1. Exploring Narrative and Normative Change in History

The historical relationship between narrative and normative spheres contains problematic elements on many levels. Although the intermingling of narrativity and factuality has been something of a mainstay in the theory of history,Footnote ¹ the interrelationship between narrative and normativity has gained much less interest. After the Second World War, a momentous change in the European legal traditions occurred, a change that was little noted by contemporaries. With the collapse of Nazi Germany and Fascist Italy, the ideological contest between the liberal social and legal order and totalitarianism was settled, whereas the Communist challenge persisted. In Germany and other Axis countries, nationalism became tainted by its ideological association with Nazism, whereas in places such as France it formed a crucial part of the idea of the Resistance. As a result, the concept of European nationalism existed only in theory. Nevertheless, after the war a new form of Europeanism emerged that gained momentum from the European unification. Because the unification was founded on legal instruments and was soon perceived as a legal process, a novel way of approaching the European project through history made its way into legal discussions.Footnote ² Roughly at the same time as the European legal integration began after the Second World War, the narrative of a shared European legal culture as a historical concept was conceived by a group of legal historians, which is the focus of this article. A new dominant narrative that took Europe as its main focus emerged in a few years, gaining an almost uncontested position.Footnote ³ Using this process as an example, this article explores the emergence of this new narrative as a part of the process of exile and its connection with the re-establishment of the European intellectual and political order. The purpose of this article is to explore a parallel process of narrative and normative change and the influences and connections between them in a specific historical case, the turn toward Europe, its legal heritage, and its association with human rights in the postwar era. In doing so, I explore a new argument about the interlinkage between narrativity and normativity as cognitive processes that rely on the creation and sustaining of belief.

Earlier scholarship has noted the surge in scholarship relating to aspirational, even utopian, European themes during the postwar period,Footnote ⁴ but the prehistory of this phenomenon in legal scholarship has not been examined.Footnote ⁵ Although the rise in Europeanism has been linked with the political steps of European integration, the aim of this article is to refocus the origins of this phenomenon to the influence of earlier exile scholarship. I argue that tracing back this development leads to a group of scholars who were exiled from Nazi Germany during the 1930s. I foreground the examples of Fritz Schulz (1879–1957)Footnote ⁶ and Fritz Pringsheim (1882–1967),Footnote ⁷ who were exiled in Britain. Schulz developed the idea of the Roman legal tradition as the foundations of European legal thought as a counterargument to Nazi legal theory,Footnote ⁸ whereas Pringsheim's works drew a similar line between ancient Rome and the modern European rule of law.Footnote ⁹ Another central figure is Paul Koschaker (1878–1951),Footnote ¹⁰ a scholar of cuneiform law who turned to European heritage as a reaction to Nazi repression.Footnote ¹¹ For the European narrative to succeed, it was vital that it was further developed and adapted by two younger scholars, Franz Wieacker (1908–94),Footnote ¹² a pupil of Pringsheim, and Helmut Coing (1912–2000).Footnote ¹³ They had both been in frontline military service—Wieacker had been active in the Nazi movement—but realigned themselves quickly after the war. Wieacker was central in developing the idea of legal heritage as a European frame of reference,Footnote ¹⁴ whereas Coing outlined the theory of the tradition of rights as a jurisprudential construct that was particularly European.Footnote ¹⁵ Whereas the turn toward Europe forms a parallel with the beginning of the political process of European integration, the emergence of human rights as part of the European tradition coincides chronologically with the more general enthusiasm for human rights generated by the preparation and 1948 signing of the Universal Declaration of Human Rights.

Although scholarship on academic exile has grown since the 1960s, the theme of the subsequent scholarly change has been addressed only very recently.Footnote ¹⁶ One of the crucial issues of the present study is that of narrative continuities from the Nazi period to the postwar era; for example, in the uses of concepts such as cultural heritage and lineages.Footnote ¹⁷ Although the rise of liberal universalism has gained much attention in the recent years in areas such as the history of human rights thought,Footnote ¹⁸ this article seeks to establish the inherent mechanisms of narrative dominance and pluralism within the multifaceted discourse. As such, it joins new scholarship that is working to establish narrative continuities and discontinuities in the understanding of Europe from the interwar period to the postwar period.Footnote ¹⁹ Whereas earlier scholarship on European legal integration has focused either on continuities or discontinuities from the interwar period to the postwar integration,Footnote ²⁰ the aim of this article is to show the complexity and the human interaction behind the changes.

The novelty of this article is that it seeks to track the correlation between narrative change and its motivations and normative implications. In order to establish this, I will begin by tracing the correlations between Nazi repression and narrative change by observing the inclusion into the discourse of themes associated with liberal theories of the rule of law. Although this narrative influence appears straightforward, the next steps are more convoluted. Instead of a direct adaptation or returning to a previous narrative, I seek to demonstrate that the way that former Nazis and conservatives such as Wieacker or Coing appropriated narrative themes resulted in a new hybrid narrative that incorporated elements both from the liberal narrative and from the Nazi narratives of Europe. However, these narrative changes, from the Nazi narratives to the counternarratives before and after the war, were closely interwoven with the changes of the normative surroundings both in Germany and the within the wider transatlantic legal world, from the Nazi new legal science to the natural law revival after the war. Finally, within the narrative changes there are crucial distinctions among individual reactions to experiences of repression. As suggested by narrative theory,Footnote ²¹ I claim that the narrative and normative spheres share critical traits in their modes of persuasion. Historical narratives are thus connected with both historical culture and the uses of the past; for example, as legitimation and the construction of identity.

As with all fundamental historical narratives, that of the European legal heritage has a number of conceptual peculiarities that have different connotations in various historical layers. One example is the concept of Roman law. In European legal history, Roman law meant the law of the ancient Roman Empire, but more importantly, it was code for the European legal tradition, also known as civil law, which was derived from the foundations of Roman legal writings. Roman law was not only a legal system. Because of its emphasis on commerce and property rights, it also had distinct ideological underpinnings in the Continental European debates from the nineteenth to the twentieth centuries.Footnote ²² Consequently, the Party Program of the Nazi Party, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) (1920), called for the abolition of Roman law and its replacement with national German law.Footnote ²³ As a result, the Nazis sought to abolish Roman law from the law curriculum and to eradicate it from German law books through the ultimately failed Volksgesetzbuch codification program. The rationalization behind this aim was the perceived capitalistic nature of Roman law and the cosmopolitan (for which read “Jewish”) influences it contained. However, one of the crucial traits for the repression and resurgence of the tradition was its reliance on the ancient tradition for both content and legitimation. Whereas this historical legitimation was a liability in the Nazi reforms, within the postwar search for sources of universal law, it became an asset. The ancient roots of the historical legal narrative were an argument for the legitimacy of law that did not depend on political will. Therefore, writing about Roman law had been a sign of intellectual opposition to the Nazi regime, but after the war it became a part of the search for the shared roots of European legal traditions.

