JURISTS IN THE THIRD REICH

As several students wanted to know more about the impact of Nazi rule on German lawyers, I decided to devote some extra time to answering their questions. This I did by presenting five jurists — four of them legal historians — who, to varying degrees, sympathized with the new regime, i.e.

Hans Fehr (i 874-1 96i) was a Swiss legal historian who stud­ied mainly in Germany and taught there for several years before ending his career in Bern (i 924—44). He studied legal history in Berlin under such famous masters as Heinrich Brunner and Otto von Gierke and obtained his Habilitation in Leipzig un­der Rudolf Sohm, which led to professorships in Jena, Halle, Heidelberg and, finally, Bern, in his home country.

Although a pupil of great classical authors, he went his own innovative way. Instead of merely following the traditional path of presenting the development of German private and pub­lic law along positivist lines, he directed his research towards legal ethnology and archaeology, publishing books on law in German folk-song, law and legend, law in pictorial representa­tions and law in poetry (the author was himself a gifted painter). All these interests stemmed from his belief that law was but one of the manifestations of the Volksgeist and from his enthusiasm for the historic Germany, following Johann Gottfried Herder and Jakob Grimm. He cast his net so wide that he incurred crit­icism for shallowness and insufficient mastery of the numerous disciplines he was working in. Nevertheless his Deutsche Rechts- geschichte, based on lectures given during the First World War, was popular and, between i 921 and i 962, went through six editions.

During his years in Germany and even after his return home Fehr followed with interest political events under Wilhelm II, Weimar and the Third Reich.

Hans Erich Feine (ι 890—1 965) was for many years Professor of German Law and Ecclesiastical Law in the university of Ttibingen.

In an earlier phase, however, he had worked on the consti­tution of the German empire in modern times, and especially the appointment of bishops in the old Reich. This interest in public law led to important work on the constitutional and po­litical history of his country. He regretted its ancient internal divisions and hoped for a strong and unified nation state. This, and his bitter disappointment at Germany’s defeat in the First World War, led him to have some sympathy for the Nazi move­ment and its programme of national renovation. The result was a schizophrenic predicament where a convinced Christian and practising Protestant (who supported his bishop against Nazi encroachment and strongly rejected racism) could express his admiration for the Third Reich as the fulfilment of German history. In the very year of the appointment of Adolf Hitler as chancellor Feine published an address entitled �National Social­ist political reconstruction and German history’.^[137] He praised, inter alia, the end of parliamentarism and the multi-party state, and the elimination of the autonomy of the Lander by the new unitary Reich and concluded with the nostalgic wish that �God should not refuse the German people the realization of its deep­est wish, to found for all those who wanted to join it a great Holy empire of the German Nation’.^[138] In a book of 1936 the author, in the same vein, praised the role of the National Socialist revo­lution and the Fiihrergedanke in the realization of the old German dream of political greatness.^[139]

Feine’s national pride even caused him to date a book that happened to come out in the summer of 1940 with the boastful words â€?published on the day of the entry of the German army in Paris’,^[140] a gesture that led to his removal, in May ι 946, from the university of Tiibingen by a decision of the French Governor (the city was in the French zone of occupation; he was reinstated ^{in 1} 955)∙3^[141]

Claudius Freiherr von Schwerin (ι 880—1 944) was one of the leading German legal historians of the first half of the twentieth century.

Claudius von Schwerin was born in Passau, Bavaria, to an old aristocratic and Catholic family which had lost its privileges at the beginning and its landed wealth around the middle of the nineteenth century. The family produced numerous magis­trates. As a student in Munich von Schwerin was impressed by Karl von Amira, a specialist in ancient Germanic, particularly Scandinavian, law, and he decided early to follow in his master’s footsteps and become a historian. He eventually succeeded to his teacher’s chair in Munich in 1935. He died in 1944 in a bombing raid on that city.^[142]

Having grown up in Wilhelmine Germany and in conserva­tive monarchist surroundings, he was shocked by the procla­mation of the Weimar Republic. Although he became professor ordinarius at Freiburg in the very year of the proclamation of the Weimar Constitution ι gι g and happily conducted his teaching and research in the twenties, he found the new regime distaste­ful. He rejected its parliamentary constitution with its bickering parties and disliked the divisive, democratic tone of the republic, which he accused of weakening the country and destroying the old unity and community sense of the German nation. He nos­talgically turned to the era of the ancient Germanic nations and of medieval Germany, where he found the qualities which his own epoch sorely missed, i.e. good faith, loyalty, honour, unity, community feeling and dedication to a great leader.

Von Schwerin’s veneration for all things Germanic, his German patriotism and his aversion to the Weimar Republic were obviously in accordance with several basic ideas of the National Socialist party. It is therefore interesting to see how he reacted to the â€?legal Revolution’ that brought it to power in ιg33. Baron von Schwerin certainly did not throw himself headlong into politics, but carried on lecturing, writing, teach­ing and examining his students. Nevertheless, his sympathy for the â€?national renovation’, promised by the new regime, led him to manifest his feelings in no uncertain terms. Already in the fateful year ι g33 he joined the Akademiefur Deutsches Recht founded by Dr Hans Frank (about whom more later), the aim of which was to replace the Civil Code of ι g00 by a new Volksgesetzbuch (which we mentioned earlier). In ι g34 he be­came a member of the League of National Socialist German Jurists and in 1938 a member of the National Socialist party. In various addresses and publications he expressed admiration for the Fuhrerstaat: already in a lecture of 1932 he explained that a specific Germanic quality allowed the individual â€?to give himself up to the Ftihrer and to sacrifice his own ego: to consider this true freedom was the real meaning of loyalty’.^[144] In 1934 von Schwerin published his Grundzuge der deutschen Rechtsgeschichte, in Munich and Leipzig, which dealt, inter alia, with the most recent developments in his country.

Freiherr von Schwerin resented foreign influence on German law. His ideal was strikingly formulated in his Grundzuge of ι 934, where he explained that thanks to the new regime â€?for the first time since the law of the German territories was created by means of comprehensive legislation, the latter is supported by the unconditional will to give the German people a German law’.^[147]

That German law had suffered from foreign contamination but would revive had already been the theme of a contribution by von Schwerin in 1926. It was published in a volume called Germanic resurrection. A book on the Germanicfoundation of our culture under the title The spirit of ancient Germanic law, the penetration of foreign law and the recent reinforcement of Germanic legal principles.^[148] The culprit was, of course, Roman law, which had changed the normal lines of German development from the sixteenth century until the Pandectist Burgerliches Gesetzbuch four centuries later. Here von Schwerin joined the rejection of �materialistic’ Roman law and the demand for a new community-oriented �people’s law’, as formulated in art. I 9 of the NSDAP pro­gramme (already mentioned). In an essay of I 933 Baron von Schwerin argued, in line with art. I 9, that Roman law stood for individualism and materialism (�market values’, we might say to­day, as against �community values’), which had slowly reduced the Germanic collective sense and consequently had changed German life completely.^[149] Small wonder that von Schwerin had, in i 919, called the Rezeption a �violation of German law’, and, in I 930, repeated Heinrich Brunner’s condemnation of the Pandectist influence on the Civil Code of I 900 as �a national disaster’ because it �mean-spiritedly ignored German law, and pressed in a mindless and external way Roman norms into na­tive reality’, forgetting �that no nation is capable of thinking with the soul of another’.^[150]

