Rechtsgeschichte - Katalog der Deutschen Nationalbibliothek

RechtsRggeschichte

Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte

Journal of the Max Planck Institute for European Legal History

HerausgeberThomas Duve

RedaktionOlaf BergNicole Pasakarnis

RechtsgeschichteLegal History

Rg 22 2014

Impressum:

Rechtsgeschichte Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte

Copyright: © Vittorio Klostermann GmbH, Frankfurt am Main 2014 © Photos Wikimedia Commons, http://commons.wikimedia.org (S. 50, 61, 227, 268)Wikipedia, www.wikipedia.org (S. 8, 14, 139, 213, 256, 274, 282, 315, 322, 372, 373, 386)http://bigblue1840-1940.blogspot.com (S. 175, 191, 244, 292, 302)

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Herausgeber: Thomas Duve Redaktion: Olaf Berg Nicole Pasakarnis

Anschrift der Redaktion: Max-Planck-Institut für europäische Rechtsgeschichte Redaktion Rechtsgeschichte Hansaallee 41 60323 Frankfurt am Main Tel. +49-69-78978-200 Fax +49-69-78978-210 www.rg-rechtsgeschichte.de www.rg.mpg.de

Anregungen und Manuskripte an: [email protected]

Verlag und Anzeigen: Vittorio Klostermann GmbH Frauenlobstraße 22 60487 Frankfurt am Main www.klostermann.de Preis pro Band 42 Euro

Graphische Gestaltung: Elmar Lixenfeld, Frankfurt am Main

Druck und Bindung: Hubert & Co., Göttingen

Zitiervorschlag: Rg 22 (2014) ISSN 1619-4993 ISBN 978-3-465-04217-4

Thomas Duve

EditorialVor 50 Jahren, im Jahr 1964, nahm Helmut

Coing den Ruf als Gründungsdirektor an das bereits seit langer Zeit geplante Max-Planck-Insti-tut für europäische Rechtsgeschichte an; in der Max-Planck-Gesellscha wird eine solche Rufan-nahme üblicherweise als die Geburtsstunde eines Instituts angesehen. Seit den Tagen Helmut Coings hat sich die europäische Rechtsgeschichte zu ei-nem lebendigen Feld der Forschung transnationa-ler Rechtsgeschichte entwickelt. Das Institut war ein wichtiger Teil und Motor dieser Bewegung. Ein halbes Jahrhundert später können wir nicht nur auf dieser Tradition auauen, ihre Einsichten und Ergebnisse nutzen, ihre Grenzen zu überwinden und um globale Perspektiven zu ergänzen versu-chen. Wir tun dies nun vielmehr auch in einer gänzlich neuen Umgebung, nämlich unserem neuen Institutsgebäude, das seinen Sitz an der Südostspitze des Campus Westend der Goethe Universität im Herzen von Frankfurt hat. Auf-merksame Leserinnen und Leser der Rg mögen den Umbau unserer Forschungsaktivitäten insbe-sondere mit dem He 20 (2012) der Zeitschri verfolgt und in der gedruckten Version von He 21 (2013) auch einige Fotos gesehen haben, die den Schwerpunkt zu ›Taufe und Recht‹ und das Forum ›Law and Revolution – revisited‹ begleiteten: Bil-der von der Umordnung des Wissens anlässlich unseres Umzugs.

Die Einweihung des neuen Institutsgebäudes im September 2013 war eine willkommene Ge-legenheit, um Kolleginnen und Kollegen aus un-terschiedlichen Disziplinen und Forschungsberei-chen dazu einzuladen, unsere Ideen zu diskutieren und ihre eigenen Überlegungen zur Notwendig-keit der Öffnung unserer Forschung für globale Perspektiven und damit auch für andere Formen der Normativität vorzustellen. Wir taten dies auf einer Tagung mit dem Titel European Normativity – Global Historical Perspectives. Die meisten der in diesem He im Fokus abgedruckten Beiträge wur-den auf dieser Tagung vorgestellt und diskutiert, einige weitere Aufsätze haben wir hinzugefügt, weil sie uns wichtige Perspektiven auf Forschungs-gebiete zu erschließen schienen, die, wie zum Bei-spiel die chinesische Rechtsgeschichte und ihre komplexe Beziehung zu den westlichen Traditio-nen, auf der Tagung nicht repräsentiert waren. Auf

diese Weise geben die Beiträge in diesem He einen Überblick über sehr unterschiedliche me-thodologische und konzeptionelle Überlegungen sowie eine Reihe von Fallstudien zu den Verflech-tungsprozessen zwischen normativen Ordnungen, die uns lange Zeit als weitgehend getrennt erschie-nen.

Die Tatsache, dass wir, vor allem im 19. und 20. Jahrhundert, nicht mehr in getrennten Wel-ten, sondern in einer intensiv miteinander ver-bundenen Weltordnung lebten, nicht zuletzt durch den Kolonialismus, wird von den Illustra-tionen in diesem He verdeutlicht: einer kleinen Sammlung von Briefmarken, die durch die Welt reisten, Nachrichten, Bilder und Ideen von ei-nem Ort zum nächsten beförderten. Auch in der Kritik haben wir uns auf wichtige Publikationen aus dem Bereich der Transnationalen Rechtsge-schichte konzentriert, und wir sind sehr froh, dass wir damit eine Reihe von ausführlichen Über-legungen zu dieser lebendigen internationalen Forschung zur Transnationalen Rechtsgeschichte publizieren können.

Doch auch eine auf transnationale Rechtsge-schichte und damit ihre eigene Transnationalisie-rung zielende Wissenscha konstituiert sich aus ihren meist nationalen Traditionen. Wir müssen deswegen diese eigenen Traditionen kennen, sie auch pflegen, nach ihrem Ort in der sich heraus-bildenden transnationalen Arena fragen und sie nicht zuletzt unseren Kolleginnen und Kollegen aus anderen Traditionen erläutern. Aus diesem Grund wird im einleitenden Artikel dieses Hes ein Überblick über einige analytische Traditionen unserer Disziplin von einer dezidiert deutschen Perspektive aus versucht. Besondere Aufmerksam-keit beanspruchen dabei die grundlegenden Ver-änderungen im deutschen Wissenschas- und Rechtssystem während der letzten 25 Jahre sowie die Herausforderung, die sich aus diesen Verände-rungen ergeben. Diese Selbstbeobachtung ver-sucht umzusetzen, was die wissenschashistorische Forschung während der letzten Jahrzehnte immer deutlicher herausgearbeitet hat: dass nämlich die Bedingungen der Wissensproduktion unweiger-lich von besonderer Bedeutung für die Inhalte sind, in unserem Fall also für unser Bild auf die Rechtsgeschichte.

Ein Ergebnis des Überblicks liegt darin, dass gerade die Transnationalisierung von Recht und Rechtswissenscha unserer Disziplin faszinierende Perspektiven eröffnet. Der 50. Geburtstag des Max-Planck-Instituts für europäische Rechtsgeschichte, aber auch der 100. Geburtstag der Frankfurter Goethe Universität, den diese ebenfalls im Jahr

2014 feiert, luden zu einem solchen Rückblick auf ein Jahrhundert rechtshistorischer Forschung in Deutschland – und einem Ausblick auf mög-liche Perspektiven ein.

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Thomas Duve

EditorialIt is a tradition within the Max-Planck-Society

to commemorate the anniversary of an institute on the day its founding director accepted his or her nomination. And it was fiy years ago, in 1964, that Helmut Coing has done so. Since Coing’s days, European Legal History has emerged as a powerful field within transnational legal history, and our Institute has been pivotal to this move-ment. Half a century later, we have not only been able to build upon this tradition, draw on its results, overcome some of its shortcomings, and open ourselves up to global perspectives. We are also able to do that in a stimulating new working environment in the heart of Frankfurt, on the edge of the Westend-Campus of Goethe University, where our new building is located. Attentive read-ers of Rg may have witnessed the restructuring of our research perspectives, elaborated in the 20 (2012) issue, and found out about our Institute’s relocation from a series of images published in the 21 (2013) issue as well as in two journal sections: Focus on ›Baptism and Law‹ and Forum on ›Law and Revolution – revisited‹.

The inauguration of the Institute’s new build-ing in September 2013 was a welcome opportunity to invite scholars from different disciplinary tradi-tions and fields of study to exchange ideas on the necessity of opening up legal history for global perspectives, and thus for other modes of norma-tivity. We did so under the title »European Nor-mativity – Global Historical Perspectives«. Not all contributions in this volume grew out of confer-ence presentations. Some were included as they enriched and expanded the range of perspectives generated at the conference, for instance, on Chi-nese legal history and its complex relationship with Western traditions. Together, the contributions in this issue provide us with a wide range of meth-odological and conceptual reflections, as well as case studies on the intense entanglements between normative orders we for a long time had regarded as separate. And especially in consideration of the

19th and 20th century context of colonialism, that we lived in an intensely connected world is evident in this issue’s illustration, which depicts a small collection of stamps that travelled around the world, bringing news, images, and ideas from one place to another. In the review-section, we focus on important new publications in trans-national legal history, and we are very happy to provide a number of extensive critical assessments on the results of the powerful international re-search on emergent, yet influential, field of trans-national legal history.

Nevertheless, any transnational scholarship re-lies on specific, oen national, traditions. Thus, we need to reflect upon our own traditions, cultivate them, search for their place in the emerging trans-national arena, and explain them to scholars from different traditions. For this reason, I have tried, in the introductory article of this issue, to provide an overview of some of the analytical traditions within our discipline from a German perspective. In doing so, I have paid special attention to the important changes in the German science and legal system during the last 25 years, the challenges resulting from these transformations in light of what research tells us about the history of knowl-edge creation in the last decades, namely that content relies on the conditions of knowledge production. The transnationalization of law and legal scholarship opens up fascinating perspectives for our discipline. The 50th anniversary of the Max-Planck-Institute for European Legal History this year, and coincidentally also the 100th anniversary of Frankfurt Goethe University, provides an excel-lent occasion to review some aspects of a century-old tradition of legal-historical research in Ger-many in order to advance future research perspec-tives.

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Thomas Duve 16 German Legal History: National Traditions and Transnational Perspectives

Fokus focus

Thomas Duve 51 European Normativity – Global-Historical Perspectives. Introductory remarks

Jürgen Renn 52 The Globalization of Knowledge in History and its Normative Challenges

Hartmut Leppin 62 Christianity and the Discovery of Religious Freedom

Heiner Lück 79 Aspects of the transfer of the Saxon-Magdeburg Law to Central and Eastern Europe

Raja Sakrani 90 The Law of the Other. An unknown Islamic chapter in the legal history of Europe

Martti Koskenniemi 119 Vitoria and Us. Thoughts on Critical Histories of International Law

Tamar Herzog 140 The Appropriation of Native Status: Forming and Reforming Insiders and Outsiders in the Spanish Colonial World

Jean-Louis Halpérin 150 Transplants of European Normativity in India and in Japan: a Historical Comparison

Li Xiuqing 158 The Chinese Repository and Chinese Criminal Law in the Minds of Westerners of the 19th Century

Zhang Zhongqiu 176 China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty

Eugenio R. Zaffaroni, 192 El pensamiento alemán en el derecho Guido L. Croxatto penal argentino

Elisabetta Fiocchi Malaspina, 214 International Law and Translation Nina Keller-Kemmerer in the 19th Century

Urs Matthias Zachmann 228 Does Europe Include Japan ? European Normativity in Japanese Attitudes towards International Law, 1854–1945

Ute Frevert 245 Honour and / or / as Passion: Historical trajectories of legal defenses

Paolo Grossi 257 DieBotschaftdeseuropäischenRechtsundihre Vitalität:gestern,heute,morgen

Kommentar commentary

Mario Ascheri 270 Afinalcommentandrequest

Kjell Å. Modéer 275 The Deep Structures of European Normativity in a Global Context

Philip C. McCarty 283 Globalizing Legal History

Kritik critique

Gunnar Folke Schuppert 294 The Cosmopolitan State

H. Patrick Glenn, The Cosmopolitan State

Antonio Manuel Hespanha 303 The Legal Patchwork of Empires

Legal Pluralism and Empires, 1500 – 1850, ed. by Lauren Benton, Richard J. Ross

Li Yang 316 Legal Orientalism, or Legal Imperialism ?

Teemu Ruskola, Legal Orientalism

Stefan Kroll 323 Selbst die Kopie ein Original. Die Konstruktion und Adaption globaler Ideen

Samuel Moyn, Andrew Sartori, Global intellectual history

Christiane Birr 325 Die seidenen Bande des Empire

Bonny Ibhawoh, Imperial Justice

Otto Danwerth 326 Von den Inka lernen, heißt herrschen lernen. ZuzweiEditionenvonSchrifteneinesspanischen Juristen im frühkolonialen Peru

Polo Ondegardo, Pensamiento colonial crítico, ed. de Gonzalo Lamana Ferrario

Polo Ondegardo, El Orden del Inca, ed. de Andrés Chirinos y Martha Zegarra

Leticia Vita 331 ¿PorquéhablardeCulturasConstitucionales ? Nuevas perspectivas sobre las revoluciones atlánticas

Constitutional Cultures, ed. by Silke Hensel et al.

Pamela Alejandra Cacciavillani 334 A labyrinth of dissimilar senses

Alma Guadalupe Melgarito Rocha, Pluralismo Jurídico

Roberto Gargarella 336 Explicando el constitucionalismo latinoamericano

Gabriel L. Negretto, Making Constitutions

Ulrich Jan Schröder 338 Verfassungsvoraussetzungen – rechtshistorisch betrachtet

Verfassungsvoraussetzungen, hg. von Michael Anderhaiden et al.

Kritik critique

Carolin Behrmann 341 Iconomus

Peter Goodrich, Legal Emblems and the Art of Law

Michael Stolleis 343 Die Rückseite der Malerei ist die Vorderseite des Staates

Erk Volkmar Heyen, Verwaltete Welten

Christoph H. F. Meyer 345 Mittelalterliche Gerichtsbarkeit – im Zeichen der SakralitätunddesVergleichs?

Robert Jacob, La grâce des juges

Mario Ascheri 347 Processo romanico-canonico: una ›eccellenza‹ attraverso il tempo ?

Knut Wolfgang Nörr, Romanisch-kanonisches Prozessrecht

Karl-Heinz Lingens 350 Kostbare Zeit

EineGrenzeinBewegung:Privateundöffent- licheKonfliktlösungimHandels-undSeerecht, hg. von Albrecht Cordes, Serge Dauchy

Christian Windler 352 Objekte als Medien der Diplomatie

Materielle Grundlagen der Diplomatie, hg.vonMarkHäberlein,ChristofJeggle

Harald Maihold 354 Kriegsrecht aus moraltheologischer Sicht

Francisco Suárez, De pace – De bello, hg. von Markus Kremer

Martti Koskenniemi 356 On the religious Origins of Capitalism

Wim Decock, Theologians and Contract Law

Wim Decock 361 Geldüberwuchert

Was vom Wucher übrigbleibt, hg. v. Matthias Casper u.a.

Harald Maihold 363 Ich sündige, also bin ich! Das spanische Drama als Probebühne für moralische Experimente

Hilaire Kallendorf, Sins of the Fathers

Wim Decock 365 Papsttreu bis zum Tode

Cyrille Dounot, L’œuvrecanoniqued’Antoine Dadine d’Auteserre (1602 – 1682)

Kritik critique

Sylvia Kesper-Biermann 366 DeraufgeklärteTodaufRaten

Gerhard Ammerer, Das Ende für Schwert und Galgen ?

Vera Finger 369 Am Morgen singen die Vögel

SLING, Der Mensch, der schießt

Karl Härter, Tina Hannappel, 374 Terrorismus für die Rechtsgeschichte ? Conrad Tyrichter, Thomas Walter Neuerscheinungen zur Geschichte politischer Gewalt im 19. und 20. Jahrhundert

Richard Bach Jensen, The Battle against Anarchist Terrorism

Gewalt ohne Ausweg ?, hg. von Klaus Weinhauer, JörgRequate

An International History of Terrorism, ed. by JussiM.Hanhimäki,BernhardBlumenau

Radikale Milieus, hg. von Stefan Malthaner, Peter Waldmann

Terrorism and Narrative Practice, ed. by Thomas Austenfeld et al.

Terrorismus und Geschlecht, hg. von Christine Hikel, Sylvia Schraut

Abstracts 387 abstracts

Autoren 394 contributors

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Thomas Duve*

German Legal History: National Traditions and Transnational Perspectives

The political, institutional and pragmatic con-ditions under which scholarship in the humanities, cultural studies and social sciences is being pro-duced are currently undergoing radical changes. The same applies to the field of law. For nearly 25 years, our higher education and research system as well as the legal system have been facing an increasingly dynamic process of transnationaliza-tion, economization, and digitization. As histori-ans of science, we are aware that changes in the institutional and pragmatic conditions of scholar-ship have important disciplinary implications. Questions, approaches, responses, and outcomes are all equally affected. What if this observation also holds true for Legal History as a discipline and for us as legal historians? How have the institu-tional and intellectual frameworks of our field changed? What do these changes mean for the future of our field of study? What new options are opening up owing to these changes?

In what follows, I respond to these questions from the perspective of a German legal historian who is interested in the emerging discipline of Transnational Legal History. This special interest, which not all my colleagues necessarily share, and my own German perspective might ultimately bias my analysis. Yet, I am convinced that as a disci-pline, Legal History finds itself in a crisis of sorts and simultaneously in a highly promising situa-tion. The crisis is about the eroding traditions, while the promise derives from the emergent

institutional and intellectual settings. As always, our judgment on where we are and where to go to depends on our perspective. But there is a need for reflection.

This year is a good time to devote to review our traditions, the current status of our field, and on our future options, 1 because in Frankfurt, we are celebrating a unique triple anniversary reflect: The University of Frankfurt (Main) and its Law Depart-ment have turned one hundred; the Max Planck Institute for European Legal History is celebrating its 50th anniversary; and it is a quarter century since the Wall fell in 1989, symbolizing the end of two opposing blocs in Europe, which has opened a new chapter in world politics and modern history.

Taking the triple anniversary as our collective platform, I proceed in four steps to call to mind our traditions, following which I discuss the trends that emerge from this long-term-perspective. My starting point is 1914. I look back at the 100 years to begin to outline the contours of legal scholar-ship in Germany in 1914 and to show the value of a long-term perspective on the history of this science for reflecting on the future of the discipline (Part 1). I then go on to elaborate on the traditions that constituted Legal History as a distinct discipline in Germany aer WW2, both during what came to be designated as the Bonner Republik – the period from the end of the Second World War to 1989 (Part 2) – and in the Berliner Republik, which spans the period from 1989 to the present (Part 3). Lastly,

* Large parts of the following text draw on an article to be published in Ger-man in Kritische Vierteljahresschri für Gesetzgebung und Rechtswissen-scha (KritV), 2, 2014. This is an extended version of a lecture given on the occasion of the 100th anniversary of Frankfurt Law Faculty within a lecture series on traditions and perspectives of legal scholarship, organized by the Faculty of Law and the Cluster of Excellence ›Formation of Normative Orders‹ in February, 2014. Other parts of these reflections were presented on a conference given in Buenos Aires at the Instituto de

Investigaciones de Historia del Derecho in April, 2014, and at the Nantes Institute for Advanced Study in May 2014. I am grateful for the discussions on these occasions. My special gratitude goes to Lisa P. Eberle for her translation and critique of the German text written for KritV which served as a starting point for this article and also to Gita Rajan for the revision of the final text.

1 In a way, I am continuing with this my previous work on the history of historiography on European legal history, D (2012); D (2013).

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16 German Legal History: National Traditions and Transnational Perspectives

I conclude by outlining some challenges Legal History faces as a discipline and the tasks ahead. In this part, I advocate working toward a Legal History that is conscious of its traditions and follows some established paths, but at the same time is open to transnational or global perspectives on Legal History and contributes to an evolving transnational legal scholarship (Part 4).

1 1914 and 2014: Far Away, So Close

1.1 Founding of the University of Frankfurt am Main

Looking back at events that happened a hun-dred years ago, such as the founding of the Uni-versity of Frankfurt a. M., the historical distance might almost seem overwhelming at first glance. For example, the beginning of the foundational articles of the University evokes a world foreign to the modern reader: »We, Wilhelm, King of Prussia, by the grace of God want to give through our edict of June 10th 1914 the following statutes to the newly founded University at Frankfurt a. M.« 2But, in fact, modernity had already caught up with the German Empire and founding the University of Frankfurt was a considerable step toward the modernization of the German higher education and research system. Frankfurt University was the last university founded by the emperor, but during this reform period in the early twentieth century, it was by no means an isolated effort. The reasons that motivated these reforms were complex. 3 Since the turn of the century, if not earlier already, elite members of the bourgeoisie were becoming in-creasingly convinced that only the sciences meas-ured up to the task of tackling the historical changes in the world that engulfed them. More-over, science had evolved into a substantial »Groß-betrieb der Wissenscha«. 4 Especially in the West, the market for research had considerably expand-

ed, in light of which the economic, political and social elite in Germany believed that Germany had to enter the scientific arms race in competition with other countries. In their opinion, Germany was lagging behind the US, France, and even Nor-way where institutions, such as the Carnegie Foun-dation, the Pasteur Institute, or the Nobel Insti-tute, were not just better equipped, they were smaller, and more flexible than the Academies of Sciences and the universities in Germany. Thus, at the advent of the 20th century, a series of private sector initiatives were launched that aimed to enhance German competitiveness in research. The foundation of the Kaiser-Wilhelm-Society in 1911, the later Max-Planck-Society, represented one such response to similar demands from the industry and an important step in closing this perceived gap. It held up the hope that Germany would be able to secure a place in a research world that was becom-ing increasingly international. 5 In short, Germans looked with concern, especially to the English-speaking world, while at the same time the world looked with even greater concern upon an Empire as it armed itself on all fronts.

Obviously, the motives sketched out here did not just underlie the reforms in the science system. A general climate of reform had persisted since late 19th century – just think of Max Weber’s famous Freiburg conference from 1895. 6 In 1913 – few months before the foundation of the University of Frankfurt – the Prussian historian Otto Hintze addressed this atmosphere of anticipation and fear in his commemorative address on the occasion of the 25th anniversary of the reign of Wilhelm II:

»Rarely has a generation felt as strongly as the contemporary one that they stand at the begin-ning of a new eon. In technology and transport, in art and in our perception of the world, in economic life as well as in the relations between peoples and states great and world-shaking changes are taking place that together herald a

2 »Wir Wilhelm, von Gottes Gnaden König von Preussen etc., wollen der durch Unseren Erlass vom 10. Juni 1914 neu begründeten Universität zu Frankfurt a. M. die nachfolgende Satzung hierdurch verleihen«, Sat-zung der Königlichen Universität zu Frankfurt a. M. (1914).

3 For an overview see J (2010); S-J (2002); P

(2010); M (2010); S(1992) 211 ff.

4 This expression became particularly influential through H (1911).

5 N (2002) 56.6 Max Weber’s words from his inaugu-

ral address at Freiburg in 1895 are a forceful expression of these senti-ments: »Es wird uns nicht gelingen, den Fluch zu bannen, unter dem wir

stehen: Nachgeborene zu sein einer politisch großen Zeit – es müßte denn sein, daß wir verstünden, etwas anderes zu werden: Vorläufer einer größeren«, W (1971) 1.

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Thomas Duve 17

new era for humanity’s existence and also for our own people.« 7

The University of Frankfurt was established in these troubled and expectant times. The year of its foundation not only coincided with the outbreak of WW1. Its formation also marked the end of an era and was part of the transition from the res publica litteraria to the modern academic system. 8It responded to a liberal, socially sensitive, and economically invested bourgeoisie, and as such, it was an early expression of what came to be denoted as »the scientification of the social« in the 20th cen-tury. 9 Organizing the university as a trust – an in-novative concept for a German university – was meant to ensure freedom and separation from the state. In Frankfurt, this was meant to benefit Jewish scholars, in particular, and the research on the social implications of industrialization. The express aim of the donors, especially from the industry, was that the urgent questions of the moment be tackled. In particular, the Law Depart-ment of the new university was charged with studying social and economic questions. 10

1.2 Legal Scholarship in the Late Wilhelminian period

The spotlight on the political, social and intel-lectual circumstances during the years of the Uni-versity’s foundation might already indicate that, despite the seeming incommensurabilty between 2014 and 1914, there are at least some surprising commonalities between the pre-WW1 world-diag-nostics and today’s discourse on the science system: Today, as in the early 20th century, concerns re-volved around the dramatic changes in the world due to accelerated communication systems and the expanded scope of international trade, with exist-ing and new markets on world stage. People were convinced – as we are today – that they were living

in a period of accelerated change. The science system was exposed to transnational market mech-anisms and German academia was seeking ways to maintain its competitiveness. Especially the Eng-lish-speaking world seemed a threat to Germany’s once leading role in academia – it was not by chance that the Kaiser-Wilhelm-Gesellscha, inspired by the ›Royal Society‹, had been named as such. There were private funding initiatives for research and knowledge transfer from academia to industry and to society at large. Science, not the humanities, was viewed as the main motor of transformation in the science system. Wilhelm von Humboldt and his idea of an integrative scholarship were oen cited and scholars like Adolf von Harnack or Max Planck seemed to offer the implicit guarantee that sciences and the humanities would remain con-nected. But the main aim was to create a powerful science system, as a precursor to economic develop-ment. The notion of Grundlagenforschung, which expressed the idea that ›basic research‹ should fill a gap between the National Academies of Sciences and the universities, continues to be invoked even today notwithstanding the semantic differences between what it meant initially and what it is being used for today. The so-called three pillars of the German scientific system – Academies of Sci-ences, universities and independent research insti-tutions – also stem from this pre-war period. Thus, there are some striking structural similarities be-tween the academic world in 1914 and in 2014.

Unexpected similarities show up again between 1914 and 2014 when revisiting legal scholarship around 1914. One similarity lies in the growing awareness of the significance of the international context of national laws. Soon aer the outbreak of WW1, many observers realized that this war had also been a consequence of profound transforma-tions that had occurred in the last decades of 19th century, which in turn raised questions about the state, its laws, and its international – in fact,

7 »Kaum ist in einem Geschlecht je so stark wie in dem gegenwärtigen die Empfindung lebendig gewesen, dass es am Anfang eines neuen Weltalters steht. In Technik und Verkehr, in Kunst und Weltanschauung, im Wirtschasleben wie in den Bezie-hungen der Völker und Staaten un-tereinander vollziehen sich große weltbewegende Veränderungen, die in ihrer Gesamtheit einen neuen Ab-

schnitt im Leben der Menschheit und auch unseres eigenen Volkes bedeu-ten«, H (1913) 79.

8 O (2009) 1105 ff., for more about the influences and changes see: V B (1990) 84ff.

9 »Verwissenschalichung des Sozia-len«, R (1996).

10 For further information on the history of the University of Frankfurt see H (1989);

H (2012), in particular also the notes on the programmatic reflections of the law department, in H (1989) 29–30. On the influential founding father Wilhelm Merton see R (2010). On the history of legal scholarship at the University of Frankfurt see D / S (1989).

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›planetary‹ 11 – environs. At the same time, WW1 seemed a necessary corollary to the profound trans-formations within the state system. 12 More funda-mentally, some legal scholars in Germany had serious doubts as to whether the course legal scholarship had taken by the end of the 19th cen-tury, with a legal system that was so focused on state-law and was based on liberal paradigms, could measure up to the complex realities of the emergent world. In his Grundlegung der Rechtsso-ziologie, published in 1913, Eugen Ehrlich observed that »[t]he most important legal questions of our era … barely exist for legal scholarship«, declaring that non-state law was not being researched due to the narrow-mindedness of many legal scholars who refrained from attending to rules and norms not affiliated with state-law and instead devoted their energies solely to exegetical work on legislations. »Such writings and such teachings can barely be considered scientific anymore: they are merely a particularly insistent form of publishing laws«, he wrote. 13

Several randomly chosen books published in 1914 also confirm that legal scholarship during this pre-war period had dedicated itself to the re-curring problems of the subsequent decades and to producing a series of important texts that went on to become significant reference points for a scholarship that animated debates during the en-tire span of the 20th century: Books such as Grund-züge der Rechtsphilosophie by Gustav Radbruch, Ge-setzesauslegung und Interessenjurisprudenz by Philipp Heck, Der Wert des Staates und die Bedeutung des Einzelnen by Carl Schmittt, Science et technique en droit privé positif, nouvelle contribution à la critique de la méthode juridique, the first of four volumes by François Geny, or – in Legal History – Der deutsche Staat des Mittelalters by Georg von Below, Deutsche Verfassungsgeschichte by Fritz Hartung, Allgemeine

Rechtsgeschichte by Josef Kohler and Leopold Wen-ger, and Le droit des gens et les anciens jurisconsultes espagnols by Ernest Nys were all published in 1914.

These books may no longer regularly feature on our syllabus or reading lists, and many passages from these works might make today’s readers smile or shake their heads; some statements might even cause outrage. For example, in the preface to his book on the medieval state, von Below wrote that his investigations would provide proof for the ›state-like character‹ of the German medieval con-stitution 14 and Josef Kohler affirmed that »primi-tive peoples« were not necessarily doomed: Adopt-ing the European culture would help them escape their destiny of a »merely vegetative existence«. 15Notwithstanding these dreadful biases, we can see that fundamental questions about the state, about the concept of law, reflections about its universal-ity and the search for an understanding of law in other societies animated this scholarship. Today, we are still – or again – asking many of the ques-tions raised in these works from a century ago and rediscovering the relevance of what had been thought and said before.

Thus, not surprisingly, the year 1914 also saw the beginnings of sub-disciplines and scholarly projects that have since grown in stature and are established today: 16 Ehrlich’s Grundlegung der Rechtssoziologie became the foundational work for the Sociology of Law in Germany, 17 and in the same year, 1914, the first issue of the journal Arbeitsrecht appeared, a scholarly platform for the emerging discipline of Labor Law, not least with important contributions by Hugo Sinzheimer from Frankfurt. 18 For Legal History, 1914 was the year when the first volume of Deutsches Rechts-wörterbuch, an encyclopedic project from the late 19th century, was published. 90,000 new entries have since been added. With the projected finish-

11 In German, some authors wrote about the „planetarische[n] Einstel-lung des Staatensystems«, S(1924) 164.

12 It seemed »nur eine unselbständige Episode einer schon ein halbes Jahr-hundert zurückreichenden allmäh-lichen inneren und äußeren Um-gestaltung des Staatensystems«, S (1924) 175.

13 In German: »Die bedeutsamsten ju-ristischen Fragen unserer Zeit […] sind für die Rechtslehre kaum vor-

handen, gewiß nur deswegen, weil sie wohl im Rechtsleben, nicht aber in der Rechtspflege eine große Rolle spielen«; »Eine solche Literatur und ein solcher Unterricht kann kaum noch als wissenschalich bezeichnet werden: sie sind eigentlich nur eine besonders eindringliche Form der Publikation der Gesetze«, E(1989) 19, 28.

14 B (1914), preface V.15 Such as the »Maoris auf Neuseeland,

welche nicht nur europäisches Wesen

angenommen haben, sondern auch in europäischer Weise an der Kultur arbeiten. Soweit sie dies nicht ver-mögen, werden sie allerdings nur ein vegetatives Dasein führen können […]«, Kohler in K / W(1914) 47.

16 On the emergence of subfields, parti-cularly around the time of WWI, cf. S (2011a).

17 R / M (2013); A(2013).

18 K (1995); B (2005).

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ing date of 2035, this 19th century scholarly en-deavor has stretched well into the 21st century. Not so much the big picture, but select segments of it, display traits that still connect the present to the Wilhelminian era – an era that from today’s per-spective seems alien and remote.

1.3 Understanding Continuities

How to explain these apparent stabilities in legal scholarship spanning two World Wars and at least six constitutional systems? 19 – One might point to the fact that the 20th century debates in law con-tinued to reference the same texts stemming from late 19th century, such as BGB, HGB, StGB, and the corresponding procedural laws. Even to-day, literary genres, law courses at universities and other modes of knowledge creation are organized around their logics. 20 To some degree, the stability in the field of history can also be attributed to the onerous, time-consuming source-based research projects. Yet another reason may lie in the impor-tance of ›tradition‹ for Western legal thought, with its characteristic authority-based method. Finally, and perhaps surprisingly, even the tragic adaptabil-ity of jurists and the law to changing contexts, tasks and political winds might have contributed to the stability of the legal system; because at different moments in the 20th century, especially in the 1930s and 1940s, many jurists set out to ›rethink‹ legal concepts, but when the rethinking failed, they simply returned to earlier ideas. 21 Thus, ›Weimar‹, and the legal system connected with its constitution, continued to serve as important refer-ence points for post-WW2 legal scholarship, span-ning large segments of the 20th century.

But above all, these stabilities reveal something that research on the history of knowledge produc-tion and the Sociology of Science has clearly de-picted in recent decades, namely that knowledge

creation is an inherently communicative process, embedded in historically and socially conditioned epistemic cultures, and that, as a result, knowledge creation is a long-cycle phenomenon. Many prac-tices that remain unaccounted for persistently shape it, as do institutions that manifest social processes. Together, they formulate scholarly prob-lems, questions, and approaches. These practices and institutions, to a great degree, also shape the results. If conditions impacting the production of knowledge remained stable, so would the resultant scholarship. By contrast, if the modality of knowl-edge production changed, the knowledge resul-tantly produced would be equally affected. 22

What does this mean for analyzing our dis-cipline in terms of its traditions and perspectives? – A lot, I believe, if we paid close attention to how institutions remain stable and how they transform. And if we remained aware of the potency of the conditions of knowledge production in their abil-ity to shape the results of research: by sheer force of habit, or owing to the resilience of the corporatism that came to mark German academic system dur-ing 19th and 20th century, or due to its oligarchical structure. And if we also added to that the stability of the structural reference points for legal scholar-ship, its various discursive coordinates, and the scientific approaches associated with them, then we can see that the evolution of a discipline such as Legal History depended on diverse contingent circumstances that generated both stability and transformation. Thus, looking back, we are in a far better position to understand why our disci-pline is the way it is today. We might even be able to draw some conclusions from the transforma-tions over a span of the past hundred years. We may not be able to predict the future, but we certainly can gain clarity on our options. 23

19 Bernd Rüthers mentioned that Ger-many had been subject to six different constitutions during the course of the short 20th century – the Wilhelmi-nian era was followed by the Weimar Republic, the National Socialist state, the occupying powers, Federal Re-public of Germany (West), the GDR, a strongly Europeanized Federal Re-public of Germany. On that and on the regime changes as reflective of the

concurrent crises in law and among legal professionals, see R(2011). For a long-term perspective on 20th century history of the uni-versity, see G et al. (2010), in particular the introduction.

20 Particularly evident in the practice of ›Kommentarliteratur‹, cf. J(2014); on the changes due to Euro-peanization and globalization C (2014).

21 See on this, esp. concerning Carl Schmitt’s call for rethinking the law, R (2011) 74.

22 For an overview see the contribution of Jürgen Renn in this issue of Rg. See also W (2003), S(2003), N / S (2001); R / H (2012); W / R(2012).

23 See on these aspects the recent outline by S (2014).

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2 Legal History in the Bonner Republik

Questions abound: What were the conditioning factors and the institutional context for conducting research under the rubric of Legal History in Germany? How did these frameworks change? What implications do these changes have for the course Legal History has taken in Germany? These questions will be revisited during my brief review of the Bonner Republik, mainly to account for the changed framework conditions for Legal History in Germany in the past quarter century, since the inauguration of the Berliner Republik (Part 3). Rather than deliver a comprehensive overview on the history of our discipline, I draw on past re-search and bibliography 24 to present the salient features of the institutional framework that in-fluenced legal historical scholarship in the post-war period, right until 1989.

The first observation that has to be made is the known but still remarkable fact that in Germany since the later part of the 19th century – a founda-tional period for the modern university system that also shaped legal scholarship – legal scholar-ship was essentially identical to legal historicalscholarship. Owing to the considerable influence of the German Historical School, the so-called historical method seemed to be the only acceptable scientific approach to law. This had changed in early 20th century, not least owing to the major achievements of this historical legal scholarship that gave birth to the twin tools of Juridical Modernity: Codifications and Constitutions. How-ever, during early 20th century, Legal History as a discipline still harbored many traces of this for-mative period, to the extent that even in the second half of 20th century, legal historians from Germany and other German-speaking countries, like Austria and parts of Switzerland, continued to organize themselves as in the 19th century, with the three sub-disciplines that had emerged from His-torical School as their structuring principle: Roma-nistik, Kanonistik, Germanistik. These classifications played a central role even in how university chairs and institutes came to be designated, and the fact

that the three branches of the journal of the Savigny Foundation, the most traditional Legal History journal in Germany, kept on with this division shows the structural stability of this 19th century imprint. Originally derived from the ideological conflicts of the 19th century, this dis-tinction continued to impact the allocation of material and symbolic resources among German legal historians well until the second half of the 20th century – although at least by then most legal historians had become aware that this division was outdated from the historiographical point of view.

Structuring our review from this fundamental organizational principle of legal historical scholar-ship, we can see that the first of the three, Roma-nistik, was uncontestedly the most established field of legal historical research within 19th century legal scholarship and had succeeded in maintaining its strong position even aer WW2 – despite its diffi-cult situation and complex entanglement with National Socialism. In Germany, as in many coun-tries outside of the German speaking areas, espe-cially in Italy, Roman Law and its later history kept on being central to legal education and were con-sidered a unique treasure of the European culture. The study of Roman law and its exegesis were still deemed important for cultivating the art and science of legal reasoning, and even aer WW2, German researchers maintained their strong posi-tion in this field along with their Italian and French counterparts, not least due to the intense work undertaken by German scholars since Sa-vigny’s days, which over the course of time had generated indispensable tools for reconstructing the complex history of this millenary tradition. Thus, there was a strong strand of legal scholarship on Roman Law and its history well established within the Law Departments, and highly respected internationally.

In a sense, the new field Privatrechtsgeschichte der Neuzeit, History of Private Law in the Modern Period, which had its intellectual origins in the 30s, and was a strategic invention of National Socialist Germany, added an important new dimension to

24 Cf. extensively O (1994). Sum-maries of the history of legal histo-riography in this period with further references also in C / D(1998); W (2007a); S(2012a); S (2012); D (2012).

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this traditional scholarship on Roman law. Aer WW2, scholars like Helmut Coing and Franz Wieacker came to be regarded as the dominant figures in this field. As a new field of study, ›History of Private Law in the Modern Period‹ made its way into the teaching curricula and succeeded to establish itself at most Law Departments. Since the 1960s, this Privatrechtsgeschichte der Neuzeithas profited from the Europeanization of law, and transformed into a Europäische Rechtsgeschichte, European Legal History. Owing to these origins, European Legal History was specifically a history of learned private law (Gelehrtes Recht) that took the Late Middle Ages and the reception of Roman Law as its starting point and proceeded to study the process of reception up to the era of codifica-tions. Scholars in this field told a story of an increasing scientification (Verwissenschalichung), a history of learned law as it was taught and conceptualized by legal scholars in the Middle Ages and in the Early Modern period. They focused on the subsequent transformations this law under-went during 19th century codifications and suc-ceeded in depicting these transformations as grad-ual differentiation within a common tradition. Countering the nationalist narrative of 19th cen-tury legal historical scholarship, they thus contrib-uted their share to harmonization efforts in the context of European political and legal integration, starting in the 50s. As nearly all of the legal historians also taught Civil Law at the university and dedicated at least some time to work on the so-called ›dogmatics‹ of Civil Law, sometimes draw-ing on their own historical and comparative legal scholarship, the image they drew of the legal historical past of Germany or Europe was nearly exclusively drawn from the perspective of ius civile. And as one of the hopes of this European-turn was to identify and re-establish common features of European Legal History, as a legal historical reflec-tion on the ongoing process of European integra-tion, most texts of this period are not free from a teleological orientation. European Legal history seemed to have nearly necessarily led to the state centered legal system we had been developing in 19th and 20th century, and it seemed a logical step to work on the extension of this nation-state-based model on a European level. Habitual Eurocen-trism, ontological beliefs, some instruments taken from Comparative Law like the presumption of similarity helped to create and maintain this nar-rative.

As such, the History of Private Law in the Modern Period as well as its sister, European Legal History, significantly advanced the study of the history of law and legal scholarship, and they were able to institutionalize their programs through professorships, publications, and teaching materi-als; the foundation of our Max Planck Institute for European Legal History is part of this success story. Although European Legal History remained an-chored in the intellectual traditions of the interwar period, it met with considerable interest in the postwar period, when integration, European unifi-cation and the harmonization of legal systems in Europe became the guiding political imperatives. Outlining a shared (legal) past legitimized such endeavors. It was not least this Europeanization that helped to save university positions reserved for Roman Law and Legal History. It connected schol-arly debates on Civil Law with historical and comparative methods. Thus, Legal History had transnationalized long before other branches of history did. In a way, until the 1980s, the close connection between Private Law, legal historical thought and Comparative Law, had not com-pletely vanished. On the contrary, the new codifi-cations in Eastern Europe in the 1990s and the new dynamics of European integration in this period enhanced studies on the common foundations of European legal culture.

The second field in this triad, the Kanonistik, the history of Canon Law, had always been a much smaller discipline, but no less international in scope. Again, German scholars such as Emil Fried-berg and Johann Friedrich v. Schulte from the 19th

and Stephan Kuttner from the 20th century were the leading figures for large parts of the century. Many of the authoritative works, central editions and bibliographies on the history of Canon Law date from late 19th and early 20th century. Interest-ingly, some of the most important works were authored by Protestant scholars and others who stood their ground against the Roman Catholic Church. In parallel to what had happened in the field of Roman Law, scholars of the history of Canon Law had for long focused on law as it had been conceptualized and taught by legal scholars, and put in practice by the Popes. This convergence between the two fields of study, Roman Law and Canon Law, gave rise to disputes about the histor-ical primacy of the two central parts of ius com-mune, ius civile or ius canonicum, raising questions about who invented which legal institution. Other

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fields of normative thought and production, like synods, moral theology etc. were less studied or even considered ›a-juridical‹, becoming the prerog-ative of Church historians or historians of Theol-ogy. Yet, in contrast to the research on the history of Roman law and its transformation in the medi-eval and modern times, with the new field of History of Private Law in the Modern Period as a new discipline that stretched Roman legal histor-ian’s expertise into Modernity, research on the history of Canon law somehow never really es-caped the bounds of medieval legal history. Ad-herence to questionable paradigms like ›original-ity‹ and ›innovation‹ as well as to a concept of law inherited from 19th century positivism had largely marginalized early modern Canon Law within the discipline’s field. 19th century codification efforts and 20th century developments have hardly been studied until recently. One reason for this may have to do with the group of scholars dedicated to this field, and the significance of the Institute of Medi-eval Canon Law (later Stephan Kuttner Institute) founded in the US in the 1950s by the German emigree Stephan Kuttner which was later trans-ferred to Munich and recently returned to the US. Like Stephan Kuttner, who pioneered the history of Canon Law, the Institute focused on bringing out editions of medieval sources, especially those close to the Decretum Gratiani, oen seen as the pivotal moment in the history of Canon Law. As a result, many historians of Canon Law from all over the world spent considerable energies editing and interpreting texts from the decades before and aer 1140. The scope of these editorial projects as well as the high level of specialization required to carry them out in a certain way endangered the institu-tional basis of Canon Law in the Departments of Law, Theology, or even Canon Law. Already in the later 1980s, with few notable exceptions, more and more scholarship on the history of Canon Law was produced in History Departments. With the near disappearance of research on the history of Canon Law from Law Departments, scholarly work on central issues like the integration of different modes of normativity, the relationship between ›law‹ and ›religion‹, but also the historical impor-tance of religious institutions for the formation of the legal system in the West had lost its traditional institutional framework.

Important changes could be observed aer 1945 also in the field of Germanistik. In the aermath of the war, following the use and abuse of this con-

cept by its National Socialist proponents, the study of Germanic traditions proved to be a difficult undertaking, which was almost impossible to sus-tain. In the postwar era, legal historians in this field began to develop nuanced interest in a kind of reception that hinted at a renaissance of Savigny’s methods. Research on medieval ideas of what counted as law and sources of law became central and were connected to reflections on the problems of methodology. Scholars that did not focus on the Middle Ages in their research used the framework developed by Franz Wieacker in his groundbreak-ing work on the history of private law in Europe to inquire into the private law doctrine, the history of argumentation and interpretation in legal thought, and to study the foundations of the BGB, the German civil code that came into force in 1900. In the 1970s and 1980s, scholars began to inquire into the law of industrial societies and the history of labor and commercial law. Social history pro-vided an important stimulus to Legal History. It seemed as if Germanistik as such had almost van-ished. Research on the classical subject matters was reorganized in chronological order to form a part of Medieval Legal History, or History of the Early Modern or Modern Era.

Towards the end of this period, in the 1970s and 1980s, we can observe the emergence of new research fields, like the history of Criminal Law, and criminality, or of Public Law and its science. Legal historians became increasingly open to his-torical research and to the social scientific ap-proaches becoming popular in historiography in the 1970s and 1980s. For example, up until then, scholars of the history of Criminal Law had ap-proached their questions in a manner similar to scholars of other branches of juridical knowledge: as a history of learned criminal law. Now, closer cooperation with scholars of the history of crime and criminality encouraged legal historians to in-tegrate archival sources from the judiciary and other legal institutions into their work. Such ex-changes also involved inquiring into the societal function of penal law, into processes of social disciplining and law enforcement. New theoretical approaches to law and society had to be taken into account. Slowly, the hegemony of Savigny’s ideas about law seemed to fade. Significant projects, some still ongoing today, based on the High Court archives began at that time. Like Social History, specific branches of Legal History increasingly took advantage of the electronic datasets.

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Questions such as the law enforcement and social disciplining were also discussed in the emerging field of History of Public Law. Moreover, the prospect of confronting Germany’s National Socialist past, and the scholarly thought that had forged and accompanied it, triggered the need to understand the state in its fascinating and horrible functionality. In a certain parallel, the study of the German legal scholarship during the National Socialist period intensified in the 1970s and 1980s. Contemporary History of Law (Juristische Zeitgeschichte) emerged as a new field of study. In fact, new methods, theoretical debates, and new institutional constellations entered into the orbit of what remained of the traditional Germanistik.

In 1986, the Rechtshistorikertag, the annual con-ference of legal historians of German speaking countries held in Frankfurt am Main, both em-blematized and catalyzed many of these changes. An important innovation was to depart from the established divisions of Roman, Germanic and Canon Law sections. Intense debates on method, function and subject matters of Legal History impacted the discipline. Hard-hitting discussions about methodology in Legal History were carried out. However, the intellectual and institutional context for innovation had lagged behind. With the emergence of new fields of study, such as Environmental Law, Media Law, European Law, and owing not least to the growing number of students and the market-driven logics within high-er education policies, the pressure on the founda-tional subject (Grundlagenfächer) at law depart-ments had intensified. What is more, whereas in the first decades following WW2, academic elites generally did not question the historical ways of thinking, aer 1968, the ideological foundations and functions of historical approaches came to be increasingly challenged. Soon aer the 1980s, his-torical knowledge was no longer a part of the academic habitus of an average law professor any-more – a decisive moment in day-to-day decisions

about allocation of resources within law depart-ments. Legal historians were increasingly selected on the basis of their research on actual legal dogmatics, generally in the field of Civil Law. All this made life more difficult for legal historians.

One last observation must be added: Most research in this period was local, national, and sometimes – in as much as it focused on other legal orders – comparative. Although European Legal History had set out to overcome national boundaries, it did not fully depart from its national reference points. Many considered it a very Ger-man exercise, due to the lasting imprint of the concept of law developed within the framework of the Historical School and its vehement focus on learned law and the development of a legal system in the strictest sense. Legal historians oen pre-served a ›Eurocentric‹ perspective in their assess-ment of the world. They proudly traced European influences in non-European contexts, stating a ›deficient reception‹ to assert the superior quality of the European legal system. Obviously, even if no one would have expressed his ideas in the drastic way Josef Kohler did in 1914, many would still have shared his underlying vision, be that due to mere habitus, the traditional belief in the singu-larity of Europe, or in adherence to the moderniza-tion theories of the 1970s. In a way, this Euro-centric perspective was affirmed by non-European (especially Asian) legal scholars and practitioners, who reformulated the questions, approaches and concepts they had learned in the study of European Legal History in Germany, Austria, or Switzerland to modernize their own institutions, for instance, to restructure Japanese legal history based on con-cepts developed within German legal history.

Briefly put, legal historians in the 1970s and 1980s witnessed what several analyses of the history of the Bonner Republik demonstrate, 25 namely an increased intellectual differentiation. Legal histor-ians broached many new themes and questions, developed new perspectives and were increasingly

25 See W / T (2011); W (2012), esp. 19ff. For historiography, see R (2010) 215ff.; for law see the articles in S (1994) as well as W(2007b). For accounts addressing »destabilization« in the 1960s and 1970s and a restructuring process in the 1980s see also P / W(1990).

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open to collaboration. Although these changes also had institutional implications, such as the reform of the Rechtshistorikertag or the foundation of new journals (Zeitschri für Neuere Rechtsgeschichte, Rechtshistorisches Journal), scholarly production in Legal History remained nonetheless dependent on stable organizational structures: chairs in Legal History remained dedicated to an area of modern law, mainly Civil Law, and continued to be divided into Romanistik and Germanistik, or History of Private Law in the Modern Period. In addition, the core content of teaching and examinations, the content of what was considered basic knowledge in Legal History, remained for most part stable.

There are other stabilities: The emergence of European Legal History as a discipline did not transform the agenda, it merely expanded a very German agenda on Europe. The rising state and its law were still the main reference points, and Legal History continued telling the story of the scientifi-cation of law, still the area in which scholarly reputation could be built and gained. The core textbooks and encyclopedias also did not mirror the mentioned differentiation: Helmut Coing pub-lished two volumes on European Legal History in the 1980s and thus prolonged the influence of a program that in essence had stemmed from the postwar period, well into the 1990s. And despite much unease, nobody was able to produce an influential work to counter the textbook that Franz Wieacker had written with such authority, ele-gance, and ambiguity. 26 Its translation into at least ten other languages (into English in 1995), or the publication of the new edition of the first edition of the Spanish translation in 2000, again prolonged its impact well into present times.

Even though the 1960s and the early 1970s were years of growth, both intellectually and institution-ally, in that numerous publications appeared in many subfields of legal scholarship 27 and many fields experienced substantial progress, no new master narrative could establish itself prominently

and no new consensus on method and approaches was achieved. By contrast, by the late 1980s, grand narratives had mostly turned out to be too grand. 28 Some scholars reacted calmly to this, some others became cynical, but most simply continued working or even resorted to the classical methods of the 19th century. 29 »For most part«, one observer stated, »the discipline has come to terms with the fact that the idea of a common approach has become obsolete […].« 30

3 Legal History in the Berliner Republik

In this somehow diffuse situation, a quarter century ago, the Berlin Wall fell and the so-called ›Republic of Berlin‹, the Berliner Republik, was inaugurated. 31 Obviously this was a transcendental moment for German and European contemporary history. It might have been less decisive for the non-European world, but it seems undeniable that aer 1989 longer-term historical shis, like globaliza-tion, digitization or the economization of our culture and societies, became ever more pro-nounced. These general trends acquired greater relevance in everyday life and their impact on law, academia, and even on scholarship within Legal History, became undeniable, as a survey of the legal historical research (3.1) and some re-sponses within the discipline show (3.2).

3.1 The Changing Context of Legal History in Germany

Instead of offering an exhaustive overview of all the fields where these transformations gained in-fluence, I concentrate on major changes in some fields that significantly impact the conditions of the production of knowledge. They have triggered transformations in German legal scholarship in general (3.1.1), in the way neighboring disciplines regard ›law‹ and its history as an object of research

26 See R (1995); now very criti-cally W (2014).

27 See especially W (2007b) as well as some contributions in W (2007a).

28 R (2008).29 For a wide range of positions see the

short and substantive review by R(1994) and the contributions in Rechtshistorisches Journal (1985);

Rechtsgeschichte (2003); Rechtsge-schichte (2004); Z(1998).

30 They had »wohl damit arrangiert, daß die Vorstellung von einer einheit-lichen Methode obsolet geworden ist […]«, O (1994) 99.

31 On the Berliner Republik see G (2009), esp. 7ff.; for the importance of this period as a turning

point and turning points in general contemporary history see S(2012).

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(3.1.2), in the German higher education and re-search system (3.1.3) and in the international con-text of legal historical research (3.1.4). My review also includes some deliberations on the impact of the so called ›Digital Revolution‹ on our field of study (3.1.5).

3.1.1 Legal Scholarship in Germany

Looking at the most immediate disciplinary context for research in Legal History, an interesting development can be noted in the significance attributed to the said foundational subjects (Grund-lagenfächer), like Legal Theory, Legal History, and Sociology of Law, and to their institutional situa-tion. On the one hand, previous efforts to replace these sub-disciplines did not altogether cease. The integration of new fields of study in Law Depart-ments, the growing number of students, reforms in legal education that resulted in considerably higher workload for law professors, were not favorable to what some already considered a luxurious and thus unnecessary intellectual preoccupation. Thus, the number of chairs in Legal History has significantly reduced. The institutional presence of Legal Phi-losophy, Legal Theory or Sociology of Law at Law Departments had also shrunk. In addition, during these years, the strong bond between the study of Private Law and Legal History seemed to weaken – despite important initiatives, such as the Historisch-kritischer Kommentar zum BGB, intended to facili-tate the adoption of an historical and comparative approach to Private Law. 32 In short, the institu-tional backing of Legal History has become pre-carious.

At the same time, an interesting countertrend has emerged. There seems to be growing interest in introducing historical approaches in fields that previously were only marginally affiliated with Legal History. And this is especially true in the

scholarship on Public Law. For the past two de-cades, this field has inspired many scholarly debates on foundational questions, such as the very nature of legal scholarship, 33 but also on the concept of law, legal evolution, the state and its changing role, on globalization and its impact on regulation and governance etc. It would not be an overstatement to say that whereas the majority of important debates on method and legal theory in the Bonner Republik had been carried out with the very strong participation and leadership of Private Law schol-ars, in the Berliner Republik, scholars of Public Lawhave assumed a higher profile in the domain of theory and method. As a consequence, legal schol-ars in different fields of Public Law no longer limit their historical considerations to introductory sec-tions, and no longer ascribe to it, as has been common for quite some time, merely an ornamen-tal value. Instead, historical approaches are being regarded as valuable and necessary tools for re-search – be they from Public Law more gener-ally, 34 or from European 35 or International Law. 36The mayor reason for this might be that those scholars dedicated to research on the state, its law making, governance and the emergence of new regulatory frameworks at the moment have to confront fundamental questions more forcefully and thus are facing transformations that can only be understood from a long-term perspective. 37Another reason, closely linked with this, might be the pronounced interest in the theory of evolu-tion, its applicability to law, and the mayor sensi-bility to cultural studies of law, which is more clearly visible in Public Law. 38 The growing im-pact of Niklas Luhmann’s theory of systems since the late 1980s seems especially important in this context, because of its genuine interest in long-term observation. At the same time, several legal theories that dominated German scholarship in the 1960s and 1970s that were historically sterile, have,

32 See on this project, designed by Joa-chim Rückert, Mathias Schmoeckel and Reinhard Zimmermann, the introduction in the first volume of the HKK as well as the comment on this project by V (2011a). For a balanced account of the German tra-dition in this field in English see D P (2010).

33 See for example the contributions in E / S (2007); J /L (2008).

34 See the survey by W (2006); Fun-ke / L (2009).

35 See for example S (2014).36 See for example F / P

(2012).37 For an overview of the current situa-

tion from the perspective of German Public Law see V / B(2013).

38 V (2007); H (2012).

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like analytical philosophy or legal-philosophical positivism, steadily been losing ground. 39 In addi-tion to this, the new fields of legal historical research that had started to emerge in the Bonner Republik, like the History of Crime and Criminal Law, History of Public Law, History of Interna-tional Law, showed the potential of an intensifying dialogue.

Another observation, related to the one already mentioned, is that the object of legal scholarship – the modus of normativity we label as ›law‹ – itself seems to have experienced some modifications widely accepted within legal scholarship. The epoch of ›juridical nationalism‹, when legal schol-ars were mostly preoccupied with national laws, virtually ended in the 1990s’ once jurists began responding to the challenge of reflecting on the normative order of a world that is not only domi-nated by regional processes of harmonization and integration, like Europe, but one that also wit-nesses the formation of (new) normative orders on global scale. 40 This is more significant than the challenge to integrate ›European‹ law into the national structures of the legal system and the transformation these systems underwent as a con-sequence. 41 Thus, especially since the dawn of the new millennium, the problems related to the formation of normative orders and systems of decision-making in a »world society« have moved from the margins to core areas within legal scholar-ship. 42 One reason for this can be seen in the dynamic growth of ›Transnational Law‹, originally stemming from the 1950s within the context of the US economic law. 43 The terrain of this Trans-national Law continues to expand along with the dynamic changes in the world of law through

globalization. Many jurists have felt that legal scholarship in Germany had to respond to this, a point I will revisit in section 4.2.2, because it offers a rich field of reflection for Legal History. 44

This transnationalization of law challenges legal scholarship to reflect on the foundations of law and other forms of normativity. For example, scholars concerned with the problem of legitimacy of global orders today discuss whether and how global democracy might work, 45 what an intercul-tural idea of justice might look like, 46 whether and how one might synchronize Western concepts like the rule of law and other ideas, such as »har-mony«, 47 and whether a »legal meta-language« exists, whereby we can effectively communicate normativity despite cultural differences. 48 Scholars are trying to analyze the emerging new world-order, asking whether it can be understood within the scope of the traditional doctrine that emerged from state-paradigms. 49 Many such debates rely on historical accounts, be that because they adopt an evolutionary perspective or because they attempt to track a historical process of »sedimentation,« 50or because they inquire prospectively into the »trickle-down effect of international norms in domestic legal orders«. 51 In similar vein, discus-sions about the emergence of isomorphic social orders, by locally imitating the global models, are also at least partly based on research in Legal History. 52 These authors thus discuss normativity in terms of differentiation, hybridization, repro-duction, translation, or amalgamation, to name a few modalities used to analyze the evolution of law over time. 53 Similarly, debates about global governance and governance in regions with weak and incomplete statehood greatly rely on historical

39 For a survey of the situation until the 1980s see H (2005); for the 1990s H (2008).

40 For a first orientation see S(2010); K / G(2011); G (2012); B(2012) as well as the articles in S (2008) and J /M (2008).

41 See on this the profound survey of M (2011).

42 See B / V (2014); D-S (2013).

43 On Transnational Law see the com-prehensive panorama in Z(2012); C (2012); D(2014a). Also the articles in the special

edition of the German Law Journal (2009).

44 See on the ›internationalization‹ of legal scholarship in Germany J (2012); S (2012); V (2012). Interesting contribu-tions also in H / O(2012); C / D L (2009); L / M (2006).

45 K (2010).46 S (2009).47 M (2012).48 G (2001); G (2008).49 See on this e. g. G (2013) and the

review on Glenn by Schuppert in this issue.

50 T (2002).

51 C (2012) 665 f.52 M (2005).53 See on this D (2014c).

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expertise, 54 and important theorists of globaliza-tion, such as Saskia Sassen, argue that a historical perspective is the key to understanding the global-izing processes. 55 As the Finnish legal theorist, Kaarlo Tuori, recently put it, law and legal scholar-ship now appear to be »thoroughly historical enter-prises«. 56 In addition to the relevance and the multiple benefits of understanding the formation of normative orders from a diachronic perspective, and regardless of how world society is imagined, many scholars emphasize that the different norma-tive orders present in world society nowadays can be integrated only by reflecting on the path-de-pendencies, thus from a historical perspective. 57 It is interesting to note, in this context, that some of the scholars dedicated to better understanding of these emerging normative orders on a global scale are interested in the comparison between pre- and postmodern legal orders. 58 Not least due to Euro-pean colonialism, this dialogue between European and other areas’ normative orders also needs to be accompanied by a historical reflection on the past, and its impact on power structures still shaping the present. 59 To sum up, there is growing awareness of the historicity of our normative orders, of the insights that can be gained from historical perspec-tives and the necessity of framing the growing intercultural dialogue through historical reflection – and thus there is a felt need also for legal historical research. As most participants in these debates are not legal historians and have to draw on research carried out by others, legal historians must respond to this exigency.

In light of these fundamental transformations in the field of law, it should not come as a surprise that in July 2012, the German Council for the Humanities and Sciences (Wissenschasrat) recom-mended that legal scholars in Germany further internationalize and strengthen the foundational subjects (Grundlagenfächer), claiming a further in-tegration of Sociology of Law, Legal Theory and Legal History with the so-called ›dogmatics‹ 60 – a challenging task both intellectually and institu-tionally.

3.1.2 Neighboring Disciplines

There seems to be a growing interest for legal historical research also outside the field of legal scholarship. During the last 25 years, some neigh-boring disciplines have also undergone changes that have powerful implications for how they view Legal History. Again, I will limit myself to key points.

Firstly, it seems to me that historians are increas-ingly interested in questions and problems con-nected with law. 61 The reasons for that are varied: the linguistic turn in the 1980s and 1990s, a re-newed history of ideas and concepts, and a growing interest in institutional practices and their impact on society have heightened historians’ sensitivity to the effect law might have on social life. Due to an increase in the said interactions since the 1970s, ›General‹ History and Legal History are discovering more points of convergence within their respective fields of study as well as in theories and methods. Recently, the emergence of the history of knowl-edge has further contributed to the blurring of disciplinary boundaries. 62 By contrast, traditional social history, which focused on structures and once regarded law as a mere epiphenomenon, has been in open retreat since the 1990s. Not few Social Historians seem to have changed their atti-tude to the importance of considering law, discov-ering its significance as a relatively autonomous societal force. A remark by the recently deceased German social historian Hans Ulrich Wehler in the conclusion to his monumental Deutsche Gesell-schasgeschichte is emblematic of these develop-ments. Looking back on his work in 2008, he notes that he distinctly underestimated the significance of law. 63

Apart from this opening in the field of History, there seems to be a growing interest in law and its history also from scholars in other parts of the humanities, cultural studies and social sciences. Some legal scholars have reciprocated the discipli-nary interest and are decidedly open and receptive to the discourses of these disciplines. 64 Again, if

54 See e. g. C / S (2011).55 S (2006).56 T (2011) 44 f.57 See e. g. the explanations in T

(2012) 225ff., esp. 242ff. about the intercultural collisions.

58 S (2008); D (2011).

59 See only as an example S (2010); on the necessity of a historical di-mension in transnational dialogues A (2013) 142ff.

60 Wissenschasrat (2012).61 Although it might still be a difficult

relation sometimes, see H /S (2012); S (2012).

62 For an overview see S (2011).63 W (2008) 421.64 For an overview see V K /

T (2011).

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once law had been regarded simply as a dependent variable, or in the service of formulating imperial and hegemonic discourses, more recently, scholars have expressed greater interest in the »relative autonomy« of law and of other normative spheres and enquired about their place in the societal action. 65 For example, social scientists such as Bruno Latour have brought to bear ethnographic methods on the study of law in ways that would have been unthinkable in the heyday of structur-alism in the 1970s. 66 In political science, law has become an important subject for research on governance – a problem that also preoccupies legal scholars. Anthropologists who can draw on a long tradition of studying distinct aspects of law, but did not dedicate to law itself, are increasingly interested in law and its history. »There is much to be gained by delving into legal history«, legal anthropologist Fernanda Pirie wrote recently. 67And in the past few years, scholars of the so-called ›General Jurisprudence‹ – in an attempt to con-ceive of some sort of legal doctrine for a world society – have engaged several approaches to per-form a transcultural analysis of the modes of normativity or to adopt multiple modes of conflict resolution that anthropologists have developed, combining this with historical reflections on the underlying reasons for processes of differentiation and convergence. 68

In short, interest in law, and in normativity more broadly speaking, has been on the rise in several disciplines not traditionally linked to Legal History. Still, this growing interest in the results of legal historical scholarship is not without its risks. We have sought to internationalize dialogues and open up disciplinary discourses, which means that scholars from different disciplines and areas in-creasingly draw on theories and methods that may no longer be rooted in a single discipline but instead rapidly spread across areas and disci-plines. Thus, sometimes, scholarly communication happens not so much along disciplinary lines, or even across disciplines, but, rather, it follows fash-ion trends that are oen only superficially applied to the exigencies within one’s own field. In addi-tion to this, we are spending more and more time

with interdisciplinary dialogues, time that we lack for our disciplinary work.While these interdiscipli-nary exchanges can be exciting, there are potential pitfalls along the way. For even though canons and traditions foster disciplinary isolation and require persistent revision, building them is vital for the continued existence of scientific disciplines. Erod-ing away disciplinary boundaries might be inspir-ing, but that can have negative consequences for how the system through which research is being organized functions: established ways of selecting relevant problems, the formation and transforma-tion of disciplinary canons of knowledge and theories cannot function without specific discipli-nary frameworks. The same applies to mechanisms of socialization, to career structures, systems of quality control, and ways of attributing reputation. They are all necessary for a discipline to function and they derive as much from disciplinary tradi-tions as from national structures. How can we make them work in a world of increasingly porous disciplinary boundaries, the complexity of which the phenomenon of transnational scholarship fur-ther compounds? How can we assure their func-tioning in a world where national structures are being weakened, giving way to transnational schol-arly communities? – Obviously, new and suitable institutional frameworks are needed. Some of the typical risks of ›globalization‹, such as the Angli-cization of discourses, the loss of traditions and thus of analytical plurality, and in the end also a perceived lack of depth, rootedness and intensity of knowledge, is threatening even a small scholarly discipline as Legal History.

3.1.3 German Higher Education and Research System

These observations inevitably lead to a third field of observation, namely the changes in the German higher education and research system. Here, the Berliner Republik introduced a distinct set of structural reforms on resource allocation within the system. A lot of what has been said about the porosity of disciplinary boundaries and the transnationalization of discourses has its roots

65 On theology see the essays in W / E (2013).

66 L (2010).67 P (2013) 15; see also M

(2001); B-B / B-

B (2009); but little in the German-speaking socio-cultural anthropology, B (2013).

68 T (2009).

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Thomas Duve 29

in these reforms that have pressed for internation-alization and a greater openness to interdiscipli-nary research.

Again, I can only highlight some aspects. 69Legal scholarship has already begun to feel the

consequences of these reforms in rather concrete ways, especially in the field of legal education. 70Overall, the 1990s and 2000s saw an increase in the number of law students, reforms in the curricula, higher workload and less freedom (and money and social prestige, one might add) for professors as well as a decrease in the duration of the degree program for students. 71 By the way, German re-unification did not generate inspiring alternatives, although one might have thought that this could be the case. 72

One important development is that within Germany’s higher education and research system, during the last two decades there has been a dis-tinct shi towards ›Universities of Applied Scien-ces‹, known in Germany as Fachhochschulen. These Fachhochschulen are the more practically oriented institutions of higher education that are tradition-ally not focused on research. According to a report issued by the German Council for the Humanities and Sciences, the number of law professors at these universities has doubled over the past eleven years and the money spent on legal education there has also risen by 45% in the same period, so that today one third of all law professors in Germany teach at a University of Applied Sciences, whereas 8.7% of all students are enrolled there. This development, and the political will that perpetuates and furthers it, pose challenges not least for the foundational subjects. On the one hand, as the number of law graduates at the Universities of Applied Sciences increases, ever fewer jurists will have received a legal education that included at least some per-spectives on the fundamental aspects of the legal system, and observations from a non-practical point of view. This is undoubtedly a negative trend, especially if a key function of legal scholarship was

to critically observe and reflect upon the legal system. Thus, we will have less and less critical observers, and more practitioners. On the other hand, the internal differentiation within legal edu-cation that these developments encourage also offers big opportunities to strengthen the founda-tional subjects, internationalize research and teach-ing, and to narrow the gap between research and teaching – provided, of course, that universities vigorously use this opportunity to differentiate themselves from the Universities of Applied Scien-ces. It could also be an opportunity to strengthen the academic character of legal education at uni-versities which has been severely affected by the reforms introduced during the last decades. Thus, universities must not respond by dumbing down the curricula, to be competitive. On the contrary, they must target growth in higher non-applicative post-graduate education and in lesser applicative fields for teaching and research for which the Universities of Applied Sciences lack the intellec-tual and institutional resources.

Another – and even more important – change during the Berliner Republik with far-reaching im-plications was that ever more resources within the higher education and research system began to be allocated on a competitive basis. 73 Overall, this shi has led to tighter budgets for the every-day-work and a significant increase in third party funding. Just between 2000 and 2010, the third party funding per chair at German Law Depart-ments has doubled. It now stands at 34,000 euros per year. As such, it is considerably less than the average third party funding that professors in the humanities and cultural studies have received, which stands at 56,000 euros per year. Moreover, law professors have had less success in raising additional money from the German Research Foundation (DFG). Between 2003 and 2011, the total funding Law Departments were able to attract every year has only grown by 18%, from 5.9 to 7 million euros. 74 This discrepancy in the

69 For a summary from the viewpoint of the German Council of Science and Humanities (Wissenschasrat) see Wissenschasrat (2012); Wissen-schasrat (2013). Informative are also the observations about the new organizational units in the sciences in the report by the Stierverband für die deutsche Wissenscha e.V., R / W (2012).

70 The German Council of Science and Humanities gives a summary about the developments in his recommen-dations: Wissenschasrat (2012).

71 For the reform debate in the 2000s see KritV (2007); KritV (2009); G / K (2012) as well as the contributions in H /O (2012).

72 See Wissenschasrat (1991).

73 For an overview on the figures see the report of the German Council of Science and Humanities: Wissen-schasrat (2013).

74 Wissenschasrat (2013) 14–15.

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third party funding from the German Research Foundation, and from other sources, points to crucial questions concerning the autonomy of legal scholarship and research and deserves careful thought and analyses in the future. 75 For the mo-ment, however, one observation is more impor-tant: Legal History has clearly profited from this shi in resource allocation. For in spite of the loss of chairs dedicated to Legal History at many uni-versities, legal historians are involved in a series of joint research projects with historians that rely on third party funding. In other words, they partake in and benefit from the higher amounts of funding that the scholars in the humanities and cultural studies have been able to attract. Since the neigh-boring disciplines are increasingly interested in law, these joint research projects have furthered interdisciplinary exchanges and have led to a sig-nificant growth in the professionalization of legal historians. Many important research projects could not have been carried out without these new types of project-specific funding. However, the integra-tion of legal historians in such interdisciplinary projects has also endangered their relationship with law – the discipline with which they are institutionally most closely affiliated. Legal histor-ians are now more apt to engage with scholars in other fields rather than with colleagues in their own departments. This development does not fur-ther the cause of integrating the foundational subjects, such as Legal History, into other fields of legal research. Moreover, it also threatens the institutional continuity of Legal History in Law Departments; for unlike other disciplines, where interdisciplinarity oen fails because scholars are reluctant to pursue different questions, methods, and perspectives, legal historians have the opposite problem: by increasingly working with historians, they are in danger of loosening ties with legal scholarship. Thus, interdisciplinary work might be counterproductive, because it threatens to undermine the conditions of disciplinary exis-

tence. 76 It might even result in a loss of interdisci-plinarity, if Legal History would disappear within law departments, and vanish within departments of History. Legal History is interdisciplinary by definition, an interdisciplinarity sustained by its institutional integration into the law departments.

Finally, with the internationalization of univer-sities, yet another significant change has occurred within the German academic system, with mani-fold implications for the study of law. The political will for this development is likely to persist. At one of their conventions, the presidents of German universities proclaimed that the university of the future would be a transnational university. 77 Sim-ilarly, the German Council for the Humanities and Sciences has underlined the importance of this policy for universities more generally and has highlighted its particular significance for the study of law. 78 Again, this further ›transnationalization‹ of academia is a shi in research politics that LegalHistory has to take into account; I will address this point later (4.2.1).

3.1.4 The International Context

This ›transnationalization‹ of academia leads us to another set of transformations relevant to Legal History: the changing international context of legal historical research.

As I have tried to show in my overview of Legal History in Germany, during the years of the Bonner Republik up until the 1980s, German legal histor-ians were regarded as leaders in a field that had sprung from the 19th century intellectual move-ment, the German Historical School, and its aer-math. German scholarship did once shape meth-ods, approaches, and questions on an international level. Indeed, in the late 19th century and through-out much of the 20th century, the German concept of Legal History served as a model in many places across the globe. Many scholars working outside of Germany heavily relied on German scholarship to

75 See also the pointed observations from F-L (2012) but al-so the articles in KritV (2007) and KritV (2009), esp. A (2009).

76 On interdisciplinarity see W(2014).

77 See on this the ›International Strategy of the German Rectors’ Conference, Resolution by the 4th General As-sembly of 18 November 2008‹, pub-

lished in Hochschulrektorenkonfe-renz (2012): »Tomorrow’s university is a transnational university. This is the theory put forward by the Ger-man Rectors’ Conference (HRK) as part of its International Strategy. It is based on the conviction that a sus-tainable and forward-looking univer-sity must perceive itself as a creative part of a developing global academic

community in every conceivable ele-ment of its work, and must act ac-cordingly. Therefore, in all of their activities, universities need to respond to the consequences of globalisation within teaching, learning, and re-search.«

78 Wissenschasrat (2012); Wissen-schasrat (2013).

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formulate the legal histories of their own coun-tries. The questions and approaches developed in the German tradition or within a ›very German‹ tradition of European Legal History were applied to their own legal histories.