2. The Destruction of the Old Order

The downfall of the German Empire in 1918 had wide-ranging repercussions even in the field of law and legal education. The modernization of private law that had slowly gained pace during the latter half of the nineteenth century and had struggled to keep up with the growth of commerce and industrialization was now joined with constitutional and social change with the advent of the Weimar Republic. Politically, the period from 1918 to 1933 was one of almost continuous crisis, in which the turmoil led to the questioning of many of the previous certainties.Footnote ²⁴

For the German academic and legal elites, which consisted of a particular social group called the Bildungsbürgertum (the learned bourgeoisie), the changes were unsettling and led to physical, economic, and status deprivation. Revolutions, street fighting, and violence in general shattered the sense of safety, while economic crises such as hyperinflation led to hopelessness and financial distress. In many cases, these compounded with a sense of deep disillusionment about the crumbling of the very foundations of society and the tendency to approach this as a moral or value crisis as well.Footnote ²⁵

The Nazis came to power and the official persecution of Jews began on January 30, 1933. For Jews and for the active members of the Leftist parties, the situation very quickly took a turn for the worse. Nazi student organizations would harass Jewish teachers at the universities, but the main threat to academics was the Law for the Restoration of the Professional Civil Service, enacted on April 7, 1933, which dictated the expulsion of Jewish civil servants, including university professors.Footnote ²⁶ The first round of mass dismissals of professors took place during the spring of 1933. The firing of hundreds of professors gained wide international attention, leading the Manchester Guardian to publish in May 1933 a list of nearly 200 professors who had been dismissed in April and May, including legal notables Hans Kelsen, Alfred Weber, Gerhart Husserl (son of Edmund), and Guido Kisch.Footnote ²⁷ In addition to university professors, younger scholars and professional lawyers such as Franz Neumann went into exile very early on. Neumann received a tip that he was about to be arrested and fled to Britain in May 1933.Footnote ²⁸

The repression was a gradual process, which first hit Jews and opponents of the new regime. Those who had a Jewish background but had converted to Christianity, such as Schulz and Pringsheim, were not targeted by the early regulations. For them, the loss of status came after a long wait. For example, in 1933 Schulz was at the pinnacle of his career, which had culminated in his taking up the chair of Roman law in Berlin 2 years earlier. At 54, he enjoyed a comfortable life in Dahlem with his large family.Footnote ²⁹ He had not been particularly politically active either in his private or academic life, although he had been a member of the German Democratic Party (Deutsche Demokratische Partei) since 1918. His publications were mainly technical jurisprudence and focused on the postclassical sources of Roman law.Footnote ³⁰

The way in which Schulz's position deteriorated was comparable to the situations of many of his peers. Technically, he was a Protestant from an assimilated Jewish family from Silesia, but because his grandparents had been Jewish and his wife Martha was Jewish, he counted as Jewish according to the peculiar Nazi racial criteria that emphasized both blood relations and association. In a series of bureaucratic engagements, he was first denied the right to teach and his professorship was moved to Frankfurt. In the end, he was given early retirement. In private life, he was forced out of Dahlem, as the area was declared Aryan only. Finally, his library rights were revoked.Footnote ³¹

Pringsheim went through a similar process, but he was protected by his influential students and the fact that Freiburg was far from the center of the Reich. Nevertheless, he was subjected ultimately to the same deprivation of status, culminating in his being sent to a concentration camp after Reichskristallnacht in 1938.Footnote ³²

The decision by both Schulz and Pringsheim to go into exile in 1939 was not taken lightly. It meant renouncing a position of authority and respect within legal academia, moving from a highly paid and high-status occupation to the mercy of friends and acquaintances. However, the process of exile had in their case begun earlier, with their desperate seeking for a suitable position abroad, Schulz taking a lecture tour in 1936 through the eastern United States,Footnote ³³ and Pringsheim seeking a position in Britain. Although they were forced to witness how their former colleagues used their dismissals as an opportunity to advance their careers, they were ultimately the lucky ones. They had the stamina to reinvent themselves academically, they had the linguistic skills to begin writing in a new language, and they had the necessary connections to be given a job at Oxford University.

3. Escape and Narrative Change

Within the academic community, the exodus of scholars from Germany began almost immediately. In addition to the official repressions, Nazi student organizations began to harass Jewish professors and organize lecture boycotts. Those professors who were fired went into exile, either abroad or to inner exile. The concept of inner exile meant a retreat into scholarly work that was either purely apolitical or that carefully hid its message. The professors began using methods of analogy or, in the case of historical work, surrogate stages, where current issues were discussed through historical examples. According to Leo Strauss, writing under persecution means “writing between the lines” to express matters of a shared understanding between the author and readers knowledgeable enough to recognize the intended meanings.Footnote ³⁴ At the beginning of the Nazi persecutions, scholars would take up different defensive strategies even within academic settings. Meetings with students were carefully organized, and public demonstrations of opposition were avoided because they would be met with hate campaigns.Footnote ³⁵

The phenomenon of scholarly exiles, numbering in the tens of thousands, among the roughly half a million refugees leaving Germany, was not limited to Germans leaving for Britain or the United States, although these are the most famous examples of scholars in exile. In Europe, the exiles of the 1930s joined innumerable predecessors, including exiles from the Russian Revolution or from the dissolution of empires and the founding of nation states after 1918. The first exiles fleeing Fascism and totalitarianism left Italy in the 1920s; in Spain the trickle of refugees from the Civil War and Franco's purges became a flood in 1939. France itself, hosting nearly 2,000,000 refugees from the aforementioned crises, had its internal refugee crisis beginning with the evacuations of 1939. Hundreds of thousands of Poles left as refugees in 1939. For many, the seeking of refuge turned into a long exile with little chance of return, especially in the Spanish or Polish cases.Footnote ³⁶ Beyond escaping the immediate threat, scholarly exiles sought a new beginning, a place to settle. This was a hard task and very few succeeded. Learning a new language, reinventing themselves professionally, and finding employment required support and persistence, and those who lacked it were sidelined.Footnote ³⁷