Scholars who defended Roman law were given short shrift. Thus E. Schonbauer tried, at a conference in Ttibingen in I 936, to save the reputation of Roman law by attributing to it all the qualities traditionally ascribed to Germanic and German law (he even pointed out that the Romans were Aryans). This was going too far for von Schwerin, who insisted that the Germanic tradition �was self-sufficient’ and that trying to detect in Roman law certain fundamental Germanic notions could only lead to confusion.^[151] It should be noted that von Schwerinhadnotwaited till i 933 to form his negative conclusions. Already in his inau­gural lecture in Freiburg in 1921 he had spoken of�Germanic and foreign law’, a theme to which he would often return. In his 1921 lecture he criticized the Civil Code of 1900 for be­ing too Romanist and he felt that the rules of German ori­gin preserved in the Code lacked inner ethical and social con­tent, so that �tribute had been paid to the materialism of the time’.^[152]

Although von Schwerin clearly went along with the new rulers, he was more like a fellow-traveller than a hard-bitten fully-fledged party man. This appears, inter alia, from his atti­tude to Erika Sinauer, his Jewish collaborator in the Institute of Legal History at the university of Freiburg for some twenty years. Dr Sinauer was born in Freiburg in I 898, the daughter of a bar­rister. She studied law in her home town and in the early I 920s became an assistant to Professor von Schwerin, with whom she worked on a critical edition of the Mirror of the Saxons, a thirteenth-century lawbook, and its gloss, for the Monumenta Germaniae Historica. As soon as they came to power, the Nazis embarked on a policy of barring Jewish people from teaching and research, and campaigned against all forms of friendship and collaboration between Germans and Jews. In spite of all this, von Schwerin, who had no racist feeling, kept Erika Sinauer on his staff in Freiburg and, after his transfer to Munich, went on supporting her research in Freiburg. This situation, which must have upset the Nazi bosses, lasted until the end of i 938, when a new edict of the Reichsminister for Science, Education and Popular Culture made further employment of Jewish schol­ars impossible (Erika Sinauer was arrested in I 940 and in I 942 sent to Auschwitz).^[153] It is probable that von Schwerin’s support for Dr Sinauer (and the fact that he did not engage in any anti­semitic polemic in his writings) explains the American incident of 1938. In that year an invitation extended to von Schwerin to lecture at Columbia University in New York was vetoed for political reasons. The decision was, inter alia, justified in two let­ters from the legal historian’s own university of Munich, sent to the government in Berlin which had asked for information. One came from the Rector and the other from the professo­rial body. The Rector’s letter referred to the position taken by the Dean of the Law Faculty, i.e. that �in spite of Professor von Schwerin’s eminent scholarly qualification certain political reser­vations existed’, which militated against his going to New York. This sharp condemnation was, however, somewhat softened by the — contradictory — statement that von Schwerin was not so much politically unreliable (the term �politically incorrect’ was not yet in use), as having a difficult character, �which worked as a troublesome rather than a unifying and connecting factor’ (was this a coded way of saying that he did not toe the party line?). The letter from the leader of the professorial body was, by contrast, brief and unequivocal, as it stated that the planned American trip should be forbidden because �Professor von Schwerin does not seem suitable, from a political point of view, to represent Germany abroad in a dignified way’.^[154] It is clear that the professor’s sympathy for the Nazis was neither unlimited nor unconditional.

Hans Frank (ι 900—46) was born in Karlsruhe, the son of a barrister. He obtained his doctorate in law in 1924 at the uni­versity of Kiel and, in I 927, established himself in Munich as a barrister and lecturer at the local Technical High School. By that time he had been involved in nationalist politics for several years: in i 919—20 he served on the Freikorps of Major General Franz Ritter von Epp, which fought the short-lived bolshevik republic in Munich. Around the same time he became a mem­ber of the Nordic Thule Society and joined Anton Drexler’s German Workers’ Party, the forerunner of the NSDAP, of which Frank became a member in ι g23, joining at the same time the SA, the party army. On g November of the same year he took part in the abortive putsch at the Felherrnhalle in Munich: he was, in other words, an early and active member of Hitler’s party. Between ιg27 and ι g33, when the NSDAP was in the doldrums and taken seriously by very few people, Frank sup­ported the movement by defending party members who had broken the law: some 2,400 cases have been traced. His formal entry into national politics took place in October ι g30, when he became a member of the Reichstag, but his great moment came in i g33, when his party took power and AdolfHitler, whom he worshipped, began to rule Germany.

The rewards for his services to the party were not slow to follow. In i g34 Hans Frank became a Reichsminister with­out portfolio and leader of the German lawyers with the title of ReichJuristenfuhrer. The Akademiefur Deutsches Recht, of which Dr Frank became president, was founded as early as i g33. This was to be his most important task in those pre-war years: the reform of German law in the light of the new ideology was a task he took very much to heart, being both a practising and an academic lawyer. The Academy was a learned society, counting 300 members selected for their academic eminence and working in specialized committees. One of its main man­dates became the elaboration of the Volksgesetzbuch we mentioned earlier.^[155]

In the course of these years Dr Frank published several stud­ies and made innumerable speeches about the renovation of German law under the aegis of the Ftihrer. His great source of inspiration was the native Germanic tradition, and he naturally saw Roman law as an alien intruder. This theme we have heard before, but what distinguished him from the three previous ju­rists was his virulent antisemitism, in which he showed himself a true Nazi. His basic approach was strikingly expressed in the first issue of the periodical published by his Academy, under the title �National Socialism and the law’. He wrote: �We must abandon radically the old way of viewing the law as an end in itself. In the National Socialist state the law can never be anything but a means to maintain, safeguard and enhance the community based on race and people (rassisch-volkische Gemeinschaft).’^[156]

Frank’s insistence on the vital role of the true German tra­dition led him to expose, as had many others before him, the nefarious consequences of the Rezeption of Roman law, which he called �formalistic’. He rejected the �so-called Roman law’ of the �glossators, post-glossators, the usus modernus, the codex and the novellae of the Faculties and the doctors of law’; the nineteenth­century pandectists, of course, took their share of the blame. In contrast to this �formalistic’ approach he found, in medieval German law, the �law of life’, i.e. �peace, freedom and loyalty to the leader’ (thus, for example, the �German spirit’ of Eike von Repgow’s thirteenth-century �Mirror of the Saxons’).^[157] It is in this vein that Dr Frank, who was not averse to rhetorical effects, came to express the extraordinary view that �between Eike von Repgow and AdolfHitler the law had been in a state of crisis’.^[158]

As a true Nazi Hans Frank could not avoid condemning the Jewish influence on German law. In brutal language worthy of Hitler himself, he maintained that the �right to life’ of the Volk justified measures against Jewish lawyers. Frank expressed himself most clearly on this point in a speech to university lec­turers on 3 October 1936, in which he opposed the �realizations of the German spirit’ to �Jewish corruption’, and appealed to them to �banish Jewish jurists and their works from the court practice and the legal tradition in Germany’.^[159] Elsewhere he spoke of the �legal soul’, which belonged to the German people, whereas the Jews had a commercial approach to the law; they were �abortionists’ and �bastards of the law, and therefore to be eliminated from legal practice and science’.^[160]

Frank published, inter alia, a �National Socialist handbook for law and legislation’ in Munich in 1935 and in the same year started a new periodical, called Deutsche Rechtswissenschaftt. It was to combat sceptics, critics and enemies of National Socialism among lawyers (the first issue appeared in 1936).