Over the last two decades, a variety of factors has radically transformed this situation. Let me just mention a few of them: German stopped being an international language of academic research and publication; Anglo-American law is on the rise on international stage, which means that more schol-ars are interested in its history; publishing practices have changed substantially; Europe has become a global region next to others – a phenomenon that has had its own historiographical effects. Especially books published in and for the English-speaking world reflect this shi. One example might be The Oxford International Encyclopedia of Legal History. 79Published in print in 2009, 80 the content of this reference work is now part of an information platform called ›Oxford Reference‹ that brings together 2 million digitized entries. While it is no doubt a major source of information for global scholarship, the spread and the coverage of the content are not very encouraging for German legal historians. The entry on Germany covers five col-umns, 81 while the editors have allotted 130 col-umns and many subentries to China and the Chinese law. 82 While this apportionment might approximately correspond to the relationship be-tween the populations of the two countries, it does not reflect the former standing of German legal historians, neither our self-perception. Yet, this distribution is the consequence of an editorial decision to describe European Legal History under the entry Medieval and post-medieval Roman law and to see this as one among the many other entries, such as Chinese law, English common law, Hindu, Islamic, South Asian, African, Latin American, and United States law. 83 The same we can see in the structure of the subentries, for example, the entry on Marriage. Unlike for the Chinese, Hindu, or ancient Greek law, the reader interested in Mar-

riage law in European tradition is expected to read diverse entries and subentries in order to find some results. 84 Thus, while the catalogue of the Max Planck Institute for European Legal History cur-rently lists 2409 entries tagged as ›Eherecht‹, Mar-riage law, The Oxford International Encyclopedia of Legal History has compressed these hundreds of contributions related to the history of marriage law on the European continent into a few sub-entries that are placed between the big blocks relating to Chinese, Hindu, and Islamic Law.

To be sure, the importance of such a reference work must not be overstated. Projects such as these are guided by commercial interests. And there are good reasons to believe that the quality of the Encyclopedia suffered in various ways owing to just that. 85 Yet, the attitudes reflected in the structure of The Oxford International Encyclopedia of Legal History are not an exception. They simply correspond to the orientation toward new markets, for which these reference works are designed, and as such, they reflect the entry of new regions that are interested in legal history.

Indeed, the past decades have seen the strength-ening and development of new communities of legal historians all over the world that practice Legal History in a radically different manner than how it is traditionally done in the German speak-ing world. While one increasingly witnesses lively debates among legal historians in the US, their topics and questions as well as the institutional contexts in which their debates take place, obvi-ously are different from the German tradition. Since two decades, in China and in other countries in Asia, the political reform efforts, and the histor-ical legitimation that they sought, have invigorat-ed the field of Legal History. Nowadays, the history of Chinese law is becoming an increasingly lively field of research in and outside of Asia, in fact to such an extent that now some scholars already proclaim a »New Legal History« of the Chinese law, a clear manifestation of differentiation and thus growth. 86 Also Latin America has developed

79 Available online as part of the Oxford Reference http://www.oxfordreference.com/.

80 K (2009).81 K (2009), vol. 3, 117ff.82 K (2009), vol. 1, 399ff.83 K (2009), vol. 1, Preface xxi.84 »This entry contains five subentries,

on marriage in ancient Greek law, in

Chinese law, in English common law, in Islamic law, and in Hindu law. For discussion of marriage in ancient Roman law, see Persons, subentry on Roman law. For discussion of mar-riage in medieval and post-medieval Roman law and in Unites States law, see Family, subentries on Medieval and Post-Medieval Roman Law and

United States Law«, Introduction to the article »Marriage«, K (2009), vol. 4, 152.

85 Critical about this encyclopedia O (2010).

86 Y (2013).

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its own lively tradition of Legal History that combines careful archival work with theoretical ambitions. In this region, comparatively few schol-ars have historically shown an interest in the »Ger-man tradition« of Legal History, albeit with no-table exceptions. Instead, an emergent strand of Legal History has combined Legal History and Social History to form an innovative field of His-tory of Justice. Today, in countries such as Argenti-na, Brazil, Chile, Mexico, and Peru, scholars inves-tigate the legal histories of their own countries, not least with a special focus on the dysfunctional nature of the import of norms. They inquire into the conditions of creating a just society and the historical constraints to that. Thus, in a way we are already witnessing what in some fields of global studies is being proclaimed as a goal: a certain decentralization of research and an emancipation of European categories, topics, and practices.

Obviously, epistemic decentralization is an im-portant goal – and a big challenge. But before reflecting on this, let us ask what this means for the German legal historians. In the first place, it is a huge inspiration for our own work. The questions that legal historians from these different traditions ask might not correspond to our set of questions. But legal historians, especially from areas like Asia, Latin America, or Africa, tackle big topics, such as law under the conditions of limited and incom-plete statehood, legal pluralism, or the challenges of diversity. Even though the experiences that motivate these legal historians might be alien to German scholars, the questions and insights they arrive at could also become increasingly relevant in Germany and in Europe. As in other areas of knowledge, an exchange with the so-called »Theo-ry from the South« holds much potential. 87 But we cannot ignore the fact that in this process of decentralization the agenda for research is no longer designed in Germany. Theoretical foun-dations, key texts, and questions and approaches for the most part no longer originate in the Ger-man-speaking world. Moreover, due to the in-creasing influence of ›globalizing theories‹, like those of Foucault, Bourdieu and others, translated into English, Spanish, and Chinese, the analytical

frameworks developed within the specific German traditions of legal historical analysis are known to a lesser extent.

This diminished relevance of German legal historical scholarship might simply be seen as a problem for the self-esteem of German legal histor-ians. But it will become more so a problem for the quality of legal historical research as such, in the way that there is not ›less‹ attention, but a complete loss of attention for some European traditions, as the French, or the German, as one sometimes is forced to acknowledge when looking at English language books on Legal History, which com-pletely overlook the German or French research, even when dealing with subject matters intimately related to Germany, France or Europe.

3.1.5 The Digital Revolution

Many of the changes I have highlighted so far are closely connected to the so-called »digital revolution«, which represents the last field of change I want to address in this section. 88 While legal scholarship has since recently begun to eval-uate the implications of this revolution for law, there can be no doubt that its research practices and institutions have already changed. 89

The digital revolution, however, did not just come out of nowhere. Electronic data processing has long had implications for law and for how research in law and history has been conducted. Primarily, Legal Informatics, but also Legal Sociol-ogy and Theory dealt with these implications in the 1960s and 1970s, albeit in conjunction with other sub-disciplines. Niklas Luhmann, for example, wrote his post-doctoral habilitation thesis on the relationship between law and automation in pub-lic administration. 90 The significance of electronic media for the study of law also became an object of reflection very early on. 91 In the field of History, quantitative methods and the use of computers to analyze texts in the 1970s bolstered the develop-ment of several disciplines, such as demography and social history. In fact, one spoke about »Hu-manities Computing« long before the advent of the Digital Humanities. 92 Since the 1970s, legal

87 C / C (2012).88 See in general terms C (2004)

31ff.89 For an overview of the connection

between the production of knowl-

edge and globalization W / R(2012); S (2003).

90 L (1966); see also the impor-tant essays by F (1962); S(1967); H (1968). For an overview

of the history of science see G(2011) 35ff.

91 See e. g. S (1989); also Z(1990).

92 H (2004).

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historians have also increasingly made use of data-bases. 93 But it was in the early 1990s that the field expanded and even new institutes began to be founded, 94 while several scholars reflected on the relationship between law and the changing media world, not least with an historical eye toward the relationship between legal systems and media-change. 95 On a more practical level, in 1996, the first online Legal History journal was established in Germany: the forum historiae iuris. 96 Several digital-ization projects spawned at around the same time, 97 and now Legal History can boast of several blogs and a growing number of electronic com-munities. 98

The impact of such phenomena as the World Wide Web, email, and other forms of social media goes beyond the mere increase in storage capabil-ities and thus an optimization of established ways of researching by means of electronic tools as had been the case until the late 1980s. 99 Already in the early 1990s, several observers realized that there was more at stake than a simple change in the media landscape. 100 And indeed, the deterritorial-ization of communication that accompanied the digitization of academia has substantially affected how research is being conducted and published. 101As such, digitization contributes to this transfor-mation of the academic system, as one among many factors and developments that are com-monly referred to as »globalization«. 102

These changes are not without consequences for disciplines with an historical bent. 103 They do affect all aspects of a discipline, and thus also the integration or disintegration of disciplines. The possibility of publishing online, the digitization projects, and the open-access policies have made sources and secondary literatures accessible to scholars working in a variety of epistemic cultures all over the world. As a result, archives, institutes,

libraries, and the communicative networks sur-rounding them now no longer serve as a mecha-nisms of socialization as before: it might sound strange, but in historical research, whole research agendas and even theories were born in spaces that offered opportunities for unforeseen communica-tion, like the famous cafeterias of archives. This end must now be accomplished through different means – for example, by building digital research environments for newly developing communities of scholars. 104

Digitization of academia has also had important consequences, as already mentioned, for the inter-nationalization of research, and thus its results. Researchers from all over the world approach sources with new questions and work within intellectual and analytical frameworks different from the traditional frameworks that once sup-ported more nationally bound research communi-ties. Traditional arenas for scholarly conversations and exchange, such as conferences and journals, now have new rivals that demand independent space to conduct and showcase research. Mailing lists, such as H-Net, which was founded in the 1990s, have radically changed how scholars ex-change information. H-Net alone has around 100,000 subscribers, who choose from an offering of more than 100 subject-lists to receive between 15 and 60 emails daily, containing book reviews, conference reports, and calls for papers. 105 Fur-thermore, many publications – reference works and handbooks especially – are now no longer written for specialists, but aim to popularize the results of scholarly research. They are produced for new international markets and are oen part of commercial information infrastructures, such as Oxford Reference.

These changes in publication politics, combin-ed with the increasingly porous boundaries of

93 See the essays in R (1977); R (1986).

94 Such as the foundation of the Juridi-cal Internet Project Saarbrücken in 1993. For an overview on the devel-opment see P / V (2010).

95 B-N (2008); V(2007); V (2011).

96 H / M (2003).97 A (2003a); A (2003b).98 An overview offers i – forum his-

toriae iuris, URL: www.forhistiur.de.99 C (2003); C (2004).

100 On the law see K (1989); K(1995); on the scientific system see S (1989).

101 Very informative the observations by T / W (2010).

102 For a contemporary diagnosis see D-M / R(2012); for a science-policy context see e. g. M / M (2008) and for Germany’s position in this process see B / L (2008). On the globalization of the scientific system and the expansion of transnational

networks and communication struc-tures cf. also K (2011) as well as W (2010).

103 For an inspiring overview on some changes from the standpoint of his-torians see C / K(2004); H (2011), esp. 141ff.

104 This is one of the objectives, for in-stance, of a long-term research project on the so-called School of Salamanca, see D / L-B (2013).

105 https://www.h-net.org/about/, accessed 17.03.2014.

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disciplines as well as the opening up of new regions have had mixed consequences. There are new opportunities and stimulating exchanges, and more equal research opportunities can be pro-vided, in as much as physical access to excellent libraries or archives is no longer a conditio-sine-qua-non for research. This is the positive side. But these changes, together with the economization of aca-demia, have brought with them an inflation of publications. However, at the same time, estab-lished mechanisms of selection and hierarchization no longer operate effectively. Disciplines are no longer able to concentrate their scholarly attention to a limited set of problems. Similarly, mechanisms that used to safeguard quality and reputation also no longer function effectively. Thus, we are facing an increasing number of publications, and academ-ic activities, not necessarily resulting in mayor knowledge, but perhaps even in less, due to the diffusion of efforts.

Let us leave aside for the moment how one might evaluate this on a more general scale and turn our attention back to what this might mean for German legal historians. The developments I describe have led to the erosion of canons of knowledge and analytical approaches developed by legal historians in Germany. In light of the emergence of more global communities, the Ger-man approaches and the knowledge they produce emerge as distinctly limited. Indeed, their contin-gency becomes impossible to ignore. This is not astonishing, and it could not be different. In addition, the gradual disappearance of German as an internationally significant language of scholar-ship in Legal History, the dynamic growth of legal historical research in other regions, combined with a significant reduction in research output that is intellectually or institutionally connected to Ger-man legal scholarship and its research agenda have all contributed to a lowering of the German share in the discourses. Colleagues from history depart-

ments claim that in the 21st century their discipline will already have developed an entirely new library of reference works that facilitate communication across all cultural and language barriers. 106 The field of Legal History has not arrived there as yet. However, any such a library is inevitably going to contain fewer works originating within the Ger-man tradition. This is, if one wishes to propose a balance, the negative side. On the other hand, there is also a positive perspective on these develop-ments: because what seems a loss from the per-spective of tradition, at the same time, might be an opportunity, seen from a different perspective – the perspective of a Legal History being part of a Transnational Legal Scholarship; I will come back to this in the final part (4).

3.2 Changes in Legal History in Germany

Yet, over the last 25 years, not just the condi-tions and the environment of Legal History has changed. The discipline itself has undergone deep transformations. Again, only a few aspects can be highlighted here. 107

Firstly, the differentiation within the field that began to take hold in the 1970s and 1980s has continued and borne many fruits. In many sub-fields, legal historians in Germany have continued to pursue a path they had embarked on in the late 1980s and early 1990s, and many can show impor-tant results of long-term projects and impressive life achievements. Limiting oneself to some fields, one can point to the History of Public Law, 108Constitutional Law, 109 the History of High Courts, 110 History of Canon Law, 111 Early Medi-eval Legal History, 112 the History of Legal Meth-od, 113 that have strengthened the connection of historical and comparative approaches to law, 114and a new History of Private Law, open to the methods of Social History that has rewritten or replaced many building blocks of basic reference

106 R (2010) 269.107 For a broad survey on the recent de-

velopments in the legal-historical re-search, see S (2013). Cf. on the different aspects of the development in legal history in the years following 1989 S (2011b), surveys pub-lished in the special issue of Zeit-schri für Neuere Rechtsgeschichte (2010), see in particular D(2010); M / N (2011).

108 See e. g. the review in S(2012a) 677ff. as well as the contri-butions in Rechtsgeschichte (2011).

109 W (2009).110 D (2014).111 L (2010); L (2013).112 For a panoramic overview see

D (2008).113 S (2012).114 See M (2013) for an extensive

survey; also I (2013).

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works, including the influential conception pro-posed by the Historical School, and the History of Germany’s Civil Code (BGB). 115

The Berliner Republik scholars have also opened up new fields of research. The legal history of the GDR and of other countries once locked behind the Iron Curtain has garnered much attention over the past twenty-five years, as too the relationship between law and totalitarianism. 116 Yet another set of scholars has turned to the history of econom-ic law, 117 of regulation and governance 118 as well as to the history of the relationship between law and media. 119 Legal historians in Germany are now aware that they would need to write the history of legal regulation affecting distinct areas of social life, not just the history of discrete fields of knowledge. As a result, fields such as Law and Technology, or Law and Religion, garner ever more attention. 120 History of International Law was also a relevant and influential topic of interest during the Berliner Republik. 121 The past twenty-five years have spawned new textbooks, hand-books, and journals, forms of publication have undergone change, and international exchange has intensified. To a certain extent, we can see that Legal History is already transitioning from a na-tional to a transnational institutional field of re-search. 122

While these advances are to be welcomed, there is also some reason for preoccupation. Most re-search projects over the past twenty-five years were not initiated and carried out by established chairs in Legal History. Instead, they were accomplished with the support of third party funded projects or at independent research institutes. In light of the hypothesis with which I started this paper – namely that the production of scholarship is shaped by the conditions in which it takes place – it is even more disquieting that all the new research has barely le its mark on the institutional framework of Legal History in Germany, such as chairs, curricula, or teaching. Most of the innovative research has not been transformed into institutional structures:

we do not have more chairs on, for example, History of Public Law; History of International Law, etc.

There are many reasons for this absence of institutional response to what clearly is a changing field: scarce resources, general institutional inertia, and risk-aversion within a field that is threatened to begin with. However, the absence of an institu-tional response might also derive from the fact that legal historians now carry out and present their research in interdisciplinary contexts, both intellectual and institutional. One only needs to think of the many joint research projects that they participate in. Thus, the danger is that legal histor-ians lose intellectual contact with the disciplinary field that still offers the institutional structures they need.

4 Future Options

In light of what has been said so far – what perspectives and options emerge? How might the changing environment, the transformations of the institutional and communicative conditions of our work impact on our discipline?

Obviously, my intention is not to define a set of ›tasks‹ for Legal History, or to ask, as many did rather torturedly during the Bonner Republik, »Le-gal history, what for?« 123 Scholars in all subfields of Legal History – be it ancient, medieval, modern – know best what their motives are and where their intellectual and institutional opportunities lie. They might believe in offering guidance to other jurists through historical reflection or provide a propaedeutic to the study of law. They might see themselves as part of a legal scholarship that focuses on the doctrine, or as a part of comparative legal scholarship or of general history (with all its subfields and goals). Some might also view Legal History simply as a space for reflecting on the legal system as such, or for generating new ideas on the responsibility of jurists, or hope that their research

115 Cf. the volumes of the legal Histo-risch-kritischer Kommentar, in particular S / R(2003); R (2010).

116 S (2012b).117 See e. g. S (2008);

G / P D M(2009); M / M(2013).

118 C / B (2012).119 V (2011).120 See e. g. V (2011b); on religion and

law see e. g. J (2014).121 See e. g. N / V (2013).122 On transition from national to global

scientific systems see S(2000).

123 See for example the debates in Rechtshistorisches Journal (1985); Rechtsgeschichte (2003), Rechtsge-schichte (2004), S (2014). From an English perspective, L(2004).

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and teaching helps foster a sense of what is possible in society. Perhaps, they just like what they are doing, like musicians, or artists, which is perhaps not the worst motivation.

And yet, notwithstanding this multiplicity of motivations and approaches, I believe that the survey of the changing conditions of our research indicates that certain structures for knowledge production, so too the fields of research, are be-ginning to emerge in a way that will generate a stimulating institutional and intellectual environ-ment that will forcefully demand greater engage-ment. In other cases, it does not seem very prob-able that we will witness intellectual and institu-tional growth. Thus, I want to conclude my delib-erations with a brief summary of my argument (4.1) in order to then highlight where I, personally, see potential for intellectual and institutional growth (4.2).

4.1 The Changing Context of Legal Historical Research

Looking back, we can see a fascinating but also a somewhat intimidating panorama: Legal his-tory seems valued, and indeed indispensable to transnational and transdisciplinary research on law and normativity. Disciplinary boundaries have become diffuse. There are more and more players in the field, and traditional German Legal History is losing ground. Disciplinary canons are in danger of being eroded away as scientific communities stemming from national research systems are ex-periencing radical internationalization. World-wide, new discursive communities are emerging, and suddenly, new and partly converging ap-proaches and theories from neighboring disci-plines and new regions are on offer. The discipline certainly benefits from the new ways in which research is being funded, which comes with its own set of opportunities and pitfalls, but that did not succeed in transforming the structures for the production of knowledge on a sustainable basis. The process of internal differentiation among uni-versities in Germany has provided legal historians with new opportunities, as there is a political will to support and intensify the development of re-search in the fundamental subjects of law – but they still remain opportunities that must be con-verted to new realities.

Almost all these observations can be set in relation to the structural changes in academia

and in the legal systems, which can only be described using the common buzzwords of ›global-ization‹, ›digitization‹ and ›economization‹ of European societies in the past twenty-five years. As the survey showed, these three processes com-bined, and their concrete consequences, affect the very foundations of our discipline, which came into being within the nation state framework and still bears a strong connection to the legal and academic system that it was built upon. That is now facing the consequences of transnationalization, and thus transformation, of its object, the law, and its institutional context, the science system.

Thus, Legal History has to find a way to navigate in this complex environment of changing and changed contexts. From the perspective of tradi-tions, from a national perspective, and that of a more or less integrated discipline, we face a vast range of risks and losses. Some colleagues feel that Legal History is not what it was before. To a certain extent, they are right; this year’s issue of the Journal Rg is a proof of that. Yet, viewed differently, the emergent transnational scholarship offers avenues for generating fascinating intellectual and institu-tional perspectives. Moreover, the survey on the changing conditions of our research has shown that many of the preconditions for this transfor-mation already exist, in due part to the same processes that might seem a threat to the estab-lished paradigm: Much of what I presented as a loss is also an opportunity.

4.2 Legal History and the Transnationalization of the Academic and Legal System

This brings me to some final thoughts on the opportunities we might want to seize to further our discipline in this strong wave of transnation-alization and ›deterritorialization‹ of research. It seems to me that there are at least two dimensions to which we must remain attentive: the transna-tionalization of the science system (4.2.1) and the transnationalization of the legal system (4.2.2), both closely intertwined.

4.2.1 Legal History and the Transnationalization of the Science System

As I have tried to show, in general, Legal History in Germany is faced with the rapid transnational-ization of the science system. There are different

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ways to react to this: One option would be to simply ignore these changes and to continue with what we have been doing until now; another option would be to hope that these transforma-tions are merely passing fashion trends that will fade with time. A third option could be to delve right into Transnational Legal History and forget about all our national traditions; a fourth option would require a cautious adjustment of our intel-lectual and institutional agenda to this changing environment. Obviously, I am advocating for this last strategy. 124

In doing so, we confront a dual challenge: while we have to continue with our own research agen-das defined by the logic of a traditionally shaped discipline, at the same time, we must also concep-tualize and formulate our research so that we are a part of the new and emerging transnational dis-course on Legal History.

Let us look at both sides. It might not be necessary to argue too much in favor of the necessity of persevering with traditional research agendas. Every legal historian knows about the research to be carried out within the local, na-tional, regional field of research, and the brief review on the intellectual growth in our discipline has shown the richness of activity and results (3.2). The growing activity and the rise, for example, of the Chinese Legal History should obviously not have any impact on this agenda whatsoever. In debates on Global History, we have been asked whether we were all »Global Historians« now. 125I do not believe that is the case. Moreover, it is not only legitimate to work on our own local or regional legal history, which is indispensable for studying our history and traditions, integrating or not global perspectives. Continuing research on our own legal tradition has even greater impor-tance if transnational legal historical scholarship has to function, as such scholarship relies on integrating different traditions. Thus, we have to revisit and reconstruct our past and repeatedly renew our connection to it for a successful trans-national dialogue on fundamental issues: A Global Legal History needs local legal histories and the analytical traditions corresponding. With whom

would the experts on the history of law in Asia or in Islamic countries converse if, for example, in Germany or Europe, no one had the requisite expertise to speak about Christianity’s impact on our legal system? Or about how the modern Euro-pean state emerged, or what special historical contingencies led to the evolution of the adjudica-tion systems we now have in western societies? These questions, of course, can only be studied by integrating our analytical traditions and by further advancing the state of knowledge on the matter. Thus, there are good reasons to keep on contribu-ting our share to this evolving research. Obviously, this requires professional expertise. If transnatio-nal scholarship means ›plurality‹, as a principle of efficiency or epistemic justice, contributions on relevant discourses must be generated- somewhere and by someone. As a result, we have to foster and pursue research on our own traditions.

At the same time, however, we have to be able to conceptualize and present our research in such a way as to make it amenable to transnational scholarship. It is important then to overcome the language barrier that publishing exclusively in German increasingly produces. Yet while lingual translations are of increasing importance, they are not sufficient by themselves. The challenge we are facing is much bigger. We must – at least heuris-tically – be willing to question our own established categories, approaches, and principles, and be open to other conceptualizations of normativity and institutions, for different internal categorizations of law and legal scholarship, and – above all – for different questions. Legal History might thus be-come the historical study of normativity and its practices, which is not limited to what we call law. Legal History would then study the specificity of the form of normativity, which contingent condi-tions have transformed into a concrete phenom-enon we call ›law‹ and ask how it relates to other modes of normativity (›Multinormativity‹). Simi-larly, we would have to develop a transnationally useful conceptual apparatus to study the history of the decision-making systems. We will also need to analyze the transformations that occur in the process of reproducing normative options stem-

124 See on the challenge of Legal History through Transnational Law and Glo-balization C (2012); I(2013); C (2013); D (2012); D (2013); D (2014c); L

V (2011) and not least the contributions in this issue of Rechts-geschichte – Legal History.

125 I / J (2012).

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ming from one context in a different context (›Cultural translations‹), to better understand how legal spaces emerge. Thus, we need to develop a ›meta-language‹ for transnational communica-tion about our legal histories. 126

Obviously, we cannot draw on and offer such concepts based exclusively on a previous under-standing of our history. On the contrary, this meta-language needs to be developed in de-centralized discourses. As historians used to dealing with the relativity of their concepts, we should be especially open to new ways of synthesizing such transna-tional concepts. The rise of global history as a field has increased scholars’ sensibilities to such an approach and legal historians should be able to learn from them. 127 As legal historians, we can also look to neighboring disciplines such as Anthropol-ogy, the Sociology of Culture, and also ›General Jurisprudence‹ in order to advance the historical analysis we undertake in our own work. 128

To be sure, such a Transnational Legal History, and the degree of intellectual decentralization it entails, requires stable institutional frameworks. Here again, we are facing two challenges, mirror-ing what has already been said about the intellec-tual challenge. For, on the one hand, we need to stabilize an established discipline, because we need the mechanism to introduce scholars, guarantee quality control and efficiency in knowledge pro-duction within the disciplinary structures. Thus, some institutional continuity is indispensable. At the same time, we have to increase our presence in a continually evolving global academic system, for which we also have to be able to rely on institu-tional frameworks.

Thus, in order to maintain our national and disciplinary profile, we need to secure our institu-tional position within Law Departments. It would be dangerous to opt for an intellectual and institu-tional separation from law. And we must assume the responsibility of integrating foundational sub-jects, such as Legal History, with those that mainly

focus on Legal Doctrine. Else, we will have failed to communicate with our colleagues. More institu-tional spaces must be created to facilitate such encounters, a challenge that Law Departments in Germany have not yet tackled; Institutes for Ad-vanced Studies in Law, or bigger research projects that could create these spaces within the Law Departments, but also expanded post-graduate programs, are examples of institutional spaces we have not yet been able to realize. 129 At the same time, the presence of Legal History in global academic discourse, the second dimension of our work, also requires institutional support, especially to foster research on transculturally useful ap-proaches. Daily life at the university rarely affords the structures required for these purposes. Here again, the establishment of research projects that span across regions, of research institutions and more teaching opportunities in the context of Graduate Schools, or more intense collaborations with area studies might be a particularly useful means to make a transnationally organized scien-tific community of legal historians possible. 130

4.2.2 Legal History and the Transnationalization of the Legal System

The second dimension that seems important, as already mentioned, is the transnationalization of the legal system. This transnationalization al-ready exists (4.2.2.1), and so too, as a consequence, the demand for a Transnational Legal Scholarship (4.2.2.2), which in turn entails epistemic and theoretical challenges (4.2.2.3). Legal History could and should respond to these challenges.

4.2.2.1 Transnational Law

As already mentioned (3.1.1), today the world of law can no longer be easily divided into na-tional, regionally integrated or international

126 See on this more extensively D(2012) 48ff. as well as D (2013); D (2014c).

127 For an overview on the impact on the perspectives, see C (2013); for analogous recommendations that have been made in comparative law see S (2013).

128 Cf. also see T (2010); M(2012) for recommendations of social

anthropologists on governance, see G (1979).

129 Obviously, there are notable excep-tions, like the Cluster of Excellence »Formation of Normative Orders« (Frankfurt), the LOEWE Research Focus »Extrajudicial and Judicial Conflict Resolution« (Frankfurt), the Cluster of Excellence »Religion and Politics in Pre-Modern and Modern

Cultures« (Münster), the Collabora-tive Research Center »Governance in Areas of Limited Statehood: New Modes of Governance?« (Berlin), and others.

130 D (2014a).

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spheres. Owing to the growing globalization, de-regulation, and digitization of our societies, for decades, there has been a process of ›denationaliz-ing‹ law and justice, delegating more and more space to the regulation of the private sector. In many areas of life, agreements traditionally made on the basis of national laws must now also rely on normative frameworks of non-state laws. 131For most part, these normative frameworks, and the corresponding adjudication institutions, are brought into being to regulate situations that transgress the boundaries of national jurisdiction. Transnational cases of that nature have risen in the past decades in the course of mobilizing people, goods, and capital across borders. New non-state norms and decision-making institutions have emerged – in the regulation of the Internet or in sports; in fact, some jurists speak of leges oeconomi-cae, lex digitalis, lex sportiva, etc. With that, new forms of extrajudicial settlement have replaced state judicial instruments; forum shopping can be practiced more widely, albeit with significant eco-nomic and legal consequences. The trend to en-hance Global Governance has given rise to new rules and instruments of enforcement, which have a similar effect on individuals established legal modes for controlling behavior and enforcing sanctions for misconduct, in part even exceeding them. Especially the so-called developing countries are experiencing this, in many cases, with harsh consequences, because safeguards developed with-in national legal frameworks against market mo-nopoly as well as control mechanisms and legal protections are commonly evaded. In a parallel process, we have witnessed a significant upturn in the export and import of law and allied services since the 90s, which has hugely advanced the cause of Anglo-American law. 132

However, the phenomenon of a non-state nor-mativity that transcends cultural boundaries is not just restricted to the world of economy, sports, or neo-liberal reforms introduced in the non-US-American and non-European parts of the world. With growing (and more frequently observed) diversity within our own societies, the importance

of normative spheres independent of a specific national legal framework, and sometimes separate even from a dominant culture in the immediate environment, is becoming perceptible in our daily lives, even within Europe. Rules deriving from religious convictions are lived and enforced within national legal orders of which they are not an integral part. Some cases involving the so-called ›parallel judiciary‹ have attracted strong public attention. As I have briefly mentioned before (3.1.1), these developments raise the question of how normative orders and decision-making sys-tems that have grown independent of state struc-ture can be legitimated, controlled, and integrated into the existing, state-centered legal orders. Thus, there are lively academic debates, and we can observe, especially in the English-speaking world, the institutionalization of ›Transnational Law‹ through research programs, databases, journals, books series, and new curricula. 133 Transnational law has become an important domain for legal scholarship.

4.2.2.2 Transnational Legal Scholarship

Still, this impressive growth of Transnational Law, its institutionalization and the scholarly dis-cussions about it do not automatically imply the emergence of a ›Transnational Legal Scholarship‹. The case of the European Union might be a useful example to illustrate this. For decades, we have increasingly being subject to European Law as well as university courses, books, and institutions dedi-cated to research on European Law. But still, in most cases European Law continues to be studied from a national perspective. Legal scholars have basically been looking for a way to understand and integrate it into their own national systems. The intense discussion about the need for a ›European legal scholarship‹ is a fairly recent phenomenon that owes it currency to the emergence of Euro-pean Law as a Transnational Social Field. Accord-ing to its advocates, a European strand of transna-tional legal scholarship would represent not merely an aggregate of the traditions and practices

131 For panoramic views on this from different disciplinary perspectives see S (2010); K /G (2011); G (2012); B (2012); Z (2012).

132 On this see now R (2014).

133 For example D / D M(2009); M-M (2011); C / D L (2009) and L / M (2006). For an useful overview see C B /S (2011); J (2012).

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of legal scholarship in European nations. In fact, a legal scholarship would Europeanize its basic concepts and methods. Thus not just the member state laws, and in similar vein, not just the EU institutions, but rather Europe in its entirety must become the frame of reference for scholarly work. German legal dogmatics »in this context would have to necessarily adopt a new orientation«, as Armin von Bogdandy pointed out. 134 Due to the high self-confidence of German jurists, one might imagine that this is not an easy task. But it is not only a question of pride or losing market shares, but this is a sensitive issue, because in final analysis, while the vast majority of laws may have been inspired by European law, they are brought to bear by national law-makers, lawyers, and courts, with-in a national framework. So German legal scholar-ship can and should not ›Europeanize‹ completely, but must develop a European dimension – just in an analogous way to what has been said about the necessary combination of national and transna-tional logics in Legal History.

This short glimpse at the attempts to create a European legal scholarship might already antici-pate the huge challenges connected with a trans-national legal scholarship that is not confined to Europe, but would refer to a global space. For within Europe, legal scholarship can draw on a legal vocabulary and grammar evolved in a cen-tury-old communication process. But such pro-cesses that foster this form of cohesion simply do not exist on a global scale – even though there are voices advocating the inculcation of a shared global legal culture. 135 And while Europe is having a solid institutional framework within which legal scholarship evolves in an environment of political, economic, and legal integration in order to base the research agenda on common topics, methods, practices and infrastructures, that cementing ele-ment must yet be created to carry out transnational legal scholarship on a global scale.

However, we need to urgently address the issue of transnational legal scholarship, because of the very mission of legal scholarship. As in the case of European law, which initially began as a discipline for Europe-enthusiasts, the ongoing debate on Transnational Law is largely carried out by inter-ested actors. Their motivation is to win market

segments, whether in the realm of academia, legal counseling or adjudication. This strong presence of voices guided by market interests is per se not bad. But it needs to be counterbalanced, and its strength can only be diffused through institutional frame-works that encourage the participation of other worldviews, legal cultures and discourses, which explore the risks involved in the transnationaliza-tion of law as well as propose possible strategies to overcome those risks. In other words, we need to develop a transnational legal scholarship that pro-vides the space for a critical exploration and exami-nation of the legal system, a quintessential endeav-or of all legal scholarship. Thus, it is important to involve academics in this discourse, and not just legal practitioners, in order to create a sustainable institutional framework that stimulates research and invests scholars’ opinions with authority.

4.2.2.3 Epistemic and Theoretical Challenges

Such a non-ideological transnational legal schol-arship that generates critical perspectives in the best possible sense is not merely an institutional challenge, but predominantly an epistemic and theoretical one.

It needs – and that is what is meant by epistemicchallenge – the willingness and the capacity to be free from tried and tested categories, methods, and principles for heuristic purposes. It must be deemed open to alternative ideas of normativity, to different internal structures of law and legal scholarship, also to a broad spectrum of ideas generated by academics from different cultures, because a transnational legal scholarship cannot be conceptualized according to the national tradi-tion of one single participant in a discourse, not even on the basis of one region. It must allow diverse legal cultures and traditions to enter into a dialogue with one another, to collaborate on re-search questions before subsequently processing them, and to allow participants to learn from one another. This epistemic challenge might entail generating and accumulating a lot of what might seem ›non-juridical knowledge‹ and developing corresponding research infrastructures to do so, and all this must have an impact on the academic curricula.

134 B (2011).135 F (2014).

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In addition to this, transnational legal scholar-ship also poses a theoretical challenge. It must ask if and how we can conceive of an analytical frame-work that is adequately wide-ranging, devoid of cultural assumptions, open to the normative ideas of the entire world, but one that still somehow manages to retain analytical force. Both types of challenges, the epistemic and the theoretical, have been discussed in the last years, mostly under the rubric of General Jurisprudence, meaning a legal doctrine that examines the structural elements of transnational law within the context of globaliza-tion, by authors like Brian Tamanaha or William Twining. This discussion has already shown that a transnational legal scholarship that conforms to these standards must also be especially receptive to its ›neighboring‹ academic disciplines. In a sense, it can only be based on a transdisciplinary approach. Formulating a common vocabulary for law and normativity is an example: A transnational legal scholarship requires consensus on the normative spheres to be incorporated into discourses on normativity, and into the corresponding concep-tual framework. Merely resorting to the term ›law‹ and its linguistic equivalents would give rise to misunderstandings, or again propel state-legalistic concepts to center stage. Not only would that complicate dialogues with other cultures, it would also generate a form of circular argumentation; normative spheres that fall outside its scope, or differences that remain veiled owing to polysemy, would be disregarded.

For these reasons, a transnational legal scholar-ship must derive its analytical framework from an empirical approach that allows fields of normativ-ity to be ascertained and systematically ordered, in other words, through an empirically founded mod-el comprising different categories of normativity that has intercultural legitimacy. That requires cooperation between disciplines directly con-cerned with law, but also with those who work on different socio-legal arenas – and do not reside just within Law Departments. We need other disciplines – Anthropology, Sociology, Religious Studies, etc. – and scholars with regional expertise.

Finally, transnational legal scholarship has to draw on legal historical work, and scholars working within this field already do so to a considerable extent. Thus, many questions are being asked of us – old and new ones. In this field, our problem is not the lack of interest in our field of study, but our lack of preparation to provide appropriate answers.

4.3 Conclusion

The aim of this article was to review the chang-ing environment of our discipline and the trans-formations in the conditions of knowledge pro-duction, and to inquire into the options emerging from this. Obviously, we cannot predict the future, and perhaps much of what I have written might in hindsight prove to be wrong, or simply utopian. Still, I believe that it is quite probable that the transnationalization of law is here to stay, and that legal scholarship has to develop a transnational dimension to respond to these changes. Thus, our objective must be twofold: to continue with the research in our own traditions, enriched by a global dialogue and its perspectives. At the same time, we have to structure our knowledge in response to the logics of a transnational scholar-ship, be that in History or in Law.

As for transnational legal scholarship, Legal History can substantially contribute to this field of study, since this type of scholarship will not be possible without a historical dimension. The de-mand for legal historical expertise is palpable every-where, and we should not fail to address these needs. Entering into the domain of this transna-tional dialogue, and adopting ›global perspectives on legal history‹, we might even discover aspects of our own legal past that had previously eluded. 136Thus, even the traditional research on our own local, regional, national past might benefit from this transnational dimension. There is no doubt that the future holds exciting prospects for Legal History.

n

136 See on this D (2012) and D(2013) as well as the forthcoming first volume of the new series Global per-spectives on Legal History (GPLH), D (2014b).

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n T, M (Ed.) (2003), Digitale Bausteine für die geisteswissenschaliche Forschung, Göttingenn T, K (2002), Critical Legal Positivism, Aldershotn T, K (2011), Ratio and Voluntas. The Tension between Reason and Will in Law, Aldershotn T, W (2009), General Jurisprudence, Cambridge http://dx.doi.org/10.1017/CBO9780511807374n V K, B, S T (Eds.) (2011), Law and Method, Tübingenn V, M (2011a), Flaggeschiffe und Stieinder. Rechtsgeschichte als historische Kommentierung des geltenden Rechts, in:

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n V, M (2011b), Kurze Geschichte des Technikrechts, in: S, R, M S (Eds.), Handbuch des Technikrechts, 2. Auflage, Heidelberg, 3–92

n V, T (2007), Rechtstheorie. Ein Studienbuch, Münchenn V, C (2011), Medien der Rechtsprechung, Frankfurt am Mainn V, J (2012), Strafrecht und Strafrechtswissenscha im internationalen und europäischen Rechtsraum, in:

Juristenzeitung 67,1, 25–31 http://dx.doi.org/10.1628/002268812798860283n V B, B (1990), Die Kaiser-Wilhelm-Gesellscha im Kaiserreich. Vorgeschichte, Gründung und Entwicklung

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Poltische Schrien, 3. Auflage, Tübingen, 1–25n W, H-U (2008), Deutsche Gesellschasgeschichte. Füner Band. Bundesrepublik und DDR. 1949–1990,

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(Eds.), University Experiments in Interdisciplinarity. Obstacles and Opportunities, Bielefeld, 151–174n W, M, G E (Eds.) (2013), Concepts of Law in the Sciences, Legal Studies, and Theology, Tübingenn W, H, J R (2012), Knowledge and Science in Current Discussions of Globalization, in: R, J (Ed.),

The Globalization of Knowledge in History, Edition Open Access, 45–72n W, B (2010), The Great Brain Race: How Global Universities Are Reshaping the World, Princeton (NJ)n W, D (Ed.) (2007a), Rechtswissenscha und Rechtsliteratur im 20. Jahrhundert. Mit Beiträgen zur Entwicklung

des Verlages C. H. Beck, Münchenn W, D (2007b), Juristische Literatur im 20. Jahrhundert, in: W (Ed.) (2007a) 3–61n W, D (2009), Deutsche Verfassungsgeschichte. Vom Frankenreich bis zur Wiedervereinigung Deutschlands,

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die deutsche Rechtswissenscha des 20. Jahrhunderts, Hamburgn W, A (2012), Der Preis der Freiheit. Geschichte Europas in unserer Zeit, Münchenn W, A, G T, G E, H K, P C (2011), The 1970s and 1980s as

a Turning Point in European History?, in: Journal of Modern European History 9, 8–26n Wissenschasrat (1991), Empfehlungen zur Forschung und Lehre auf dem Gebiet der Rechtswissenscha in den neuen

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12 vom 9.11.2012, online: http://www.wissenschasrat.de/download/archiv/2558-12.pdfn Wissenschasrat (2013), Perspektiven des deutschen Wissenschassystems; Drs. 3228-13 vom 12.07.2013, online: http://

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2nd edition, 898–925

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European Normativity – Global-Historical PerspectivesIntroductory remarks

For centuries, it may have seemed as if standards of normative thinking now valid across the globe had first been instituted in Europe. These norma-tive orders form the foundations of our verdicts that define and distinguish right and wrong, good and bad or even beautiful and ugly. But in order to better understand the global presence of such normative orders that evolved from within the European horizon, the history and implications of European expansion in the early modern era cannot be swept under the rug.

Even if traditionally scholars may have chosen to view Europe’s presence on world stage as natural or necessary, and later, in light of the moderniza-tion theories, at least as desirable, so that many still might consider the so-called ›Europeanization of the world‹ a great cultural achievement, questions that challenge this view are no less salient. The transfer of normative ideas and practices from a European context to non-Europe appears, indeed, to exemplify an imperialism which began with colonization and is perpetuated today largely in the economic and cultural realms. In fact, we must ask if we legitimately can even speak of a strand of normativity that is distinctly ›European‹ and that ostensibly has ›spread‹ across the globe. Now that we are ever more keenly aware of the differences within Europe and continue to be sensitized to the processes of appropriation and translation and, as such, of transformation of normative ideas and practices in their respective cultural environment, questions persist: Did normative ideas and practi-ces ever exist as distinctly »European«? Which ones? When did ascriptions to Europe as a cultural entity begin and where did Europe end? Which role, in relation hereto, did its demarcation vis-a-vis

non-Europe play? What remained of ideas devel-oped from within a European context aer their appropriation in local contexts and once they underwent translative and transformational pro-cesses?

On the festive occasion of the inauguration of the new premises of the Max-Planck-Institute for European Legal History on 2nd September 2013 a cross-disciplinary conference was held to discuss questions regarding the historical role of Europe in the world to which we invited scholars from diverse disciplinary traditions and fields of re-search. While our discussions mainly centered on the history of law, specifically for the reasons listed above, we were also curious about other forms of normativity and their histories of appropriation and interrelating. 1

The current Focus expands beyond the original conference proceedings to include five articles written especially for this issue and dedicated to fields of research not addressed during the course of the conference. Some papers as well as three comments make strong references to a working paper written in preparation for the conference and available on SSRN. 2 Together with other studies – some of them to be published in a volume of collected essays titled Entanglements in Legal History: Conceptual Approaches, the first in a new publication series launched by the Max-Planck-Institute for European Legal History called Global Perspectives on Legal History (GPLH) – they offer a fascinating panorama of interconnected legal his-tories and challenges of this transnational legal history.

n

1 See the conference report by Otto Danwerth / Nina Keller / Zülâl Muslu European Normativity – Global His-torical Perspectives. 02.09.2013 – 04.09.2013, Frankfurt am Main, in: H-Soz-u-Kult, 25.01.2014, http://hsozkult.geschichte.hu-berlin.de/tagungsberichte/id=5202.

2 D, T, European Legal History – Global Perspectives. Working Paper for the Colloquium European Normativity – Global Historical Perspectives (Max-Planck-Institute for European Legal History, September, 2nd – 4th, 2013) (August 5, 2013). Max Planck Institute for

European Legal History Research Paper Series No. 2013-06. Available at SSRN: http://ssrn.com/abstract=2292666 or http://dx.doi.org/10.2139/ssrn.2292666.

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Jürgen Renn

The Globalization of Knowledge in History and its Normative Challenges 1

From the History of Science to the Global History of Knowledge

It seems that there are some remarkable simi-larities between current situations in the history of law and in the history of science. Both are shaped by strong European traditions and both have an urgent need to expand their horizons to a global perspective. This essay will first dwell on this parallelism and go on to discuss how the history of science appears – methodologically – from a global perspective. The discussion will then be extended by developing a theoretical framework according to which both science and law can be conceived as cultural abstractions with global his-tories. As I am unable to pursue this perspective in detail for the history of law, the third part of the essay will sketch what one could possibly learn from a global history of knowledge. My most ambitious hope is that this may serve as encourage-ment for developing an epistemic history of nor-mativity in parallel to what historical epistemology tries to achieve for the history of science. By way of conclusion, the normative challenges of the global-ization of knowledge will be discussed.

The history of science has been dominated by the history of Western and in particular European science. Its paradigmatic topic has been the Scien-tific Revolution of the sixteenth and seventeenth centuries. This Scientific Revolution has suppos-edly given rise to modern science not only with specific discoveries, but by establishing a general scientific method, consisting in the formulation of hypotheses which are then tested by experimen-tation or observation. Modern science and the scientific method were supposedly developed in Western Europe, first in astronomy and then in physics, and from there conquered the geograph-ical world and the world of knowledge. Even in the traditional account, however, it has been admitted

that some of this expansion was only achieved by force, by trying to enforce the laws of physics on biology, for instance, or by the colonial expansion of Western science, oen accompanied by the violent suppression of other forms of thinking.

Today, this picture is being criticized and re-jected on the basis of much more fundamental arguments. Philosophers of science have tried in vain to identify the scientific method allegedly at the core of scientific rationality. And historians of science no longer see the Scientific Revolution as the historical breakthrough that fundamentally changed the practice of science at large. Science no longer seems distinguishable from other forms of cultural practices. It has ceased to be a paradigm of universal rationality and presents itself as just one more object of study for cultural history or social anthropology. Even the most fundamental aspects of the classical image of science, proof, experimentation, data, objectivity or rationality have turned out to be deeply historical in their nature.

This insight has opened up many new perspec-tives on the study of the history of science, which is actually turning more and more into a history of knowledge. It thus includes not only academic practices, but in addition also the production and reproduction of knowledge far removed from traditional academic settings, for instance, in arti-sanal and artistic practices or even in family and household practices. More importantly, non-West-ern epistemic practices are also considered without being immediately gauged against the standards of established Western science. “On their own terms” is the slogan under which Chinese science is currently being analyzed, without a constant eval-uation of what it lacks in comparison to Western science. Similarly, the worldwide circulation of knowledge is now considered not just as a one-sided colonial or post-colonial diffusion process,

1 This paper was presented at the col-loquium: European Normativity – Global Historical Perspective, Max Planck Institute for European Legal History, 3 September 2013.

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52 The Globalization of Knowledge in History and its Normative Challenges

but rather an exchange of knowledge in which each side is active and in which knowledge is shaped as much by dissemination as by appropria-tion.

In recent years, the migration of knowledge has become an active field of research. With few exceptions, the emphasis has been placed mostly on local histories that focus on detailed studies of political and cultural contexts and emphasize the social construction of science. While this emphasis has been extremely useful in overcoming the tradi-tional grand narratives, and also in highlighting the complexity of these processes and their depend-ence on specific cultural, social or epistemic con-texts, it has led to a somewhat distorted, highly fragmented picture of science.

This picture does little justice to the overwhelm-ing societal, economic and cultural significance of science in a globalized world. Rather than repre-senting one of the major and still unexplained economic and societal forces in the modern world, science dissolves into a plethora of highly localized and contextualized activities, which are scarcely connected to each other. It has become a mark of political correctness to provincialize European sci-ence as representing just one among many, equally justified points of view within a global culture.

Such well-meaning political correctness does not enable historians and philosophers to compen-sate for the destruction of indigenous cultures, for the genocides, for the lack of gender equality, in short, for the immense damage and crimes com-mitted in world history in the name of Western rationality and science. The golem of science can-not be tamed by underestimating it, let alone by overestimating our own influence as its witnesses.

But what can we do when we do not want to ascribe the powerful role of science, for better or worse, in the modern world to its intrinsic ration-ality, to the superiority of a universal scientific method, or to some kind of capitalist, technocratic conspiracy responsible for its triumphal procession as a driving force of modernization? Neither piling up ever more local studies, nor offering soened versions of the original universalist point of view will do. What is needed is a truly global perspective accounting for the universalizing role of science in today’s world as well as for its ever shaky claims to rationality on historical grounds. Such a global perspective must begin with the insight that the place of local knowledge in the global community is not just a residual niche, but rather a matrix.

Local knowledge constitutes the substratum of all other forms of knowledge, generating the global diversity also of scientific knowledge. With all due reservation, I am tempted to suggest that a similar account may be useful to discuss the universalist claims associated with normative issues such as human rights, for example.

The history of science can only be understood against the background of a global history of knowledge. The fragmented picture suggested by current cultural studies has induced us to under-estimate the extent to which the world has been connected – for a very long time – by knowledge. One might even go so far as to claim that, just as there is only one history of life on this planet, there is also only one history of knowledge.

A Theoretical Framework

Is there a theoretical perspective from which such a claim may be substantiated, and possibly even extended to other aspects of human culture such as legal thinking? This question leads to the second part of this essay, dealing with fundamental concepts such as knowledge and institutions and their normative dimensions. In the history of science it is not common to explicitly define such notions but, I believe, important in order to con-nect historical studies to current discussions in the social and behavioral sciences. I will first define knowledge and then institutions, in both cases making reference, in an essential way, to the fundamental human capacity of symbolic think-ing. I will also emphasize the crucial role of external representations, that is, of the material culture serving as the external medium of human thinking and social behavior, such as language, artifacts, art, writing or other symbolic systems. Written law may thus be considered as one type of external representation of normativity. But let me first define knowledge before I return to norma-tivity.

Knowledge is conceived here as the capacity of an individual or a group to solve problems and to mentally anticipate the corresponding actions. Knowledge arises from the reflection on material, socially constrained actions. Given the fundamen-tal human capacity for symbolic thinking, the dissemination and transmission of knowledge re-lies crucially on external representations such as, for instance, symbols for counting objects. The

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reflection on actions involving such external rep-resentations may then in turn create higher-order forms of knowledge, such as an abstract concept of number. These higher-order forms of knowledge are removed from the primary actions, but in ways that are dependent on the contingent material and social nature of the external representations, for instance, on the specifics of the symbol system employed. The dissemination and transmission of knowledge takes place in the context of knowledge systems that rely on societal institutions.

Institutions, such as the family, the state, a school or an enterprise, are a means of reproducing the social relations existing within a given society, and in particular, the societal distribution of labor. The coordination of individual actions mediated by institutions presupposes behavioral norms and belief systems such as habits, religion, law, mor-ality or ideology. A behavioral norm is the capa-bility of an individual or a group to act in accord-ance with institutionalized cooperation. The inter-actions of an individual with others mediated by an institution and their representation by a collec-tive belief system are constitutive of both an individual’s identity and of its relation to a com-munal identity. Belief systems result from the reflection of institutionalized actions and imple-ment the regulative framework of institutions in the minds of individuals. They allow individuals to interpret and control their own behavior and that of others in the framework of the societal group to which they belong, forming the basis of normative judgements and their legitimization.

What is the relation between knowledge and institutions? There are some striking similarities and differences. Institutions represent the potential of a society or a group to coordinate the actions of individuals and to thus interact with their en-vironment. As an “action potential” they bear close relations to knowledge, but there are important differences. There is no knowledge without the mental anticipation of actions, while institutions must regulate collective behavior without such direct mental anticipation of the collective actions and their consequences.

Institutions involve knowledge on various lev-els. They must embody and transmit knowledge in the sense of the capacity of individuals to anticipate actions that are compatible with the coordination regulated by institutions, as well as knowledge on social control and knowledge on how to resolve conflicts. Just as institutions have to rely on knowl-

edge, knowledge has to rely on institutions. Insti-tutions form the basis for knowledge systems, which in turn become the condition for the stabil-ity and further development of institutions. Insti-tutions, however, do not think. Since institutions mediate collective actions, they have to rely on shared knowledge and engender distributive think-ing processes.

As in the case of knowledge systems, external representations also play a key role in the function-ing and development of institutions. All kinds of material aspects – persons, animals, places, arti-facts, symbols or rituals – may become part of the external, material representations of an institution. They now represent a normative social order, defining a field of actions compatible with the regulations of an institution.

Institutions regulate human interactions in or-der to cope with certain regularly occurring prob-lems such as those related to cooperation, the distribution of labor, the redistribution of resour-ces or the resolution of societal conflicts. Such regulations externalize problem-solving capacities; they contribute to solving societal problems be-cause the coordination of individual interactions can be partly discharged to the handling of external representations of an institution, such as following a command chain, dealing with paperwork in an administration, exchanging goods for money on the market, or applying written law to a violation of norms. The external representations thus reduce the knowledge required to solve problems of col-lective interaction.

As in the case of knowledge, external represen-tations of institutions also engender processes of abstraction enabling higher-order forms of societal organization in which coordinative functions are partly taken over by new forms of external repre-sentation. For example, in modern society, certain aspects of the coordination of societal interactions are governed by an abstract time represented by clocks. This process of cultural abstraction contrib-utes to the opacity of institutions from the per-spective of individuals because it decouples actions with the representations from the concrete inter-actions at lower levels of societal reflexivity. Regu-lating one’s actions with the help of a clock thus becomes an efficient substitute for the direct co-ordination of actions among the members of a complex society.

Both in the case of knowledge and in that of social order, external representations may them-

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selves become the objects and means of actions, giving rise to rich symbolic worlds of social and epistemic meaning with feedback on the under-lying social and material practices.

A specific concept of abstraction is crucial for the approach presented here. It goes back to the psychological investigations of Jean Piaget who introduced the concept of »reflective abstraction,« but is used here in the sense of Peter Damerow who transformed it into a thoroughly historical notion by emphasizing the role of material, so-cially contextualized actions as the origin of cog-nitive structures. In this sense, reflective abstrac-tions in science, such as those giving rise to the abstract mathematical concept of number, ulti-mately depend on the material actions from which they originate, such as the concrete actions of counting material objects with the help of number words or number signs. This will be illustrated later with a historical example. Reflective abstrac-tion is a constructive process in which novel cognitive structures are built up by reflecting on operations with specific external representations such as language, tallies or mathematical symbols. These external representations may in turn em-body previously constructed mental structures so that a potentially infinite chain of abstractions is created.

Here I must warn against a common misunder-standing associated with the original use of the concept of reflective abstraction in the tradition of Piaget: It may appear as if this chain of abstrac-tions gives rise to a teleologically predetermined hierarchy of steps leading from actions with con-crete objects to ever higher-order mental opera-tions. This is simply not the case for the concept of reflective abstraction as reformulated by Damerow. The historical development of reflective abstrac-tions is in fact highly path-dependent, contingent as it is on a series of concrete historical experiences. The same holds more generally for cultural abstrac-tions, including legal principles and moral norms. But societal reflexivity is somewhat different from epistemic reflexivity in that it is even more difficult to debunk its abstractions and identify the actual historical experiences that shaped them.

Normative thinking is actually oen considered to be fundamentally different from scientific think-ing, just as norms and facts are taken to belong to different categories. Science is assumed, at least at its core, to be value-free, while ethical norms supposedly cannot be grounded on facts. Yet, we

encounter normativity in scientific thinking even in basic principles such as in the moral value of truth or in demands for good scientific practice. And we encounter fact-dependence in ethical norms, as when new insights into the nature of human reproduction or new medical practices make it necessary to rethink ethical principles about the protection of life. The theoretical frame-work presented here suggests that ultimately moral and epistemic norms have the same origin, that they both result from a reflection on collective and individual human actions and experiences.

The possibilities for reflection on human ac-tions and experiences evidently depend on the knowledge economy of a society. This knowledge economy comprises societal institutions in which knowledge is transmitted and generated. Similarly to the knowledge economy, there is also a moral economy of a society. The functions of the episte-mic and the moral economies are different. The knowledge economy serves to maintain, transmit and develop the cooperative action potential of a society by means of epistemic practices. The moral economy, on the other hand, serves to maintain, transmit and develop social cohesion and the possibilities for cooperation within a given set of institutions and by means of normative practices. Clearly, these functions are closely intertwined: maintaining social cohesion requires problem solv-ing and hence knowledge, while collective prob-lem solving presupposes cooperation and hence moral norms and practices. The knowledge-de-pendence of norms and the normative dimensions of knowledge are both mediated by the historical evolution of cultural abstractions. These cultural abstractions are neither universal nor merely con-ventions, but are ultimately based on human experience and its concrete historical representa-tions.

At least in the history of science it has turned out to be extremely useful to analyze the precise way in which experience enters fundamental ab-stractions such as space and time. It has also turned out useful to analyze contradictions in systems of knowledge as a driving force of this development. For example, in 1905 Albert Ein-stein confronted seemingly insurmountable con-tradictions within classical physics. But then he realized that the classical concepts of space and time were neither given a priori, that is, prior to experience, as had been claimed by Kant, nor merely conventions, as had been claimed by Poin-

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caré. Einstein recognized instead that these abstract concepts were actually conceptual constructs based on a limited domain of experience, as had been suggested by Hume. The realization that the much larger experimental horizon of the new physics of his time transcended this domain eventually helped him to create relativity theory with its fundamentally new concepts of space and time.

From such instances, an epistemic history of science has inspired a reconstruction of the expe-riences underlying the fundamental concepts and practices of science. Similarly, one might conceive of an epistemic history of normativity studying the experiences that have shaped the fundamental precepts of normative thinking and practices.

The Emergence of Modern Science against the Background of a Global History of Knowledge

This leads to the third part of this essay, dealing with the globalization of knowledge in history and its consequences. Some of the basic mechanisms of the global exchange of knowledge and its interde-pendence with other processes of transfer and transformation may be recognizable even in the earliest phases of human development: First of all, it becomes evident that all of these processes are layered, in the sense that the introduction of a new process such as the exchange of knowledge by written texts does not lead to the eclipse of earlier processes such as the exchange of knowledge by the diffusion of material culture or interpersonal con-tacts. This historical superposition of experiences in itself necessitates a global perspective. A second observation is that the outcome of a knowledge production process typically becomes the precon-dition for the stability of the level of development attained. This may be illustrated with a historical example: In the fourth millennium BCE, we see the beginning of large-scale settlements in Meso-potamia. At this time we also see, not coinciden-tally, the development of writing. The invention of writing was originally a consequence of state ad-ministration. Not only did it change the conditions of the geographical transfer and historical trans-mission of knowledge, but also extended the hu-man cognitive facilities by stimulating reflection processes and the creation and articulation of prev-iously unknown cultural abstractions. Eventually, writing was converted from a consequence into a precondition, not only for a particular model of

state organization, but for a level of socioeconomic development depending on these novel cultural abstractions, from literature and law to science. The example of the invention of writing thus nicely illustrates how more or less contingent consequen-ces of historical processes may turn into the neces-sary precondition for the stability of the current situation as well as for its further development.

It has oen been claimed that, since its incep-tion, writing has been used as a means of repre-senting language. But in fact it emerged to some degree independently of spoken language – as a technology for the administration of centralized politico-economic systems of the ancient Mesopo-tamian city-states where its communicative func-tion was restricted to the administrative context. Thus, the first writing did not represent the mean-ing of sentences of spoken language, nor did it reflect grammatical structures of language, but rather meanings related to specific mental models of societal practices such as accounting. Since it was not used as a universal means of communica-tion, it could only transport a very precise meaning in a very precise context. It was on this basis that a long-term and stable Babylonian administrative economy developed, which in turn served as a precondition for further development, in particu-lar, for the second invention of writing, this time as a universal means of codifying language. This second invention of writing would have been impossible without the spread and the manifold use of the earlier proto-writing. This leads to a third general observation on the mechanisms of knowledge evolution: The exploration of the limits of a given system of knowledge typically consti-tutes a presupposition for its transformation into a new system of knowledge, in this case for the transformation of the context-bound proto-writing into a universal system of writing.

As the historian of science Peter Damerow has pointed out, there is a similar development pre-ceding the emergence of mathematics: this too emerged from context-dependent Babylonian ad-ministrative proto-writing. This illustrates the proc-ess of reflective abstraction I introduced earlier. For a long time, not even historians of mathematics would have imagined that there were numbers whose meaning depended entirely on the context of what they were supposed to count. In other words, the meaning of the respective symbols depended on whether they were counting people, length, field measurements or pints of beer, the

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latter being an important application of Babylo-nian mathematics. And yet, our present day math-ematics, which claims universal validity, emerged from a system of symbols that were originally invented exclusively to solve specific administrative problems and characterized by this very context dependency.

Contrary to what philosophers have long be-lieved, the universality of mathematical knowledge is thus not the characteristic feature of a specific type of knowledge. It was rather the outcome of a specific historical trajectory of globalization. Since the third millennium BCE, writing possibly spread from Mesopotamia throughout the world, although it cannot be excluded that there may have been independent inventions of writing as well. But it does appear that the idea of writing may have spread almost immediately to Iran and Syria, then a thousand years later to the Indus civilization, and another thousand years later to China. This spread led to an enormous increase in the possibilities for transmitting knowledge, but also for the emergence of science.

The initial emergence of science in a form familiar to us took place in different parts of the ancient world: Greek and Chinese science devel-oped independently of each other around the middle of the first millennium BCE. The onset of Greek science is to be found in the Middle East, not far from the cultural centers of Mesopotamia. The point that I want to emphasize here is the emer-gence of cultural abstractions by cultural transfer, a fourth general feature of the evolution of knowl-edge. As a consequence of the transfer of Babylo-nian knowledge on medicine, astronomy and mathematics to a different cultural area, that knowledge itself took on another form. In partic-ular, the justification for the validity of a claim was made explicit in the Greek context, while in the Babylonian context it remained part of implicit knowledge. Babylonian science does in general not comprise explicit scientific proofs in the sense familiar to us so that its knowledge appears to us as an unfounded collection of instructions.

In fact, however, this knowledge was not as unfounded as it may appear. It was just that the normative control of knowledge operated in a different way. Since knowledge was embedded in the age-old institutional and practical contexts of Babylonian culture, there was simply no motiva-tion to make the reasoning behind certain claims explicit. This changed as soon as another culture

appropriated such knowledge, especially when that culture, as is the case for Greek culture, was geared to a public discussion of political decisions and their justification. While the justification of Bab-ylonian or Egyptian scientific knowledge was largely inherent in the institutional and represen-tational structures in which it was generated, it became the subject of explicit normative reasoning in the Greek context.

The process just described was a process of cul-tural interaction in which knowledge accumulated over thousands of years in the cultures of the Middle East eventually changed its form as a con-sequence of being transferred to a new context. This is a striking example of the important role of cultural breaks and intercultural appropriation for innovations due to the recontextualization they engender. In contrast to the transition from Bab-ylonian to Greek science, in China there was, at that time, no comparable transmission across a cultural break connected with a complete recon-textualization of knowledge. In Chinese as well as in Babylonian traditions, the structures of scientific reasoning therefore remained, at least from our perspective, largely implicit. Thus ancient Chinese mathematics has also seemed to some of its West-ern interpreters to represent a mere collection of instructions, devoid of explicit scientific reasoning. And just as in the Babylonian case, this view has turned out to be highly misleading, disregarding the intrinsic logic of Chinese science.

Processes of cultural abstraction by recontextu-alization are not just characteristic of science, but have also shaped the traditions of normative think-ing as can be inferred from the history of religion. For instance, the Babylonian exile of the Jews in the sixth century BCE and their later encounters with Persian and Hellenistic traditions not only led to an integration of new cultural resources into the Jewish tradition, but also to a transformation of this tradition towards greater inclusiveness and universality. This can be illustrated by the biblical account of the prophet Jonah charged by God to preach in the Assyrian city Niniveh, announcing its imminent destruction. Jonah tries to escape the divine mission but is ultimately confronted with the fact that the God of Israel encloses its ignorant enemies in His grace. Jonah ends the Book abruptly with God’s rhetorical question:

And should not I spare Nineveh, that great city, wherein are more than six-score thousand per-

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sons that cannot discern between their right hand and their le hand; and also much cattle?

Similarly, the emergence of Buddhism at about the same time in India occurred in the context of a reaction to the contemporary Brahmanical re-ligion and led to a highly reflective textual tradi-tion. Buddhism carried with it packages of knowl-edge comprising texts, artisanal and artistic practi-ces, but also forms of social organization such as monastic communities that travelled across Eura-sia.

Religions such as Judaism, Buddhism and later Christianity and Islam provided efficient networks for spreading both knowledge and normative thinking. These world religions embodied much of the structures of authority and of the mecha-nisms for knowledge production and dissemina-tion of the state. But whereas knowledge in the state was limited by its geographic boundaries, the packages of knowledge associated with world reli-gions traveled more or less freely across state boundaries. Religion offered a new social order greater than that of the state, but modeled on the state; thus, for instance, the concept of the Umma in Islam and the City of God in Christianity.

While authority was merely asserted by the state (and grounded in physical force), the world religions needed to justify their authority. Thus they developed sophisticated schemes of justifica-tion and produced extensive bodies of knowledge through complex processes of dialectics. Some of these schemes and processes had their origins in earlier systems of thought that had arisen under specific local conditions, such as Hellenistic phi-losophy. But whereas such schemes and processes had been local, the world religions embedded them in institutions of potentially global extent. It is against the background of these complex schemes of argument, processes of justification and elaborate bodies of knowledge – and in dia-logue with them – that modern science was born, as will now be discussed.

The capacity of religion to challenge the author-ity of the state in terms of its own internal logic ultimately increased the potential of science to challenge religious authority. This is especially true for a religious tradition like medieval and early modern Christianity that systematically commit-ted itself to the augmentation of knowledge, positioning itself within a comprehensive world-view that eventually was institutionally supported

by the Church as well as by universities across Europe.

In the late Middle Ages and the early modern period, the knowledge system based on the Chris-tian doctrines and Aristotelian scholasticism underwent a fundamental transformation. In the context of the development of extensive com-mercial networks, of new military technologies, of large-scale engineering endeavors such as the Arsenal of Venice, and of large building projects like the cathedral of Florence, a new class of scientist-engineers such as Brunelleschi, Leonardo and Galileo faced important technological chal-lenges. Addressing these challenges, they relied on theoretical knowledge from antiquity, the Islam-icate world and from medieval scholastics, which they combined with contemporary practical knowledge, thus transforming the established sys-tem of knowledge and creating a new form of science in which theoretical knowledge was sys-tematically related to experience.

In response to the encompassing religious worldview, the new knowledge accumulated by these scientist-engineers began to assume the char-acter of an equally all-embracing interpretation of the world, as can be found in the great philosoph-ical concepts of the early-modern period, for in-stance, in the works of Giordano Bruno or René Descartes. Science eventually became a kind of counter ideology by which the emerging bourgeoi-sie could defend its claims to power, not according to a transcendent, religious order, but according to immanent laws of nature and society. The new knowledge thus also assumed a normative dimen-sion.

This situation helps to explain why, in the six-teenth century, the reform of astronomy by Co-pernicus, placing the Sun rather than the Earth at the center of the universe, could have had such far-reaching ideological consequences: it occurred within a context of a socially dominant system of knowledge that claimed to be universal and exclu-sive. The geocentric worldview, placing the Earth at the center of the universe, was deeply anchored within this system of knowledge. Questioning this claim, even with good scientific reasons and without any intent of heretic provocation, still amounted to unhinging the whole system and thus causing an ideological revolution by means of an astronomical, and at the outset purely scien-tific innovation. In contrast, there was no com-parable revolution in seventeenth-century China

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when Jesuit missionaries introduced Copernican theory, or even Galileo’s telescope, which made the new view of the heavens so intuitively plausible. In Ming China, there was simply no combined reli-gious and philosophical worldview that this new discovery could potentially provoke.

In the early modern period, all the patterns of the globalization of science had essentially already formed within the European network of scientific knowledge. It was crucially shaped by Europe’s dense but culturally diverse urban landscape. The successful expansion of science within Europe could therefore create a model essentially followed by all later globalization processes of science, in-cluding the replication of institutional settings and canons of knowledge. The thus emerging network of scientific knowledge exhibited self-organizing behavior, as is evident in the fact that there was no central control of scientific practice, and yet scien-tific knowledge accumulated at an astonishing rate and traveled quickly across the emerging scientific community. Positive network externalities fostered the inherent dynamics of spreading science so that the more people engaged in it, the more useful it became. Science developed into a self-organizing network that inherently scales globally.

The globalization of knowledge today is a con-sequence of two processes: the intrinsic global-ization of science just described and the fundamen-tal role that knowledge, particularly scientific knowledge, has assumed in other, economic, polit-ical and cultural globalization processes. One im-portant result of the interaction between intrinsic and extrinsic processes of the globalization of knowledge is the emergence of global objects of science, in particular global human challenges such as climate change, scarcity of water, global food provision, reliable energy supply, sustainable demographic development and nuclear prolifera-tion.

The production of scientific knowledge in large-scale technological ventures, in global infrastruc-tures and regulations, or in worldwide operating enterprises has given rise to socio-epistemic com-plexes involving new epistemic communities. These socio-epistemic complexes such as the global energy or traffic systems cause changes on a global scale that cannot be easily undone. Governance of such socio-epistemic complexes requires the pro-duction of more and more scientific knowledge which becomes ever more inseparable from the development of policies relying on social and

economic knowledge and its normative reflection. Such socio-epistemic complexes may even endan-ger their ecological and social substrata – unless new scientific knowledge continually becomes available. In consequence, they sharpen the dilem-ma of human freedom, enhancing humanity’s potential to act but making the world increasingly dependent on the appropriate use of this potential.

It thus becomes clear that the much-discussed globalization processes of the present involve knowledge not just as a mere presupposition or consequence of economic or political processes. It is in fact the globalization of knowledge as a historical process with its own dynamics that orchestrates the interaction of all the underlying layers of globalization. The globalization of knowl-edge and its normative reflection profoundly in-fluence all other globalization processes – includ-ing the formation of markets – by shaping the identity of its actors as well as of its critics.

It is important, however, not only to investigate the globalization of knowledge and of normative thinking, but also to pay due attention to its counterpart, the localization of knowledge and norms in local processes of appropriation. Refer-ring such an analysis to the present we may perhaps regain autonomy with regard to the economic dimension dominating our current perception of these processes. An investigation of this kind may explain the sense in which the globalization of knowledge and its encounters with local knowl-edge has become a critical dimension of today’s globalization processes on which their future de-velopment depends. From this perspective, they may turn either in the direction of further subject-ing the economy of knowledge to the control of other globalization processes, or in the direction of strengthening the autonomy of knowledge and its normative reflection, and thus also our potential for steering such processes.

Knowledge and Normativity

To conclude, let me briefly come back to the relation between knowledge and normativity. The historical contingency of moral and epistemic judgments seems to make them utterly relative, leaving no room for universal standards. Yet, the global perspective that we have suggested makes it nevertheless possible to conceive of epistemic and normative developments within history as poten-

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tially representing collective learning processes. In ontogenetic development normative concepts such as justice emerge from children’s experiences with cooperation and the possibility of interchanging perspectives. The challenge is to scale up such experiences of reciprocity under global conditions for cultural learning.

From this perspective, the possibility of univer-salizing norms can only be the ever-partial result of historical processes that encompass the emergence and the vanishing of cultural experiments, a sed-imentation of these experiences in collective mem-ory, as well as a growing and ultimately global connectivity of human cultures. As a society, we may locally and temporarily establish whatever norms we like. Ultimately, however, with the growing global connectivity and the planetary impact of our collective actions in the Anthropo-

cene, the totality of these experiences will decide on the fate of the human species. Pursuing certain norms for social behavior and developing certain knowledge for dealing with our natural and soci-etal environment may eventually lead to our ex-tinction as a species; these were then evidently the wrong moral and epistemic norms.

This hindsight perspective suggests that a justi-fication of universal aspects of norms does not need to involve any form of transcendence but quite the contrary, that they could rather be founded on a lack of transcendence, with the realization that human life is ultimately nothing but a purpose unto itself.

n

Recommended Reading

The text is based to large extent on the following publications:n B, J (2012), The Spread of Buddhism as Globalization of Knowledge, in: R (2012) 245–267n C, K (2004), Shuchun Guo: Les neuf chapitres: le classique mathématique de la Chine ancienne et ses commentaires,

Paris: Dunodn D, P (1996), Abstraction and Representation: Essays on the Cultural Evolution of Thinking, Dordrecht: Kluwer

http://dx.doi.org/10.1007/978-94-015-8624-5n D, P (2012), The Origins of Writing and Arithmetic, in: R (2012) 153–173n E, N (2007), An Essay on Time, Dublin, Ireland: University College Dublin Press (Rev., complete English ed.)n E, B A. (2005), On their Own Terms: Science in China, 1550–1900, Cambridge, Mass.: Harvard University Pressn G, M (ed.) (2014), Melammu: The Ancient World in an Age of Globalization, Proceedings 7: Max Planck Research

Library in the History and Development of Knowledge, Berlin: Edition Open Accessn G, G (2012), Globalization of Ancient Knowledge: From Babylonian Observations to Scientific Regularities, in:

R (2012) 175–190n O, P D. (2014), Copernicus in the Cultural Debates of the Renaissance: Reception, Legacy, Transformation, Leiden:

Brilln N, H J., P D, R K. E (1993), Archaic Bookkeeping: Early Writing and Techniques of the

Economic Administration of the Ancient Near East. Chicago: University of Chicago Pressn P, J (2012), The Principles of Genetic Epistemology, London: Routledgen R, J (2007), Auf den Schultern von Riesen und Zwergen: Einsteins unvollendete Revolution. Weinheim: Wiley-VCHn R, J (2012), The Globalization of Knowledge in History. Studies 1: Max Planck Research Library in the History and

Development of Knowledge. Berlin: Edition Open Access (in particular, the Introduction and Surveys 1–4) http://www.edition-open-access.de/studies/1/toc.html

n R, J (2013), Florenz – Matrix der Wissenscha, in: Florenz!, München: Hirmer Verlag, 100–111n R, J (2014), Learning from Kushim about the Origin of Writing and Farming, in: K, K, A

S, C R, B M. S (eds.), Grain / Vapor / Ray, Cambridge MA: MIT Pressn S, M (2012), The Transmission of Scientific Knowledge from Europe to China in the Early Modern Period, in:

R (2012) 269–293n S, M (2012), The Creation of Second-Order Knowledge in Ancient Greek Science as a Process in the Globalization

of Knowledge, in: R(2012) 191–202

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Hartmut Leppin

Christianity and the Discovery of Religious Freedom*

Introduction

Religious tolerance is a normative concept of seminal importance for the self-perception of mod-ern societies; freedom of religion features among the human rights stipulated in the Universal Dec-laration of Human Rights. Thus, both appear to be accepted as concepts of global importance based on a European tradition. Nevertheless, it is very diffi-cult to define what the normative consequences of this concept are. In a minimalistic interpretation tolerance means that members, namely powerful members of a given society, agree to renounce on violence or suppression despite fundamental differ-ences. Some modern philosophers would add that tolerance can or should also be based on mutual respect or even esteem. 1 Tolerance as a way of dealing with people that are disliked is deeply connected with the idea of freedom of religion, which, however, is an individual right. Their com-plicated, twisted history is a central narrative of progress in modern western historiography. As we shall see Graeco-Roman antiquity was formative for this concept, but in an intricate way.