The German academic community capitulated to the Nazi regime with very little resistance, but there were some exceptions. Even with scholars brandishing exceptionally good nationalistic qualifications such as Ernst Kantorowicz, the tolerance for dissent was low. Kantorowicz had to discontinue his famous second inaugural lecture series in the face of boycotts and protests. Kantorowicz lectured on ideals such as beauty as the true German calling. His national reawakening was a spiritual one, whereas the Nazis offered only “rabble, corpses, and vomit.” Kantorowicz, who had been a frontline fighter not only in World War I but also in the right wing paramilitaries during the Communist uprisings after the war, loathed the Nazi rejection of the link between patriotism and the higher arts as a national calling.Footnote ³⁸

For others, the way forward was to present resistance in such a form that it would be undetected by persons who were not supposed to notice; namely, writing between the lines. Rather than presenting an open criticism of Nazi policies, these critical voices were presented as counternarratives. Schulz's counternarrative was by far the most elaborate, an intricate tapestry that wove together traditional Roman law, novel interpretations of European historical traditions, the defense of the liberal legal heritage, and a sprinkling of quotations from Fascist and Nazi authors. The first iteration of this counternarrative was the principles of Roman law. This was a lecture series during the spring semester of 1933 that was very quickly turned into a book published by the traditional publishing house Duncker & Humblot in Berlin.

The book was a celebration of Roman law as one of the greatest achievements of Western culture and as the antithesis of Nazi legal policy. The focus on principles was novel and cunning, as it allowed speaking both of purely technical matters such as abstraction or simplicity, and, equally, of things that were politically sensitive and in clear opposition to the Nazi regime.Footnote ³⁹ The book was quickly translated into English and published in 1936 by Oxford University Press. For Schulz, it was both his introduction into the Anglophone academic world and the beginning of his personal reinvention as a scholar.

The principles that were politically relevant were isolation, tradition, nation, liberty, authority, humanity, fidelity, and security. Whereas the Nazi policy was that the will of the Führer was the highest law and that law was a mere tool for advancing political aims, Schulz underlined the indifference of Roman law to politics or economics. This was in line with the idea developed by nineteenth century German conceptual jurisprudence that law was an independent science.Footnote ⁴⁰ This was crucial in the line connecting Roman law to the European heritage, because the independence of law was the central tenet of the whole tradition.

Nazi legal theory presented law as a force for reform or even revolution; its goal was to achieve new ends and brush away old structures. In contrast, Schulz's Roman law was conservative. It was bound to tradition and gained legitimacy from this continuity. Nazi opposition to old law was aimed not only at Roman law, but equally at the Bürgerliches Gesetzbuch ([BGB], the German civil code of 1900), which was to be replaced by the new codification of people's law (the Volksgesetzbuch).Footnote ⁴¹ When talking about nationality and citizenship, Nazis envisioned a blood community that was primary to legal status. Schulz reminded how ancient Romans accepted aliens, even freed slaves, to Roman citizenship, envisioning a radically open conception of community.Footnote ⁴² It is a testament to Schulz's critical skill in writing that these two principles, which were the most pointedly against Nazi policies, have sometimes been interpreted as acquiescing to Nazi worldviews.Footnote ⁴³

Schulz wrote how the growth of the humanity of Roman law, the restriction of cruelty and unnecessary physical punishment, was one of the main trends of the classical period of ancient Roman law. This was in stark contrast to the dehumanization of non-Germans advocated by the Nazis, not to mention how even Germans were subjected to harsh capital punishments for the smallest offenses.Footnote ⁴⁴ Stripping people of the protection of law, the perversion of the legal machinery and the explicit abandonment of legal principles became the new norm.Footnote ⁴⁵

According to Schulz, the principle of fidelity meant observing the rule of law in that a magistrate is bound by law, even to the rule he has himself set, and that law has no retroactive force. The Nazis had no qualms about retroactive laws, maintaining that officials should have free range of operation unencumbered by formal rules. However, fidelity even encompassed the binding nature of the social binds of friendship, a theme that had unfortunate importance in the ways that adherence to the new regime led to the abandonment of old friendships.Footnote ⁴⁶

The principle of the security of the law is easy to see as a criticism of the terror at the heart of Nazi rule. According to Schulz, the principle of security meant that the law should be predictable and give adequate protection, and that the courts should be impartial and know the law. Nazi legal practice relied on general principles, in which individual acts were seen as violations of a principle and punishable as such.Footnote ⁴⁷ In sum, Roman law as presented by Schulz was the polar opposite of Nazi law. Roman law represented a legal culture based on professional jurists faithful to the law. It meant upholding the rule of law, offering protection of the law to all, and providing every possibility of attaining full legal rights through citizenship.

However, this interpretation is simply a hypothesis, because Schulz does not mention contemporary politics or even Nazis by name. Instead he just refers to “recent political experience” in the conclusions of his book.Footnote ⁴⁸ Because direct criticism was very dangerous at the time, Schulz presents a veiled criticism, a fundamental condemnation of the Nazi legal policy in the guise of an analysis of Roman law. Of course, he write equally of Roman law, making an argument on two levels about contemporary legal policy and Roman law. These two levels are sometimes indistinguishable from each other. Thus, its references are heterogeneous to say the least. There are references to Roman law literature, to social sciences, to contemporary common law, and to Nazi and Fascist authors, from Carl Schmitt to Max Weber and Benjamin Cardozo. However, the change in Schulz's scientific work is remarkable in that he changes from a technical legal analysis into a politically charged interpretation within the field of Roman law, rather than writing a strictly political text.

In the case of Pringsheim, the counternarrative was even more concealed. In two articles, one published in Germany and the other in the British Journal of Roman Studies, he used Hadrian's Rome as a model for the cosmopolitan empire and the rule of law. These articles depicted Hadrian's Rome as an empire of peace, prosperity, and law, and of multicultural tolerance. When petitioned, the Roman emperor would respond even to poor provincials and answer their legal queries. This was an empire where the ruler would personally ensure that justice was served even to the lowliest of people, and where a professional class of legal officials existed that would ensure the rule of law.Footnote ⁴⁹ It is debatable how historically accurate the image of Rome presented by Pringsheim actually was, and his idea of the rule of law being realized in ancient Rome was probably a hyperbole meant to make a point about Nazi policies. The aim was clearly to underline the principled opposition between Nazi legal ideas and the Western tradition of the rule of law, legality, and good governance. Writing to a British audience, Pringsheim presents the ancient Roman heritage and British values as existing on a continuum.

This idealization of Hadrianic Rome was a very bold choice. Glorifying Roman law in the period of an emperor with artistic tendencies and a penchant for beautiful boyfriends was not a topic that would please Nazi authorities. In general, Roman law scholars seeking to reconcile Roman law with Nazi ideology usually focused on earlier periods, such as archaic Rome, where they sought to underscore the similarity of the Roman and Germanic martial virtues and loyalty to the state.Footnote ⁵⁰ In contrast to these appeasers, Pringsheim idealized the cosmopolitanism, the rule of law, the bureaucratization, and the professionalization of legal administration inherent in Hadrian's Rome. All of these things ran counter to the Nazi ideology on many levels. Cosmopolitanism was a code word for Jewish, while the independence of the legal profession and the rule of law meant subverting the will of the Führer.

