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. What this project seeks to demonstrate is that even in Europe the rights tradition is a conscious construction by a group of legal scholars reacting to contemporary events. The tradition was actually produced in Europe as a reaction to a certain expediency.
The focus of this project 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. In the authoritative style of argument favored at the time, what was a statement of desire was turned into a statement of fact. As a method, this is comparable to the anthropological theories of literary cultures. As senior professors, the exiles had the clout to be believed because they possessed the sheer mastery of sources to be convincing.
It is quite common for political events to change the course of intellectual history. What this project offers is a twist, in that the reinvention of the meaning of science and legal culture had a second, even more influential life after the war. Even the bystanders and the active participants to the Nazi regime in academia were deeply affected by the events and were forced to reconsider the implications of totalitarianism in science. What the anti-totalitarian narrative formed by the exiles offered was an explanation and a new self-understanding of law and legal science as a bulwark against dictatorship. It was crucial for the success of the new interpretation that it enabled them to respond to the challenge of socialism and to criticize the suppression of the legal by the political sphere.
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, three most significant scholars have been selected for further study, 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. In the creation of the mythical past, the founders took heed the lessons of the nineteenth century debates on the use of the past in legal reform, using the language of culture and civilization.
The success of the common past theory is implied in how the state-of-the-art in the current scholarship is embedded into the teleological narrative of the theory. The theory defines the debate, with claims that European law can be united only by jurisprudence and that European legal studies should reach for their common roots to find the key to the common future. Or that common European values derived from shared historical experiences are the precondition of all integration and the European values have a legal significance as such. Even critics follow the logic of the common past theory, saying that European cultural diversity makes the whole idea of common European law impossible.
What the project offers is a forgotten history in the transmission and development of ideas. It is a case of a successful scientific revolution, in which the need and the supply for a theory meet. The theory had appeal in a number of ways even outside Europe and an important part of the project is to track the transmission from a national to an international debate, a process in which elements such as exile, language and demand play a part.