Let me sum up the master narrative very briefly: The medieval ›Dark Ages‹, so we are told, were shaped by Christians suppressing whatever they perceived as heresy, sometimes by brutal force. With the protestant reformation freedom of con-fession was claimed, but also fought. Confessional wars broke out, which were oen characterized by outbursts of cruel violence. Aer centuries of struggle and suppression and many failed attempts to find a solution, the idea of tolerance and the concept of individual religious liberty asserted

themselves as a result of the Enlightenment and developed into a basic concept of European iden-tity still held today. 2 Thus, religious liberty of the individual as well as governmental tolerance in regard to individuals and religious communities are among the achievements of European history that have been acquired during a long process of learning and every state that wants to join the European community is expected to ensure them.

The master narrative also makes passing refer-ence to other societies who are attested to have »already« been tolerant, such as India under Asho-ka in the third century BC; it also mentions the Moghul Empire under Akhbar in the 16th century, a time in which European states were divided by confessional wars. Another case in point seems to be pre-Christian Graeco-Roman antiquity, inter-preted as the first step of European history. Classi-cal antiquity was celebrated in various European societies when tolerance came to the fore; the freedom, the plurality, and the colorfulness of antiquity seemed to constitute a glittering contrast to gloomy Christian ages and the tolerance of polytheism shone magnificently against the back-drop of intolerant monotheism.

The pagan world indeed appears to be the embodiment of religious freedom. Every modern visitor to an ancient town will be overwhelmed by the variety of cult places for Jupiter, Juno, Serapis, the Great Mother, and other gods. They seem to coexist in complete peacefulness. It is still more impressive to see that Romans accepted and inte-grated cults of former enemies such as Isis, the Egyptian goddess who had been revered by the odious Cleopatra. The Romans did not even ban

* I am very grateful to Kai Preuß, Sophie Röder and especially to Egon Flaig for comments, Lisa Marie Wichern and Chris Rance for debarbarizing my English. This text is intended for a non-specialist readership and does not strive for completeness.

1 G (1984) 1. In contrast to Garnsey, F (2003) (= F[2013]), who pursues the theme

from antiquity until modernity, un-derlines the importance of respect or estimation in concepts of tolerance; for the history of the concept cf. B / S (1990); S / G (1999).

2 C (1992); H (2008); T(2010).

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62 Christianity and the Discovery of Religious Freedom

the cult of Mithras, a god of Persian background, although the Persian Empire was the prime enemy of Rome for centuries. 3

Against this background, the Christianization of the Roman Empire seems to be a turning point: the plurality of ancient cults disappears; sanctuaries are destroyed or supplanted by churches, a Chris-tian monoculture spreads over the Mediterranean world. Instead of ancient plurality prevailing, one religion that claims to possess the universal truth holds sway. 4 The Medieval Period, which, accord-ing to the traditional narrative, we understand to be the beginning of intolerance, commences.

It is therefore tempting to view tolerance 5 – or at least forbearance – as a hallmark of Graeco-Roman paganism, which seems to have conceded religious freedom to everybody; but this interpre-tation, which extols antiquity as a paradigm of a free society, is more problematic than it might seem at first glance. The practice of tolerance went as far as letting various cults coexist as long as there was no reason to suppress them, but there was no explicit concept of tolerance. Only with the spread of Christianity, which for various reasons could not simply coexist with other cults, the problem was conceptualized with two consequences: On the one hand freedom of religion was postulated as a fundamental right of humans. On the other hand the Roman state occasionally granted tolerance. This was only a short, but powerful moment in history that created concepts that would enrich European debates centuries later. 6

The suppression of the Bacchanalia

There is no doubt that there were limits to religious freedom in Rome. Let me give just two

examples that may illustrate the problem of so-called pagan tolerance. Our first example comes from the year 186 BC. It was an epoch when Rome had asserted itself as the predominant power in the Mediterranean world: the whole of Italy was under Roman control. Greece had been conquered and granted liberty by the successful Roman gen-eral Quinctius Flamininus. In reality this meant Roman control since under the label of liberty every Greek town was independent and hence forbidden to form alliances that might challenge Rome. Moreover, in 188 the great king of the Seleucid Empire, Antioch III, had been defeated. No rival power remained in the Euromediterra-neum.

The honorable members of the Roman senate could be proud and feel safe, one might think, but they became nervous when they got notice of strange things taking place in Campania. This was a region where several prosperous towns ex-isted, which were formally allied with Rome, but de facto depended on her. The strange incidents that worried the Roman senators were called Bacchana-lia, the cult of Bacchus. Bacchus corresponded with Dionysus, the Greek god of wine who could also be identified with the traditional Roman god of Liber. In Campania something went wrong that forced the senate to intervene and issue new regulations in regard to this cult. They were engraved in a bronze tablet that has been preserved by chance: It was found in Tiriolo, a small Campanian town, where somebody decided to save this senatorial decree in an enduring form. 7

From a modern point of view, it might come as a surprise that the Roman senate intervened at all. This, however, is characteristic of Roman society since it did not presuppose the idea that religion had to be protected against political intervention.

3 There is a vast amount of literature on ancient religion(s), see for example O (ed.) (2007); R (2007); R (ed.) (2007); L (2014).

4 On the concept of Christianization(s) L (2012).

5 K (2009) gives a rich overview about the discourses on tolerance in late antiquity. The book is funda-mental for any further research on this topic, including this article. Kahlos distinguishes between for-bearance as »an attitude of patience towards ideas, practices and persons of whom one disapproves« whereas

toleration presupposes the incessant continuation of disagreement (8). K (1977)

6 The word tolerare and its derivatives were not used in antiquity in the sense of tolerance; tolerantia means the ability to suffer steadfastly; cf. C (2009) 335. Interestingly, the German Grundgesetz which under-lines the importance of human rights and religious liberty (esp. GG Art. 4, Abs. 1 f.) does not use the word Toleranz.

7 Sources: Corpus Inscriptionum Lati-narum I2 581 (Inscriptiones Latinae

Selectae 18); cf. Cicero, De legibus 2,37; the episode is also described by Livius 39.8–19, who, however, gives an account in the spirit of the time of Augustus and should not be trusted too much. Again, there is a lot of literature: P (1988); B /N / P (1998) 91–96; T(2000), underlining the political context; for the religious context C (2000a); K (2004) 297–304, who rightly underlines that polytheistic societies are capable of religious persecution.

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The citizens of a town were also a religious com-munity and the religious organization depended on the political one. Public cults, sacra publica, were entertained by the state, the center of which was formed by the senate. Public institutions nominated the priests responsible for the cults. Major priests were at the same time high magis-trates for whom the investment with the dignity of a priesthood formed an important step in their career. There existed no professional clergy; reli-gious and political elites coincided to a high de-gree. 8

Consequently, it was the duty of the political elites to preserve the pax Deorum, the peace with the gods, which was fundamental for the salus rei publicae, the welfare of the state. 9 The peace with the gods was first of all guaranteed by the correct performance of the sacra publica, ensured by the senate. It could be endangered by malpractices of groups and individuals. The Bacchanalia of Campa-nia seem to have been regarded as a danger of this kind. Thus, there could be no doubt that the senate had to be involved.

In regard to religious tolerance, this means that with the exception of the sacra publica every cult was in a precarious situation since the Senate could feel obliged to intervene. The adherents of the Bacchanalia could not claim to have been allowed to practice their cult or to possess the fundamental right to do so. Their practices had been forborn, but now they were subject to regulations of the Senate in a way that is characteristic of civic religion in the Graeco-Roman world.

What did the senate decree? The central propo-sition is the following: None of them shall seek to have a Bacchic shrine. But if there are some who say that it is essential for them to have a Bacchic shrine, they should appear before the urban praetor (who was a high magistrate responsible for the inner peace)

in Rome, and our senate, when it has heard their case, should pass a decree on this matter, so long as no less than one hundred senators are present when the matter is considered. 10 The first sentence seems to express a general prohibition that is cut back in the next. By defining a procedure, the senate admits a pos-sibility to secure a place for the Bacchanalia. It is no coincidence that the decree begins with the orga-nization of space. Locality was a central principle of most ancient religions. Certain gods could only be venerated at certain places.

Equally characteristic is the group of the people named in the next paragraph not quoted here: Roman citizens and people who held the Latin citizenship, which was a lesser form of Roman citizenship, or allies – various groups belonging in different ways to the complex political organiza-tion of Rome. The senate did not intend to pass a regulation that affected all human beings. Reli-gious practices were indissolubly connected with the idea of citizenship in its highly differentiated expressions.

The next passage reveals what the decree is all about: No man shall be a priest; no man or woman shall be a master. None of them shall seek to have money in common. No one shall seek to appoint either man or woman as master or acting master, or seek henceforth to exchange mutual oaths, vows, pledges or promises, nor shall anyone seek to create mutual guarantees. No one shall seek to perform rites in secret, nor shall anyone seek to perform rites in public or private or outside the city, unless he has approached the urban praetor and is given permission with a senatorial decree, so long as no less than one hundred senators are present when the matter is considered. 11

This paragraph exhibits the same structure as the first: A general prohibition is attenuated by the ensuing remarks that show the senators would not accept the emergence of a new religious associa-

8 The importance of public cults does not exclude processes of individuali-sation that are for example visible in mystery cults.

9 For this concept N (2006) 116.

10 l. 3–9: Neiquis eorum [B]acanal habuise velet. seiques esent, quei sibei deicerent necesus ese Bacanal habere, eeis utei ad pr(aitorem) urbanum Romam venirent, deque eeis rebus, ubei eorum v[e]r[b]a audita esent, utei senatus noster decer-neret, dum ne minus senator[i]bus C

adesent, [quom e]a res cosoleretur. Bacas vir nequis adiese velet ceivis Romanus neve nominus Latini neve socium quis-quam, nisei pr(aitorem) urbanum adie-sent, isque [d]e senatuos sententiad, dum ne minus senatoribus C adesent, quom ea res cosoleretur, iousisent Translations by B / N / P (1998).

11 L. 10–18: sacerdos nequis uir eset. Ma-gister neque uir neque mulier quisquam eset. neve pecuniam quisquam eorum comoine[m h]abuise velet. Neve magist-ratum, neve pro magistratu[d], neque

virum [neque mul]ierem qui[s]quam fecise velet. Neve post hac inter sed co-nioura[se nev]e comvovise neve con-spondise neve conpromesise velet, neve quisquam fidem inter sed dedise velet. Sacra in [o]quoltod ne quisquam fecise velet. Neve in poplicod neve in preiva-tod neve exstrad urbem sacra quisquam fecise velet, nisei pr(aitorem) urbanum adieset, isque de senatuos sententiad, dum ne minus senatoribus C adesent, quom ea res cosoleretur, iousisent.

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tion. The traditional order has to be preserved, in regard to gender as well as to political organiza-tion. Secret rites are generally forbidden and other practices are subject to approval by the senate.

There was a name for religious deviance, super-stitio, which lives on in the English word super-stition. The meaning of the Latin term that indi-cates excessive fear of the gods includes foreign cults in a derogatory sense. They could be sup-pressed since they were regarded as dangerous for the whole society. 12 The decree, however, does not use this word to disparage the Bacchanalia. The regulations for the Bacchanalia decreed by the senate were not based on the idea that the cult was false; the notion of true religion did not come in. The senate envisaged only those effects of a certain cult that might be dangerous to society. Conse-quently, there is no hint that its members intended to eliminate the Bacchanalia; the whole set of measures is only about restrictions. 13

This is again characteristic of the religious situ-ation in Rome. We know of a number of prohib-itions of religious practices. Acts like these are not denounced as scandalous by our sources, but men-tioned as something that occurs and has to occur under certain circumstances. 14 Yet, these measures never aim at the complete elimination of deviant religious groups as they enacted only constraints. One famous exception might be adduced: the destruction of the temple of Jerusalem in 70 AD under Vespasian: But there is no indication that the emperor planned to eradicate Jewish cult practices, which he supported otherwise. He probably only wanted to destroy this sanctuary in order to leave no doubt over his smashing victory and to demol-ish a building that had also served as a military bulwark. 15

There are more details in the senatorial verdict against the Bacchanalia that I will pass over since

the picture is clear: the honorable members of the Roman senate had issued a decree that took into account what was important for Roman religion. Moreover, they had successfully asserted their right to intervene in the affairs of this kind in Italy, which was of the highest importance in terms of politics. 16 They could be proud of themselves – as they liked to be.

The decree on the Bacchanalia allows practicing a certain religious cult. This was, however, not perceived as an individual right, but as a political concession. Nevertheless, it proved difficult for the senate to couch this adequately. They begin with a general prohibition, only to cut it back in the next sentence: on the basis of a petition to the praetor urbanus the senate can allow exceptions. These circumstantial handlings were probably necessary: obviously, complete liberty to organize religious practices existed in principle. But this was not said explicitly nor defined as an entitlement guaranteed by any law or institution and could be abolished by the senate, which was then also entitled to make exceptions.

Ironically, the position of the adherents of Bac-chus had seemingly improved: if the senate agreed, they could now claim that they had the right to conduct their rituals. As a philosopher in the tradition of the Frankfurt School of Critical Theory Rainer Forst distinguishes four conceptions of tolerance. 17 The weakest (and perhaps historically most important one) is tolerance of permission. This is the case when an authority or a majority permit a minority to live according to their con-victions as long as they do not question the polit-ical order. The most famous case is that of the Edict of Nantes of 1598 that allowed the Huguenots freedom of worship until it was revoked by the Edict of Fontainebleau in 1685. This weak form of tolerance was what had been achieved in 186 BC,

12 Cicero, De natura Deorum 1.117; N (2002) (in regard to Christians); R (2011a) 9–14 and 49–76; for the treatment in law s. for example Digesta 48.19.30 (Marc Aurel). The suppression of the Celtic Druids (Pli-nius, Naturalis historia 30,15; Sueto-nius, Vita Claudii 255) should be interpreted in this context. The de-struction of sanctuaries as narrated in Tacitus, Annales 14,30 is the reaction to military resistance supported by Druids.

13 It is difficult to say whether the regu-lation of the cult of Dionysus (Corpus des ordonnances des Ptolémées 29 = Berliner Griechische Urkunden VI 1211 = Sammelbuch III 7266) by Ptolemy IV (222/1 – 204 BC) should be connected with this event; cf. H(2001) 454–456.

14 See for example T (1995) 56–70; D (2003) 120 f. and 131 f. Other restrictions of cults are discuss-ed in R (1995) 357–358. R (2013) discusses meta-religious

concepts in order to deal with reli-gious plurality in the Roman Repub-lic.

15 R (2005).16 T (2000); C (2000b)

(for the meaning of foederati in this context).

17 F (2003) 42–48.

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Hartmut Leppin 65

but interestingly only on the basis of a prohibition that had to precede the permission. This is quite a different concept of tolerance than in early modern Europe. On the other hand, there was no general ban on foreign or on new cults in Rome explicitly, be they introduced by the state or by private agents. 18 With the growing complexity of society the Romans had a choice beyond and in addition to the civic cults, a situation that has been com-pared to a market. 19 Individuals could combine various cults; they could feel attached to several gods and practices without being forced to give a preference to one of them. What might be called tolerance went so far. But they had no right to religious freedom and there was no law guarantee-ing the toleration of cults.

The persecution of Christians

As it is impossible to trace the whole range of ramifications of the problem here, 20 we have to move on in time rapidly, to the year 250 AD, more than 400 years aer the regulation of the Bac-chanalia. The Roman Empire had grown; the Re-public had turned into a stable monarchy that seemingly retained most of the Republican tradi-tions in regard to religion. But now, in the mid third century, Rome was under attack on various borders and the state reacted in an imposing way. In 250, during the first year of the reign of Emperor Decius, a certain Aurelia Bellias, daughter of Pe-teres, and her daughter, Kapinis, appeared before the commission in charge of the sacred victims and sacrifices in the Egyptian village of Theadelphia. They assured the jury that they had constantly sacrificed; now they poured a libation, sacrificed and ate from the victim before the eyes of the commission; finally, they asked for the certificate that documented this. The commission, consisting of Aurelius Serenus and Aurelius Hermas, did its duty and released the certificate on a papyrus. A certain Hermas signed it in person, as one may

decipher on the papyrus that has survived in the dry conditions of the Egyptian desert, an incon-spicuous testimony of a dramatic period. 21

Certificates of this kind are only known from the reign of Decius (249–251), who had, it appears, ordered all Roman citizens to conduct sacrifices to pagan gods. They bear testimony to a highly un-usual measure that nevertheless is the consequence of significant developments in Roman religious history. We do not know exactly what the Edict of Decius entailed, but there can be no doubt that the sacrifices were supposed to placate the gods, to restore pax Deorum. 22 Since those living in the 3rd century experienced a military crisis and were used to interpreting crises as expressions of divine wrath, an answer in terms of religion suggested itself.

It is unclear whether Decius intended to perse-cute Christians; perhaps he only wanted to stage an impressive manifestation. But the Christians could not help but interpret this as a persecution: it was widely known that Christians declined to offer sacrifices because of their religious convic-tions. They believed only in one true God, who forbade the cult of any other divine being, and they claimed the right to decide themselves which belief was true instead of relying on tradition and political authorities. Some Christians had been punished for their defiance of traditional practices, but there had never been a systematic persecu-tion before, except for certain local events such as the persecution in Lyon under Marcus Aurelius (161–180). 23 Under Decius, many Christians – but not all of them – refused to sacrifice and were duly punished, oen executed. This was a short thunderstorm and with the death of Decius in 251, the obligatory sacrifices seem to have come to an end.

The interpretation of the episode is controver-sial: even if the persecution of Christians that resulted from Decius’ edict was intentional, one thing is clear: Decius did not take measures to eliminate Christianity. He only wanted the Chris-

18 Cf. Digesta 47.22.1.1 (Marcianus).19 For the market place model and its

limitations see e. g. N (1992).20 A (2011) 149–159 gives a useful

sketch of the history of the problem of religious restrictions during the late Republic against the background of the Roman idea of libertas.

21 Papyrus Oxyrhynchus IV 658.22 R (1999); B (2006),

who underlines the act of loyalty to the emperor which was also con-nected to this sacrifice.

23 Eusebius, Historia ecclesiastica 5.1.

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tians to offer sacrifices. He did not destroy Chris-tian buildings, he did not imprison clerics system-atically, and he did not burn their scriptures – provisions that would be taken later by other rulers. Perhaps he did not even sense that numer-ous Christians felt they were being hit hard by his edict since there had been Christian participation in public festivals in the past, which by necessity also had pagan implications. 24

Decius’ edict on the sacrifices was outrageous not only for Christians of antiquity, but also from a modern point of view. People were forced to conduct a religious ceremony. But the obligation to participate in civic cults had always been cus-tomary in classical societies because the pax Deorumhad to be maintained. We know of several laws from various towns from Hellenistic times that ordered all citizens to join in certain processions or festivals. Some even regulated the attire to be worn by the participants. 25 But these phenomena must again be interpreted against the background of civic religion. The participation was the conse-quence of holding the status of citizen. As long as this was perceived as an honor, the problem of constrain did not come in. Perhaps some people were negligent and preferred to stay at home, which necessitated the ruling of those laws, but there could be no doubt that citizens as a religious community had to take part in those festivals; the laws were an appeal to civic responsibility. For non-citizens, they were of no relevance.

Under the principate, Roman religion was con-fronted with new challenges. With the expansion of the Roman Empire now spanning over hun-dreds of cities, things changed gradually. In prin-ciple, all the inhabitants of the empire were ex-pected to take part in sacrifices although there was no imperial organization of sacrifices. Christians

notoriously refused to do so, even under the pressure of capital punishment. An anxious letter to the emperor Trajan (98–117) written by the unnerved governor of Bithynia and Pontus, Pliny, illustrates how difficult it was to deal with those recalcitrant people who declined any sacrifice. The emperor enjoined capital punishment for those who continued in their attitude, but ordered not to search for them systematically. 26 Although the emperor disapproved of organized enforcement, the obligation remained with everybody.

The principate brought a new religious phe-nomenon: The cult of the emperor that grew from several roots had begun under Augustus and stead-ily gained in importance. It was an oecumenical cult since it comprised every inhabitant of the empire; even slaves were expected to take part. 27Furthermore, various practices and cults grew more similar. The result has been called Reichsreli-gion (imperial religion). 28 The emergence of this should be seen within the context of Romaniza-tion, the expansion of Roman urban statutes and the growing diffusion of cults in the peaceful empire with its excellent means of communica-tion. This resulted in a certain degree of religious homogenization. Reichsreligion did not, however, constitute a compact system of doctrines; there was no imperial priesthood spanning the whole em-pire. The emperor was pontifex maximus, but this role affected only Roman cults. Reichsreligion was not an imperial organisation, but the result of a process of assimilation that originated in various parts of the empire, not only in Rome.

When Caracalla (211–217) bequeathed citizen-ship on almost all inhabitants of the Roman Empire with the Constitutio Antoniniana, the em-pire was transformed into a kind of polis. Conse-quently, he requested all the new citizens to cele-

24 This seems to be implied in Tertul-lian, De idololatria 13. But he does not decry Christian participation in sacrifices.

25 See e. g. Inscriptiones Graecae XII 9.192 = Sylloge Inscriptionum Grae-carum3 323,5–6 = Sokolowski, Sup-plément 46,6–8 = Supplementum Epigraphicum Graecum 40,75810–13 (Eretria, 3./2. c. BCE); Orientis Graeci Inscriptiones Selectae 219,20 f.= In-schrien von Ilion 32,30–32 (Ilion, 3./2. C. BCE; cf. Supplementum Epi-graphicum Graecum 41,1053); In-schrien von Priene 507 = Orientis

Graeci Inscriptiones Selectae 222 = Inschrien von Erythrai 504,34–36 = Supplementum Epigraphicum Grae-cum 41,988 (Clazomenae; 268–262 BCE); Inschrien von Priene 11,21 f. (about 297 BCE). The same holds true for the supplicationes in Rome, cf. H (2007) 238. See in general for the problem of compulsivity in Greek and Roman religions before the principate K (2004) 230–325 with the important review by S (2007).

26 Plinius minor, Epistulae 10.96–7. Still fundamental R (1995).

27 F (1987–2004); G(2002); C / H (eds.) (2003); the perception of the emperor as god has been underlined by C(1999).

28 R (2011b).

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brate with him. 29 The Roman Empire had turned into a gigantic cultic community – with the ex-ception of some stubborn Christians and Jews who nevertheless enjoyed the interest of the imperial family. 30 This form of paganism, which affected the whole oikoumene and the civilized world of that time, might be called oecumenical paganism. 31

Speaking about freedom of religion

Oecumenical paganism, if understood in this sense, did not suspend the principle of religious locality, but it went beyond the borders of locality and of specific cults. The concept of religion had thus broadened and gained a more generalized character. It was in this historical context that the discourse on religious freedom came to the fore and the phrase libertas religionis, freedom of reli-gion, was used or better: is attested for the first time in history. This Latin phrase had, as far as I can see, no precedence in Greek; in fact, it seems to have been the invention of the Latin-speaking culture.

The first author we know of to use this phrase was Tertullian, a Christian from Carthage who had received an excellent education in law and who was a prolific writer. He did not occupy an office in the church. Instead, his authority was based on several rhetorically brilliant texts that discuss the relationship between Christians and their social environment with the intention to strengthen the barrier between Christians and pagans. In 197, several years before the Constitutio Antoniniana, he composed an apology formally addressed to

the Roman governor that laments attacks on Christians. Having shown that the pagan gods are only demons he goes on in a seemingly gen-erous way: Let one man worship God, another Jove; let this man raise suppliant hands to heaven, that man to the altar of Fides; let one (if you so suppose) count the clouds as he prays, another the panels of the ceiling; let one dedicate his own soul to his god, another a goat’s. Look to it, whether this also may form part of the accusation of irreligion – to do away with freedom of religion, to forbid a man choice of deity, so that I may not worship whom I would, but am forced to worship whom I would not. No one, not even a man, will wish to receive reluctant worship. 32

Tertullian speaks about freedom of religion that expresses itself in multifarious religious practices and which one could also translate as ›freedom of worship‹. It is not a right conceded by the state, but a consequence of the will of the gods to be worshipped properly. 33 The question of doctrine, so typical for Christians, is not addressed by Tertul-lian here, which does not mean that he was unaware of the problem. But in this passage he is discussing what used to be done in his environ-ment and these were mostly traditional rituals. Tertullian observes the variety of rituals that in part seem odd, and claims for the Christians the same freedom to worship their god that the others possessed.

The concept of religious freedom cannot have been completely new. Tertullian expects his audi-ence to understand what he means. It was widely held that worship is only acceptable if performed willingly. This goes back to Stoic conceptions of ethical actions that are expected to be autono-

29 Papyrus Gissensis 40 I, 3–8. The Seve-ran author Cassius Dio puts a speech in Maecenas’ mouth that is in fact a theory of monarchy. According to him, the emperor should force his subjects to practice religion in a tra-ditional way and ban foreign cults (52,36,1f); for the Severan back-ground s. M (1979) 21–25.

30 See R (2011).31 I take this word (oikoumenikós in

Greek) from the organization of the participants in Greek competitions (agônes), see M (2001) 456–463; S / P (2006); but see also Aelius Aristides, In Rome 10 f.

32 Tertullian, Apologeticum 24.5 [5] Colat alius deum, alius Iovem; alius ad

caelum manus supplices tendat, alius ad aram Fidei manus; alius (si hoc putatis) nubes numeret orans, alius lacunaria; alius suam animam deo suo voveat, alius hirci. [6] Videte enim, ne et hoc ad irreligiositatis elogium concurrat, adi-mere libertatem religionis et interdicere optionem divinitatis, ut non liceat mihi colere quem velim, sed cogar colere quem nolim. Nemo se ab invito coli volet, ne homo quidem. Transl. by T. R. Glover; see now the extensive commentary by G (2011) 409–411; see also B (1985) (for the context in Tertullian’s œuvre), and A(2011) 160–163 for the implications of libertas. For the comparison with Jewish ideas cf. S (1998).

33 T (2010) 212, underlines that the problem is defined by the Nach-frageseite. This essay is also an impres-sive introduction into the question of the renaissance of religious liberty in the early modern history of the occi-dent (esp. 242–248).

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mous; 34 but Tertullian is the first thinker we know of to interpret this as an argument for freedom of religion in a general sense. He wants the Christians to be allowed to do whatever they deemed right in religion. In a treatise composed 15 years later, in 212, while not picking up the phrase libertas religionis, he repeats the argument that religion should be practiced willingly and defines this even as ius humanum. The translation of this phrase as human right is suggestive (and by no means false), but it gives the wrong impression that Tertullian bases his reasoning on a consistent concept of human rights that developed much later. Never-theless, the idea that this right should be regarded as something that was beyond political control had been articulated. 35

The other claim in Tertullian’s text, not to differ-entiate between Christians and others in religious questions, was by no means new. A generation earlier, under Marcus Aurelius, the Christian apol-ogist Athenagoras of Athens had already under-lined that all the various peoples of the empire were allowed to follow their traditions, except for the Christians. 36 This was a plea of tolerance in the traditional sense: Christians were to be regarded as an ethnos, a nation, as others were, namely the Jews. 37 One could term this attitude ethnic toler-ance. The necessity to act in this sense must have seemed self-evident for many people in ancient society. Already Herodotus had reflected the diver-sity and the similarity of the cults in various ancient groups. Most of them could be interpreted as mutually inclusive against the backdrop of the idea of interpretatio Graeca sive Romana. Jews were different. Even if they were justified by the age of their tradition, Christians could feel entitled to claim a similar position.

With oecumenical paganism, which was be-yond ethnic concepts, the terms of trade had changed. Consequently, Tertullian had to articulate a plea that was more general in character, libertas religionis. There is one thing in this episode that harks back to the Bacchanalia affair: Religious

freedom is something that seems to simply exist. It can be taken away (adimere), but this is against the will of the gods. Tertullian’s argument is not based on the idea of the protection of the individ-ual from religious coercion. Rather, he asks the rhetorical question whether the being adored will like to be worshipped unwillingly. This means that the rituals will not work. Therefore, taking away religious freedom is a kind of sacrilege or irreligion. He called it irreligiositas, a word that he might have invented himself. Tertullian focuses on the success of religious practices, not on person-al freedom. Moreover, the concept is not central to Tertullian’s argument; it is not even the climax since he aerwards highlights that the absurdities of Egyptian and other foreign cults are allowed, but not the cult of his only true god.

One could even make a more radical proposi-tion, which might sound cynical at first: religious freedom was not interesting for Christians since persecutions offered an exciting alternative, mar-tyrdom. Christians who were killed because of their belief were regarded as holy. In a strictly Christian sense this was better than simply con-tinuing to live. Tertullian’s request is therefore not a wholehearted plea for intellectual freedom in the sense of Marquis Posa in Schiller’s Don Karlos, it is rather a rhetorical device to show the inconsistency of pagan religious politics in his times. But the fact that the idea had been articulated is important in itself because the idea was in the world and could be used in a more general sense.

Considering these points, it comes as no sur-prise that libertas religionis, which was to have a great history in later epochs, was not a ground-breaking concept in antiquity. Tertullian’s phrase remains isolated. Other writers did not return to it for a long time. Only decades later, at the begin-ning of the 4th century, another Christian thinker, Lactantius, discussed the question of religious free-dom. Although he does not use the phrase of libertas religionis, he speaks about libertas several times in the context of religion, underlining that

34 C (2005) 98 f.35 Tertullianus, Ad Scapualm 2.2; cf.

C (2009).36 R (2009); K (2009) 21 f.37 Cf. the successful speech of Nicolaus

of Damascus before Agrippa in de-fense of the religious rights of Jews, Flavius Iosephus, Antiquitates Iudai-

cae 16.31–57, esp. 35 f. and 41 f.; for forbearance towards Jews K(2009) 14–19.

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true religion is only possible if it is voluntary and not enforced. Lactantius is more elaborate than Tertullian, but again religious freedom is not defined as a value in itself, but as an argument to highlight the futility of violence in the field of religion. 38 Passages such as those might work as a justification of religious plurality, even if Lactan-tius is convinced that there was only one true religion. His plea, however, is primarily an argu-ment against religious persecution as suffered by the Christians in those days and not the master plan for establishing a tolerant society. He did not find an intellectual successor in antiquity.

A window of opportunity?

Nevertheless, by the time Lactantius was writ-ing Christians had experienced decades of peace that had put an end to the persecution of Chris-tians initiated by Valerianus in 257. Whereas the anti-Christian intention of Decius’ measures had remained unclear, this persecution turned against Christians deliberately, focusing on meeting places, Christian functionaries and members of the upper orders who had converted to Christianity. 39 Only three years later Valerian was captured by the Persians – the ultimate humiliation for a Roman leader – and his son and successor Gallienus stop-ped the persecution, apparently allowing every-body to do what suited their tradition (tà ex ethous epiteleîn). Since tradition was fundamental for ethnic identity, the emperor seems to subscribe to the concept of ethnic tolerance. The church histo-rian Eusebius calls the result freedom (eleuthería), but restricts his comments to the restitution of Christian property. 40

Some forty years later Diocletian launched a systematic persecution of Christians that was to last several years. This is the time when Lactantius pinned down his ideas about religious freedom. At the end of this persecution in 311 a formal edict was issued by the tetrarchs, among them Galerius

whom Christians, most polemically Lactantius, regarded as the key figure in the persecution. Diocletian himself had abdicated before. Let us take a closer look at it: Among other arrangements which we are always accustomed to make for the prosperity and welfare of the republic, we had desired formerly to bring all things into harmony with the ancient laws and public order of the Romans, and to provide that even the Christians who had le the religion of their fathers should come back to reason; since, indeed, the Christians themselves, for some reason, had followed such a caprice and had fallen into such a folly that they would not obey the institutes of antiquity, which perchance their own ancestors had first established; but at their own will and pleasure, they would thus make laws unto themselves which they should observe and would collect various peoples in diverse places in congregations. We are still in the middle of a long Latin sentence, nevertheless, I will allow myself an interjection, as Galerius is describ-ing exactly what was specific about Christianity: Christians claimed to make their own decisions even if those choices went against tradition. 41 In contrast to the suggestion in Gallienus’ order Christians are not interpreted as representatives of a tradition. Galerius pursues his lament force-fully:

Finally when our law had been promulgated to the effect that they should conform to the institutes of antiquity, many were subdued by the fear of danger, many even suffered death. And yet since most of them persevered in their determination, and we saw that they neither paid the reverence and awe due to the gods nor worshipped the God of the Christians, in view of our most mild clemency and the constant habit by which we are accustomed to grant indulgence to all, we thought that we ought to grant our most prompt indulgence also to these, so that they may again be Christians and may hold their conventicles, provided they do nothing contrary to good order. But we shall tell the magistrates in another letter what they ought to do. Wherefore, for this our indulgence, they (sc. the Christians) ought to pray to their God for our safety, for

38 Lactantius, Institutiones divinae 5.19–21, esp. 19.11 (cf. 5.13 on the boost of the Christian religion thanks to persecution); Epitome 49; D D (1998) esp. 142 f.; W (2006) 306–319. There is a similar argument in the contempo-rary author Arnobius, Adversus na-

tions 2.65, cf. K (2009) 48 f., who, however, does not use the phrase libertas religionis.

39 S (1989); G (2014).40 Eusebius, Historia ecclesiastica 7.13.41 But Manicheans, who are unfortuna-

tely neglected in this article, posed a similar problem, see the wording pro

arbitrio suo in an anti-manichean law by Diocletian (Mosaicarum et Ro-manarum legum collatio 15.3.3 = Fontes Iuris Romani Anteiustiniani II2 580).

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that of the republic, and for their own, that the republic may continue uninjured on every side, and that they may be able to live securely in their homes. 42

This edict does not proclaim toleration in gen-eral, but grants it to the Christians solely as an act of indulgence. It is not about individual religious freedom as a personal right even if Christians now enjoyed the freedom to pray to their God. The emperor’s reasoning is remarkable: it would have been a better result of the persecutions if all Christians had returned to the old customs. Since this was not possible, they should at least revere their own god – this thought is obviously based on the concept of pax Deorum. And Galerius saves face by enjoining something to the Christians, to pray for the emperor and the state (which they claimed to do anyway). But as the senate had done 500 years before Galerius feels entitled to set rules that affect what we would regard as the inner affairs of a religious community. Consequently, Galerius did not extol the worth of religious freedom, but accepted what was unavoidable, perhaps he even felt obliged to justify his measures before the traditionalists.

Two years later, in 313, when Galerius was dead and Constantine the Great and Licinius had be-come rulers of the whole empire, they met at Milan to discuss the consequences of the end of the persecution. Their agreement, which is here ad-dressed to a governor, begins in a high tone: When I, Constantine Augustus, as well as I, Licinius Augus-tus, fortunately met in Milan, and were considering

everything that pertained to the public welfare and security, we thought –, among other things which we saw would be for the good of many, those regulations pertaining to the reverence of the Divinity ought certainly to be made first, so that we might grant to the Christians and others full authority to observe that religion which each preferred; whence any Divinity whatsoever in the seat of the heavens may be propitious and kindly disposed to us and all who are placed under our rule. And thus by this wholesome counsel and most upright provision we thought to arrange that no one whatsoever should be denied the opportunity to give his heart to the observance of the Christian religion, of that religion which he should think best for himself, so that the Supreme Deity, to whose worship we freely yield our hearts may show in all things His usual favor and benevolence. Therefore, your Worship should know that it has pleased us to remove all conditions whatsoever, which were in the rescripts formerly given to you officially, concerning the Christians and now any one of these who wishes to observe Christian religion may do so freely and openly, without molestation. We thought it fit to commend these things most fully to your care that you may know that we have given to those Christians free and unrestricted opportunity of religious worship. When you see that this has been granted to them by us, your Worship will know that we have also conceded to other religions the right of open and free observance of their worship for the sake of the peace of our times, that each one may have the free opportunity to worship as he pleases; this regulation is made we that we may not seem to detract from any

42 Lactantius, De mortibus persecutorum 34: Inter cetera quae pro rei publicae semper commodis atque utilitate dispo-nimus, nos quidem volueramus antehac iuxta leges veteres et publicam discipli-nam Romanorum cuncta corrigere atque id providere, ut etiam Christiani, qui parentum suorum reliquerant sectam, ad bonas mentes redirent, 2 siquidem quadam ratione tanta eosdem Christia-nos voluntas invasisset et tanta stultitia occupasset, ut non illa veterum instituta sequerentur, quae forsitan primum pa-rentas eorundem constituerant, sed pro arbitrio suo atque ut isdem erat libitum, ita sibimet leges facerent quas observa-rent, et per diversa varios populos con-gregarent. 3 Denique cum eiusmodi nostra iussio extitisset, ut ad veterum se instituta conferrent, multi periculo sub-

iugati, multi etiam deturbati sunt. 4 Atque cum plurimi in proposito perse-verarent ac videremus nec diis eosdem cultum ac religionem debitam exhibere nec Christianorum deum observare, contemplatione mitissimae nostrae cle-mentiae intuentes et consuetudinem sempiternam, qua solemus cunctis ho-minibus veniam indulgere, promptissi-mam in his quoque indulgentiam nostram credidimus porrigendam. Ut denuo sint Chrsitiani et conventicula sua componant, ita ut ne quid contra disci-plinam agant. 5 <Per> aliam autem epistolam iudicibus significaturi sumus quid debeant observare. Unde iuxta hanc indulgentiam nostram debebunt deum suum orare pro salute nostra et rei pub-licae ac sua, ut undique versum res publica praestetur incolumis et securi

vivere in sedibus suis possint. Trans-lation according to http://www.fordham.edu/halsall/source/edict-milan.asp; for the Greek version cf. Eusebius, Historia ecclesiastica 8.17.6–10.

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dignity or any religion. 43 It is the first time in history that rulers expressly concede general and unquali-fied religious freedom 44 – although Gallienus’ edict might have sounded similar. The text is imbued by the rhetoric of liberty and decision. But it is quite different from what modernity considers as freedom of religion: The main reason for the rulers to grant freedom is peace, not the idea of an entitlement of individuals to religious freedom. And it is peace of our times, as they say; this is not a law that is based on fundamental norms, but an agreement that answers to current problems. The ensuing paragraphs of the text are dedicated to regulations about Christian property that had been seized during the persecutions.

On a practical level the agreement of Milan offered solutions for disputes about property rights that had emerged from the persecutions. Never-theless, the edict stands out as a sign of how far Romans could go politically in regard to religious freedom. But it did not develop into a fundamental principle of the late antique state. It is an isolated example more cherished by later generations than by contemporaries.

In the eastern part of the empire Maximinus Daia, a tetrarch who seems to have lent his support to a renaissance of pagan cult, 45 granted tolerance to Christians aer the issue of the Galerius edict, but with restraints. Among them the following stands out: Reacting to complaints about Chris-

43 Lactantius, De mortibus persecutorum 48: Cum feliciter tam ego [quam] Con-stantinus Augustus quam etiam ego Li-cinius Augustus apud Mediolanum convenissemus atque universa quae ad commoda et securitatem publicam per-tinerent, in tractatu haberemus, haec inter cetera quae videbamus pluribus hominibus profutura, vel in primis or-dinanda esse credidimus, quibus divini-tatis reverentia continebatur, ut daremus et Christianis et omnibus liberam potes-tatem sequendi religionem quam quis-que voluisset, quod quicquid <est>divinitatis in sede caelesti nobis atque omnibus qui sub potestate nostra sunt constituti, placatum ac propitium possit existere. 3 Itaque hoc consilium salubri ac recticissima ratione ineundum esse credidimus, ut nulli omnino facultatem abnegendam putaremus, qui vel obser-vationi Christianorum vel ei religioni mentem suam dederet quam ipse sibi aptissimam esse sentiret, ut possit nobis summa divinitas, cuius religioni liberis mentibus obsequimur, in omnibus soli-tum favorem suum benivolentiamque praestare. 4 Quare scire dicationem tuam convenit placuisse nobis, ut amotis omnibus omnino condicionibus quae prius scriptis ad officium tuum datis super Christianorum nomine <contine-bantur, et quae prorsus sinistra et a nostra clementia aliena esse> videban-tur, <ea removeantur. Et> nunc libere ac simpliciter unus quisque eorum, qui eandem observandae religionis Christia-norum gerunt voluntatem citram ullam inquietudinem ac molestiam sui id ip-sum observare contendant. 5 Quae sol-licitudini tuae plenissime significanda esse credidimus, quo scires nos liberam

atque absolutam colendae religionis suae facultatem isdem Christianis dedisse. 6 Quod cum isdem a nobis indultum esse pervideas, intellegit dicatio tua etiam aliis religionis suae vel observantiae po-testatem similiter apertam et liberam pro quiete temporis nostri <esse> concessam, ut in colendo quod quisque delegerit, habeat liberam facultatem. <Quod a nobis factum est ut neque cuiquam>honori neque cuiquam religioni <det-ractum> aliquid a nobis <videatur>. 7 Atque hoc insuper in persona Chris-tianorum statuendum esse censuimus, quod, si eadem loca, ad quae antea convenire consuerant, de quibus etiam datis ad officium tuum litteris certa an-tehac forma fuerat comprehensa, priore tempore aliqui vel a fisco nostro vel ab alio quocumque videntur esse mercati, eadem Christianis sine pecunia et sine ulla pretii petitione, postposita omni frustratione atque ambiguitate restitu-ant; qui etiam dono fuerunt consecuti, eadem similiter isdem Christianis quantocius reddant; etiam vel hi qui emerunt vel qui dono fuerunt consecuti, si petiverint de nostra benivolentia ali-quid, vicarium postulent, quo et ipsis per nostram clementiam consulatur. Quae omnia corpori Christianorum protinus per intercessionem tuam ac sine mora tradi oportebit. 9 Et quoniam idem Christiani non [in] ea loca tantum ad quae convenire consuerunt, sed alia etiam habuisse noscuntur ad ius corporis eorum id est ecclesiarum, non hominum singulorum, pertinentia, ea omnia lege quam superius comprehendimus, citra ullam prorsus ambiguitatem vel contro-versiam isdem Christianis id est corpori et conventiculis eorum reddi iubebis,

supra dicta scilicet ratione servata, ut ii qui eadem sine pretio sicut diximus re-stituant, indemnitatem de nostra beni-volentia sperent. 10 In quibus omnibus supra dicto corpori Christianorum in-tercessionem tuam efficacissimam exhi-bere debebis, ut praeceptum nostrum quantocius compleatur, quo etiam in hoc per clementiam nostram quieti publicae consulatur. 11 Hactenus fiet, ut, sicut superius comprehensum est, divinus iuxta nos favor, quem in tantis sumus rebus experti, per omne tempus prospere successibus nostris cum beatitudine publica perseveret. 12 Ut autem huius sanctionis <et> benivolentiae nostrae forma ad omnium possit pervenire noti-tiam, prolata programmate tuo haec scripta et ubique proponere et ad om-nium scientiam te perferre conveniet, ut huius nostrae benivolentiae [nostrae] sanctio latere non possit. Translation according to http://www.fordham.edu/halsall/source/edict-milan.asp; for the Greek version cf. Eusebius, Historia ecclesiastica 10.5.1–14 (with minor differences).

44 Eusebius, Historia ecclesiastica 10.5.2 (eleuthería tês threskeías); Lactantius, De mortibus persecutorum 48.2 (li-beram potestatem sequendi religionem quam quisque voluisset, quod quicquid <est> divinitatis in sede caelesti).

45 K / E (2011) esp. 501–504; B (2011).

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tians that allegedly he himself had solicited he ruled that in relevant places Christians had to be separated from city and territory. 46 In those cases, toleration might have meant segregation. But where could Christians retreat if the measures affected the countryside, too? No wonder that Christians interpreted his comportment as perse-cution. On the other hand, their situation appears to have depended on local circumstances: Even if towns seem to have been encouraged to protest against the polluting presence of Christianity, they were not forced to do so. 47 If this policy had prevailed, the ancient principle of locality of reli-gion might have been reestablished in a curious way. Aer the battle of the Milvian Bridge, Max-iminus appears to have been forced to grant Chris-tians more rights. In the end, he issued an edict that allowed Christians (and others) to join what-ever religious observance they chose and even granted the Christians the restitution of their rightful possessions following the example of the agreement of Milan. 48

From persecuted to persecutors

Tolerance or even forbearance and religious freedom were, to put it mildly, not to become hallmarks of the Christian empire. On the con-trary, pagans and heretics were soon to suffer persecution: Christians claimed to possess a truth that was relevant for every human being and had to be handed over to every single man or woman. Everybody had to be converted to the truth – otherwise he would lose the prospect of eternal

life. From a pastoral point of view, it was difficult to accept that people did not embrace what God had given them. In consequence, people who did not accept the truth had to be persuaded and some thought: by whatever means. 49 And a Christian emperor had a major responsibility for converting his subjects, which by necessity resulted in a policy that was extremely intolerant not only by modern standards.

I am not able to pursue in this context all the ramifications of anti-heretic or anti-pagan meas-ures and the occasional acts of toleration in late antiquity. 50 Instead, I will only hint at two basic developments: In the debates with the heretics a new issue came to the fore: doctrine, since Chris-tian groups quarreled about the exact verbalization of Christian truth. Church councils and the corre-sponding imperial laws reinforced certain confes-sions. Unlike with pagan religion, the rulers were not able to decide on those issues independently. The basis had to be laid by ecclesiastical institu-tions, be they councils or authoritative Christian figures such as bishops. 51

Heretics were persecuted with significantly more perseverance than pagans whereas Jews en-joyed forbearance. Laws against heretics preceded those against pagans. There is, however, one law that pronounced a kind of tolerance towards her-etics. It is a letter sent by Constantine to the bishops and the parishioners of Africa. This text sets an end to the repeated attempts of the emperor to suppress the Donatists, a Christian group that claimed to have stayed intact during the persecu-tion of Diocletian in contrast to the other Chris-tians. 52 In this text Constantine grudgingly accepts

46 Cf. Lactantius, De mortibus persecu-torum 36.3; Eusebius, Historia eccle-siastica 9.2–4 and 7; Inschrien von Kleinasien 48.12 (Année Épigraphi-que [1988] no. 1046 f.; Tituli Asiae Minoris II 3,785; Corpus Inscriptio-num Latinarum III 12132) from Ary-canda and Colbasa) with M (1988), also for a thorough recon-struction of the series of edicts re-garding religious freedom of the Christians.

47 The importance of towns has been underlined by A (2008).

48 Eusebius, Historia ecclesiastica 9.9a, esp. 4–9, and again, a more generous regulation, Eusebius, Historia eccle-siastica 9.10.7–11.

49 For Christian Heilssorge (care for sal-vation) as a potential root of Chris-tian intolerance S-L(2000) (who highlights alternative interpretations of Christianity); from a historical perspective in various contributions S (1993); S (2011); A (2008) discusses the problem in a trans-epo-chal perspective. The same problem is debated in S (1996), for a per-sonal survey.

50 There are several useful studies, for example N (1971); N (1986); K (2009) 56–233. A (2010) 71–212 offers an interpretation of this time within a far-reaching model that

describes the development from an anthropocentric to a theocentric mentality.

51 I have dealt with the problem more extensively in L (2013).

52 Optatus of Mileve, De schismate Do-natistarum adversus Parmeniarum, Appendix 9. In this text the meaning of toleremus comes close to the con-cept of tolerance.

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Hartmut Leppin 73

reality. His main argument consists of the obser-vation that tolerance is less dangerous than sup-pression; in this regard, the text is reminiscent of Galerius’ so-called edict of toleration. In contrast to Galerius, however, Constantine appeals to Chris-tian virtues such as peacefulness and trust in the final judgment of god, which embeds forbearance in a new context. When he wrote to the inhabitants of the eastern provinces aer his victory over Licinius (324), he praised in generous and general words tolerance even towards people that erred. 53But he did not prove to be a trendsetter. Anti-pagan and anti-heretic legislation grew in importance and in harshness during the next centuries.

There was another radical innovation in Chris-tian religious policy: Deviant Christians and pa-gans were not only punished and corrected, but their practices were menaced with elimination. The anti-pagan laws of Theodosius the Great, which, however, were published only at the end of the century, make this quite clear as a short passage from a law of 392 may illustrate: No person at all, of any class or order whatsoever of men or of dignities, whether he occupies a position of power or has com-pleted such honors, whether he is powerful by the lot of birth or is humble in lineage, legal status and fortune, shall sacrifice an innocent victim to senseless images in any place at all or in any city. He shall not, by more secret wickedness, venerate his lar with fire, his genius with wine, his penates with fragrant odors; he shall not burn lights to them, place incense before them, or suspend wreaths for them. 54 The whole set of prac-tices defined as pagan by Christians was at stake.

For obvious reasons, it was the pagans’ turn to plead for religious liberty now. 55 In 384 the urban prefect of Rome Symmachus, addressing an elab-orate speech to the emperor, asked for the restora-tion of certain pagan cults in Rome. Unlike his Christian predecessors, he based his argument not on a concept of religious freedom, but on the power of tradition and on the idea that the supe-

rior being could be contacted over various ways since there were different traditions. 56

Furthermore, the argument that religion cannot be enforced, but has to be voluntary was well established among pagans who turned it against Christians. Let me only give one example: Liba-nius, a famous orator from Antioch in the east, criticized magistrates and monks who destroyed temples underlining that the destruction of sanc-tuaries would not convert anybody. 57 The same line of reasoning can also be found in a speech of the official orator from the capital of Constantino-ple, Themistius. This is the most circumstantial plead for tolerance in antiquity. The argument is based on political considerations (the weakness of the emperor who can act as a balance), anthropol-ogy (belief cannot be enforced), and ethics (toler-ance is against violence). 58 All those remarks were nothing more than reminders of the futility of religious force, not energetic pleas for individual rights. But they document the survival of the idea that religion must not be imposed on people.

From a Christian perspective, however, this was not so clear, even if influential bishops such as Athanasius of Alexandria or Ambrose of Milan underlined that truth could not be established by force, but only by arguments. 59 As I stressed above, Christians might feel (and many did feel) bound for charity’s sake to convert as many people as possible in order to save their souls and they had now gained the power to do so. The ambivalence of Christianity in regard to religious freedom be-comes clear in the work of Augustine of Hippo. He feels responsible for those who do not follow the true faith and he dearly wishes to contribute to their salvation, which is possible only within his church. On the other hand, he is in principle against coercion of belief for the reasons that were well known. Thus, in his early years, he pleads for tolerance, but against the background of his con-viction that true Christianity will be successful in

53 Eusebius, Vita Constantini 2.56 f. with K (2009) 59–62.

54 Codex Theodosianus 16.10.12pr: nullus omnino ex quolibet genere ordine hominum dignitatum vel in potestate positus vel honore perfunc-tus, sive potens sorte nascendi seu humilis genere condicione ortuna in nullo penitus loco, in nulla urbe sen-su carentibus simulacris vel insontem victimam caedat vel secretiore piacu-

lo larem igne, mero genium, penates odore veneratus accendat lumina, imponat tura, serta suspendat (transl. Pharr).

55 Correspondingly, Julian, in Epistula 61c Bidez-Comont = 36 Wright (423 C) declares that the gods have pre-sented liberty to the pagans with his rule.

56 Symmachus, Relatio 3.8; for the in-tellectual background of Symmachus

and Themistius see e. g. A (1996); K (2011).

57 Libanius, Oratio 30.26 (transl. A. F. Norman).

58 Libanius, Oratio 18122; Themistius, Oratio 5.67b–68c.

59 See e. g. Athanasius, Historia Ariano-rum 33.2–3; Ambrosius, Epistula 5.17.

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the end; his tolerance derives from his pastoral attitude, not from respect for diverging convic-tions.

Thus, he could change his attitude quite easily when necessary: Later on, being not only a theo-logian, but also a bishop who had to assert himself against heretics, he accepted the necessity to force heretics into his church since in contrast to pagans they were in a position to know the truth. Thus, the pastoral attitude of Christianity, the Christian love for the sinner, could turn into constraint when the sinner declined to open his heart. In his best interest he had to be included into Augustine’s community, even unwillingly. 60

Conclusions

The problem of freedom of religion in Rome must be seen in the context of the tension between oecumenical paganism and universal Christianity. It is not enough to construct an opposition be-tween tolerant polytheism and intolerant mono-theism. A practice of tolerance existed in pagan Rome, but tolerance was rarely reflected and never conceived as a guiding political principle. 61

The monotheistic religion of Christianity was universal from the very beginning and exclusive at the same time. Christians had begun arguing that they should be treated like other religions or other nations for that matter. Yet, under the impression of oecumenical paganism some Christians articu-lated a universal idea of freedom of religion, even in the emphatic sense as the fundamental right of every human being. Thus, this concept appears to have emerged in the Roman world with the con-nection between empire and empire-wide cult that had begun with the emperor’s cult and was in-tensified under the Severans, who interpreted the empire as a polis. This made it impossible to simply

define the Christians, who could not claim the traditional privileges of the Jews, as an ethnos. Under Decius, the deadly consequences of oecu-menical paganism had been revealed, although Decius probably did not intend to open war against Christendom as such. 62 Above all, Tertul-lian, who articulated the idea of freedom of reli-gion, wanted to expose the contradictory character of oecumenical paganism; but in doing so he articulated a thought that was more far-reaching than he could expect.

The term and the concept of religious freedom were bequeathed to later generations. In antiquity, however, freedom of religion was never enshrined in a law and not conceived as a fundamental en-titlement of the individual. By contrast it was a mere consequence of the idea and the experience that religious belief could not be enforced. The exclusive attitude of Christians even led to an eliminatory approach to other religions that gov-erned state politics to a rising degree aer Chris-tianity had developed into the religion of the Ro-man elites. 63

Christianity engendered the idea of freedom of religion in a general sense on the one hand and the idea of religious elimination on the other. The dialectics of early Christianity gave birth to the idea of religious freedom as well as to systematic religious repression. This was to be a precious and at the same time toxic normative legacy for Europe.

The ambivalence was to endure for centuries causing bloody wars as well as poignant pleas for freedom. As modern research has underlined the Christian and late antique heritage in early Islam, it would be very important to trace the translation of the idea of freedom of religion in this cultural world. It is not only a problem of European, but also of Mediterranean history.

The contestable impression that paganism stood for tolerance has had its own historical impact. In

60 The complexity of Augustine’s argu-ment can only be synthesized here, cf. B / S (1990) 452–454; F (2003) 58–73; B (2007); K (2011) 111–133; S-M(2011) 177–190.

61 A (2003) famously interpreted religious intolerance and violence as a consequence of the monotheistic claim to possess universal truth; but see for instance S (2011), 197–203.

62 In a pointed argument A(2010) 56–60 interprets Decius as a predecessor of Constantine.

63 Cf. for the problem of Christian vio-lence e. g. H (2004); G(2005); D (2011).

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Hartmut Leppin 75

a classicizing discourse, it seemed to confirm that plurality was possible. The reflections about toler-ance quoted in this article were well known in early modern Europe. They certainly helped to establish and, most of all, to legitimize the idea of tolerance and of religious freedom as a personal right in Europe, even if that was not their original

intention. As so oen, the translation of a tradition which was regarded as classical, allowed the Euro-peans to perceive alternatives in antiquity which could turn into alternatives in reality.

n

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Heiner Lück

Aspects of the transfer of the Saxon-Magdeburg Law to Central and Eastern Europe*

For decades, scholars have been preoccupied with the spread of two important historical legal documents from the German Middle Ages to regions in Central and Eastern Europe: 1 Sachsen-spiegel (lit. »Saxon Mirror«), 2 a legal code of the German Middle Ages which had an enduring effect on German law for many centuries and Magde-burger Recht (Magdeburg Law), 3 a set of town priv-ileges developed under the reign of Otto I. (936–973) and his successors. 4

The relevance of these documents today, and the curiosity they have sparked, extend far beyond the academic environs. There has been a general revival of the interest in the common origins of European statehoods and legal orders, and more so in the context of the integration of a couple of Central and Eastern European countries into the European Union in 2004, having been involved in research programmes requiring the study of historical sour-ces on an unprecedented scale and in close coop-eration with many distinguished European schol-ars, 5 and having reflected on the popularity of these two fundamental sources of law that evolved in Central Germany (the Saxon Mirror and Magde-burg Law). 6 The significance of concepts attrib-uted to the Saxon-Magdeburg Law may vary con-siderably, but all these concepts concern a highly developed medieval town law which – by its very name – points to one of the metropolises of the Holy Roman Empire. 7 The continued prevalence of these concepts also reflects the tendency to opt for a Europe whose scope transgresses the borders

of the contemporary states – a Europe whose identity for many centuries had been defined through the use of the Latin script and by the Church. 8 Perhaps these historical ties – which, by the way, seem very current today – carry a certain potential for the future, especially in the context of the growing awareness of, and interest in, such issues in the economic sphere.

In four parts, this paper presents a number of arguments to support a conviction that at first glance may seem subjective. Part l describes the situation in the twelh and the thirteenth centu-ries in the regions where Saxon Mirror evolved. Part 2 introduces Magdeburg as the so-called »mother city« 9 of one of the most significant European town laws. Part 3 discusses the phenomenon of the expansion of Magdeburg Law in the territory of Central and Eastern Europe, and, finally, Part 4 presents select reasons, for which even today we may consider Magdeburg Law a factor that defines the identity of many cities and towns of Central and Eastern Europe.

1 The starting point

The history of our civilisation in the Middle Ages and in the early modern era is in many ways linked to towns and provinces, which are today situated within the former territorial borders of the Holy Roman Empire and of other feudal states in Europe. In European law, these links undoubtedly

* Based on my former paper L(2007a).

1 Problems of the terms »transfer« and »reception« are discussed by L(2013c) 298–302. See also the main-title of E / L (2008).

2 English edition of the famous Ger-man law book by D (1999).

3 The sources of Magdeburg Law are several law books and thousands of decisions of the Magdeburg Bench (»Schöffenstuhl«); overview on the Magdeburg law books by J(2004); most important editions of decisions of the Magdeburg Bench by

E (1983), E (1989), E(1995).

4 About the history of research cf. L(2009b).

5 There is a research project at the Saxon Academy of Sciences Leipzig »Das sächsisch-magdeburgische Recht als kulturelles Bindeglied zwischen den Rechtsordnungen Ost- und Mitteleuropas«. Edited Volumes: E / L (2008); B et al. (2011); G / C (2013). See also: L (2008).

6 Cf. also L (1998a) 7. Cf. S- (2006).

7 Cf. S (2006).8 Thomas Duve also mentioned »iden-

tification« in his welcome speech yesterday (2013 Sept. 2nd).

9 The terms »mother city«, »parent ci-ty«, »daughter city«, »grandchild city« are deliberately used in inverted commas here, since these are modern concepts which have been construct-ed to describe the specificity of the »family of the cities of (German) law«. These terms do not appear in the original source texts. Cf. K(2008) 275–278.

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Heiner Lück 79

cover the Saxon Mirror and the town law that first evolved in the City of Magdeburg. 10 These sources of law have not only impacted on the specific legal spheres in Central, Eastern and Northern Ger-many, but they have also greatly influenced the legal order of many Eastern European countries. 11The Saxon Mirror, written between 1220 and 1235 in Middle Germany, 12 mainly contains regulations concerning the population of rural settlements (but it also contains legal regulations which origi-nated in the imperial and canon law). 13

The Saxon Mirror belongs to a larger set of private [perhaps even individual] compilations of customary laws that had emerged throughout Europe in the thirteenth century, even in Germany – and subsequently recorded in the law books. 14The Saxon Mirror is the most famous and influen-tial of the individually compiled German treatises to be drawn up in the first half of the thirteenth century and is attributed to Eike von Repgow. 15»In the courts of Saxony, the Sachsenspiegel

soon came to be treated almost as if it were an authoritative text …« 16 Legend has it that the written law of the Saxons had to be an imperial legislative act. »Throughout Saxony it provided a basis for development and gave life to the law of the whole region. During the fourteenth century it was glossed« 17 by Johann von Buch, 18 a graduate of Bologna Law School, »on a number of occa-sions, either in whole or in part, and supplements to it, especially in the form of manuals of court procedure, were produced.« 19 It was a singular point of orientation for all the courts in Saxony, in effect, offering a counterpoint to legal particu-larism. Its existence and use can probably explain why Saxony was among those areas in Germany least affected by the widespread adoption of Ro-man law. 20 The influence of Sachsenspiegel in other parts of Germany is evidence of the broader de-

mand for a written law 21 in a localized form, be-fitting the local circumstances.

The inclusion of some rules in the Saxon Mirrorseems to reflect its special relationship with the City of Magdeburg. 22 A number of legal norms that had been successfully implemented and pro-ven valuable not just in the realm of trade and cras 23 but also for addressing questions concern-ing the maintenance of a balance of power (both inside and outside the city) had developed in Mag-deburg. 24

Already in the eleventh century, some towns in Central Germany had initiated the trend that rejected the general legal order of the regimes in the surrounding areas. At a more advanced level, this trend eventually became necessary to differ-entiate and separate the still binding general civil code (Landrecht or land law) from town laws that had evolved in connection with the development of the privileged position of towns and the estab-lishment of municipal legal norms. Contrary to the land law (Landrecht) and feudal law (Lehnrecht), the town law emerged as a relatively independent set of sources of law as late as in the mid-thirteenth century. Generally, but especially in regard to personal liberty issues, the regulations under this kind of law differed significantly from those in land law.

The crucial difference between a city or town and the surrounding areas was of a legal nature, 25and this mostly pertained to the two basic aspects that regulated the coexistence of the town inhab-itants. On the one hand, at the base of municipal social relations lay the special legal regulations that did not use the dependency relations, which were a typical feature of land law. 26 On the other hand, the inhabitants of towns (the burghers) came under the rule of a specific legal system, wherein all the burghers 27 were bound by an oath and

10 Of particular significance in this con-text is the international conference organized as a joint effort of Polish and German legal historians (Kraków 1977). Cf. W / S(1980).

11 S-F (1942); L (1986); L (2013a).

12 Cf. the genesis of the Saxon Mirror: L (2013a) 13 seqq.; L(2005); concerning especially the feudal law (2nd part of the Saxon Mirror) cf. L (2013b).

13 Cf. L (2006); L (2007b).14 L (2014).15 R et al. (1994) 186. See also

L (2008).16 R et al. (1994) 186.17 R et al. (1994) 186; see also

K (2006).18 L (2012a).19 Edition of the famous »Buch’sche

Glosse« by K (2002).20 Cf. L (2013d).21 R et al. (1994) 186.22 Cf. L (2005).

23 For a more extensive discussion on this subject see: P (2005).

24 Cf. L (1996); P (2005).25 Cf. C (2003).26 See also: D (1999) 600–682.27 For further details about this term

see: K / C (2008).

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80 Aspects of the transfer of the Saxon-Magdeburg Law to Central and Eastern Europe

subject to the decisions of a given Council which functioned as an organ of a local self-government of the urban commune (at least that was the case from the first decades of the thirteenth century on). German towns usually followed a legal system based on privileges granted by the local rulers that could be exercised in the settlement in question (originally the privileges were oen granted only to merchant settlements). At some point, the privileges (in their written form) were collected and compiled, which resulted in the creation of the so-called Handfeste – the early version of town law in the form of handwritten official documents, which had the character of solemn pledges. 28 Such privileges oen pertained to judicature, court pro-ceedings and burghers’ liberties, such as the right to the free use of one’s land.

In Magdeburg, an important centre of trade located at the margins of lands inhabited by the Slavs, 29 the customary legal norms, appropriate to the urban conditions of manufacture and trade could develop relatively early. A totally different situation developed in 1188, when Archbishop Wichmann (1152–1192) granted a special privilege to the City of Magdeburg, which entailed specific improvements to and a simplification of the court proceedings. 30 The privilege freed the burghers from the perilous risks hidden in the highly for-malised legal proceedings. Therefore, it assumed the existence of a specific legal order within the boundaries of the town that differed significantly from the land law used in its political environs.

At the beginning of the thirteenth century, the Polish Prince Henry I of Silesia (1202–1238) asked for a copy of Wichmann’s privilege so that he could use it as a legal basis for his newly-founded town of Złotoryja (Goldberg; 1211). Over the subsequent three decades, Magdeburg Law 31 had been granted to such towns as Spandau (1232), Prenzlau (1235), Guben (1235) and Szczecin (Stet-tin; 1237). In the course of the thirteenth century, a new legal stratum was added to these privileges –

the new elements of the legal system had evolved to a great extent from the regulations worked out by the municipal institutions and the legal instruc-tions issued by the members of the board which constituted the Bench of a given city and / or by the members of the City Council.

2 Magdeburg as the »mother city« of a significant family of cities of German town law

These legal norms targeted specific relations that functioned within the municipal sphere, oen serving as the legal foundation for the newly es-tablished (or re-established) towns. These acts were performed on the basis of the appropriate privi-leges, as defined in the chartering document. Also the already existing, older cities and towns some-times benefitted from privileges derived from the adoption of a variant of laws already in use at another city – this process is referred to as Bewid-mung (or a formal transfer by a special charter) in the German history of law, and the City of Krakow is a perfect example thereof. The formal establish-ment of Krakow under Magdeburg Law (in the transplant variant of a law valid in the City of Wrocław / Breslau) is still vivid in the collective memory, even 750 years aer the actual issuing of the Great Charter. 32 In this process, the new legal kinship established family ties between the »daugh-ter cities« and their »mother city«. 33 From the »daughter cities« the law (or, frequently, the region-al variant thereof adapted to the local conditions) was imported into other towns which, in turn, led to the formation of extensive »families of cities of German town law«, among which the most sig-nificant were the family of Magdeburg Law 34 and the family of Lübeck Law. 35

The family ties with the »mother city« were established not only owing to the sharing of the same variant of town law that was being passed on

28 A (2012).29 K / S (2005).30 For more extensive information on

that subject see: L (1990).31 To sources, structure, contents etc. see

B (1984); E (1992); E(2004).

32 See Muzeum Historyczne Miasta Krakowa (2007).

33 K (2008) 275–278.34 L (2013a) 61 seqq.35 E (2009); H (2009); L

(2009a).

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Heiner Lück 81

from town to town, but – most of all – through the common practice of asking for legal instructions and information, 36 which were usually obtained either from the City Council of the »mother city« (e. g. in the case of Lübeck), or from the court of aldermen, or the Bench of the »mother city« (e. g. in the case of Magdeburg). 37 It was a regular practice when the authorities of a given city or town were to interpret their own municipal law, i. e. when the local law contained legal loopholes. The City Council or the Bench of the »mother city« replied to such requests by issuing legal instruc-tions (Polish: ortyle, from Old German Urteil). Requests for the copies of the »mother law« were also made in connection with the formal establish-ments of towns or the loss of the already written »daughter law« (e. g. when the entire municipal legal documentation had been destroyed in a fire).

Eventually, this kind of legal assistance was extended, as there was an urge to adjudicate certain legal cases by the court of aldermen in the »mother city«. In such cases, the City Council, or the Bench of the »mother city« prepared the verdicts, which were then merely delivered by the court of the »daughter city«. These Spruchkollegien (decision-making panels) were not proper courts in the strictest sense of the term and could only respond to more general requests for legal help. Such verdicts were authoritative, as boards (»higher courts« 38 and Benches) took on legal experts as members (without formal legal education). Within their expertise, they used the law they found in the written sources available to them, or they had encountered in the prevalent oral legal tradi-tions. 39 The legal instructions and verdicts issued by such legal experts were collected and compiled into separate volumes – such collections of legal documents should be perceived as yet another group of sources of the German town law.

The relation of the »mother city« to the »daugh-ter cities« has been described as that of »the higher court of appeals«. The term »higher court« (Ober-hof) 40 in this case signifies the board consisting of aldermen (the Bench) or the City Council of the

»mother city« – as these institutions possessed more extensive legal knowledge and experience than the institutions operating in the »daughter cities«. The figures of »mother cities« and »daugh-ter cities« have been criticized by the recent dis-cussion. 41

From the fieenth century onward, two major phenomena of the history of German law and legal system started to impede the functioning of the municipal courts of aldermen (whose members were not legal experts or professional lawyers). The introduction of Roman Law and Canon Law made it increasingly necessary for the judicature to be based on solid, scientific foundations. There was a discrepancy between the lay judicature and the judicature based on scientific foundations, and several attempts to bridge that gap, for instance by establishing law at departments at universities that either replaced the old courts of aldermen, or coexisted with older institutions. On the other hand, some territories developed into hermetic spheres controlled by judicial systems at the head of which stood the local prince or his royal court. This hermetic approach of the rulers of a given land entailed the prohibition of making appeals at the jurisdictional boards of the higher instance that resided outside the territory of the land in ques-tion.

The Magdeburg Bench (Magdeburg Jury Court) had now to compete with the faculties of law, which by that time had been established in the nearby cities (i. e. in Frankfurt on Oder, Jena, Helmstedt, Leipzig, and Wittenberg), 42 as well as with more modern courts of aldermen (e. g. in Brandenburg, Halle, Jena, Leipzig and Witten-berg), whose position was even more privileged due to the advantageous legislation of the territo-rial states. Between 10 and 20 May, 1631, the imperial army of the (Roman Catholic) General Johann von Tillie destroyed the City of Magdeburg as the stronghold of the Lutheran Reformation movement (»our Lord God’s pulpit«). 43 The seat of the Bench and its archive were demolished. 44Thus, the thousands of court documents as well as

36 Cf. W (1990a); W (1990b).

37 L (2004). See also: K (1980b).38 The use of the term »higher court«

(Oberhof) in the context of the cities of the Saxon-Magdeburg legal circle is highly problematic, since the term itself does not evidently appear in the

sources of Saxon-Magdeburg Law. Rather, the sources mention »alder-men« and »court of aldermen«, or »the Bench«. Cf. W(1984); L (2010). Further and more detailed research on this subject seems to be a necessity.

39 See also R et al. (1994) 185.

40 W (1984).41 D (2007) 21–40; D (1999)

628.42 L (1998b) 64 seqq.43 Cf. E (1998) 113;

K (2003).44 T (1998); L (1999).

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all the entries in the registry – priceless for academ-ic research – has forever been lost.

This rapid decline of the city did not destroy the fame and significance of the Magdeburg Bench for the development of town law in the German and Eastern European lands. Apart from the City Council of Lübeck, none of the comparable bodies of judicature has managed to achieve the impres-sive range of influence (both in geographical, and in temporal terms) of the Magdeburg Bench.

3 From Magdeburg to Europe: on the expansion of Magdeburg Law

Magdeburg Law, spreading together with the Saxon Mirror with which it was closely intercon-nected, reached the territories of Silesia, Poland, the lands belonging to the Teutonic Order, the Baltic countries, Belarus, Ukraine, Bohemia, Mo-ravia, Slovakia and Hungary. 45 The peculiar sym-biosis into which the Saxon Mirror entered with Magdeburg Law on the way to Eastern Europe 46

has been expressed in the source texts (note that in the early texts, the terms ius Teutonicum, ius Maideburgense and ius Saxonum originally carried the same content). Among these, the term ius Maideburgense (Magdeburg Law) has reached the foremost position as a broad term that encom-passed the Saxon land law as well as the Magde-burg town law, and, quite frequently, also the German Law (ius Teutonicum) in general. Hence, modern science recognizes this terminological overlapping and interrelatedness through the no-tion of »Saxon-Magdeburg Law.«

According to the early legal data obtained from the Cities of Magdeburg and Halle, the Polish Duchy of Silesia was an important intermediary in the transmission of the Saxon-Magdeburg Law in Eastern Europe. Already in the thirteenth cen-tury, a number of cities and towns, such as: Zło-toryja / Goldberg (1211), Wrocław / Breslau (before 1241), Środa Śląska / Neumarkt in Silesia (1235), 47Głogów / Glogau (1263) and a few others, were formally established under Magdeburg Law.

As the seats of »higher courts«, Wrocław and Środa Śląska continued to popularize Magdeburg Law as legal instructions.