As Reichsminister Frank invited a group of university profes­sors to draft a set of â€?directives on the position and the role of judges’ in the light of the new ideology^[161] and he invited Profes­sor Karl August Eckhardt (a convinced Nazi, about whom more later) to form a team of young lecturers in order to find â€?in com­radely collaboration a clear link in the struggle for a German legal science in the National Socialist spirit’. They were told that their only option was â€?uncompromising Nazi ideology and a combative attitude’ and that â€?the surest road... went through SA and SS’. The team was to be based at the university of Kiel, whose rector boasted in ι 940 that practically all non-Nazi staff had been eliminated and the university, as he put it, â€?completely renovated’.^[162]

Until the beginning of the Second World War Hans Frank’s role had certainly been important, but his influence was limited to the legal arena and he had never been admitted to the inner circle of decision-makers. At no time was he in the eye of the political cyclone. His position as Reichsminister without portfo­lio was politically irrelevant and the job of Minister of Justice of the Third Reich had eluded him. Academically he may have been a heavyweight, but politically he definitely was not: a states­manlike post, where he could command and issue laws and or­dinances, had not come his way. All this changed dramatically in September 1939. Disgruntled with his marginal role in German politics, Hans Frankjoined the army and was ready to take part, as a lieutenant, in the Polish campaign when he was summoned, out of the blue, to appear on 15 September 1939 at Headquar­ters, where Hitler told him that he was to become head of the German civil administration in occupied Poland. At first he was attached to the military commander, General von Rundstedt, but from 2 6 October onwards he was the independent Governor General of the Generalgouvernement (as the German-occupied part of Poland was to be known). Frank’s objection that he would prefer to stay with his Infantry Regiment was brushed aside. His appointment specified that he would be the direct representative of the Fiihrer and responsible only to him.

We can only speculate as to what had moved Hitler to ap­point the reluctant president of the Academy for German Law to this far from academic post. Frank was one of his earliest and most loyal â€?old comrades’ and deserved a position of some importance. And although Hitler had studiously kept this au­thor of legal treatises out of the political limelight in Germany, he may have deemed him good enough to become a German viceroy of â€?rump Poland’ (a territory ripe for â€?colonial and im­perial’ treatment, to use Frank’s own words). Frank went to live in great style in the ancient royal Palace of Cracow. He behaved as a heartless satrap, oppressing and exploiting the conquered nation and issuing numerous laws and decrees which carried the death penalty even for minor offences. He was not personally involved in the extermination camps, which were engineered directly from Berlin by Himmler, the SS and the security police (with whom he quarrelled all the time), but he repeatedly issued antisemitic decrees, gave vent to his racist feelings and called for the annihilation of the Jews (as appears from the Nazi Conspir­acy and Aggression Papers, produced at the Nuremberg trial). InJanuary ι 945, at the approach of the Red Army, Frank fled to Bavaria where he was arrested in May ι 945 by an American lieutenant. He stood trial in Nuremberg (where his forty-two- volume journal was produced as evidence) together with other leading figures of the Third Reich, and was condemned to death for his part in the terror in Poland and executed in the night of 15 to 16 October 1946. He had confessed his guilt and expressed deep regret for what he had done.

So far the reader might form the impression that Hans Frank was a fanatical Nazi and Hitler devotee, who abjured his legal training and forgot all about the principles he had learned. In fact, this was not the case. In a curious way Frank remained attached to the rule of law, even while he was misbehaving in Poland — an amazing phenomenon to which we shall now turn our attention. The advocacy of the Rechtsstaat, the law-based state, was over many years a leitmotiv in Frank’s speeches and writings. In the very first months of the new regime, he and others hoped that a â€?national Rechtsstaaf would be founded. In the Deutsche Verwaltung of 1934 Hans Frank declared: â€?The State of Adolf Hitler is a Rechtsstaaf, a pronouncement which led to a lively debate among lawyers, some of whom wanted to maintain certain legal safeguards, whilst others condemned that attitude as a relic of the liberalism of the past.⁵⁶ In the same year, Frank praised the â€?eternal German law’ and proclaimed that it should regain the proud characteristics of Germany’s great past. In this context he even spoke ofâ€?the constitution’ in which the Germans found themselves⁵⁷ (constitutional freedoms were anathema to Hitler, who saw to it that the Weimar constitution which had fallen into abeyance was not replaced).

In 1937 the leader of the National Socialist lawyers tried to come to grips with the contradiction between the Fuhrerstaat, where one man's will was the law, and the Rechtsstaat, where the law, based on the will of the people, was supreme. He talked again of a �National Socialist constitution’ and declared that Hitler was �the called-for executor of the historic will of the people’ (in 1934

⁵⁶ Stolleis, Rechtim Unrecht, 148—9.

⁵⁷ Willoweit, â€?Deutsche Rechtsgeschichte’, 30. he had said that Hitler had â€?restored to the people their legal consciousness and the instinct for their law’). It could be argued that the notion of â€?executor’ implied that the Ftihrer was not above the law, but had to implement it.⁵⁸ Also, the â€?will of the people’, which Hitler was supposed to execute, was a nebulous concept, which reminds one of the Volksgeist, the popular mind which learned jurists such as Savigny were supposed to know best. In the same year ι 937 Frank published in the periodical Deutsches Recht an article entitled â€?Das Recht im Reich’, in which he proclaimed that â€?every German has his place, even in the law courts, and every German should have his defender every­where, without any exception and in every lawsuit’.⁵⁹ In 1938 Hans Frank gave a lecture in which he proclaimed that the law belonged to the divine order: Germanic and Aryan thought saw the law as the highest form of consciousness, which transformed â€?arbitrariness and violence’ into a positive attitude towards the community.⁶⁰ In 1939 Frank declared that all acts of the ad­ministration should be subject to judicial review, which meant that â€?administrative courts... were even in the National Socialist Reich indispensable’.⁶¹ He, together with other Reichsministers, obtained even Heinrich Himmler’s agreement to this point, but only after the leader of the SS had secured legislation to ensure the inviolability of the Gestapo!

In April ι 941 Frank became more outspoken in his defence of the Rechtsstaat, declaring in an address before the Interna­tional Chamber of Law, a Nazi satellite organization, that â€?an organized state can only last when it satisfies the people: numer­ous states had been founded on brutality, arbitrariness, violence and tyranny, but none had lasted’.^[163] In November 1941, in an address to legal functionaries of the party, he went a step fur­ther in his criticism of the police state by mentioning specifically

⁵⁸ Whether Frank saw it in that way is doubtful. See ibid., 28.

⁵⁹ Ibid., 32.

⁶⁰ In Deutsche Rechtspflege (ι 938), 283, quoted in Willoweit, â€?Deutsche Rechtsgeschichte’,

61

62

3¹..

See his Recht und Verwaltung (Munich, ι 939), quoted by Stolleis, Rechtim Unrecht, ι 94. that â€?by the organization of various police forces an unbearable element of insecurity had entered into the law of the German people’.^[164] None of these statements seems to have caused a stir. People, even in the Nazi hierarchy, obviously thought that the president of the Academy for German Law was just riding his old hobby horse again and using the sort of principled language one would expect from a jurist.

In the summer of ι 942, however, things changed. While the German army was again progressing deep into Soviet terri­tory, Frank travelled around Germany to give a series of sen­sational lectures. He addressed a wide public in four renowned universities — Berlin, Vienna, Munich and Heidelberg — and threw himself — to great applause — into a passionate headlong attack on the police state and into an exaltation of the rule of law. This time he addressed, not party officials or fellow academics, but a much broader audience and the public at large. On 9 June i 942 he spoke in Berlin on â€?The idea of law and the community of the people’ in which he declared: â€?a nation cannot be domi­nated by violence; national life without the law is unthinkable’. On i July he spoke in Vienna on â€?The law and the renovation of Europe’ and declared: â€?No Reichwithoutthe law —including our own; no law without judges - including German law; no judges without real authority — including German judges!’ On 2 0 July in Munich and on 21 July in Heidelberg he spoke on â€?The law as the cornerstone of the community of the people’ and on â€?The idea of law and the new order in Europe’. On both occasions he was outspoken in his attack on the brutality of the Polizeistaat — which should never be allowed — and in his condemnation of contempt for juridical thought and action. This time the Governor General of Poland had gone too far. Hitler curtly dismissed him from his post as President of the Academy for German Law and other leading functions in Germany’s legal establishment. He abso­lutely forbade him to lecture or to publish any more and sent him back to Cracow and eventually, as we have seen, to his doom.

