Year: 2004
Type: article
Abstract: The central theme of this collection of essays is wonderfully evoked by the photo on its cover of a sculpture ^'Liberated Man'.The gaunt and shaven-headed ¢gure huddles with his back turned towards the future, but his hands are ¢rmly clasped over his face, obscuring his vision of the past.As Europeans wrestle with the problems of integration and engage in experiments with a constitutionalism that transcends national boundaries, do they need also to take account of the past of Nazism and fascism?The answer the book gives is 'yes'.Collectively the essays are supposed to make the point that one cannot construct a liberated legal future without paying serious attention to the past from which one hopes to be liberated.W|th nineteen essays, plus a substantial and customarily insightful prologue by the foremost historian of Germany's legal order, Michael Stolleis, and a customarily feisty epilogue by the most distinguished constitutional theorist of Europe, Joseph Weiler, the book provides an opportunity for both an unrelenting stare into the past and a justi¢cation for that stare.The justi¢cation goes beyond a claim that the past is likely to repeat itself if it is not thoroughly confronted.It includes the thesis that the principal ¢gures of fascist and Nazi legal thought posed a question which no constitutional experiment can a¡ord to ignore ^the question of the basis upon which a political unity can successfully be founded.Is it su⁄cient, with Jˇrgen Habermas, to posit a constitutional patriotism, an allegiance to the values of liberal democracy?Or is something thicker needed ^something which can ground the substantive homogeneity of the Volk, the Schmittian idea which occupies many of the authors?The two parts of the justi¢cation combine at least in the thought that if the past is not properly confronted, volkisch elements will play their role below the surface of liberal legalism.But more important for some of the contributors is the claim that the issue is not just about bringing those elements to the surface in order to eradicate their in£uence.Rather, one has to see that one cannot simply choose Habermas over Schmitt in reaction to Schmitt's repugnant views about homogeneity, because Schmitt was right that something beyond liberal democratic values is as a matter of fact constitutive of every successful political unity and so every successful legal order.If the European project of integration is to make any sense, it must make sense for reasons other than a commitment to the rule of law, human rights and so on, since all the countries involved in the project are already so committed, even if some of the countries that are seeking participation have only recently made such commitments and have still a long way to go in turning theory into practice.These ideas are thoroughly and perceptively canvassed by Weiler, Joerges, Neil Walker and John McCormick.But perhaps one does not really need a detailed account of Europe's legal past to engage in this kind of debate.Weiler's passing remark in his Epilogue that he does not ¢nd the generation of German lawyers of the 1930s all that interesting might
Source: Modern Law Review
Author: Steve Tombs
Institution: Liverpool John Moores University
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W2044935948