From Silesia, Magdeburg town law and the Saxon Mirror came to Poland. The City of Kraków was formally established under the Wrocław re-gional variant of Magdeburg Law in 1257 48 (not only did the city receive a new law, but it also had been practically re-founded and re-built). From Kraków, the Saxon Mirror and Magdeburg Law spread in the eastern direction and approached Red Rus’ and in the northern direction, towards the Wielkopolska region. In 1253 the City of Pozńan was formally established under Magdeburg Law and also became the seat of a »higher court« for the towns that used Magdeburg Law in Wiel-kopolska.

Especially in order to cater to the needs of the cities and towns of Magdeburg Law in the Mało-polska region, in 1356 Polish King, Casimir III the Great (1333–1370) established a special »higher court« – ius supremum Magdeburgensis castri Craco-viensis – at Wawel Castle in Kraków (a collection of court rulings published by Ludwik Łysiak and Karin Nehlsen-von Stryk). 49 Apart from that, Ca-simir the Great spared no pains to expand the range of Magdeburg Law to the newly-annexed eastern territories of Volhynia, Halych, and Podolia (today parts of the Ukraine) by granting numerous privileges to the settlements situated in those areas. All in all, in Małopolska (Little Poland) and Ha-lych, approximately 650 towns and villages had been formally established under German law, whereas in Wielkopolska (Major Poland) the num-ber of towns and villages to have been formally established under that law stood at about 150.

In the areas that came under the Teutonic Order, the Saxon-Magdeburg Law was realized mostly through grants of the Kulm / Chełmno privilege (Kulmer Handfeste). 50 In 1233, the Kulm privilege was granted to the Cities of Toruń (Thorn) and Chełmno (Kulm) by the grand master of the Teutonic Order. 51 Both developed into metropol-ises of German Law in those lands and – as »higher courts« – contributed to the further expansion of

45 For the following data see L(2013a) 61 seqq.; L (2013c).

46 About the several ways of transfer see L (2013c) 293–302.

47 See also: K / D (2003).

48 Cf. L (2009c) 27–28.49 Ł / N- S (1995/

1997).50 Cf. a selection from the exentsive

literature on that subject: J

(2013); K (1978); R(2002), Z-M(1986), Z (1988).

51 Cf. L (2009c) 23–27.

Fokus focus

Heiner Lück 83

the Saxon-Magdeburg Law; what is more, both in the City of Toruń and in the City of Chełmno more German Law books were written so that by the end of the fourteenth century, Chełmno pro-duced a book of law based on the Magdeburg-Breslauer systematisches Schöffenrecht, the rulings of the Magdeburg Bench and the Saxon Mirror. The Codex – known as Alte Kulm – spread to the lands of the Teutonic Order as well as to Poland and Ukraine. Many manuscripts cited rulings extracted from the books of Saxon law. It is very likely that between 1386 and 1402, in the City of Toruń, a book entitled Magdeburger Fragen (lit. Questions of Magdeburg Law) was written on the basis of Alte Kulm, as well as the legal sources from Kraków and Toruń. 52

In Lithuania, such cities as Vilnius (1387), Kau-nas (1408) and Trakai (late 14th or early 15th cen-tury) were formally established under the Magde-burg Law; the law continued to spread, and finally reached Belarus where its influence proved to be most spectacular in the legal organization of Minsk (1499).

A host of entirely new opportunities for the spread of the sources of law emerged with the invention of print. Already in 1506, the Royal Polish Chancellor Jan Łaski 53 published the Latin version of the Saxon Mirror and the Magdeburg Weichbild, along with several other native (Polish) sources of law. 54 In 1535, a Kraków municipal scribe, Nikolaus Jaskier, 55 published glossed edi-tions of the Latin versions of Saxon Mirror and Weichbild. 56 Among other things, the publication of these works in the process of popularizing the Saxon-Magdeburg Law in the Grand Duchy of Lithuania had made the City of Kraków extremely influential. Finally, in 1581, the great Syndic of Lviv, Paweł Szczerbicz, translated Weichbild into Polish; 57 it was in the same year that the Saxon Mirror had for the first time been published in an alphabetical order. 58 In 1558 a distinguished

Polish scholar in the field of law – Bartłomiej Groicki 59 – published Artykuły prawa majdeburskie-go, ktore zowią Speculum Saxonum (lit. Articles of Magdeburg Law known as the Saxon Mirror). 60 It was also Groicki who wrote the collection entitled Porządek sądów i spraw miejskich prawa majdebur-skiego w Koronie Polskiej (lit: System of courts and municipal matters of Magdeburg Law under the Polish Crown), which was later to play a signifi-cant role in Slovakia and, most of all, in Ukraine. The chartering of Lviv (1356) 61 and Kiev (c. 1497/1499) 62 and the formal establishment of these cities under Magdeburg Law were of great impor-tance, too. 63 Apart from the privileges granted to cities and towns, based on Magdeburg Law, anoth-er noteworthy group of sources in Ukraine were the so-called Sammlungen des Magdeburger Rechts(Collections of Magdeburg Rights). At that time, the Magdeburg privilege granted to the City of Kiev, Saxon-Magdeburg Law had reached the east-ern borders of its territorial range (on the River Dnieper). In this context, the massive project of the codification of law was of exceptional importance. It had been prepared for Ukraine in 1743 – Prawa po kotorym suditsja malorossijskij narod (i. e. Laws of justice of the Ukranian people) – and drew heav-ily on the Saxon-Magdeburg sources of law. 64Ukraine was also where Saxon-Magdeburg Law had been evidently maintained for the longest time: it only lost its primary importance when the Great-Russian collection of legal acts – the Swod sakonow Rossijskoj Imperij (lit. A collection of laws of the Russian Empire) – was introduced in 1840 in the Le-Bank Ukraine, or in 1842, in the Right-Bank Ukraine. In fact, Ukrainian law had undergone a high level of Russification in the eighteenth century before that collection of legal acts could be published.

The importance of Saxon-Magdeburg Law for the development of Ukraine 65 is clearly visible even today, especially in Kiev. There is a monument

52 Cf. L (2013).53 See also G (2014).54 Ł (1506); cf. L (2013a) 78, 80;

B et al. (2011) 103–104.55 See also L (2012b).56 J (1535a), (1535b); B et al.

(2011) 104–105; R(1985).

57 S (1581a); B et al. (2011), 105–106.

58 S (1581b); B et al. (2011) 105–106.

59 See also J (2012).60 See L (2013a), 78, 80; B et al.

(2011) 108–109.61 Cf. L (2009c) 28–30. New edition

of the Lviv privileges by K’(1998).

62 Cf. the new edition of the Kiev privi-leges by B (2013).

63 Cf. W (2006) 204 seqq.64 Cf. the modern edition of that text:

M et al. (1997).65 G (2002); K-

A (2007); B (2008); K (2008).

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commemorating the membership of the City of Kiev in the Magdeburg family of the cities of German Law (the monument was erected on the bank of the River Dnieper in 1802, and the fact that we can still admire it today demonstrates that the people of Kiev must still be proud of the old privileges once granted to their city. 66

4 Magdeburg Law as a defining factor of identity

Before we ask if the Magdeburg Law had any impact on the identity of cities and towns, we first need to identify factors that play a significant role in the evolution of cities and towns. The factors defining the identity of cities evolved parallel to the development of cities and the formation of their internal organization in the Middle Ages. The external elements we should list here include: market square, town hall, the building of the municipal court or the seat of the Bench, city walls, municipal seal, the city’s coat of arms, specific municipal books, precious privileges which had been granted to the city, as well as a statue of a knight in armour (the so-called »Roland«) or another symbolic figure of that kind, and, of course, the city’s main church. All of these ele-ments have developed a specific external form due to their links with Magdeburg Law, and all of them, collectively considered, represent a specific type of a municipal liberty. The liberty in question was also in some way rooted in the Magdeburg Law that contained a set of norms regulating the co-existence of political and social groups. These common features of the family of cities function-ing under Magdeburg Law have maintained their power until the present day, which can be clearly demonstrated on the basis of the following obser-vations.

Firstly, a number of events and conferences could be presented here, including the interna-tional conference in Vilnius (Lithuania) organized in 2004 to commemorate the 475th anniversary of the First Lithuanian Statute (1529), or an interna-

tional conference in Kiev on the 500th anniversary of the Magdeburg-Law-privilege for the Ukrainian capital (1999). 67 Moreover, the literature and sour-ces recently published in Poland, 68 Hungary, 69Belarus 70 and in the Baltic states 71 demonstrates the force of Saxon-Magdeburg Law as a vital sub-ject for further research.

Secondly, the Magdeburg municipal system of self-government must have been of huge impor-tance in the Middle Ages. The system was based on the balance of forces between the ruler of the city and the city itself on the one hand, and the various organs operating within the internal structure of the city on the other. An additional element was the privileged position of women in the regula-tions concerning inheritance jurisprudence. The trust put in the law to guarantee a stable way of preserving that state should also be added to that list. Therefore, we may venture to say that, in a certain sense, there is continuity between that early approach to the law and our contemporary under-standing thereof.

Thirdly, many cities and towns in Eastern Eu-rope continue to remind us about the fact that they used to be linked by a common system of town law. No matter how different all the specific legal cases of these cities might in fact have been, they used to belong to the same family functioning under the common trademark of »Magdeburg Law« – and indeed, they still belong to that family today. In this case, it is not the idiosyncratic notions associated in all of the specific cases with the term »Magdeburg Law« that matters.

Fourthly, in the context of the abovementioned issues, the Saxon Academy of Sciences in Leipzig has realized a huge research project which concen-trated on the systematic research on Saxon-Magde-burg Law as a cultural link that bridges the gap between the legal orders of Eastern and Central Europe in a global world and may reside within a system of European normativity with roots in the Middle Ages.

n

66 Cf. L (1990).67 A et al. (2000).68 R (1975); R

(1985); R (1993); J(1992); K (1990); M(2011).

69 There is a Hungarian translation of the Saxon Mirror: B /S (2005).

70 K (2005); K (2012).71 Especially the issues by J

K about the Magdeburg

Law in Lithuania: K(2005), (2008), (2009).

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Heiner Lück 85

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Raja Sakrani

The Law of the OtherAn unknown Islamic chapter in the legal history of Europe*

Others are also an Other themselves. The Other reveals ourselves to us. It fascinates us and attracts us, but at the same time repels us. It is »proche et lointain« 1 – »close yet far«. But the Other also makes normative judgments and condemnations. Sartre famously formulated this ambiguity as: »l’enfer c’est les autres«. 2

The problem of the Other has been unrivalled since the Greeks. It oscillates between a subjectivity that is to be rejoiced through love and tenderness and another that is to be reduced – by force, if necessary. 3

To get it out of the way: the Other is a disturb-ance because it provokes knowledge which, how-ever, presupposes an encounter; this encounter is difficult because it occurs through difference and not through reciprocal mimicry. 4 If the Other disturbs us, it is because he refuses to be locked into the sphere of sameness by us, because he refuses to conform to our rules and our stereo-types.

Emmanuel Levinas casts the Other as the very fundament of ethics. Being an »absolute other« 5

and absolutely transcendent, the face of the other questions the identity of the self through an ethical relationship that pierces the closure of the self. As the Other is indispensable for the construction of self-identity and collective identity, the question of the Other is viscerally linked not only to the question of identity 6 but also to law. This gives rise to the question: What happens when I meet the Other face to face?

Emmanuel Lévinas said that the Other is a face. 7 Yet the face of the Other necessarily leads us to its invisible features, to another truth which escapes us because it concerns what is absent and opens itself up to infinity. »Le ›Tu ne tueras point‹ est la première parole du visage«. 8 We shall shortly see how in the history of Europe, Muslims were oen invisible – transparent despite their physical visibility. That is to say the problem of the non-European Other, the extra-European or, to put it more precisely, Muslims, on the legal plane con-cerns an encounter with an Other understood as an end in itself; 9 this encounter precedes the percep-tion of the Other as a persona, i.e. as a legal subject.

* The essay represents an extended version of a lecture I held at the MPI in September 2013; Johannes Nanz was kind enough to translate it into English. I am also grateful to Jenny Hellmann for her assistance in pro-viding relevant texts and in compiling the bibliography.

1 B (2001).2 S (1962). Huis clos is, of course,

a very well known play created May 27, 1944 in the theater du Vieux Co-lombier in Paris. Several years later, Sartre himself proclaimed that his famous reply: »L’enfer c’est les Aut-res« had always been misunderstood. »On a cru que je voulais dire par là que nos rapports avec les autres étaient toujours empoisonnés, que c’était toujours des rapports infer-naux. Or, c’est autre chose que je veux dire. Je veux dire que si les rapports avec autrui sont tordus, viciés, alors l’autre ne peut être que l’enfer. Pour-

quoi? Parce que les autres sont au fond ce qu’il y a de plus important en nous-mêmes pour notre propre con-naissance de nous-mêmes.« Text spoken by Jean-Paul Sartre in the preamble to the phonographic re-cording of the play in 1965. The texts were collected by C / R(1992).

3 Concerning the Other, the being con-stitutes a fundamental dimension of human existence, V (1961) 11.

4 Compare this to Shakespeare’s ob-servation in Hamlet that to judge another is to judge oneself. On Hamlet and the law, cf. O (2012), Shakespeare, La Comédie de la Loi, 259–282.

5 The absolute other is the Other. Cf. the chapter: Métaphysique et Trans-cendance. Désir de l’invisible, in: L (2006) 21 f.

6 »Le prétendu scandale de l’altérité, suppose l’identité tranquille du Mê-

me, une liberté sûre d’elle-même qui s’exerce sans scrupule et à qui l’étran-ger n’apporte que gêne et limitation. Cette identité sans défaut libérée de toute participation, indépendante dans le moi, peut cependant perdresa tranquillité si l’autre, au lieu de la heurter en surgissant sur le même plan qu’elle, lui parle, c’est-à-dire se montre dans l’expression, dans le vi-sage et vient de haut«. L (2006) 222–223.

7 And »le visage parle«, L (1982) 92.

8 Ibid., 93.9 In the Kantian sense.

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90 The Law of the Other

As we all know, Roman lawyers borrowed this term from the Greeks who used it to refer both to the physical reality of a person and to the abstract figure of a real person who could take on various guises through »masks« in the antique theater according to the role they symbolize. 10 This is the reason why we are – the construction of Ro-man law willing – legal actors. In this game, which does not work without exclusion, the question remains: Why do we have a tendency to exclude the Other with his masks and faces? Is it the fear of losing our touch-points such as Christianity and our identity, the comfortable situation which makes us what we are? Or do we gain our identity from this distance, from this difference? To put it more clearly: What does Europe have to gain from rediscovering the History of the Muslim Other and his normative space on European ground today?

The essentials of the European legal narrative focus on the process of rationalization and the role of Roman law in the 19th Century codifications. In fact, the formation of Europeanization in its nor-mative and identitary dimensions excludes any extra-European legal interference from the outset. And yet socio-legal traffic between European soil and the Orient have been flourishing for 14 cen-turies. Is our memory selective and faulty? Why does one admit to the decisive role played by translations and Arab thought for the reception of the heritage of Antiquity and Greek philoso-phy 11 but remain blind – as concerns to normative – to the history of Islamic law in Europe? This question – which was unthinkable just a few years prior – is not intended as a simple provocation today. Rather, it expresses an urgency that is scien-tific, legal and human. This requires, as we will see, an interdisciplinary approach.

I. Islamic pasts in Europe: A problem of historiography or of Otherness?

History smiles, perhaps, on its victims and on its heroes. It simply passes. One thing is for certain, however, we do not know all its versions. Some have been suppressed by the words and clamor of others. And then there are those that have been truncated, reduced or simply buried under con-temporary history. There is no doubt that histor-iography has to be selective for methodological reasons. That is one of Weber’s legacies to legal history. But the direction of selectivity is steered, according to Weber, by interests and values. To this extent, the question is about the Kulturbedeutung of a nearly complete denial of an important part of European history.

The category of the Other – in the philosophical sense – carries within it the self-deployment of thought. This goes beyond Hegel’s perception, who regarded the Other as the motor of any dialectics. 12 It is true, however, that within Euro-pean culture, the Other has long been under the influence of a universal developed from the unique experience of Europe. Today, questioning history, and legal history in particular, is not only an urgent task, but also one legitimated by the rarity of legal research 13 when compared to anthropological studies that seek to move the world’s center of gravity away from its Western focus. To imagine a cultural and legal Other is first and foremost to free the diversity of cultures from its dependence on European culture. However, such an act consti-tutes both a problem and a challenge for research into the history of law – in particular – as leaving Eurocentrism 14 behind should not be understood as a juxtaposition of Others. The case of Islam and Islamic law is the typical example. The truncated passage from European universalism to some form

10 Personne, Dictionnaire de la Culture juridique, A / R (2007) 1151.

11 There is abundant literature on this subject. See, for example: A /H (1994); A / Z(1960), esp. 99–121; C(1954) 186–211.

12 According to Hegel, the Other pro-motes substance – working negatively from the inside – as a subject and discovers a becoming for him as one can only become oneself by way of

the Other. This logic is extended by George Herbert Mead in his famous model of »taking the role of the other« in order to gain one’s identity. Cf. M (1934).

13 It goes without saying that law – as a central pillar, if not the very funda-ment, of the construction of nation and identity – is more hermetically sealed off from legal cultures of the Other. The identitary function of law is thus linked to the birth of the na-tion state. This function is oen un-

derestimated in the functional catalog of law. On this subject, cf: G (2012b) 19–53.

14 This is the ambitious project formu-lated in Thomas Duve’s latest writ-ings. See particularly: D (2012) 18–71.

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of idle essentialism or relativism only pushes Is-lamic culture to rely more on itself, on what constitutes its hard core: religion.

For several years now, several historians and social science researchers have been tackling the topic of Europe and its past relations to Muslims and the Islamic world. Recent works showcase a great leap in perspective and method. Other, older works, are increasingly dusted off and emerging – or waiting to be retrieved – from the vaults of oblivion. Consciousness of Islamic facts and norms has developed but very slowly. Europe took some time to understand that this is not a temporary phenomenon on its soil, and begin to understand what was happening. With fundamentalism that continues to gain momentum since the seventies, September 11, 2001, the wars in Iraq, Afghanistan, Africa and elsewhere, the semantic interference has now reached its peak. The adjective »Islamic« is larger than that of »Muslim« because it refers to cultural and social elements within the Islamic world (Islam writ large) or what we shall call Islamsthat comprises both Muslims and non-Muslims, i. e.: Jews, Armenians, Oriental Christians, etc.. These elements also have had a massive presence on the European continent for centuries. The adjective »Muslim«, in turn, refers to the Muslim religion and thus to the religious sphere.

This categorization, which is indispensible for the following analysis, does not resolve all the ambiguities and misunderstandings surrounding forms of Islam or Muslims. »Behind the words Islam and Islamism exists a multiform reality of a billion people on several continents, made up of societies that are extremely different and that criss-cross heterogeneous cultural regions which some-times do not communicate with one another«. 15From Morocco to Indonesia and China via the Maghreb, sub-Saharan Africa and the heart of Europe, along with its Slavic extensions and the peoples of the former USSR; the Middle East, Turkey or India, Pakistan, Afghanistan and Iran; in each place, Islam has adapted to languages,

customs, and distinct local features and has, in fact, turned into Islams capable of forming plural-ism. The only problem is that the varying degrees of hybridization have not completely changed the hard core of theology and law. Space precludes an in-depth analysis of this colossal issue. Just to quickly touch upon the problem – and this can merely open an immense and revolutionary field of research, that requires new literature and a new understanding of Islamic law and the radical differ-ences in Islam on a psycho-analytical level – that religious extremism is driven »by an impulse, and this impulse is simply the inverse of the desire to be an other«, 16 what Kierkegaard put as follows: »this despair wills to be itself«. 17 The best way to put it is that the legal history of the Islamic past in Europe faces a large project. Europe is urgently called upon to take the issue of otherness in its legal sense head-on, 18 to finally begin a serious scientific study of Islamic normativity on European soil.

Let us start by tracing out the current Muslim presence in Europe and its legal reverberations. There are 17 million Muslims living in Europe today, according to Valensi, a third of which live in France. 19 Generally speaking, most admit to the immigration of Muslims to Europe as something that developed during the 20th Century, firstly due to World War I, when the old continent needed soldiers for its armies and then following World War II due to economic growth and the require-ment for more labor. This very wide-spread percep-tion in the minds of Europeans is quite far re-moved from historical reality. The presence of Muslims on European soil is much more firmly anchored in the history of Europe and even goes beyond the crusades and the religious conquest of the Iberian Peninsula. To know the Arabo-Islamic heritage – including the normative one – in Me-diterranean Europe (and not only there), is to assume a double rupture: with the blindness and reticence of social sciences as concerns Islam and with the current state of interdisciplinarity, which by necessity needs to include law that, to date, has

15 B (2009) 5.16 B (2009) 5.17 K (2013) 73.18 Transferring the pathos of »Other-

ness« and its foundation in »the right to rights« (Hannah Arendt) to Mus-lims in the emerging Europe enor-

mously profits from the powerful book of B about the rights of Others (2004).

19 V (2012) 7.

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remained absent. Need one recall that this subject has become a real issue for archeology? 20 Or that the contributions of Arabo-Islamic engineers, trad-ers, doctors, philosophers and artists to European science, technology, philosophy and theology does not simply wipe out those made by the numerous Muslim lawyer-theologians in Europe. 21

It is true that this particular historical situation following the war led to an unprecedented phe-nomenon in the history of Islam. For the first time, Muslim communities constituted a minority out-side the dar al-islam (House of Islam). What’s more, this is a phenomenon that is quite interesting from a normative perspective. This is demonstrated by

new legal literature that started appearing from the 1990s on – in both Arabic and English. In the USA, it was pioneered notably by Mohamed Jabir al-Alwani and in the Orient by Cheikh Youssef Al-Qaradawi and many others. The literature is ad-dressed to the Muslim minorities in the dar al harb(House of War). The Arabic name for this legal doctrine is fiqh al-aqalliyat (minority jurispru-dence). I shall not further elaborate on this very complex legal phenomenon. 22 Suffice it to say that it is still under development and will one day certainly form part of the legal history of Europe.

We shall now briefly depart from legal analysis in order to recall some basic facts about the Islamic

20 This is evidenced by a recent inter-national conference organized by In-rap (Institut national de recherches achéologiques preventives) from September 11 through 14 2013 (Hé-ritages arabo-islamiques dans l’Eu-rope méditerranéenne – Archéologie, histoire, anthropologie) in Marseille: Villa Méditerranée et MuCEM (Mu-sée des civilisations de l’Europe et de la Méditerranée). That historiography depends on the countries is a fact. On the other hand, if one takes into ac-count that apart from Spain, where the imprint of al-Andalus is consid-ered an important civilizational fact (albeit one that remains insufficiently studied), and that the heritage of Arabo-Islamic presence in Southern France remains poorly researched and subject to resistance – much like in Italy and Portugal, where this pre-sence was also both important and lasting –; if one takes all this into consideration, European knowledge in all disciplines needs to be challeng-ed: Why? What are they afraid of ? Archeologists, historians and anthro-pologists have taught us: »les mon-naies arabes et leurs circulations, l’archéologie funéraire, la présence de mobiliers archéologiques ou de céra-miques importées, les épaves en mer, révèlent également des échanges d’un autre type, et livrent de nouveaux éléments de discussion sur la com-plexité de ces relations« INRAP (2013); the entire cultural and nor-mative plane needs to be revisited and, above all, seriously and scienti-fically explored.

21 Certainly, the history of law will have to enter into dialogue with other

disciplines. What they have to offer directly on law through the discovery or translation of Islamic legal texts is indispensable. The case of Spain – Al-Andalus – is undoubtedly emblemat-ic. My last research stay in Andalusia in February 2014 revealed the extent to which, in Granada, for example, the enormous corpus of Arabo-Islam-ic texts is insufficiently drawn upon as can be seen in the archive of the Alhambra itself. Moreover, churches and monasteries are still in possession of many documents that are difficult to assess. This issue becomes even more complicated when dealing with legal or theological texts: There seems to be a sort of amnesia surrounding the period before 1492. As if texts from the Islamic, gypsy, and Jewish history of Al-Andalus predating 1492 was but peripheral or very secondary. There is sometimes even a tendency towards kitsch that does not go beyond wonder towards the Al-hambra or the tourist industry. That said, efforts to translate Arabic texts have taken up steam (archives, re-search centers, etc.). Therefore, it be-hooves me to express my profound gratitude towards Alejandro Martí-nez Dhier (Historia del Derecho, Universidad de Granada), David Tor-res (Archivo de la Chancillería Real), Amalia García Pedraza (Archivo del Colegio Notarial de Granada) for their time, their generosity and dis-cussions rewarding for my research. Further, the recent opening of several social science disciplines that enable the elaboration of a cultural and anthropological history of mutual exchange between Europe and Islam

promises to deliver a positive impetus to the history of law. Nevertheless, one should keep in mind that the complexity of the Islamic normative corpus – which is not confined to purely legal norms – renders inter-disciplinary efforts absolutely neces-sary. For instance, archaeology con-tributed through recent discoveries of Muslim papers, money and other objects in France, sometimes difficult to date (such as in the Ruscino site in Perpignan), as well as steles found in Montpellier. Unfortunately, the steles were found in buildings, so that it remains unknown if they were graves like those discovered in Nimes. In the case of Nimes, study of the form of pits, niches, DNA extracted from the skeletal remains found as well as the position of the skulls, which looked to the South East, therefore, to Mec-ca, confirm the existence of Muslim groups permanently installed, capa-ble of practicing the rites, Islamic legal and religious rules in cemeteries dating back to the 8th and 9th cen-turies, as Yves Gleize and Jean-Yves Breuil have pointed out in their pre-sentation »Analyse archéo-anthro-pologique de trois inhumations musulmanes du haut Moyen Âge à Nîmes« at the conference mentioned above (Héritage arabo-islamiques dans l’Europe méditerranéenne). See in this context the works of Roland-Pierre Gayraud, Bernard Romagnan, Catherine Richarté, Sonia Gutiérrez Lloret …

22 See the analysis in: S (2013) 406 f.

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past of Europe. Let us begin by searching for the names and faces of the Other. Essentially, several denominations of Muslims appeared in Europe. They were called »Mohammedans« because Euro-pean Christians insisted on highlighting their reli-gious affiliation. 23 Without getting into how such a connotation that evokes a cult of the Prophet that simply does not exist in Islam is to be catego-rically rejected, it is useful to point out one inter-esting ramification of this label as concerns law. Europeans spoke of »Mohammedan law« – an improper title as the Prophet has nothing to do with the construction of Islamic law. Not only did the legal schools first appear many years later, but the compilation of the Quran and even the quite problematic corpus of the hadith (the Sunna), so the words and acts attributed to Mohammed, post-date his death. That said, the expression »Moham-medan law« 24 nevertheless continues to slip into certain European publications to this day. 25 Mus-lims have also been described as »Turks«. Matters get more complicated here, as »Turk« can also refer to a function of the politico-military elite as well as to non-Muslims from the Balkans or the parts of Asia subject to the Ottoman Empire as well as to the Jewish, Armenian or Greek non-Muslims who resided in the Ottoman Empire itself. To top it off, European renegades were also called »Turks«, as to convert was to »become a Turk« or to »take the turban«. 26 Turks »are distinct from the Moorish, urban Muslims and Arab-speakers and from the Arabs who populate the country-side«, from the Berbers, the habitants of North Africa and in more general terms those active as Corsairs. 27 In Spain, the last bastion of Islamic power in Europe, the lexicon is even more diverse and specific to an Iberian Peninsula that remained Muslim even aer the fall of Granada in 1492. 28

In short, in order to identify who is Muslim in Europe from the 14th Century on – or before –,

and to try and follow the traces of Islamic law and its structures later diffused in the European nor-mative corpus, one must necessarily take recourse to several recent historical studies. We shall briefly sum up the main points from which legal research could benefit.

In terms of semantics, Europeans during the Middle Ages used the expressions »Christianity«, »Christian world«, »Christian republic«, »Christian people«, »Christian blood« etc., which they op-posed to Turks, »enemies of faith«, »enemies of Christians« or even »scourge of God«. 29 It was only in the course of Enlightenment and a certain progressive tendency of secularization it engen-dered that it became possible to speak of Europe.

As regards Islam or Islamism, until very recently the usage referred to religion. This semantic devia-tion in Europe has led to major perversions and difficulties for research and even for the judicial system. Suffice it here to give two French and German examples. Since the 17th Century, the French term »islamisme« has denoted religion itself, following the example of Christianity or Judaism.

Given that the term expanded to cover activism and extremism, however, we no longer have a term to refer to the religion of Islam in the strict sense. There remains the word Islam, but this has the inconvenience of being a catchall, refer-ring to the aggregate of people who profess the faith, Islamic civilization, and the religion itself (…) just as we might refer, for example, to certain fascist movements that promoted the Christian religion as forms of ›Christianisme‹ (…). 30

This confusion, sometimes sanctioned by immi-nent European specialists on Islam, 31 prohibits distinguishing between the militancy of political

23 V (2012) 11.24 On the body of Islamic legal provi-

sions developed in colonial Northern Africa, see e. g.: V E (1927); P (1848–1854); B(1947); M (1916).

25 The French founder of Sociology de-serves attention in this context. Émile Durkheim himself does not seem to refer to Islam, except when he says in a letter to Richard Gaston, dated 1899, and with a negative tone: »Sur

le mahométisme, je ne me prononce pas, vu le peu de données que j’ai.« D (1975) 10.

26 V (2012) 12. One might follow up on this by pursuing an interesting parallel concerning the identification of clothing with new converts to Is-lam, who grow ever more numerous in Europe and virulently call for the application of the Sharia.

27 Idem. See also on Muslims, moriscos, Moorish and Blacks: A M (2011) 143–158.

28 See for example: M G(n. d.); G P (1929) 118 f.; P B (1997) 263 f.; and particularly the rich contribution by A P (1940).

29 V (2012) 13 and 9.30 B (2009) 41–42.31 To cite but one example: R (1999)

10.

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Islam up to the legitimacy and the use of violence on the one hand, and the phenomenon of Islamic faith with its dogmas and rites. German semantics, in turn, suffer from a wholly different problem: the indirect impact of the experience of Nazism on the term »Muselmann«. Since the 19th Century, Her-ing 32 wrote and composed a Kinderlied cautioning children against drinking coffee and highlighting the compromising usage of the words Muslim and Turk. Coffee was accused of weakening the nerves and essentially rendering its drinker »blaß und krank«: »Sei doch kein Muselmann – der ihn nicht lassen kann«. 33 Muslims are thus depicted as de-pendent beings. Coffee is, in fact, but a veil con-cealing something else: the relationship to reli-gion. The appearance of this song in 1934 34 co-incided with the start of the national-socialistic dictatorship. It was spread widely throughout schools and youth groups. The matter then took a tragic turn in the concentration camps: Der Muselmann took on a meaning in the extermina-tion camps signifying that the person in question had become submissive to such a degree that he was but a bodily shell without a soul. The work of Agamben recalls this usage. 35 The identitary con-sequences of this linguistic usage now also concern trials. 36 The problem is the following: firstly, it seems from the circumstances of the case that the defendant had been unaware of the Nazi usage of the term Muselmann, so that the German justice system is called upon today to resolve complex problems that touch upon the identity of Muslims living on its territory and are linked to collective unconsciousness (and not consciousness). This is an extremely complex task. Secondly, the word

Muselmann / Muslim is not wrong per se – it is, in fact, linguistically quite correct, as evidenced by how it does not pose any problems elsewhere in Europe – but the twisted usage in a specific histor-ical context renders it charged with perverse and ambiguous connotations and therefore unusable.

Sociologically speaking, with the exception of Spain, Muslims in Europe never formed compact communities the way they do today. Their – at times extreme – diversity, mobility and fluidity makes such a categorization impossible. Moreover, even the example of the Iberian peninsula is more complicated as the Muslim groupings and com-munities »were infinitely more diverse than reli-gious and political authorities liked to think«. 37 As historical research is increasingly revealing: While the presence of Muslims throughout the Europe of yesteryear certainly differed from that of today, this presence has been more constant and diverse than expected. All around Mediterranean ports in the north and south and even at the far end of the European continent, Christians and Orientals of all origins and religions are woven together by a proximity rooted in both familiarity and solidarity and in domination or repression. Cooperation among merchants, solidarity between shopkeepers and Muslim slaves, Muslim diplomats and voyag-ers occurred throughout the continent. 38 Such ties clearly also appeared in Muslim countries: there were Christian slaves, captains of ships, consuls, and merchants. 39 To put it succinctly: despite the domination of one group by the other, despite the enslavement of one through the other, despite the massive and violent expulsion in the case of Iberia, Muslims have for centuries been close foreigners in

32 Karl Gottlieb Hering (1766–1853).33 The complete verse reads as follows:

Trink nicht so viel CaffeeNicht für Kinder ist der Türkentrank,schwächt die Nerven,macht dich blass und krank.Sei doch kein Muselmann,der ihn nicht lassen kann.

34 This melody appeared in the Lieder-buch: Die Weiße Trommel, CLEFF (1934).

35 A (2003).36 In 2009 in Bavaria (Fürstenfeld-

bruck), the court ordered a merchant a 1200 Euro fine because he had used the term »Muselmann« in a disre-spectful and ironic email (»Wir war-ten schon lange auf einen Musel-

mann für unser Auto«) in such a way that the addressee felt insulted. The Court held: »Er wollte damit … auch eine soziale oder rassistische Minder-wertigkeit des Geschädigten zum Ausdruck bringen. Eine wertneutrale Auslegung der Bezeichnung ›Musel-mann‹ als altertümliche Bezeichnung für Moslem war … nicht gewollt« (43 Js 12865/09). See further the very interesting reactions on the internet on the site: http://www.pi-news.net/2009/08/moslem-darf-nicht-muselmann-genannt-werden/.

37 »[…] relèvent infiniment plus diver-ses que ce que les autorités religieuses et politiques n’ont voulu le croire«, V (2012) 14.

38 See, for example: M T(2008) 39 f.; P (1994) 56 f. (on the complex issues of human traffi-cking, Muslim and Christian slaves, liberation treaties …); R C (1994), cf. esp. 52–111 and 240–258; H (2011) 33–54; K (2013) 251–272; B (1999). On the baptism of Muslim slaves in Italy, see for example: A (1973) 49–64.

39 C (2011), see particularly 159–165; M (2007) 256 f.; V (1967) 1268; K (2011) 417–442.

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Europe (»étrangers familiers«), as Lucette Valensi’ latest book is titled. Several historians submit evidence of this:

En Italie, Salvatore Bono dénonce un véritable tabou qui empêchait de percevoir les musul-mans dans la société (…) nombreux dans la péninsule depuis des siècles. Maria Pia Pedani, plus intéressée par les rapports de Venise avec l’Orient et par les échanges diplomatiques, in-siste … sur la longue fréquentation des terri-toires vénitiens par les Ottomans et les Persans. Nabil Matar, déplaçant l’observation vers l’An-gleterre, y trouve un même degré de familiarité des britanniques avec des musulmans de toute sorte (…) 40

As Godrey Fisher humorously highlighted from 1957: Apart from the period of 1620–1682, Britain was at peace with the Barbary regencies from the 15th to the 19th Century up to 1816; it did not enjoy such peaceful relations with any Christian country, not even with Portugal. 41 Hundreds of Turks spent long years in captivity »dans les cam-pagnes de l’Empire germanique (…) tandis que des affranchis et des convertis se fondaient dans la population italienne ou française«. 42

What one historian terms a culture d’antago-nisme with reference to the history of religious

confrontation in Europe 43 is certainly not the correct approach to studying Islamic law in Eu-rope. Even leaving the major risk of Eurocentrism aside, such a depiction is simply historically wrong. Firstly, fratricidal wars between Christian monar-chies or between Catholics and protestants or other Christian dissidents along with infighting between Muslim states 44 have led to many more massacres and casualties than clashes between Christians and Muslims. 45 Secondly, – and apart from a lasting Arab-Islamic civilization well-rooted in the Iberian peninsula and the north shore of the Mediterra-nean – the presence of Muslims on European ground was not solely linked to religious conflict – or how else could one explain that a great number of Muslims voluntarily converted to Chris-tianity, a phenomenon that has only been studied in depth for several years called les musulmans du Christ. Muslims who

quittaient leurs pays (dans la majorité des cas, il s’agissait de l’Afrique du Nord), leur culture et leur religion pour entrer dans un ›nouveau monde‹ et devenir chrétiens. Leurs situations étaient diverses et variées: ils étaient esclaves ou bien hommes libres et étaient mûs par des raisons d’ordre social, économique ou bien religieux, ou par les trois facteurs réunis et imbriqués. 46

40 This is Lucette Valensi’s pertinent synthesis, V (2012) 240. See al-so: M (1999) 22 f.; M (1998). On the peace treaty concluded be-tween Venice and the Ottoman Em-pire in 1419 that foresaw reciprocal treatment of subjects of both parties, see: P (2010) 211.

41 F (1957) 11–12.42 V (2012) 240.43 P (2004). On the discus-

sion of the Crusades and the dream of a universal monarchy unified by Christian faith, see esp.: 83–104. See in the same sense, and with reference to previous confrontations during the 12th and 13th Centuries: C(2000) 94–116.

44 »… guerres civiles en France (sept entre 1562 et 1585), guerre entre l’Angleterre et l’Irlande dans les an-nées 1640 et 1650, guerres dynasti-ques entre royaume de France et monarchie espagnole, guerre de celle-ci contre l’Angleterre, guerre de

Trente Ans dans l’Europe – ont été plus coûteuses et plus meurtrières que celles qui les opposèrent à l’Empire ottoman et aux États barbaresques. Le roi de France ne participe pas à la guerre maritime qui conduit à la victoire de Lépante et ne perd donc aucun sujet. Mais l’année suivante, dans la nuit de la Saint-Barthélemy, 2000 à 3000 protestants sont massa-crés en plein Paris et qui sait combien dans les autres villes du royaume …«, V (2012) 11. Regarding the internal wars between Muslim king-doms and states, the situation is equally dramatic. Medieval chroni-cles recount this in a celebratory tone: I A-Q (1908); I A-A (1231/1979), see esp.: Vol. X, XI and XII on the Frankish invasions; G (1934–1936); and see bar-baric acts committed by both sides in the famous tale by M (2008).

45 The literature both in this direction and in the inverse one is immense.

See just by way of example: On Great Britain’s wars with »Christian« countries: F (1957) 11 f.; H / Z (1988), esp. the chapter »Ein halbes Jahrtausend in Wehr und Waffen«, 10–36; L / T / V (2009) note Chap. III, »Les figures de l’anta-gonisme«, 175–198; C (2003).

46 C (2011) 159. See also the instructive studies (just by way of example) by: B (1998) 429–445; L (1998) 391–404; A(1997) 67–86; S (1993). For a bibliographic study on the renegades see: B / B (1989); B (2009) 131–146 and B (1996). The case of con-verted moriscos is a very fascinating and complex topic on its own. Suffice it here to simply mention one inter-esting yet in no way unique case. Essentially, in 1572 ahead of the 5th general Congregation, a morisco join-ed the Company of Jesus: Ignacio de

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And how to explain that the Muslims who voluntarily – and certainly sometimes forcedly – converted to Christianity could not escape violent expulsion from the entire Iberian peninsula be-tween the 16th and 17th Century despite their Christian faith? 47 Religious assimilation thus never was a conditio sine qua non to obtain social and, consequently, legal recognition. The Other thus remained a »social outsider« to paraphrase a concept developed by Pierre Vidal Naquet. 48 Fi-nally, to touch upon a very mystifying question: why was the stigmatization of Muslims and Prot-estants oen linked? Research has yet to yield a satisfying answer.

For several reasons, then, the Islamic past in Europe has remained a historiographic blind spot for a long time. While differentiated answers are still outstanding, we now at least know enough to draw a preliminary conclusion. The facts are there:

une large partie des territoires aujourd’hui in-clus dans l’Union européenne a été islamique, à un moment de son histoire. L’Europe a été par-tiellement islamique et donc partiellement mu-sulmane. Ce cas de figure concerne l’Europe balkanique sous domination ottomane, laquelle englobe la Grèce, avec Crète et Chypre; il con-cerne aussi Malte (…) une grande partie de l’Es-pagne et du Portugal ou de la Sicile … La France du Sud a connu une domination musulmane. 49

The anachronistic attempt to inscribe the »Christian roots of Europe« into the European constitution reveals both a challenge and a prob-lem. A challenge for Europe that seems to be held hostage: it defines itself by constantly refer-ring to a border of otherness occupied by Islam and strains to answer the questions: Can Muslims be

European? Can Europeans be Muslims? These questions go to the heart of the legal issue for European citizens as legal subjects. As for the problem, it simply leaves researchers from all dis-ciplines confused: How to escape all types of political discourse that heatedly addresses the prob-lems of integration and immigration, as well as the enforcement of Sharia that locks social scien-tists – but also lawyers – into a debate that is footed on the falsehoods of Christian or – at best – Judeo-Christian roots of Europe.

II. Islamic law in the history of European law

European identity was constructed not only through one’s own values, norms and institutions, but through the distinction with the Other. 50 If the factual lengthy presence of Muslims in Europe is increasingly confirmed despite strained and hos-tile relations, any reflection on the aspect of how Islamic law played into the legal development of Europe remains ambiguous, if not inexistent. This is all the more surprising as one path to define what Europe »is« leads to an understanding of Europe as a »Rechtsgemeinscha« (legal community), as Hall-stein famously put it.

The index in Wieacker’s grand study on the Privatrechtsgeschichte der Neuzeit 51 makes no men-tion of the issue of Islamic law. Likewise, the parts on the reception of Roman law contain no refer-ence whatsoever to any Islamic role or influence. The same goes for M. Wesel’s Geschichte des Rechts in Europa, 52 which merely mentions the Recon-quista while giving some legal meaning to centu-ries of Islamic presence and practice – including legal practice – in Spain. Matthias Schmoeckel

Las Casas (1550–1608), and became famous for his apostleship among the moriscos, Muslims, Jews and Chris-tians in the Middle East and North Africa. See in this context: E A(2006) 24 f.; B M (1988) 3–136. On the Hispanic monarchy, literature abounds. See for example: A A (2006).

47 A comparison with converted Jews in Europe who could not escape extinc-tion imposes itself.

48 V N (2009). The author gives full scope to the concept of the

social Other. Through the pages of the book, the historian delivers a study on women, slaves, foreigners, or others excluded from the City, which allows us to understand the core of intellec-tual, feminine, political, etc. Other and sheds light on the operation of rites of passage and transgressions.

49 D / V (2013) 8.50 For a general discussion of the highly

debated concept of collective identity see G / S (1999); with special reference to the problem of European Identity: G (1999)

143–168. See also: G /W (1999), in particular G about »Coding collective identity«, 13–43 and M about »The construction of collective iden-tities in Islam«, 206–229.

51 W (1967).52 W (2010).

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searches for these in his book Auf der Suche nach der verlorenen Ordnung, but does not mention the presence of a real or imagined law of Islamic provenance nor the fight against it. 53 To be honest, this finding can be pretty much generally applied. The grand master behind l’Europa del diritto, Paolo Grossi, 54 omits this debate during the very inter-esting section of his work on legal culture in Europe, despite his transcivilizational erudition. Without pretending to have exhaustively studied every publication on this matter, the present text shall concentrate on just a few manuals, to which to need to be added. Neuere europäische Rechtsge-schichte, by Hans Schlosser, who timidly touches

upon the subject during two occasions: first, indi-rectly, under the title Recht der römischen Kirche, where he recalls the merits of Arab philosophers Ibn Sina (Avicenna 973/980–1037) and Ibn Rushd(Averroes, 1126–1192) 55 in transmitting Plato and Aristotle within the »Islamic cultural space«. 56 The recognition of the philosophical merits of Averroes has also been a major concern for European painters, who oen approached this issue in a spirit of theological opposition or triumph (see Figures 1, 2 and 3). Nevertheless, he forgets to add that both of them are also legal scholars. Notably, Ibn Rushd, son of a judge (Qadi), exercised this func-tion himself in his native Cordoba, later rising to

53 S (2005).54 G (2009).55 S (2012) 29.56 Ibid.

Figure 1: Raffael (Raffaello Sanzio), 1483–1520, The School of Athens. 1509/1510, Rome, Stanza della Segnatura © ALINARI-ARTOTHEK

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the position of minister of justice. The text remains silent on his major influence on the reform of judicial administration. 57

The second brief mention concerns the first codification in the Islamic world, the Ottoman Majella from 1877 58 as well as the Turkish recep-tion of Swiss private law, neither of which are analyzed in any further detail. 59 Hattenauer does not treat Muslim law as an element of European law, but the long passages on Sicily and especially Spain do contain one key phrase deserving of attention: »Das Abendland erlebte eine moham-medanische Rezeption, deren Bedeutung für das europäische Recht bis heute kaum erkannt ist.« 60He also makes mention of the reception of »Euro-European« law in Turkey, which has not made the Turks Europeans, as we know from the debate on Turkey’s possible accession to the European Com-munity.

How might this unconscious oblivion or silence be explained? At least two explanations are worthy of being underlined. Firstly, the – apparently com-plete – negation by Wieacker remains present, albeit hidden and implicit. In order to describe the »proprium« of European law, the implicit refer-ence to Weber, opposing occidental and extra-

57 Ibn Rushd (1126–1198). His com-plete name is Abu’l-walid Muhamed Ibn Ahmed Ibn Muhamed Ibn Rushd, born in Cordoba and died in exile in Marrakesh. He is the great commentator on Aristotle and con-temporary of Maimonides (1135–1204), born in Cordoba and died in Cairo, the greatest Jewish thinker on the peninsula. Averroes is the archetype of the Muslim sage and erudite, even though he was mostly known as a doctor and philosopher. Before becoming a doctor during the time of the Almohad sultans Abu Yaqub Yusuf (1163–1184) and Abu Yusuf Yaqub Al-Mansur bi-llah (1184–1199), Averroes was initially a qadi (judge), then minister of justice. He le behind an impressive œuvre in the fields of law, theology, philosophy and medicine. It is to him that we owe the model idea, taken over by Renaissance thinkers later, that two truths, faith and reason, could neither be contradictory nor completely can-cel each other out and that revelation and philosophy can be reconciled.

The contribution to law made by Ibn Rushd remains insufficiently ex-plored. For Europe, recognition – focused on philosophy – is generally timid or approached in a spirit of theological opposition or triumph. In the Arabo-Islamic world, he remains marginalized beyond specialized fields of studies and, paradoxically, remains at times less known than in the West. For a primer on these questions, see: A P (1941) 15–72; P (2011); A(1270). On Averroes as one of the major actors in the theological and philosophical controversies in Islam, see for instance: C (2006), 59–68 and esp. Chap. V: L’esprit de Cordoue. La tolérance en modèle, 84–96.

58 In reality, the Ottoman Majella is not a true systematic codification of civil law (contracts, torts, general princi-ples of law, …), but rather resembles a compilation of Islamic legal rules essentially inspired by the Hanafischool. Besides the Majella, legal mix-ing and legislative borrowing are

two extremely fundamental pheno-mena in the study of both »pre« and »post« colonial Arabo-Islamic codifi-cations. From the mid-nineteenth century, the Ottoman Empire had, in fact, embarked on a series of codi-fications even before the Majella, which were largely inspired by French law. This is the case for the Code of overland trade of 1850 and the Code of maritime trade of 1863, the Penal code of 1858 and the code of penal procedure of 1879. See: S (2008) 463 and note 4. On the crossing of Islamic and European sources, their colonial usage and legal hybrids: S (2009). Cf. further: E B (1988–1989).

59 S (2012) 319.60 H (2004) 191.

Figure 2: Raffael, The School of Athens, detail: Averroes© ALINARI-ARTOTHEK

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occidental legal tradition, seduces this author to exclude »the Other«:

Indem sie ein rationales Prinzip fand, das den gewaltsamen Austrag menschlicher Konflikte wenigstens innerhalb der Staaten ersetzte, hat die Jurisprudenz eine der wesentlichen Vor-aussetzungen für den Aufstieg der materiellen Kultur, besonders der Verwaltungskunst, der rationalen Wirtschasgesellscha und selbst der technischen Naturbeherrschung der Neu-zeit, geschaffen. 61

Such a reading turns Qadi justice, and conse-quently its religious roots, into an inherent char-acteristic of Islamic law or a type of »validity

culture« (»Geltungskultur«); 62 the interpretation further excludes any chance of rationalization from the outset – something that really is not in keeping with the meaning of Weber. Further, – and here I arrive at the second reason – irrationality has no place in the history of a civilization that declares – and »self-describes« – itself rational. To put it more clearly, if in theory and socially any construction of an identity of self necessitates an Other, Muslims – both in their real and imagined guises – and even every non-Muslim element that nonetheless be-longs to the Islamic world is excluded by the irrationality and sometimes even savagery 63 that is attributed to it.

All the above said, there are certain voices in Spain and beyond that have carried out a discourse

61 W (1967) 69.62 Cf. his latest contribution, G,

The concept of validity culture (forthcoming); see as a first formula-tion of the concept: G /S (2012) 103–137.

63 The savagery of the Arabs, Indians or Sub-Saharan Africans is a central

ideology during the colonization, massacres and extermination carried out by the West. For the normative colonial example of France: »Depuis le début du XIXe siècle, une littéra-ture ouvertement raciste souligne le caractère incivilisé ou mal civilisé de l’arabe, intimement lié à sa religion.

En effet, la ›bestialité‹ des indigènes musulmans est constamment souli-gnée pour légitimer la politique co-loniale en matière juridique (…). Dans cet esprit, la politique coloniale française pratiquée en Algérie, en In-dochine, en Nouvelle-Calédonie, en Afrique Noire a procédé selon une

Figure 3: Andrea di Bonaiuto, 1365–1367, Triumph of St.Thomas and Allegory of the Sciences, Spanish Chapel, Basilica of Santa Maria Novella, Florence, Italy © Peter Barritt / SuperStock

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on the presence of Islam in the normative history of Europe. Besides Spain, such discussions have mainly taken place in Sicily and England, who are also affected by the underlying influence of Islamic law, not to mention France, the Balkans, etc. One of Richard Potz’ most recent works is remarkable in this regard. 64

III. Islamic pasts in Spain: A problem of overlapping legal cultures?

At the turn of the century and up to the 1940s, a new and remarkable historiographic and Arabistic perception of history pushed aside the Islamic past, buried and denied it. The past thus dissolved – or at least almost did, as the controversy has moved to Latin America and particularly Argentina 65 –, only to reappear at the end of the 1970s, so aer the end of the Franco regime.

***Digression on mediators of cultures: interaction and overlap of cultures

The Arabist Miguel Asín Palacios is certainly one of the key figures. His academic contribution continues to influence institutions, Arab and Is-lamic studies in Spain and elsewhere. Born in Zaragoza in 1871 and died in 1944, 66 his remark-able academic career, 67 but especially his abun-dant, innovative and provocative works, have never ceased to elicit controversy. Asín Palacios had em-

braced in his works a very vast field of historical, mystical, philosophical and even botanical 68 re-search of Hispano-Islamic cultures.

Beyond a simple naïve affiliation or superficial influences between religions and Islamic and Christian cultures, Asín Palacios offers with scien-tific rigor, with reference to Arabic or translated texts, relevant assumptions on complex overlap that span centuries between Islam and Christianity in their dimensions of mysticism, literature, lin-guistics, philosophy, sociology, etc. He offers an intellectual process which, while not wholly iso-lated from a whole Spanish movement with some-times »European« dimensions, has, it must be admitted, remained quite timid and isolated. One need but recall the exchange of young Asín Pala-cios 69 with the man who assured in large part, from the late nineteenth century, European access to Islamic law: Ignaz Goldziher Isaac Yehuda, the founder of modern Islamwissenscha and a source on Islam to Max Weber. 70 His Sephardic ancestors settled in the seventeenth century in Hamburg, later in Berlin and Vienna to finally land in Hun-gary, where he was born. 71 What is interesting about Goldziher, in addition to his extraordinary knowledge and recognition of Muslim religious authorities (who respected him to the point of naming him by the honorable title Shaykh) 72undoubtedly remains his merit of having tried, even if not always succeeded, in providing an impulse of Kulturgeschichte to Islamic studies – including those centered on law. Then the question arises: was there an affinity between his work on

sélection raciale«, S (2012). See the passage »Du droit comme me-dium de conflit et de fragmentation normative. Le musulman ›incivilisé‹ et la ›déjudaïsation‹ des juifs: un cas algérien«, 245–246.

64 Cf. e. g. P (2011).65 Cf. the following analysis.66 His family, which settled in Zaragoza,

originated in Aragon and Rioja. For a comprehensive bibliography, see esp.: G G (1944).

67 Without presenting his career in de-tail, suffice it to mention that apart from being a member of the Acade-mia de Ciencias Morales y Políticas (1912), co-founder of the Centro de Estudios Históricos and of the journal »Cultura Española« (1906–1909), he was member of the Real Academia de

la Lengua (1919), president and then, as of 1943, director of the Escuela de Estudios Árabes of Madrid and founder of the journal »Al-Andalus«, created in 1933.

68 A P (1943).69 Correspondences from Zaragoza, his

city of birth.70 Max Weber’s indirect access to Islam-

ic law and the fact that Goldziher was one of his main sources evidently raises many questions concerning the influence of Weber’s sources on his perception and his theory on the Is-lamic legal culture.

71 June 22, 1850 in Stuhlweißenburg.72 Goldziher was one of the rare Wes-

terners to frequent the prestigious Al-Azhar University in Cairo during 1873–1874. This fascination and res-

pect seems to have been mutual: The Egyptian Shaykh deeply admired him for his knowledge and as for him, he did not hide his pride in being one of them, as his signature »The Hungar-ian of Al-Azhar« (al-Majari al-Azhari) is testament to. For more details and an account of the influence of Gold-ziher’s thoughts on Weber, see: D(2007) 503 f.

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fiqh and Islamic theology on the one hand, and the design of an Islamische Rechtskultur (which includes aspects of popular life of Muslims ) conveyed by means of Sephardic Jewish culture from which he might have benefitted? Here lies a vast field of research that could enlighten about meetings and hybridization of the Muslim and Jewish medieval Spanish legal cultures and their infiltration in the history of European law through Jewish carriers, hidden Muslims, hidden Jews or converts to Chris-tianity from both religions. 73

Is it a coincidence, for example, that Goldziher was one of the foremost experts on the Zahirischool of law, that was especially highly developed in Al-Andalus, 74 to the point that during the Sixth International Congress of Orientalists held in Lei-den in 1883, and aer reading an excerpt from his book Die Zahiriten, 75 Shaykh Amin of Medina was so fascinated by Goldziher’s knowledge that he declared him even a Shaykh of Islam? 76 And is it a coincidence that Asín Palacios, a devout Chris-tian, shows overlaps with Goldziher in his works on Ibn Hazm, the »carrier« of the Zahiri school of law in Al-Andalus, who later disappeared? 77 Or with Ibn Massarra and the origins of Hispano-Muslim philosophy, 78 thereby realizing the desire expressed by Goldziher, who hoped for further study of this school in order to better understand and grasp controversies related to it?

Asín Palacios did not work directly on law. He was more of a mystic – marked by Muslim spiri-tuality 79 – than a lawyer. A young student of Sufism, he »(...) thought himself to be something of a Sufi«. 80 Yet his literary and mystical studies could certainly contribute significantly to the his-

tory of Hispano-Islamic law. Why? For complex and intricate reasons. If it is true, indeed, that the most global resonance he received is that linked to his speech held on the occasion of his entry into the Real Academia Española: La escatología musulmana en la »Divina Comedia«, 81 the importance of his reasoning, his assumptions so shocking and pro-vocative to a Spain – and a Europe – that was defensive about everything that reminded it of its Islamic past, does not lie in the influence and exchange with Islam only; but also in new avenues opened to explore the normative universe of the Islamic past in Europe in a broad and multidimen-sional sense. By showing that Dante had used a text by Ibn Arabi to make his journey to the aerlife, he assumes the existence of a translation accessible to Dante (this would later be confirmed), 82 thereby opening an entire field of research. First, why did the theological, philosophical, literary and maybe legal Christian spirit voluntarily read, study, trans-lated and become inspired by Islam just in order to abdicate the latter’s culture, to deny it and wipe it out later? Secondly, what can these revelations – like the discovery of new, previously inaccessible, untranslated or hidden texts – tell us about Islamic normativity, and particularly legal normativity?

This Islamic legal knowledge does not flow ex-clusively through the law. Poetry, literature, mysti-cism, songs, etc. all form valuable access points.

Between Dante and Ibn Arabi, but also all the rich literature on »al-Isra’wal Mi’raj« and the names that come up in the book by Asín Palacios such as Abul- 'ala Al- Maárri and many others, 83 new knowledge of the logic of »monitoring and punish-ing« in Islam emerges (see Figure 4). This Arabic

73 This is a serious hypothesis, yet one that deserves rigorous legal historical research to verify its veracity, as well as that of the influence or infiltration of the model of legal education repre-sented by Muslim Madrasa in English law by means of converted Muslim carriers or Jews, as the latter also had their own form of Madrasa.

74 Zahirism is a literalist Sunni school of thought that emerged in the 9th

Century in Ispahan, Iran. It was founded by Dawud Ibn Ali Al-Asfa-hani (815–884). From the 8th Centu-ry, a theological and legal argument was in full swing in Islam between, on the one hand the people of the hadith (Sunna: second source of law)

and the people of the opinion: the ra-tionalists. On account of its literal-ism, the Zahiri school le no leeway to the judge, who could refer only to the Quran and the Sunna. Its greatest proponent and supporter in Al-An-dalus was none other than the poet, philosopher, theologian and jurist Ibn Hazm Al-Andalusi of Córdoba.

75 G (1884).76 This formula expresses the highest

formal recognition in Islamic »hier-archy«.

77 A P (1907); A P(1934); A P (1939). See al-so: A (2012).

78 A P (1914); A P(1992).

79 Much like many Westerners such as: Nallino, Massignon, Nicholson, Horten, Nyberg, Macdonald etc.

80 A (1943) 61.81 In 1919.82 We know today that there exists a

Spanish version of »La Escala de Ma-homa« dating back to the time of Alfonso X as well as two translations in Latin and French, cf. E A (2006) 173.

83 See the fascinating analysis by Asín Palacios: La Leyenda del viaje noc-turno y ascensión de Mahoma cote-jada con la »Divina Comedia«, A P / R (1919) 25 f.

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Figure 4: Farid al-Din Attâr de Neychâbour (1436): Le Livre de l'ascension du Prophète. Me'râdj-nâmeh. Mirâdj nâme, Copiste: Harou Malek Bakhchi © Bibliothèque Nationale France

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literature, widely regarded today by the radical and sometimes even hard Islamists as blasphemous and dangerous books, should be reread and studied in the light of their own history, but also in the light of interaction with Europe. Al purgatorio islámico is not, in fact, only a matter for theology or literature, but also a deeply legal one. One need only compare fieenth century engravings depicting the Prophet Muhammad on his buraq in hellin front of scenes of torture inflicted upon »sinners« and what, cen-turies later, certain Europeans (specifically French), le to wage jihad in Syria, drew on walls in Aleppo: scenes of divine punishment in hell! (See Figure 5)

Between Giovanni Boccaccio and the person who inspired him, his contemporary the mysteri-ous Ali Al-Baghdadi, 84 storyteller at the Mamluk court in Egypt, the normative question is no stranger either. It is known today that the trouba-dours are indebted to the Arab courtly poetry that was passed on via Spain. The »Nouvelle occidentale aurait aussi profité à travers d’autres chemins de lecture et de diffusion, qui sillonnent une autre époque«. 85 However, while the Western version was written for an elite, the Oriental one addressed a popular audience one with a work that, itself, drew on popular inspiration. This is yet another facet of Islam that emerges ... 86

The mystique and jurist 87 Ibn Arabi has devel-oped another particular facet of Islam emerging in Andalusia. According to him, God as the »funda-mentally Other« is a desire to reveal himself by way of the infinity of his names. In other words: if the

human being is a divine creation, God is also a human creation through the response to the desire of knowing him. It is also him who has put for-ward mostly the analysis of love: a theory of love in front of the face of the other. 88 Remember the famous poem by Ibn Arabi:My heart has become capable of every form:it is a pasture for gazelles and a convent for Chris-tian monks,and a temple for idols and the pilgrim’s Kaa'ba,and the tables of the Torah and the book of the Quran.I follow the religion of Love: whatever way Love’s camels take,love is my religion and my faith.

Furthermore, we still have to wait for the results of the analysis of recently discovered documents in Arabic language in the 16th century (La Colección del Sacromonte del Archivo de la Real Chancillería de Granada) delivering important hitherto un-known information about a movement of religious syncretism among the moriscos under the threat of being expelled. 89

This type of interaction between theology, mys-ticism, philosophy, poetry, literature … strikes us as exemplary for exchanges between the Islamic world and Europe that emerged from the 15th

Century on …***

Let us now approach the legal texts more directly. José López Ortiz (1989–1992) is consid-ered the founder of »Spanish Arabism in its legal

84 For the record, the original manu-script of Baghdadi was ignored and forgotten for a few centuries. It had been related by mistake under a false cover page in the eighteenth century. The name of its real author was not known until aer the false binding had been removed. In addition, the literary debate on the link of this work with Boccaccio is still open. See in this regard the introductory remarks by the editor and translator of Baghdadi: K (1989).

85 K (1989) 17.86 A tolerant Islam that has no qualms

in dealing with Christians and Jews, bon vivant, because – in imposing its law on the feminine element in par-ticular – it tolerates wine, erotic dan-ces and even an uninhibited female sexuality verging on libertinism.

87 Ibn Arabi has developed an interest-ing theory of legal pluralism in Islam … However, his works have been attacked or marginalized by jurists and even Sufi scholars.

88 Jacques Lacan refers to Ibn Arabi in a famous conference in 1960, when he remembered the encounter Averroes and Ibn Arabi in Andalusia, saying that his proper standing as a psycho-analyst is more on this side of the mystical than that of the philosopher.

89 »El evidente trasfondo histórico está en su relación con uno de los acon-tecimientos históricos más impor-tantes de la Granada del siglo XVI y que andando el tiempo afectaría a los reinos de la monarquía hispánica: la rebelión de los moriscos de la región de las Alpujarras entre 1568 y 1571 y su expulsión definitiva de los territo-rios de la corona española en 1609. La

abundante historiografía se ha ocu-pado extensamente de este tema en todos sus aspectos, y coincide en que este fraude, fraguado durante años, constituyó un audaz intento de sin-cretismo religioso y resistencia inte-lectual por parte de los moriscos granadinos a su expulsión; un des-esperado intento por integrarse en la nueva sociedad cristiana que los Reyes Católicos habían proyectado para el recién conquistado reino de Grana-da.« I wish to express my thanks to David Torres, Director of the Archive of the Chancillería Real at Granada, for giving me the opportunity to see these documents in the process of restauration and providing back-ground information on the collec-tion.

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dimension«. 90 Next to him, Salvador Vila, presi-dent of the University of Granada, published sev-eral fundamental works on institutional, notary (more on which below), matrimonial, etc. aspects of Spanish Islamic law in the 1930s 91 but also on German contributions to Arabism. 92 The death of Ortiz and the premature passage of Vila put a break on this type of research to such an extent that Alfonso García-Gallo paints the picture of an orphaned Islamic law: »(…) el Derecho musulmán dejó de encontrar por entonces entre nosotros quienes se ocuparan de él». 93 In fact, this claim needs to be somewhat relativized, as other research-ers showed interest in the traces of Muslim lawyers in Andalusia and all of Spain, such as: Rafael Castejón Caldéron with his work Los juristas hispa-no-musulmanes (1948) 94 or La Historia de los jueces de Córdoba por Aljoxaní by Julían Ribera, which preceded it (1914). 95 By and large, however, it was only as of the 1980s and particularly as of the 1990s and 2000s that »Muslim and Jewish elements«, as Gibert and de la Viga put it, were properly inves-tigated in the history of Spanish law. 96 To name

but a few legal scholars engaging in such research: Bruno Aguilera Barchet, 97 Magdelena Martínez Almira, 98 Jesús Lalinde Abadía, 99 etc.

Generally speaking, the recognition of two legal systems – a Muslim and religious one for Arabs and a civil one for Christians – dominates the discus-sions. Nevertheless, interferences and linkages be-tween these normative universes have been proven through several studies including the following books: the work by Averroes on the legal sagacity of Arab Spain; Kitab al Qadi (book of the judge) on the history of judges in Cordoba; 100 Código de las Siete Partidas 101 of king Alfonso X in which parts dedicated to legal rules applicable to Jews and Muslims showcase linkages and even what is com-monly called an example of »conviviencia«; 102 and who could deny the crucial role of the Escuela de Traductores de Toledo? Numerous Arab manuscripts and books were translated into Latin and thereby transferred the essentials of Antique Greek and Roman heritage and – in the process – what the Islamic world was able to include, add, adapt and enrich. The nesting not only of knowledge and

90 »Arabismo español en su dimensión jurídica«, M D (2007a) 189.

91 Cf. for example: V (1933); V(1931). For fundamental reflections on the history of legal literature, see further: U S (1906a); U S (1906b).

92 This particularly concerns the trans-lation of the book by Adam Mez in

1936: El renacimiento del Islam. On his studies in Germany and his biog-raphy, see A (2005); M D (2007b).

93 G-G (1982).94 C C (1948).95 R (1914).96 G / D L V (1994).97 A B (2007). Cf. fur-

ther A B (1991).

98 M A (1999).99 L A (1983).

100 I R (1895).101 A X / R A

H (1807).102 The medieval concept of »conviven-

cia« in Andalusia deserves a dedicated study. For a literary study, see: K (2005).

Figure 5: Graffiti in East Aleppo (2013/2014), a hadith attributed to the Prophet Muhammad, explaining the divine punishment for blasphemy: that is to be tortured with fire in hell © France 24

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cultures, but also of languages is fascinating. This has been demonstrated for Castilian with Arabic characteristics and vice versa, or also rabbinic Hebrew elements in Arabic … 103

Finally, and perhaps most importantly: they represent a type of text that bears witness to the documentary and historiographic complexity (and perhaps invisibility) of Muslim law in the historical landscape in general. This law of the Other sud-denly becomes transparent, evaporates. Legally and sociologically, it sends us back to at least two extremely complex historical phenomena upon which to reflect.

The first, Las Leyes de Moros, is an anonymous 14th Century manuscript written in Castilian and first published in 1853. 104 This famed text from the Real Academia de la Historia on the reception of Roman law in Spanish law is in reality but a partial reprise and summary of the Maliki treatise on jurisprudence Kitab al-Tafri` by Ibn Al-Gallab. We have this knowledge thanks to studies con-ducted by several Spanish scholars starting in the 1990s that confronted the different versions of the Leyes de Moros with the Arabic text by Ibn Al-Gallab, such as the studies by: Alfonso Carmona González, 105 Alvaro Galmés de Fuentes, Soha Abboud Haggar. 106 They were actually preceded by the historian Eduardo de Hinojosa y Naveros who already underscored the influence of Roman law in the construction of the private law of Spanish Muslims in an 1885 article entitled »La introducción del studio del derecho romano en Castilla«. 107 Without delving into the complex details of this manuscript, it is easy to see how the circulation of Roman law and Muslim law was fluid and permeable. 108 Naturally, many questions on the interference, influence and overlap of these legal systems arise. On the European side, the reluctance and lack of specific knowledge – includ-ing among Romanist lawyers – is the dominant impression. The Arabo-Muslims, in turn, de-nounce such an idea for lack of knowledge ampli-

fied by cultural narcissism. In any case, some proclaim, if one of the systems influenced the other, it can only be the Muslim one! 109

Regarding the interferences and late reception in different European systems – including the Spanish one – the question does not only concern lawyers. One should recall that, particularly in the case of Spain, the historical controversy between Américo Castro and Claudio Sánchez Albornoz on the role of Arab culture in Spain remains relevant today. Albornoz wrote on La España musulmana según los autores islamistas y cristianos medievales(Buenos Aires, 1946). But it is particularly his work España, un enigma histórico published in two volumes in Buenos Aires (1956) where he defends his thesis of the continuity between Visigoth Spain, Christian Spain and Arab Spain. Castro, on the other hand, defends his thesis of complete rupture in his book España en su historia: cristianos, moros y judíos (Buenos Aires, 1948). This chapter, which moves the discussion to Latin America, is certainly of exceptional importance in that it does not only touch upon the Islamic past in Spain, but also upon the historical and identitary implications in Latin America itself: this deserves in-depth study in itself.

The second phenomenon, El Breviario sunni in Segovia written in 1462 tells of a complex process during which the social body of the Other – as concerns the bias of his law – adapts, morphs or dissolves into the social landscape in general. Let us not forget the historical context of the period in question.

Around 1578, Muslims disappeared completely from Portugal (much like Jews, incidentally). From 1536, the inquisition hunted hidden Jews, hidden Muslims and Muslims. Records of their trials 110 show that these Muslims who converted to Christianity did not take communion, had trouble understanding the prayers, yet were not Muslims either. They were mostly identified by their practice of endogamy (a bad sign for integra-

103 On the importance of the Toledo school and the mingling and mixing of languages, see G P(1929), esp. 171 f.

104 G / R A L H (1853).

105 See e. g.: C G (1994); C G (1993); A H (1997).

106 A H (1997).

107 H N (1885) 320 f.108 The question of dating is central to

this type of research. See for example: V R (1987–1989).

109 For this sentiment, see A-A(1991) 90 f. However, specialists such as W. Hallaq, Makdisi, Vesey-Fitzge-rald and others have dealt with this issue in a more differentiated way.

General studies, however, remain few and available studies in Arabic are exceedingly rare.

110 These archives are increasingly min-utely studied by historians and inci-dentally also expose Spain to the richness of information they deliver on that period.

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tion), by having one evening meal or by speaking Arabic. Unlike in Spain, Islamic law ceased to play any role. As for the Muslims chased out of Portu-gal, they travelled towards Castile from where their descendants would eventually also be expelled.

In Spain, Islamic law played an unprecedented and major role. Andalusia remained Muslim until 1492 and from the conquest in the 8th Century until then, Muslims were able to develop an

essentially Maliki legal system 111 which was unique in the entire Arabo-Islamic world 112 and featured a highly developed judicial organization. 113 While Muslims, Jews and Christians did coexist, their relationship became tense at the end of the 15th

Century, and all too oen ended in forced con-version to Christianity (see Figure 6). This was followed by the first deportations following the Alpujarras revolt (1568–1571) and ended in depor-

111 Other legal schools were influenced by Malikism, but with a much more limited impact. This is the case with the Shafii and Zahiri legal systems, for example.

112 The originality of Spanish Malikism is linked to major efforts made by An-dalusian Maliki lawyers and judges, on the one hand, and also has histor-

ical, theological and sociological rea-sons which cannot be discussed in-depth here due to their complexity. Incidentally, there is abundant litera-ture on this subject. See, for example: L-O (1930), (1927) and (1931); C Á (1988) and (1995); A-H A-H (2002); B-L (2009).

113 M (1999); P P(2000) and (1999); R (1914); M A (1970); L-O (1932).

Figure 6: Felipe Bigarny, 1475–1543, Relief depicting the baptism of the Moorish of the Kingdom of Granada, 1520–1522. Royal Chapel, Cathedral of Granada, Spain © Iberfoto / SuperStock

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tation and definitive expulsion of los Moriscosbetween 1609 and 1614. The Christian Reconquista, whose main phase occurred in the 12th and 13th

Century, led to the assimilation of the Muslim population 114 through the majority Christian so-ciety. Muslims formed mudéjar communities that theoretically maintained their institutions in ac-cordance with the terms of surrender. Except that integration into Christian society for those who so chose came at the price of conversion or abandon-ing the Arabic language. These thousands and hundred thousands of »new Moorish Christians«, to distinguish them from the conversos, the Chris-tians of Jewish origins, evaporated, they became transparent or invisible.

Their traces and faces are lost. Those who main-tained a communal structure »formed morerías, separate quarters in cities, both large and modest, such as Avila, Burgos, Segovia, Valladolid, etc. The morerías kept their judges (qadis), their juries, their municipal and religious personnel« 115 But in real-ity, they were subject to discriminatory treatment: »certains métiers leur sont interdits. Ils sont censés porter un signe distinctif, obligation qui n’est pas toujours respectée. Les vêtements de luxe leur sont également interdits«. 116 Later, once the waves of forced conversions broke starting in 1500, the alfaquís, legal and religious dignitaries were out-lawed. Butchers, midwives, circumcision, the use of Arabic, the giving of Arab names and even jewelry and baths suffered the same fate. The battle over the female headscarf or public and private spaces was also in full swing. The headscarf would be forbidden and converted Muslims, under con-stant suspicion, had to leave the doors to their homes open to verify their loyalty. 117

In the midst of this tense atmosphere, and even starting somewhat before that, a new type of Is-lamic legal literature emerged to serve as a bridge, a passageway between two religions, two social groups and two normative universes. From then on – much like the almost parallel, yet different

route taken by the Jewish community with the »tagganot« from 1432 – Islamic law sought to restore the Muslim community’s socio-legal posi-tion, which had greatly suffered – again, much like the Jewish one – from forced conversions. Cultural disarray can detect social plasticity and mimetic stress where renunciation of difference moves the momentum towards law which becomes a place of exile, permeability and construction of a double-sided face, and an identity caught in the middle that is supposed to hold two sets of keys to two cultures.