In the cases of both Schulz and Pringsheim, their counternarratives were explicitly tied to the British experience in academia and in legal and political tradition. They both had contacts in Britain long before the Nazi years and knew the language. England was rightly considered the origin of a certain kind of liberal tradition, one that emphasized individual freedoms and the limited powers of the state.Footnote ⁵¹ In these early writings, both Schulz and Pringsheim were already orienting themselves toward Britain and seeking to develop narratives that would have resonance both at home and in Britain.

In the face of a totalitarian regime not shy of using extreme violence, such counternarratives were by and large gestures that had little or no impact on the course of events at the time. Despite their personal heroism, conscientious people who stood up to protest against the regime were mercilessly crushed, their fates merely demonstrating to the public the futility of resistance.Footnote ⁵² For legal academics, what was left was escape. For Jews, the alternative to escape was death; for non-Jews the most common option was inner exile.

Escape and exile could take place through many routes, but we tend to hear mostly about people who ended up in Britain or the United States. One of the main reasons for this is that for the numerically larger group of exiles who went to the Low Countries or France, their escape lasted only until June 1940. Schulz came very close to being part of this group, residing first in Holland before leaving for England on the last boat before the war started. Even for those who did go to Britain, this did not mean the end of their troubles. When war between Germany and the Western allies began in earnest and France collapsed in June 1940, Britain imposed a draconian regime on enemy citizens. Men of military age, but also those considerably older (such as Schulz and Pringsheim) were interned in camps, primarily on the Isle of Man. Even in places such as Oxford, which was accustomed to foreigners, their presence caused opposition.Footnote ⁵³

Despite the limitations imposed on them, exiles were by and large impressed by the dedication to ideals such as liberty and the rule of law that they noticed in both Britain and the United States. This is not to say that exiles would not have been critical of their new hosts and the inequalities they detected. There were many issues in their personal situation that left room for improvement, from the problems relating to finding employment to the restrictions (from internment to restrictions of movement typical in the United States) of their personal freedoms. In many cases the encounter with British or American tradition led to an almost direct set of references in their works. For example, historian Arnaldo Momigliano wrote about the issue of liberty in ancient culture, seeking to place it on the continuum of the liberal tradition. Franz Neumann, a social democratic labor lawyer, wrote extensively about the rule of law as a bulwark against tyranny.Footnote ⁵⁴ Other exiles, such as Theodor Adorno, emphasized the personal freedom that divided America from the old continent.Footnote ⁵⁵

The creation of a new narrative was clearly part of the exile process and reflected both the ideas and expectations of the liberal tradition in the English-speaking world and the experience of the collapse of the rule of law in Germany. The Roman example was by no means simply a reference to ancient Rome, but rather the European tradition that it symbolized. In creating these narratives, Schulz, Pringsheim, Momigliano, and others were both making sense of this transformation and equally writing out their experiences. The exile process meant by definition marginalization and a loss of status and accustomed privilege,which extended to the core of their being. In the making of these new interpretations, they sought both to make sense of what was happening and to reclaim their place in the academic world.

4. The Nazi Revolution in Law

From the hindsight of history, Nazi justice has been pilloried with good reason. However, during the 1930s, there was still a very active policy for progressive justice reform, and party elites were engaged in disputes over the direction of these reforms. Among those drawn to Nazi jurisprudence were not only luminaries such as Carl Schmitt, but also a large group of young legal academics. The Nazi new legal science or Neue Rechtswissenschaft sought the alignment of the people and the law, the resolution of the alienation of the law from daily life. In some respects, the movement had parallels with contemporary legal realism and drew upon earlier legal reform movements such as the free law school.Footnote ⁵⁶

Within law schools, the younger generation of academics, struck with existential angst about their future prospects and a more general sense of crisis and decay, were eager to join the Nazi movement. Whereas for the older professors, especially Jewish ones, the Nazi takeover was catastrophic, for the younger generation, the possibility of jobs, stability, and progress was enticing. Many of the young scholars joining the Nazis were members of the so-called war generation, who grew up during World War I, understanding the nationalistic ethos and the propaganda but being too young to serve in the military. When the war ended, they were left with a conflicted sense of both the past and the future. Although it is easy to approach the Nazi revolution through the lens of the Holocaust and the foreshadowing it implies, for contemporaries there was a widely shared sense of taking back control and progress that the Weimar years had lacked.Footnote ⁵⁷

One of the most important centers of the new legal science was a group called the Kiel School or Kieler Schule. It was a loose conglomeration of young legal scholars associated with the law school at the University of Kiel. The Kiel law school was seen as having a model faculty for the new Nazi policies of legal education after it had been purged of Jewish scholars. A central figure was Karl August Eckhardt, who had a key role in both ousting resisting scholars from law faculties and putting young Nazis in their place.Footnote ⁵⁸

One of the phenomena often observed with revolutionary movements is the generational gap. The younger generation, whether from idealism or self-interest, rejects the values and ideals of their teachers. In the case of the Nazi movement, there were numerous examples of such conflicts. One of the brightest students of Fritz Pringsheim was Franz Wieacker, who would be drawn to the Kieler Schule.

The Nazi new legal science was intensely nationalistic and tied to the idea of a new national awakening that mirrored that of the nineteenth century. As such, it limited its interests to the German blood community and its members, who would be its beneficiaries. However, there was, especially after the war began on the Eastern Front, a growing tendency to discuss Europe and European culture. This was in line with the German war propaganda, which presented Europe as a community of values from which the English-speaking world and particularly the Communist East was separated. The Nazi idea of Europe, the New Europe, was an area dominated by Germany, something that was even reflected in ideas such as Schmitt's concept of Grossraum.Footnote ⁵⁹ Scholars were recruited to join the propaganda effort in the so-called Aktion Ritterbusch, a program named after the Kiel rector and dedicated Nazi Paul Ritterbusch. Ritterbusch was a professor of constitutional law and a member of the Kieler Schule. The aim of the program was to use science as a weapon of war, to harness the best forces in the German social sciences and humanities to advance the German war aims. Wieacker joined this program in order to outline the New Europe that would emerge after the war under German leadership. Wieacker's contribution was listed under Kriegseinsatz (war effort) and moved along the narrow path between science and propaganda.Footnote ⁶⁰