The significance of the four lectures of i 942 is clear. It took courage in the middle of the war to lash out at tyranny in the face of — what was at that time — a victorious tyrant. The lectures also showed that Dr Hans Frank, although a convinced Nazi, continued somehow to believe in the idea of law. There has been a good deal of speculation as to what led him to this sensational step at that particular moment, other than sincere conviction. It has been plausibly argued that his conflicts with the SS and the Gestapo in Poland and their constant encroachments on his authority in the General Government had so exacerbated him that he decided to speak up, in the vain hope that he could reverse certain deplorable trends. It is also just possible that he still had some illusions about Hitler’s respect for the �great principles of Germanic law’, although various pronouncements of the Ftihrer, who hated the law, the courts and the lawyers, should have enlightened him long before on that score.^[165]

Hans Frank was a gifted intellectual, but over-ambitious and easily carried away by grandiose phrases, including his own. He could rise to the occasion and have the courage of his convictions, but he had no strong personality and was mesmerized by the real men of power. All too often racial pride and blind faith in his leader got the better of his lawyer’s instinct. Although he condemned Hitler after I 945, he never stood up to him as long as he was alive - but then very few people did.

Karl August Eckhardt (ι 901 —79) was born in Witzenhausen, in Hessen, on 5 March 1901, the son of a judge in a family of lawyers and clerics. He was one of the most learned legal historians of his century, and especially famous for his editions of medieval lawbooks. He also was a convinced supporter of the Nazi movement and an influential figure in the Ministry of Science under the Third Reich. Perusing his biography one wonders whether his numerous incongruous activities really be­longed to one and the same man. The astonished reader asks himself: â€?am I having a hallucination or were there in fact two different men with the same name?’ And in a sense there were indeed two Karl August Eckhardts. There was the scholar who produced, among many other works, critical editions of the Lex salica and the Sachsenspiegel and whose total output amounted to some 30,000 pages in print, but there was also another Karl August Eckhardt, who became a Sturmbannfuhrer in the SS, a close friend of Reichsfuhrer SS Heinrich Himmler, and the au­thor of vapid studies on â€?Earthly immortality: Germanic belief in the re-embodiment in the kin’.^[166] The fact remains neverthe­less that the medievalist and the SS man were one and the same person, even though reading about him remains an uncanny experience. It was, in those circumstances, not surprising that finding a scholar to write Eckhardt’s obituary in the authoritative Savigny-JeitschriftfurRechtsgeschichte took a long time. When even­tually it came out, in ι 987, eightyears after Eckhardt’s death, the author, Hermann Nehlsen, explained that few colleagues were prepared to undertake the task because of Eckhardt’s behaviour in the years ι 933-45.^[167]

We shall here proceed briefly to outline Eckhardt’s curriculum vitae in the form of two �parallel lives’, even though they concern one and the same person. We shall first present the learned jurist and university professor, and then the Sturmbannfuhrer and member of Himmler’s Ahnenerbe (�Heritage of the Forefathers’), a research centre for genealogy and the tracing of Jewish and Aryan ancestry. Afterwards we shall see whether it is possible to link the two together in a way that makes sense.

Karl August Eckhardt was a brilliant young man who ob­tained his doctorate in law in Marburg in 1922 with a study on a medieval German lawbook. Thereafter he studied in the Faculty of Philosophy at Gottingen, where he became a Privat- dozent in 1924 - not yet twenty-three years old. By ι 928 he was already a professor ordinarius at Kiel, teaching legal history and civil and commercial law. After a brief spell at a commercial high school in Berlin he obtained, in 1932, a chair of German Law and Commercial Law at Bonn. He was a prodigy, who at the age of thirty-one had already been offered three posts as professor ordinarius and could boast some seventy publications. After a year as dean of the Bonn Law Faculty he went briefly back to Kiel and, in 1935, became a professor in the university of Berlin, before going back, in ι 937, to Bonn, where he stayed for the rest of his university career, occupying the chair of Germanic Legal His­tory, Family Law and Genealogical Research. His main scholarly attention during those years was on the edition of medieval law­books. After the war he was dismissed from his university post for political reasons (on which more in a moment), granted a pension and retired to his native town of Witzenhausen. Here he applied himself with obsessive devotion to the publication of medieval sources and the creation of series of studies and edi­tions, in such abundance (and with so many revised editions and reprints) that he drove librarians and bibliographers to despair.^[168] His astounding output assures him of a place among the great monstra eruditionis of the past, in the company of a Du Cange and a Theodor Mommsen. Doubtless his most outstanding achieve­ment was the edition in 1962 and 1969 of the Salic Law in the Monumenta Germaniae Historica. Bringing out this standard edition was a remarkable achievement because there exist several ver­sions and numerous manuscripts with variants, stretching over several centuries (the oldest version of the Lex Salica probably dates from the early sixth century). Until Eckhardt, all attempts at a critical edition of that famous text, which from the start had been on the programme of the Monumenta Germaniae Historica, had failed. Some great medievalists and legal historians (G. H. Pertz, R. Sohm) had given up in despair and one edi­tion, by Mario Krammer, was already in print when a final critical evaluation by a body of experts led to the destruction of all the copies (except one or two which are now museum pieces). Like many of his fellow scholars the retired professor Eckhardt was honoured with a collection of studies on the occasion of his sixtieth birthday. The Festschrift contained fourteen articles on town and country history and the preface praised Eckhardt’s merits as a local historian (which he was, among many other things, as already by ι 925 he had written a history of his native town).⁶⁸

Let us now turn our spotlight on Eckhardt the Sturmbannfuhrer. While a student in Marburg young Eckhardt had as a volunteer fought the attempted communist take-over in Thuringia in the spring of 1920, but he showed no further interest in party poli­tics until he, ten years later, became involved with the National Socialist movement in Kiel. It was a speech by Hitler to the Berlin students, in December 1930, which won him over once and for all. In May ι 931 he joined the SA, in 1932 he became a member of the party and in October 1933 he joined the SS (he became Sturmbannfuhrer in 1938). He soon joined Heinrich Himmler’s High Command and became a member of the latter’s personal staff. In ι 934 he was appointed to a leading adminis­trative position in the Ministry of Science and Education, and launched himself with zeal into the reform of the universities and the renewal of their teaching staffs, all, of course, in line with the new regime. He was responsible for law, politics, economics and history, and as such one of the most powerful figures in the academic world. He was, by the way, instrumental in abolish­ing the autonomy of the universities — a well-known thorn in the flesh of political masters — and was the author of a â€?criminal

⁶⁸ O. Perst (ed.), Festschrift zum 6o. Geburtstag von Karl August Eckhardt (Marburg/Lahn and Witzenhausen, 1961, Beitrage zur Geschichte der Werralandschaft, 12). The Preface, which remains completely silent about Eckhardt’s political role, explains that several scholars had declined to contribute because of pressure of work, but that they all said how sorry they were and that he deserved this form of literary thanksgiving. ordinance for students’, aimed at disciplining this sometimes un­ruly segment of the population.