For instance, in Segovia, Issa ben Gebir, the great al faqí and mui of the mosque was asked to dra the Breviario Sunni in 1462. In his intro-ductory remarks, the author highlights the cultural and legal problem faced by morerías who were no longer able to read Arabic and had lost their tradi-tional education. He had been asked to write a short book in literary Spanish that was short and easy to read by all with no room for excuses. 118Legal and religious topics were thus presented in a literary style previously unseen in Islamic law. Besides the genre or medium of communicating legal rules, it is especially the overlap and linkage of different normative orders that draws attention. The absorption of the Muslim normative order with others (Jewish or Christian) and vice versabecomes more fluid and hard to ascertain, as the borders become hard to trace and the normative picture is blurred. This type of compilation is not unique, as reference to the famous Tuhfa (the jewel) by Ibn Acem reveals. 119 A wonderful compendi-um of Maliki law composed in the form of poems in which legal rules that achieve a high level of abstraction become easy to integrate in different legal systems. Moreover, the originality of the Tuhfacertainly lies in its at times »humorous« legal style married to a hint of feminism when it comes to rules of evidence of ownership of property belong-ing to the husband in case of separation for example. 120 To laugh and make law in Islam was

114 For a unique case of assimilation, see: G P (1995).

115 »(…) forment les morerías, quartiers séparés dans les villes, grandes ou modestes, telles qu’Avila, Burgos, Segovia, Valladolid, etc. Les morerías conservent leurs juges (les cadis), leurs jurés, leur personnel municipal et religieux«, V (2012) 23.

116 Ibid.117 On this dark chapter of Spanish

history, see for example: G-A (2009); V (2010); D-O / V (1978); D (2007). One must recall that the relations between Muslims and Gypsies that featured mutually en-riching interactions between the 14th

and 15th Centuries is oen kept silent, without forgetting the terrible perse-cution which the Gypsies suffered. Cf.: M D (2010).

118 W (1994) 125 f.119 H / M (1882).120 Cf. the Arabic version I A

(n. d.) 28.

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Figure 7: Ibn Asim de Granada, Tuhfat al-hukkam, El tesoro de los jueces. Adquirido en Tetuán, siglo XV, Códice de Tetuán, n° XXXIV-1 ©Fundación El legado andalusí/Biblioteca Municipal Central de Córdoba

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also one of the particularities of the Islamic law of Al-Andalus, as can even be seen in the title of the original Arabic version: Matn al-Asimiya al-musama bi-Tuhfat al-Hukam fi nukati al’ukudi wal- ahkam ’ala madhhab al-imam Malik …, »nukati al’ukudi wal- ahkam« meaning literally jokes of contracts and legal verses. 121 (See Figure 7)

Assuming an Islamic past with all the conse-quences that flow from it – both at the legal and at the social level – has largely passed by the Spanish context. Historians and theologians took the de-bates into account and all of Europe is affected. In this regard, the debates from the 1950s and 60s are of particular interest.

For historians of Spanish law, the work remains to be done, as this field of research remains largely unexplored. In his preface to the new edition of his book on the history of Muslim Spain, Lévi-Pro-vençal remarks that the classic work by Dutch author Reinhardt Dozy, published in 1861, stops at the conquest of Andalusia at the beginning of the 12th Century. On the morisques, there were »a few chapters« 122 barely disseminated (according to Lévi-Provençal) in one of the grand monographs by Altamira and de Bellesteros. 123 In actuality, the coverage of Islamic history, let alone Islamic law, in the writings of Rafael Altamira is very minor. In his 1903 book Historia del derecho español, for example, Muslims and Jews are mentioned in passing in a chapter entitled »La costumbre en la historia del derecho español«. In a very vague manner, Altamira mentions the formation of »new customs« that flowed from the special circumstances of these times and from »the typical cantonalism of medi-eval life and from contact with Muslims, Jews and European people who had come to Spain«. 124Historically, an »estimable« 125 excessively hasty re-view was conducted by González Palencia in his short book Historia de la España musulmana. 126However, the merit of clarifying translations, bor-rowing or mimicry is indisputable. Positions with-in the Muslim judicial organization morphed in the context of different Spanish institutions: sahib

al-madina, whom one could call the civil governor, became prefecto de la ciudad, an almost literal trans-lation; sahib al-xorta became prefecto de la guardiaand even sahib al-leyl (what in Arabic literally means: the friend of the night, or he who accom-panies the night), would become prefecto de la guardia nocturna. These positions that had been painstakingly institutionalized in southern cities such as Córdoba and Azzahra would be transposed to Christian cities aer the Reconquista: to Zar-agoza, Toledo and others. 127 Particularly during the 12th and 13th Centuries and in several cities such as Aragon, Toledo, Seville or Murcia, the function of alcadí (literally judge in Arabic) was inseparable from the title of vizir 128 (wazir in Arabic), i.e. minister. This function which held the highest social representative role would be imitated by Christians, as Palencia points out, and gradually transferred to that of alcalde, or mayor. Further, the word alcalde is not far removed from that of the judge-minister, alcadi. In some instances, the imitation simply consisted in trans-lating the name of the function: jurado (sworn juror) is the translation of almohtalef or almohalefin Arabic, maestro de la seca corresponds to saheba-ceca (ceca is Arabic for money). Nevertheless, the most important of all positions derived from Mus-lims is, according to the author: »la justicia mayor de Aragon copiado del Sahebalmazalim (juez de las injusticias – literally the judge of injustices) que existía en el imperio de los Califas«. 129

This article does not aim at showcasing the influence of doctrines and legal institutions that can be traced back to Islamic traditions (espe-cially, but not only in commercial law). This difficult analysis of legal transfer and subjacent reception has to be le for another occasion! Let me evoke only one example: contracts among Christians and Muslims about the selling of lands and houses formulated in Arabic terms and explicitly in conformity to Islamic law and re-maining valid aer the Reconquista of Granada. 130(See Figures 8.1 – 8.2)

121 I A (n. d.) 9.122 L-P (1950).123 »(D)isséminés (selon les termes de

Lévi Provençal) dans l’une ou l’autre des grandes monographies d’Altami-ra et de Bellesteros«, ibid.

124 »(...) del cantonalismo típico de la vida medieval, ya del contacto con los

musulmanes, judíos y gentes euro-peas que venían a España«, A(1903) 87.

125 Term used by L-P(1950).

126 G P (1929).127 G P (1929) 197.128 Ibid. 198.

129 Ibid. 199.130 Documentos Árabes del Archivo

Municipal de Granada (1481–1499). Sales contract between Muslim sib-lings and a Christian, 26. Chaaban 904 (8. April 1499).

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Historians like Richard Konetzke of Cologne, defend the thesis of a medium between Sánchez Albornoz and Castro. Such was the case during a major conference which was held in Cologne in 1957 under the title »Orient and Occident. The current state of large medievalist collections«. Such a thesis does not provide, however, any answers concerning the influence of Islamic law and Span-ish law. Konetzke’s distinction between the theory of the Quran and different practices of Spanish Muslims remains very ambiguous 131 and accord-ing to him the Reconquista could be ascribed only to a war of religions. 132 Further, there is a big problem for the Catholic Church: the Inquisition. How many Protestant, Muslim, Jewish and indig-enous victims were there? This not only concerns the moriscos in Spain, as one should not forget the indigenous population of Latin America who were massacred on a large scale across an entire con-tinent. The book Historia de la inquisición en España y América, published in 1993, 133 indicates parallels that have yet to be further developed and re-searched. In Spain, the Inquisition brought about the »pedagogía del miedo« (pedagogy of fear) or forced conversion. Then there was the statute on the »limpieza de sangre« (purity of blood) that, in the 16th Century, forbade moriscos from physically mixing with »old Christians«, they were excluded from »a great number of institutions: civic, reli-gious as well as colleges and universities«. 134 Even worse, this statute prohibited old Christians from having sexual relations with individuals whose ancestry did not conform to theirs. In a recent study published in 2009 entitled Deportados en nombre de Dios. La expulsión de los moriscos …, Raphael Carrasco insists on an overwhelming real-ity: the exclusion of moriscos from a large number of academic, civic and religious institutions. These statutes, he claims, were not a response to a deliberate royal policy, but to a social demand by ordinary Spaniards. 135 Excluded, harassed, sus-pected and persecuted by the Inquisition, one group became increasingly foreign to the other. Identities mingled, were transformed and broken. Hundreds of thousands of beings 136 became invis-

ible or evaporated with their bodies and souls, their old and new religions and their at times Islamic identities.

We all know about later episodes of such a scary process in Europe in the 1930s and 40s. Did Christian Spain really mirror the effects of the dhimmi status – developed by Muslims for non-Muslims in Islamic territories – and apply them to moriscos or to the indigenous population in South America? Why did such a religious and legal statute result in a cruel exclusion of the Other? It is true that the outdated concept of dhimmi in Islamic territory did not escape a perverse functionaliza-tion through those in power in times of tension or war. This, perhaps, points to the universal character of the problem: the Other is oen perceived as a nuisance and someone unbearable, to one as to the other. But the Other is at the same time necessary for the process of distinction.

The history of entangled legal culture demar-cates the invisible line between the interior and the exterior. This article is not meant to explain the question where this lack of memory about the boundary definition of the other by way of legal otherness in European History comes from. From the Balkans to the Mediterranean area, Sicily, Southern France, Al-Andalus and even to Britain, a subjacent trace of Islamic cultures with specific normative traditions delivered a folio from which »Europeanness« was to be distinguished. Insofar, the excluded have become part of the story of European identity. But this story has still to be told as a rather complex narrative.

IV. Conclusion

Europa hat sich immer nur gegen etwas, nie für etwas zusammenschließen können. Europa er-lebt seine Einheit vor allem dann, wenn es um die Abwehr einer gemeinsamen, gedachten oder wirklichen Gefahr geht, und es verliert diese Einheit, wenn die Gefahr verschwunden ist. 137

131 K (1971).132 Ibid. 226.133 P V / E

B (1993).134 V (2012) 26.

135 C (2009) 42–56, this debate still remains open, of course.

136 Raphael Carrasco claims a figure of 200,000 new-Christians who, in the middle of the 16th Century, fled to

Italy, the Balkans or France or le for Africa, C (2009) 288.

137 S (1995) 327.

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Raja Sakrani 111

Figures 8.1 + 8.2: Sales contract between Muslim siblings and a Christian, Chabaan 26, 904 (April 8 1499), Documentos Árabes del Archivo Municipal de Granada (1481-1499) © Archivo Municipal de Granada

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Raja Sakrani 113

But Europe is not only exclusion, expulsion and inquisition. It is also the cradle of the fascination for the Other. It is the travels and wanderlust of Goethe in the welcoming and marvelous world of the West-östlicher Divan. It is Orientalism and the explosion of dazzling colors and lights from India and China. To take into account the history of the Other and a shared past on European ground is ultimately to take into account the possibility of the same, i. e. of communality, to activate a situ-ation in which modes of cohabitation, mutual knowledge and concrete experimentation with the Other are invented.

The case of Islam and Islamic law is emblematic for Europe, not only for historical reasons, but also very contemporary and complex ones. One need merely point to problems with integration, with global and transnational Islam and troubling or even dangerous phenomena that have been occur-ring. One need merely look at the propaganda from an Islamic minority jurisprudence that locks

itself in, is bitter and uprooted; or one might take note of claims for the institution of a concept of Sharia that has nothing to do with Islamic law as a legal system; or, finally, one might focus on the vertiginous process of a new Islamic fascism that is propagated by some both within post-revolution-ary Arab countries and in the world at large. However, the dynamic of ruptures and innovations does not preclude any cultural difference or plural-ism. Europe is not alone in having to face its own history: what did India and the Hindi make of their Mughal history?

Collective memory is shaped and selective, identity politics may prescribe oblivion of the Other, 138 but historiography is not meant to deny historical facts that sometimes must be brought back to the surface of our consciousness.

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(710–912), 2nd ed., Paris: Maisonneuven L-O, J (1927), Algunos capítulos del formulario notarial de Abensalmún de Granada, in: A.H.D.E. 4, 319–375n L-O, J (1930), La recepción de la escuela maleki en España, in: A.H.D.E. 7, 1–167n L-O, J (1931), Figuras de jurisconsultos hispano-musulmanes, in: Religión y cultura 16, 94–104n L-O, J (1932), La jurisprudencia y el estilo de los tribunales musulmanes de España, in: A.H.D.E. 9, 213–248n M, A (2008), Les croisades vues par les arabes, Paris: J’ai lun M, J (1999), Muslimische Identitäten zwischen Tradition und Moderne, in G / W (1999) 206–229n M G, D J. (n. d.), El Islam en Al-Andalus: Estructura jurídico-social y organización política, Material de

Docencia de Centro Universitario de Algeciras, Centro Universitario de Estudios Superiores. Instituciones históricas en el Derecho español, last retrieved May 10 2014 from: http://www.historiadelderecho.es/

n M A, M (1999), La dimensión jurídica del tiempo en el Muhtasar de Hallîl, Roman M D, A (2007a), Algunas consideraciones sobre la Historia del Derecho Musulmán en España, in: HID

34, 189–206n M D, A (2007b), Rafael de Ureña y Smenjaud y sus Observaciones acerca del desenvolvimiento de los

estudios de Historia del Derecho español, Granada: Editorial Universidad De Granadan M D, A (2010), Consideraciones jurídicas en torno a la etnia gitana en Aragón y Cataluña durante la época de la Monarquía Absoluta, in: Estratto dal volume Quaderni Fiorentini per la storia del pensiero giuridico moderno 39, 83–107

n M T, J A (2008), Circulación de personas e intercambios comerciales en el Mediterráneo y en el Atlántico (siglo XVI, XVII, XVIII), Madrid: Consejo Superior de Investigaciones Científicas

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n M, N (1999), Turks, Moors and Englishmen in the Age of Discovery, New York: Columbia University Pressn M, L (2007), Salé et ses corsaires (1666–1727). Un port de course marocain au XVIIe siècle, Rouen, Caen: Pôle

universitaire normandn M, G H (1934), Mind, Self and Society, Chicago: University of Chicago Pressn M A, R (1970), Estructura socioeconómica y Administración de la Justicia en la España musulmana,

in: Boletin del Ministerio de Justicia, Histórico de Estudios Doctrinales 863, 3–18n M O (2009), »Muselmann« kostet 1200 Euro, online article published on August 19 2009, last retrieved on May 17

2014 from: http://www.merkur-online.de/lokales/fuerstenfeldbruck/landkreis/muselmann-kostet-1200–euro-448656.htmln M, M (1916), Avant-projet de code. Présenté à la Commission de codification du droit musulman algérien (Doyen

de la Faculté de Droit de l’Université d’Alger. Membre associé de l’Institut Coloniale Internationale), Alger: Jourdann M, C (1999), Gerichtspraxis im Stadtstaat Cordoba. Zum Recht der Gesellscha in einer malikitisch-islamischen

Rechtstradition, Leiden: Brilln O, F (2012), Shakespeare. La Comédie de la Loi, Paris: Michalon Éditionsn P, R (2011), Averroes. The Islamic scholar who gave Us West Modern Philosophy, in: Humanities 32,6 (2011), last

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n P, M P (2010), Venezia porta d’Oriente, Bologna: Il Mulinon P P, D (1999), La Administración de Justicia en la España musulmana, Córdoban P P, D (2000), El proceso judicial e la España musulmana (siglos VIII–XII), con especial referencia a la ciudad

de Córdoba, Córdoban P B, E (1997), Moriscos y Cristianos en los señoríos del reino de Granada (1490–1568), Granada: Editorial

Universidadn P V, J, B E B (eds.) (1993), Historia de la Inquisición en España y America II. Las

estructuras del Santo Oficio, Madrid: Biblioteca de Autores Cristianos – Centro de Estudios Inquisitorialesn P, M. (1848–1854), Précis de jurisprudence musulmane ou principes de législations musulmanes civile et religieuse selon

le rite malékite. Par Khalil Ibn Ishak, exploration scientifique de l’Algérie pendant les années 1840–1841–1842, 7 vol., publié par ordre du gouvernement et avec le concours d’une commission Académique, Paris: Imprimerie Nationale

n P, R (2011), Islam und islamisches Recht in der europäischen Rechtsgeschichte, in: Institut für Europäische Geschichte (ed.), Mainz, Europäische Geschichte Online, last retrieved on May 8 2014 from: http://www.ieg-ego.eu/potzr-2011a-de

n P, G (2004), Pour en finir avec la croisade. Mythes et réalités de la lutte contre les Turcs aux XVIe et XVII siècles, Paris: PUF

n R C, O (1994), Trade and Traders in Muslim Spain. The commercial realignment of the Iberian peninsula, 900–1500, Cambridge: Cambridge University Press

n R, J (1914), Historia de los jueces de Córdoba por Aljoxaní, texto árabe y trad. Española, Madridn R, O (1999), Vers un islam européen, Paris: Espritn S, R (2008), Codifier la morale? La morale dans les Codes civils français et tunisien, in: Revue international de droit

comparé 2, 461–485 http://dx.doi.org/10.3406/ridc.2008.19821n S, R (2009), Au croisement des cultures de droit occidentale et musulmane. Le pluralisme juridique dans le code

tunisien des obligations et des contrats, vol. 15, Hamburg: EBn S, R (2012), Des ordres normatifs fragmentés à l’hybridité juridique: le cas du Maghreb colonial, in: G (ed.)

(2012a) 231–265n S, R (2013), Religion als Legitimation einer Geltungskultur? Islamische Rechtskulturen in Europa im Wandel, in:

P, G, A H (eds.), Religions-Politik I. Zur historischen Semantik europäischer Legitimations-diskurse, Zürich: Nomos

n S A, C (1946), La España musulmana según los autores islamistas y cristianos medievales, Buenos Airesn S A, C (1956), España: un enigma historico, 2 vol., Buenos Airesn S, J-P (1962), Huis-clos, Paris: Prentice-Halln S, L (1993), Rinnegati. Per una storia dell’identità occidentale, Rome: Laterzan S, H (2012), Neuere Europäische Rechtsgeschichte. Privat- und Strafrecht vom Mittelalter bis zur Moderne,

München: Beckn S, M (2005), Auf der Suche nach der verlorenen Ordnung. 2000 Jahre Recht in Europa – Ein Überblick, Köln:

Böhlaun S, H (1995), Staat und Nation in der europäischen Geschichte, 2nd ed., München: Beckn U Y S, R (1906a), Estudios de litaratura jurídica, Madrid: Morenon U Y S, R (1906b): Historia de la literatura jurídica española. Sumario de las lecciones dadas en la

Universidad central durante el curso de 1897 a 98 y siguientes, Madrid: Idamor Morenon V, L (1967), Esclaves chrétiens et esclaves noirs à Tunis au XVIIIe siècle, in: Annales ESC 6, 1267–1288n V, L (2012), Ces étrangers familiers, Musulmans en Europe (XVIe–XVIIIe siècles), Paris: Rivages et Payotn V E, J C (1927), Ethnologie coloniale. L’européen et l’indigène, Paris: Du Monde Nouveaun V R, A (1987–1989), Una aproximación a la datación de los manuscritos aljamiado-moriscos, in:

Estudios Románicos. Homenaje al profesor Luis Rubio, Murcia: Univ. de Murcia II, 1419–1439n V N, P (2009), La démocratie grecque vue d’ailleurs, Essais d’historiographie ancienne et moderne, Paris:

Flammarionn V, S (1931), Abenmoguit, ›formulario notarial‹, capítulo de matrimonio, in: A.H.D.E. 8, 6–200n V, S (1933), Un contrato de matrimonio entre musulmanes en el siglo XVI, in: A.H.D.E. 10, 186–196n V, B (2001), Les études morisques. 400 ans après l’expulsion, in: IBLA, Revue de l’Institut des belles-lettres arabes

1, 205, 81–93n V, A-J (1961), Les rapports avec autrui dans la philosophie grecque d’Aristote à Panétius, Paris: Vrinn W, U (2010), Geschichte des Rechts in Europa: Von den Griechen bis zum Vertrag von Lissabon, München: Beckn W, F (1967), Privatrechtsgeschichte des der Neuzeit, 2nd ed., Göttingen: Vandenhoeck & Ruprechtn W, G (1994), Islamic literature in Spanish and Aljamiado. Yça of Segovia. His Antecedents and Successors, Leiden:

Brill

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Martti Koskenniemi*

Vitoria and UsThoughts on Critical Histories of International Law

»To refuse to think about the ways in which a concept or text from the remote past might be recovered to do new work in the present is to

refuse an overt engagement with contemporary politics.« 1

I. The Historical Turn

The recent, frequently noted increase of interest in the history of international law has no doubt been prompted by contemporary concerns. These are likely to include the need to put into the context of some long-term view the transformation of international law from a narrowly conceived »diplomats’ law« into specialized, oen technical and economics-driven areas such as trade and investment law, environmental and humanitarian law and the amorphous forms of regulation gov-erning the operations of the international market. The need may have been accentuated by great crises – the use of force in the former Yugoslavia, Iraq and Afghanistan, the »war on terror« and the interminable legalistic debates on the activities of the UN Security Council on »responsibility to protect«. The emergence of regional legal systems in Europe but also in Latin America and Africa has raised questions about whether there is any role for a universal international law in a world that seems both increasingly global and increasingly frag-mented. Although academic works integrating new vocabularies of international governance, in-formal regulation and political legitimacy appear with great frequency, efforts to rethink the field so as to produce new policy-proposals or agendas of structural reform have tended to fall before they fly, proposals for institutional reform turning out stale and uninspiring, part of the very problem they aim to deal with.

If forward vision is occluded, and reform ap-pears more business as usual than inspired search for a better world, the temptation is great to look backwards instead, to try to understand the present by reference to the past. How did we get here in the first place? Hence the recent flood in historical re-search and publication projects. The Journal of the History of International Law is now in its 15th year, the number of volumes in the series by the Frank-furt-based Max-Planck Institute of Legal History on »Studies in the History of International Law« (Studien zur Geschichte des Völkerrechts), begun in 2001, has reached 31, and new series of historical works in the English language are commencing at Brill Publishers in the Netherlands and with Oxford University press. A huge Oxford Handbook of the History of International Law saw the light of day in 2013. The number of specialized volumes on historical items or persons to have come out in the present millennium in the English, German, French, Italian and Spanish languages is already too large to count. 2 All this activity stands in striking contrast to the relative silence in historical studies in the 1980s and 1990s when most lawyers were busy participating in and commenting on the post-cold war expansion of international law.

The motives behind the new histories vary. Some of them explore the ways in which historical vocabularies such as ius gentium, ius commune or lex mercatoria might be helpful in understanding the present world of post-sovereignty. 3 Others have sought to explain the enormous inequalities of

* Academy Professor, University of Helsinki. The present essay was written for publication in a French version in S / X (forth-coming 2014/15).

1 O (2013) 174.2 A very limited overview appears in

K (2013). Compare this

with the situation in 2001 when it was possible to report that »The subject of ›history of international law‹ as such no longer exists at law faculties in Germany and many other countries«, H (2001) 199.

3 See D (2010), highlighting the historical pedigree of his sugges-

ted new law by exposing its principles in Latin, 3–21, 185–194. See also W (2012).

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Martti Koskenniemi 119

global wealth today by reference to international law’s continuous implication in patterns of colo-nial domination and exploitation. 4 The historical category of »empire« still has analytical purchase, even if some modification of received theories of dependency and imperial domination might be needed. 5 The controversies have reached even the apparently unhistorical notion of universal human rights. 6 Did such rights exist already in Roman law or should one look instead to the 16th century Spanish theologians or Protestant activists of the 17th century such as Hugo Grotius and Thomas Hobbes? 7 What has been the role of the French Déclaration des droits de l’homme et du citoyen(1789)? Or are our present rights perhaps better understood as an offshoot of 1970s cold war strategies or of the effort to construct an ideolog-ical foundation to 1990s developments in interna-tional institutions? 8 Here, too, postcolonial schol-ars have insisted on the development of a »geo-politics of knowledge« that would demonstrate the localized and imperial origins of human rights discourses. 9

II. Into Context

The surge of interest in the history of interna-tional law has been fed by political debates about the character and direction of international law today. In itself such interest is not unprecedented. But present histories tend to differ from older works written largely in the mode of classical »intellectual history«, as explorations of perpetual themes extending from the origins of Western political thinking in Greek and Roman antiquity to the present. 10 This was certainly the case with the Histoire de droit des gens by François Laurent, professor of history at the University of Ghent, that came out in 18 instalments during 1850–1870. Laurent conceived the history of the law of nations in terms of rules about statehood, war and diplo-macy that originated in the ancient Middle East,

passed through the »dark ages« and became grad-ually more complete in the course of the Renais-sance, enlightenment and the secularization of European political thought. It was certainly no coincidence that Laurent thought that this Euro-pean narrative coincided with the »histoire de l’hu-manité«, in accordance with the alternative title page appearing from volume 4 onwards. The work portrayed the law of nations as part of the progress of humanity from separation to unity, led by Europe in thought and in practice, a narrative in which the chain of past centuries would peak in European modernity. 11 Since then, most histories of international law were written as evolutionary narratives about jurists and philosophers carrying out a transhistorical conversation contributing to the ever fuller realization of »great principles«. Perhaps the epitome of this way was Robert Reds-lob’s Les grands principes de droit international(1923) that described the development of interna-tional law by reference to four great principles – binding force of treaties, the freedom of the state, equality and solidarity. The principles would travel through history as timeless propositions about how to organize the lives of nations, flourishing in some periods, violated in others, providing a universal standard enabling Redslob to measure moments of progress or decline from the perspec-tive of a revolutionary republicanism. 12

A more recent example of this type of history is provided by Agnès Lejbowicz’ La philosophie de droit international (1979) that describes the devel-opment of international legal reflection in terms of the perennial tension between »humanity« and »sovereignty«, manifested in the writings from Plato and Aristotle through Grotius, Locke, Rous-seau, Kant and Hegel to the present. For Lejbo-wicz, the tension between the two notions pro-vided a timeless standard allowing the evaluation of particular thinkers or periods as more or less inclined towards ideas of a united humanity or notions of identity and selood. 13 Many writers have taken sides in favour of the slow coming

4 See especially A (2003), and further e. g. P (2011).

5 See e. g. J / R-F(2007).

6 For a brief overview, see M(2012).

7 This is the view of that most insistent critic of rights-individualism, Michel Villey. See e. g. V (1983).

8 For an instant classic, see M (2010). For recent histories of rights, see further K (forthco-ming).

9 B (2013) 140, 143.10 For the classic of this type of history,

see L (1936).11 L (1851–1870).12 R (1923).

13 L (1979).

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together of humanity, led by international jurists, thinkers of peace, speculating over the way the laws of interdependence, self-determination, solidarity, economic progress and individual rights have found their place in the today’s institutions of global governance. Emmanuelle Jouannet’s recent work, for example, traces the development of two strands of legal thinking – one liberal, the other welfarist – from mid-18th century to present proj-ects of law and development in the United Nations and elsewhere. 14

However, other histories have not viewed inter-national law as a trans-historical conversation over great principles or indeed as a project of global progress. They have instead produced contextual readings of the works and lives of persons in the international law canon. Thus the role of the young Hugo Grotius as a legal counsel of the Dutch East India Company, always a matter of interest for historians, has been regarded as quite central for the interpretation of his work by Martine van Ittersum while Richard Tuck and others have wanted focus on Grotius’ Tacitist political views, situating him in the Arminian religious camp. 15Alberico Gentili has been the object of close con-textual readings by Diego Panizza, among others, placing him as a protagonist in the inter-protestant struggles within Oxford University, a member of the English »war party« and supporter of monar-chic absolutism. 16 I have treated the »rise of modern international law« through the prism of the activist sensibilities of a group of liberal and protestant jurists in the 1870s while Samuel Moyn has located the rise of human rights in the cold war debates of a century thereaer. 17 Instead of seeking to prove the presence of a historical continuum from the past to the present such studies have sought to localize canonical legal texts in the context of their production and to interpret the activity of particular jurists by reference to what they have wanted to achieve in their professional and political milieus.

It is perhaps above all the person of Francisco Vitoria, a Dominican scholar from Salamanca in the first part of the 16th century, whose role and

significance for the history of international law has been the object of the greatest recent interest. In the Spanish-language realm, Vitoria was always known as one of the Catholic clergymen who, with his more famous colleague, Bartolomé de Las Casas, received the title of »defenders of the Indians« owing to their critiques of the violence of Spanish colonization of the Americas. In the de-bates on the »origins« of international law that emerged in the late-19th century, Vitoria’s use of the locution »ius gentium« (received through Thomas Aquinas and from older Canon and Roman law) was oen highlighted as the starting-point of an international law tradition that would continue through Grotius, Pufendorf, Vattel and the later 19th century public law into the present. 18 But he became truly famous when he was singled out by the US lawyer James Brown Scott in a series of writings and lectures in the 1920s and 1930s on the »Spanish origins of international law«. 19 Scott was an enormously influential player in the interwar international law scene both in the United States and in Europe and the story of his advocacy of Vitoria as the »father« of international was has been many times recounted. 20 Vitoria was an ideal figure to stand at the origin of international law – a man of peace and religion, unlike Grotius heroi-cally turning against the colonial violence of his own countrymen, advocating the peaceful enjoy-ment of rights of property and sovereignty under the rules of natural law. For 20th century lawyers in Europe and the US, versed in the leyenda negra of Spanish colonialism it was deeply satisfying to view oneself in a great humanist tradition inaugurated by a Dominican scholar of Aquinas. Although there was always something uncomfortable about the fact that this tradition was celebrated also by jurists who had little difficulty to work in support of the Franco regime (quite a number of them in fact), the real shock came with Antony Anghie’s postcolonial attack on the whole tradition and his indictment of Vitoria as a facilitator of the estab-lishment of the colonial order in the Americas. Although Anghie admitted that Vitoria had been »a brave champion of the rights of Indians in his

14 J (2011).15 See V I (2006), T (1993)

154–201.16 See P (1981) and many of the

essays in K / S(eds.) (2010).

17 K (2002); M (2010).18 For an early argument to this effect,

see N (1894). Despite all the criti-cisms of the search for origins and precurors, it is still quite common, especially among Spanish jurists, to

read Vitoria as the »father of inter-national law«. See e. g. P R (2012) 79–80.

19 See e. g. S (1928).20 See e. g. R (1998).

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time«, he also highlighted that »his work could be read as a particularly insidious justification of their conquest precisely because it is presented in the language of liberality and even equality«. 21

Anghie’s assessment has been widely accepted in the postcolonial literature. 22 But it has also been contested and subjected to especially two kinds of criticisms. One group of scholars have claimed that the assessment is wrong on its merits, that Vitoria’s influence was beneficial and helped to curb the worst excesses of colonialism and prepare the ground for the humanitarianism of later international law. Thus Pablo Zapatero ar-gues that whatever the limits of Vitoria’s views, he »gave birth to a big idea that many others have, since then, cultivated as a discipline and that has proved to be one of the most useful and now pervasive artefacts of human progress«. 23 Georg Cavallar, for his part, has made a distinction be-tween the protestants Grotius and Vattel as worthy of »debunking … as accomplices of European ex-pansion and colonialism« while viewing Vitoria’s »cosmopolitanism … still an impressive feat«. 24These debates call for a substantive engagement, if not with Vitoria himself at least with the tradi-tion of which he is said to have originated. Did it or did it not become an instrument of European imperialism? 25

But there is another type of critique that claims that any such engagement is in fact pointless, that we have no way of assessing Vitoria without com-mitting the sin of anachronism and that viewing him as the »origin« of something – of »modern« international law – is a purely ideological move that provides no understanding of Vitoria in the temporal context where he lived and taught. The proper standards on which a historical work should be evaluated must be taken from the period in which that work was produced. Vitoria, for instance, had no idea what would be done in later times with the texts that his students scribbled down while he was teaching. According to the most famous of the contextual historians, Quentin

Skinner, the meaning of historical texts ought to be studied by asking the question about what the author of a text or agent intended to achieve, by what he or she wrote in view of the linguistic conventions available and the audience to which it was directed. The objective of the process is not so much the real, subjective intent of the actor (which remains hidden) but what the actor may have meant in view of the place and time: »the context itself can thus be used as a sort of court of appeal for assessing the relative plausibility of in-compatible ascriptions of intentionality«. 26 From this perspective, attacking Vitoria as a legitimizer of colonialism would mean that »the standards of historiographical analysis have been abandon-ed«. 27 In a complex and sustained discussion of the matter Ian Hunter has noted that both sides in the controversy over Vitoria’s legacy have utilized »a global principle of justice capable of including European and non-European peoples within the ›universal history‹ of [the] unfolding [of jus genti-um]«. 28 But to view Vitoria through the lenses of a »historical tradition« or to critique him from the perspective of »universal justice« is to neglect the fundamentally local and chronologically de-limited sense in which his works and texts ought to be understood. Moreover, and perhaps more importantly, such assessments participate in the very Eurocentrism, they indict by operating with a standard that fails to recognize its own contextual limits: the past, for us, remains a foreign country. In other words, Hunter claims, critiques of Vitoria such as those by Anghie »are themselves European-specific – that is accessible only to those iteratively trained in an array of university-based European intellectual cultures«. 29

Notwithstanding whether Anghie was actually writing in the name of »universal justice« in this (Eurocentric) mode (which is doubtful), the con-textual view poses a real challenge for any effort to write critically about international law’s past. There is little disagreement about the merits of reading past jurists against the debates and strug-

21 A (2003) 28. Aer the phalan-gist rebellion, the Salamanca-based »Francisco de Vitoria Association« as well as the »Francisco Vitoria Chair« at the University of Salamanca were enlisted to support the Franco regi-me’s anti-communist and ultra-Ca-tholic agenda. See F B(2012) 251–252, 255–266. See also

R M (2012b) and R M (2012a), espe-cially 226–236.

22 Out of the very large literature, see e. g. T G (2010) 31–33; D (2013) 185–190; N (2004). Of earlier writers making the point, see W (1990) 96–117.

23 Z (2009) 229.

24 C (2008) 209.25 I have treated some of the relevant

literature in K (2011b).26 S (2002) 87.27 Z (2009) 271.28 H (2010a) 11–12.29 H (2010a) 13.

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gles of the moment where they lived and produced their works. But I do not believe that to submit Vitoria to a postcolonial critique is to commit the same mistake to which earlier hagiographic studies were guilty. 30 In a series of recent essays Anne Orford has observed that strictly chronological compartmentalizations are inappropriate for legal history. 31 I agree with her and in this essay try to expand upon the sense that regardless of the merits of placing historical subjects in their local contexts, critical legal history ought not rest content with this; it should not dispose of using materials drawn from other chronological moments, including studies of the longue durée and structural deter-mination to assess the meaning and significance of the past. This is not to assume the standpoint of »universal justice« – indeed, Anghie tried precisely to show how the assumption that natural law embodied universal justice erased the Indians’ incommensurate world-view and disciplined them by European standards. Hunter himself observes that there are »windows of communication« be-tween world-views and moments widely separated in space and time. 32 I want to expand upon that intuition so as to reassure historians that legitimate critique does not have to accept the standpoint of »universal justice«.

III. Beyond Context

No doubt the turn to context provides an im-portant corrective to ways of doing international legal history. It situates past rules and practices in their institutional, economic and political envi-ronments, portraying the jurists and politicians as active agents in their milieus with distinct interests and purposes to advance. It wants to recover the fullness of those agents’ voice instead of being interested in it only because it »presents unequiv-ocal signs of modernity«. 33 It brings legal princi-ples down from the conceptual heaven and into a real world where agents make claims and counter-claims, advancing some agendas, opposing others. Meaning cannot be detached from intention, and

intention, again, appears in action – in the way words are used to attain effects in the world. Historians of political and legal thought should pay attention to the specific moments when a text was produced and ask the question of who pro-duced it and for what purpose – making agency visible while simultaneously demonstrating the way ideas function within linguistic and social conventions agents must follow so as to attain the persuasive effects they look for. 34 Skinner was not the only one unsatisfied with the way history of ideas had gone about trying to identify the trans-historical essences of political concepts. Reinhart Koselleck and his colleagues in the Begriffsgeschichteproject in Germany were also arguing that legal and political concepts could not be detached from the experiences and expectations of those who used them: »past social and political conflicts must be interpreted and decoded in terms of their contemporary conceptual boundaries, and the self-understanding on the past of past speakers and writers of their own language-use«. 35 Moreover, Koselleck also made a specific point regarding the »acceleration of time« from early modernity, across what he labelled the »saddle period« (Sattelzeit, c. 1750–1850) in which the meaning of key polit-ical (and legal) concepts departed from accumu-lated experience to embody a forward-looking, »progressive« or utopian meaning. The ensuing instability of the semantic fields meant that the historical meaning of words needed to be closely related to the specific temporal moments in which they were used and where the relation between experience and expectation would allow the gen-eration of shared meanings. 36 This, as Matthew Craven recently noted, was also the moment of the rise of a historical consciousness in the profes-sion. 37 From now on, it would be impossible to think of »sovereignty«, say, in the Bodinian manner as a vocabulary that would allow the stabilization of the relations between French Catholics and Protestants so as to enable return to regular mo-narchic government. When invoked in the late 18th century, that very same »sovereignty« would have become a call for a practically unending

30 I have dealt with the possibility of critique in the absence of universal standpoints in many places, inclu-ding in K (2005b).

31 See O (2013) and O(forthcoming).

32 H (2010a) 25.33 »las enseñanzas de Vitoria presentan

signos inequivicos de modernidad«, P R (2012) 80.

34 See S (2002) and further e. g. H-B (2006) 28–33.

35 K (1979) 80.36 See e. g. K (1979) 75–92 and

155–204 as well as K (2002).37 C (2013).

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change that would allow the nation, to borrow a Wolffian formula, to become constantly more »perfect« in its being. To read international law texts aer mid-18th century without attention to the evolutionary and progressive consciousness of the elite classes would be as much a mistake as assuming that when those debates invoke words familiar from earlier periods (such as »sover-eignty«, »right«, or jus gentium, for example), they would mean the same thing.

But even as contextualism opens a necessary avenue for the examination of past legal and political vocabularies, it is not without its difficul-ties. In particular, it tends to rely on a »positivist« separation between the past and the present that encourages a historical relativism and ends up suppressing or undermining efforts to find patterns in history that might account for today’s experi-ences of domination and injustice. However, it has long been known that a clear separation between the object of historical research and the researcher’s own context cannot be sustained, that the study of history is unavoidably – and fruitfully – condi-tioned by the historian’s prejudices and pre-under-standings, conceptual frames and interest of knowledge. The point about the intermingling of the object-vocabulary with the subject’s own vo-cabulary has been oen made but there is reason, in view of the contextualist attack on »anachron-ism«, to remind ourselves once again of the im-portance for critical study of law and history of the awareness of such intermingling. The answers we receive from historical study are dependent on the questions we pose – those questions, again, being crucially dependent on our present projects, our understandings and pre-understandings. As Hans-Georg Gadamer used to stress »History is only present to us in light of our futurity«. 38 This is precisely what we see when our present problems with »globalization« lead us to examining the past of our inherited legal concepts and institutions.

A first problem with contextualism, well-known to Skinner and Koselleck, but oen forgotten by their followers, has to do with delimiting the relevant context. Is it that of writing books on law and lecturing at universities or that of making claims and counterclaims within some diplomatic or military dispute? What role play the institutions

and traditions of academic life for the assessment of the contribution of a writer or a jurist for his work and can those institutions be understood without regard to wider histories of the university in Europe, the rise of academic and professional specializations and disciplines and their role in the formation of the modern (European) State? And then there are the large questions raised by Ellen Meiksins Wood at the outset of her recent series of volumes on the history of political thought. Many historians, she complains, appear to concentrate only on the intellectual context – the texts produced by the historical agent, his or her relations to colleagues, correspondence and activity within some intellectual or political institution. In all this history, she observes, there is very little

»… substantive consideration of agriculture, the aristocracy and peasantry, land distribution and tenure, social division of labour, social protest and conflict, population, urbanization, trade, commerce, manufacture, and the burgher class«. 39

Likewise in the writing of the history of interna-tional law, there are large questions to be posed about the cultural, political and economic role of law and lawyers in particular societies that have to do with the shiing position of the systems of knowledge represented by theology, politics, eco-nomics, for example. A study of Vitoria must surely take account of the fact that most of his teaching took place as a commentary on the Summa theologiae of Thomas Aquinas in the con-text of teaching young clerics about the manage-ment of the sacrament of penance. A proper account of that context, again, ought to include some discussion of the dogmatic history of the Catholic church, including above all the relations between Thomism and the »via nova« that was taught in Paris during the time of Vitoria’s appren-ticeship there. But it should also expand to a discussion of the counter-reformation – aer all, Vitoria was invited to represent his emperor Charles V at the Council of Trent and only de-clined owing to reasons of health, to be replaced by his colleague Domingo de Soto. The context must also include the suppression of the comuneros

38 G (1977) 9.39 W (2008) 9.

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rebellion in 1519–1521 in Northern Castile that emerged from a complex of political and economic grievances that profoundly shook the political consciousness of the contemporaries and whose lesson was recorded in the strong appeal for social discipline in Vitoria’s 1528 relectio on civil power. 40And finally, it would be impossible to leave aside the massive expansion of a commercial culture that followed the importation of silver from Spain’s newly acquired colonies and resulted in the trans-formation of religious and social attitudes in ways that dramatically undermined the binding force of Church doctrine. 41

Considering all this, it becomes obvious that the »context« in which the contribution of Vitoria should be placed cannot be strictly limited to the chronological moment in which he lived and where his intentions and projects were formed. Large items such as »the rise of capitalism«, »re-naissance conscience«, »Reformation«, »the nature of the Habsburg empire« and other aspects of the political, military and financial transformation that are usually summed up as »early modern« are implicated together with contentious hypotheses about the causal relations between such large items, the relative significance of social, cultural and political factors in the determination of con-temporary consciousness, including that of Vito-ria’s. While it is important to put Vitoria »in context«, that is merely a preliminary to the work of determination of what the appropriate context is. There is no a priori reason to think that chro-nology would provide the decisive standard instead of, say, some longue durée assumption about the role of »organic intellectuals« or the relations between religion and state power. What might be relevant for reading Vitoria might be the nature of Spanish imperialism, its effect on Castilian peas-antry, events taking place in the German realm (the use of Protestantism to support the independence of territorial polities) or the way easing the pro-hibition of usury would facilitate the expansion of international commerce by legitimizing long-dis-tance credit operations, for example. 42

What the right »context« in which Vitoria should be read and understood is, is thus not at

all easy to determine. The contexts of religious dogma, social interest, political power, the encoun-ter with a new world are in one way or another relevant as the background against which Vitoria’s teachings could be interpreted embody institution-al structures and systems of knowledge whose role in producing what we call »history« is subject to controversy over large items of social theory: the way ideas depend on social structure and vice-versa. 43 The historian needs to choose and delimit and in this he or she is necessarily being anachron-istic – is necessarily framing Vitoria’s world in accordance with today’s ideas about what part of the archive is relevant and which is not, and how their relationship ought to be understood. It has become increasingly common to read and under-stand Hugo Grotius from the perspective of his advocacy work De jure praedae (1604–1606) for the Dutch East India Company (Vereenigde Oostindi-sche Compagnie, VOC) and thus at the service of the colonial pursuits of his countrymen. 44 But surely this welcome corrective to the old image of the great humanist may also blind us to the signifi-cance of his ecumenical projects and writings that manifest his specific religious convictions that, again, cannot be dissociated from his belonging to a cosmopolitan social class that was viewed with suspicion by the country’s strictly puritan majority. Theology, politics and economy – and law – all frame the world in which Grotius operated. How to conceive the relations between these contexts is of course subject to ongoing methodological de-bate. Each of the alternatives provides us with a different »Grotius« and none with any intrinsicepistemological priority. It remains for the histor-ian to weigh and to choose. But whatever the choice, it cannot be dissociated from the historian’s own context, the priorities that seem persuasive among his or her colleagues.

Framing Vitoria and Grotius as apologists of empire no doubt reflects an emerging postcolonial consciousness in international law. This, again, points to developments I mentioned at the begin-ning, the sense that international law is under-going a period of transformation whose nature is not yet clear to us. This is not a first time such a

40 See V (1991) 10, 32, 34.41 I have discussed these e. g. in

K (2012a).42 As I suggest in K (2011c).

43 For a useful appeal for intellectual histories to engage with social theory, see M (2014).

44 Alongside I (2006), see also W (2008).

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moment has arrived. Many of the historical works aer the first world war, such as Redslob’s above-mentioned Grandes principes as well as Sir Paul Vinogradoff’s work on the »historical types« of international law were written when there was a turn away from »sovereignty« (indicted among the nationalist ideologies that caused the war) and into »collectivist organization« that would bear in the future the flag of legal cosmopolitanism. 45 But while histories of international law published in the aermath of the war of 1914–1918 were oen written as doctrinal histories, tracing the origins of legal »modernity« in the increasing institutionali-zation of the field, works in the aermath of the Second World war tended in the opposite direc-tion, as social histories, describing law as a depen-dent variable in the rise and fall of great imperial »epochs«, reflecting the political, military and in-tellectual predominance of the moment’s hege-monic power. It is not difficult to understand why the young Wilhelm Grewe, writing in Berlin in 1944 as the Russian forces were approaching, would imagine international legal history in the context of the rise and fall of imperial power and why he would view the 20th century as the epoch of an Anglo-American condominium. 46 It seems equally obvious why the work, translated into English in 2000, should now be the single most widely read account of international legal history. The same reasons no doubt also account for the present interest in Carl Schmitt’s Der Nomos der Erde (originally published in 1950, English trans-lation in 2006) the origins of which can also be traced to the fall of Germany and the rise on the political horizon what Schmitt called an Anglo-American technical-economic empire. 47 Each mo-ment develops the kind of history that speaks to its concerns highlighting what it holds important as an account of the way the world is. In the contrast between dogmatic and social history, each side has tended towards reductionism, with the predictable outcome that they have become vulnerable to the charges of utopia and apology. A history of interna-tional law without attention to the economic and political interests that rules and institutions uphold

would be just as insufficient as one that gave no sense of the seriousness of the jurists’ internal debates over the correct principles and how to interpret them. The social and the ideal are, how-ever, inextricably intertwined so that in the end, any legal history – including Redslob’s and Grewe’s – are bound to include both, though in different proportions, but pointing towards some third type that could be called a study of legal ideology, »sensibility« or »consciousness«. 48

Nobody has written more eloquently of the historian’s own situatedness in his or her own period than Michel de Certeau, and of the way in which the visible and invisible »laws of the milieu organize and ›police‹ the [historical] work«. 49 The academy is part of society and if the historians are able to change the course of historical study, create a new emphasis or propose a new interpretation, this is because the historians’ own world has changed. De Certeau gives the example of Lucien Febvre’s sidelining of religious factors in an explan-ation of the crisis of French society in the 16th

century. This emerged from the fact that France itself was no longer a religious society and »reli-gion« was not held as an important factor deter-mining the course of history. One can say precisely the same about the way contemporary studies of Vitoria, Suárez, Grotius and Locke, for example, men who lived in profoundly religious societies and confessed to deeply religious world-views, have by and large completely erased the significance of religion as the proper context in which to read their works. Such a choice reflects a mentality that is prevalent in the historian’s context, not in the context of the historical object. Let me quote de Certeau:

»Such is the double function of the place. It makes possible certain researches through the fact of common conjectures and problematics. But it makes others impossible; it excludes from discourse what is its basis at a given moment; it plays the role of a censor with respect to current – social, economic political – postulates of analysis.« 50

45 V (1923) 69.46 See G (2000). The »epochal ac-

count« has been followed also in Z (1994). I have critiqued Grewe’s book in book reviews in In-ternational and Comparative Law

Quarterly 51 (2002) 496–501 and Kritische Justiz (2002) 277–281.

47 S (1950).48 See B G (2012) 95–98.49 C (1988) 63.50 C (1988) 68.

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The establishment and the organization of the contextual archive, as well as the interpretation of the materials are key parts of the historian’s work that reflect sensibilities and concerns that are prop-er to the historian and that no-one else can deal with. What gets included and what remains out-side, choices that are important part of the study of international law, for example, cannot be dictated by the past or the »context« – for those choices lay out what the proper «context« is in the first place.

There are innumerable ways in which the con-text may be chosen and delimited. These cannot be determined by the context itself because they precisely determine what can bee seen in it. Imag-ination, evaluation and choice are needed, a sense of what is interesting or relevant today and what is not. A context is such only against a larger back-ground that makes it visible and shows its boun-daries. Or as de Certeau has it, there is a sense in which history (unlike sociology) is always the history of a significant deviation, emerging from the monotonous routine against which it appears in its singularity and thus provides a limiting condition. 51 That focus on the singular and the small-scale is also why contextualism oen creates better narratives than histories about »great prin-ciples and timeless conversations«. There is more-over something to be said about the modesty of its claims when compared to those of that older mode, its effort at sympathetic identification with its protagonists in accordance with that most important preliminary of political critique, the principle of charity – taking the position of one’s interlocutor or subject at its strongest terms, per-haps even stronger than that subject had ever imagined. When applied to historical figures such as Vitoria, for example, this means commitment to framing him as in good faith trying to achieve the best result in a difficult circumstance. And yet this is (only) a political choice on a par with the strategy to depict him as a mischievous apologist of power. In each case, however, the historian’s construction is precisely that – a construction, not the image of the »real« Vitoria but the historically significant »Vitoria in context«, fully indebted to the histo-

rian’s interest of knowledge and whatever (critical) point the historian wants to make.

But it is not only that contextualism cannot be fully realized because the past moment that is supposed to provide the meaning-generating da-tum cannot be isolated from the present context in which the historian works. More importantly, the very premise that it could or should involves a troubling, ultimately uncritical relativism. Full-fledged contextualism argues that the meaning of a past text or event must be isolated in the context where it was written or where it took place. The works of Grotius, for example, can only be under-stood if situated in communication with concerns, »projects« or events that are contemporaneous with him. Focus is on the actual or possible intentions Grotius may have had. There are many good objections to thinking about history in terms of the intentions of individual agents. What about the determination of (subjective) intent by the (objective) psychological, social, economic forces in which the subject is situated? Where did the agent / structure problem go? Although the inten-tions of agents must remain an important part of the study of meaning, they cannot form be the sole, even less the »ultimate« basis on which agents should be understood. The linguistic context and the social conventions that allow agents to generate meaning and others to understand that meaning (and to be persuaded by it) must also be taken account of. 52 It may be the case that Vattel’s Droit des gens embodied no »philosophical synthesis« or theory of statehood but only manifested his effort to create a »diplomatic casuistry« on the basis of well-known 18th century practices. 53 Yet it is surely important to know whether his readers then or later – some of them at influential positions – read such syntheses or theories into his work. Of all students of history, lawyers are surely best placed to understand the limitations of purely intention-based accounts of past texts or events. To the retort that the question is not at all about real but constructive intentions, ones the agent might have had, taking into account all we know from the context, the response can surely only be that this

51 C (1988) 83–86.52 This is of course a very large question.

For a discussion, see e. g. B (1999) 31–77.

53 As suggested in H (2010b). The essay is welcome in highlighting the

anti-theoretical, casuistic nature of the book. This surely at least in part accounts for its fame. Yet, it is at least as significant that the book has been read and used as a key work in the »18th century natural law tradition«.

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supposes that we already know the context inde-pendently of those intentions. The hermeneutic circle that points from (subjective) intentions to (objective) structures and back again is well-known to theorists of customary law and no more needs to be said about it than that past intentions will always remain opaque to present historians and the methods whereby intent is attributed to agents re-surface all the problems of historical method-ology that have to do with isolating and interpret-ing the meaning of a »context«. 54

But even if intention has to remain an impor-tant datum about the history of legal and political thought, there is no reason to situate it in a chronological context that is hermetically sealed from earlier and later periods. There are, it is well-known, two ways of thinking about the past – as isolated temporal and spatial contexts separate from each other and as a process of constant change in which contexts flow into each other – the difference between Walter Benjamin’s »punc-tual time« and »differential time«. 55 The two perspectives are not exclusive but complementary. While the former allows sharp and detailed exami-nations of moments in which historical agents communicate with each other, influencing and being influenced by the structures around them, it also freezes the context in time, allowing no sense of their constant becoming and changing, their ultimately turning into other contexts. A large part of interest in legal history, like other history, has to do with accounting for the way in which periods are porous – there are »windows of communication« between them, to use Hunter’s expression. An account of Abbé de Mably’s Droit public de l’Europe should surely take account of his republican orientations received from his readings of Cicero and Machiavelli and his having imbibed influences from Roman antiquity that likewise inspired Montesquieu, Voltaire, Gibbon and Hume. 56 The turn to thinking of the balance of power in mid-eighteenth century as a legal princi-ple among writers such as Gundling or Vattel would be inconceivable if one failed to appreciate their admiration of Guiccardini’s account of the history of Northern Italy or the efforts, under way

at German universities since the mid-17th century, to create a non-Aristotelian public law and state-cra. 57 The meanings of the notion of »state« so central to the history of international law have been in constant change since the time it demarked the personal »status« of the ruler or an estate to indicating territorial units separate from both. While the history of the notion of »state« must be contextual to the extent that it shows the very great distance between the use of that term in, say, Machiavelli and Vattel, it must also look beyond the specific context so as to grasp the development of political and economic organization in Europe between the 16th and 18th centuries. 58 It is only once the changing meanings of »state« are seen to articulate and push towards transformations in ideas about public power that the legal history of statehood has done its work; it is only then that we seize its contingent and changing character also in our present context – for example, that it may not only be a potential rights-violator but also a rights-protector so that a policy of, say, »anti-statism« may be a good choice in some moments but disastrous in others.

Which leads me to the most serious problem about full-scale contextualism – namely its relativ-ist and anti-critical nature. There is, I have already noted, no way back to »great principles and time-less conversations«. The history of »universal hu-man rights« for example, cannot be about the passage of some notion of individual entitlement unchanged and self-identical across time. The study of political and legal ideas must examine the context where such ideas originate and produce effects. But there is no reason to limit the inter-pretative contexts chronologically. 59 If the deter-mination of the context is always a function of present concerns and preferences, then it is easy to see that postcolonial history has chosen as its preferred interpretative frame the centuries-long domination by Europe of much of the non-Euro-pean world. Disagreement with postcolonial his-tory is not about »method« at all. Anghie is just as contextual as his critics – though the context (European colonialism) is different from that cho-sen by the latter (16th century Spain). The differ-

54 See e. g. K (2005a) 388–473.

55 B (1968) 253–264. For a re-cent discussion, G (2014).

56 See K-W (1997).

57 See G (1757); V (2008 [1758]), Part III § 44–50 (492–500).

58 The best account of this history I have been able to find is L (1995).

59 O (2013).

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ence emanates from their political preferences, in what they see as significant in the world and what not. The accusation of false universalism is just as correct or just as misguided in both regards. Chak-rabarty is right in pointing out that even the standards of historiography, including debates over methodology, tend to be Eurocentric. 60 But as all writing is writing within some context and tradi-tion, that in itself is no scandal. The important point has to do with consciousness about the power of tradition, there being no non-contextual context, no »view from nowhere«. And yet, some positions are better, more persuasive than others. Full-scale contextualism is a historicism insisting on the separation of chronologically distant mo-ments from each other and the illegitimacy of producing judgments across contextual bounda-ries. It isolates past moments from today’s political discussions and thus – perversely – may lead into two opposite results. On the one hand, it may come to shield past ideas from criticisms that always appear a methodologically suspect »present-ism«. Or alternatively, it may exclude those ideas as legitimate participants in today’s debates because their origins are in a past that for one reason or another is rejected as politically unacceptable. In each case, open political engagement is avoided under the guise of a methodological point. The result is political through and through.

IV. Legal History – Anachronistic, Teleological and Sometimes Critical

Contextualism is no more able to avoid »anach-ronism« than it is able to avoid teleology. This is specifically true of the history of legal concepts and institutions. As Philip Allott has written, »[t]he legal relations which law creates are the resultants, the actualized outcomes, of past states of the social process. They are the potential content of future social process.« 61 International law is »a bridge between the social past and the social future through the social present«. 62 Such aphorisms really say little more than that law is a normative discipline that builds on the collective experience

of the society embodying a plan for the future that goes beyond mere repetition of the past. Law is not sociology and legal history cannot be mere social history in the realist stereotype of the eternal recurrence of the rise and fall of imperial »epochs« without ceasing to be about law. An account of law without a teleological, forward-looking mode would fail even as an expression of law’s contextual meaning which lies precisely, to borrow Koselleck, in the distinction between experience and the horizon of expectation, or »futures past«. 63 There-fore, any history of international law will also have to be about its imagined futures. Moreover, the construction of the context, I have argued, is cru-cially dependent on what we now think interna-tional law »is« – its being today embodying like-wise an account of what it is for. In this sense, without necessarily being Marxists, historians of international law must accept that the validity of our histories lies not in their correspondence with »facts« or »coherence« with what we otherwise know about a »context«, but how they contribute to emancipation today. This is not say that histo-riography should turn into propaganda, only that an understanding of a society – including our own – includes the perspective of its imagined future. A narration always includes a frame and a series of choices about the scope and scale of the subject that are part of the effort to understand the past in light of present concerns. It is to these that I will turn at the end of this essay. 64

The frame of legal histories arises less from conscious choice than is presumed by the histo-rian’s contemporaneous context. This includes the most general aspects of logical, causal or psycho-logical relationship that a narrative invokes for its persuasive power. Units of analysis are linked together to form narratives of sequence, entail-ment, superiority or subordination. A history of the law of the sea or, say, of the territorial belt, may be conceived by connecting conceptual structures of jus gentium to the writings of men like Vazquéz de Menchaca or Hugo Grotius while depicting the latter again as agents in some larger structure of imperial or commercial power. Or the frame may be provided by the clash between the changing

60 C (2000).61 A (1990) 111.62 A (2002) 317.63 I have discussed the role of teleology

in law in K (2012b).

64 I have been partly inspired here by T (2012).

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practices of sea powers with the security needs of territorial states, advances in technologies of sailing or the performance of guns on the shore. The right to control the adjacent sea belt evokes the idea of territorial sovereignty that relates in complex ways to processes of state-formation, fisheries practices, the growth of trade and maritime warfare. Most such items would appear in any professional his-tory of the maritime belt but their organization depends on a larger frame that may evoke the »internal« logic of legal institutions, for example, or the »external« forces of economic interest, state power or military technology. The role of ideas of providence and sinfulness that were once parts of the frame has been taken over by »progress« and »development« as aspects of a social theory implied in any such history.

The frame is the condition of the intelligibility of our histories. Even for a contextual historian, it provides the background against which something may appear as a relevant »context« in the first place. To write about Dominican scholars at the univer-sity of Salamanca in the 16th century as somehow relevant – perhaps even most relevant – for under-standing the actions of powerful agents in the new world is to imagine the law as largely detached from the »guns and germs and steel« or perhaps even opposed to those more mundane aspects of the conquesta, in contrast to the ultra-realistic ac-counts by Grewe and Schmitt, or for the German-born Arthur Nussbaum’s sceptical post-war history in which the Dominicans appear only as evidence of the »deflecting influence of ideologies and hope«. 65

The question of scope is related to the frame at a lower level of abstraction. Writing a history of international law requires a delimitation of the scope of that subject from its surrounding world. It cannot avoid entanglement in jurisprudential de-bate. Is law »rules« or »practices«, an affair of ideas or facts? The relation between Redslob and Grewe embodies precisely that sort of dogmatic opposi-tion. Should a history of international law be a history of rules and doctrines – or rather of diplo-macy and war? A history of territorial regulations looks very different from a discussion of sea power and security needs. Most accounts would likely

contain elements of both – though which way the narrative leans will tell much about the futures imagined both by past subjects and contemporary historians.

Are Roman litigation practices about jus genti-um or the discussion of Christian virtue in Aqui-nas’ secunda secundae part of what we today think of as »international law«? What about the devel-opment of maritime technologies or military lo-gistics? Different answers may be and have been given, and the results point in different conclu-sions. In any account of »law«, the delimitation of that set of concepts from the adjoining one of »politics« seems extremely important – the very point of law is to be something »other« than (mere) politics. 66 Is the government of German territorial states in the 18th century part of the history of international law? At the universities of Halle and Göttingen, a group of historically ori-ented jurists, occupants of chairs of public law or of the law of nature and of nations, renewed the study of what later would be called »political science«. They had studied Tacitus, Machiavelli and Grotius and been impressed by the writings of Hobbes and Conring. 67 Using the naturalist idiom they devel-oped a theory of statehood and divided it into public law on the one hand, and something they called Staatsklugheit on the other. Many of them followed Christian Thomasius to further divide the approaches to statehood into three: justum, hones-tum and decorum. 68 The first they associated with enforceable positive law, the second with the »in-ternal« commands (of conscience) that were not amenable for enforcement and the third with the guidelines that historical insight produced as use-ful maxims of statecra. But they were unsure of the place of jus gentium in this scheme. Thomasius himself relegated it to »decorum« while his fol-lowers oen regarded it as a utilitarian form of natural law. 69 None of them had much to say about the laws of war and peace, treaty-making or diplomatic protocol that would have been differ-ent from what they said about wise statecra. And yet they now seem hugely significant for the delineation of the academic fields of politics, social science, public law and economics within which also »international law« would come to have a

65 N (1954).66 I have discussed this delimitation ex-

tensively in K (2005a).67 See H (1972).

68 T (1718) Bk I Ch VI § 24–43 (173–177).

69 For the latter position, see G(1747) § 69–73 (35).

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specific, though limited place. Although the for-mation of the present world of disciplinary special-izations and hierarchies is not strictly speaking a narrative within the »history of international law«, its effects on the latter are so great and obvious that it is hard to understand the latter without some sense of the former. This is an incident of the larger point that a context is formed through limiting manoeuvres that cannot be regarded as part of the context itself even as they are responsible for its formation. Here the »scope« of international legal history must perforce venture beyond its already-formed context so as to attain genealogical force.

The political effect of delimiting the scope of international law becomes visible once we note that the reflections of seasoned practitioners of diplomacy such as François de Callières or Jean de Wiquefort routinely pass over into the history of the law of nations, thus erasing the boundary between international law and maxims of state policy. By contrast, the works of theorists of eco-nomic statecra such as Charles Davenant or Johann Gottlob Justi do so almost never, thus reinforcing the marginalization of the role of economic doctrine and property rights in the field. Marc Belissa’s wide-ranging works of 18th century France include what the philosophes (Montesquieu, Voltaire, Diderot, Rousseau) wrote on the foreign policy of the old regime as aspects of the history of the law of nations. In this way, he makes the topic inextricable of the spirit of »les lumières«, peaking in the Declaration of the Rights of man and Citizen of 1789 or the Dra Declaration of the Rights of Nations by the Abbé Grégoire of 1793/95. 70 Situating international law culturally and politically within such texts or debates is heavy with consequences about how we should think about it – as a »European« substance, born out of the experiences of early modern statecra and French absolutism, part of the liberal ideas of progress through stages of civilization. In this narrative, Immanuel Kant is not only a figure in the history of philosophy but also in the history of the law of nations, guiding the imagination of large publics in Europe to believe in a »universal history with a cosmopolitan purpose« in which

Europe »will probably legislate eventually fore all other continents«. 71

Such »Whig history« forms a great part of tradi-tional writing of international law’s past; we rec-ognize our own progressive spirit in the narratives we tell about these eighteenth-century heroes. And yet, why look there? At the very same moment when the philosophes were arguing in their salons, French importation of slaves to the Antilles reached its peak so as to arise during 1775–1800 to nearly half a million souls. 72 Though the call for »break the chains of serfdom« was common among the philosophes, what they were referring to was ending monarchic absolutism in France, not the freedom for French slaves. 73 In the end, liberation in Saint-Domingue (Haiti) would come only through armed rebellion, the complete destruction of European settlement and the declaration of independence as from 1804. If it took until 1838 for France to recognize such independence, most other states waited much longer so that in his classic three volume textbook of international law of 1904 the first professional historian of international law, Ernest Nys still did not find a place for Haiti among the three non-European, non-American States – namely Liberia, Japan and the Independent State of the Congo. 74 The fact that Nys was also writing »in context« is surely no reason to avoid observing his complicity with colonization and hypocrisy. It is customary to celebrate the ending the slave trade as an achieve-ment of legal humanitarianism. And yet law is all over the organization of the slave trade itself, from the establishment of the Iberian monopoly to the Treaty of Utrecht (1713) whereby the asiento was granted to Britain and indeed to the organization of the infamous triangular trade by France where-by slavers coming from the African west coast to the Caribbean would then load sugar, coffee, to-bacco and indigo to be brought to the principal ports of Bordeaux, Nantes and Saint-Malo and leave again to Africa with cotton and copper utensils, pots and iron bars, knives and glass trin-kets as well as gunpowder, guns and spirits. 75 The indefensible exclusion of the history of the slave trade from the history of the law of nations can

70 See B (1998).71 K (1991) 52.72 The numbers are from N /

W (2011) 22.73 See especially C (2011).

74 N (1904–1906) Vol. I, 118, 126.75 See B (1992) 438–440.

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only be regarded as a purely ideological move by the Belgian Nys and his colleagues in late-19th and early 20th century in an effort to create distance between the field in which they were authorities and from morally suspicious practices such as their warm support to the civilizing mission carried out with international legal endorsement by the 1885 Berlin treaty in the Congo. 76 Although such judg-ment emanates from the present context, holding this against making it seems an altogether awk-ward – »scholastic« – irrelevancy.

Finally, there is the problem of scale. Histories of international law have tended to encompass large, even global wholes that are supposed to determine the substance of the international laws of a period, such as the »Spanish«, »French«, or »British« »epochs« discussed by Grewe and Ziegler in their influential works. But is such a wide angle really the appropriate context in which to analyse past law or legal culture? What about adopting a narrower perspective by examining the legal think-ing in a particular country at a particular moment? Or by choosing an individual – Grotius, say – and examining the immediate environment in which his personal and scholarly career unfolded? These are of course not the only choices to be made. As Martin Jay has queried:

»[I]s the most potent context something as global as an historical epoch or chronotope? Or is the proper level that of a language, a religion, a class of a nation-state. or do we have to look at more proximate contexts, say the precise social, political or educational institu-tions in which the historical actor was embed-ded, the generation to which he or she be-longed, or the family out which he or she emerged?« 77

What would be the appropriate scale in which to examine the work of an individual such as Alberico Gentili? What weight should be given to the fact that he was born in Italy and had studied Roman law in the Bartolist vein? The (large) fact of religion, that he became a Protestant refugee in England, must surely play some role in a contextu-alization of his works but precisely what? And how important might it be to focus sharply on the

Oxford environment, his struggles with his puritan adversaries at a time of the production of his most important texts? Such considerations have oen been included in discussions of his achievement and in them, the scale keeps changing from large to small, epochal to personal, geographic to ideo-logical. Clearly, the fact that he was a jurist operat-ing during the »Spanish epoch« might be relevant in understanding his famous appeal for the silence of the theologians in matters of law. Or was that call rather made in an intra-Protestant schism? Is the proper large scale that of »Spanish imperial expansion« – or the struggle against counter-refor-mation? 78 It seems likely that we can choose the appropriate wide lens only once we have grasped Gentili the individual in a narrow focus, writing in a specific place at a specific moment. But the choice of the place and the moment cannot be unin-fluenced by what we know of the general context. And so on. The narrative moves back and forth between a wider and a narrower scale in order to gradually come to a clearer view of its object.

It is an almost unthinking practice of inter-national lawyers today to adopt a global scale, no doubt in part in reaction to the earlier predom-inance of biographical studies in the field. But my first contact with the subject was through a text-book with the title (in Finnish) »Finland’s Inter-national Law«. 79 There is an important sense in which the proper scale for a history of inter-national law is that of the nation. Aer all, some of the best German teaching in the subject in the 18th and 19th centuries regarded it as »external public law« (»äußeres Staatsrecht«), a species in the German genus of public law. The scale here is that of the nation’s foreign policy as seen from the foreign ministry – the domestic laws and treaty-arrangements that regulate the conduct of external relations. I have elsewhere argued that interna-tional law is a specifically »German discipline« and wanted to point to the fact that a history of the subject that failed to adopt the scale of the re-organization of Central Europe (the Holy Roman Empire) would hardly have any sense of the topic at all. 80

There are of course formidable philosophical difficulties in the opposite choices of scale offered by available alternatives – the wide-angle of »global

76 See K (2002).77 J (2011) 560.78 See again, P (1981).

79 C (1959).80 K (2011a).

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history«, mid-level »national history« and the limited scope of biography – that have to do with the tools of understanding available to present observers. The vocabularies of political causation that seem needed for the production of wide-angle explanations have to date dominated diplomatic history and the associated »realist« narratives. Here we see empires, large states, powerful statesmen and their jurists as the principal actors of our narratives. Such histories have been challenged as lacking a sociological grasp on what it is that makes empires or state representatives »tick«, how they operate in relationship to other social forces. Justin Rosenberg, Benno Teschke and Ellen Meiksins Wood have each contested the predominance of an exclusively political focus on the international world. 81 What about the role of social classes, and forms of production in the formation of the agents and relationships even at a global scale? Does the »international« at all mark a meaningful whole that we can examine independently of the social or economic forces that seem to account for such important aspects of the way the world has come about? If it is true, as Teschke argues that »[t]he constitution, operation, and transformation of in-ternational relations are fundamentally governed by social property relations«, 82 then this must surely occasion a shi of focus in the writing of international legal history as well. It should now discard the distinction between public law and private law so as to bring into view how notions of property and contract, the structures of family law, inheritance and succession as well as the corporate form have developed over time. It is one of the greatest problems of past histories of international law that they have chosen the scale of the state and traced the trajectories of »sovereignty« only – whereas the global network of property relations, thoroughly legalised as these are, would have enabled a much deeper historical penetration. Although social history has now entered the world of international relations, no comparable turn has yet appeared in international law. China Miéville’s Marxist account of international legal history is so far the most accomplished effort to take seriously the social determination of aspects of the interna-

tional political world, including international law, though the jury is still out on the usefulness of the »commodity-form-theory« as the proper explana-tory frame. 83 But the scarcity of legal debates about this point is disappointing.

To start on this, something might still be said for depicting the history of international law as the history of legal ideologies. Despite the attacks suf-fered by the notion in recent decades, it may still be useful in capturing what jurisprudence has some-times dealt with in terms the »judge’s legal ideol-ogy«, the complex of presuppositions about the world typically received through legal training, by the integration in a class and profession of jurists, for our purposes especially international jurists. 84There are today many accounts of the work and contexts of legal advisors of governments, of offi-cials and activists of international governmental and non-governmental organizations that might allow the delineation of something like the »ideol-ogy of competent international lawyers«, a specific »sensibility« that might unite the concerns of the history of legal thought with the study of social history. As an example, it seems obvious that the relative absence of debates on ius gentium in Britain until mid-19th century was occasioned at least in part by the specific outlook of English jurists predisposed to view the world through a combi-nation of commercial laws and the crown’s impe-rial prerogatives to which the absence of adoption of Roman law added something. In the absence of other vocabulary for addressing the specificity of the outlook of English jurists, product of a com-plex contextualization, the notion of »ideology« might usefully contrast their world to that of the universities of Prussia-Brandenburg at a time when central European statecra began to cope with the challenges of what appeared an increasingly auton-omous sphere of »the economy«. Here »ideology« and «sensibility« would become meeting-points for history of thought and social causation, just flexi-ble or porous enough to account for both punctual and differential history, the formation of shared meanings in a loosely defined cultural and profes-sional context that would also be amenable to change induced by external forces.

81 R (1994); W (2008) and its continuing volume W (2012); T (2003).

82 T (2003) 273.

83 M (2005), especially 155 et seq.

84 See R (1958) 76 et seq.

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V. Vitoria and Us: Continuity and Difference

The turn to contextual readings of international legal texts and environment-sensitive narratives of the lives and activities of particular jurists marked a welcome advance from the older search of origins to present law and the progressive accounting of international doctrines that went with it. The point about the »modernity« Vitoria can no longer be taken seriously as a statement in legal history – even as it may say much about the context and ideological position of the one who makes it. Nevertheless, there was something valuable in the sweeping normativity of those older works. The first historians of international law, Nys, Redslob, Vinogradoff and Scott wrote as committed partic-ipants in an institution-building project within the League of Nations and the consolidation of a »modern« international world. That their recount-ing of Vitoria as a precursor of their own project was in many ways flawed, even naïve, was rapidly pointed out by the new realists in the 1950s, Grewe, Schmitt, Nussbaum, among other commit-ted participants of another postwar project. It was mostly in the Catholic world, more especially in Spain, where originalist readings of Vitoria have remained current in the post-war years, oen as part of a morally toned opposition to the spread of secular, economically driven global modernity. It is hard not to see the contacts between that conser-vative agenda and the postcolonial critique of globalization: the fascination with Schmitt on both sides testifies to this. The contextual histories produced by Annabel Brett, Ian Hunter, Anthony Pagden, Richard Tuck, and others are welcome in counteracting simple or simplistic uses of Vitoria as part of such agendas. Yet, they would undoubt-edly agree that attention of a critical historian of international law cannot be limited to the careful reconstruction of the contexts in which Vitoria worked but must also examine how those contexts were formed and to what extent they have persisted to make international law what it has become today. Brett’s Changes of State, for example, moves almost invisibly from a complex contextualization of the ways in which the limits of the political community were imagined in early modernity to

a critique of how those imaginary lines are drawn and bind us in the present. 85

There is much reason to continue reflecting about the relations pertaining between Vitoria and ourselves. In composing narratives about the Dominican cleric historians will continue to con-textualise him in ways that are different because the questions they pose continue to differ. The histor-ian does not occupy a universal standpoint. But irrespectively of that self-evident fact, readers of histories will continue to be influenced. They will learn about the plight of an intellectual, pressed by the demands of power, faith and the wish to integrity – pressures not alien to today’s academics. They will find out how »law« receives its field of authority from adjoining disciplines through the contingent demarcations that have taken place between it and theology, politics, economics, and technology and that are reproduced in daily oper-ations of today’s institutions. When they shi the scope of their vision from individuals and their institutions to the wider world, they will learn about how law participates as a supporter or critic of military operations, about state-building, about imperial ambitions and about the virtues and vices of missions to civilize. In this process they may come to think of as strange and problematic that which earlier seemed unthinkingly familiar – the fact, for example, that massive poverty in the world can be upheld by theological respect to the right of property whose contours have nevertheless varied sharply across contexts. They may also come to find out that neither »inclusion« not »exclusion« ap-pears as a prima facie beneficial basis on which to move about in the world but that every relation-ship has its specific nature and history, and that even as patterns and paradigms do form, they never account for the full sphere of future possibilities.