Although much of the war propaganda was facile and easily dismissed, Wieacker took the idea of Europe as a community and began to use it as a way to rehabilitate Roman law. In 1943, Wieacker began to analyze the role of nationalism in the relationship between the Roman and the German legal consciousness. Earlier, legal historians inspired by the national awakening began to emphasize the German cultural heritage and the spirit of freedom and to denounce the influence of Roman law as an alien implant. Within the historical consciousness and the organic conception of the people, later adopted wholeheartedly by Nazi scholars, Roman law was first of all a national self-betrayal, but also equally an irrelevant relic in a modern world. It is interesting to note how Wieacker uses the words “un-German” and “un-European” almost interchangeably. However, Wieacker (echoing Savigny) redeems Roman law as a product of the Western creative spirit, not a foreign and ancient implant suppressing national law. Comparable to the works of Homer and Aristotle, Roman law was a product of the common spirit of the West, the European destiny, which would then form a basis for new developments.Footnote ⁶¹

In this work, ultimately published in 1944 when the war was clearly coming to a bitter and bloody end, Wieacker co-opts the Nazi terminology and imaginary to a startling extent. He equates European and German civilization, presents culture and people as primary, and refers to blood as a metaphor for the people. Wieacker continues on the organic, almost biological imaginary, presenting culture as almost like a plant that spreads and grows, gaining influences and nourishment. The biological metaphor was a key element in Wieacker's idea of reception, but it was also a metaphor heavily used by the Nazis. He is adamant that Roman law and the idea of Rome were not something alien to the German people (volksfremd, Undeutsches), and here he responds directly to Nazi language. In Nazi terminology, volksfremd was used to define Jews, who could be completely assimilated but were still not part of the German people. Roman law and the European tradition were nourishments of learning and rationality that were incorporated into German and by extension European culture.Footnote ⁶²

Wieacker's ideas were therefore in stark contrast to early Nazi theories about Roman law being a dangerous weed, something to be uprooted. Although Wieacker himself had earlier attempted to consolidate Roman law and Germanic culture by emphasizing the similarities of their early histories, now he accepted the whole of the history of Roman law, even the Eastern influences which the Nazis saw as Semitic, as parts of the same continuum.

Although the position of Wieacker was initially against the main current, it later moved to the mainstream following the evolution of Nazi legal thought. The opposition toward Roman law was gradually forgotten, especially after the alliance with Fascist Italy whose enthusiasm for Roman law was considerable. Hans Frank, the leader of Nazi legal academia, maintained that they had nothing against the teaching and research of the law of a proud and self-conscious nation,Footnote ⁶³ meaning the Rome of the Republic and Early Empire. Their qualms were reserved for the potential later Jewish influences. Although the initial Nazi policy had been to eradicate all of Roman law in favor of Germanic law, it is likely that opposition from the legal profession resulted in the shifting of the focus to the law of the Later Roman Empire, in which the Semitic influence was thought to have been the strongest.

Where Wieacker's initial contact with Europeanist thought came from is unclear, but during the war, Wieacker was invited to join Carl Schmitt and others to give lectures as part of the Nazi war propaganda effort. They would go both to allied countries such as Hungary, and to occupied countries, to give presentations on German culture as the essence of Europe. Wieacker, for example, was sent to occupied Paris in 1941 to give lectures with Carl Schmitt about the superiority of German culture.Footnote ⁶⁴

There were numerous reasons and motivations driving young academics toward Nazism, from careerism and self-interest to shared enthusiasm. Very few would later reflect on their motivations, but it is clear that the whole concept of a national mass movement that would rescue Germany from its various ills had tremendous appeal. There was also a distinct social pressure. For example, Helmut Coing would, in his autobiography, rationalize his involvement with the Nazi party by mentioning how senior colleagues would hint that in order to have a career in academia he should be a member.Footnote ⁶⁵

Most legal academics or academics in general were neither members of the opposition nor active supporters of the Nazi movements. Meissel has described the options available for academics as coping mechanisms or strategies (Anpassungsstrategien).Footnote ⁶⁶ Among the opponents of Nazis, the situation was ambiguous. Writing after the war, Nazi opponent Paul Koschaker stated that one should not exaggerate the limitations imposed by Nazi authorities on individual scholars and teachers. By retreating to nonpolitical themes, a non-Jewish scholar could avoid being targeted and would generally be left alone. Koschaker himself would actively participate in the planning of the 1935 study reforms in order to protect his own field of study. His famous 1938 text, Die Krise des römischen Rechts (The Crisis of Roman Law) was actually first presented in the Nazi-controlled academy of science, where it was favorably received by the audience and its director Hans Frank. In the Krise, Koschaker would present Roman law as a cultural heritage, a shared European tradition. Koschaker's main opposition toward the Nazi policies was regarding his continued appreciation of Roman law, which in 1938 was still on the Nazis’ list of things to be eliminated.Footnote ⁶⁷

In the ways that the Nazi movement divided the profession, a number of phases may be detected, from the early enthusiasm to the final war years, when bitter resignation and disappointment were overwhelming sentiments. After the war, this disappointment was one of the main forces driving the reorientation.

5. Postwar Reckoning and Integration

When war ended in Europe in May 1945, there was much to be reckoned with. As the murderous extent of the Nazi terror and the Holocaust were exposed, they tainted everything they were associated with, even though denialism was rampant in Germany. The horrors of Nazism and the threat of Soviet power led first to a new drive toward European integration to prevent conflict and ultimately war within Europe, and second to a push for the primacy of human rights (and by extension natural law), both by the United Nations and within the European human rights system.

In Germany, the fall of Nazism was followed by occupation and legal reprisals against the perpetrators of Nazi crimes. At the same time, there was a drive toward denazification, purging Nazis from positions of power. Because of the widespread support that Nazism enjoyed, denazification proved to be almost impossible and faced stubborn resistance from the Germans themselves. Most members of the party were quickly exonerated and the prewar elite returned to power in a stunningly rapid and uncomplicated process of renazification.Footnote ⁶⁸

Although the persons were the same, this does not mean that they were still the card-carrying Nazis they had been, in some only a few months earlier. Just as they had turned from being lawyers supporting the German Rechtsstaat to Nazis promoting the exclusion of Jews, they now performed another great mental about-face, toward support of democracy and human rights. From the members of the opposition such as Koschaker, this drew sarcastic remarks about them being “Nazimokraten” or Nazi(de)mocracts.Footnote ⁶⁹

