Kaius Tuori’s article “Narratives and Normativity: Totalitarianism and Narrative Change in the European Legal Tradition After World War II” appears in Law and History Review 37.2. He has agreed to answer a few questions about the findings of his article, his broader research on the Roman legal tradition, and the idea of “Europe” in legal history.
The Docket: Your article investigates how norms and institutions supporting European integration arose after the defeat of Nazism and the eclipse of far-right nationalism. This process was much more complicated than a simple reaction to fascism. You argue that exiled German legal scholars in the 1930s were important founding thinkers in the development of a story about European legal heritage rooted in Roman law. Why did these scholars take up the subject?
Kaius Tuori: For lawyers and legal scholars, the Nazi attack on legal ideas and institutions that began in 1933 was an attack on issues that were considered self-evident, such as equality and rule of law, but equally the very notion of law as law. For example, the racist categories and the elevation of the will of the Führer above the law prompted them to answer the question of why these notions should be considered self-evident. Another great influence was exposure to the British and American legal culture, especially in conjunction with their own experience of exile. These combined led to some very fundamental questions: why are things as they are and what value do they have. The return to history and tradition was in part a response to the realization that law has and has to have a foundation beyond the state.
After the end of the war, the legal narrative of Roman inheritance did somewhat different work in the hands of other political blocs (including Germans reconsolidating power in incompletely “de-Nazified” institutions, and conservative leaders of other European states). Can you describe the varied strains of the Roman narrative and their relationship to each other?
The thing about arguing through history is, as one notes in politics, that it has a tendency to become conservative. Things should be this way because they have always been this way. There are of course examples to the contrary, progressive ideas can also be promoted with historical examples. When Schulz and others argued for ideas such as freedom, they were in fact presenting a conservative argument against the radical Nazi revolution. Roman law has a long history of furnishing examples for arguments for all sides of the political spectrum, when you have two and a half millennia of history there is no shortage of material. Thus progressive notions such as land reform were both opposed and promoted with Roman legal arguments. It was something of a historical coincidence that when Europe began to fall into two intellectually opposing parts after WWII, the legal heritage of freedom, equality and rule of law (including protection of private property) tracing back to Rome became the uniting factor in Western Europe against the Soviet block.
Despite its contradictory elements, that narrative was crucial to advancing European integration and the postwar liberal human rights order. How did such a protean narrative cohere to guide institution-building?
The ideas of a private law founded on the principles of Roman law and the realm of public law that traced its notions of individual liberty from natural law, primarily human rights, have always been more of less idealistic and utopian. I have tried to demonstrate that they did influence many of the key figures of European legal integration, from Pierre Pescatore (one of the most influential judges at the European Court of Justice) to Walter Hallstein (the first president of the EEC Commission). However, it was first and foremost an ideal of the unity rather than an actual, existing unity. European private law is heterogeneous and as the use of the margin of appreciation in the European Court of Human Rights demonstrates, legal, political and cultural differences are considerable. What the narrative did reinforce was the absolute necessity of making integration a legal process, one founded on law and the respect of rights.
The subjects of your article were actively involved in creating a historical narrative in response to the legal and social crises of their time, so it seems perhaps fair for us to think in the same terms. Today, the normative order of European integration is being challenged, notably from the far right, and through alternative and more exclusionary narratives of Europeanness. From your perspective, what significant narrative revisions or syntheses are being worked out today?
As a historian of totalitarianism, being topical is not necessarily a good thing. Seeing ideas that were once resoundingly rejected gain new traction is truly horrifying. Both in Europe and lately even in the US, notions of ethnic foundations of citizenship and belonging are being presented from the highest echelons of political order. Taking minor issues and blowing them out of proportion, political leaders are advocating for the rejection of human rights and their universality. Cultural conservatism and the primacy of religious values are used as covers for exclusionary and downright racist and bigoted policies. I think here the important lesson is how it has become vital, once more, to argue forcefully for the things that were considered self-evident and demonstrate their value. Foundational principles are there for a reason.
You have written about the older history of the Roman legal tradition. Is this article part of a broader research project?
KT: It is. There is also a book on the topic coming out soon, titled Empire of Law: Nazi Germany, exile scholars and the battle for the future of Europe (Cambridge University Press). The project itself was funded by a European Research Council grant #313100, ”Reinventing the Foundations of European Legal Culture 1934–1964”, employing four researchers in addition to myself. All of our books and articles are open access, do take a look at foundlaw.org for the links! We are now continuing on a more wider research agenda with an Academy of Finland funded Centre of Excellence in Law, Identity and the European Narratives (2018-2015), which is exploring European crises since 1918 with over a dozen researchers, including lawyers, historians, anthropologists, philosophers, political theorists and the like. There is a kind of irony there that one of the possible reasons we have been so lucky with getting funding for these projects is the resurgence of the extremist agenda in Europe, especially with Brexit. I wonder if medical researchers feel a slight nausea when a disease outbreak means more funding for their laboratory? I like to combine research on more modern topics with ancient or early modern history, not only because they interest me but also because I feel that there is a good potential for all kinds of cross-pollinations and interdisciplinary benefits to be had if one leaves one’s own little chronological, geographic or methodological box.