Which leads me to my final point. The reduc-tion of a text or an action to the context is relative to the way the historian frames the context, decides its scope and chooses its scale. But there is a larger question about that reduction. History is not just contexts, miraculously collapsing into each other. In order to account for change legal history must accept that however thick a description of a context it has achieved, it is never such that it exhausts all future possibility. It is also part of the critical legal

85 B (2011).

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acquis to focus away from the manner contexts reproduce themselves and their accompanying structures of economic, technological, political and symbolic domination. This means directing attention to special context-breaking moments, practices that transform what was earlier taken for granted, as well as the accompanying hierar-chies. 86 To some extent, this builds on the larger tradition of writing about great »events« that can be contrasted with the monotonous routines through which the context merely keeps reproduc-ing itself. 87 Such events oen draw upon the porosity of the boundaries of a context and may contribute to processes that lead to the transforma-tion of the context itself – an »epoch« turns into another, a realist historian might later come to write. In their preface to a recent work on »events« in international law, the editors highlight precisely the opportunities opened by moments or activities that raise against the gray normality of routine applications of the law and instead move the law forward, contribute to crystallizing a substance or a content that seem »›startlingly inconsistent‹ with what had come before«. 88 Such events, rare as they are, cannot be reduced to the context, even as one must be wary of an international law in which »reform« has tended to operate precisely like this. 89 Stereotypical context-breaking »events« in the political world are of course great revolutions – the French and the October revolutions, but per-haps also »1989« and Arab Spring (who knows, it is

an aspect of the »event« that it is difficult to identify it as such when it occurs – however much it might call for our »fidelity« when it does). 90

The »discovery« of the new world certainly was an »event« of this type, but so was getting rid of the prohibition of usury – colonialism and commercial expansion both being parts of the world in which Vitoria operated and to which he gave intellectual articulation. Using old materials in innovative ways he opened possibilities or thinking and acting for his contemporaries that were not visible earlier, at least not in the same way. Attention to such context-breaking events, or moments where the new is being articulated for the first time, is surely as necessary as attention to the ways in which contexts and their articulations keep reproducing themselves – the way for example Vitoria kept his teaching strictly within the confines of religious training. Together they provide accounts of punc-tual time and differential time and give historical sense to the political predicament that even as we are today bound by our contexts, not everything about our thinking and acting is determined by them, and that there may thus arise moments where what we do becomes part of an event that finally changes the context. There can hardly be better reasons for engaging in critical legal history than endorsing a live sense of that possibility.

n

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East Indies (1595–1615), Leiden: Brilln V, E (2008), The Law of Nations [1758], Indianapolis: Liberty Fundn V, M (1983), Le droit et les droits de l’homme, Paris: PUFn V, P (1923), Historical Types of International Law, Bibliotheca Visseriana 1, Leiden: Brilln V, F (1991), On Civil Power, in: Political Writings, ed. by A. P and J. L, Cambridge:

Cambridge University Press, 1–44n W, J (2012), »Partly Laws Common to all Mankind«. Foreign Laws in American Courts, New Haven: Yale

University Pressn W, R A. (1990), The American Indian in Western Legal Thought. The Discourses of Conquest, Oxford: Oxford

University Pressn W, E (2008), Savage Republic. De Indis of Hugo Grotius, Republicanism and Dutch hegemony within the Early

Modern World-System (c. 1600–1619), Leiden: Nijhoff http://dx.doi.org/10.1163/ej.9789004167889.i-534n W, E M (2008), Citizens to Lords. A Social History of Western Political Thought From Antiquity to the Middle

Ages, London: Verson W, E M (2012), Liberty and Property. A Social History of Western Political Thought From Renaissance to

Enlightenment, London: Verson Z, P (2009), Legal Imagination in Vitoria. The Power of Ideas, in: Journal of the History of International Law 11,

221–271 http://dx.doi.org/10.1163/138819909X12468857001424n Z, K-H (1994), Völkerrechtsgeschichte, Munich: Beck

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138 Vitoria and Us

Tamar Herzog

The Appropriation of Native Status: Forming and Reforming Insiders and Outsiders in the Spanish Colonial World

Historians have tended to describe early modern empires as including »colonizers« and »colonized.« They mostly suggested that the first, using a he-gemony that was military, economic, political, religious, and legal, subjected the second to their control. The result was the emergence of a polar-ized universe that, in the Spanish American case, featured a society divided into two clearly distin-guished parts, stereotyped as including a Spanish and an Indian »republic.« Although most scholars conceded that this distinction was theoretical rather than practical, that the two republics oen mixed and that, rather than two distinct poles, they formed a continuum, historians nevertheless in-sisted that rather than inscribed in the colonial system, blurring was the result of »practice« not »Law.« They concluded that even in cases, in which the identification of Spaniards and Indians was de facto difficult, the differentiation between these two sectors was de iure absolute. 1 Not only were colonized and colonizers firmly separated, but the colonial encounter forced Iberians to define them-selves first and foremost in opposition to the native inhabitants. Thereaer, Spaniards originating from different Iberian kingdoms assumed in the Amer-icas a single collective identity and a single patria. 2Because »the intellectual and political invention of Spain« coincided with the conquest and colo-nization, »investigations into Spanishnness« were necessarily influenced by the colonial encounter, in which colonizers called themselves Spaniards mainly in order to distinguish themselves from Indians. 3

These conclusions, based on the assumption that the place of Spaniards and Indians within colonial structures was clear and evident, rarely included an examination of the legal categories

that defined both groups. So strong were these implicit understandings, that they allowed histo-rians to dismiss the well-known fact that both Spaniards and Indians were juridically classified as »natives.« Unaware of the implications of native status and the legal theories that defined and sustained it, scholars, who failed to inquire on this parallelism, routinely assumed that Spaniards were natives of Spain because born there, and Indians were natives of the Americas because they origi-nated in that continent. It what follows, I argue that according to Spanish doctrine, nativenness had little to do with birth but instead designated membership in a political community. The classi-fication of Indigenous peoples as natives, therefore, was never meant to reflect an evident reality, but instead was geared towards attributing them with a particular legal status, from which other groups were excluded. This was partially the result of the so-called European expansion that, by de-contextu-alizing Europeans, pressed on them the need to de-territorialize who they were and redefine them-selves and others anew. In the process, overseas domains and their inhabitants were characterized as both internal and external, both members and non-members. 4 In the Spanish American case, this led to the classification of Indians as both insiders and outsiders, the transformation of American Spaniards – who initially were the quintessential foreigners – into natives, and the identification of Peninsular Spaniards as aliens. Rather than creat-ing two republics, what colonialism did was to turn the world upside down. 5 It de-naturalized natives while making some Europeans (but not all) the true legal possessors of a world, which they invaded but which they now claimed as rightfully their own.

1 MA (1984) 177–180. On a newer understanding of the division into republics see B-C / S (1992) 129–143.

2 R-S (1998) 244 and 239–240 and K (2003) 331–333.

3 S (2004) 19–20.

4 S (2009) 17 and 58.5 R (1996).

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140 The Appropriation of Native Status: Forming and Reforming Insiders and Outsiders in the Spanish Colonial World

Native Status: The Spanish Doctrine

Spanish legislation and colonial practice re-ferred to the Indigenous population of the Amer-icas as including »natives.« Why this was the case remains a mystery. Unaware of the meaning of nativenness in Spain, most historians have auto-matically assumed that Indians were »natives« because contrary to Spaniards, they were aborigi-nes. Yet, even if this was the case, it is nevertheless clear that according to Spanish law »nativenness« (naturaleza) was a juridical status not necessarily tied to a factual situation. One of the most power-ful means of making distinctions in early modern Spain, it identified community members and sep-arated them from foreigners. The genealogy of how this came to be could be traced back to the thirteenth, fourteenth, fieenth, and sixteenth cen-turies when, as a result of the growing competition for resources mainly among vassals of the same monarch, different actors in different fori fought to restrict the enjoyment of certain benefits to those classified as natives. Their success led to the creation of a discriminatory regime that distin-guished members (natives, naturales) from non-members (foreigners, extranjeros) and that allocated each sector a different set of rights and obligations. As a result of its constitution, only natives could hold public office, receive ecclesiastical benefices, have jurisdiction over royal vassals, or immigrate to and trade in the Americas, to name just a few examples.

Easier to envision than to apply, the emergence of the legal category of native and foreigner in the late medieval period produced lengthy debates as to how to distinguish one from the other. These – which I studied extensively elsewhere – attested that, contrary to common-sense assumptions, na-tiveness was not established by local birth but in-stead depended on a plethora of circumstances. 6Described in the legislation, by the juridical doc-trine, and in everyday interactions as consisting of a bundle of elements (one had to consider the place of birth, the identity of parents, place of residence, economic, social, fiscal, military, civic, and reli-gious performance, and so forth) it called upon contemporaries to measure different factors against

one another and give each its proper weight before a viable conclusion on the nativenness or foreign-ness of individuals could be reached. Thus, while it was clear that a person born in the community to local parents, who continuously resided in the territory, paid taxes, prayed in the local church, participated in local holidays, was a member in the local militia, spoke the local dialect, and so forth, was a native; and that a person who lacked all these criteria was a foreigner; between one extreme and the other were many intermediary situations that also required classification. Among these could be, for example, a person born outside to foreign parents but who had settled locally and exhibited all the other enumerated traits; or on the inverse, a locally born individual to local parents who had le the community; or any such mixture.

Because the allocation of rights and duties was at stake – there were things that only natives could do – many individuals, groups, and communities took active part in these debates. Some wanted to guarantee their access to privileges such as the ability to immigrate to Spanish America (only open to natives). Others, on the contrary, wanted to bar their rivals from doing so. On occasions, discussions targeted not rights but duties and were centered on the wish to force individuals and groups to comply with the obligation to pay taxes or serve in the militia (two duties of which foreign-ers were mostly exempt). But, regardless of the concrete reason for which status was vindicated by actors or enforced on them against their will, whenever the allocation of rights or duties con-served to natives or foreigners was at stake, a dis-cussion was unleashed among interested individu-als, groups, and institutions regarding who was who, and who should benefit from which treat-ment.

Native Status and the Indigenous Peoples of the Americas

In Spain, debates regarding nativenness thus operated to distinguish Spaniards (who were wor-thy of certain privileges and shared certain duties) from foreigners (who were not). 7 Yet, in the Amer-

6 These questions are treated in greater length in H (2003).

7 Initially, there were natives of Castile, natives of Aragón, natives of Navarre,

and so forth. However, by the seven-teenth century with regards to Span-ish America, and the eighteenth century in both the Old and the New

World, the most prominent category was that of »natives of the Spanish kingdoms«, also shorthanded as »Spaniards«: H (2003) 64–118.

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icas, Indians were also identified as »natives« and were constantly recognized as such. Regardless of the question – greatly discussed in the literature – whether the differences between Spaniards and Indians were ethnic, racial, or cultural, whether they were permanent or transitory, and how they could be applied, the legal implications of granting the Indians »native status« remains to-date unex-plored. Did their nativenness carry the same mean-ing, implications and weight as nativenness in Spain? In their condition as vassals and non-for-eigners, were they also members of the commun-ity? Which community? Although rarely discussed in the literature, the importance of these questions did not escape the attention of contemporaries. 8In 1568, for example, two indios principales from New Spain who requested to return to the Amer-icas aer visiting the Iberian Peninsula argued that they were naturales of the Americas yet, despite their vassalage, extranjeros in Spain. 9 In 1598, Baltasar de Álamos asserted that the American population was divided into natives (naturales) and foreigners (forasteros). Among natives he listed Indians, who were »native by origin« and Span-iards who, aer their domiciliation, became »na-tives by birth.« 10 Among foreigners he included ecclesiastics, merchants, office holders, and all other individuals who temporarily resided in the New World and who, according to him, rather than natives were similar to »migrating birds,« that

is, were temporary residents. Other early modern authors suggested that the taxes Indians paid (tri-buto) were a sign of their membership in the community or they affirmed that Indians recog-nized the king as their master (señor) »as all other Spaniards« did. 11 Missionaries working in the New World equally explained that the natives they converted became not only Christians and vassals but also, by extension, Spaniards. »The Indians of this nation« they argued »must be treated not as other Indians but as Spaniards because their life, work, fidelity and love of the monarch and obedi-ence to his governors« made them worthy of this status. 12 In the eighteenth century, Spanish com-manders could thus sustain that Indians allied with Spain were either vassals of the crown or outright Spaniards and that they therefore could not be-come – voluntarily or forcefully – Portuguese. 13And, in their condition as natives, during the colonial period it was also theoretically possible for Indians to hold public office and ecclesiastical benefices. 14 Yet, although legally granted these privileges, the capacity of Indians to enjoy them was habitually challenged. To counter this reluc-tance, the king periodically reaffirmed Indian sta-tus. At least on one of these occasions in 1697, royal jurists openly stated that there was no need for royal intervention as no laws existed that would bar Indians who were natives from enjoying these privileges. 15 Thus, although they recognized that

8 H (2006) and H (2012).9 R (2009) 188.

10 Á B (1990) 13–15.11 B (2006) 300, citing José Za-

pata y Sandoval and S P (1972) book 3, chapter 1, nos. 14.

12 »Estos indios de esta nación deben ser tratados no como otros indios sino como españoles porque su vida, obras, fidelidad y amor que tienen a vuestra majestad y obediencia a sus gobernadores acudiendo a todo cuanto se les encarga del real servicio con grande puntualidad«: Pedro Bai-gorri to the king, Buenos Aires, 15.3.1656, reproduced in C(1952) 274–275. Somewhat similar was the letter of the viceroy of Lima to the bishop of Misque, Lima, 25.10.1765, Archivo General de la Nación /Buenos Aires (hereaer AGN/BA), IX.4.3.5 and declaration of Alonso

Vaca, in »Razón de lo que parece … sobre la población que los portugue-ses intentan hacer 50 leguas adentro del rio Marañón, 1677«, Biblioteca de la Real Academia de Historia, Madrid, Jesuitas vol. CLXXXVII, no. 23 antiguo, 29 moderno.

13 Joaquín Alos to Nicolás Arrendondo, Asunción, 19.9.1791, Archivo Histó-rico Nacional (hereaer AHN), Esta-do legajo 4387, No. 5. Also see »Autos formados a consecuencia de una real cédula para que se informe a su majestad sobre la conducente a la provincia de Mainas«, Archivo Na-cional, Quito, Fondo Especial (here-aer ANQ, Fe) 30, v. 83 no. 3226 fols. 80r–275v, fols. 87r–v, declara-tions collected in the village of San Joachim de Omagua on 26.5.1775, ANQ, Fe 30, v. 83 no. 3226 fols. 80r–275v, fols. 95v–107v and Juan Francisco Gómez de Arce to

Joseph Dibuja, Omagua 12.10.1775, ANQ, Fe 30, v. 83, no. 3226, fols. 80r–275v, fols. 108r–113r. On how the Portuguese responded see, for example, Feliz José Souza to Fran-cisco José Texeira, Fuerte el príncipe de la Vera, 23.11.1784, AHN, Estado legajo 4436, no. 10.

14 S P (1972) book 2, chapter 29, points 25–34.

15 Cédulas of December 19, 1696; March 26, 1697; November 27, 1703; Feb-ruary 21, 1725; and September 11, 1766, reproduced in K(1958–62), v. 3, t. 1, 64–69, 93–94, 186 and 333–334. Also see: M O (1956–1977), v. 1, 602–605. The struggle to reaffirm Indian eligi-bility to office was studied by M O (1975) 268–269 and 367–375, O C (1969) and (1981).

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discrimination existed and it was wide spread, it was based, so did royal jurists clarify, on social prejudice, not the law.

The linking of Indigenous nativenness to a juridical status, not a factual situation, was also evident in other ways. Spaniards, for example, strove to identify the »natural lords« (señores na-turales) of certain indigenous communities. Al-though at times they registered whether these lords were autochthonous or not, on most others they centered their attention on the question whether they had right to rule over a certain polity, thus assuming that (1) the Indians formed a community of naturales and that (2) as happened with lords of vassals in Spain, their legitimate ruler must also be a natural. 16

In all these cases, early modern Spaniards sug-gested that Indians were natives not because of their local birth, but due to their civic membership in a political community. Although the nature of that community was not always spelled out, it clearly was not limited to the Indian republic because the offices and benefices Indians could hold were oen external to it. In some odd way, making Indians natives was a means to de-ethni-cize them. On the one hand, it implied that they lost their previous condition as members of various distinct human groups associated with descent and ethnicity and were transformed instead (as hap-pened to natives of distinct villages, towns and cities in Spain) into participants in a common patria, the kingdom. 17 On the other, rather than being classified by their pre-Colombian ethnic, legal, and social differentiation and the traditional ties that united them to one another and to their previous lords, native status transformed Indians into civic members of a community that no longer depended on descent. From that moment on-wards, membership in that pan-Indigenous com-munity would define the social, economic, and political role Indians would play within the colo-

nial order. The insertion of Indians into the emerg-ing commonwealth through their designation as »natives« also paradoxically assimilated them to Spaniards even before their conversion and His-panization ever took place. 18 By the end of this process, it was not always clear whether Indians were vassals, natives (members of a political com-munity whose exact identification remained vague), aborigines subjected to the right of con-quest, or foreigners, perhaps even enemies. The only thing that was evident was that, independ-ently of the question what these categories implied and how they were to be implemented, legally there were ways by which Spaniards and Indians were clearly distinguished (for example, by refer-ence to their distinct fiscal obligations) and others by which they were not (for example, by reference to their nativenness). Indeed, as the above men-tioned Baltasar de Álamos argued in 1598, in the Americas, both Spaniards and Indians could and oen were »native.«

The inability to answer who exactly were In-dians and what their relationship to the kingdoms of Spain was (versus their relationship to the king, which was clear aer they were designated as vassals) allowed some native-Americans whose co-lonial role was different than that of most aborig-ines to affirm their Spanishnness. Indigenous no-bles who, like the Spaniards living in Spanish America did not pay taxes (which other Indians did), could thereaer consider themselves Spanish rather than Indian. 19 A similar conclusion was reached by the elites of Tlaxcala who, by virtue of their alliance with Spaniards and their coloniza-tion of the Mexican North, could present them-selves as conquistadors (rather than conquered people), colonizers (rather than colonized), Span-ish (rather than Indian). 20 And, if on the one hand, these claims could indicate that perhaps in the Americas the opposite of Spaniard was no longer the foreigner but instead the Indian, on the other,

16 That in Spanish thought nativeness, even in the Americas, gave rights was clear, for example, in the effort vice-roy Toledo employed to demonstrate that the Incas were not legitimate rulers of Peru, among other things, because they were not native but fo-reign to the region: C-K(2001) 145 and 161. H (2007) and (2006) 56–57.

17 L (2002) 377, 389–394 and 405 and C (1994) as well as the debate between Clara Álvarez Alonso and Bartolomé C (1995). It is thus clear that the integration of In-dians as »natives« and, eventually, as Spanish citizens, was conditioned on their religious and civic conversion: C (1997) 58–61. In this way too they were de-ethnicized.

18 For a comparative perspective see S (2009) 17.

19 H (2007) and (2006) 56–57.20 Y (2009) 9, 19, 56, and 138

refers to the ambiguous position of Tlaxcala and local requests to obtain rights reserved to »citizens« or Span-iards and denied to »Indians«. Also see M / O (2007).

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the rights vindicated by Indians clearly referenced claims of Spanish nativenness such as the ability to hold public offices and ecclesiastical benefices (see above).

Making Spanish Americans Natives and Peninsular Spaniards Foreigners

While the Indigenous were naturalized but de-ethnicized, and while their ability to enjoy the rights of natives as well as their status as Spaniards (or potential Spaniards) was constantly debated, Spanish Americans, the quintessential foreigners, gradually became natives, their nativenness being asserted vis-à-vis both the Indigenous population and Peninsular Spaniards. Indications that this might occur were already registered in the early sixteenth century by Francisco Vitoria who argued that, aer Spaniards procreated in the New World, their sons and daughters would become members of the local community and, in their condition as citizens would have the same rights and duties as the Indigenous population did. 21 The same would happen, Vitoria asserted, with Spaniards who would fix their domicile there. To substantiate the true nativenness of Spanish Americans, later gen-erations moved to naturalize their presence by arguing that the Indigenous population had no right to the territory either because it had never »truly« occupied it, or because it had occupied it incorrectly or insufficiently. Claiming themselves more worthy of the Americas than the aborigines because of their willingness to improve the land, in the eighteenth century, Spanish Americas living in confrontation with Indigenous not-yet-submitted

nations thus argued that they were people on the defensive rather than the offensive, victims rather than victimizers. According to their claims, rather than them being the invaders, they were attacked by aborigines who were encroaching on European land and fighting against a legitimate European occupation. 22 Presenting the Indians as peoples who were usurping territories that settlers already possessed and which had been won with »great sacrifice,« these reports silenced the fact that Euro-pean presence pushed many indigenous groups offtheir lands, forcing them into a permanent exile. 23Spanish Americans also adopted as their own the heritage of those natives whose culture they judged sufficiently advanced. They thus surveyed Aztec and Inca history, began primitive archeological excavations, exalted the nature around them and, in general, portrayed themselves as heirs to the best features of both pre-Columbian and Hispanic past. 24

While for Vitoria, the conversion of Spaniards into natives of the Americas was to become one of the titles that could justify Spanish presence there (that, once established, would legitimize itself by the passage of time), for others it was a means to distinguish between Spaniards of the Americas and Spaniards of Spain. This was what Baltasar de Álamos did in the sixteenth century when he asserted that both Spaniards of the Americas and Indians were natives of the New World, while Spanish royal bureaucrats and merchants were not. 25 These claims, which the literature habitually identified as reproducing Creole vindications, were usually interpreted as invoking a local identity that gradually came to be thought of as opposing a Spanish Peninsular one. 26 Portraying this develop-

21 V (1991) 281. According to Vi-toria »if children born in the Indies of a Spanish father wish to become citi-zens of that community, they cannot be barred from citizenship or from the advantages enjoyed by the native citizens born of parents domiciled in that community.« Vitoria set the same rule in the case of Spaniards domi-ciled in »one of these barbarian com-munities« for example by marrying there. They too, he argued, »would enjoy the same privileges as the rest, at least as long as they accepted the same burdens.«

22 The interrogatory and the declara-tions of Fernando de Santillán and

Jorge Ichel in AGN/BA, IX.23.2.5, Cuad. 1, fols. 23v–24v and 27r–v and Petition of Pedro Antonio Cervino, Buenos Aires, 25.6.1804, AGN/BA, BN 189, Exp. 1882.

23 »Presentación a Lázaro de Ribera … por los oficiales, vecinos y coman-dantes de las tropas auxiliares«, un-dated, Archivo General de Indias, Estado legajo 81, N.15(1a).

24 L (1983) 96–99, P (1990) and A (1992) 11.

25 Á B (1990) 13–15.26 H (2004) and H (2003)

145–152. See, for exemple, »Repre-sentación hecha por los americanos a nuestro rey Carlos III lamentándose

de que no se les mira y distingue como sus méritos piden sólo por re-sidir allí«, an anonymous pamphlet dated Madrid May 30, 1774, in Bi-blioteca Nacional del Perú, Lima, Mss. C4321, »Discurso del abad Don Ramón Dios ... sobre la oposición que los escritores extranjeros fingen y exageran entre los españoles europeos y americanos«, undated pamphlet in Biblioteca del Palacio Real (hereby BPR), Madrid, II/2851, No 10, fols. 270r–296r and Alonso de Solórzano y Velasco, »Discurso legal e informa-ción en derecho a favor de los nacidos en los reinos del Perú y conveniencias para que en él, sin el óbice de haber

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ment as »natural,« it is particularly telling that, for this to happen, Spanish Americans had to imagine themselves as natives of a distinct political com-munity than Peninsular Spaniards. Writing in 1667, Pedro de Bolívar y de la Redonda forcefully argued that European Spaniards loved Spain rather than Spanish America. Unlike native-born Spanish Americans, or persons who were raised, or studied or lived in Spanish America, or had acquired citizenship (vecindad) there, Spaniards born in Europe considered Spanish America a foreign land and maintained their loyalty to their original community. Because such was the case, European Spaniards were »newcomers« (advenedizos) and »outsiders« (estraños) to the New World who, even in the best of circumstances, could only be viewed as adopted, rather than natural, inhabitants. 27Other authors agreed, sustaining that Peninsular Spaniards were transients who merited treatment as guests and suggesting that, like all other foreign-ers, they could naturalize if they proved that they had transferred their loyalty from the Peninsular to the American community. 28 Because such claims had no legal precedent – by law natives of Spain and Spanish America formed part of the same community (they were all naturales de los reinos de

España) – they were mainly argued by reference to natural law: »Although they [European Spaniards] are not considered by civil law foreigners in the Indies, the truth is that they did not obtain their nature in them. They have in the Old Spain, and not in the New, their houses, fathers, brothers and all that is capable of influencing the inclination of a man. When they are exiled to this distant land to serve an office, they do not change their nature, nor do they become insensitive to the impulses with which they were born … they regard themselves as temporary in America, and they wish to return to the quietness of their patria and the comfort of their home.« 29 The conclusion was evident: »Since the power of civil law does not reach the sphere of natural effects, we experience that sons of the Old Spain are foreign to the New Spain, even if this is not recognized by civil law.« 30

By the end of this process, Spanish American could present themselves as natives vis-à-vis both the aboriginal population and Spaniards from Spain. This double assimilation allowed them to argue (mainly during the struggle for independ-ence) that they were victims of a European oppres-sor. Making themselves natives and transforming Spaniards of Spain into voracious foreigners and

nacido allí, pueden obtener plazas de oidor y demás que les están prohibi-das« (1652) in BPR Mss. 2848, fols. 27r–57v. Also see L (1987), L (1993), L (1975), P(1987) and L (1994) 34–37. Creolism won prominence in the Anglo-speaking world in the 1980s aer its inclusion in Benedict An-derson’s Imagined Communities, in which it was classified as an early example of a modern national iden-tity.

27 Pedro de Bolívar y de la Redonda, »Memorial, informe y discurso legal, histórico y político … en favor de los españoles que en ellas nacen, estudian y sirven …« (Madrid 1667), The Lilly Library, Indiana University, Bloom-ington, Indiana, fols. 3v, 25r, 32r–v, 45v, 53r and 56r.

28 Juan Antonio de Ahumada, »Repre-sentación político-legal a la majestad del señor don Felipe V en favor de los empleos políticos, de guerra y ecle-siásticos«, (1725), reproduced in Do-cumentos selectos (1992). The city of Caracas made similar allegations in 1796: Letter of November 28, 1796,

reproduced in Blanco (1875) 269–270 and 272. Also see: T M(undated) 281 and T M(1990) 524–525 and 462. In 1810 a local journal in Buenos Aires also used the term »naturalization« when referring to Peninsular Spaniards who wanted to become natives of the Americas, or Creoles: Gaceta de Bue-nos Aires, September 17, 1810, cited in V (1991) 111.

29 »Estos por más que no se consideren civilmente extranjeros en Indias, los cierto es que no recibieron el ser en ellas: que tienen en la antigua España, y no en la nueva, sus casas, sus padres, sus hermanos y cuanto es capaz de arrastrar la inclinación de un hombre; que cuando a esta distancia se des-tierran a servir un empleo, no muden de naturaleza, ni se hacen insensibles a los impulsos de la con que nacieron y por todo ello es fuerza, que desde estas regiones no pierdan de vista la atención a los suyos, y sobre consultar a socorrerlos (si ya no es a enrique-cerlos) se contemplan pasajeros en la América, teniendo por objeto el vol-verse a la quietud de su patria, y casa

acomodados«: »Representación que hizo la ciudad de México al rey don Carlos III en 1771 sobre que los criollos deben ser preferidos a los europeos en la distribución de em-pleos y beneficios de estos reinos«, dated March 2, 1711 and reproduced in H D (1877) 430.

30 »Pues obran contra ellos las mismas razones, porque todas las gentes han defendido siempre el acomodo de los extraños. Lo son en lo natural, aun-que no en lo civil en la América los europeos; y como no alcance la fuerza civil a la esfera de los efectos naturales, hemos de experimentar estos de los hijos de la antigua España, por más que civilmente se entiendan no ex-traños de la nueva. Entre los efectos naturales se cuenta con mucha razón el amor que tienen los hombres a aquel suelo, en que nacieron y el desafecto a todo otro, siendo estos dos motivos los más sólidos principios, que persuaden la colocación del na-tural y resisten la del extraño«: »Re-presentación que hizo la ciudad de México al rey don Carlos III en 1771«, ibid, 429–430.

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potential enemies, Spanish Americans thus dis-tanced themselves from the accusation that they (rather than the Europeans who had remained in the Old World) were the true aliens and true victimizers of a native Indigenous population, which they dispossessed and oen annihilated.

Naturalization and de-Naturalization in Times of Crisis

The importance of these questions that during the colonial period operated in the background, came to light in the early nineteenth century when deputies to the Cortes de Cádiz (1810–1812) moved to define what Spain was, who belonged to its nation, and who were its citizen. While commonly agreeing that Spanish America was an »integral part of Spain« and that, in their capacity as natives, its residents were both Spaniards and Spanish citizens, a few dissenting voices nevertheless ar-gued that European and American Spaniards did not form part of the same nation. 31 Spanish Americans, they asserted, were perhaps vassals of the same king, but not »natives of Spain.« Now that the monarch was absent, there was nothing necessary or natural about their association with the Peninsula. As far as this minority of delegates was concerned, the rejection of Spanish Americans was necessary because at stake was the question of whether the Spanish nation could include »people of color and mixed blood« who were abundant in

the New World. The admission of such people, they argued, would introduce confusion into a nation which was »homogeneous and without internal rivalries.« 32 Nonetheless, following a de-bate taking place on October 1810, European and American territories were declared as participants in the same monarchy, and their »natives and originals« as members of the same nation. 33 This declaration, however, le open the question which Spanish Americans were »natives and originals,« and which not.

When the parliament turned to deal with Span-ishnness and Spanish citizenship on September 1811, the stage was already set for a debate on the »nativenness« of the inhabitants of the New World. Assuming almost automatically that de-scendants of Spaniards were natives, the next sector whose status was examined was the Indigenous population. Explicitly referencing their colonial condition as »natives,« and understanding it as implying civic membership, most delegates to the Cortes of Cádiz concluded that Indians were orig-inal members of the Spanish community. Their nativenness, communal existence, personal liberty, and vassalage were recognized from the early colonial period. 34 Since then, they were allowed rights traditionally reserved for natives, such as office holding. 35 »Nothing new do I find in these decrees, because our laws of the Indies considered them equal in all respects to the Spaniards, and allowed them to hold offices and honors.« 36 This was the correct legal interpretation, but it was also

31 Session of October 3, 1810, Actas de las Sesiones Secretas de las Cortes Extra-ordinarias de la Nación Española (1810–1813). Madrid: J. A. García, 1874 (hereby ASSCE), 8 and Diario de las discusiones y Actas de las Cortes de Cádiz, Cádiz: Imprenta Real, 1811 (hereby DDACC), v. 1, 26–27. The relationship between Spain and Span-ish America was also discussed on January 9 and 11, 1811, DDACC, v. 2, 316–330 and 346–372. See most par-ticularly the positions of the delegates Morales Duárez on January 11, 1811, DDACC, v. 1, 370, Fernández de Leyva on January 16, 1811, DDACC, v. 2, 432–434 and Quintana on Janu-ary 11, 1811, DDACC, v. 1, 361 and 363.

32 Argüelles argued on January 23, 1811, DDACC, v. 3, 66 that »la población de

España europea no ofrece estos in-convenientes, porque toda ella es ho-mogénea. No hay aquí rivalidades, esas diferencias de castas de donde dimana el espíritu funesto de parti-do.« Other delegates such as Gurídi y Alcocer resented this implication and argued that Spain was just as diver-sified as Spanish America: January 25, 1811, DDACC, v. 3, 90.

33 Sessions of October 3, 10, 11 and 14, 1810 in ASSCE, 8–19, in 19. The resolution voted upon on October 14, 1810 stated that »las cortes generales y extraordinarias confirman y sancio-nan el inconcluso concepto de que los dominios españoles en ambos hemis-ferios forman una misma y sola mo-narquía, una misma y sola nación y una sola familia y que por lo mismo los naturales que sean originarios de

dichos dominios europeos y ultra-marinos, son iguales en derechos a los de esta península.«

34 Feliú on January 30, 1811, DDACC, v. 3, 163–168.

35 Gurídi y Alcocer on January 25, 1811, DDACC, v. 3, 92 and Castillo on August 21, 1811, DDACC, v. 7, 461–462.

36 »Nada encuentro nuevo en este de-creto porque nuestros leyes de Indias los consideran iguales en todo con los españoles y les abren la puerta a los empleos y a los honores«: Castillo on August 21, 1811, DDACC, v. 7, 461–462.

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a compelling moral and political solution. Because of their condition as true natives, Indians necessa-rily loved their homeland, which was also the homeland of their forefathers. This love guaranteed their obedience, fidelity, and »good intentions« towards Spain. 37 Most discussants also pointed out that Indians were »natives and originals« of the Americas, and they expressed the opinion that they had to be accepted as original members of a national community that now formally extended to both sides of the Ocean. Some deputies, how-ever, fearing the practical consequences of the inclusion of Indians among Spanish citizens, sug-gested a »separate but equal« regime. 38 Others stated that regardless of their nativenness, Indians were unworthy of citizenship. 39 A few coined their objection in civic terms, insisting that despite their nativenness, Indians were quintessentially foreign-ers. Aer all, they were different from Spaniards in language, culture, and capabilities. Nonetheless, the majority opinion ruled otherwise, determining that Indians and American Spaniards formed a single community with European Spaniards and that they were all Spaniards and Spanish citizens. Yet, while agreeing that because they were native Indians were also citizens, most delegates conceded that Africans and their descendants were not. Portraying these as aliens and arguing that they never naturalized, they thus suggested that, in their condition as outsiders during the colonial period, Africans should continue to be non-members also under the new liberal regime. 40

A Comparative Perspective: British North-America

In British North America, similar processes that gradually de-naturalized the aborigines, natural-ized the invaders, and transformed the English into foreigners, also transpired. Observing Indigenous mortality and concluding that the aborigines lacked the ability to thrive in their homeland, European settlers suggested that there was a »cos-mic synchrony« between them and the New World. 41 Because, according to them, they were better fitted to American conditions then Indians, the later were not as »natural« as they were. Not only were colonialists naturally more native than the local population, this population was not truly indigenous. The Americas had been repeatedly invaded by many groups. Those who resided there before Europeans arrived were therefore mere migrants »whose territories might subsequently be invaded by other,« more recent, colonizers.

While making themselves equally or even more worthy of the Americas than Indians, settlers also searched to distinguish themselves from fellow Britons. Although they normally shied from call-ing themselves Indians or natives because of the negative connotations of these terms, on occasions, for example, during the Boston Tea Party, they did present themselves as either Indians or Americans in order to distinguish themselves from Euro-peans. 42 According to their claims, they were members of a »new race of men« that, by »casting

37 Morales Duárez on January 11, 1811, DDACC, v. 2, 370–372.

38 Quintana on January 9, 1811, DDACC, v. 2, 317.

39 Valiente on January 23, 1811, DDACC, v. 3, 75–76.

40 The perception of Africans as for-eigners first appeared in the sixteenth century and it persisted to the eigh-teenth century: P (1981) 317, B (2000) 9–10 and 50–51. Also see the letter of the city of Cara-cas dated November 28, 1796, repro-duced in B (1875) v. 1, 267–275. It was also reproduced in the Cádiz debates, in which various delegates openly called Africans for-eigners (extranjero and casta extranje-ra): Morales Duárez on February 7, 1811, DDACC, v. 3, 282; Fernández de Leyva on September 3, 1811, DDACC, v. 8, 134; and Gurídi y

Alcocer on September 4, 1811, DDACC, v. 8, 150–151. Their lack of naturalization was argued, for exam-ple, by Aner on September 5, 1811, DDACC, v. 8, 181–184. The denega-tion of native rights such as office holding and ecclesiastical benefices was made explicit in Morales Duárez on February 7, 1811, DDACC, v. 3, 281–282. Yet, although referring to their nativeness or foreignness, the debate clearly referenced the idea that these individuals, because of their descent, were naturally inept to exer-cise political rights: Valiente on Ja-nuary 23, 1811, DDACC, v. 3, 75–76, Dou on September 5, 1811, DDACC, v. 8, 173; Espiga and García Herrero on September 7, 1811, DDACC, v. 8, 215–220 and 223–225; and Creus on September 10, 1811, DDACC, v. 8, 233–234. Lisperguer also mentioned

these prejudices in his intervention of September 15, 1811, DDACC, v. 8, 329. On the debate on both Indians and Africans see H (2003) 155–162.

41 W (1999) 132 and C(2001) 130–131, 135, 153, 156–158 and 177–178. Quotations are on pa-ges 131 and 156. Also see C(2008) 23–24 and 42–43.

42 D (1998) 2 and 6. On the ne-gative connotation of these terms see C (2001) 175–176.

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off their European skin« looked forward to the future, rather than backwards to their ancestors. 43Thus, although the historiography has insisted that until the mid-eighteenth century colonialists vin-dicated their Britishnness, abandoning it only in response to British attitudes that gradually por-trayed them as foreign, it is nevertheless clear that, like Spanish Americans, during the colonial period settlers living in the North were both internal and

external to Britain, both similar and different than their European compatriots. 44 They were natives or Europeans, members or foreigners (or both things at the same time) depending on who among them was speaking, when, and for what end.

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43 Crévecoeur in 1782 and John Quincy Adams in 1819, cited in S(1986) 3 and 75–76. Also see pages 77 and 102–103.

44 W (2001) 1238–1239. Also see: C (2002) 65 and 68 and G (2008) 21–37.

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nationales et identités culturelles dans le monde ibérique et ibéroamericain. Actes du XVIIIème congrès de la société des hispanistes français, Toulouse, 95–107

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Arbor

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Jean-Louis Halpérin

Transplants of European Normativity in India and in Japan: a Historical Comparison

For the history of legal transplants of Western origin, Japan has been considered as a model or a kind of ideal-type from a long time. 1 Since 1868, and the beginning of the Meiji era, Japan was seen as a big extra-European country that was not colonized, but whose Government chose under the authority of the emperor to modernize its legal system through massive imitations of European laws, especially the French and the German codi-fications or the Prussian constitution. The volun-tary action of the Meiji Government (decided aer different studies travels and investigations in the most powerful European countries) and the eclec-tic inspirations of Japanese lawyers suppose a true »policy« about legal transplants that has been con-tinued through generations and renewed in the 20th century under two different factors: the occu-pation of Japan by the United States aer World War II (1945–1952), which has triggered impor-tant borrowings of American law (notably con-stitutional, corporation and labour law) and the development of a strong tradition of comparative law among Japanese law scholars, who are cur-rently linked with the United States, Germany and France.

The case of India has been generally studied as a different one. First, because it was a colonized country, in which the British rulers could impose their justice and their conceptions of law. It could be said that India was forced to become a »com-mon law country« and that Indian lawyers had no other choice during the 19th century and the first half of the 20th century than to adopt common law traditions. It is well known that Gandhi and many other leaders of the Indian national movement studied law in England and were called to the English Bar. Whereas legal formants of Western origin were translated in Japanese, English became and remained until today the official language of Indian law. Second, as an apparent contradiction, the decision taken by the British colonizers to keep

personal laws – first the ones of Muslim and Hin-du people, then of the Christian, Parsi and Jew minorities – has given the feeling that the sub-stratum of indigenous laws has been respected by the colonizers. If the rulers used common law institutions (like the jury or the English family law), have not the colonized kept their traditional law, without the influence of legal transplants? However, this point of view is today criticized and nearly abandoned. It has been proved that, from the end of the 18th century, British lawyers (like William Jones) have »manipulated« Hindu and Muslim sources and partly invented an Hindu legal tradition through the translation of the Ma-nu Code and its recognition as a »law book«, or through the establishment of an Anglo-Muham-madan Law (which was different from Muslim law). 2 The importance of British legislation, and even codification, in India has been also re-eval-uated as something very special in the common law context. 3

If one considers today India and Japan as two great Asian countries through their population (more than one billion people in India, more than 123 millions in Japan), their powerful economy (the third world ranking for Japan, the ninth for India) and their extraordinary living culture (for example in literature and pictures), it is notewor-thy that these two legal systems were and remain deeply westernized, the first one with a British common law dominant influence, the second one with a »civil law« (French and German) print. In these two countries a great part of what is qualified as »legal«, from the constitution to courts practice through the legal vocabulary and lawyers dressing, is of European origin. It can even be asked if the »concept of law«, as it is nowadays understood in India and in Japan, is not a Western invention transplanted in these Asian territories. This assertion can appear provocative, but if one admits that every society (or polity) was not en-

1 R (2007).2 B-P (2008).3 H (2010).

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150 Transplants of European Normativity in India and in Japan: a Historical Comparison

dowed with a legal system, it can be controversial to decide when something as law was invented in India and in Japan. There are many doubts about the oldness of indigenous law in Japan and in India: there is no evidence that the Manu’s Code (Manu Smrti) and other Dharmasastras were legal norms and the same question can be asked also about the 604 »Seventeen-article constitution« of Japan. For a great part, law was developed in both countries through foreign influences: the one of Chinese law in Japan (the 702 Taiho Code and the 718 Yoro Code were inspired by the Chinese Tang Code) and the one of Muslim Law in India. Furthermore, in Japan as in India, this traditional law was in a phase of decay when the European pressure developed on both countries. A compar-ison of European normativity transplantation is, according to me, meaningful between Japan and India: it could show how two different historical contexts have known rather similar process of legal transplants and in which fields the massive trans-plants of the 19th century have been limited or, on the contrary, revived in the last decades.

I. Two different situations, a similar process of global reception of Western law

The historical contexts in which the European normativity could be transplanted in India and in Japan are characterized by some clear differences. The European legal influence in India, beginning in sixteenth and seventeenth centuries factories created in some harbours by the Portuguese, the Dutch, the French and the British colonizers, blossomed with the British rule aer the end of the Seven Years War (1763), that reduced the ambitions of French colonizers to a few trading posts. Of course, it was a big enterprise of colo-nization that began with the 1757 diwan granted by the Mughal emperor to the East India Company in order to collect taxes in Bengal, Bihar and Orissa. But it could be said that the legal sovereignty of the emperor remained under the Company rule (or Raj) until the Indian Rebellion of 1857. In 1858, the Mughal dynasty came to an end and the British Raj transformed India in a crown colony. Never-theless, Princely States kept a relative autonomy under the British suzerainty.

On the contrary, Japan emperors succeeded to maintain the independence of their country and, since the beginning of the Meiji era in 1868, were the leaders of the deep reforming movement, including the borrowing of Western legal for-mants. But one can also consider that Japan was subjected to a military and political pressure from the Western world and especially the American since the 1854 Perry expedition. The Government of the Shogun was constrained to sign unequal treaties (with some privileges of judicial nature for foreign merchants) with the US and European countries. The legal transplants policy, notably with the development of a modern judiciary and the process of law codification, was an indispensable means to prove that Japan was now endowed with a true (and fair) legal system and to obtain the revision of these treaties. Is it necessary to remind us that Japan was occupied by the US from 1945 to 1952 and that this military administration had a great role in writing the 1946 Constitution and reforming the main Codes? If Japan was never colonized, the country was not always truly »sov-ereign«.

Another feature that makes the Japanese and the Indian situations rather similar is the crisis of their legal systems in 18th century and 19th century. In Japan, the shogun Government (bakufu) con-trolled only one part of the territory and could not really impose the respect of its rules to the power-ful daymios. This feudal context has meant for a long time a decline of legal regulations (penal laws from Chinese inspiration) in favour of the social normativity of chivalry codes. During the 18th cen-tury, there was an attempt (provoked by Neo-Confucianism influences) to reinforce the legal corpus (the 1742 Code called Kujikata-Osadamega-ti). But these laws were kept secret and the shogun has no real means to force daymios courts to apply these texts. 4 Japan knew a curious situation of relatively important developments of litigation (in the biggest towns where litigants lived in courts inns and obtained here a kind of legal advice from innkeepers), without a true legal order or organ-ized lawyers. 5

In the same time, the Mughal emperor encoun-tered also great difficulties to make the Muslim penal law applied in his territories and probably tolerated the use of social customs (especially

4 S (1996) 120.5 W (1997) 111–112.

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Hindu ones) that were not enshrined in legal texts. 6 In South India, the main source of court decisions was custom: whereas in 14th–16th cen-tury Kerala, the Dharmasastras were never quot-ed, 7 the Manu Smrti was known in the 18th century courts of the Marathas kingdom. 8 Generally speak-ing, there was no class of true lawyers in what is called »traditional Hindu law«, 9 a normative sys-tem that cannot be qualified as »legal« without discussion. Courts decided case by case without taking in consideration any normative text. 10 The fact that the 1757 diwan let the civil justice de-partment to the East India Company in Bengal, Bihar and Orissa, then that the emperor did not react against Warren Hastings policy to suppress the penal competences of the kazis (cadis) in the 1770s shows that the control of the legal system was no more a political target for the last Mughal rulers.

It would be exaggerated to consider that there was a »vacuity« of law in India before the develop-ment of the British colonization and in Japan before the Meiji era. But one can argue that there was not a sophisticated legal system (as in China or in some Muslim countries) supported by a group of professional lawyers or by intellectual develop-ments concerning the legal science. At the begin-ning of the Meiji era, the great Japanese theorist Yuchiki Fukuzawa could write that three things lack in Japan in comparison with the Western World: science, commerce and law. 11

In both countries, the main question about Western legal transplants was not a choice between common law and civil law models, but the adop-tion (by direct force or by indirect pressure) of the whole legal structure of the European Modern States based on the concept (which is always ours) of »rationalized law« (to use Max Weber’s vocabu-lary). It is true that India could not make a choice between common law and civil law models be-cause of the domination of English colonizers (with the exception of French or Portuguese trad-ing posts, where civil law continued to be applied until today), whereas the Japan Government de-cided, aer some preliminary investigations (Japa-nese students were sent to Great Britain and called

to the Bar), that civil law systems were easier to be transplanted (with the ready-made codes) than common law ones (with the traditional impor-tance of case law rooted in historical foundations). But, in both territories, law appeared first as a glo-bal Western product. It is noteworthy that Roman law was taught and used as well in India (William Jones wrote a Digest of Hindu Law and, later, Ro-man law was a matter of examination for future barristers) as in Japan (where the influence of Roman law is linked with the one of the German Civil Code). 12 Besides private law (and its different structure in common law and civil law countries), the law of procedure (which was characterized by many points of contact between Great Britain, France and Germany, for example about the jury system or the rights of defence), penal law, con-stitutional law, administrative organs and regula-tions, later intellectual property or labour law were modelled in India and in Japan according general Western patterns that could not be assigned spe-cially to civil or common law countries. The legal impact of the development of taxation, census, army, local administrations or elections (specially aer World War I) was another effect of a massive transplant of European features of the Modern State. Again, from 1945 to 1952, the US occupa-tion did not mean the transformation of a civil law country in a common law one: the structure of the codes was kept and many institutions (for example in penal procedure) remained very different from the American model. It was rather the question to implement in Japan the democratic and Welfare-State that has been reshaped in America by the New Deal and inspired also many reforms in European countries (for example in France and in Germany).

It can be said that all the »formal« characters of European normativity, as they were specially devel-oped in the 18th century and 19th century, were transplanted in India and in Japan. At the first rank, one thinks at the codes or at the rationalized legislation in penal and civil matters. It is the matter of the five Japanese codes, the number of which is modelled under the French model: the Penal and Penal procedure codes (the first ones in

6 F (1983).7 D (2002) 83, 119, 149 and 204.8 G (1953) 69.9 R (1968).

10 M (2010) 71.

11 F, Y (1872–76) 38; Encouragement of Learning (2012) 28.

12 K (2004).

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1882, the new Penal Code in 1907), the Code of Civil Procedure (1890), the Civil Code (Minpo, 1896–1898) and the Commercial Code (1899). For the preparation of the Civil Code (under the direction of the French professor Boissonade from 1873 to 1892), as well as for the Commercial Code (under the direction of the German professor Roessler), it is noteworthy that Japanese customs were collected and studied by the draers of the Code. But these customs appear divided or uncer-tain (in family matters they were translated in English by Wigmore) and finally the Japanese writers of the codes decided not to use them. Some Japanese scholars, like Naoki Kanayama, consider today that there is absolutely nothing that can be qualified »traditionally Nippon« in these codifica-tions. 13

More surprisingly, the British colonizers have also used the codification process in India to impose similar rules to all their subjects: the 1858 Code of Civil Procedure, the 1860–1862 Indian Penal Code, 14 the 1861 Code of Criminal Proce-dure, to which one must add the Indian Contract Act (1872), the Indian Evidence Act (1872), the Specific Relief Act (1877), the Easement Act (1882), the Bills of Exchange Act (1882), the Transfer of Property Act (1882), or the Indian Trust Act (1882), which are all developed statutory laws (there are 238 sections in the Indian Contract Act, 167 in the Indian Evidence Act) very similar to specialized codes. The British colonizers considered that co-dification was a bad thing in Great Britain, but a good means to impose (as a form of legal despot-ism) Western rules (oen inspired by French mod-els) to indigenous peoples.

With the codification process it is also a ration-alized case law, known through official or private law reports, which was transplanted in Japan and in India during the 19th century. Private law re-ports about decisions of Presidency or Company courts were printed in India since the years 1810s and 1820s. Then, they were favoured by the colo-nial Government aer the establishment of the High Courts in 1862 and semi official collections, as the Law Reports of the Bombay High Court,

appeared regularly in the 1870s. In Japan the decisions of the Great Court of Cassation (Daishi-nin established in 1875 according to the French model) were also published at the end of the 19th century. It is another formal feature of Euro-pean legal systems that was thus transplanted.

Beginning in Japan with the 1889 Constitution (following the 1851 Prussian model) and in colo-nial India with the 1919 and 1935 Government of India Acts, modern constitutionalism was also borrowed from Western countries. Constitutional law, which is now in force in Japan or in India, is based for the first country on a 1946 text largely written by American experts, and for the second one on the longest constitution of the world voted in 1950 by the Constituent Assembly aer a detailed study of many foreign constitutions. Both constitutions have adopted the British mod-elled parliamentary government, combined with the American style of judicial review. Despite the various divergences in the content of these con-stitutional laws, the form of the constitution (as the fundamental norm of the country) is again a legal transplant from the Western world.

To finish with this summary of the global reception of the Western concept of law in India and in Japan, one has to remember that English is until today the language of courts and lawyers and that new Japanese words were specially created (and inserted in the codes) to express Western legal notions that were unknown in the traditional language until the Meiji era. 15

II. Which limits and which changes in the reception of Western normativity?

As for any legal transplant, the outcomes of this reception of Western normativity in Japan and in India are difficult to be evaluated in the longue durée. One has been so accustomed to consider as normal the keeping of the Indian Penal Code or of the Minpo until today that their history seems to have lost any link with the one of European law. Through process of »Indianization« or »Japaniza-

13 K, N (to be published).14 S (1998).15 An important role was the one of Rin-

Sho Mitsukuri who translated the French codification in Japanese in 1875. The Japanese Codes of the Meiji

era were written in Chinese writing style with the katakana rendering. Recently they have been rewritten in hiragana to make them more acces-sible to common people.

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tion« many legal institutions of Western origin have been acculturated in their Asiatic context. On the other hand, the question remains if the reception of European normativity has not be limited to an apparent superstructure or reinter-preted in an American way.

About the limits of the reception of European normativity, the current debates are focusing on the great difference between a country with so many peoples (from a religious, ethnic and social point of view) as India and the so-called »homoge-neous society« of Japan. In legal terms it seems clear that the reception of European transplants would be easier in a unitary structure (with the same rules for all citizens) than in a federal one, especially with the keeping of personal (religious) laws. Is not the impossibility until today to achieve the promise of the Indian constitution about a »uniform civil code« the proof of a pluralistic legal order combining Asiatic cultures (especially in Hindu and Muslim law) with the one inherited from the British colonization? 16

Nevertheless, some »cultural« obstacles to a complete reception of Western normativity have been emphasized also in the case of Japan. Among the most frequently quoted arguments, the Japa-nese distrust towards law, 17 the importance of the indigenous concept of social duties (giri), the re-sistance of traditional family patterns (with a mi-nor status for married women, a rather weak number of divorces, a very small percentage of illegitimate children), the small rate of litigation and the preference to arranged settlements (be-tween relatives, neighbours or in industrial rela-tions) would be clues that law has not acquired until today the status of »supremacy« (towards other means of regulation) in the treatment of social conflicts. 18 Legal history helps to correct these stereotypes about the »national spirit« (koku-min-sei in Japan) and to introduce chronological and social nuances: the rate of litigation was relatively high during the inter-wars period, 19 the »traditional« family (with it own titles about civil status) has been upset by the implementation of the Minpo and it is difficult anywhere to estimate the domain of law in social regulations. Japanese

courts and lawyers were and are not façade insti-tutions, without any impact on the society: the recent debates about the re-introduction of the criminal jury (practised only between 1923 and 1943) 20 and about legal education (which has concerned a great part of the Japanese elite) show that many Japanese people can be interested in legal questions.

If one compares the Japanese situation with the Indian ones, cultural factors appear to have been more important in India to limit the reception of European normativity. Especially, the keeping of personal laws as rooted in religious and social traditions as Hindu law and Muslim law has made family law a kind of citadel of resistance against the »legal individualism« (and the egalitarian principle in favour of women) what we link with European transplants. The difficulties that British then Indian rulers have encountered to curtail polygamy, the effects of the dower institution in the bad situation of married women (towards their mother in law), the practise of burning widows (sati), the unequal treatment of women in succession law have been exemplified as cultural obstacles to a deep anchor-ed reception of Westernized institution like the »special marriage« (between members of different religious communities), the right to divorce or the patrimonial capacity of women. Furthermore, the survival of the caste system, despite its prohibition through the 1950 constitution, has created great difficulties to transplant directly the European con-cept of equality before the law.

Here again, the historical comparison allows developing a more complex analysis. First, British colonizers have constructed personal laws (as some effects of the caste-system) according European categories (from the departure, in considering Hindu Dharmasastras and Muslim fiqh as laws). There is not a simple opposition between a »tradi-tional indigenous« law and »modern transplanted« rules. Then, European transplants could have an impact in the longue durée: the recognition of Christian and Muslim divorces or the distrust of colonizers towards polygamy have facilitated the 1954–1955 reforms in Hindu law, prohibiting polygamy between Hindus and introducing the

16 H (2009).17 N (1976) 159.18 D (2002).19 H (2006) 27.20 O (2010).

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institution of divorce (that has recently grown up, notably in big cities, as an example of the West-ernization of the way of life in India). One has to take account also of political (rather than cultural) factors in the failure of some Western transplants as the criminal jury abandoned in India in the 1960s (because it was one symbol of the unequal colonial justice). 21 If the problems engendered by the caste-system are very specific to India, the fight against discriminations is also a question in Japan (concerning Burakumin or Ainu people), which was impossible to solve with the 19th cen-tury European legal technique. Cultural factors appear less pregnant that political issues and socio-logical transformations in the metamorphosis of legal transplants of Western origin.

Rather than this global comparison between two complex societies in constant evolution, it would be more fruitful to develop studies about the competition between European and American normativity, especially in the field of legal educa-tion. Since the Perry expedition, the relationship between Japan and the US has always been crucial in the Westernization of Japan. If American law (a concept that was not so easy to understand, outside the constitutional sphere, during the 19th century) was not a model for the Meiji reformers, there were already some links between Japanese and Ameri-can lawyers. For translating the French codes (and the word »droit« in the meaning of right with the neologism kenri), Mitsukuri used a Chinese trans-lation of Wheaton’s Elements of international law. 22Tocqueville was also translated in Japanese at the end of the 19th century and could influence Japa-nese lawyers about American Democracy. Later, Izutaro Suehiro, one of the pioneers of legal so-ciology in Japan, studied at Chicago University at the end of World War I and introduced the American case method in the Japanese law teach-ing. 23

Of course, the main stream of US legal influ-ence happened in Japan aer World War II, espe-cially during the period of American occupation (1945–1952). It concerned first the constitution, human rights and judicial review and, here again, a comparison is possible with the voluntary borrow-ings of the 1950 India constitution to the models of the Supreme Court and of the Bill of Rights. But

many other fields of Japanese law – as corporations, competition, labour standards, criminal law and family law – were concerned by the 1945–1952 reforms inspired by American authorities. It is noteworthy that American experts did not try to convert this civil law country in a common law one (the structure of the codes was kept and even the inquisitorial criminal process was just amended to favour the rights of defence) and that some aspects of this US-modelled legislation were abandoned or transformed aer 1952 (for example about the control of the equity market, or with the case law protecting workers against unfair firing 24).

What seems the most important today, in India as in Japan, is the attractive force of the American model of law schools on legal education in both countries. The case of Japan is the most spectacular. Since the end of the nineteenth century, Japan has developed a dense web of Law Faculties (more than one hundred as public or private institutions), which was conceived according the European (Ger-man and French) model: a 4 years courses study led to the degree of Bachelor of Law. Since 1947, all future judges, attorneys and advocates had to enter (through a difficult competition, a numerus claususbeing decided by the State) the Legal Training and Research Institute (Shiho Kenshusho). This very elitist system has meant that many graduates 25 of the Law Faculty (especially outside the biggest univer-sities in Tokyo and Kyoto) did not become practis-ing lawyers (a phenomenon that did not prevent many managers or politicians to be educated in Law Faculties). In 2004, the system was reformed in order to increase the number of advocates that was considered too small (9 000 in 1970, less than 15 000 at the beginning of the 2000s) for sustain-ing the international competition. 74 Law Schools were created to prepare post-graduates (coming from the Law Faculties or other undergraduate studies) for entering the Legal Training and Research Institute (which is called also the Bar Examination). The American model was clearly imitated through the name of these new institutions (for a great part linked with the old Law Faculties), the insti-tution of an admission test or the policy to develop legal clinics for preparing future lawyers to work in big law firms. For different reasons (notably the economic crisis), the numerical targets assigned to

21 K (2010); H (2012) 104.22 V (2007) 231.23 M (2007) 123.

24 G (1987).25 Around 45,000 and 50,000 students

passed the degree each year.

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the reform have not been reached and the rate of success (from 48 % to 25 %) has constantly dimin-ished, provoking controversial debates in Japan. It is noteworthy that, in this competition between the European and the American model of legal education, Law Faculties remained more open to comparative and foreign law than the competition prepared by the Law Schools, which is centred on the study of the Japanese Six Codes (the collection of the five codes and of the constitution, called Roppo).

In India, the traditional system (beginning dur-ing the British colonization) was a three years study in universities (the greatest ones have law colleges affiliated to them) or in law colleges, all checked by the Bar Council of India (the degree made the graduates eligible for becoming advocates). This system (a combination of the British and of the American ones) was completed, since the 1980s (the first one was the National Law School of India University on Bangalore), by the one of law uni-versities offering a more complete curriculum (in-tegrating other social sciences) during five years. It can be said that it is paradoxically a European continental model that was the main source of inspiration of these law universities. Nevertheless NLS has also used moot courts and other aspects of the American case method. The nowadays debates about legal education in India (about a bad assess-ment in 2001 for NLS or the creation of a national Bar examination in 2010) and in Japan are showing

how the globalization has renewed older schemes about the reception of Western normativity, which is no more limited to European normativity.

India and Japan are two complex examples, developed in a long-term history, of massive »legal transplants«, that are based on different forms of authority: the authority of European colonizers, the one of European (and American) Great Powers, the one of European elites, the one of prestigious Western universities or law schools. 26 On the other side (the side of the »borrowers« of these legal transplants), India and Japan have constituted two legal fields, or two successions of different configurations of legal fields (among Indian and Japanese judges, advocates, professors …), in which indigenous lawyers had to react (according to collective policies or individual patterns) towards Western transplants. There are new legal histories (varying in different periods) to develop and to write about these processes of acculturation and transformation of a set of norms (including social practices and cultural values) of European origin. Researches about legal writing in Japan and in India during the 19th and the 20th centuries have to take place in a program about the impact of European normativity, in order to know if and how a Japanese or an Indian doctrine has trans-formed European conceptions of law.

n

Bibliographyn B-P, N (2008), Appropriation and Invention of Tradition. The East India Company and Hindu Law in

Early Colonial Bengal, New Delhin D, D R. (2002), The Boundaries of Law: tradition, ›customs‹ and politics in late medieval Kerala, Ph. D. Austin (Texas)n D, M (2002), The Japanese Legal System, Londonn Encouragement of Learning (2012), translated by David A. Dilworth, Tokyon F, J (1983), Cheap Limbs and Dear Limbs: The British Transformation of the Bengal Criminal Law, Wiesbadenn F, Y (1872–76), Gakumon no susume, Tokyo 2009n G, V T (1953), The Judicial System of the Marathas, Ponnan G, W B. (1987), Japan’s Reshaping of American Labor Law, Cambridge (MA)n H, J O (2006), The Spirit of Japanese Law, Athens (Georgia)n H, J-L (2010), Western Legal Transplants and India, in: Jindal Global Law Review 2/1, 14–40n H, J-L (2012), Portraits du droit indien, Parisn H, O (2009), The Indians’ Impossible Civil Code, in: European Journal of Sociology 2, 309–347 http://

dx.doi.org/10.1017/S0003975609990154n K, N (to be published), Le caractère non-occidental du Minpo: mythe ou réalité, in: B, P et al. (eds),

Rencontre franco-japonaise autour du transfert de concepts, Paris, 23–30

26 W (1993) 99.

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n K Z et al. (eds.) (2007), The Identity of German and Japanese Civil Law in Comparative Perspectives, Berlinn K, R (2004), Das Japanische Zivilgesetzbuch und das Römische Recht, in: K, R, N S (eds.),

Hundert Jahre Japanisches Zivilgesetzbuch, Köln, Berlin, München, 131–184n K, E (2010), Colonial Justice in British India, Cambridgen M, T (2007), Anglo-American Law Research, in: K (2007) 120–149n M, A (2010), The Practice of classical Hindu Law, in: L, T et al. (eds.), Hinduism and Law: an

Introduction, Cambridge, 58–77n N, Y (1976), Introduction to Japanese Law, Tokyon O, A (2010), Reflection on Citizen Participation in Criminal Justice in Japan: Jury, Saiban-in System and Legal

Reform, in: Zeitschri für Japanisches Recht, 153–176n R, K (2007), On the Identity of Japanese Civil Law in a European Perspective, in: K (2007) 223–248n R, L (1968), ›Lawyers‹ in Classical Hindu Law, in: Law & Society Review 3, n° 2/3, 383–402 http://dx.doi.org/

10.2307/3053008n S, D (1998), Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity

of the English Legal System in the Nineteenth Century, in: Modern Asian Studies 32, 513–557 http://dx.doi.org/10.1017/S0026749X98003035

n S, C (1996), A History of Law in Japan until 1868, Leidenn V, M G (2007), Human Rights in Japan, in: P, E (ed.), Human Rights and Asian Values, Roma, 209–285n W, A (1993), Legal Transplants. An Approach to Comparative Law, Athens (Georgia)n W, C (1997), Historical Trends of Civil Litigation, in: B, H (ed.), Japan: Economic Success and

Legal System, Berlin, New York, 89–142

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Li Xiuqing*

The Chinese Repository and Chinese Criminal Law in the Minds of Westerners of the 19th Century

Introduction

The Chinese Repository (1832–1851) 1 is known for its important role in overseas Sinology and communication history between China and the West. It has been pointed out that »it shapes what China is for the Westerners of the 19th century and it provides Western scholars with the basic litera-ture of that period«. 2 For mainland China, The Chinese Repository is mainly studied by the histor-ians, and the recently-published articles like Study on the Introduction of Protestant Missionaries and Western Medicine Surgery – The Analysis of The Chinese Repository, 3 E. C. Bridgman and The Chinese Repository, 4 Interpretation of The Chinese Reposi-tory, 5 have very high academic value. Professor Wu Yixiong’s serial articles, including The Chinese Repository and the Study of Chinese History, The Chinese Repository and Chinese Language Study, and The Chinese Repository and Its Study on Chinese Social Belief and Customs, 6 have analyzed this »data-base«, The Chinese Repository, from multiple vantage points, and delved deep into certain topics, many of which contain important academic values. The publication of fullest gravure of The Chinese Repo-sitory, will arouse more attention, and the research on it will be richer as a result.

As for the law circle, especially for those who study the legal history, they pay more and more

attention to the modern history. The communica-tion between China and the West, the conflicts between the Chinese law and the Western Law, the legal model adopted in the late Qing legal refor-mation, and the gains and losses for borrowing the Western laws to China have been hotspot issues. However, they seldom quoted The Chinese Reposi-tory, let alone the specific topics addressed in this masterpiece. So the study of The Chinese Repositoryfrom a legal history perspective is very important. Based on the half-a-year thorough study on Chi-nese law, especially the criminal content, the au-thor is going to analyze the Chinese criminal law as perceived by Westerners at that time and its ori-gins. If this article can help, then that will be the best reward for my efforts and research in these months.

1 The Chinese Repository and Its Publication

In order to illustrate the important role that The Chinese Repository plays in the study of over-seas Sinology and the history of the communica-tion between China and the West, and why the research of legal history, especially the modern legal history of China, should reference it, the foundation of this periodical, its life span and its key features of contents have to be explained.

* Doctor of Law at East China Uni-versity of Political Science and Law; Professor at School of Law, East China University of Political Science and Law.The first dra of this paper has been handed at »The Seminar of the 100th anniversary of Chinese Penal Law Code – the second symposium on modern law« in HuaZhong Uni-versity of Science and Technology in 2010. It was also delivered as a keynote speech. Professor Liu Guan-gan, Huang Jingjia, Chen Jingliang, Li Guilian, Qi Haibin, Yu Ronggen raised very good questions, and Professor Huang Yuansheng and Jérôme Bourgon encouraged me a

lot. Moreover, Dr. Hu Zhen, Dr. Qu Wensheng, Ms. Zhang Yiran and other reviewers all gave me a lot of help and enlightenment. Accordingly, I would like to express my gratitude to them. The Chinese version was originally published in Journal for Legal History Studies, Taibei, 17 (2010) 219–253.

1 I would like to thank Dr. Wang Jie for his assistance in helping me to download from Google Scholar, he also helped copy The Chinese Reposi-tory in full. It can also be downloaded from http://www.archive.org. In 2008, Guangxi Normal University Press had already published The Chi-nese Repository in full collected by the

library of Hong Kong Baptist Uni-versity, and for convenience, it added Volume 21 Index based on the origi-nal 20 volumes. Simultaneously, it published a List of Articles and Subject Index of Chinese Repository, and this book’s chief editor is Zhang Xiping, edited by Gu Jun and Yang Huiling. Definitely, it is good for scholars and researches.

2 H P (2009) 4.3 Y N (2002).4 Q H (2006).5 T S (2008).6 These three articles are separately

published: W Y (2008a), (2008b) and (2009).

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158 The Chinese Repository and Chinese Criminal Law in the Minds of Westerners of the 19th Century

The Chinese Repository (Zhong Guo Cong Bao) is the official translation of this periodical, it had been previously translated as Chinese Library or Chinese Periodical. It has ever been translated as Macao Monthly. 7 Nowadays, it is commonly trans-lated as »The Chinese Repository« by mainland aca-demics. It was founded in Guangzhou in May 1832. The founder was the first US Missionary E. C. Bridgman (1801–1861).

The Chinese Repository is neither the first West-ern newspaper in China 8 nor the first American-founded newspaper in China. 9 But it is generally believed that it is the earliest English periodical published in modern China. 10 Founded in May 1832 and ended in December 1851, The Chinese Repository survived for 20 years. It was stable in terms volume and phase. A total of 20 volumes and 232 periods were produced. The volume use con-secutive pagination in octavo format. The two largest volumes are volume 10 and 11, both of which have 688 pages. The smallest one is volume 1, which has 512 pages. Moreover, the style of the publication is relatively fixed. The table of contents in volume 1 and 2 include Review, Miscellanies, Religious Intelligence, Literary Notices and Journal of Occurrences. From volume 3 to the last volume, under the premise that the table of contents out-lined above is essentially constant, the book is arranged in the following order: Art. I, Art. II etc. The last article of each period is normally Journal of

Occurrences. The articles’ length vary from each other, some up to dozens of pages, while some only a few lines. Leading articles are usually longer. The last one, Journal of Occurrences, mostly contains several brief messages. In addition, the extracts reproduced in the section are referenced, and each volume has an index. Given the fact that Chinese society was tumultuous at the time, and conflicts between China and outside world, including the first Opium War, it is rare for The Chinese Repositoryto maintain relative stability on its style when its publishing house moved from place to place on three occasions. 11 And the journal deserves to be called a mature journal.

One of the clear purposes of The Chinese Repo-sitory was to illustrate the time and manner of the changes happening in China by commenting the foreign Sinology books which had already been published. By analyzing the authenticity of these books, the worthless and erroneous content of such books would be rendered obsolete, rendering republishing unnecessary. 12 In conformity with this purpose, The Chinese Repository seldom pub-lished articles related to the Western countries’ systems, instead, the Chinese customs and its neighbours’ customs were mainly focused on. As for its contents, the range of The Chinese Repositorywas very wide, including politics, history, geogra-phy, trade, economy, law, religion, natural history, language etc. So, for readers nowadays, The Chinese

7 L (1963) 5, 86 (American).8 The first modern newspaper publish-

ed in China was Abelha da China on 12 September,1822, it was also the first foreigner-founded newspaper in China and the first Macao newspaper. It was published weekly and in Por-tuguese. It was shut down on 26 De-cember 1823. Because of its short life span, its publications and influence are limited. The first English newspa-per published in China was the Can-ton Register, it was founded by the British opium merchant James Ma-theson (1796–1878) in Guangzhou in 1827 as a commercial newspaper whose target audience were mer-chants and missionaries in China. SeeG J, Y H (eds.) (2008), »preface«.

9 The first American-founded newspa-per in China was Chinese Courier and Canton Gazette, which was founded on 28 July 1831. It was business-

oriented and shut down in 1833. See note 8.

10 Data shows that, in 1831, The Canton Miscellany published by the Eastern India Company in Guangzhou was suspended aer its 5th publication. Hereby, other statistics show that this magazine was only published in Ma-cao, and its exact time was unknown (from www.publishing.com.hk and http://big5.china.com.cn/news). Ac-cording to the author’s reading expe-rience, I prefer the former data, then the so-called »The Chinese Repository is the earliest English periodical pub-lished in modern China«, is yet to be proved. But one of the major reasons why there is such a saying is the short existence of The Canton Miscellany. When it was founded, its publishing company was in bad condition. Aer 2 years, that is in 1833, the British Parliament passed the bill to abolish the Eastern India Company’s trade

monopoly in China. So the trivial influence of this magazine has been neglected.

11 The Chinese Repository was founded in Guangzhou. Because the Imperial Envoy Lin Zexu ordered the expul-sion of foreigners from China at that time, the publishing house moved to Macao in 1839, then to Hong Kong in October 1844, and finally back to Guangzhou in July 1845. Although based on the preface, Macao, the place of publishing, cannot be seen, the records can still be found in the 10th period of Volume 13 and the 7th

period of Volume 14. See »Removal of the Office of the Chinese Repositoryto Hong Kong«, The Chinese Reposi-tory, Vol. 13, No. 10 (October 1844), p. 559; »Office of the Chinese Reposi-tory«, The Chinese Repository, Vol. 14, No. 7 (July 1845), pp. 351–352.

12 »Introduction«, The Chinese Reposito-ry, Vol. I, No. 1 (May 1833), pp. 2–3.

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Li Xiuqing 159

Repository can be called a comprehensive period-ical. The attached list 13 showed that the editor put 1257 articles into 30 categories, the exact numbers are as follows: Geography, 63; Chinese Govern-ment and Politics, 81; Revenue, Army and Navy, 17; Chinese People, 47; Chinese History, 33; Nat-ural History, 35; Arts, Science and Manufactures, 27; Travel, 27; Language, Literature etc., 94; Trade and Commerce, 60; Shipping, 26; Opium, 55; Canton and Foreign Factories, 36; Foreign Rela-tions, 34; Relations with Great Britain, 38; Wars against Great Britain, 74; Hong Kong, 22; Rela-tions with America, 21; Japan, Korea etc., 24; Siam and Cochinchina, 21; Other Asian Nations, 18; Indian Archipelago, 36; Paganism, 43; Missions, 102; Medical Missions, 48; Revision of the Bible, 40; Education Societies etc., 31; Religious, 29; Biographical Notices, 38; Miscellaneous, 37. 14

Aer a thorough reading of these contents, the author believes that the religious contents were not the most important contents in The Chinese Repository, though it was founded by missionaries. They mainly focused on the introduction and reported on Chinese situations. As time passed by and China opened its doors to the outside world, more and more »authors« contributed to this periodical. Besides missionaries, diplomats, mer-chants, travellers and generals all delivered contri-butions. Hence, some scholars have pointed out that for 20 years in which The Chinese Repositorywas published, »the author’s list is totally the list of British and American researchers who studied China that time«. 15 Apart from some specific topics, the Journal of Occurrences was mainly ex-tracted from the Qing Government Gazette 16 and the Canton Register at that time. So the amount of reports on current events was considerable.