Therefore although the Germans officially revered the idea of the “hour zero” or a new beginning, this was hardly the whole truth. There were innumerable continuities from institutional and legal to personnel continuation from the Nazi years to the new German Federal Republic. For exiles, the German approach was infuriating. Not only did they refrain from all admissions of guilt, but they regularly touted German victimhood.Footnote ⁷⁰ Although the number of scholars who would consciously integrate their writings with the experience of exile was small, the number of exiles who would return was equally small. Of the total number of roughly 500,000 German refugees, only a small part returned. The highest number of returnees were the non-Jewish “political” exiles, of whom roughly half returned. Of the academics, only 12% returned. Of the Jewish refugees, a mere 4–5% returned.Footnote ⁷¹

If the exiles remained abroad and the Nazis returned to power, how did West Germany turn quickly into a flourishing democracy, where the ideals of the rule of law and equality were apparently widely shared? How did the years of ultranationalism and exclusionary policies turn seemingly overnight into a vision of European integration, respect for human rights, and shared values? There is an ongoing debate regarding the background of this transformation. Some credit the vast American effort of reconstruction, re-education, and propaganda in Germany that sought to counter the Soviet ideological threat. Others claim that the real change makers were the Germans themselves, who chose the path to democracy often despite the transparent American propaganda.Footnote ⁷²

The obvious impulse was naturally the moral and ethical, not to mention the human catastrophe that Nazi Germany had produced. This is the foundation of the narrative of the rise of human rights as a response to the horrors of totalitarianism and war.Footnote ⁷³ Marco Duranti has recently argued that the traditional narrative of the emergence of human rights is not the whole story. According to Duranti, the key players of the post-World War II construction of the European human rights regime were in fact conservatives such as Winston Churchill, whose involvement precedes the generation of European Union founders such as Jean Monnet and Robert Schumann. For the conservatives, the promise of Europeanism and human rights was founded on a number of different causes. One of the most important was opposition to totalitarianism, in which Fascism and Communism were, for them, two sides of the same coin. At the same time, they were deeply distrustful of the tyranny of the majority and the dangers of populism in democracy. Pluralism and securing the rights of minorities were central concerns in this regard. To secure these rights, it had become clear that the national courts were unable to uphold the rule of law and, therefore, international solutions were needed. However, the conservative idea of a free and united Europe did not necessarily take the form of a superstate, but rather of a “return to tradition and older forms of community.”Footnote ⁷⁴

Although the narratives created by the exiles were not utilizing the language of rights in the same sense as the post-war generation of scholars, they were in essence describing the same ideals as those of conservative human rights advocates. The rule of law and legalism, the respect for the individual, the ideals of humanism, the protections of individuals against state power, and the possibility of appealing to a higher judge were all shared themes. However, what was even more poignant was the lure of tradition, of a peculiar kind of conservatism that comes through in the works of Schulz, Pringsheim, and Koschaker, in which law is the product of a long tradition of legal scholarship, an expert culture outside the field of politics. In Europa, Koschaker even made the linkage to the tradition of supranational law explicitly, calling Roman law the relative natural law (relatives Naturrecht). Although he denies the possibility of an absolute natural law, the potential for a European natural law (europäisches Naturrecht) continues.Footnote ⁷⁵ A European treaty of human rights was, of course, a sign of a European natural law.

The situation at the end of the war was disastrous. Germany and most of Europe was in ruins. The old Nazis had returned quickly to positions of power, the German populace was retreating into their own sense of victimhood, and émigrés by and large stayed away. Although human rights and European integration were talked about and promoted in official discussions, it was unclear whether something would actually be done about them. Surprisingly, it was.

6. The Former Nazis Reinvent Themselves

The process of reorientation toward democracy was a combination of internal dynamics and external compulsion, in which the exiles had a curious role as interlocutors. However, their role was neither unproblematic nor straightforward. At the end of the war, exiles such as Schulz, Pringsheim, David Daube, Momigliano, Neumann, and innumerable others were left with a choice of either returning to a destroyed country and facing their former colleagues who in many cases had betrayed them, or staying in exile. For a number of them, their exile had lasted more than a decade and they and their families had found a new life. Only a few of them decided to return permanently.Footnote ⁷⁶ Schulz and Neumann, for example, made only periodic visits. Others, such as Pringsheim, went back as early as possible to consolidate their influence in the rebuilding of the faculty. Pringsheim returned to Freiburg for the first time in the summer of 1946 and more permanently the following year, although he held on to his apartment in Oxford. He became very active in reinvigorating the Freiburg faculty of law after the war and his influence, both through his own actions and through those of his allies, was dominant up to the sixties.Footnote ⁷⁷

For younger scholars who had joined the Nazis, the issue of return was equally problematic. Wieacker, Coing, and many others were, having survived the war, in prisoner of war camps. They faced a process of denazification and sought to clear their reputations. In the case of Wieacker, he managed to be sentenced as a Mitläufer or fellow traveler, which enabled him to continue working in academia. In the process, he was helped by Pringsheim, who wrote him an exculpatory letter. However, he had to abandon his position at the University of Leipzig, which was in the Russian zone. Helped by his network of former members of the Kieler Schule, Wieacker was able to secure a professorship in Göttingen.Footnote ⁷⁸

This process does very little to explain the reorientation toward Europe that took place soon after the war. In the case of Wieacker, he turned very quickly from a Nazi-inspired interpretation of history back toward a way of thinking advocated by Pringsheim, but also by Wieacker himself in his earlier writings some 10 years earlier.Footnote ⁷⁹

The new narrative of European legal history was not purely new. The framework of Koschaker's 1947 Europa can be seen in his 1938 Krise. However, in the later work the appeal to a historical culture and tradition as the true European legal heritage becomes almost programmatic. Europa is nominally a history of Roman law in Europe after the fall of the Roman Empire, but in practice it attempts to tell the creation of the tradition of European jurisprudence as a shared heritage. In a similar manner, Wieacker's postwar works contain a historical outline comparable to that of his book from 1944. What was different were the connotations and the implications that these historical facts were given. In the case of Koschaker's Europa, the main point was timing. At the end of the war, the narrative of the unity of Europe as a historical fact struck a chord, and the political and economic drive for European integration propelled equally the need for a narrative that would provide legitimacy and a sense of direction to the developments.

The new narrative of Europe as a cultural and legal entity, as an object of legal history and the subject of a narrative, was therefore a mixture of old and new, combining elements from the Nazi era texts as well as materials from the writings of exiles. Resembling in many ways the new political narrative of Europe, it took images and elements that had been utilized in Nazi propaganda and repurposed them; for example, the concept of a European cultural heritage.

