The National Socialist accession to power in 1933 drove half a million Germans into exile, among them a third of all university professors. The emigration of jurists before and during the Second World War has recently attracted renewed scholarly attention. Regarding international law, in particular international humanitarian law, historians and jurists alike have used the biographies of legal émigrés to analyze the influence of biographical experience on legal imaginations as well as the mechanisms of the transfer and (re-)appropriation of ideas in the process of migration and professional integration.1 Kaius Tuori extends that interest towards German legal historians and their contribution to European legal history, in particular the idea of a common European legal heritage.

At its core, Tuori’s study Empire of Law asks how a “European” or “Western” legal tradition is defined, which elements are included and excluded, and who is instrumental in doing so. He argues that the idea and political implementation of European integration rested on the legal imagination of a common European legal heritage going back to Roman law. Tuori conceptualizes what he calls the “common past theory” as a “foundation myth”, endowing society with a sense of history and belonging, and locates the emergence of this mythology in the particular historical setting of totalitarianism and emigration (p. 7). Instrumental to the process of formulating this common past theory, Tuori maintains, were German lawyers with a background in Roman law and legal history who had escaped Nazi Germany, in particular Fritz Schulz and Fritz Pringsheim. Trying to find new purpose in exile, they developed a powerful theory of a European legal culture based on equality before the law – a “Europe of law” that was immune to totalitarian lawlessness (p. 5). At the same time, jurists who collaborated with or were tolerated by the Nazi regime also developed ideas about the role of law in constituting “Europe”, in particular Paul Koschaker, Franz Wieacker and Helmut Coing. In the political climate after the Second World War, the idea managed to take root as it offered a counternarrative to both nationalist-völkisch and communist ideologies.

Tuori chooses to portray the jurists in five separate chapters. He uses their seminal publications and, where available, their correspondence to dissect their legal ideas with regards to Roman law and the European legal tradition and situates them within the larger debate in Great Britain, the United States and Germany between 1933 and 1964. Thus, the second chapter puts historian of Roman law Fritz Schulz front and center, whose writings are analyzed through the prism of the intellectual history of liberalism and individual rights. They are situated in the particular personal and academic position he was in, showcasing how ideas and experience can be interrelated, while also acknowledging that drawing a direct line is always difficult. Chapter 3 is also set against the backdrop of academic emigration during the 1930s and the difficulties jurists faced. It zooms in on Fritz Pringsheim, another legal historian who emigrated to Britain in 1939. His recourses to Roman law before his exile served to legitimize the idea of cosmopolitan legal equality and the rule of law as opposed to inequality and arbitrariness in the legal system. This focus on tradition and the rejection of legal positivism can also be found in the writings of exiles in the United States as politically distinct as the social democrat Franz Neumann and the conservative economist Friedrich Hayek. Tuori aims to show that constructions of the past were “essentially situational and malleable” (p. 88). They were an instrument both to make sense of the personal experience of exile and to found a legal critique of totalitarianism as political system.

Chapter 4 equally presents the political nature of (Roman) law scholarship by analyzing liberal, conservative, totalitarian and Fascist visions of the European order with a focus on Paul Koschaker who – having remained a professor for legal history – advocated for the importance of Roman law as central aspect of the European cultural heritage. By contextualizing his ideas in contemporary Europeanisms, Tuori seeks to identify the roots of the postwar common past theory. Chapter 5 portrays Franz Wieacker, a supporter and benefactor of the Nazi cause, with a focus on his idea of Europe throughout the Nazi years and after the war. He represents a younger generation of legal historians with an interest in jurisprudence and hermeneutics. After having been rehabilitated in his denazification trial, Wieacker quickly earned a new academic position and continued his work on the unity of European legal culture with a focus on a common legal conscience. The last chapter is set against the backdrop of the post-war period and investigates how the narrative of the common law tradition became so dominant. Through the biography of legal historian Helmut Coing, Tuori outlines how the tradition of rights could become a cornerstone of narratives of the European legal heritage.

While it first and foremost speaks to legal historians, Tuori’s study is a stimulating example of how the production of legal knowledge is tied to people, in this case to émigrés. This intellectual legal history portends that (legal) ideas have a history, and this history is shaped by human beings with their own agency, born from ideology as well as tangible interests. It is at its most valuable when explaining that the establishment of the “common past theory” as a narrative central to European integration was the result of a conscious effort of a diverse group of legal scholars in reaction to the events they witnessed and as a way to make sense of the deeply unsettling present. Together with a human rights discourse, it “formed the intellectual foundation of the Western European narrative” in opposition to Communism (p. 267). By constructing this heritage, another future could be imagined. The common past theory did not, however, – and this shows the political salience of Tuori’s analysis – necessarily serve the integration project well, as it belied the extent to which a unification of European law regimes is possible and desirable (p. 9).

Tuori gives depth to the claim that the Europeanisms that developed during and after the Second World War had diverse roots. At times, the reader feels a bit lost within the myriad references to different concepts and émigrés that are not always usefully tied in with the larger narrative. While these digressions are insightful and have value on their own, they divert the reader’s attention away from the issue at hand, an impression compounded by small linguistic mistakes. Despite these minor drawbacks, Tuori’s study is a very good example of how to make use of actor-centered methods to engage with legal intellectual history and the legal history of Europe.

Note:
1 Jack Beatson / Reinhard Zimmermann (eds.), Jurists Uprooted. German-Speaking Emigré Lawyers in Twentieth Century Britain, Oxford 2014; James Loeffler / Moria Paz (eds.), The Law of Strangers. Jewish Lawyers and International Law in the Twentieth Century, Cambridge 2019; Kerstin von Lingen, Legal Flows. Contributions of Exiled Lawyers to the Concept of “Crimes Against Humanity” during the Second World War, in: Modern Intellectual History 17 (2020), S. 507–525; Annette Weinke / Leora Bilsky (eds.), Jewish-European Émigré Lawyers. Twentieth Century International Humanitarian Law as Idea and Profession, forthcoming.