The Chinese Repository witnessed many historical events in modern China, including the deteriorat-

ing relations between China and the West, the breaking out of the first Opium War, and the signature of unequal treaties between China and the West, from which the West’s Consular Juris-diction, along with other »privileges« were accept-ed by the Qing Government. For Western readers, it was the first China-oriented periodical, and every volume was published hundreds of times, even thousands of times. 17 It was reprinted by major European periodicals, demonstrating its huge in-fluence. Even nowadays, it is quoted in many articles, like Kenneth S. Latourette (1884–1968), a famous historian who was dedicated to the study of relations between China and the West, and Tyler Dennett (1883–1949) another well-known histor-ian etc., they both quoted The Chinese Repositoryin their masterpieces, and paid high compliments to it. 18

Therefore, as might have been expected, histor-ians have been paying more and more attention to The Chinese Repository. Similarly, the study on the modern law, especially in the field of the Sino-West legal culture exchange history, should not be done without The Chinese Repository. To do other-wise would lead to an incomplete scholarly under-taking.

2 The Chinese Criminal Law in The Chinese Repository

The following section will analyse how The Chinese Repository published Chinese laws, espe-cially criminal law.

According to the List, Law was not included in these thirty subjects, however, that does not mean that it did not publish any law-related content. In fact, in Chapter One, partial accounts from a report about the carrying out of capital punish-

13 »List of the Articles in the Volumes of the Chinese Repository, Arranged Ac-cording to their Subjects«, The Chinese Repository, Vol. XX (1851), pp. ix–liv.

14 The exact distribution of these figures and categories can be found in L X (2010b).

15 G J, Y H (eds.) (2008), »preface«.

16 As for the basic conditions of the Qing Government Gazette, and its contents quoted by The Chinese Repository, see Y W (2005).

17 There were 400 copies for the first and second volume. For the 3rd vol-ume, 800 copies, for the 4th and 5th, 1000 copies. The exact publishing distributions are as follows: China, 200 copies; Manila,15 copies; Ha-waiian Islands, 13 copies; Singapore, 18 copies; Malacca, 6 copies; Penang, 6 copies; Batavia, 21 copies; Siam, 4 copies, New South Wales, Sydney, 6 copies; Burma, 3 copies; Bangla-desh, Nepal, Assam, 7 copies; Ceylon, 2 copies; Mumbai, 11 copies; South

Africa, Cape Town, 4 copies; Ham-burg, 5copies; Britain, 40 copies; America, 154 copies; there were 200 more copies delivered to European and American periodical offices and publishing houses. See »European Periodicals beyond the Ganges«, The Chinese Repository, Vol.V, No. 4 (August 1836), pp. 159–160.

18 G J, Y H (eds.) (2008), »preface«; D (1959) 580.

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ment and accusations were mentioned. In Chapter Five, it especially mentioned »in appropriate times, The Chinese Repository will publish all the impor-tant and worth-recording facts and stories, such as Chinese laws, education, customs, communica-tions …«. 19 The »Execution of the Laws in Chi-na« 20 and »Homicides in China« 21 had already been published and »Ta Tsing Leuh-le« 22 had been published in three phases. »Notices of Modern China«, covered for four phases. The Chinese Repo-sitory also introduced »Characteristics, The Present Condition, and Policy, of the nation, the Penal Code«, 23 »Appeals from the inferior to the Supe-rior Courts; Abuses in the Manner of Appeal; Accumulation of Cases in Provincial Courts; the Difficulty of Obtaining Redress«, 24 »Courts of Justice, Judges, Clerks, Interpreters, Plaintiffs, De-fendants, Prisons, the Number and Condition of Their Inmates« 25 and »Various Means and Modes of Punishments; Torture, Imprisonment, Flogging, Branding; Pillory; Banishment; and Death«. 26These Chinese law-related articles were all in-cluded in the Chinese Government and Politics, meanwhile, in the Chinese People, there were some other law-related articles.

In addition, both articles in this periodical and the List (including the General Index 27 which was alphabetical) show that all the longer articles are contained in the List, while those »Journal of Occurrences« articles are not, perhaps since, ac-cording to the editor, they literally could not be

called »Articles«. Both these longer articles and »non-articles«, from the author’s perspective, have law-related contents. Through analysis and law categories, we can divide this content as follows: The Legislation of China, The Implementation of Law, Criminal Law, Lawsuit, Prison, Land System etc. Lawsuit is the most complicated category among these, and criminal law is second to it. Land System and other Civil Law affairs are the most simple. In order to fit with the theme of this thesis, the following sections include Crime, Pun-ishment, Inquisition by Torture and the Qing Legal Code and its Implementation.

2.1 Crime

In The Chinese Repository, there were long articles introducing crimes; moreover, they were intro-duced by specific reports. They mainly involved homicide, robbery, the, arson, kidnapping, piracy, smuggling and adultery. Among these, homicide was most reported.

In particular, in one article by Robert Morrison (1782–1834) in which homicide was discussed, 28the author’s opinions could be seen as typical of Westerners’ viewpoints in China at that time.

In China, since The Code of Tang, homicides were divided into six distinctions based on crimi-nal’s intentions, that were Mou Sha (more than two people planned to kill people, but under special circumstances, there could only be one

19 »European Periodicals beyond the Ganges«, The Chinese Repository, Vol.V, No. 4 (August 1836), p. 160.

20 »Execution of the Laws in China«, The Chinese Repository, Vol. II, No. 3 (July 1833), pp. 131–134.

21 »Homicides in China«, The Chinese Repository, Vol. III, No. 1 (May 1834), pp. 38–39.

22 »Ta Tsing Leuh-le«, The Chinese Repo-sitory, Vol. II, No. 1 (May 1833), pp. 10–19; Vol. II, No. 2 (June 1833), pp. 61–73; Vol. II, No. 3 (July 1833), pp. 97–111.

23 »Notices of Modern China: Intro-ductory Remarks on the Characteris-tics, The Present Condition, and Policy, of the nation, the Penal Code«, The Chinese Repository, Vol. IV, No. 1 (May 1835), pp. 17–29.

24 »Notices of Modern China: Appeals from the inferior to the Superior

Courts; Abuses in the Manner of Appeal; Accumulation of Cases in Provincial Courts; the Difficulty of Obtaining Redress«, The Chinese Re-pository, Vol. IV, No. 6 (October 1835), pp. 262–268.

25 »Notices of Modern China: Courts of Justice, Judges, Clerks, Interpreters, Plaintiffs, Defendants, Prisons, the Number and Condition of Their In-mates«, The Chinese Repository, Vol. IV, No. 7 (November 1835), pp. 335–341.

26 »Notices of Modern China: Various Means and Modes of Punishments; Torture, Imprisonment, Flogging, Branding; Pillory; Banishment; and Death«, The Chinese Repository, Vol. IV, No. 8 (December 1835), pp. 361–386.

27 »General Index«, The Chinese Reposi-tory, Vol. XX (1851), pp. lv–clxviii.

28 »Homicides in China: cases in which foreigners and natives are concerned, difficult to be adjusted; luh sha, or the six distinctions of homicide; excep-tions occasioned by the rank and situation of natives; the usual excep-tions not allowed to foreigners«, The Chinese Repository, Vol. III, No. 1 (May 1834), pp. 38–39.

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people), Gu Sha, (intentionally killing someone), Ou Sha (killing someone during a fight), Xi Sha, (treating murder as a game, the perpetrator had foreseen the result, but neglected to avoid it), Wu Sha (killing the wrong person), Guoshi Sha (man-slaughter). Not only did Morrison notice these distinctions, he also wrote of their differences through detailed accounts of cases. He thought that though legal distinctions between different forms of homicide were made, capital punishment would be inevitable as long as people were killed, even in the case of manslaughter. This was unrea-sonable without doubt. The perpetrator caused deaths out of carelessness, rage, impulse, greed rather than out of intention, and for these coinci-dences, people were killed. In such instances the perpetrator deserved capital punishment, with the slight difference that it was carried out in a not so cruel way. Morrison also compared it with the British laws, and he pointed out that, in the same situation, British criminal law would allow the continuing of a perpetrator’s life. He also believed that for all the civilized countries, their laws should be the protector of people’s lives. People could not be killed effortlessly, out of a basic respect to human dignity, and this had been obeyed for a long time ago. However, in China, killing people was like owing debts, and the »debtor« had to pay the »creditor«, and it was done through the death of the perpetrator, which was called »the blood pay for the blood«. It was a basic rule in Chinese law, which hardly had any exceptions.

There was another reason for Morrison’s disgust for this rule, that was, the »pride and prejudice« between the Chinese and Westerners. Because of education and religious belief, there already existed difficulty in communication between the Chinese and Westerners, and this »pride and prejudice« had made it even worse. For the Chinese, foreigners were called »barbarians«. In cases involving for-eigners, they could not avoid capital punishment if they had killed Chinese people, even it was just an accident (in practice, an array of foreigners charged belonged to this situation). So, the exception to this rule never applied to foreigners. All in all, foreigners’ sentences were never commuted if they had killed another person.

Morrison pointed out, according to Chinese laws, punishment varied in homicide, and it largely depended on the status between two par-ties. Masters and slaves would deserve different punishment if they killed the other party. Further-more, in normal cases, it was reasonable for a woman to kill a man who was trying to rape her, but if this man was her father-in-law, to whom she should pay respect and tribute, this woman would be killed if she killed her husband’s father. And it was acceptable for a husband to kill his wife and her adulterer because of rage. Killing burglars would not deserve punishment. Reading between the lines of these descriptions of exceptions, it can be seen that instead of praising them for saving people’s lives, Morrison was quite sarcastic. He called it »a glorious uncertainty«.

In addition, it is worth mentioning some re-ports related to homicides published in The Chinese Repository. One story was about the acquittal of a murder, 29 to be more specific, he was honoured. In a village not far away from Guangzhou, Nanhai County, there was a notorious villain. He was ignorant of law and hurt many people, let alone the number of people who were insulted by him. One day, he conflicted with one villager because of business affair, by the same token, the villain humiliated this villager, whose son was angry and killed him with a knife. It was understandable that villagers cheered for him. The next day, the perpe-trator turned himself in, and local officers dis-patched people to investigate this case and reported this crime. In the end, this murder was acquitted and rewarded for killing this villain.

Another story was about decapitation of a son for the murder of his father. One day, a creditor came to the debtor’s house and asked for money, he was very arrogant and humiliated this debtor, whose son was so angry that he threw a stone to the creditor standing near the door, unfortunately, the creditor dodged, instead, it hit the debtor’s head, and he died on the spot. Because of what he did that led to his father’s death, this unfortunate fellow was beheaded. The report especially men-tioned that if he had killed his father deliberately, this boy would have deserved Ling Chi (which means death by the slow and painful process of

29 »Acquittal of a Murderer«, The Chi-nese Repository, Vol. III, No. 2 (June 1834), p. 95.

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being cut into pieces). From a legal perspective, this disparity between the various ways of carrying out capital punishment shows a certain degree of leniency towards manslaughter, but it was still very cruel. 30

Here is a story about a woman killing her mother-in-law. She was first sentenced to Ling Chi, then, changed by the emperor, to beheading. A widow and her mother-in-law separately com-mitted adultery with others to earn money. Be-cause of the extenuating circumstances of the adulterer, the widow did not contact with him anymore. But her mother-in-law still asked her to haunt this individual to ask for money. Disobe-dient, the poor widow was always tortured by her mother-in-law. During one quarrel, this woman used knife to kill this old woman and threw her body into the river nearby. According to the provision of »killing father and mother-in-law«, the governor sentenced her to Ling Chi. Later, the supreme judicial office changed it to behead-ing. The editor finally commented that tradition-ally, Chinese women were like commodities for sale, they were always controlled by their parents, they performed prostitution and sexual acts and they were the accessories of fool and degradation. Hence, cultivating these people with pure spirit and avoiding degradation would be very impor-tant. 31

One more case was that of a person who killed his grandmother and was put to death by villagers. »Among all the good virtues, filial piety comes first« is a popular saying in China, but some people could not perform that, and they even killed their seniorities. In late April 1848, in a village near Shanghai, there lived an elderly woman who was poor and had a few descendants. Unfortunately, her grandson was bad-tempered and was going to sell his wife. The elderly woman tried to stop this but was bullied to death by her grandson. In keeping with local customs, the elder woman’s body was put in coffin and buried in the wilderness

near the village. The villagers were supposed to send this villain to the local government, but they did not. Aer a discussion, they sent him to the coffin, tied his hand and buried him in the hole near the coffin, which had already been dug. They only allowed his head out of the earth. Aer one day, this individual perished. Sending this criminal to the government might have required money, and none of these villagers were willing to pay for it. Here, the case of the murder of a Chinese woman by her grandson encompassed a new hom-icide, which was the murder of a grandson by the neighbouring villagers. The magistrate did not intervene and nobody was charged, and the case was le unsettled. 32

2.2 Punishment

When it comes to Chinese punishment, The Five Forms of Punishment would come to our minds first. The Five Forms of Punishment regulated the specific content and practical application of flogging, blows, captivity, banishment, death penalty. It is embodied in one article mentioned in the contem-porary introduction of China, which covers »various means and modes of punishment; torture, impris-onment, flogging, branding, pillory, banishment, death«. Especially, there are numerous descriptions on the death penalty. The death penalty is divided into beheading and hanging. Neither of them is the same in cruelty. And there is no choice of application between these two. One example can be seen in a clause from the Qing Legal Code, Criminal Laws, Execution of a Sentence by a false Construction of the Laws: 33 »If an offender who, conformably to the laws, ought to be strangled, is beheaded; or beheaded, when he ought to have been strangled; such deviation, if wilful, shall be punished with 60 blows; if committed by mistake, with 30 blows.« This article also pointed out that both beheading and hanging are divided into summary execution and detention with reprieve.

30 »Decapitation of a Son for the Mur-der of his Father«, The Chinese Repo-sitory, Vol. II, No. 9 (January1834), p. 432.

31 »Crimes and Punishment«, The Chi-nese Repository, Vol. II, No. 7 (No-vember 1833), p. 336.

32 »Statement Regarding the Murder of a Chinese Woman by her Grandson, and of the Murder of the Grandson by

the Neighboring Villagers«, The Chi-nese Repository, Vol. XVII, No. 9 (Sep-tember 1848), pp. 480–481.

33 Quoted from the Qing Legal Code: T T, Z Q (1999).

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Major criminal offenders should receive summary execution, while normal offenders should be de-tained with reprieve. A normal offender’s death penalty should be judged aer Autumn Assizes or Court Assizes. When it comes to the period of time when the implementation of death penalty was supposed to be banned, the article quoted the Qing Legal Code, General Law, the Five Forms of Punish-ment, Regulation which says »Punishment should be banned in January and June. A major criminal offender who ought to be summarily executed should instead be detained with reprieve. The death penalty should not be implied until the beginning of February or the fall. Punishment should also be banned at the turn of May and June, or in the event that autumn begins in June.« Despite the writer having quoted this clause, he also admitted that he neither understood the legis-lative intent of this clause nor knew whether this clause was obeyed in every district. Meanwhile, he pointed out that he could not figure out the number of death sentences carried out each year in China because of the lack of knowledge. However, from the related situation written in the Qing Government Gazette and the Canton Register, there were many death penalties and cruel punishments in China. In the article, the writer also listed some information related to the death penalty which he was familiar with. Now they will be listed in sequence:

On 2 March 1817, 24 people were beheaded at the southern gate of Canton. Four days later, 18 people were beheaded. There were no reports as to their names or any other information on the executed. The government coldly reported the fact that they were executed and reported this case to the superiority. In October that year, the emperor signed 935 deaths warrants, Canton accounting for 133 of them. It was a considerable number, but only comprised a small proportion of the total number of executions that year.

On June 1817, out of rebellion to the emperor, two royalties were going to be executed by Ling Chi, through report to the emperor, the punish-ment was changed to hanging. The emperor also ordered the execution of these two people before the royal tomb to sooth the ancestors.

In 1819, a maniac in Henan killed his father and chopped him into pieces, and he was executed by Ling Chi. In Fujian, many peasants refused to pay for taxes, their leader was hanged and others re-ceived punishments too. On 16 December of that

year, seven people were beheaded, however, their crimes were unknown.

In December 1822, in Huangpu, 10 people were beheaded because of robbery. One year ago in Chaozhou, several people died because they had committed robbery too.

In 1826, aer the Autumn Assizes, 581 people were sentenced to death, among those, Canton accounted for 51, while Guangxi and Sichuan took up for 25 and 34 respectively.

On 14 November 1827, in Guangzhou, two rapists were beheaded in one day, along with 3 women, with their crimes unknown. On 19 De-cember of that year, 7 people were beheaded because of piracy. Data shows 199 people received the same punishment that year, 135 of them were executed immediately, the rest of them were killed aer the admission of the emperor; 3 of them were killed by Ling Chi, with their crimes unknown.

On 26 February 1828, 3 men were beheaded for murder and robbery; on 4 March, two pirates were beheaded. According to an official newspaper cap-ital punishments were carried out almost every day that year, but the crimes were all obscure. In October, aer the Autumn Assizes, the emperor signed 789 death warrants. Usually, the emperor would sign by distance, the furthest being places like Yunnan, Canton and Guangxi came first, usually in 40 days; the nearest province to the capital within 4 days. Normally, the emperor signed 90 to 100 death warrants every day.

In the autumn of 1829, the emperor signed 579 death warrants, 104 of which were carried out in Sichuan.

For local official newspapers, their reports on the death were minimalistic. They would just list the criminals who were murdered, without the crime committed or the number of those executed. Capital punishments are usually public and take place in a fixed location. Some cases were very ruthless and bloody. In one such case, the criminal was taken to the tomb of the victim, and his body was cut into bits and his heart was torn out as a sacrifice. For another, a 19-year-old woman was proved to have poisoned her mother-in-law, and she was executed by Ling Chi. Her husband was forced to see the whole process on the spot. Later, it was proven that he loved his wife more than his mother, and he received 50 blows and was impris-oned for one month.

The reason why the author explained the prac-tical use of The Five Forms of Punishment was to

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illustrate the purpose of Chinese criminal law, that is, punishing rather than reforming and correcting.

Apart from longer descriptions, the death pen-alties could usually be seen in Journal of Occurren-ces, they were the »favorites« by the editors. Decap-itation and Ling Chi (death by the slow and painful process of being cut into pieces) can be seen through the work, which can be shown by the following examples, which are a small part of the total catalogued.

The Canton court circular announced the trial, which saw the sentencing and execution of 17 criminals. Their heads, severed from their bodies and put in small cages, were put on display in the market place, near the execution ground. Four days aer the decapitation, their heads, still in cages, were labelled and sent off to Yinting (a town some miles distant from Canton as well as the native place of these criminals, and the scene of their depredations) to be exposed to the populace as well. 34

On 4 August, 23 culprits were beheaded. This number of people did not result in any public disarray, even without compassion, which was surprising. 35

In autumn this year, there were so many public executions. Yesterday, 24 people were executed in the execution ground. 36

A robber was beheaded. On 11th of this month, a notorious robber named Tsang was beheaded. Months ago, he was wanted by the government and was finally caught by a brave foreign navy lieutenant. In one hour, this criminal was con-victed and executed. 37

A 49-year-old man from Chaozhou was stran-gled for opening an opium store in Macao. In addition, an article was quoted from Canton Pressin which a witness described the process of execu-tion especially. 38

Decapitation in Canton and hanging in Hong Kong have attracted attention this month. The first on account of the great numbers and frequency, and the latter for the short period, 60.5 hours, between the passing and execution of the sentence, on two malefactors, one a Chinese and the other an Englishman. In Canton, more than 20 people, some of them women, were decapitated in one day. Here, as was common practice, the criminals were adjudged in the morning and then led away to the potters field, where they were decapitated on the same day. 39

Last year, in Canton, 1,200 criminals were de-capitated, thousands of criminals have been im-prisoned. 40

This report especially mentioned that because the victim was British, the government invited a few English soldiers to watch the execution. 41

A late robbery committed in Canton. On the 6th night of April, beyond the Western gate, one pawnbroker’s shop was attacked by a band of robbers. The gang of some 300 people plundered more than 3,000 taels of silver. On 4 May, 8 of the culprits were decapitated. Two days later, five more of the gang were arrested and delivered up. They were beaten (1000 blows) with the rattan out of the gate of the pawnbroker’s shop. They were more-over beaten some tens of blows with a cudgel until they were half dead. On the 7th, four more of the culprits were delivered up and these were hacked to death with a knife. On the 8th day, three more of the culprits were arrested and brought in, and they were burnt to death by fire. 42

Most of death reports from The Chinese Reposi-tory did not have comments. The execution time and place, the number of criminals killed and which execution was applied were mentioned in the report. It seemed that they were daily occur-rences. But from a few reports with comments, we

34 »Decapitation«, The Chinese Reposito-ry, Vol. I, No. 2 (June 1832), p. 80.

35 »Execution«, The Chinese Repository, Vol. II, No. 4 (August 1833), p. 192.

36 »Public Execution, Monday, 7 De-cember, The Chinese Repository, Vol. IV, No. 8 (December 1835), p. 391.

37 »A Notorious Robber«, The Chinese Repository, Vol.VI, No. 9 (January 1838), p. 448.

38 »A case of Strangulation«, The Chinese Repository, Vol.VI, No. 12 (April 1838), p. 391.

39 »Public Executions«, The Chinese Re-pository, Vol. XIV, No. 7 (July 1845), p. 352.

40 »Decapitation of Criminals«, The Chinese Repository, Vol. XVI, No. 3 (March1847), p. 151.

41 »Execution of Murderers«, The Chi-nese Repository, Vol. XVII, No. 1 (January, 1848), p. 54.

42 »Robbery and Executions«, The Chi-nese Repository, Vol. XVII, No. 6 (June 1848), p. 320.

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could see that the editors were obsessed with reporting these things, showing aversions towards the frequency and numbers of executions in China, along with the cruelty of public executions and the purpose of criminal laws, which was punishing rather than correcting and reforming. They also criticized the public for their indifference to the execution of death penalty.

For example, the report of the Vol. 1, No. 7: On the 22nd instance, seven men, on 25 November, several more were beheaded, at the usual place of execution in Canton. (In a former number we mentioned the decapitation of 17 individuals.) To which the editor commented: »These executions were performed in the most public manner, and are of very frequent occurrence, amounting to many hundreds and some say from one to two thousand annually, they are noticed, in the court circular, in the most summary manner. Without even mentioning the names or the number of criminals, it simply stated: the execution of crim-inals was completed. […] such gross exhibitions of cruelty, so frequently presented, not only shock the better feelings of human heart, but tend to render the hardened more hard, and the desperate and cruel still ferocious. Especially must this be the case, when there is but little moral feeling, and when there is no fear of omniscience, nor appre-hension of a just retribution in a future state of being. […] Alas! There is no knowledge of God; no love to his name; no fear of his wrath to this land.« Finally, they would be the sacrifice of the paternal law. 43

In the report of Vol. 18, No. 6, we read: »The number of executions during the present month has been 28, nearly equaling those of last month«; the editor added »and if the present administration long continues in power, the people of the two Kwang provinces will long remember its bloody rule. One case of judicial murder has excited not a little mark among the people, and is in fact such an atrocious deed as might naturally arouse indigna-

tion.« In addition, the editor mentioned that a scholar named Li was arrested and executed be-cause of his provoking words, and the governor even »mandated to the people not to listen to such specious words, lest they be involved in a like dreadful end.« 44

One more example: »The executions of Chi-nese«, from Vol. 19, No. 1. A general report men-tioned that every year hundreds of people were executed in Guangzhou, but because of the gover-nor’s laziness, the exact number of people killed was unknown. These criminals were oen executed in a fixed place, some people calling it »a public square«, and for the time without executions, it was occupied by potters, so it had a nickname called »a potter’s field«. Here, 20 people were beheaded several days ago, then, the editor outlined the details. 45 He mentioned that when the officer supervising the execution le, people rushed to see torn bodies and blood. He commented that it was surprising to see Chinese’s indifference to life. Apparently, this way of execution did not perform its reforming function in fact. 46

2.3 Inquisition by Torture

Strictly speaking, inquisition by torture belongs to the department of Criminal Procedure Law, but it has close relations to accurate sentencing and convicting. Inquisition by torture, having existed since ancient times, was applied both in China and abroad. In China, it was regarded as an important measure of getting truth and evidence, rather than punishing. But since the Qin Dynasty, it had no longer been considered as a good method, on the contrary, those who abused inquisition by torture, in return, would be blamed and punished. In each dynasty, there were many provisions in the Code regulating it. The Qing Legal Code ·Criminal Laws, Imprisonment of, and Procedure Against Unaccused and Unimplicated Persons said: »All officers of gov-ernment, and their official attendants, who, insti-

43 »Decapitation«, The Chinese Reposito-ry, Vol. I, No. 7 (November 1832), pp. 291–292.

44 »The Number of Executions«, The Chinese Repository, Vol. XVIII, No. 6 (June 1849), p. 336.

45 During this same period, the record of executions could be seen in some foreigners’ notes and essays. See Hunter (2003) 169–170 and S

(2007) 92. Its quote especially men-tioned that »a potter’s field« was a pun, it derived from the Bible. As for its disparity with the execution of European counterpart, Professor Jérôme Bourgon had novel ideas. See B (2006).

46 »Executions among the Chinese«, The Chinese Repository, Vol. XIX, No.1 (January 1850), p. 55.

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gated by private malice and revenge, designedly commit to imprison an unaccused and unimpli-cated individual, shall be punished with 80 blows.« Furthermore, it regulated: »the inspectors and governors of prisons, their official attendants, and the jailors, when privy to, and not giving informa-tion against, such illegal proceedings, shall be liable to same punishments, except in capital cases, when a mitigation of one degree shall take place.« And »all officers of government, and their official attendants, who, instigated by private malice and revenge, designedly examine with judicial severi-ties any unaccused and unimplicated person, shall, although they should not so by doing actually wound such person, be punished with 80 blows.« Also, the instrument of inquisition should be law-ful, which should obey the Qing Legal Code, Gen-eral Laws.

But in real practice, lots of magistrates em-ployed inquisition by torturing. The Chinese Repo-sitory had quoted many articles from the Qing Government Gazette and the Canton Register, along with The Indo-Chinese Gleaner 47 to report this phenomenon: A report of the Qing Government Gazette (1817.8.9) showed many local magistrates had abused inquisition by torture (on innocent people) and were bribed. The Qing Government Gazette (1818.1) showed two people died of tor-ture. The Indo-Chinese Gleaner (1819.7) reported a supervisor once told the emperor, »in Sichuan, many people died of painful inquisition«. He also said, »local magistrates hoped those who would be killed through the regulations of laws were killed during the inquisition, saving their efforts to giv-ing them to superior courts«. The Indo-Chinese Gleaner (1821.5) reported a real murderer was found aer five to six years, but during this time, more than fiy people had been tortured by inquisition. The Canton Register (1820.7) reported a magistrate in Anhui was accused of torturing suspects, he nailed the palm of one suspect, out of pain, the poor fellow struggled and tore his palm free, then upon being nailed again, eventually died.

This magistrate also subjected suspects to other extreme forms of torture. Finally, he was acquitted by the emperor. In addition, the Canton Register (1829.7.16, 9.2, 10.3, 12.12, 1830.7.3) published reports on death caused by inquisition by tor-ture. 48

So many cases related to inquisition by torture are used to illustrate an author’s viewpoint, that is, though inquisition by torture existed in many countries at the time, China took centre stage. The authenticity of this viewpoint remains to be proven maybe, but it is true that the practical application of this inquisition was not effective. In 1799, the Emperor Jia Qing announced an imperial decree to use standard instruments during an inquisition, and that whoever used their own-made tools shall be punished severely. In 1810 and 1812, he again gave similar orders. But even under the reign of Emperor Dao Guang, the abuse of inquisition by torture was still rampant, and magistrates even used this to blackmail money and dispatched captors even to rob money, frightening people a lot. In 1827, only in the province Zhili, 23,921 officers were dismissed. 49

2.4 The Qing Legal Code and its Implementation

The Qing Legal Code and its implementation need to be analyzed when speaking of the criminal law in The Chinese Repository.

George Leonard Staunton (1737–1801) was named Secretary to the British Mission to the Chinese Imperial Court, and his son, George Tho-mas Staunton (1781–1859) came along with him. George Staunton exerted a huge influence in Sino-British relations, and in 1810, he translated »Ta Tsing Leuh-le« (»Ta Tsing Leu Lee«, the English ver-sion of the Qing Legal Code), which was the first work translated directly from Chinese to English, becoming the major basis for Westerners to judge Chinese laws. The evaluation of the Qing Legal Codeby The Chinese Repository can be seen from the previously-introduced articles: »Ta Tsing Leuh-le«

47 See Memorials of Protestant Mission-aries to the Chinese (2002).

48 »Notices of modern China: various means and modes of punishment, torture, imprisonment, flogging, branding, pillory, banishment, and death«, The Chinese Repository, Vol. IV, No. 8 (December 1835), pp. 361–386.

49 »Notices of modern China; officers of the inferior magistracy and police; domestics of the principal officers; malversations of the police; extor-tions and cruelties of inferior offi-cers«, The Chinese Repository, Vol. IV, No. 5 (September 1835), pp. 214–229.

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and »Characteristics, The Present Condition, and Pol-icy, of the Nation, the Penal Code« from »Notices of Modern China: Introductory Remarks«. It can be deduced from the Index that the former one was written by Bridgman, while the latter was from R. Inglis.

Based on Staunton’s version, Bridgman firstly introduced the history of the Qing Legal Code. Then he presented it in seven parts, that is, general laws, civil law, fiscal law, ritual laws, military laws, criminal laws and laws relative to public works. Finally, he drew the conclusion that the Qing Legal Code was a valuable work for aiding people’s understanding of the Chinese customs. And Chi-nese laws relied on the emperor’s ideas. For old customs, their authenticities were decided by the emperor’s preferences. In general, most of provi-sions from the Qing Legal Code were good, with many dissenters, however. It would be very inter-esting to compare these provisions with those of ancient or modern ones from Western countries. As flawed as Chinese laws may have been in West-erners’ eyes, they were highly regarded by the native Chinese. They were expected to be enforced to the letter and to be stable. 50

Like Bridgman, Inglis started introducing the history of the Qing Legal Code first. In addition, he began to focus on several revisions of Ta Tsing Leu Lee since the publication of the English version. Since 1746, it was regulated that »small revision for provisions in 5 years, substantial revision for pro-visions in 10 years«. For Ta Tsing Leu Lee, its addi-tional clauses were added or reduced even though its main structure remained stable. Inglis men-tioned the change for Ta Tsing Leu Lee in 1830 and pointed out the randomness of Emperor Dao Guang in revising the laws.

In contrast to from Bridgman, Inglis combined specific provisions with juridical practice to illus-trate that some clauses lacked both certainty and practical effectiveness. For example, the »defining crimes without provisions« in the Qing Legal Code, general laws regulated: when there is no provisions defining certain crimes, other related provisions

should be quoted. Based on similar clauses, magis-trates can define certain crimes, adding or reducing punishment. If they judge crimes without similar clauses, they would be charged with negligence. From Inglis’ point of view, this way of judging crimes had the same problem with Roman Em-pire in Commentaries of the Laws of England by William Blackstone: »Judge’s discretion might lead to unjust and suppression.« Similarly, in the Qing Legal Code, Criminal Laws CCCLXXXVI regulated: »whoever is guilty of improper conduct, and such as is contrary to the spirit of the laws, though not a breach of a specific article, shall be punished, at the least, with 40 blows, and when the impro-priety is of a ferocious nature, with 80 blows«. This set leeway for the judges, illustrating the randomness of law. Inglis also pointed out that it was ubiquitous to see magistrate violating laws, and for some, even fabricating clauses. Further-more, in some villages, there were many customs held by elderly people. They compelled people to obey these customs, whether legal or not, and the officers strongly supported them.

In addition, Inglis criticized the system of Zhu Lian (implications of other innocent people). He thought that the civilized Qing Legal Code showed was just as Visigoth’s. But for Visigoths, perpetra-tors’ family members or relatives would not be involved, which was different from Zhu Lian in China. The Murder of Three or More Persons in One Family of the Qing Legal Code, Criminal LawsCCLXXXVII regulated: »Any person who is guilty of killing, by previous contrivance, intentionally but without premeditation, or in the court of a robbery or house burning three or more persons, whereof none were guilty of capital offences, and all of them were relations in the first degree, or inmates of one family; and also any person who is guilty of mangling and dividing the limbs, and thus in a cruel and revengeful manner killing any individual, shall, when convicted of being a prin-cipal offender, suffer death by a slow and painful execution. The property of such principal offender shall be forfeited to the use of the suffering family,

50 The last sentence, actually, was from »Introduction« of Ta Tsing Leu Lee, by Staunton. He also added aer this sentence, »On the contrary, Chinese laws are usually distorted by poten-tates and supervisors. Unfortunately, it would not cause problems. For the

degree of its severity and comparison with other nations’, the only thing can be done is our estimation. But something seen is really helpful to China, and it has evidence, that is, unlawful and notorious deeds would never escape punishment, whatever

the perpetrators are.« These positive remarks were omitted by Bridgman when he quoted from Staunton, which were worth ruminating. See S (1810), Introduction, xxviii.

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and his wife and children shall be banished per-putally to the distance of 2000 lee.« Inglis also mentioned in 1832 that the Board of Punishments used to propose the revision of the Qing Legal Code, Criminal Laws, for the range of Zhu Lian was so wide, however, that they were rejected by the emperor.

The application of laws in China can be seen in an article entitled »Executions of the Laws in China«. 51 It was written in the form of letter from readers, asking (to be specific, condemning) the authenticity of the execution of laws in real prac-tice. According to Index, the author was Morrison. His main point was that as organized as some clauses were, they did not function in real practice. In addition, he also listed a few examples as well as commented on the fact that the idea of »common law« and »lex non scripta« was not accepted in China, but magistrates usually used previous habits in judging a case, which was contrary to clauses in the Code, implying their disregard of the law.

3 Chinese Criminal Law in the Minds of Westerners Based on The Chinese Repository

The basic characteristics of Chinese criminal law from The Chinese Repository can be seen through my previous analysis. The following can be re-garded as the Chinese criminal law in the minds of Westerners of that time.

First, it is about the violent crimes, among these, homicides take the lion’s share. Murder or man-slaughter, as long as death was caused, the perpe-trator would be killed, that was from the Chinese entrenched belief in »life for life«. It was a basic rule, though it had exceptions, which only the Chinese could enjoy. For foreigners, death would be inevitable as long as death happened, even if it was just a mere accident. Some exceptions for the Chinese could be seen from the different punish-ments applied to the same crime, which depended on the status between the criminal and victim and their ages. Typical examples were masters killing slaves and husbands killing his wife and adulterers etc.

Second, it is about the cruel punishments. Flog-ging, branding, pillory and other punishments

were quite bloody. They were further illustrated by the widespread usage of the death penalty and its ruthless execution. Every year, a considerable num-ber of people were executed by capital punishment, but the governmental gazette only touched this topic slightly. Hanging could be called mercy, most criminals were decapitated; in some instances Ling Chi might be applied as well as Xiao Shou (head cut off and hung at a higher place on public display). The death penalty was carried out publicly, and sometimes, the relatives of the executed had to see this bloody execution. Execution could also be held in front of the victim’s tomb, and it was taken as a sacrifice. Citizens were generally indifferent to the cases themselves, with the exception of the carrying out of the death penalty in public, which they found quite interesting. Barbarian is the punish-ment, backward is the belief. All in all, Chinese criminal punishment only focused on punishing people rather than correcting and reforming them.

Third, it is the abuse of inquisition by torture. Inquisition by torture was supposed to be a meth-od for obtaining the truth and evidence rather than a mere punishment of the criminal. Ancient Chi-nese laws permitted inquisition by torture, though with restrictions. The abuse of it could hardly be constrained, and the unjust cases and the numbers of people who died because of the torture were considerable. This also revealed the barbarity of the criminal law.

Fourth, it is the arbitrariness of the ancient Chinese law, including ancient criminal law. Legis-lation and revision of laws were random, and »defining crimes without provisions« was the worst case of interpreting law, which gave the judge maximum discretion. Certain provisions could even be distorted by the misinterpretation of judges. They profaned laws for their own profit, and sometimes judged the case by way of local customs. Furthermore, the practice of implication (Zhu Lian) had been interpreted since ancient times, which highlighted the backwardness of be-lief and the brutality of punishment.

All in all, the ancient Chinese criminal law on The Chinese Repository was almost good for noth-ing. In a nutshell, it was »backward and barbarian«, »bloody and cruel«. But from the early 19th cen-tury when George Thomas Staunton translated »Ta

51 »Executions of the Laws in China«, The Chinese Repository, Vol. II, No. 3 (July 1833), pp. 131–134.

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Tsing Leuh-le«, he made considerable tributes, and his father George Leonard Staunton, who had received an honorary doctorate degree in law at Oxford University, made many positive comments on Chinese criminal law, 52 along with William Miller, who both praised and criticized the Chinese criminal law in his book The Punishments of Chi-na; 53 it could be deduced that Chinese criminal law received worsening comments.

The first question is whether their opinion of ancient Chinese criminal Law belong to »Collec-tive Imagination«. Edward Wadie Said had a wide influence over Western Orientalism. He believed that the Western Orientalism came into being with the expansion of imperialism abroad. Influenced by Western cultures, it »didn’t share the objective-ness we imagined«. It was totally »Collective Imag-ination«.

In reporting other Chinese aspects, The Chinese Repository did make some mistakes. For example, »Yi Mu« (meaning the chief of foreigners) was translated as »the barbarian eye«. 54 In commenting on History of the Three Kingdoms, it felt like the author mistook it with The Romance of Three King-doms. 55 For Dream in the Red Chamber, the author could not tell the sex of Jia Baoyu. 56 In the first commentary Statistical Notices of the Ocean King-dom with Maps, the author defined Lin Zexu as the writer of this book, 57 fortunately, he corrected his mistake later. 58 For cross-culture and cross-lan-guage reading, mistakes are unavoidable. For the people of that time, it was difficult to master Cantonese, Mandarin and English at the same

time. However, these glaring mistakes made peo-ple doubt the level of Chinese of these authors who wrote for The Chinese Repository. In fact, even Bridgman, the founder and main writer for The Chinese Repository, poorly translated the negotia-tion and signature of the Treaty of Wanghia, when he had already been in China for more than a decade. His translation was occasionally better than the average Americans’, however the treaty he translated was »obscure«. 59 Indeed, during the negotiation of the treaty, the argument surround-ing word selection for the translation even super-seded arguments pertaining to opium trade. So, it could be seen that The Chinese Repository did not fully exercise its founding purpose, which was to introduce what true China was. But we could not completely deny its authenticity, for most of its reports had original sources, like the sources from the Qing Government Gazette or other official gov-ernmental reports. At the same time, it spun fallacies, for homicides, it believed that whether manslaughter or murder would all be killed, and it was not true. 60 Therefore, the ancient Chinese criminal law it depicted had some authenticity, whilst having imaginary factors.

The following question is whether the Chinese criminal minds in The Chinese Repository were ideological. Its founders and editors were mission-aries, and so were its main authors. Despite the fact that most of its content was non-religious and more different identities later came to this period-ical, all of them had nonetheless grown up in the Christian culture specific to Western society. Chi-

52 For example, he especially mentioned »all the death penalties were executed at the same time, with no maximum than 200 people each time. For a country enjoying such a huge popu-lation, this amount was very little … for the degree of punishment, it was not severe, meaning not many people committed crimes«. S (1997) 479.

53 As for the perspective of M(1801), it could be found in Contact and Confrontation (2007) 114–117.

54 »Edicts from the Governor and Hoppo of Canton«, The Chinese Re-pository, Vol. III, No. 4 (August 1834), p. 188. The reading of the influence of this misinterpretation and its in-fluence can be seen in L H (2009) 64–73.

55 »Notice of the San Kwo Che, or History of the Three Kingdoms«, The Chinese Repository, Vol.VII, No. 5 (September 1838), pp. 233–249.

56 »Hung Lau Mung, or Dreams in the Red Chamber«, The Chinese Reposi-tory, Vol. XI, No. 5 (May 1842), pp. 266–273.

57 »Hai Kwoh Tu Chi, Statistical Notices of the Ocean Kingdom with Maps, in Fiy Books«, The Chinese Repository, Vol. XVI, No. 9 (September 1847), pp. 417–424.

58 »Japan: a translation of the 12th chap-ter of the Hai-kwoh tu chi, or notices of foreign countries, illustrated with maps and engravings, published at the city of Yang Chau fu in Kiangsu, in the summer of 1847«, The Chinese Repository, Vol. XIX, No. 3 (March 1850), p. 135.

59 See L (2008) 198.60 In Qing Dynasty, Xi Sha (took murder

as a game, the perpetrator had fore-seen the result, but neglected it), Wu Sha (killed the wrong person), Guos-hi Sha (manslaughter) deserved ligh-ter punishment than Mou Sha (more than two people planned to kill peo-ple, under special circumstances, there could only be one person) and Gu Sha (intentionally killing some-one). Cases can be seen in X L, X E (2009) 164–165. It can also be seen in Q S, Z D (2009), Taken from Chapter 13 to Chapter 17.

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na, for them, was »the other«. When China and the West’s relations worsened, which even resulted in war, these people would have had a sense of superiority when looking at this feeble empire; their divergence from Chinese beliefs was inevita-ble. 61

Bridgman used to depict the Chinese as »arro-gant, deceitful, telling lies, lack of love for nature, the, robbery, murder etc.«, and it »came from their hearts and could be seen everywhere«. Fur-thermore, »they did not restrain them, instead, cherished and connived at them«. 62

Similarly, aer having lived in China for more than 10 years, in 1824 Morrison said the following of his work: 63

»Although the Chinese had rich literature and arts, they were still absentminded idolatries. They worshipped things created, not the one who created them. They hated God, and they were full of injustice, evil and obsession with idols. Though China had its own civilization, the Chinese were still jealous, deceitful and the tellers of lies. They had metaphysical views and they were selfish, greedy, shrewd and indiffer-ent. As mentioned, these were typical traits of the Chinese.«

For the chief editor and main author for the last three years of The Chinese Repository, S. W. Wil-liams, who was called »the best sinologist in Amer-ica«, his remarks on China could be lavish. He called China »the highest civilized nation among pagan countries«. However, he was unable to

exempt himself from »conventions«. In 23 August 1847, he expressed the same viewpoint as Morrison in his letter to his fiancé. When describing his motivation for publishing The Middle Kingdom, he said: 64

»I think my motivation for writing a book about China is right. One of my motivations is to let my Quakers know more about Chinese destiny. I want to let people know that we should preach to Chinese of our dogmas. Now the Chinese politics is increasingly chaotic, opium and mo-ral decay are undermining this country. Only gospel can save them. There may be many reasons for causing their indifference, but their ignorance must be the main reason. Getting rid of ignorance, to a huge extent, can save this people from decay.«

West-centrism and national superiority make The Chinese Repository one-sided. Its editors and authors quoted the reports from the Qing Govern-ment Gazette based on their own preferences, some-times, intentionally, focused on the barbarian and brutal aspects of Chinese criminal law, that is to say, they were quite interested in the dark side of it. Speaking of the reason why they chose to do so, it had something to do with their founding purpo-ses: arouse attention and help from the Western societies who were more legally civilized following the law reform of the 19th century by listing the severe problems of China and its law, including Chinese criminal law. 65 Hence, the theory of Edward Wadie Said mentioned before serves as a

61 The reason for the worsening com-ments on Chinese from Westerners aer the mid 18th century can be seen in B (2005).

62 »Universal Peace; obstacles to it in the character and government of nations, particularly of China and Japan; with remarks on the means best fitted to remove these obstacles«, The Chinese Repository, Vol. III, No. 11 (March 1835), p. 257.

63 M (2004) 234.64 W (2004) 86.65 Once upon a time, whether in Europe

and US, public executions, dumping bodies on the street, tearing a person asunder and inquisition by torture were very popular. In 1787, Benjamin Rush (1745–1813), one of the foun-

ding fathers of America who signed The Declaration of Independence, said in the »Society for promoting politi-cal inquiries«: I cannot help enter-taining a hope that the time is not very distant when the gallows, the pillory, the stocks, the whipping-post, and the wheel-barrow (the usual en-gines of public punishments) will be connected with the history of the tack and the stake as marks of the barbarity of ages and countries and as melan-choly proofs of the feeble operation of reason and religion upon the hu-man mind. From the late 18th to the early 19th century, with the emergen-ce of new laws and criminal theories, Western countries abolished old laws and old customs one aer another,

the punishment of pillory was abo-lished in France in 1789, and for Britain in 1837. By 1840, ruthless punishments like public execution had almost vanished. Though the process was not smooth, for the most part from 1830 to 1840 when The Chinese Repository was founded, punishment had been transformed from a intolerable treatment to a mechanism which temporarily de-prived rights. And this theory came into existence in Western countries. Those punishments which were called »the marks of the barbarity of ages and countries« by Benjamin Rush were strongly restrained, though not completely vanished. See F (2007) 7–17.

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cautionary tale, even though there are contentions of his viewpoints. Moreover, in modern Western literature, opinions exist for introspecting, which is the superiority in studying the Chinese law history. Forty years ago, an American scholar, David C. Buxbaum reminded his fellows in his article: 66

»Our viewpoints on the practical function of Chinese laws are rooted in the 19-century-re-ports by the racists who were western diplo-matic personnel, clergymen and merchants. They thought they were spreading civilizations like western commodities, politics, laws and religions to barbarians. In fact, many researches on Chinese laws were not lucubrated. Instead, they were reiterating the slogan from their fellows and friends who were ›Pro-West, Anti-China‹.«

Last but not least, there is another question. Apart from ideology and language, are there any other factors leading to the misinterpretation and imagination of Chinese laws? The answer is yes. Among these factors, the fact that Westerners could not understand the Chinese legal perspective is paramount.

Many classic works on the comparison between Chinese and Western legal perspectives can be found in China nowadays, and British S. v. d. Sprenkel also makes for a reasonable read. Several of his comments need highlighting. Firstly, the Qing Legal Code, though criticized, received praise for its straightness and clearness when the English version was first published. In fact, law-makers were trying to contain all accidents and crimes that might happen in the future when establishing this Code. Thus, ambiguity would be unavoidable because they could not foresee future, and certain acts might not be defined so specifically, creating a lot of trouble for those who had to interpret them. And the Qing Legal Code outlined detailed regula-tions on the standard for defining certain acts and measures to be taken in order to reach these standards. Then, it existed inconformity, for the

presumption of certain laws would naturally lead to a certain result, but the judge, without discre-tion, was supposed to be responsible for the un-expected consequences of applying this law, that was unreasonable. Secondly, the court procedure was designed to protect the dignity of laws and status of local officers representing the emperor. In comparison, other parties at court seemed trivial, and thus the trial focused on accusation. Once the trial had started, punishment would be inevitable, »plaintiff«, »defendant«, »witness« might all be punished. Even the judges were not exempted of risks, especially if they applied the wrong laws or made certain ritual mistakes, which would result in degradation and blame. Thirdly, administrative officers were entitled to apply laws, which was a major defect in the Chinese legal system. Like local militia, tribunal was part of the system of protect-ing social norms. Efficiency for local governments, functioning of laws. Conversely, the legal system would not work, and law itself would decay. Finally, the purpose of Chinese laws was clear, it was taking responsibility for crimes, even if those crimes were a mere accident. The carrying out of punishment was »better late than never« and it was acted so as to be a deterrent to others. The right-eous part of it was that bad people would receive punishment, sooner or later. Ancient Chinese criminal law seemed to assert that during the course of finding someone responsible for this crime, through investigation, the truth would be found out one day, definitely. 67

When I was reading these perspectives from these British Scholars, my understanding about the authors of The Chinese Repository was deepened. I knew why they were so obsessed with the un-certainty and the abuse of punishment of Chinese law so. Western Case Law traditions, judges’ power to interpret and to make laws, and Western justice views (which were different from Chinese order-oriented values), all contributed to »barbarity and cruelty« of ancient Chinese laws in Westerners’ minds. 68

66 B (1971), quoted from Y C (2009) 476.

67 See V S (2000) 79–87. Sprenkel’s perspectives were also quoted by two American professors: B / M (2003) 18–19 and 34.

68 It is noticeable that when we compare discrepancies between Chinese and Western legal traditions, we cannot isolate their geographical disparities. Professor W Z (2008) said, from the mid 18th to the mid 19th century, though Chinese statue

law and British case law differed in the technical deduction, they shared similarities in influence and the manner of dissemination, and it serves as a warning when we are considering these questions. Hereby, I would like to thank Professor Arnd

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Conclusion

The Chinese Repository, though not the only media for Sino-West communication, was a major propagation medium at that time. With its massive publications and influence of its authors and edi-tors in education and religion, The Chinese Reposi-tory had a huge influence. Moreover, as the earliest American work on Sinology, it was not only the basic reference for sinologists in 19th century, but also is quoted by scholars today. In modern times, especially for the Westerners aer 19th century, the Chinese criminal law in their minds had a great deal to do with The Chinese Repository. And their minds, to some degree, caused their promotion of consular jurisdiction 69 in the treaties born out of the two Opium Wars, and their policies to China aerwards.

In Memorials of Protestant Missionaries to the Chinese: Giving a List of Their Publications and Obituary Notices of the Deceased, Mr. Zhou Zhenhe mentioned that aer late Ming Dynasty, there were three types of people coming to China: mission-aries, merchants and diplomats. Aer the late Qing Dynasty, merchants and diplomats were more active in their businesses, while missionaries were more open and deep-minded, and their influence went far beyond the former two groups. For out-standing missionaries, their feats lay in their con-tributions to Sino-West communications or rela-

tions rather than preaching, and even sometimes it needed to be proven whether their contributions were good nor not. The way that The Chinese Repository was used by Bridgman and S. W. Wil-liams to introduce Chinese criminal views could be the best example of it.

In addition, China’s image went from a »civi-lized and bright empire« by Voltaire to a »empire immobile« in the mid 19th century, while the West’s transformation was that of »barbarians« to the imagining »Utopia«. When the unequal treaty was signed, the shi of status even indirectly influenced the forerunners and intellectuals advo-cating revolution in the Westernization Move-ment. Their judgments on the Chinese and West-ern criminal laws might be affected by the spread of the Chinese criminal law mindset and shaped by The Chinese Repository. Scholars in the late Qing Dynasty admitted »comparing Chinese law with other countries«, and we can observe the essence of such thinking in our own, but their criminal systems were not in accordance with their Chinese counterpart, and the degree of crimes differed as well. In general, Chinese punishment is heavier than western«. 70 It is understandable why some people would link these scholars’ views with The Chinese Repository.

n

Bibliographyn B, G (2005), China and the Modern Western Society Thoughts (translated by Song Jiafu), in: China and Historical

Capitalism, edited by T B and G B, Beijing: Xin Xing Publishing House, 71–131n B, D, C M (2003), Law in Imperial China (translated by Zhu Yong), Nanjing: Jiangsu People’s

Publishingn B, J (2006), Comparison between visualization Chinese Extreme Punishment and Its European Counterparts

(translated by Chen Shuliang), http://turandot.Ish-lyon.cnrs.fr/Essay.php?ID=43n B, D C. (1971), Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789

to 1895, in: The Journal of Asian Studies 30,2 (1971) 255–279

Helmut Hafner, a German sinologist who is living in Japan now. On 18 March 2010, he gave a lecture at the East China University of Political Science and Law; what he said and his reply to my question enlightened me when I was writing this paper.

69 For background information, see L X (2010a). In addition, aer

the signature of the Treaty of Wanghia, American Minister Caleb Cushing (1800–1879), reported the part of consular jurisdiction to the American government, his general idea was: China was not the member of »Christian Countries Family«, so the Western criminals could not be handed to China. He was trying to

express that as a »pagan« country, Chinese criminal law was barbarian and ruthless, and it would not treat Christians fairly. His idea was the same as the one found in The Chinese Repository. As for Cushing’s theory, see L D (1997) 110–113.

70 S J, Ji Yi Wen Cun, Index 1.

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Shixin), Beijing: Beijing Library Pressn S J, Delete Heavy Punishment in Ta Tsing Leuh-le, Ji Yi Wen Cun, Index 1n S, G.T. (1810), Ta Tsing Leu Lee, Being the Fundamental Laws and a Selection from the Supplementary Statutes of the

Penal Code of China, Londonn S, G.T. (1997), An Authentic Account of An Embassy from the Kingdom of Great Britain to the Emperor of China

(translated by Ye Duyi), Shanghai: Shanghai Publishing Pressn T S (2008), Interpretation of The Chinese Repository, in: Historical Archives No. 3 (2008) 84–89n T T, Z Q (1999), Qing Legal Code, Beijing: Law Pressn V S, S (2000), Legal Institutions in Manchu China. A Sociological Analysis (translated by Zhang

Shoudong), Beijing: China University of Political Science and Law Pressn W Z (2008), The Comparison between Chinese and British Precedent System, in: Chinese Journal of Law 3 (2008)

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Zhang Zhongqiu*

China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty

Which law would people, relying on their own experience and reason, select for succession from the diversified legal world and different forms of law under specific circumstances, and what ap-proaches would people take to accomplish such selection? These are problems that must be faced in the succession of laws. Although the analysis of and solutions to these problems are finally man-ifested through actions, one can get a glimpse of certain cultural and social characteristics in the succession of laws through the actions and pro-cesses. These characteristics may not be apparent, but they always influence or even dominate the selections in the succession of laws.

I. Selection of the Target Country for the Succession of Foreign Laws by China of the Late Qing Dynasty

Time and space are of great importance to our understanding of problems. China of the late Qing Dynasty in the 19th century had been integrated into the world system led by the Western world, just as Liang Qichao said, China was no longer a country of China or of Asia, but a country of the world. Facing the whole world and featured for-eign laws, China of the late Qing Dynasty indeed had a large variety of target countries for the succession. However, particularly because of the wide range of countries on hand, the selection lasted for quite a long period of time. As is well-known, the gap between China and the West manifested itself during the Opium War in 1840, and the Chinese far-sighted personage started real-izing the necessity for learning from the West. So, Wei Yuan put forth an idea of »learning from the foreign countries.« Lin Zexu was even more con-

vinced of the proposal. Yan Fu translated a large quantity of foreign political and legal texts simply for this purpose. 1 Until the Reform Movement of 1898, Kang Youwei clearly proposed in his written statement submitted to the emperor Guangxu of the Qing Dynasty that:

It is an extraordinary national humiliation that foreigners govern their nationals in China on their own without granting us the equal rights. They claim that it is due to the harshness of Chinese penal law and differences of legal sys-tems. I propose that now we follow the exam-ples of laws in Rome, Britain, the United States, Germany, France and Japan and amend our laws. The amended laws shall first be enforced in the trading ports and then in the inlands. The Westerners are all very thorough and wise with regard to civil law, commercial law, mar-ket regulations, vessel regulations, procedural law, military law and public international law. Since we can no longer close our border and market, we will have to allow all the commerce and exchange. But now there is no relevant law and the government officials and the people have nothing to abide by, this will cause various bad consequences. Besides, the new laws men-tioned above are something that we have never had before and can supplement and improve our legal system under the current circumstan-ces. Therefore, I propose that a special depart-ment be established to evaluate and adopt for-eign laws and amend our laws for people to abide by. 2

Judging from Kang Youwei’s written statement, it was definite that he petitioned the emperor Guangxu to introduce foreign laws to eliminate

* Zhang Zhongqiu, Dr., Professor of Collaborative Innovation Center of Judicial Civilization, China; of Law at the Research Institute of Legal History, China University of Political Science and Law, Beijing, China, Tel/Fax: 0086-10-82565892; Email: [email protected]

1 Records of Old Dreams of the Reform: the »Self-Reform« Movement of China a Hundred Years before Wuxu, compiled by Zhu Weizheng and Long Yingtai, selects the texts on reform by wise men including Gong Zizhen, Wei Yuan, Lin Zexu, Liang Qichao, Yan Fu, Kang Youwei et al. These texts

contain illuminating ideas and true ambitions, which will no doubt prove emotive for modern readers. See Z W, L Y (comp.) (2000) (all subsequent citations refer to this edition).

2 K Y (1998), first volume, 214–215.

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176 China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty

the national humiliation. However, for the foreign country from which a law was going to be intro-duced, Kang mentioned Rome, Britain, the United States, Germany, France and Japan, and then said, »The Westerners are all very thorough and wise.« This reveals that Kang Youwei could neither dis-tinguish the past from the present, nor distinguish Britain, the United States, France and Germany from Japan, referring to an Eastern country as though it were a Western country and putting emphasis on the West in terms of the target country for the introduction of foreign laws. This was a normal phenomenon at that time. Although Kang Youwei’s proposal was fine in theory, which was the so-called broadening of one’s horizons and choosing and following the best, it was impracti-cal. Not to mention that so many target countries could not be selected simultaneously, the two different Anglo-American legal systems and civil law system were then difficult to be concurrently introduced and integrated. 3 As a result of the failure of the Reform Movement, this proposal was never put into practice.

Based on the records of the Manuscript of the History of the Qing Dynasty – Treatise on Penal Law, until 1900 when the Eight-Power Allied Forces marched into Beijing, the Qing government still intended to »introduce laws from Europe or the United States« in terms of introducing foreign laws. In 1902, the Zhili district governor Yuan Shikai, the Liangjiang district governor Liu Kunyi and the Huguang district governor Zhang Zhi-dong jointly advised Shen Jiaben and Wu Tingfang to act as the secretaries in charge of law amending, putting forward a point of view on law amending

based on »adopting laws of the East and the West.« The Qing government »issued an imperial decree as per the presented request,« and determined the guideline of »consulting laws of other countries and making an appropriate dra to achieve adapt-ability to both domestic and foreign circumstances and to benefit the ruling of the Qing govern-ment.« 4 Aer accepting the commission to under-take the amendment of law under the imperial order, Shen Jiaben and Wu Tingfang submitted a Memorial of Abolition of Severe Punishment in the Penal Law to the emperor Guangxu on April 24, 1905 stating that:

We admire very much Your Majesty’s great and far-sighted strategy, and we will consider and dra the general approaches to implement this strategy. We propose that the government should select the officials who are familiar with the Chinese and Western laws and commission them to respectively codify the laws, hire doc-tors and lawyers who were versed in law from Eastern and Western countries as consultants, and assemble graduates who have studied abroad to translate the foreign laws into Chi-nese. We petition that a special fund be appro-priated for the above-mentioned work and to carve seals in witness whereof. 5

Based on the above-mentioned clues, just roughly counting the years, we can find that it took more than half a century for China of the late Qing Dynasty to select a target country for the succession of foreign laws. The trail of this process is as clear as follows: »Learning from the West« (in

3 Britain and the United States are Anglo-American law countries with case law systems following the prin-ciple of stare decisis, while France and Germany are civil law countries with statute law systems originating from Rome. These two legal systems had developed independently since an-cient times and have interacted with each other since modern era, but their basic legal patterns are even now ex-tremely difficult to integrate, let alone by China of the late Qing Dynasty.

4 The original text of Manuscript of the History of Qing Dynasty – Treatise on Penal Law is: »Until the 26th year of the Guangxu Period (1900), the Al-lied Forces marched into Beijing and

the emperor and his mother went hunting to the West. The personage concerned about the country all be-lieved that then China would not become strong without introducing a law from Europe or the United States. Therefore, those present written re-presentations on current affairs all talked a little about the penal codes. In the 28th year of the Guangxu Pe-riod (1902), the district governor Yuan Shikai, the Liangjiang district governor Liu Kunyi and the Hu-guang district governor Zhang Zhi-dong jointly recommended Shen Jiaben, then Zuoshilang of the Min-istry of Punishment, and Wu Ting-fang, a secretary acting as envoy to the

United States to amend the law based on the adoption of Eastern and Wes-tern laws. The emperor issued an im-perial decree as per the presented request, ordering the amendment of existing laws in accordance with the negotiated position, to consult laws of other countries and to make an appropriate dra in order to achieve adaptability to both domestic and foreign circumstances and benefit the ruling of the Qing government. Those discussing laws thereaer all paid at-tention to the consular jurisdiction.«

5 Shen Jiaben, Corpus of Ji Yi, Volume 1, Memorial on Abolition of Severe Punishment in the Penal Law.

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1842 / proposed by Wei Yuan, et al.); »Westerners are all very thorough and wise« (in 1898 / proposed by Kang Youwei); »Introducing a law from Europe or the United States« (in 1900 / Manuscript of the History of Qing Dynasty – Treatise on Penal Law); »Adopting laws from both East and West and consulting laws of other countries« and »issuing an imperial decree as per the presented request« (in 1902 / proposed by Yuan Shikai, et al., approved by the Qing government); »The government should hire doctors and lawyers who were versed in law from Eastern and Eastern countries« (in 1905 /proposed by Shen Jiaben and Wu Tingfang with the Law Amending Council). The 63 years from 1842 to 1905 was a period of selection by China of the late Qing Dynasty from »learning from the West« to »political reform and amending laws.« There is no doubt that »hiring doctors and lawyers who were versed in law from Eastern and Western countries as consultants« was one of the measures of the law amending at that time. However, based on relevant data, actually the experts of law hired by the Qing government were all Japanese. Whether the Qing Dynasty did not or could not hire Western legal experts needs to be further researched, but we can also see from this fact the importance of the Japanese element in the intro-duction of legal culture in the late Qing Dynasty.

Making a shi from the Western countries such as Britain, the United States, France and Germany to the Eastern country of Japan was decided by China of the late Qing Dynasty based on a careful survey and comparison. Based on relevant records, ZaiZe, Duan Fang, et al. traveled first to the United States and Britain in order to carry out political surveys, which was quite natural at that time. First, the United States and Britain were of the same system; second, Britain, the then hegemony in the world and the leading power that invaded China, was involved in a series of incidents against China initiated by the Opium War, which directly caused China of the late Qing Dynasty to despise yet admire Britain’s strong national power and supe-rior system. However, aer the field trips to Britain and the United States in 1906, the government officials found that although the systems of both the United States and Britain were good, the

political situation in both differed from that of China of the late Qing Dynasty. Dai Hongci and Duan Fang et al. stated in the survey report of the United States submitted to the emperor of the Qing Dynasty that, »Generally speaking, the United States is a nation founded on industry and commerce which purely upholds civil rights. The political regime of the United States is differ-ent from that of China.« 6 ZaiZe et al. who traveled to Britain reported that: »We have found that Britain is the European country with the most outstanding culture, but its political system is largely different from the Eastern countries. Its establishment of offices and assigning authority are quite complicated and entrenched, and are clearly not suitable for the Chinese political re-gime. Therefore, the government should make choices as to rejecting the dross and adopting the fine essence thereof.« 7 We can tell from the rele-vant contents of these two reports that, the political situation of either the United States and Britain differed from that of China of the late Qing Dynasty, in terms of, first, purely upholding civil rights, and second, the decentralized system with establishment of offices and assigning authority. This judgment was seemingly objective and cor-rect. However, the crux of the issue is that the Manchu absolute monarchy was at odds with the democratic government of both the United States and Britain.

The reports submitted by the government offi-cials conducting the surveys aer visits to conti-nental European countries including France and Germany as well as trips to Britain and the United States revealed a purpose different from any that had existed before. The report about France stated that: »We have found that France is a democratic European country. Aer we arrived in the capital of France, we, together with the attendants, took a detailed visit to its executive government offices. We later knew that although the system upon which France was founded is known as demo-cratic, the rein is indeed similar to that of the empire. The laws and regulations of France are perfect, logical and in good order. Particularly, the spirit of French laws and regulations are about consolidation and circulation. We propose that the

6 Records and Historical Materials (1979), first volume, 7.

7 Records and Historical Materials (1979), first volume, 10–11.

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government reject the dross and assimilate the fine essence of the laws and regulations of France, and there should be indeed a lot that the government can select and adopt.« 8 Dai Hongci et al., reporting on Germany, noted that: »We have found that Germany established its dominance through its mighty power. In less than a hundred years, Ger-many became well known in Europe for the strength of its land force. We also observed that the customs and people of Germany are diligent, thriy and simple, which are most similar to that of China. The advantages of Germany are that politics does not hindering the people’s sense of national prestige, and its people have a sense of independence; therefore, rapid progress was made. Consequently, Japan learned everything it could from Germany since the Japanese Reform for thirty years and grew vigorously. China recently oen admires Japan’s power without realizing that it originated from learning from Germany.« 9 The reports submitted by the government officials mak-ing surveys clearly showed that, compared with the United States and Britain, France and Germany was more similar to China simply because »The rein is indeed similar to that of the empire« and there was »No politics hindering the people with national prestige.« More explicitly, the difference of mode between monarchical power and civil rights and the difference between centralization of power and decentralization of power still served as the criteria for the selection. However, it is said that the reasons the laws of France and Germany were not selected finally were that the laws of France were too perfect and the laws of Germany were too profound, which were at odds with China’s actual

conditions at the time, that the legal reform had just started and that the Chinese legal cultural tradition of succinctness.

Based on a round of surveys and comparisons of the world powers, the officials reached an agree-ment that China should learn from Japan in terms of political reform and law amending to realize the objective of absorbing the essence of Western politics and law via Japan. In fact, Huang Zunxian had put forward the idea of learning from Japan as early as in 1890. But his idea did not attract much attention at that time and therefore could not possibly become the mainstream opinion. A fur-ther reason is, for thousands of years China had regarded itself as the center of world civilization. With the exception of the spread of Buddhism in China, the massive Chinese and foreign cultural exchange was basically a unilateral export and consequently China had always treated Japan with contempt. 10 Furthermore, the Chinese personages held a vague and incorrect understanding of Japan. Huang Zunxian once stated in his Preface of the Records of Japan that: »According to my observa-tion, the Japanese personages are able to discuss Chinese books and observe Chinese events. On the contrary, the Chinese personages are obsessed about the argumentation in ancient Chinese books, are content to seclude themselves and refuse to pay attention to foreign affairs. Western coun-tries aside, even Japan which is separated from China only by a strip of water, where the sound of night watches in China can be heard, and which can be reached within one day, is seen by the Chinese personages as one of the Three Legendary Mountains which is within sight but beyond reach.



10 Ancient China referred to Japan as »Wo« with contempt. See also [Japan] K Y (1980) 55. In the late Qing Dynasty, Huang Zunxian wrote in Records of Japan – Preface of Records of Neighboring Country that: »Japan has admired China since me-dieval times and has sent lots of en-voys to China. Japan learned the order of nature, geography, bureau-cratic establishment, military equip-ment, national decrees and regula-tions, spoken and written languages, and even as small as food and drink,

treasures and games, all from the Tang Dynasty. Since modern times, Japan began to associate with European countries and the United States, sending ambassadors thereto, and also learned the order of nature, geo-graphy, bureaucratic establishment, military equipment, national decrees and regulations, spoken and written languages, and even as small as food and drink, treasures and games, all from the West.« But before the Sino-Japanese War of 1984 and Russo-Japanese War (1904–1905), Chinese people still had traditional perception of Japan, there were very few people who had the same insight as Huang Zunxian.

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This is like Zou Yan taking the Nine as something outside the universe which is so absurd that it is not worth talking about, this is nothing but nar-row-mindedness!« 11 However, the Sino-Japanese War of 1894 not only severely dampened China’s sense of self-respect and arrogance in East Asia, but also threw the Chinese government and the public into a period of crisis. It was not until then that Huang Zunxian’s The Records of Japan drew atten-tion. For example, Huang Zunxian’s theory of political reform and modernization following the lead of Japan exerted significant influence on reformists such as Kang Youwei and Liang Qichao et al. in terms of information and thoughts. 12Kang Youwei once wrote in the Preface of the Records of Japanese Bibliography that: »Russia and Japan are the only two countries that grow power-ful quickly due to political reform in the world. Russia is far from China and the results of its administration are not written because its lan-guages are different from the Chinese languages. If China now learns the methods and sequences of the political reform from Japan, which is very close to China, then good results could be achieved within three years, which would be very quick. Furthermore, the Japanese languages are similar to Chinese languages, except for kana characters (30%) that do not have many meanings. The Japanese have translated some of the essence of Western books and we can take advantage of these translated works due to Japan’s success …« This statement shows the »theory of Japan as a model country« in Kang Youwei’s thoughts and also reflects the embryo of the later concept of learning from Japan which views Japanese learning as a shortcut to Western learning. Unfortunately, the failure of Wuxu Reform Movement somewhat discredited the theory of Japan as a model country,

but Japan’s power and China’s domestic dilemma forced some of the secretaries of the Qing govern-ment to bring it up again two years later. 13 In the 27th year of the Guangxu Period (1901), the Liang-jiang Governor Liu Kunyi and the Huguang Gov-ernor Zhang Zhidong jointly submitted the Three Memorials on the Political Reform to the imperial court, putting forward specific strategies for con-ducting political reform and law amending follow-ing the lead of Japan. On February 23 of the 27th

year of the Guangxu Period (1901), Yuan Shikai, Zhang Zhidong and Liu Kunyi again jointly rec-ommended that Shen Jiaben and Wu Tingfang lead the Law Amending Council under the impe-rial decree, which stated that:

We have found that Shen Jiaben, the Zuoshi-lang of the Ministry of Punishment, has worked in the Ministry of Punishment for a long time and has a mastery of the criminal law. Shen Jiaben, a fourth-ranking government official and an envoy to the United States, practices foreign affairs and is an expert in Western laws. We petition that they should be selected and ordered to establish the Law Amending Council in Beijing and act as chief editors. They should be charged with the task of selecting officials as editors, proofreads and revisers. And Wu Ting-fang could select two or three Western lawyers to come to China, who would also bring their associates. In recent years, the Japanese science of law has been classified into different subjects, of which the study and research are also pro-found. In particular, Japanese civil law is ad-mired most deeply by Westerners. Japan is a country, which has the same culture as China. Lots of Japanese doctors of law can read Chinese statutes and records of laws and systems of

11 H Z (2006) 4. And one paragraph commenting on the Sino-Japanese War of 1984 in Story of Li Hongzhang Visiting Europe and the United States recounted the follow-ing: »I remember that prior to the Sino-Japanese war, China had great fame and grand power, all better than those of Japan; it was estimated that China would probably win this war. However, as soon as the war began, the fame of China came to nothing and the new recruits, new vessels and new weapons of China were all lost. Putting oneself in the position of

China would find it was too much to bear. Moreover, Chinese people al-ways looked down upon Japan and viewed the three islands as not worthy of putting down; but now it was beaten by the country that had always been despised by it. China always took itself to be more powerful than Japan, instead was defeated by Japan. Wouldn’t China be more embarrass-ed? Did China also know that malady could be hidden for twenty years and would break out overnight? China had adhered to the old habits without knowing it, and had been superficial

and arrogant. When encountered with a vigorous new country, China would be defeated.« E et al. (1986) 189.

12 Y S, M K(eds.) (1996) 412–418.

13 On February 2 of the 27th year of the Guangxu Period (1901), the secreta-ries including Yi Kuang and Rong Lu jointly submitted memorials. See also Lufu Records of the Office of Grand Council of State, archived in the First Historical Archives of China, volume 7227, No. 40 Memorial Petitioning for Law Amending by Yi Kuang et al.

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dynasty. Furthermore, the local customs and practices of Japan are similar to those of China, making it easy to learn from Japan. The govern-ment can also ask the secretaries acting as envoys in Japan to seek Japanese doctors of law and select one specializing in civil law and one specializing in criminal law, and invite them to come to China to assist us with our codifica-tion and translation efforts. In this way, scope will be established, tasks will be assigned and the personnel will follow orders, making it easy to conduct the law amending. Aer the Law Amending Council has been established, the important provisions of the laws in urgent need of amendment should be translated and revised, and the amended laws will be promptly pre-sented to the emperor for review and finally announced to have taken effect. The law amend-ing will be conducted gradually in order to achieve perfection. 14

One month later, i. e., April 6 of the 28th year of the Guangxu Period (1902), the Qing government issued an imperial decree that »As now there are various affairs about commerce and negotiation, Shen Jiaben and Wu Tingfang are hereby ordered to amend all the current laws in accordance with the negotiation situation, to consult laws of other countries, to conduct careful textual research and correction, and to compile an appropriate dra in order to achieve adaptability to both domestic and foreign circumstances and benefit the ruling of the Qing government. Aer the amended laws are presented for imperial review, an imperial or-der will be issued to promulgate these amended laws.« 15 Henceforth, Shen Jiaben and Wu Ting-fang assumed the most important mission of their times and went up onto the law amending stage. In the 30th year of the Guangxu Period (1904), the two secretaries in charge of law amending brought up the same suggestion again, emphasizing that Japan »became a model of political reform via learning from the strengths of several other coun-tries. China and Japan are of the same culture;

therefore China should take Japan as standard.« 16In May of the same year, the Qing government established the Law Amending Council, officially starting the succession of modern Japanese law by China of the late Qing Dynasty.