The main formulators of the new European narrative for legal history were Koschaker, Wieacker, and Coing, who promoted it in important books. Part of the turn to an explicit European framework was internal reconfiguration, which was partly a response to outside stimuli such as conferences on early European integration.Footnote ⁸⁰ In Germany, another fundamental reason was that as a result of the Nazi era reforms, in the national law studies curriculum there was a university course titled Privatrechtsgeschichte der Neuzeit (History of Modern Private Law), which gave scholars the possibility of exploring the reception of Roman law in European history. The central role of Roman law in the formation of the new narrative was partially the result of its oppositional role during the Nazi years. In contrast, the study of Germanic legal history had been strongly favored by the Nazi policies, leading to its falling out of favor in the afterwar years.

Koschaker's Krise was already strongly focused on Europe and the study of Roman law in it, but Europa began to discuss Europe explicitly, asking “What is Europe?” Koschaker's stated answer is that Europe is a cultural phenomenon, an original combination of Germanic and Roman cultural elements. As a starting point, Koschaker takes a heterogeneous sampling of the earlier Europeanist literature, beginning with Christopher Dawson's The Making of Europe (1932). This selection of literature includes Catholic universalists such as Dawson, but also German nationalists of the Grossraum ideological slant, as well as medieval historians. Even Carl Schmitt makes an appearance as an author in the volume Das Reich und Europa (1941). Despite these references, Koschaker's Europe as a legal community was simply a part of Europe as a cultural and religious community. Europe was a product of history.Footnote ⁸¹

Both Krise and Europa may be seen as signs of Koschaker's astute political instincts. Although the turn toward Europe was a result of the favorable political circumstances, Krise has been compared to Husserl's crisis of European science and its European definitions. To Husserl, the concept of Europe was not only geographical but also to a large degree one of philosophy. He drew from Hegel and Nietzsche, who both saw Europe as a mode of rationality, a spirit. For Hegel, Europe was a spiritual unity, an understanding of reason and rationality that reconciled individual freedom and institutions.Footnote ⁸² Koschaker's concept of crisis or the concept of Europe must be read within the multifarious contexts where these concepts were used. Whereas for philosophers, Europe could mean rationality, order, freedom, and the triumph of the spirit, it was equally a symbol of crisis and the tired constraints of civilization and morality. For historians, Europe could be a symbol of the almost transcendent unity of religion and morality, but at the same time it was a catchword of imperial ambitions and “natural” spheres of influence. Its crisis could be a cultural crisis, an economic crisis, a value crisis, or even a crisis of identity or race. Both words were thus easily adaptable for whatever purpose one could imagine.

Wieacker's Europe was a similar kind of cultural sphere, but his narrative was much more focused on the development of Roman law. Wieacker's 1952 Privatrechtsgeschichte des Neuzeit (translated as History of Private Law in Europe) was in essence the origin story of German law, from the rediscovery of Roman law in Renaissance Italy to the mos italicus, the revising of history and law by the French and Dutch early modern humanists and culminating with the historical school of law in Germany. Wieacker's and Koschaker's narratives are startlingly parallel, even though scholars have noted how their implications are quite different.Footnote ⁸³

Wieacker continued with the same themes in an article on the origins of the European legal consciousness in 1956. There, he made a clear statement against English-language scholarship and its claims to represent the Western tradition. In contrast, Wieacker stated that the European tradition has three constitutive elements: (1) the concepts of law and legal order that derive from Imperium Romanum, (2) the continuity of these and their unique relationship with metaphysics and social ethics that are the work of the church, and (3) the vitality and will to develop social and state structures, which are credited to the Germans. Though there were many subsequent developments, such as the idea of freedom, these were more in the nature of sediments that accumulated on top of these foundations.Footnote ⁸⁴ However, in his later formulations, he attempted to include the whole of the Western world in this narrative. His narrative of European law and “the foundations of European legal culture” are summarized in an article in The American Journal of Comparative Law in 1990, in which he defines Europe as the wider Atlantic-European world, including even the offshoots of European culture as far as the antipodes. After a brief nod to the distinctiveness of the common law system, Wieacker takes up the familiar themes of historical development from Rome to the Middle Ages and onwards. The role of the church is underlined in developing the “modern” traits of European legal culture, but the true hero of the story is the autonomous legal science of jurists. The story then culminates in the “essential constants of European legal culture”: personalism, legalism, and intellectualism. “Personalism” meant the primacy of the individual in law, as the subject, end, and point of reference. Individual association and individual relationship with deities were the same results of the emphasis on freedom and self-determination. From these, Wieacker sees the foundation of the emphasis on freedoms and, therefore, rights as being pervasive in European legal culture. The principle of legalism rested on the exclusive power of the legal rule over others, the way that relationships are objectified through law and law separated from social and ethical norms. Legalism was introduced with the idea of rationalism, the strict removal of law from ideas of social equality. The final principle was that of intellectualism, in which legal science is just that, a science in which systematic and conceptual reasoning rules.Footnote ⁸⁵

Critical studies of European integration have, since the 1990s, pointed out the similarities between the theories of European integration and the Nazi concepts of Europe.Footnote ⁸⁶ Some of the similarities and continuities between Nazi era theories and postwar works inspired by European integration were purely coincidental, but others had political connotations. One of the overriding political continuities from the Nazi years to the postwar era was opposition to Communism.

The new European narrative was to a large extent inspired by classical liberalism. However, important segments such as the independence of law were equally conservative in the sense that the theory was aimed at separating law from the political sphere and thus from the legislative process, a key democratic principle. The freedom of law from politics was seen not only as a way to guarantee basic rights, but also as forming the very foundations of capitalist society, such as the importance of the notion of ownership. Only in the light of Nazism and Communism was it possible to present the separation and isolation of law from politics as the sole preserve of lawyers and legal professionals as a purely positive development.

The narratives of both Koschaker and Wieacker had a clear similarity with the Catholic cultural theories of European unity, and they both present the church as the carrier of European civilization. A similar theme was taken up by Helmut Coing, who promoted the idea of the unity of European legal science both in numerous articles and in the activities of the Max Planck Institute of European Legal History, which he founded in 1964. Coing was also the first in the group of scholars to begin actively engaging with the concept of human rights, seeking to demonstrate how the idea of human rights had been an innate feature of the European legal heritage since the early modern period. In all of these examples, the narrative foundations laid by Schulz and Pringsheim were fused with cultural theories as well as earlier themes concerning the transmission of science.Footnote ⁸⁷

7. Normativity, Narrativity, and Causality

Did the narrative of European legal history, the understanding that law and legal science have a shared history and that they should be conceptualized through this shared history, emerge as a reaction to the European political project? Or did the legal aspects of the European political project emerge as a reaction to the emerging European narrative? Or were these two parallel developments only marginally intertwined?

