It is often claimed in the rights and culture debate that certain rights are a reflection of a European culture and tradition and thus not universal. The rights and culture debate is based on the assumption that culture is inherent and stable. Europe has certain legal traditions such as the rule of law, which are culturally based and thus exporting them as universal values is imperialistic and culturally insensitive.
The focus of this newly-launched project, led by Dr. Kaius Tuori and funded by the European Research Council Starting Grant, is a group of innovators, a handful of law professors, who are forced to reinvent themselves and their science abroad after being ousted from office and exiled by Nazi Germany. This reinvention meant that they had to first reconceptualize and rethink all that they had previously done and then to address a new audience in a new language. In the process, they tried to make sense of the disaster that had befallen them personally and their country. They had to face the fact that not only the hallowed Rechtstaat had collapsed on them, but also their colleagues and neighbors had turned against them. In response, these exiles created a theory a common European legal culture, founded on ideals such as the rule of law, law as science and law independent from political power. A reaction to the totalitarian regimes and their nationalistic ideologies, this reinterpretation of the past sought to show that there existed a great European legal tradition based on liberty and justice. They wrote about the Europe of law as a hope and aspiration, arguing for the language of rights and reason against the argument of culture embraced by nationalistic and totalitarian regimes such as Nazi Germany.
Combining archival research, bibliometrical studies and anthropological analysis, the project will study the intellectual history of five key figures, coming both from the ranks of the exiles and those who had collaborated with the Nazis or passively stood by. Studying correspondence, lecture notes, and published materials, the project seeks to follow how the idea of a common European legal past of rights was formulated, discussed and disseminated. The starting point of the study, 1934, is the first academic reaction to the Nazi takeover and the expelling of civil servants of Jewish ancestry, while the end point, 1964, includes the response to the erection of the Berlin Wall and the consolidation of the hostilities between free and communistic Europe.
What emerged from the works of the outcasts was a powerful new theory on the shared European legal past that laid the foundation to the idea of a common European legal culture. From this common foundation, ideals such as the rule of law, law as science and law independent from political power would have spread to form the liberal European legal culture. What current research has forgotten is the fact that the founders of this theory were a small group of legal scholars and historians, many of whom had been exiled or oppressed by Nazi Germany and many who had at some point collaborated with the regime. The uniting factor was that these were German-speaking legal scholars with some background in Roman law and legal history. Two distinct groups emerge, the exiles and outcasts, those who were driven from their posts, and the collaborators and bystanders, who either thrived in the new circumstances under the Nazis or managed to remain outside controversies. Of the first group, I have selected three most significant scholars, of which Fritz Schulz (1879-1957) and Fritz Pringsheim (1882-1967) were exiled in Britain, while Paul Koschaker (1878-1951) was ousted from office. The second group consists of two younger scholars, Franz Wieacker (1908-1994), a pupil of Pringsheim, and Helmut Coing (1912-2000).
The purpose of this project is, through the histories of these scholars, to trace the genealogy of the idea of a common European legal past based on rights and to radically re-evaluate the creation, influence and implications of the theory as an ideological project formulated between 1934 and 1964. Influenced by the failure of utopian theories of society, the formulators of the theory proceeded to first transform the past to create an air of inevitability to the developments and interpretations they proposed. This new, non-nationalized version of the past emerged at an opportune moment and gained political momentum in the bankruptcy of the nationalist movements at the end of the Second World War and the new division between East and West.