Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (review)

These essays come at an important moment in the legal history of Europe. Following the apparent failure to secure a formal constitution for the European Union, enthusiasts for an enlightened (and Enlightenment) constitution, many of them Germans by birth and upbringing, are trying to understand what went wrong in their normative crusade. The most obvious answer is that nationalist particularism has once again asserted itself and that the Union is unlikely to be more than an economic/trade convenience for member states. But we know that the greatest legal successes of contemporary Europe are the European Convention on Human Rights and the human rights court at Strasbourg. There are therefore grounds to hope for some sort of normative consensus on larger politico-constitutional issues. But history matters, and Darker Legacies reminds us that Europe has yet fully to come to terms with the heritage of national socialism.

The most stunning and poignant essay is the prologue ("Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence after 1933 and Post-1945"), written by Michael Stolleis, the director of the Max Planck Institute for European Legal History. Stolleis makes the point that successive generations of the German legal professoriate have been unwilling to "glance in the mirror" of history. Some in the current generation (as the conferences from which these essays originated testify) are prepared to confront the Nazi legal legacy, though it is still politically risky for young German legal academics to do so. And it is not just in Germany that "breaking the taboo of mentioning the past can be a risky business." As Stolleis observes, "no country [in Europe] has undertaken a study of the internal development of [the legal] profession in the course of the last fifty years." There is, that is, a "darker legacy" in countries across the continent. Hence "it would seem," Stolleis concludes, "that the current blend of old and new is a guarantee that no unbiased history of twentieth century jurisprudence is likely to be forthcoming in the foreseeable future."

If, as these essays suggest, Europe is incapable of coming to terms with its legal history, it is also likely that the project of a constitution or common law for Europe will have a very difficult future. The specter of the admission of Islamic Turkey into the Union makes the "darker legacy" sadly relevant in the twenty-first century: despite enlightened efforts to legislate a better future, the past is a present problem.