In the meantime his collaboration — and friendship — with Himmler continued: in i g4i he produced — together with two SS Brigadefiihrer and other SS officers — a Festschrft for him on the occasion of his fortieth birthday. Along the same lines Eckhardt became leader of the Deutschrechtliches Institut des Reichsfihrers SS, a department of Himmler’s Ahnenerbef^g

As a convinced Nazi, Eckhardt was antisemitic.⁷⁰ This in­volved him in the vexed question of how Christians could be anti-Jewish when Jesus Christ himself was of Jewish origin. To this issue Eckhardt devoted a long article under the title â€?Was Jesus a Jew?’ and, as other antisemitic authors in France and Germany before him, came to the â€?on scientific grounds irre­proachable conclusion that Jesus was through neither his father nor his mother of Jewish blood’. Himmler, to whom the author sent his manuscript in December i g41, was personally inter­ested in the problem, and pleased with the text. He nevertheless advised against publication in the series of his Deutschrechtliches Institut, at least till after the war, probably out of fear of protest by the Churches. Eckhardt eventually did publish his paper at another place and under a different title, i.e. â€?The origin of the Messiah’.⁷¹ Himmler, who had given up his Catholic faith long ago, dabbled in Germanic pseudo-religious fantasies, even

^o' H.-J. Becker, �Neuheidentum und Rechtsgeschichte’, in Riickert and Willoweit (eds.), Deutsche Rechfgeschichte in der NS-Zeit, 2 o.

⁷⁰ That Eckhardt had, however, not given up the common decencies of a scholar — and that there was a good deal of infighting within the Nazi ranks — was shown by the incident around Professor Max Pappenheim’s obituary. Eckhardt had, in ig34, praised the scholarly achievement and the fine character of his Jewish predecessor in Kiel and he was said to believe in a distinction between â€?bad’ and â€?good’, or â€?corrupting’ and â€?German’Jews. This displeased Hitler so much that he intervened in the struggle for the appointment of a Director General of the Prussian State Archives. Hitler decided, in ig37, against Eckhardt because of his unsatisfactory attitude in the Jewish question, as shown in the Pappenheim obituary. See Nehlsen, â€?Eckhardt’, 5^o8-g.

⁷¹ â€?Die Herkunft des Messias’, ArchivfirReligionsgeschichte 31 (i g43), 257—31 7. See on all this Nehlsen, â€?Eckhardt’, 51 8—i g and Becker, â€?Neuheidentum’, i 5. The article stated that the author was solely concerned with religious science and did not want to enter into the theological implications.

dreaming of restoring the cult of Thor and Woden. Eckhardt, who had left his Protestant Church in ι 934, was also hooked by these strange metaphysics. He studied ancient Aryan and Germanic ideas on immortality and apparently convinced him­self that there was a Germanic sort of reincarnation through the kin — which linked up nicely with the Ahnenerbe. His Irdische Unsterblichkeit of ι 937, which we have already mentioned, very much pleased Himmler, who carried on a lively correspon­dence with the author. Eckhardt also espoused Himmler’s idea that the time had come — or would soon come after German victory — for Germanic neo-paganism to settle accounts with Christianity. He talked of the â€?bloody war of extermination waged by the Catholic Churches against the Aryans’ and he wrote to Himmler offering to accentuate the anti-Christian arguments in his Irdische Unsterblichkeit in a future popular edition.⁷²

It is also well known that the SS nurtured a special hatred of homosexuals. Eckhardt, who was interested in Germanic crim­inal law, praised capital punishment â€?which stemmed from the instinct to preserve the purity of the race’. In 1935 he pub­lished in the SS periodical Das Schwarze Korps an article under the unequivocal title â€?Unnatural sex deserves death’, in which he argued that according to Tacitus the ancient Germans drowned homosexuals in bogs; and he equated homosexuality with cow­ardice, explaining in typical Nazi style (with all the familiar bug­bears) that this Nordic-Germanic severity had been falsified and weakened by the doctrine of the Christian Church, the French Revolution and the emancipation of the Jews, which entailed the â€?danger of a complete corruption of the race’. Everyone knew, the author concluded, that â€?Germany stands and falls with the purity of race’⁷³. It is clear that Eckhardt believed in all

⁷² Nehlsen, â€?Eckhardt’, 520.

⁷³ Ibid., 516—17. The topic was far from academic. Himmler took severe measures against homosexual SS men: they were to be demoted, handed over to the criminal courts and after undergoing the punishment imposed by them, they were to be sent to a concentration camp and shot â€?while attempting to escape’. See on all this Stolleis, â€?Fortschritte der Rechtsgeschichte’, in Stolleis and Simon (eds.), Rechtsgeschichte im Nationalsozialismus, 196. this: he did not need to publish this sort of writing for the sake of his career for, as a university professor, he had an established position.

When war broke out Eckhardt was drafted into the army. His repeated requests to be transferred to the Waffen SS were unsuccessful. This was just as well, for heaven knows in what misdeeds he might otherwise have been involved. Instead, he spent much of the war in Paris, officially serving in Military Intelligence but in fact copying Lex salica manuscripts at the Bibliotheque Nationale. In ι g44 he was made a prisoner of war in Normandy. After the war the Denazification Authorities classed him as a mere party-hack Mitlaufer) — which was good for him, if not for his pride — and, as we have seen, he went to live in retirement in Witzenhausen. The contrast with the fate of his fellow-Nazi jurist Hans Frank was striking.

At the start of this presentation we wondered how the two Eckhardts could be reconciled with each other. The problem exists, however, for the other four men also, as they were all learned jurists and in varying degrees involved in Nazi politics or ideology. The moment has come to examine what led these aca­demics to sympathize with the Third Reich. As was predictable, this question provoked a lively discussion among the students. The general sentiment was that Germany’s bitter disappoint­ment after the World War led to the exacerbation of national feeling that was common to our jurists. Until November ι gι 8 and the ensuing Treaty of Versailles Germans had believed that the twentieth century would be their century. German science and culture as well as German economic and military strength were universally recognized. Her successful unification had put an end to centuries of division and weakness, so that the empire would at last catch up and even surpass the older nation states of Europe. In ιgι8 all these high hopes came crashing down: German culture was disparaged, the economy was crippled with war reparations and the monarchy, which had symbolized re­gained glory, was replaced by a republic which, among other things, had signed the humiliating Treaty of Versailles. Wounded pride and even a feeling of despair led to the exaltation of past German greatness and the virtues of the Germanic ancestors. The shock of the events — the flight of the emperor, the procla­mation of an unstable republic, various attempted communist take-overs — provoked a nostalgia for the â€?good old times’. Many jurists lived in enmity with their own time and invented a past of their dreams to meet the challenge of the awful present.⁷⁴ They so desperately hoped for national redemption that their scholarly training and critical sense were overcome by emotion, and there seemed to be no limit to their self-delusion.

The exaltation of the German traditions went hand in hand with aversion to Roman law and alleged Jewish influences. Article 19 of the NSDAP programme was, as we have seen, ex­plicit on this point: Roman law was individualistic and capitalist and a foreign body, which had to give way to the community feel­ing of the good old German law. Some students expressed sur­prise at discovering the extraordinary impact of this mythology on the roughly 20,000 participants in the Deutscher Juristentag at Leipzig in ι 933, who visited an exhibition devoted to â€?German law and the struggle against foreign law’ and listened to speeches on the learned lawyers’ law and the people’s law (Juristenrecht as opposed to volkisches Recht) and against individual fundamental rights.⁷⁵

Legal historians disagree on the importance of the famous art. 19. Koschaker, who devoted a chapter of his book Europe and Roman law to the question, minimized its impact on legal policy, and poked fun at popular but ignorant party orators who decried Roman law as the enemy of the peasants before equally ignorant audiences in the countryside, �who may well have gained the impression that Roman law was some pernicious

⁷⁴ See on this widespread human reaction: E. Hobsbawm and T. Ranger (eds.), The invention of tradition (Cambridge, ι 992).

