Roman Law and the Idea of Europe (Europe’s Legacy in the Modern World)

This book is available as open access through the Bloomsbury Open Access programme and is available on www.bloomsburycollections.com. It is funded by the European Research Council. Roman law is widely considered to be the foundation of European legal culture and an inherent source of unity within European law. Roman Law and the Idea of Europe explores the emergence of this idea of Roman law as an idealized shared heritage, tracing its origins among exiled German scholars in Britain during the Nazi regime. The book follows the spread and influence of these ideas in Europe after the war as part of the larger enthusiasm for European unity. It argues that the rise of the importance of Roman law was a reaction against the crisis of jurisprudence in the face of Nazi ideas of racial and ultranationalistic law, leading to the establishment of the idea of Europe founded on shared legal principles. With contributions from leading academics in the field as well as established younger scholars, this volume will be of immense interests to anyone studying intellectual history, legal history, political history and Roman law in the context of Europe. Cover 1 Half-title 2 Title Page 4 Copyright Page 5 Contents 6 List of Illustrations 7 Editors 8 List of Contributors 9 Acknowledgements 11 Introduction 12 How does the book contribute to the debates? 17 Notes 22 References 22 Chapter 1: The Impact of Exile on Law and Legal Science 1934–64 26 Introduction 26 The mechanisms of exile 28 The impact of exile on legal science 35 Conclusion 42 Notes 42 References 42 Chapter 2: Exiled Romanists between Traditions: Pringsheim, Schulz and Daube 46 Introduction 46 Fritz Pringsheim: An officer in exile 48 Fritz Schulz: From interpolationism to the freedom of law 51 David Daube: An outsider who thrived 54 Making sense of the Nazi years 56 Conclusion 58 Notes 59 References 60 Chapter 3: Francis de Zulueta (1878‒1958): An Oxford Roman Lawyer between Totalitarianisms 64 Introduction 64 Francis de Zulueta: Myth and Reality 65 Opening Up Oxford 67 Helping the Refugees 68 Living his Catholic faith 70 Conclusion 72 Notes 74 References 80 Chapter 4: Autonomy and Authority: The Image of the Roman Jurists in Schulz and Wieacker 84 Introduction 84 The image of the Roman jurists in Schulz 85 The ideal type of jurist in Wieacker 88 The ideal type of the jurist in Privatrechtsgeschichte der Neuzeit 90 Conclusion 92 Notes 93 References 100 Chapter 5: Roman Law after 1917: Exile, Statelessness and the Search for Byzantium in the Work of Mikhail von Taube 104 Introduction 104 Roman law as a Russian concept of Western civilization 106 ‘Pacta sunt servanda’ and the interwar crisis of international law 109 Two views of 1917: Sovereignty without territory 112 Conclusion 114 Notes 115 References 117 Chapter 6: The Denaturalization of Nordic Law: Germanic Law and the Reception of Roman Law 124 Introduction 124 Roman law according to the Nazis: Article 19 of the NSDAP programme 125 Roman law and the Nazi Rechtswahrer 127 Saving Roman law from itself 131 Conclusion 133 Notes 134 References 136 Chapter 7: The Idea of Rome: Political Fascism and Fascist (Roman) Law 138 Introduction 138 An encyclopaedia entry: The idea of Rome 138 The myth of the good old Roman (between citizenship and imperialism) 140 Abusing the past: Cosmopolitan empire and active racism 143 Fascist law: Tradition and opportunism (An American point of view and another encyclopaedia entry) 144 Historical–legal studies taken seriously and the ornamental antiquity: Roman law between Enciclopedia Italiana and the Civil Code of 1942 146 Fascinating fascism? 149 Notes 150 References 152 Chapter 8: ‘Byzantium!’ – Bona fides between Rome and Twentieth-Century Germany 156 Byzantium! 156 Fritz Pringsheim: Ius aequum and ius strictum, 1921 156 Pringsheim: Aequitas and bona fides, 1930 158 The warnings of Hedemann, 1932–3 160 General principles as a political opportunity: National Socialism 161 Wieacker and legal form in the year 1956 163 Notes 165 References 166 Chapter 9: The Arduous Path to Recover a Common European Legal Culture: Paul Koschaker, 1937–51 170 Introduction 170 Talking about Roman law at the Akademie für Deutsches Recht 171 Which ‘Roman law’ for the ‘Neuordnung Europas’? 