Empire of Law

Abstract

What emerged from the works of the exiles was a powerful new theory on the shared European legal past that laid the foundation for 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 a liberal European legal culture. This theory was further developed by legal scholars and historians 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. Thus, the formulators can be divided into two distinct groups, 1) exiles and outcasts, those who were driven from their posts and 2) the collaborators and bystanders, who either thrived in the new circumstances under the Nazis or managed to avoid controversies. Of the first group, I have selected three significant scholars, of which Fritz Schulz (1879-1957) 6 and Fritz Pringsheim (1882-1967) 7 were exiled 8 in Britain, while Paul Koschaker (1878-1951) 9 was sidelined and retreated to a provincial university. From the second group, I have selected two younger scholars, Franz Wieacker , 10 a pupil of Helmut Coing (1912-2000), 11 whose post-WWII careers cemented the position of the common past theory. Their works are contextualized by juxtaposition and comparison with contemporaries such as Hannah Arendt,

Mobilizing the Western tradition for present politics: Carl Schmitt’s polemical uses of Roman law, 1923–1945

“…As Kaius Tuori shows in his recent work, for romanists critical of the Nazi regime, the history of Roman law had started to function as a kind of a 'surrogate arena' for political debates in which they could express political opinions indirectly. 123 Schmitt's analysis of Roman law stands in an especially polemical relationship to the works of the romanist Fritz Schulz. Schmitt was actively engaged in the ousting of both Schulz and the Jewish legal scholar Erich Kaufmann from the university of Berlin, where Schmitt became an Ordinarius on the first of October 1933.…”

Hermann Kantorowicz and Hans Kelsen: from debating legal sociology to constructing an international legal order

“…Likewise, comparisons between Kantorowicz and other scholars have been made, primarily Walter Ullman by David Ibbetson in his 'double biography', 5 but also to his (otherwise unrelated!) namesake and fellow Mediaevalist Ernst Kantorowicz, who like Hermann ended up in England in the 1930s, 6 and more recently to the legal philosophers Gustav Radbruch, Emil Lask, Herbert Hart and Karl Llewellyn. 7 The value of these comparisons is that by virtue of the juxtapositions based on differences and similarities in the lives and thought of these scholars we may comprehend better how and why they may have come to certain concepts and ideas.…”