⁷⁵ Leipzig witnessed a torch-lit procession, and heard one particularly insane address on the impact of Nordic man on China and Persia, besides a speech by Hitler and much racist talk. See Landau, â€?Die deutschenJuristen und der nationalsozialistische DeutscheJuristentag in Leipzig’, 373—90. sort of foot and mouth disease’; he also made the cynical remark that law students who failed their Roman law exam might have applauded art. ι 9. Koschaker also pointed out that it had to be understood as one of a series of socialist articles, but he nev­ertheless found it truly mysterious, because he was at a loss as to its origins.^[169] Recent research, by Peter Landau, has solved this riddle and uncovered the forerunners and the author of art. i 9.^[170] Landau also attaches more importance to the 1920 programme than Koschaker and says that even if art. i 9 was not widely understood by the party members, it nevertheless contained representations resulting from the popular view of the legal past, in which he distinguished three elements. Firstly, the existing law, i.e. the Civil Code of 1900, was Roman based, materialistic and therefore to be rejected. Secondly, the German Gemeinrecht was extolled because it embodied the idealistic values of the German nation: in spite of the Rezeption the conservative tradition of German legal thought was never lost. And thirdly, this tradition implied the existence of a homogeneous nation and needed a legal theory based on folk and race: a â€?doctrine according to the law of race’ was required.^[171]

Gemeinrecht or community law was a loaded term, because of the debate on the merits of community versus society (Gemein- schaft as opposed to Gesellschaft). The sociologist Tonnies had praised �community’ as a person’s organic ties to intimate social life, to family and relatives, to neighbourhoods and friend­ships, to village and city, as against �society’ with its mechan­ical relationships shaped by conflicts of interest, contractual relationships and the loss of all ties, loyalties and values.^[172] The Middle Ages were idealized — here we meet the nostalgic reflex again — as the great era of the community, whilst modern society was condemned and consigned to destruction.^[173]

Several students felt that the fear of bolshevism was another powerful agent. There is indeed no doubt that western Europe in general and Germany in particular were obsessed with the Soviet Revolution and the abortive bolshevik republics in Hungary, Bavaria and Thuringia. Some of our five jurists had even joined paramilitary groups to fight the communists. It is clear that they, like many others, and not only in Germany, saw Hitler’s anti­communist party as a welcome dam against the threat from the East. Other students felt that the decline of the traditional Churches helped to explain the rise of secular religions dedi­cated to the glorification of race, the reintroduction of the cult of the Germanic gods and other ingredients of the �Myth of the Twentieth Century’.

That Germans were attached to German law was no problem for the students: after all, the English are proud of their common law and the French of their civil code. But what intrigued them was how twentieth-century Germans raved about the virtues of their Germanic ancestors of two thousand years ago. How could those Teutonic warriors, who kept Roman civilisation out of their forests east of the Rhine, were illiterate heathens, animists and slave-owners and lived in Grubenhauser (half-sunken huts), be a source of inspiration for the subjects of Wilhelm II? They admittedly overran the western Roman empire and founded Germanic kingdoms in Gaul, Britain, Italy and Spain, and they produced Charlemagne, one of the most eminent monarchs of European history, whose mother tongue was Frankish, a West Germanic language. Also, Tacitus had lauded their personal virtues and their free institutions, but was his Germania not in fact a veiled attack on the corruption of his own society rather than an exact description of reality? In any case it remained a mystery how the rustic tribal law of Clovis (Chlodovech, the �illustrious fighter’) and his primitive farmers and cattle-holders could be a source of pride and inspiration for the industrialized German empire.

It soon became obvious that the explanation was to be found in the projection of present-day concerns on to a mythological past. Moreover, this Teutonic enthusiasm was in no way limited to Germany, but was shared by Anglo-American historians and lawyers and even by Frenchmen like Montesquieu, who extolled the achievements of the ancient Germans and maintained that they were the ancestors of the French nobility, the mass of their subject peasants being descended from the conquered natives of Gaul.

An early English spokesman of this Germanism was Henry Spelman, a graduate of Trinity College, Cambridge, a student at Lincoln’s Inn and a member of the Society of Antiquaries in London, where he pursued a life of scholarship and published, inter alia, a dictionary of medieval legal terminology, called the Archaeologus. In ι 635 he endowed a readership at Cambridge to promote the study of Anglo-Saxon. Spelman believed that the common law was rooted in the Anglo-Saxon past, so that it ultimately went back to the ancient Germans, whom he called â€?a prime and most potent people’.^[174]

The next famous defender of the Teutonic forests was Bishop William Stubbs, Regius Professor of Modern History at Oxford from 1866 to 1884, when he became a bishop, first of Chester and then of Oxford. He believed in the �Germanic roots of Anglo-American freedom’, as we explained above (p. 97).^[175] Being a true erudit did not stop Bishop Stubbs having strong prejudices: he liked the Germans and �could not bear the French’, calling them �liars’.^[176]

Stubbs’s Germanic path had been prepared by lesser scholars: in 1849 John Mitchell Kemble, who had studied under Jacob Grimm, published in London a work in two volumes entitled The Saxons in England, in which he stressed the Germanic character of the conquerors of Roman Britain.

Historical myths are untrue but useful, and the Germanist myth was a mode of rationalizing the juristic and political desire of the time. It more specifically served to combat Romanism, both in the political and the religious field. To Bishop Stubbs Rome stood for the Catholic Church, popery, intolerance and a threat to the liberal Anglican tradition. Stubbs was not only pleased that the Church of which he was a bishop had, ever since the Reformation, been free from papal control, he went a step further and believed that even before the sixteenth century the English Church had, as Richardson and Sayles put it, �success­fully resisted all attempts by the mediaeval papacy to encroach upon its primitive and native authority’.^[177]

However, the Oxford medievalist went too far in the pro­jection of his concerns on the distant past. His thesis was re­futed by W F. Maitland, who showed that the medieval English Church had lived under the universal authority and legisla­tion of Rome, as did everyone else in the Latin West.^[178] As Richardson and Sayles again put it: �He projected his bias into the Middle Ages and, interpreting the evidence in the light of a cherished doctrine, he failed to see the real problem.’^[179] To the common lawyers, who in this respect were on the same wave­length, Roman law stood for absolutism, slavery and foreign interference. They knew that in the struggles of the seventeenth century, their predecessors defended Parliament, whereas the civilians inclined in the other direction. The Elizabethan lawyer and antiquary William Lambarde praised the common law as �standing upon the highest reason selected even for itself’ and added that �English law was like a wall built of stone and oak to defend a city’.^[180] Absolutism inspired by imperial Rome was the enemy that threatened the English �city’ and its defender, the common law. More than three centuries later, but in a similar vein, Roscoe Pound, of the Harvard Law School, viewed the history of the common law as a series of victories over succes­sive attacks launched by Roman law, both in its secular and its ecclesiastical guise.^[181] As he put it, in anthropomorphic imagery, �the common law has passed triumphantly through more than one crisis in which it seemed that an alien system might super­sede it; it has contended with more than one powerful antagonist and has come forth victor’.^[182] Pound then proceeded to name the repulsed enemies of the common law. In the twelfth century it was the Church, �the strongest force of that time’. In the sixteenth century, �when the Roman law was sweeping over Europe’, the common law stood firm. In the seventeenth, the common law �contended with the English crown’. In America, after the Revo­lution, it �prevailed over the prejudice against all things English, which for a time threatened a reception of French law’ (even here the civilian danger was not far away). And the author con­cluded, with obvious relief, that �the triumph of the common law’ seemed secure, even though — he warned the reader — this was only �superficially’ so, as �at the very moment of triumph’ a new crisis was at hand (but that is another story that need not detain us here).^[183] The English lawyer and legal historian Frederick Pollock had not felt differently when he wrote that the �homegrown stock of legal institutions... grew up in rugged exclusiveness disdaining fellowship with the more polished learning of the civilians, and it was well that they did so’.^[184] Nearer to our time, the Cambridge legal historian John Baker stressed that although the common law was aware of continen­tal models, it withstood �two waves of Romanist influence which swept across the Continent’ and was immunized against any �fatal infection’ by the civil law because early royal judges had been in touch with the new learning from Bologna.^[185] In Ger­many also, as we have seen, Roman law stood for slavery and betrayal of hallowed native values.