173 After the Second World War and towards Europa 178 Conclusion 180 Notes 183 References 187 Chapter 10: The Weakening of Judgement: Johan Huizinga (1872–1945) and the Crisis of the Western Legal Tradition 192 Introduction 192 The American reception of Huizinga’s In the Shadow of Tomorrow 194 The impact of Huizinga’s book on European culture: The French translation and Gabriel Marcel 197 The Italian readers under fascism and after the Second World War 198 Conclusion 201 Notes 204 References 207 Chapter 11: Roman Law as Wisdom: Justice and Truth, Honour and Disappointment in Franz Wieacker’s Ideas on Roman Law 212 Introduction 212 Carl Schmitt and Franz Wieacker: Honourable lawyers and justice as an institution 215 Hans-Georg Gadamer and Franz Wieacker: The hermeneutics of truth 220 The multifaceted idea of Roman law in Franz Wieacker’s academic texts 226 Notes 227 References 229 Chapter 12: Conceptions of Roman Law in Scots Law: 1900–60 232 Introduction 232 A tale of reception 233 The ‘idea’ of Roman law 237 Conclusion 243 Notes 243 References 245 Chapter 13: The Search for Authenticity and Singularity in European National History Writing: 1800 to the Present 250 Introduction: Why everyone wants to be special 250 Romantic national history writing and authenticity 251 Scientificity, nationalism and the need for ‘being special’ 253 The high point of historiographical nationalism between the wars 256 The restitution of traditional national historical narratives after the Second World War 260 Challenging uniqueness amidst a crisis of national historiography 262 Conclusion: What place for national history in contemporary Europe? 264 Notes 265 References 266 Chapter 14: A Genealogy of Crisis: Europe’s Legal Legacy and Ordoliberalism 272 Law as legacy and Europe’s genealogy of crisis 272 The value crisis of the 1930s 274 The search for stabilization through law: The ordoliberals against Schmitt and against the neo-liberals 279 Recreation of values: The European integration project, the modernization narrative, ordoliberalism and Keynesianism 283 The crisis of the 1970s 286 The value crisis of the 2010s 289 Notes 292 References 293 Index 296 Roman law is widely considered to be the foundation of European legal culture and an inherent source of unity within European law. Roman Law and the Idea of Europe explores the emergence of this idea of Roman law as an idealized shared heritage, tracing its origins among exiled German scholars in Britain during the Nazi regime. The book follows the spread and influence of these ideas in Europe after the war as part of the larger enthusiasm for European unity. It argues that the rise of the importance of Roman law was a reaction against the crisis of jurisprudence in the face of Nazi ideas of racial and ultranationalistic law, leading to the establishment of the idea of Europe founded on shared legal principles. With contributions from leading academics in the field as well as established younger scholars, this volume will be of immense interests to anyone studying intellectual history, legal history, political history and Roman law in the context of Europe. Available via Open Access on Bloomsbury Collections (https://www.bloomsburycollections.com/). Présentation de l'éditeur : "Roman law is widely considered to be the foundation of European legal culture and an inherent source of unity within European law. Roman Law and the Idea of Europe explores the emergence of this idea of Roman law as an idealized shared heritage, tracing its origins among exiled German scholars in Britain during the Nazi regime. The book follows the spread and influence of these ideas in Europe after the war as part of the larger enthusiasm for European unity. It argues that the rise of the importance of Roman law was a reaction against the crisis of jurisprudence in the face of Nazi ideas of racial and ultranationalistic law, leading to the establishment of the idea of Europe founded on shared legal principles. With contributions from leading academics in the field as well as established younger scholars, this volume will be of immense interests to anyone studying intellectual history, legal history, political history and Roman law in the context of Europe." "Roman law is widely considered to be the foundation of European legal culture and an inherent source of unity within European law. Roman Law and the Idea of Europe explores the emergence of this idea of Roman law as an idealized shared heritage, tracing its origins among exiled German scholars in Britain during the Nazi regime. The book follows the spread and influence of these ideas in Europe after the war as part of the larger enthusiasm for European unity. It argues that the rise of the importance of Roman law was a reaction against the crisis of jurisprudence in the face of Nazi ideas of racial and ultranationalistic law, leading to the establishment of the idea of Europe founded on shared legal principles. With contributions from leading academics in the field as well as established younger scholars, this volume will be of immense interests to anyone studying intellectual history, legal history, political history and Roman law in the context of Europe."--Bloomsbury Publishing.