overcome’ the heritage of the Nazi regime and (with the idea of the German word Bewältigung used by Rückert) to take control of this tragic history. The book’s primary interest is to remind us of the debate about the concept of contemporary legal history. In the paper devoted to Zeitgeschichte des Rechts, Rückert gives good arguments in favour of scientific research on contemporary legal history, which is based, as it is for remote periods, on the study of sources and in proposing explanations. The founders of the German Historical School also dealt with the period in which they lived. In every historical study, the point of departure is located in the author’s own time and in the questions it poses. The efforts required of historians to distance themselves from the political prejudices of their time are not very different for contemporary than for modern or ancient history. According to Rückert, there is room for legal history that is neither idealist (that is, based on natural law conceptions) nor realist (that is, interested only in currently applicable law). Such legal history is in fact a new form of Dogmengeschichte, a pure history of concepts, but conceived instead as a confrontation—often lacking in social history—between legal practices (including statistical data), legal professions and legal ideologies. Contrary to simplifying schemes, the history of German law after 1945 reveals the importance of historical denials and the use of failed projects in understanding legal phenomena according to Weber’s vocabulary associating explanation and comprehension. Rückert has applied this method to various questions concerning the legal history of German law after 1945: the reconstructions and new departures of students and professors in the universities, the attitudes of German jurists towards the notion of culpability after the Nazi regime, the denazification of the judiciary and of the administration, the use of new methods of adjudication (notably in constitutional litigation), conceptions of legal science, the role of legal history, and the choice of new models for legal education. These papers provide much information and many insightful analyses about the questions raised by the postwar rupture in Germany. The so-called ‘revival of natural law’, particularly through Radbruch’s texts, is not as unequivocal. The early development of judicial activism (Richterrecht) during the Weimar Republic cannot be inferred from a few rulings of the Reichsgericht (17 cases of judicial reviews of statutes) and the 1924 declaration of the association of Reichsgericht judges, which was not a binding norm. The obedient submission of judges to the Nazi regime has long been underestimated and cannot be explained by the ‘positivist’ prejudices of German lawyers. Whereas the judges of the Reichsgericht were dismissed in the Soviet occupation zone, a great number of those who had sat in Nazi courts continued to act inside the Federal Ministry of Justice in West Germany. There was more continuity than discontinuity in the methods used by the commentators of the German Civil Code in the 1930s and in the decades after 1945, and one must not be misled by the influence of anti-positivist and anti-democratic writings by Larenz and Wieacker, who were seduced by Nazism. The famous concept of ‘balancing the interests’ (Abwägung), used notably by the German Constitutional Court in human rights cases, appears in the 1900s and corresponds to a large range of situations in which judges have to arbitrate between different rights: it is not the proof that every judicial pronouncement is destined to become a general norm, but rather a means for jurists to impose their value judgments. Rückert’s studies, rooted in a deep knowledge of the German jurists, distinguishing, for example, the conceptions of Hugo from those of Savigny, and argued with nuanced judgment, provide two lessons that are not restricted to the legal history of Germany after 1945. The first is that the participation of jurists in the totalitarian or authoritarian regimes of the twentieth century is a phenomenon that cannot be eluded by contemporary legal history. The second is to distrust ‘big explanations’ based on a linear succession of ages or epochs in legal history. Remembering that these kinds of global explanations were developed by jurists not completely exempt from Nazi influence is helpful encouragement to imagine new chronological and conceptual frames. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
American Journal of Legal History – Oxford University Press
Published: May 9, 2018
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