But it is time to conclude this exercise in deconstruction. Clearly, when the Germanists extolled the old Nordic val­ues, they were saying that their Teutonic ancestors — who, af­ter all, had beaten the Romans both in Britain and on the Continent — were as ancient and noble as the Mediterranean nations that produced the Corpus iuris. There was therefore no reason why they should give up their native laws — or their na­tional Churches — in favour of foreign imports.^[186]

That external factors have an impact on the law is obvious enough: we have studied in some detail how the cultural cli­mate in twelfth-century Europe led to the rebirth of ancient Roman jurisprudence and how, in nineteenth- and twentieth­century Germany, political concerns and patriotic passion were focused on the Civil Code. It would, however, be a mistake to underrate the internal logic that operates within legal systems and determines their progress independently of cultural fashion or political pressure. Generations of civilians distilled their con­cepts and norms from authoritative premises by applying the rules of logic. Thus we can trace the continuous refinement of the notion of tort through a span of more than two thousand years, from the Lex aquilia to art. 1382 of the Code civil. Simi­larly, Englishjudges patiently formulated, in the course of many centuries, certain fundamental norms on the strength of prece­dents and obiter dicta handed down by their predecessors; those judges applied the eternal equitable and reasonable principles of the common law to the cases before them, irrespective of the commotions and upheavals that raged outside the sacred halls of their courts.

Whether external events or internal logic is more important for the development of the law is a moot point. It reminds us of the discussion that separates the �reductionists’ from the �autonomists’ in the history of science. Here also some authors stress the role of external factors and �reduce’ the progress of

¹ These final pages are based on an address given at Maastricht in July 1999 at the Graduation Ceremony of the students in the Magister Iuris Communis Programme.

science to the demands of trade, industry and warfare: for them modern science satisfied the requirements of modern capital­ism and national defence. Other scholars, however, stress the �autonomy’ of the great inventors who, through successive cen­turies, searched for the laws of nature, following in the footsteps of their predecessors and discovering - or stumbling upon - the secrets of the material world and of the movement of the stars; they often pursued their seemingly irrelevant work in libraries and laboratories, irrespective of what society at large believed or wanted, and sometimes suffered for their discoveries at the hands of displeased dignitaries.

What concerns us more directly here is the road Europe is likely to take. Will the shaping of a European law — and the scholarly reflection on it — be determined by external pressure or will the internal strength of the system prevail and allow it to find its own way, adhering to its own intrinsic values? The outcome will, of course, depend on who �the makers of the law’ will be in twenty-first-century Europe — the courts, the Law Faculties or the elected assemblies. The answer to that crucial question is difficult to forecast, not only because it involves a good deal of crystal-ball gazing, which is not the historian’s province, but also because different nations have traditionally approached this issue in different ways. Indeed, the age-old En­glish instinct is to say, with Lord Denning, �trust the judges, for they are the true guardians of the law’. The German feeling, which also goes back several centuries, is to say, with Savigny, �trust the learned jurists, for they are the best guides through the thickets of the law’. The French instinct, on the other hand, is to say, in true Jacobin and Napoleonic vein, �trust the legis­lator and beware of judges and jurists who pervert the codes’. As none of these traditions is the sole road to salvation, a truly European law ought to contain the most helpful elements of each one of them. This entails that legislators issue binding laws, that judges build a solid case law on those foundations, and that jurists provide the conceptual framework and the necessary re­flection on the finality of the system as a whole. This may seem a daunting task, but it does not imply the creation of a body of law ex nihilo, since it will profit from the experience of many centuries in several countries. History has shown the usefulness of binding laws and codes for the certainty of the law, but also the merits of judicial creativity, as well as the advantages of a legal science which provides the required critical and fundamental reflection. Readers who shake their heads in disbelief might consider that the European Union has come about under their own unbeliev­ing eyes. So why could the combined efforts of the Assemblies, the Faculties and the Bench not lead to a European law, that could emulate the Old European Age?

Legal history does not simply deal with a past that is over and done with: it deals with the past of Europe’s future. It studies the antecedents of the challenges facing the lawyers who are en­tering the twenty-first century, one of which concerns European unification and more particularly the clash between internation­alism and nativism. We cannot understand our predicament at the beginning of a new millennium unless we know and un­derstand what brought us here. Two problems connected with European unification will no doubt engage the attention of the young lawyers of today, who are the leading jurists, judges, bar­risters and lawgivers of tomorrow: the unification of private law and the elaboration of a federal constitution.

In private law both universalism and localism have a powerful hold on the European mind. Both can boast of a great past, and neither will ever evict the other completely. Today’s young lawyers naturally have the ambition to bring about change and to do better than their predecessors. They are too wise, however, to think they can change everything, emulating Cambaceres’s illusion expressed in 1793 �de tout changer a la fois dans les ecoles, dans les moeurs, dans les coutumes, dans les esprits, dans leslois d’un grand peuple’. They know that a legal system is like a large ocean-going vessel: one cannot suddenly bring it to a halt or change its course. These manoeuvres take time, as too brusque a movement might make the ship capsize or send her on the rocks. Nevertheless, change is necessary and change there will be. European law in the twenty-first century will present a different face, in contract, intellectual property and civil procedure, and more generally in the whole area of private law. The rise of a common European jurisprudence — a new ius commune — is on the cards. It is, however, unlikely that this common doctrine will produce one civil code regulating every aspect for every country from Ireland to Poland (let alone the Urals). National and regional traditions and feelings are a reality we have to take into account, even though their importance should not be exaggerated, as some successful �legal transplants’ have shown. Nevertheless, as universalism and nativism are bound to clash, let us have a closer look at these two attitudes.

Universalism — one might also call it cosmopolitanism — is the ambition of jurists to create a law and a legal science that are valid for vast areas, surpassing local variation and even reaching a timeless validity based on pure reason. This global jurisprudence is separated from the culture which produced it and has its being outside history; it is the �common law’ of the scholars — if not of ordinary folk — and has no links with a particular country or ethnic or religious group.

Such was, as we have seen, the ius commune of the Old European Age, the lodestar of the small but influential cosmopolitan club of Latin-speaking jurists who studied and taught Roman and canon law from Aberdeen and Oxford to Cracow and Naples. Such also was its successor, the natural law of Grotius, Pufendorf and Domat, author of Les Lois civiles dans leur ordre naturel (the very title of whose work assumes that there is one natural order, and not one valid this side of the Pyrenees and another beyond them). This ambition to create universal norms deserves our admiration, for it is a noble aim and of respectable antiquity. Nevertheless, neither the ius commune, based on Justinian, nor the ius naturale, based on nature as perceived by reason, ever be­came the positive law of the European nation states and their codes: nativism and indigenous customs were too powerful. So, what is nativism — which one might also call nationalism, local­ism, regionalism or even parochialism (which it certainly was in the eyes of the enlightened judges and university-trained functionaries in the supreme courts and governments of mod­ern Europe)? It describes the proud attachment of large king­doms or small village communities to their national codes or customary laws. It stems from human diversity, a different past and a different environment. This iusproprium relates to people’s own ways of doing things and expresses their national identities. Nativism rejects the notion that laws can and should be univer­salized, and feels, on the contrary, that they have grown naturally and organically in particular places and over particular periods of time.^[187] Europeans will not turn into one grey mass of identical individuals who see the same films and watch the match between Manchester and Munich in their millions. Englishmen will be English and Germans will be German, and they will rejoice or weep accordingly. Localism means gut reactions and the simple cares of every day and everyman.