As with all complex developments, seeking a definite answer or an easy causal connection to this dilemma of narrative and normative interlinkage is quite futile. An answer of some kind, or a potential answer, may be gained from the figures of Pierre Pescatore and Walter Hallstein. Pescatore was a judge in the Court of Justice of the European Union, but he was initially a student of Koschaker.Footnote ⁸⁸ Hallstein was a friend of Coing, who became the president of the European Economic Community commission and who used Coing as a sort of background intellectual. Hallstein was enthusiastic about the potential of law and legal tradition to be a unifying factor of Europe: the idea that law would become a cultural force to create a European community.Footnote ⁸⁹ Both Hallstein and Pescatore were putting into practice ideas that their teachers had formulated.

The crucial development in both the narrative and the normative turn toward Europe was one of redefining concepts. The concept of culture was central to the whole idea of nationhood and nationalism, culture as an innate genius of the people that was refined and interpreted by the thinkers who channeled the culture of the people into not only songs, poems, and other art, but equally into its laws as presented by Savigny and Grimm.Footnote ⁹⁰ This conception of culture was exclusive and relied on a homogeneous definition of nationhood, its core, and the expressions it manifested itself. However, the idea of European culture as a conglomeration of individual national cultures was a hard sell, especially after authors with nationalistic credentials had spent a century trying to define one against the other. The concept of culture was a key element in the postwar discussions, in which the idea of culture and the Kulturnation were utilized as touchstones of German identity. Culture could be the one clean sphere where German achievement and superiority could be safely touted. For democrats and conservatives alike, resorting to Goethe gave them a neutral way of describing values and national identity.Footnote ⁹¹

The concept of tradition faced a similar redefinition against the exclusive national backgrounds, requiring a novel idea of a legal canon based on the Roman tradition through which one could work. The concepts of legitimacy and universality were even harder to maintain in their transition from a national to a European framework. The legitimacy of law in the national framework was grounded on ideas of popular sovereignty as manifestations of national common will, with the populace and the nation being ideally one and the same. The theme of universalism as opposed to particularism was subject to a novel conceptual turn, in which European values were understood to be universal, but at the same time particular to Europe.

The idea of Europe was by no means an exclusively liberal or progressive idea, but rather the European discourse included all sides of the political spectrum. During the war, even the Nazi regime became fascinated with the idea of Europe and began to propagate the idea of Europe as a wider community led by Germany, united by anticommunism and the notion of an ethnic basis or a cultural community.

The change of the historical narrative was prompted by the threat posed by legislative developments, especially the danger of European integration. The main idea was not that there would be a causal connection, but rather that the normative and narrative elements shared a basic mechanism, the element of belief as a constitutive force. By establishing Europe as the object of history, the narratives of European legal history were working toward a similar aim to that of the political and normative project of European integration; namely, to establish Europe as the historical actor at the center of the narrative. The historical narratives were used to ground the new interpretation to the tradition, to demonstrate that they were not reforms but rather natural continuities. Thus, even the universalist language of human rights as innate and independent of any treaty, law, or pact, was co-opted by formulators such as Koschaker and Coing to tie the European tradition to the language of rights, seeking to place pre-eminence on the European tradition as the origin of the tradition of rights.

The formulators of the European narrative were not, if one were to guess at their motivation, primarily creating a European narrative. They were most likely prompted by more mundane concerns, such as the preservation of their field in the changing circumstances; this was the main reason behind Koschaker's initial foray into European narratives. Should one seek ulterior motives, those could perhaps be found in a conscious or unconscious sense of reflecting contemporary concerns and issues.Footnote ⁹² Despite their motivations—or the lack of them— they were successful precisely because their new narrative used the literary canon, both in history and law, presenting the interpretation as though in a continuum. As always with powerful narratives, theirs created connections between issues and fields, convinced both factually and in a narrative sense in its internal coherence. This was a narrative that was easy to believe in. It addressed contemporary concerns, it gave meaning to what had happened, and it linked the present and the past. As a result, narratives such as that of the European legal heritage were able to be believed and built beliefs, beliefs that had normative implications. As is generally the case, normativity works when it is believed in, when individuals put their faith in it.

The change in the European narrative of law was equally reflective of the change in the normative environment. The first input was the retreat of law to the present with the onslaught of modern positive law (such as the BGB), of creative change, and social change demanding novel legal solutions. The second was the challenge of Nazi new legal science, which presented an existential crisis with its resentment toward the legal tradition, positive law, and legal certainty. Its aims were purely revolutionary. The third normative change was that of European integration and the rise of human rights, both producing a new normative reality.

The response provided by the European narrative was a creative conglomeration of narrative snippets combining cultural narratives of Europe, ethnic and hastily concealed racial theories, and an oddly fitting position of legal universalism. Hannah Arendt, ever the astute observer, remarked on this that the conception of civil rights as a national embodiment of universal rights was already a contradiction in terms, in which on one hand something is both universal and at the same time particular to a set of people who constituted a nation.Footnote ⁹³ She was discussing the issues of nationalism, but the same idea applies to Europeanism to an even larger degree. Europe in this respect was an awkward combination of both particularism and universalism, striving to present itself as uniquely adept at implementing rights that it considered to be universal. Arendt's particular universalism bears an uncanny resemblance to Koschaker's relative natural law, which is seen as logically impossible but politically desirable. The narratives of humanity, dignity, and value of the individual told by Schulz and Pringsheim were in a similar manner seeking to reconnect law with values thought to be universal. Although, typical of the time, they were not discussing human rights or even using the language of rights, the basic framework they outlined contained the same elements and normative connotations that would later be associated with human rights.

The role of these historical narratives in normative developments could be explored through the concepts of tradition and myth, which exist in a complex interplay in which historical narratives both explain continuity and change in society, but themselves mutate as a result of social and political changes.Footnote ⁹⁴ In this case, the exiles were reformulating a new narrative as a reaction to contemporary events and pressures, as responses to their personal plight but also to the challenge of totalitarianism as a whole. In a similar way, the scholars who stayed in Germany through the Nazi years were reworking the past to suit different potential futures, one within the Nazi regime and then one within the new post-World War II European reality. They were in a sense radically reinterpreting the past in order to remake the future. Using the creation stories of the shared symbols of law, they were demonstrating what they thought to be the true meaning of the European heritage.Footnote ⁹⁵ In these repeated reinterpretations, the past was not simply a vessel for ideas and ideals, it also influenced the future in the form of European integration. Because of the cumulative nature of historiography, the reinterpretation of the past was by no means a process of writing on a clean slate, because each successive rewriting left elements of its predecessor intact. Thus, the European legal narrative contained not only the visions of the exiles, but also remnants of Nazi era writings embedded into the European story.