'In the Glass Darkly': Legacies of Nazi and Fascist Law in Europe

Abstract

Christian Joerges & Navraj Singh Ghaleigh, ed., Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Oxford: Hart Publishing, 2003). Subsequent references appear parenthetically in the text. I Introduction The dust jacket of Darker Legacies of Law in Europe reproduces Georg Kolbe's 1945 sculpture Liberated Man. The tragic figure provides a fitting opening to this volume of thought-provoking essays on the legacy of Nazi and Fascist law in Europe and perhaps beyond. Kolbe's naked figure bent over in a posture of profound shame and disgrace transforms the triumphant implications of 'liberation' into a chilling irony. And the essays gathered in Darker Legacies remind us of the continuing implications of the shadow of disgrace that accompanied the liberation of Europe from National Socialism and Fascism. But Kolbe's figure also bespeaks the specific disgrace of the law in its willing service of brutal and totalitarian projects. Law, like man, was liberated to face its horrifying responsibility. Darker Legacies probes the nature of this responsibility, asking important questions about the meaning and endurance of law's complicity in evil. The collection is rich in breadth and depth, with scholars from Europe and beyond tackling topics as diverse as fascist public and private law, the role of the legal profession and of adjudication in confronting evil law, the link between the European integration project and fascist reconceptualizations of international law, and the complex heritage of modern human rights discourse. The scope of Darker Legacies is important, for it takes questions that have been primarily directed towards Nazi law and puts them into a broader European framework. As Joseph Weiler's epilogue rightly reminds us, this may threaten to elide significant differences. But with the integration of Europe, it nonetheless seems important to consider the ways in which the legacy of law during the period of National Socialism and Fascism continues to cast its shadow across Europe and perhaps beyond. One of the contributions of this volume is to draw our attention to the legacy of fascism in European legal institutions beyond Nazi Germany. A nice illustration is found in Pier Giuseppe Monateri and Alessandro [End Page 449] Somma's discussion of Nazi and Fascist theories of contract. These theories, the authors note, were united by a shared antipathy to the liberal political values expressed by traditional contract theory but divided because of the Roman law heritage of traditional theories of private law. The two regimes thus shared a commitment to the primacy of the individual's responsibility to the collectivity, a commitment they theorized and discussed. The Italians, however, were more reluctant to abandon their Roman heritage and implement fascist reconstructions of contract. Another helpful contribution to our understanding of the breadth of the fascist legacy is found in Luca Nogler's account of how Nazi conceptions of a 'new European order,' characterized in part by the treatment of labour, played out in Fascist Italy. As Nogler outlines, in the Italian context the much-discussed Nazi conceptions of labour and corporatism met with a complex reaction of both reception and resistance, not unlike the reaction that Monateri and Somma point to in contract law. The volume also contains a number of pieces that remind us of the extent and complexity of the European fascist debates about public and constitutional law. Given Carl Schmitt's prominence as the pre-eminent legal theorist of Nazism, it is unsurprising that consideration of his work forms a major theme in this volume. But before discussing what this volume contributes on that point, it is worth noting that Darker Legacies reveals not only Schmitt's dominance as a theoretician but also the extent to which consideration of and debate with Schmitt was critical to the fascist understanding of public law in Italy, Spain, and Austria as well. An example is found in Massimo La Torre's insightful...