If law is part of the national character and if it is the expres­sion of the Volksgeist, does a supranational European law stand a chance? There are, as we mentioned before, numerous �legal transplants’ to show that there is no need for despair. Justinian’s Corpus iuris is probably the best illustration of a legal system crossing the most improbable cultural frontiers. This great en­cyclopaedia of ancient Roman wisdom was compiled and pub­lished as law, not in Rome but in Constantinople, in the Greek and not the Latin part of the empire where most Roman law had originated. This is where the first transplant of Roman law took place. The promulgation of this Latin lawbook for a Greek­speaking commonwealth led, of course, to problems of transla­tion and interpretation. People in the sixth century tried to cope with them, but thereafter hardly anyone in the Byzantine empire learned Latin, nor were there any law schools. Consequently seventh- and eighth-century Byzantium was almost as ignorant of classical law as the Germanic kingdoms in the West. It was the merit of the emperors Basil the Macedonian (867 —86) and Leo VI the Wise (886-911) that they reversed this situation and, in the late ninth century, launched an ambitious programme for the rediscovery of the �forgotten’ lawbook of Justinian. Their main aspiration was to establish a reliable and complete Greek text of the Corpus, cleaned of old imperfections. Their endeav­our was called the �purification of the old laws’ and amounted to what may be called the first Reception of Roman law, com­parable to the one which took place in the West three hundred years later. On an elementary level the jurists compiled bilingual glossaries - conserved in more than a hundred manuscripts - and, on a more advanced level, devoted elaborate works to a more profound understanding and assimilation of classical legal thought. One famous result was the Basilica promulgated by Leo the Wise, a systematic re-codification in Greek of Justinian’s lawbook, which led in its turn in the tenth century to glosses and commentaries. It should be noted that this Byzantine �reception’ was not considered a taking over of a foreign body: the East Roman empire saw itself as the continuation of ancient Rome, and its emperor styled himself�basileus of the Romans’. Hence living according to ancient Roman law was no problem: �Roman’ and �Byzantine’ law were not different.^[188]

In the West, the rediscovery of Justinian produced the ius commune, which became in its turn the gemeines Recht, the national law of modern Germany. Its latest flowering was the Pandectist School whose teaching passed into the Burgerliches Gesetzbuch. And to cap it all, this Roman-German law was, in ι 898, adopted as the Civil Code of westernized Japan. What happened to the poor Volksgeist, in this â€?journey round the world in fifteen cen­turies’ (and involving four languages, Latin, Greek, German and Japanese)?

The answer to the problem of universalism versus nationalism seems to be twofold. Firstly, let intrinsic quality rather than na­tional sentiment be our guiding star. If localism corresponds to sincerely held values in a given community, it should, of course, be granted due attention, but not if it is merely the dead wood of obsolete usages, whose raison d’etre is lost in the mist of time. Secondly, the authorities should proceed with caution, not im­posing a Diktat but seeking a consensus. Let us, if we introduce new codes, leave possibilities for escape routes in order not to hurt susceptibilities. We should, in other words, seek the via media between academic rootless cosmopolitanism and down-to-earth nativism. The defenders of both these attitudes should learn to understand each other’s point of view and realize that both are legitimate and useful in their different ways. Europe has expe­rienced this sort of peaceful co-existence in the past. Even the medieval Church, which was the ultimate model of universalism, knew local synodal legislation and tolerated a variety of customs in the margin of the great shared principles.^[189] Nor does our own world ignore this sort of symbiosis: the examples of Scotland, southern Africa and Spain come readily to mind.^{[190] [191] [192] [193] [194] [195] [196]}

Ifprivate law will occupy the minds of European lawyers, pub­lic law will demand no less attention: the European constitution will be the second challenge in the new century. A unified Europe that obliterates old nation states and turns itself into one vast cen­tralized superpower, where national identities are drowned in a faceless bureaucracy, is neither possible nor desirable. But a loose alliance or mere customs union of the old sovereign states that were responsible for terrible fratricidal warfare will not satisfy the dream of European unification which took shape at last after the Second World War. The obvious solution for this conundrum is a federal constitution, where existing countries and regions continue to function in direct contact with the people and their needs, but matters of common interest — defence, foreign pol­icy, currency, protection of human rights — belong to a higher, federal authority. The contest between what the French call the souverainistes and the federalistes is still going on, but once a polit­ical decision is reached and the federal idea wins the day — as now seems likely - jurists will have to work out the appropriate legal system with all its nuts and bolts. One problem they will face concerns the different familiarity with the very notion of a federal constitution within Europe: German lawyers live in a federal republic and are naturally aware of the way it func­tions, but French lawyers, born and bred in the ideology of the republique une et indivisible, have had no experience with federalism and, except for a few comparatistes, have never even heard of it. Such differences are an obvious stumbling block on the road to a European federal constitution and, as they have grown histor­ically, it is appropriate here to have a look at the past.

For many centuries large political units were built by imperi­alist wars and forced assimilation. The Roman empire was the most impressive success story of Antiquity and a model for the unitary centralized Roman Church and the European nation states. The kingdoms of France and Spain are the outstanding examples of unitary monarchies built on the debris of regional fiefdoms; German history took the opposite road and ended up with a loose conglomerate of free territories and cities which were sometimes at war with each other and whose only imperial ele­ment was its name. While these opposite evolutions were going on, an interesting development took place in the Low Countries, where first under Burgundian and later Habsburg rule a nation state arose with a distinct constitution. The Seventeen Provinces of Emperor Charles V were less than a unitary monarchy but more than a loose alliance under a nominal head of state. They can best be described as a federal monarchy (as they consisted of seventeen dukedoms and counties, which all had their own political identity, courts, estates, privileges and customs). They had a common ruler and there were similar rules of succession ensuring that they would always remain together. Their union was, however, not merely personal, because they lived under common central — we could call them federal — governmen­tal, fiscal and judicial councils. They were independent both of the kingdom of France and of the German empire so that they formed a new sovereign nation state which was perceived as such by the rest of Europe. After the revolt against Philip II and the rise of the Republic of the United Netherlands in the north, the existing structure was continued there: the Republic was a federation of seven sovereign provinces, but enjoyed com­mon central institutions and acted on the European scene as one independent country. This federal experiment was a break­through in the history of constitutional law, as it was unknown to Roman imperial thinking. It acquired world-wide importance when it was adopted by the Thirteen Colonies in America, whose federal constitution was followed by several modern countries, most notably the Weimar Republic and the German Federal Republic. It is ironic that the country where it all started, the present-day kingdom of the Netherlands, gave up federalism in the early nineteenth century and became a unitary nation state.

Nowadays the federal formula, ensuring unity without op­pression and offering a middle course between a crushing Jacobin unitarism and an anarchic array of local fiefdoms, is making headway. Interestingly this happens both at the European level — with a European government, law courts and parliament — and in some old nation states: the regionalization in Italy and Spain and the federalization of Belgium come to mind, but the most exciting experiment is taking place at this very mo­ment in the United Kingdom, where the identity of Scotland and to a lesser degree Wales and Northern Ireland is recognized and expressed in distinct governmental organs. This may one day even lead to a separate English assembly and an overriding British parliament for the four parts of the United Kingdom. The novelty of this development, which is alien to British con­stitutional traditions, predictably upsets some observers, who grumble about a disunited United Kingdom. Others, however, see it as a positive development which, far from breaking up the present kingdom, will safeguard it by achieving a necessary adaptation to new popular moods and needs. Whatever the fu­ture holds, federalism, which recognizes regional aspirations and cultural minorities instead of alienating them, will need the skills of our jurists, both at the national and the European level. It is an interesting thought that while Britain is taking the federal road within its borders, it still seems to be offended by the no­tion of a European federation. This is allegedly because of its attachment to absolute parliamentary sovereignty which in real­ity, because of the supranational authority of European treaties, legislation and judicial decisions which override the national law of all member states, already belongs to the past.^[197]