When we again consider why the Qing govern-ment finally selected Japan as the target country for succession of foreign laws, the causes were very complicated. However, the most direct reason was to revoke consular jurisdiction following Japan’s lead. In 1853, Western powers forced Japan to open up its borders. In 1858, the Japanese shogu-nate was pressed by the United States into signing with it The Treaty of Amity and Commerce, and later the same treaty with the Netherlands, Russia, Britain and France, which were known as the »Ansei Five-Power Treaties.« 17 The aforesaid trea-ties granted the five powers privileges including consular jurisdiction in Japan. Japan felt humili-ated by this, and revoked the consular jurisdiction aer many years of effort, in particular by building modern legal systems following the example of Western countries, which shook up and inspired the Qing government to a great extent. On Febru-ary 2 of the 27th year of the Guangxu Period (1901), Yi Kuang and Rong Lu jointly submitted a memo-rial stating that:

At the beginning of the Japanese political re-form, Japan dispatched officials to Western countries to learn Western laws, established the Law Council to review, approve and prom-ulgate the amended laws. Japan gradually be-came more powerful over two decades. The other countries took Japanese laws to be the same as their own laws, and therefore foreigners residing in Japan were willing to be bound by the Japanese laws. Consequently, Japan was able to exercise jurisdiction by itself, which is the clear evidence of the effects of law amending. 18

Besides, some other factors related to such opinions also promoted the choice of the Qing government. Considering the opinions at the time,

14 L Y, L Z (coll.) (1987) Volume 14.

15 Z S (ed.) (1958) 4864.16 Lufu Records of the Office of Grand

Council of State, archived in the First Historical Archives of China, Volume 7227, No. 5.

17 See also S T (1992) 349–354.

18 Lufu Records of the Office of Grand Council of State, archived in the First Historical Archives of China, Volume 7227, No. 40 Memorial Petitioning for Law Amending by Yi Kuang et al.

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it was mostly related to politics, education, cus-toms, written languages, geography, as well as human and material resources. In addition, Shen Jiaben and Wu Tingfang, the secretaries in charge of law amending, stated very clearly in their jointly submitted memorial that:

The recent Meiji Reform in Japan was also based on law amending. Before new laws were pro-mulgated, the punishment of dismemberment, beheading, registering and confiscating all the assets and tattooing had been abolished. Finally, the Japanese folk customs had changed tremen-dously and nation became powerful and pros-perous very quickly. Today Japan is a power in East Asia. China and Japan have the same culture, education, written language 19 and so-cial customs and habits, undoubtedly China can draw on the experience of Japan. 20

Previously, Kang Youwei, Zhang Zhidong et al. advocated that Chinese personage should study in Japan. Zhang Zhidong wrote in the article Learn-ing Tour that: »Studying in Japan for one year is superior to reading Western books for five years. In terms of the foreign country to study in, Japan is better than Western countries, as Japan is close to China and studying in Japan is not that expensive. Large numbers of personages could be dispatched to study in Japan for the following reasons: the first one is that Japan is close to China, therefore it is easy to be inspected; the second one is that Japa-

nese language is similar to Chinese language, therefore it is easily understood; the third one is that Western learning is quite complicated, Japa-nese people have deleted or modified the unneces-sary part thereof. China and Japan have similar situations and customs, so it is easy to follow the lead of Japan, through which we can get double results with half the effort. 21 If we wish for refine-ment and perfection, we can then go directly to the Western countries to study.«

The secretaries of the Qing government, such as Shen Jiaben, strongly advocated learning from Japan versus having to go one step further in order to accommodate two issues arising from »referring to the laws of other countries.« One was the severe shortage of talented people who had concurrent mastery of Chinese and Western foreign languages as well as law; the other was the difficulty in selecting the law to be introduced from so many Western legal texts. As was observed at the time, »If we wish to translate all the codes of the European countries and the United States, the difficulty of finding the translators notwithstanding, the books are so many that it is impossible to translate all of them in the first place.« 22 The above two issues would not arise if China selected Japan, because there were so many students studying in Japan who had concurrent mastery of the Chinese and Japa-nese languages as well as law. And more impor-tantly, in the eyes of the Chinese people, Japan had already taken the best of Western laws and cul-tures, including finding the solution to the long-

19 With regard to the »same language« mentioned by Shen Jiaben et al. in their memorial, I have some additio-nal remarks. In fact the Chinese languages and Japanese languages are not identical. Initially, the Japanese languages used the Chinese languages as a reference and later evolved from the Chinese languages. Japanese and Chinese languages are all ideograms, having many similarities and some-thing in common with each other. Therefore, compared with alphabetic Western languages, Japanese langua-ges are easy for Chinese people to learn and master. This alone effective-ly promoted the selection of modern Japan by China of the late Qing Dy-nasty. Just as Professor Reynolds said, »If China elected to rely upon diffe-rent countries speaking different languages, the different ideas and

doctrines would lead to confusion of concepts, ambiguity of words, heated debates, opposition and resistance. Luckily for China, it had single first-hand resources on hand, which was of the same culture and very easy to ob-tain. Japan provided over ten years of generous help to China during the period between 1898 and 1910 which was full of ordeals to China.« R (2006) 132.

20 Shen Jiaben, Corpus of Ji Yi, Volume 1, Memorial on Abolition of Severe Punishment in the Penal Law.

21 The phrase »getting double results with half the effort« is oen seen in the arguments of studying law and politics in or from Japan. For exam-ple, seen in the memorial on studying law and politics in Japan submitted by Yang Shu, Chinese minister to Japan, on January 9, 1905 (see also

Historical Materials of Negotiations between China and Japan in Guangxu Period of the Qing Dynasty, Volume 68, page 35 / total page no. 1317); seen also in the memorial on law amend-ing following the lead of Japan sub-mitted by Wu Tingfang et al. on October 15, 1905 (see also Records of Imperial Government in Guangxu Pe-riod, fih book, page 5431).

22 Shen Jiaben, Corpus of Ji Yi, Volume 6, Preface of a Complete Collection of New-Translated Laws and Regula-tions.

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term headache facing the Chinese people, i. e., the translation of legal terms. 23 Shen Jiaben once pointed out on this issue that: »Japan’s old laws were mostly the laws of the Tang Dynasty. Japan adopted Europeans laws within decades aer Meiji and had become a power, which would have been impossible to achieve if Japan had just admired the forms of European laws. The Japanese emperor and the subjects put their heart and soul into the same cause, worked hard and aimed high, spared no financial resources to translate and edit Western books in order to study Western learning and rejected the dross and adopted the fine essence thereof. They dedicated their entire nation’s atten-tion to their laws and therefore their national power is getting stronger and stronger. All of this did not happen by chance.« 24

The »amending of law« in the late Qing Dynasty was the requirement and reflection of the »political reform« that was taking place in the country at the time. The core of the political reform was to maintain the survival of Qing government (which was suffering from the domestic unrest and foreign invasion) during the reformation. Thus, following Japan to practice »constitutional governance,« i. e., autocracy disguised in constitutionalism, was the best choice. This was clearly stated in the secret memorials submitted by the secretaries conducting surveys such as ZaiZe. It was stated in the secret memorials that:

Last time when I was back in Beijing, I sub-mitted a memorial petitioning that constitu-tional governance should be practiced to reas-sure the public and maintain the national power

… Judging from the Japanese constitution, evidenced by what Marquis Itoh and Dr. Hozu-mi said, the monarch has seventeen powers … Speaking from today’s circumstances, constitu-tionalism has three most important benefits, i. e., perpetuation of the imperial throne, grad-ual reduction of foreign aggression and putting down civil strife … 25

Chen Zhaokui, the chief of staff of the Ministry of Finance of the Qing government, stated more bluntly in the Memorial on Six Strategies on Estab-lishment of Law Council and Codification of Laws and Regulations: »Therefore, the Japanese constitution-alism, nominally derived from Britain and the United States etc., in fact took the Japanese histor-ical and social situations as criteria. As the politics and laws of Britain were built gradually, those of France were a result of autocracy, those of the United States and Germany were built on repub-licanism, only those of Japan were a result of honoring the emperor. Consequently, the laws of the above countries have lots of discrepancies. As China has the same culture and a similar purpose of maintaining the empire as Japan, China should therefore learn from Japanese constitutional-ism.« 26 The selection of the political system fun-damentally determined the selection of the law amending. Accordingly, political factors played a vital role in the shi of China of the late Qing Dynasty from »consulting laws of countries« to Japan in terms of introducing foreign laws.

Besides, modern Japan’s attention and support also aided the political reform and law amending of China of the late Qing Dynasty. Japan was the

23 »This factor was oen ignored, but both reformist and revolutionist all relied on it completely. Every effort of China to translate Western concepts, words and phrases into Chinese lo-cution failed, ranging from the crude translations in the 1830s and 1840s by Lin Zexu (1785–1850) and Wei Yuan (1794–1856), to the various discor-dant new words created by Western missionaries during their transla-tions, and down to the rather elegant but equally ineffective creation by Yan Fu at the turn of the century. The Chinese characters of modern Japa-nese vocabulary used during the Meiji era had been completely standardized in 1890s, being functionally cohe-

rent. Without this vocabulary, any effects of China would be defeated in the war and quarrel of words and phrases.« (R [2006] 195). Professor Reynolds overstates it a lit-tle when saying that the reform by China of the late Qing Dynasty »would be defeated,« but Japan’s successful translation of Western le-gal terms using Chinese characters did facilitate to a great extent the succession of Japanized Western legal culture by China.

24 Shen Jiaben, Corpus of Ji Yi, Volume 6, Preface of a Complete Collection of New-Translated Laws and Regula-tions.

25 See also Records and Historical Ma-terials (1979), first volume, 174.

26 See also Records and Historical Ma-terials (1979), first volume, 264–265.

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power that was most active in China’s political reform and law amending at that time. There are various reasons for this. For example, one reason is paying a debt of gratitude to Chinese culture since the Tang Dynasty; 27 and another is a strategic plan to disseminate Japan’s successful experience in China, to significantly cultivate pro-Japan forces, and to realize a dream of building a greater Far East led by Japan. Take Yano Fumio, the Japanese plenipotentiary ambassador to China from March 1897 to December 1899, as an example, he once orally presented and wrote letters to Chinese offi-cials that the Japanese government had undertaken to bear the costs of two hundred Chinese students studying in Japan. He wrote about it in the secret letter to Japanese Foreign Minister Nishino Jiro that:

To spread the new Chinese talents influenced by Japan in the old empire is the best strategy of building up Japanese influence in East Asia. Those students studying military affairs will not only follow the example of the Japanese military system, but they will also rely on Japan for military supplies. In this way, the military affairs of the Qing troops will be Japanized. Those students studying science will surely have a close relationship with Japan due to their jobs, which will expand Japanese industry and com-merce in China. Students who major in law and politics will surely treat Japan as the role model during China’s future reform. If this is the case, then not only will the Chinese government and the public trust Japan twenty times more than before, but Japan will also be able to expand its influence immeasurably in China. 28

According to Professor Reynolds, this letter is a typical example demonstrating Yano Fumio’s shrewdness in terms of advancing and protecting the interests of his own nation. 29 In fact, the later historical development almost corroborated Yano Fumio’s letter, at least in the areas of law and politics. As stated above and below, Japan provided various forms of support to China of the late Qing Dynasty in terms of political reform and law amending 30 and branded China’s political reform and law amending with a deep Japanese mark, so that the modernization of Chinese law began with Japanization.

II. Selection of Channels and Approaches by China of the Late Qing Dynasty for Succession of Modern Japanese Law

Aer China of the late Qing Dynasty had determined the target country for succession, in terms of the channels and approaches for the succession, several fairly effective methods were adopted including studying aboard, translating foreign texts, making survey trips and hiring for-eign experts. First of all, studying in Japan during the late Qing Dynasty can indeed be compared to the grand occasion of Japan dispatching envoys to the Tang Dynasty in those years. 31 Slightly differ-ently yet far better, among the Chinese students studying in Japan, quite a large group of students studied law and politics. 32 There were many rea-sons for this. One interesting reason was that those who studied law and politics could later become government officials, which conformed to the Chinese value orientation of official standards. Of

27 For example, on October 27, 1899, one military officer dispatched by Sichuan Province wrote in his diary aer visiting the newly appointed Japanese chief of the general staffŌyama Iwao with one peer that: »We visited the Japanese chief of the ge-neral staff Marshal Ōyama Iwao to-day and talked about uniting efforts today. He said with utmost modesty and sincerity that since the Tang Dy-nasty, Japan had learned food, drink, garment, daily life and knowledge etc. from China. Today, Japan is wil-ling to assist China, not only because China and Japan are so closely related and share common interests, but also

because Japan wants to pay a debt of gratitude.« (Quoted from a secondary source, S K [1983] 115).

28 Quoted from R (2006) 32–33.

29 See also R (2006) 32.30 Among which the crash plan of law

and politics made in response to China’s need for talents in law and politics had a profound influence. This plan started from the first batch of 94 students in May 1904 (of which 67 students graduated in April 1905), ended with the fih batch of 843 students at the end of 1906 (of which 385 students graduated in April

1908). Japan dispatched the then most famous scholars as teachers, such as Me Jiro, Shida Kotaro, Okada Asataro and Oka Shigejiro. Except for Me Jiro, the other three scholars were all foreign experts hired by China of the late Qing Dynasty for law amen-ding, who compiled almost all the dra laws proposed by the Law Amending Council. Through this plan, talents in law and politics and professional knowledge rapidly pass-ed on to China (see also R[2006] 56–58).

31 See also S K (1983).32 See also W X, O S

(eds.) (1996) 323.

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course, the urgent need and practicality of law and politics at that time may be one of the reasons; especially the scholarly notion of »Every man has a duty to his country« played an important role at that time. For example, the Studying Abroad Year Book edited by the students studying in Japan cast light on the true state of mind of many students who studied in Japan in order to save China from extinction: »We traveled over a thousand miles to study in Japan, cutting through the big wind and waves on our way. We are living away from home and country, and treating the hardships we suffered as sweetness. Why are we so eager to study in Japan? When the thousands of students studying in Japan are asked about their aspirations, there is no one who does not say that we so much fear that the China’s political situation is dire, that the knowledge is not acquired, that society is corrupt-ed, that China’s territory is shrinking daily and our powerful neighboring country is trespassing. We would rather sacrifice our comfort and pleas-ure for the moment, be conscientious and do our best, in order to get long-lasting and indefinite future happiness, which is our great wish.« 33 We can get a general idea about the specific reasons why Chinese people studied law and politics in Japan in the late Qing Dynasty and its unprece-dented splendor from the research conducted by Professor Wang Jian. 34

So, many talented students who studied law and politics in Japan provided a lot of intellectual support for the succession of modern Japanese law by China of the late Qing Dynasty. Transla-tion of books was one of the direct benefits. According to statistics, from 1902 to 1904, the quantity of translated foreign books reached about 533 varieties, of which only 130 varieties in West-ern foreign languages came from Britain, the United States, France and Germany, accounting for 24.5%; however, 321 varieties were translated from Japanese, accounting for 60.2%. 35 From 1896 to 1911, of the 958 varieties of books trans-lated from Japanese into Chinese, 778 varieties

were related to social sciences, accounting for 81.2%, of which politics and law amounted to the as many as 194 varieties. 36 Professor Li Gui-lian’s study also reveals that the Law Amending Council led by Shen Jiaben translated into a total of 103 varieties of books in four batches, of which 38 varieties of books were translated from Japanese into Chinese, accounting for about 38% of all translated books. 37 These two statistics also reveal the significance of translations in the succession of foreign laws by China of the late Qing Dynasty and the Japanese inclination thereof. Just as Shen Jia-ben said, »Consulting the laws of other countries and putting the most emphasis on the translation of books.« 38 Apparently, the translation of Japa-nese legal materials was the priority in translation of books.

In the 33rd year of the Guangxu Period (1907), the secretary in charge of law amending Shen Jiaben, also found that what was equally important in the translation of books was conducting inves-tigations and surveys. He put forward in his me-morial that:

What is equally important in the translation of books is conducting investigations. In recent years, the quantity of people studying aboard has become large, and various political and law books have been compiled and translated. Although some points in these books can be used as reference, the books on a whole either stick to one type of theory, or are not about current legal systems; therefore, none of these books could be relied upon as invariable stand-ards. Last year I submitted a memorial recom-mending Dong Kang, the Houbulang of the Ministry of Punishment etc. to go to Japan to inspect its legal systems. They only investigated the Japanese sentencing and prisons before they returned to China due to insufficient funds, let alone investigate European and American legal systems. That’s why more investigations should be conducted. 39

33 Book of Students Studying in Japan, Tokyo Intelligence Inspiring Press, 13. Quoted from a secondary source:W X, O S (eds.) (1996) 317–318. Chinese students studying in Japan indeed made very important contributions to the re-

form in the late Qing Dynasty, for details see also: Chinese Students Studying in Japan and the Reform in the Late Qing Dynasty (2002).

34 See also W J (2001) 76–112.35 See also H F (1983), the

statistics cited 183–185.

36 W X, O S (eds.) (1996) 328.

37 See also L G (1994) 30.38 See also Records and Historical Ma-

terials (1979), second volume, 838.39 See also Records and Historical Ma-

terials (1979), second volume, 838.

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Zhang Zhongqiu 185

The field survey of legal systems started with the survey of politics by five government officials of the Qing government. Actually, it was all inspired by Japan and proceeded to treat Japan as a role model. Therefore, as early as in the 31st year of the Guang-xu Period (1905), Shen Jiaben and Wu Tingfang had especially submitted memorials to petition for it. They held the view that »at the beginning of the Japanese law amending, Japan had dispatched officials to France, Britain and Germany several times to learn the essence of Western European legal theories and import them to Japan. Then Japan gathered together the strong points of other countries’ laws and compiled its complete code. The Japanese litigation laws, its sentencing and prison regulations and penal system are all brilliant and complete. As a result, Japan is able to make all the foreigners residing in Japan willing to be bound by its laws and to exercise jurisdiction by itself. The key reason for this is that Japan has repeatedly dispatched officials to conduct sur-veys.« 40 Therefore, in the 32nd year of the Guangxu Period (1906), as recommended by Shen Jiaben, Dong Kang, et al. were authorized to go to Japan to make an inspection on the matters related to sentencing and prisons. 41 In the first year of the Xuantong Period (1909), Li Jiaju, a high govern-ment official in charge of the inspection of con-stitutionalism, was also dispatched Japan to make an inspection of its judicial system. Li Jiaju sug-gested in his inspection report that, »China should now prepare provisional constitution making. There are several key points for this. The first one is independence of trial and decision, which should be prepared in earnest; the second one is judicial personnel, who we should train with special care; the third one is codification of the penal code, which needs to be divided into several stages; the fourth one is civil code and commercial code, for which we should investigate customs; the last one is civil procedure and criminal procedure law, which need to be codified as soon as possi-

ble.« 42 Judging from the historical facts, the above suggestions played a practical part in the political reform and law amending in the late Qing Dynasty, and hence we can see that investigations and surveys played an important role in the succession of modern Japanese laws by China of the late Qing Dynasty.

Another important approach for succession of modern Japanese laws by China of the late Qing Dynasty was to directly hire Japanese experts to participate in China’s legislation and legal educa-tion. Under the approval of Shen Jiaben, the Japanese experts were sent to China at the time to participate in the lawmaking, including Okada Asataro, Matsuoka, Shida Kotaro and Oka Shige-jiro. Okada Asataro mainly took charge of draing the criminal law and organization law of courts, Matsuoka took charge of draing the civil law and litigation law, Shida Kotaro took charge of draing the commercial law and Oka Shigejiro took charge of draing the penal law. Considering the accom-plishments of law amending in the late Qing Dynasty, all foreign experts of law hired by the Qing government seemed to be Japanese and they participated in the making of almost all new laws. 43 Dong Kang, who participated throughout the law amending, said that, »the Law Amending Council was established upon request aer the chaos in the year of Gengzi. At first it was on the former site of the Code Council. Later it was expanded to set up a law school. Japanese doctors of law were hired to participate in the codification, including Dr. Okada, Dr. Shida and Dr. Matsuoka et al. The dras of six major laws were all from Japanese doctors of law.« 44 The Japanese experts draed laws for the Qing government and partici-pated in the legislative debates following the mode of the then Japanese laws, consequently the dra laws made by the Law Amending Council of the Qing Dynasty were referred to by some people at that time as »Japanese Laws.« 45 The appropriate-ness of such reference aside, one point is clear: the

40 Quoted from L J, I O(eds.) (1996) 203.

41 See also H Q et al. (eds.) (2005) 638–699, Report on Inspec-tion of Japanese Sentencing and Pri-sons.

42 See also Records and Historical Ma-terials (1979), second volume, 879.

43 In China’s modern history, besides Japanese, foreign experts from Eu-

rope and the United States, such as Hart, William Alexander Parsons Martin, Padoux, Blume, Escarra, Lo-bingier, Goodnow and Pound et al., participated in China’s law amend-ing. But those who actually partici-pated in the law amending seemed all to be Japanese experts in the political reform and law amending in the late Qing Dynasty. For related informa-

tion, see: Western Laws Introduced into China: Foreigners and the Re-form of Chinese Law in Modern Times (2001).

44 H Q et al. (eds.) (2005) 469.45 See also L G (1994) 30–32.

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effect of the Japanese factor in the primary state of the modernization of Chinese legal system does not seem to be less than the influence Tang Law exerted on Japan in those years.

When the Japanese experts were hired to partic-ipate in the lawmaking of the late Qing Dynasty, Japanese teachers were also hired to provide sup-port for China’s law education. The above-men-tioned four Japanese experts were all part-time teachers at Imperial University of Peking as well as holding the position of investigators of the Law Amending Council. We can know from the List of Japanese People Hired by the Qing Empire edited by the Japanese Ministry of Foreign Affairs in 1909 that, at the time there were 405 Japanese teachers in China, of which 19 teachers were teaching law and politics, 3 teachers were teaching policing, and the other the remaining subjects 241 teachers were teaching were unspecified. The teachers teaching law and politics and policing were outnumbered only by those teaching industry (39) and science (34), and were more than those teaching other subjects. 46 In this respect, we can see the deep relationship between China’s modern legal educa-tion as part of the legal culture and hiring of Japanese experts.

In terms of determining the contents and se-quence of selection of foreign laws for the purpose of succession, China of the late Qing Dynasty, under the stress of the circumstances, considered Western countries at first instead of Japan with a preference given to international law. Lin Zexu set a precedent. For the 20 years aer the Opium War, it was still the same case. According to the data collected by later generations, over a period of over 30 years from 1861 to the eve of Wuxu Reform Movement, over 18 kinds of laws were translated, of which 8 kinds were public international laws, 3 kinds were judicial judgment laws, 3 kinds were military laws, and 4 kinds were other laws. In addition, the translation of legal treatises had not yet started. Surprisingly, none of these translated works were from Japan. 47 This is enough to show that before the Wuxu Reform Movement, the Chinese people still focused on Westerns’ powers

and had not yet taken note of the Japanese laws. However, aer the Wuxu Reform Movement (par-ticularly the start of the political reform and law amending) China of the late Qing Dynasty had not only noted the advanced character and con-venience of modern Japanese law, but also re-garded the succession of Japanese law as its mis-sion. However, facing the entirety of Japanese, in terms of selection of contents and the sequence of selection, the Qing government did not seem to have established a unified plan. Perhaps, precisely because of a process review and the result of a modern perspective, the selection seemed to have some sort of order.

According to my observation, the law, legal experts and legal doctrines were introduced almost around the same period, which should be related to the guidelines of the Law Amending Council led by Shen Jiaben on law amending. He even put forward that the translation of books, surveys and compilation were equally important and import of laws, the introduction of science of law and the hiring of experts should be carried out at the same time. 48 However, in terms of the succession of law and the science of law, international law was not mentioned with preference. Instead, criminal law, administration of justice and penal law were made a priority. This is evidenced by Japanese law and legal treatises translated by the Law Amending Council, as recounted by Shen Jiaben. The trans-lated works spanning four batches include, Japa-nese Current Criminal Law, Japanese Amended Crim-inal Law, Japanese Army Criminal Law, Japanese Criminal Procedure Law, Japanese Prison Law, Japa-nese Tribunal Organic Law, Lectures on Japanese Criminal Law, Japanese Criminal Law Theory, Japa-nese Prison Visiting Record, Japanese Dra New Crim-inal Law, Code Theory, Penology, On Prison Affairs, Japanese Tribunal Organization Legislative Theory, Japanese Commercial Law, Japanese Civil Law (Un-finished), Japanese Bankruptcy Law Theory by Kato Masaharu, Japanese Measures on Foreign Countries aer Amendment of Treaties, Japanese Amended Crim-inal Procedure Law, Japanese Current Civil Procedure Law, Outlines of Nationality Law and Memorandum

46 Quoted from W X, O S (eds.) (1996) 338.

47 See also L G (1994) 24.48 See also Records and Historical Ma-

terials (1979), second volume, 837–839.

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Zhang Zhongqiu 187

by Investigator Shida Kotaro, Japanese Civil Procedure Law Annotated, Japanese Criminal Procedure Law Theory, Japanese Civil Procedure Law Outlines, Japa-nese Inheritance Law by Okuda Gijin, Okuda Civil Procedure Law, Japanese Law Dictionary, and the uncompleted translation work Civil Law Rational, General Principles, Right in Rem and Right in Perso-nam written by Matsuoka Taro. We can see from these translated works that although some were on private law, such as civil law and commercial law, they were limited in quantity compared with criminal law, administration of justice, judgment and the penal law, which were public laws. To-gether with the fact that the dra constitution of the late Qing Dynasty was mainly based on the Meiji Constitution, 49 we can gain an impression of the selection of modern Japanese legal culture for succession by China of the late Qing Dynasty in that the law, science of law and legal experts were introduced almost around the same period, that more emphasis was put on public law rather than the private law, and that the criminal law, admin-istration of justice and the penal law were given priorities.

China of the late Qing Dynasty made such a selection for some reasons. Considering the data on hand, the most critical factor is revoking con-sular jurisdiction. Consular jurisdiction was origi-nally a consequence of the excuse given by Western powers that the laws of the Qing Dynasty, i. e., criminal law, trial and penal law, were those of a barbaric and backward state. 50 So, the amending of relevant laws in this sense was directly related to the revoking of consular jurisdiction. Although this was more of an excuse for the Western powers, the Qing Dynasty, who was already in a weak position, had no choice but to take it seriously.

As Shen Jiaben quoted, referring to a Japanese legal expert’s insistence on the notion that only one method of capital punishment should be reserved, »as Doctor Okada put it, a lot of countries have abolished capital punishment. Those who preserve capital punishment all adopt only one execution method. Nowadays, if China were to improve its penal law while still preserving two execution methods of capital punishment of decapitation and hanging as against the world trend, foreigners reading the amended penal law in the future would still view it as a barbaric and uncivilized law, which would definitely be a big hindrance to the reclamation of our rights and the correction of the treaties.« 51

Another factor related to consular jurisdiction is that the Western powers, by signing certain treaties, once sought to abandon their judicial privileges in China as soon as the reformed penal system of the Qing government had conformed to the legal norms. 52 Although such treaties were later proved insincere, they nonetheless exerted influence on the Qing government’s selection. Ac-cording to the records of Manuscript of the History of Qing Dynasty – Treatise on Penal Law,

aer the year of Geng Zi of the Guangxu Period (1900), the Western countries remade treaties and the Chinese government pushed to have the Western countries revoke such treaties; how-ever, the ambassadors of these countries refused on the ground that the Chinese legal system was still not perfect. Only when the Chinese govern-ment forced the issue did these Western coun-tries announce that they would agree to aban-don the consular jurisdiction if the trial could be improved in the future. This announcement

49 See also L Z (comp.) (1976) 137–148.

50 Shen Jiaben stated in his memorial submitted to the emperor that »we did a careful comparison between Chinese law and the laws of other countries and found that although the spirit of the laws of other coun-tries is within the sphere of Chinese law, the penal systems and charges are different. In general, the penal laws in Western countries are usually less se-vere than that of China … Therefore, Westerners oen criticize the Chinese severe punishment as cruel, and the foreigners residing in China all use

this as an excuse to be free from the Chinese law … Revoking extraterri-toriality in the first place is key to China’s political reform and self-reli-ance.« (Shen Jiaben, Corpus of Ji Yi, Volume 1, Memorial on Abolition of Severe Punishment in the Penal Law.)

51 Shen Jiaben, Corpus of Ji Yi, Volume 3, Notion of Only One Execution Method for Capital Punishment.

52 In the 28th year of the Guangxu Pe-riod (1902), the Qing government entered into the Renewed Treat of Commerce and Navigation with Bri-tain, Article 12 of which provided

that »China desires deeply to amend its laws in order to have the same laws with Western countries, Britain un-dertakes to use its best endeavors to assist China in this regard. Once Bri-tain is satisfied to find that the laws and trials in China and all other matters related thereto have reached perfection, Britain is willing to re-nounce its extraterritoriality.« (New Decrees of Guangxu Period in the Qing Dynasty, sixth book, page 18). Later, the Qing government renewed this treaty with other powers.

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was recorded in the treaties. Therefore, the Law Amending Council was established in the 28th

year of the Guangxu Period (1902) under the imperial decree »consulting laws of other coun-tries to achieve adaptability to both domestic and foreign circumstances according to the negotiation situations« with the purpose to amend the laws in order to make the Western countries give in. Diplomacy depends on na-tional strength, so the once lost rights cannot simply be reclaimed by words. Therefore, even though law amending has always been empha-sized, it produced little effect by the time the cornerstone of a nation was damaged. The legal system should not take the blame.

If we discuss these issues further, we will find that such selection in the late Qing Dynasty also had a certain inherent connection with the tradi-tion of Chinese legal culture. The Chinese legal

culture has a long history. However, it has been basically characterized by a criminalized public law culture. The civil law and commercial law have had no corresponding basis and have been curbed by criminal law, and thus have not developed well. Thus, traditionally, China’s regulation of various social relations had mostly relied on the criminal law and the criminal-law-like administrative laws and regulations, which had basically not been changed till the late Qing Dynasty. Without doubt, such a tradition of legal culture would have un-doubtedly exerted influence on the selection of foreign laws by China of the late Qing Dynasty for succession. From a legal transplantation point of view, this reflects the »theory of legal culture identity,« 53 as coined by the Japanese jurist Pro-fessor Masaji Chiba.

n

Bibliographyn Chinese Students Studying in Japan and the Reform in the Late Qing Dynasty (2002), Nanchang: Jiangxi Education Pressn E, C et al. (1986), Story of Li Hongzhang Visiting Europe and the United States, in: Towards the World Series, edited by

Z S, first part, ninth book, Changsha: Yuelu Publishing Housen H Q et al. (eds.) (2005), Dong Kang’s Corpus of Law, Beijing: China University of Political Science and Law Pressn H F (1983), Students Studying in Japan in the Late Qing Dynasty, Taipei: Taiwan Central Research Instituten H Z (2006), The Records of Japan, punctuation collating by W Z et al. first volume, Tianjin: Tianjin

People’s Pressn K Y (1998), The Sixth Written Statement Submitted to Emperor of Qing Dynasty, in: K Y, Political Essays,

edited by T Z, Beijing: Zhonghua Book Companyn K Y (1980), History of Japanese and Chinese Cultural Exchange (translated by Hu Xinian), Beijing: The

Commercial Press n L G (1994), The Law Reform in Modern China and the Japanese Influence, in: Research of Comparative Lawn L Y, L Z (coll.) (1987), Memorials Submitted by Yuan Shikai, Tianjin: Tianjin Ancient Books Publishing

Housen L J, I O (eds.) (1996), Outline of History of Chinese and Japanese Cultural Exchange – Legal System Volume,

Hangzhou: Zhejiang People’s Pressn L Z (comp.) (1976), Research on Modern Chinese Legal System Evolution, Taipei: Zhengzhong Book Companyn M C (1997), Legal Diversity: from the Japanese Legal Culture to General Theory (translated by Qiang Shigong et al.),

Beijing: China University of Political Science and Law Press

53 According to Masaji Chiba, »the theory of legal culture identity main-tains the identity of legal culture and also promotes the change of its con-stituent variables in order to adapt to constantly changing circumstances. The motivation for change may be societal, i. e., the internal activity of legal subjects (which cultivates legal culture), and may also come from

external stimulation. In whichever situation, the theory of identity is presumed to provide a certain stan-dard to legal subject, a kind of society of legal culture. This standard pro-motes and also limits the selection by the subject in terms of how and to what extent should the current legal system, society, legal order and legal culture be amended, replaced and

preserved, in particular, how and to what extent should the legal system assimilate or reject local and extrater-ritorial factors« (see M C[1997] 179, and above and below.)

Fokus focus

Zhang Zhongqiu 189

n Records and Historical Materials (1979): The Records and Historical Materials of the Preparation for Establishing Constitu-tionalism in the Late Qing Dynasty, ed. by the Archives Department of Ming and Qing Dynasties of the Palace Museum, Beijing: Zhonghua Book Company

n R, D (2006), China: 1898–1912: The Xinzheng Revolution and Japan (translated by Li Zhongxian), Nanjing: Jiangsu People’s Press

n S T (1992), General Introduction of History of Japan (translated by Wang Xiangrong et al.), Beijing: The Commercial Press

n S K (1983), History of Chinese People Studying in Japan (translated by Tan Ruqian et al.), Beijing: Joint Publishing Company

n W J (2001), The Law Education in Modern China, Beijing: China University of Political Science and Law Pressn W X, O S (eds.) (1996), Outline of History of Chinese and Japanese Cultural Exchange – History Volume,

Hangzhou: Zhejiang People’s Pressn Western Laws Introduced into China: Foreigners and the Reform of Chinese Law in Modern Times (2001), Beijing: China

University of Political Science and Lawn Y S, M K (eds.) (1996), Outline of History of Chinese and Japanese Cultural Exchange – Ideology

Volume, Hangzhou: Zhejiang People’s Pressn Z S (ed.) (1958), Records of Imperial Government in Guangxu Period, Beijing: Zhonghua Book Companyn Z W, L Y (comp.) (2000), Records of Old Dreams of the Reform: the »Self-Reform« Movement of China a

Hundred Years before Wuxu, Beijing: Joint Publishing Company

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Eugenio R. Zaffaroni,Guido L. Croxatto

El pensamiento alemán en el derecho penal argentino*

1 El pensamiento alemán de influencia directa

Los pensadores de un país pueden influir sobre los de otro en forma directa, lo que sucede cuando un autor o corriente son adoptados expresamente, o bien indirecta, cuando su pensamiento se recibe a través de su contribución a la cultura general.

La tradición del pensamiento jurídico argentino – salvo en derecho constitucional 1 – es casi exclu-sivamente europea continental y, por ende, la in-fluencia alemana también se recibió por vía indi-recta, a través de su aporte a la cultura jurídica europea y, en especial, a la de vertiente iluminista y liberal.

Si bien la Constitución Nacional de 1853–1860 desde el proyecto de Alberdi 2 recogió el modelo político norteamericano, por ser el que se hallaba más a la mano en su tiempo, 3 impone la legisla-ción por códigos 4 y, además, una de sus normas más definitorias, que marca el carácter personalista de todo el derecho argentino, trasunta tradición iluminista europea. 5

Rastrear la influencia indirecta del pensamiento alemán en nuestro derecho penal requeriría una muy paciente investigación, debido a su gran incidencia en el pensamiento penal europeo en general. 6 No nos proponemos ahora llevar a cabo semejante tarea ciclópea, sino ocuparnos de la influencia directa, verificable en las fuentes históri-

* Conferencia brindada en el Max-Planck-Institut für europäische Rechtsgeschichte (MPIeR), en septiembre de 2013, con ocasión de un Coloquio en el MPI sobre Historia del Derecho Europeo. Este texto fue elaborado con la colaboración aguda de Guido L. Croxatto, doctorando en Derecho en Alemania.

1 En las primeras décadas después de 1860 se tradujeron varias obras de interés constitucional del inglés: G (1870), T (1874), P (1888), C (1866) y tam-bién El Federalista (Buenos Aires 1887). Esta fuente constitucional ge-neró algunas contradicciones que permanecen en la doctrina y juri-sprudencia argentinas, porque si bien el estado siempre fue – en el plano teórico al menos – constitucional de derecho, con control difuso de cons-titucionalidad de las leyes, el grueso de la doctrina jurídica se importó desde países que no conocían el con-trol de constitucionalidad.

2 En 1852 publicó en Chile Bases y puntos de partida para la organización política de la República Argentina, de-rivados de la ley que preside el desarrollo de la civilización en la América del Sud, cuya 2ª edición del mismo año fue acompañada por su Proyecto de Cons-

titución. La bibliografía sobre la obra y el pensamiento de Alberdi es enorme. Entre los últimos trabajos puede ver-se: Q-W (2011).

3 Al surgir el constitucionalismo mo-derno sólo se disponía de los modelos norteamericano, inglés y francés, cfr. M (1998) 24.

4 El inciso 11º del artículo 67 en su versión original de 1853–1860 dispo-nía que el Congreso debía: Dictar los códigos Civil, Comercial, Penal y de Minería … De esta manera dejaba claro que el Congreso Federal debía legislar penalmente en forma de có-digo y no anárquicamente. No es posible desvincular el origen del mo-vimiento codificador moderno del enciclopedismo europeo.

5 Se trata de la primera parte del artí-culo 19º constitucional, que reza: Las acciones privadas de los hombres que de ningún modo ofendan al orden y a la moral pública, ni perjudiquen a un ter-cero, están sólo reservadas a Dios, y exentas de la autoridad de los magistra-dos. Esta disposición se encuentra desde los primeros ensayos constitu-cionales de 1815 y fue inspirada por Monteagudo y por el Presbítero An-tonio Sáenz, primer catedrático de derecho natural y de gentes (cfr. S [1975]). En la disyuntiva de

Radbruch y de Max Ernst Mayer entre derecho personalista o transpersonalista(cfr. M [1937] 156), la opción del art. 19º constitucional por el primero no puede ser más clara.

6 Puede dar una remota idea de esta complejidad echar mano de trabajos de autores de diferentes épocas y paí-ses: C (1953); S (1932); S (1951); V (2011); D / S / V(2012); etc. De toda forma, esto no muestra los vínculos más complica-dos, como el hegelianismo penal alemán con el italiano del sur; del krausismo con Röder, la discusión con Carrara y la adopción por el co-rreccionalismo español de Concep-ción Arenal; de la controspinta de Romagnosi con la psychologische Zwang de Feuerbach; y muchísimos otros entrecruzamientos más com-plejos.

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192 El pensamiento alemán en el derecho penal argentino

cas, 7 la que tuvo lugar en dos niveles: el de la codificación y el de la doctrina, es decir, el legislativo y el científico, que corresponden a los dos capítulos en que dividimos la siguiente exposición. 8

2 El origen de la codificación penal argentina

Mientras varios países de América Latina san-cionaron códigos penales a pocos años de la inde-pendencia, 9 la Argentina fue el último en hacerlo, lo que no sólo obedeció a las dificultades y luchas previas a su unidad política, sino también a que las clases subalternas se controlaban punitivamente con el viejo sistema de incorporación forzada a los ejércitos 10 y con la aplicación arbitraria de las leyes españolas. Una única tentativa de codificación penal previa a la unidad política – en 1829 – careció de toda consecuencia ulterior 11 y buena parte de su texto se ha perdido. La unidad política – con

sus luces y sombras – se alcanzó en 1860 y poco después comenzó la tarea de codificación penal.

Nuestro primer codificador fue el catedrático de la Universidad de Buenos Aires, Carlos Tejedor (1817–1903), quien al recibir el encargo 12 tomó como modelo básico el texto bávaro 13 a través de la traducción francesa de Vatel, 14 pese a que en su obra general se nutría preferentemente de doctrina española y francesa. 15 Es curioso señalar que mien-tras Alemania se unificaba y adoptaba como base del StGB del Imperio el código prusiano, 16 en la Argentina se debatía y sancionaba el código penal de Baviera de Anselm von Feuerbach. 17

El proyecto que remitió Tejedor en 1865 y 1867 18 obtuvo vigencia en casi todo el territo-rio 19 y fue sancionado en el Paraguay, 20 aunque en el orden nacional su sanción se demoró con la intervención de una comisión revisora que elevó otro proyecto diferente, cercano al español de 1870, 21 como también por cierta antipatía hacia

7 Excede el marco de esta exposición lo referente a la criminología y a la cri-minalística.

8 En el texto se observará que no po-demos aislar por completo el tema de los otros países de América Latina, debido a la circulación bibliográfica que siempre ha existido.

9 El primero fue el código penal de El Salvador de 1826 (M, Código Penal del Estado decretado por la Legis-latura el 13 de abril de 1826, T. I., 386); en Bolivia, Código penal Santa-Cruz, Paz de Ayacucho, 1831; en Ecuador, Código penal de la República del Ecua-dor sancionado por la Legislatura de 1837; en México, Código Penal de 1835 del Estado de Veracruz (en «Derecho Penal Contemporáneo», 1965); en Brasil el Código Criminal do Império do Brasil, 1830; etc.

10 Este control provenía de las leyes co-loniales de leva. El protagonista del poema narrativo Martín Fierro, escrito por José Hernández en 1872 y que se considera poema nacional argentino, sufre esta medida de seguridad de con-trol punitivo.

11 Se tienen muy pocos datos de la pri-mera iniciativa, llevada a cabo en tiempos del Gobernador Dorrego en Buenos Aires, y también de su autor, del que algún historiador afirma que se trataba de un espía francés, B (1829).

12 El 6 de junio de 1863 el Congreso autorizó al Poder Ejecutivo para de-signar a los redactores de los distintos códigos. Por decreto del 5 de di-ciembre de 1864 se designó a Carlos Tejedor para redactar el del Código Penal.

13 Cabe observar que quizá la segunda fuente tomada por Tejedor fue el Có-digo Criminal do Império do Brasil de 1830, sobre el que ejerció influencia el proyecto de Livingston para Louisia-na, al que no había sido del todo ajeno el código de Baviera. El Código Criminal influyó sobre la codificación española de 1848–1850 (reformada en 1870), que volvió como modelo a varios países latinoamericanos.

14 V (1852). El Prof. Thomas Duve ha observado que incluso los defectos de la traducción de Charles Vatel – del código de Baviera, utilizado como referencia por el codificador argenti-no (la inmensa mayoría de nuestros teóricos manejaban y manejan el francés mejor que el alemán, razón por la cual gran parte de la filosofía alemana en general, y no solo de la filosofía del derecho en particular, ha sido mediaba por las traducciones francesas) están presentes en el proyecto de Carlos Tejedor, D(2005). La reflexión del Prof. Duve es interesante en un segundo aspecto más general: la importancia – no

siempre atendida – del lenguaje en la filosofía y en el Derecho.

15 T (1860).16 Cfr. V (2011) 85.17 Damos cuenta de este origen en

Z (2008).18 T (1866).19 Dada la inseguridad que daban las

leyes coloniales, las provincias fueron sancionando el texto de Tejedor para suplir la omisión del Congreso Fede-ral. Así lo hicieron La Rioja en 1876, Buenos Aires en 1877, Entre Ríos, San Juan, Corrientes, San Luis y Cata-marca en 1878, Mendoza en 1879, Santa Fe y Salta en 1880 y Tucumán en 1881. En 1881 el propio Congreso Federal lo sancionó con vigencia para la Ciudad de Buenos Aires (ley 1.144). (Cfr. N [1945] 35; N[1955–1956]; G B [1978]).

20 La ley paraguaya dispuso: «Declárase ley de la República el Código de la Provincia argentina de Buenos Aires, con las modificaciones, supresiones y adiciones hechas en la siguiente re-producción de su texto» (cfr. M O [1899] 40).

21 T / V / U / G- (1881).

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Eugenio R. Zaffaroni, Guido L. Croxatto 193

su autor, debida a su alto protagonismo político, 22hasta que finalmente, en 1886 fue sancionado por el Congreso Nacional con modificaciones que en alguna medida lo distorsionaban, pero mantenían su fisonomía y sistemática. 23

Cabe señalar que la única legislación penal importante hasta ese momento era la ley 49 de 1863, 24 que tipificaba los delitos federales contra la Nación, sin parte general. 25 El código penal de 1886 dejó vigente la ley 49, de modo que sólo tipificaba los delitos que juzgaban los jueces pro-vinciales.

3 La matriz alemana en la codificación posterior

Al tiempo de su sanción, el código de 1886 – en especial por las antojadizas reformas introducidas

en el Congreso – era un texto anticuado para la época. El gobierno encargó 26 a tres jóvenes profe-sores – fundadores de la Facultad de Filosofía y Letras de Buenos Aires – un nuevo proyecto, ele-vado en 1891, 27 que se nutría de códigos más re-cientes, principalmente del holandés, del italiano y del húngaro, 28 aunque también mencionaba el código belga 29 y la ley francesa de deportación. 30

El proyecto de 1891 no fue tratado por el Con-greso Nacional y a partir de los primeros años del siglo pasado comenzó un complejo proceso que culminó en la sanción del código penal de 1921 que, casi destruido con unas novecientas reformas y derogaciones parciales, continúa en teoría vigente hasta hoy. 31

En 1903 se sancionó una reforma parcial al código penal que introdujo – entre otras cosas 32– la pena de relegación del proyecto de 1891. 33En 1904 el gobierno nombró una nueva comi-

22 Tejedor fue elegido gobernador de la Provincia de Buenos Aires en 1878 y en 1880 aspiraba a la presidencia de la República, cuando el gobierno fede-ral decidió federalizar la ciudad de Buenos Aires, contra lo cual Tejedor sublevó a la Provincia, dando lugar a la última guerra civil del siglo XIX, que costó unos cuatro mil muertos. Al año siguiente se publicaron los debates que tuvieron lugar en la Le-gislatura de Buenos Aires (1881) y Tejedor publicó un libro justificando el episodio, T (1881).

23 El debate en las Cámaras se conserva en los Diarios de Sesiones de Diputa-dos y Senadores de 1885 y 1886. Se sancionó como ley 1.920 y la edición oficial es del año siguiente.

24 El 14 de setiembre de 1863, el pre-sidente Mitre promulgó la ley 49, sancionada por el Congreso Federal el mes anterior: Ley designando los crí-menes cuyo juzgamiento compete a los tribunales nacionales y estableciendo su penalidad.

25 La ley 49 respondía a la necesidad del Ejecutivo Nacional de llevar adelante como guerra de policía la represión de las sublevaciones provinciales, espe-cialmente la del Gral. Angel Vicente Peñaloza en el norte, quien al mes siguiente de esta sanción fue asesina-do por fuerzas federales (cfr. R[1974] VII, 35). Se atribuye el texto de esta ley a los ministros de la primera Corte Suprema de Justicia nombra-

dos por Mitre (cfr. Maier [1989] I 178).

26 La Comisión fue designada por de-creto del Presidente Juárez Celman del 7 de junio de 1890. El presidente sería derrocado por una revolución un mes más tarde y su mandato lo terminó el vicepresidente, Carlos Pellegrini.

27 P / R / M(1891).

28 Se disponía de los textos en italiano y francés: Code Pénal des Pays-Bas (3 Mars 1881) traduit et annoté par W-J W, París 1883; G C, Il Codice Penale per il Regno d’Italia (Approvato dal R. Decreto 30 Giugno 1889), Torino, 1889; Code Pénal Hongrois des cri-mes et des délits (28 Mai 1878), París, imprimé par ordre du gouvernement à l’imprimerie nationale, 1885. Sobre Antony Ewoud Jan Modderman, puede verse H (1925) 219.

29 N (1872); H (1874).30 T (1893); B (1857).

Sobre el desastre de la previa coloni-zación en la Guayana M (1895).

31 Desdibujando la idea de sistema (consistente, y coherente) de normas como rasgo esencial de un código. A su vez esta idea (sistema consistente y coherente de normas jurídicas), que define a todo código, solo se puede lograr de una manera: respondiendo a una precisa filosofía que de forma,

programa, postulados, y objetivos. Precisamente es lo que ha faltado con las sucesivas, dispersas, antojadizas y muchas veces antagónicas reformas: una filosofía. Un pensamiento integ-ral, unificado, codificado. Un código. En este sentido estudiar la obra de penalistas como Anselm von Feuer-bach resulta clarividente: su código de Baviera es la expresión cabal de un pensamiento. Solo un pensamiento unificado puede dar sentido y funda-mento a un código. El todo es siempre mayor a la mera suma de las partes. Esta máxima sirve también para pensar la codificación.

32 Código Penal de la República Argentina y ley de reformas del 22 de agosto de 1903; H (1911) afirmó que esta ley conservó lo peor y derogó lo mejor. Una fuerte crítica a esta ley le formuló en futuro artífice del código de 1921: M (1908).

33 Este dispositivo sirvió para nutrir el penal de relegación más austral del mundo, en Ushuaia, que funcionó hasta 1947, construido por el arqui-tecto italiano C. Muratgia (Ministerio de Justicia e Instrucción Pública, Proyecto de reformas carcelarias, Informe de la Comisión Especial, 1913). Sobre los detalles del proceso que culminó en la relegación en Ushuaia: B(1980).

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sión 34 que en 1906 presentó un proyecto que se-guía muy cercanamente al de 1891 y que tampoco mereció atención del legislativo. 35

En 1916 el diputado Rodolfo Moreno (h) 36 de-sempolvó el proyecto de 1906 y lo presentó a la Cámara de Diputados, logrando que ésta creara una comisión especial, formada por conservadores, radicales y socialistas, que eran los tres partidos con representación parlamentaria en ese momento. De este modo, después de algunas alternativas logró la sanción del código penal de 1921. 37 El nuevo código incorporó los delitos federales (ley 49), de modo que fue el primer cuerpo legal que tipificó en un único código penal todos los delitos, cum-pliendo acabadamente el mandato constitucional.

Uno de sus mayores méritos es su sobriedad en cuanto a definiciones limitadoras de la construc-ción científica, lo que ha facilitado la evolución doctrinaria y jurisprudencial. 38

Dos son los aspectos que cabe destacar acerca del pensamiento penal alemán en el texto de 1921: la influencia de los proyectos suizos 39 y la conserva-ción de la matriz bávara.

Si bien los proyectos suizos se mantenían al margen de las reformas alemanas, es evidente la

cercanía de Karl Stooss con von Liszt en cuanto a la doble vía de penas y medidas. 40

La influencia de los proyectos articulados por Stooss es clarísima al menos en dos puntos: en la introducción de la atenuante de emoción violen-ta en la parte especial, 41 que reemplazó al viejo uxoricidio por adulterio, denostado en la doctrina argentina de su tiempo, 42 y en la regulación de las medidas de seguridad para inimputables en la parte general, especialmente la que se suponía destinada a alcohólicos. 43

Por otra parte, es sabido que la sistemática de la parte especial bávara de 1813 se opone a la napo-leónica de 1810: en tanto que el código bávaro la encabezaba con los delitos contra la persona, 44 el francés lo hacía con los delitos contra el estado. 45La obra de Feuerbach – por fortuna – no ha de-saparecido del texto del código penal de 1921, pues nuestra codificación mantuvo su sistemática, bastante pionera en la codificación comparada en cuanto a destacar en primer lugar los delitos contra la persona.

Otro aspecto fundamental en que se conserva la matriz originaria es la exigencia de que el agente, en el momento del hecho, haya tenido la posibili-

34 La Comisión estaba integrada por Diego Saavedra, Francisco J. Beazley, Rodolfo Rivarola, Cornelio Moyano Gacitúa, Norberto Piñero y José Ma-ría Ramos Mejía, este último médico, uno de los más destacados exponentes del positivismo biologista.

35 Proyecto de Código Penal para la Re-pública Argentina redactado por la Co-misión de Reformas Legislativas constituida por Decreto del Poder Ejecu-tivo de fecha 19 de diciembre de 1904. El mejor crítico de este proyecto fue H (1911). En alguna medida conocieron el código noruego (Nou-veau Code Pénal Norwégien adopté par le Storthin le 22 Avril 1902).

36 Fue un destacado político conserva-dor: diputado, gobernador de la Pro-vincia de Buenos Aires, embajador en Japón y candidato a Presidente (M [1945]).

37 Sobre este proceso P (1921). El código se publicó oficialmente apenas en 1924 (Código Penal de la Nación Argentina, Ley nº 11.179 con las modi-ficaciones de las leyes 11.221 y 11.309). Rodolfo Moreno (h) publicó un tra-bajo comparativo con los textos y

proyectos anteriores en siete volúme-nes (M 1922–1923).

38 Contrasta en la codificación compa-rada con los textos posteriores al Có-dice Rocco, que abundan en conceptos de dogmática jurídico-penal legisla-dos. Sus reglas de participación son sumamente simples y prácticas, al igual que la regulación de la tentativa, innovando sobre el de 1886, que para cerrar el debate acerca de los actos preparatorios había consagrado ex-presamente su impunidad (cfr. R [1969] 169).

39 Corresponde al artículo 105 del an-teproyecto suizo de 1916, largamente trabajado por las comisiones suizas (Vorentwurf zu einem schweizerischen StGB, Fassung der zweiten Experten-kommission, 1917, 36; p. 39 de la ver-sión francesa), que pasó a ser el art. 100 del proyecto definitivo y 113 del código suizo de 1937.

40 Cfr. S (1951) 389.41 Artículo 81º, inc. 1º, apartado a) del

Código en su redacción original: al que matare a otro encontrándose en un estado de emoción violenta y que las circunstancias hacían excusable.

42 Cfr. P (1929); G T(1926); P G (1969).

43 Además de la internación manico-mial para enajenados, prevista en el segundo párrafo del inc. 1º del art. 34º, en el tercer párrafo dispone: En todos los demás casos en que se absolviere a un procesado por las causales del pre-sente inciso, el tribunal ordenará la re-clusión del mismo en un establecimiento adecuado hasta que se comprobase la desaparición de las condiciones que le hicieren peligroso.

44 Bayerisches Strafgesetzbuch vom 6. Mai 1813, en S (1858), tomo I, p. 69: Zweites Buch, Von Verbrechen und deren Bestrafung. Erster Titel. Von Pri-vatverbrechen. Erstes Kapitel. Von Ver-brechen wider das Leben Anderer.

45 Code Pénal, Édition originale 1810. El art. 75º con que encabeza la parte especial es particularmente termi-nante: Tout Français qui aura porté les armes contre la France sera puni de mort(la discusión sobre la clasificación de los delitos en Etude de législation pé-nale comparée, Code Français de 1810(1852) 133).

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dad de comprender la criminalidad del acto, no sien-do suficiente la de la simple antijuridicidad. Esta exigencia del inciso 1º del artículo 34 proviene del mismo Feuerbach 46 como derivación de su psycho-logische Zwang. Hoy la interpretamos como exigen-cia de la posibilidad de comprensión de la anti-juridicidad penalmente relevante y tiene la virtud de ampliar el error de prohibición 47 y de facilitar la solución de los errores acerca de la necesidad exculpante y de la punibilidad.

Con menor fidelidad que en los dos casos ante-riores, pero con igual certeza, la matriz bávara se observa, tanto en la flexibilidad de las penas como en la redacción de la fórmula sintética para su individualización (artículo 41º del código penal). Esta última – con algunas inserciones 48 – acumuló criterios que provienen de Feuerbach y que se agruparon de modo un tanto confuso, pese a lo cual siguen siendo reconocibles. 49

Ninguno de los proyectos de reforma integral del código penal que siguieron 50 alteró la sistemá-tica de la parte especial y, por suerte, fracasaron los devaneos peligrosistas de algunos de ellos. Los

últimos proyectos 51 no dejaron de receptar los debates que tuvieron lugar en el proceso de refor-ma alemán, seguido con interés en la discusión argentina y, en menor medida, el código austríaco.

La doctrina y la legislación alemanas no tuvie-ron ninguna influencia en las múltiples reformas legislativas que descodificaron la legislación penal argentina y desfiguraron el código penal de 1921, al compás de reclamos punitivistas del oligopolio de medios masivos de comunicación, en particular la televisión, todo lo cual debe atribuirse a la clara influencia del neopunitivismo norteamericano. 52

4 Los antecedentes de la influencia doctrinaria alemana

En lo que hace a la ciencia jurídico-penal argen-tina, es indiscutible que, en la actualidad, la dog-mática penal alemana tiene una influencia directa e incuestionable en la ciencia jurídico penal argen-tina. Basta revisar someramente las obras nacio-nales generales 53 y monográficas 54 para verificarlo.

46 El código bávaro en rigor se refería a la punibilidad, pero Vatel lo tradujo como criminalité y de ese modo pasó al código argentino hasta la fecha.

47 Cfr. K (1973) 212.48 Dos fueron las más importantes: (a)

La co-culpabilidad, que proviene de Magnaud (con cita expresa en la labor codificadora) y que se remonta a Jean Paul Marat (cfr. Z [1982]; sobre Marat: R R[2000]); (b) la peligrosidad que se inserta inconsultamente en el Senado por obra de Juan P. Ramos (como R [1926] 5 lo admite).

49 La naturaleza de la acción es la calidad de la acción del texto bávaro (art. 90); la magnitud del daño o del peligro (art. 91), los motivos y la conducta precedente (art. 92), la edad juvenil (arts. 98 a 100), la vejez (art. 103). Cfr. Código penal para el Reino de Baviera (Promulgado por el Rey Maxi-miliano José en Munich el 16/5/1813), en F (2007).

50 Fueron el proyecto positivista de Jor-ge Eduardo Coll y Eusebio Gómez de 1937, el más moderado de José Peco de 1941, el de Isidoro De Benedetti de 1951, el de Ricardo Levene (h) de 1953, el de Sebastián Soler de 1960 y el de parte general de 1973–1974.

51 Si bien durante la dictadura de 1976–1983 se renovó en 1979 el proyecto Soler de 1960, sólo pueden considerarse proyectos de la nueva generación los presentados después del restablecimiento del gobierno constitucional en 1983, que fueron los de reformas a la parte general varias veces reiterados y el proyecto integral de 2006, todos los cuales mantienen la estructura tradicional. Los textos de los códigos y proyectos argentinos hasta el final del siglo pa-sado se hallan reproducidos fotostáti-camente en Z /A(1996). El último, Anteproyecto de ley del Código Penal de la Nación, en www.cienciaspenales.net.

52 Nos referimos al proceso analizado por S (2007).

53 A puro título de ejemplo y sin la menor pretensión de ser exhaustivos basta con mencionar algunas de las obras de parte general y especial publicadas en años recientes: B (1999); B (2005); R (2007); R (2009;) D (2003); T (2012); B (2009).

54 Es abrumadora la producción de monografías y artículos donde se dis-cuten las posiciones acerca de la im-

putación objetiva, las tesis de Roxin y de Jakobs, el concepto de dolo, el derecho penal del enemigo, el nor-mativismo y el ontologismo. Se pub-lican documentados y voluminosos libros que se ocupan de estos y otros temas, algunos incluso escritos total o parcialmente en Alemania. La con-tribución de Marcelo Sancinetti al debate argentino es realmente im-presionante, pudiendo mencionarse también a Gabriel Pérez Barberá en Córdoba, a Nelson Pessoa en Co-rrientes y a tantos otros. Las revistas especializadas se nutren básicamente de discusiones de estos temas y cual-quier enumeración sería no sólo una labor que excede el cometido de esta presentación, sino seguramente in-justa, pues es casi imposible abarcar toda la producción actual.

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Lo mismo cabe decir respecto de la producción latinoamericana en general. 55

En síntesis, podemos afirmar que nadie discute el nivel prioritario de la ciencia penal alemana y, en buena medida, las discusiones regionales se ocupan de los mismos temas y se dividen los autores en análogos bandos y opiniones, incluso con relación directa y muchas veces discipular con los profesores alemanes.

No me ocuparé del momento actual, pues no tiene sentido traer a Alemania sus propios debates científicos. Creo que lo más importante es explicar cómo llegó la ciencia penal argentina y latinoame-ricana a abrazar por completo la técnica alemana, pues hace un siglo apenas tenía noticia de ella, fuera de algunos aislados antecedentes en Brasil, 56desconocidos en Argentina y en el resto de la re-gión.

Las obras generales argentinas posteriores a la pionera de Tejedor se nutrían de la doctrina clásica

italiana y francesa y de comentarios españoles. 57Pero rápidamente el positivismo de vertiente spen-ceriana se convirtió en la filosofía dominante de la elite hegemónica del país, 58 pues legitimaba el pa-ternalismo en una república que, pese a su Cons-titución liberal, era gobernada por una oligarquía latifundista, que crecía con las divisas provenientes de su condición de único exportador de carne en-friada, al tiempo que aseguraba su poder político con un sistema electoral fraudulento. 59

En este contexto, el positivismo peligrosista italiano llegó muy rápidamente a la Argentina, 60donde fue acogido con general beneplácito y pasó a dominar de inmediato en la ciencia penal, 61 in-cluso a la más conservadora, 62 aunque con moda-lidades muy particulares, pues se conservó la siste-mática de los viejos prácticos (objetivo / subjetivo) en el delito y no se asimiló del todo el determinismo ni la responsabilidad social de Ferri. 63 Lo que el penalismo argentino adoptó del positivismo italia-

55 También a mero título de ejemplo, podemos mencionar las obras gene-rales de F C(2012); V V. (2009); V T (2007); C S (2000); P C (1994); G S /J (2012); G (2003); D(2010); B A (2010); V S (2008); V L(2003); F G (2007); B R (2005); C U (2005); D-A (2003); los trabajos de Nilo Batista y Juarez Tavares en Brasil, y aún muchas más, sin contar con el mismo fenómeno que en la Argenti-na en cuanto a temas monográficos, traducciones, libros, artículos, revistas y temarios de congresos y seminarios, con frecuencia con la participación de los mismos penalistas alemanes.

56 El primer introductor moderno de los penalistas alemanes fue Tobías Barre-to (1839–1889) en la Facultad de Derecho de Recife, siendo notables B (1926b), B (1926c); todos sus trabajos penales en B(2000), parte II, 163–362; son im-portantes sus Estudos Alemaes (1926a). Sin duda fue el penalista más creativo de la región en esos años. Sobre su vida y obra: B (1994); M / P (1972); L(1943). Cabe agregar que la primera traducción de la obra general de von Liszt a otra lengua la hizo José Higino

Duarte Pereira en Brasil (L[1898]).

57 Ejemplar en este sentido es el Curso de Derecho Penal de Manuel Obarrio, de 1884, cuya edición de 1902 está pre-cedida de una Introducción sobre la escuela positiva, donde rechaza las teorías lombrosianas. Los comenta-rios españoles más frecuentemente consultados eran los de P(1870), V V (1877), G y G S(1870), G S y M (1865).

58 Esto fue común a toda la región (sobre México, por ejemplo, el grupo de los científicos, que era el think tankde la dictadura de Porfirio Díaz, cfr. Z (1968); V (1987).

59 El pensamiento era neocolonialista y racista: los pueblos latinoamericanos no podían gobernarse hasta que se desarrollaran como las razas superio-res; las oligarquías eran las minorías iluminadas y civilizadas que debían gobernar hasta que culminase este proceso biológico. En la Argentina el racismo se dirigió primero contra el mestizo o gaucho y más tarde contra el inmigrante degenerado, por lo general anarquista. Contra el anarquismo se sancionaron leyes de expulsión de extranjeros y de defensa social (cfr. D [1911]; P [1913]; H[1917]). Cabe aclarar que el origen del sindicalismo argentino fue anarquista

(cfr. O [1978]). El racismo, deri-vado de la teoría de la degeneración francesa, era una verdad dogmática en Argentina y en Latinoamérica, que atribuía la inferioridad biológica al mestizaje: por ejemplo, los escritos de B (1903); I (1957). En Brasil, puede verse N R(1894).

60 En 1888 Luis María Drago suscribe las tesis lombrosianas en Los hombres de presa, traducido al italiano y publica-do con prólogo del propio Lombroso (D [1890]).

61 Las cátedras se entusiasmaron con el positivismo: basta ver los apuntes de clase de Osvaldo Piñero (P[1902]; P [1909]; compárese también con Apuntes de Derecho Penalde R y M N[1892]). El dominio del positivismo en ese tiempo fue analizado exhaus-tivamente por la investigadora italia-na Giuditta Creazzo en su tesis de Maestría de la Universidad de Bolo-gna, C (2007).

62 Se suponía que éstas eran las de la Universidad de Córdoba, pero su catedrático y ministro de la Corte Suprema de la Nación, Cornelio Moyano Gacitúa, si bien con alguna ligera precaución, no quedó al mar-gen de la ola positivista: M G (1899), M G(1905).

63 Cfr. A (1969) 129.

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no fue más bien su aspecto policial, o sea, la idea de peligrosidad.

El más importante comentador del código de 1886 fue Rodolfo Rivarola, 64 catedrático de dere-cho penal en Buenos Aires. Hombre polifacético, lo fue también de ética en la Facultad de Filosofía, donde evolucionó desde el darwinismo social al kantismo, 65 lo que se observa claramente en su posterior obra general, 66 pese a que fue publicada en pleno auge del positivismo en la Argentina.

Si bien Rivarola no fue un filósofo puro, se reconoce su influencia en la filosofía argentina, ubicándolo como un pensador no positivista. 67Cabe recordar que la figura más notoria del posi-tivismo fue José Ingenieros – médico, considerado fundador de la criminología argentina 68 – quien tuvo como fuerte contradictor a otro médico filó-sofo: Alejandro Korn. 69

Lo cierto es que el código, de matriz bávara, no se trabajó científicamente conforme a su fuente originaria, porque no se conocía la obra de Feuer-bach en la Argentina, 70 pero los trabajos de Riva-rola se acercan bastante a una elaboración próxima a la del autor de la fuente originaria, dado que, en último análisis, Feuerbach también era un criticista, pues sus objeciones juveniles a Kant eran disiden-cias dentro de la misma metodología filosófica. 71La primera influencia alemana es, pues, tangencial:

a través del kantismo de Rivarola, el penalismo argentina se acercó al autor del texto base de su primer código.

5 La primera etapa de la influencia alemana directa: entre von Liszt y el neokantismo

Hasta la cuarta década del siglo pasado puede decirse que el positivismo dominó las cátedras y las obras generales de la materia seguían fielmente esta línea, al menos en lo que hacía a la pena, 72siendo ejemplares las de Eusebio Gómez 73 y Juan P. Ramos. 74 Ferri había visitado la Argentina 75 y la literatura penal no deja ninguna duda acerca de la hegemonía del peligrosismo italiano, 76 que inclu-so trató de sancionar proyectos de estado peligroso sin delito, 77 un código abiertamente positivista 78 y luego otro que se suele calificar de neopositivista. 79

La llamada Guerra Civil Española provocó el exilio de todos los intelectuales republicanos y, entre ellos de penalistas, que se esparcieron o via-jaron por la región y comenzaron a publicar en Latinoamérica. En la ciencia jurídico-penal se des-tacó Luis Jiménez de Asúa, que había estudiado – entre otros – con von Liszt en Berlín, desde cuya estructura teórica se desplazó hacia el neokantis-mo 80 y se instaló en la Argentina, 81 donde publicó

64 R (1890).65 Los programas se publican en

R (1945). Puede verse: V (1944); G (1945).

66 Derecho Penal Argentino, Parte General, Madrid, 1910. Es interesante su libro La justicia en lo criminal (R1899). En cuanto a R (1910), cfr. S (1969) 60.

67 Cfr. F (1958) 50.68 Sobre Ingenieros: A (1975);

R K (2001).69 K (1938). En la generación pos-

terior el filósofo más crítico del posi-tivismo fue Coriolano Alberini (A 1966).

70 Aún hoy es poco lo que se ha tradu-cido de Feuerbach al castellano: F (1997); F(1813/2007); F (2010). Su obra más importante para el derecho penal no ha sido traducida a otra lengua (Revision des Grundsätze und Grundbegriffe des positiven peinlichen Rechts).

71 Cfr. Zaffaroni, en la presentación del F (2010); C (1970).

72 La primera obra general posterior a la sanción del código de 1921 fue la de G R (1925), poco clara científicamente, pero que concedía amplio margen a la idea de peligrosi-dad. En el primer comentario amplio (M [1927]), su autor pa-rece indicar que todos los elementos del art. 41 (individualización de la pena) serían indicadores de la peli-grosidad.

73 G (1939).74 R (1935).75 Sus conferencias en T (1911).76 G (1912) publicó una reseña

bibliográfica, donde es posible apre-ciar la enorme extensión que había logrado el positivismo criminológico italiano.

77 Arreciaron en la segunda década del siglo pasado y comienzos de la terce-ra, pero por fortuna nunca fueron discutidos en el Congreso Nacional. Se remitieron en las presidencias de Alvear (1922–1928) y de Justo (1932–1938); Yrigoyen, que fue el primer presidente electo sin fraude

(1916–1922 y 1928–1930), era un admirador de Krause y abiertamente contrario a esos disparates de la época.

78 Proyecto Coll-Gomez de 1937.79 Proyecto Peco de 1941.80 Se hallaba cerca de von Liszt en

J A (1931).81 Fue Profesor en las Universidades de

La Plata, del Litoral (Santa Fe) y Di-rector del Instituto de Derecho Penal en la de Buenos Aires, hasta 1966, falleciendo en esta ciudad cuatro años más tarde. Una investigación com-pleta de su vida, obra y bibliografía fue realizada por M (1972).

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su obra más extensa. 82 Sin duda que fue este autor quien más contribuyó en las dos décadas siguien-tes a la difusión de la dogmática penal alemana en la región. La sistemática neokantiana del delito fue seguida en incontables obras latinoamericanas en lengua castellana. 83 La traducción de Edmund Mezger 84 tuvo gran importancia también en esta difusión y la profusión de citas de este autor en las obras de la época es notoria. 85

En Argentina, por un camino concurrente, Sebastián Soler, profesor en Córdoba y luego en Buenos Aires, 86 emprendió con su tesis de 1929 un fuerte embate contra el peligrosismo, 87 tradujo a Beling 88 y publicó en la década de los cuarenta su obra general, 89 siguiendo la técnica alemana, aun-que manteniendo cierta cercanía a Liszt, de la que luego se fue alejando, 90 en especial en sus trabajos jusfilosóficos. La obra de Soler significó el comien-zo del ocaso del positivismo peligrosista italiano en

la literatura penal argentina y del ascenso de la dogmática penal alemana.

El marco ideológico del positivismo se desinte-graba, debido a su bajísimo nivel de pensamiento. Su grosero o rudimentario materialismo se hacía insostenible, el reduccionismo biologista, el mo-nismo causal fisicalista, el burdo organicismo social y su poco disimulable racismo, aceleraban su fin. Pero también fue declinando hegemonía a medida que las elites latinoamericanas perdieron poder, como resultado de procesos de ampliación de ciu-dadanía real, algunos dramáticamente violentos como la Revolución Mexicana; 91 en la Argentina, este proceso se produjo por etapas, acelerándose a partir de 1946, aunque por vía mucho menos violenta. 92

De este modo, el positivismo penal se fue que-dando sin base filosófica. La crisis de sus embustes pseudocientíficos, la defección política y filosófica

82 L J A, Tratado de Derecho Penal, comenzó a publicarse en 1950 y siguió hasta su muerte en 1970, quedando incompleto. Antes había publicado La ley y el delito(1945b). Sus trabajos parciales fueron recogidos en los tomos de la serie El criminalista (J A[1941–1949]); es importante su obra de comparatista penal latinoamerica-no: J A / Z(1946).

83 Así, por ejemplo, C T (1988); C T(1977); G M (1963); M (1996); N M(1985); P P (2003); B A (1994); A S(1985); R E (1972); etc. Aunque no elaboraron obras genera-les, son importantes las investigacio-nes y trabajos en esta línea de los discípulos de Jiménez de Asúa: Carlos Gallino Yanzi y Jorge Frías Caballero en la Argentina, los españoles Maria-no Jiménez Huerta en México, Blasco Fernández de Moreda en México y Argentina y Manuel de Rivacoba y Rivacoba en Argentina y Chile.

84 Nos referimos a la traducción de Rodríguez Muñoz, Tratado de Derecho penal (M [1946]). El Studien-buch fue traducido en la Argentina por Conrado Finzi, (M [1958]); la traducción de Wilhelm Sauer (M [1956]) no repercutió en la doctrina argentina. Hoy que se ponen de manifiesto las posiciones autorita-

rias de Mezger, cabe observar que no se tradujeron en su momento las im-portantes obras penales de otros au-tores neokantianos liberales, como Max Ernst Mayer (la traducción de Sergio Politoff revisada por Guzmán Dalbora, se publicó apenas en 2007), Hellmuth von Weber (publicada en 2008), como tampoco los trabajos penales de Gustav Radbruch, pese a que los jusfilosóficos del primero y del último se tradujeron y alcanzaron gran difusión.

85 Cabe aclarar que Brasil siguió una ruta independiente: el positivismo se opacó en gran medida con los mo-numentales Comentários ao Código Penal de Nelson H (1978) y creemos que la obra con que alcanzó su mayor nivel el neokantismo penal fue B (1984).

86 Posteriormente fue autor del proyec-to de Código Penal de 1960.

87 S (1929); S (1934).88 Tradujo los Grundzüge de 1930

(B [1944]).89 S (1945–1946) (se trata de una

obra en cinco volúmenes, de la que hay sucesivas ediciones actualizadas).

90 Tradujo la Estructura del concepto de culpabilidad de Reinhard Frank (1966).

91 No obstante, el efecto no fue auto-mático. En México, si bien los filóso-fos de la Revolución eran antipositivistas, el positivismo penal continuó vigente. Se sancionaron va-rios códigos estaduales de defensa so-

cial (siguiendo el modelo cubano), en el orden federal y del DF el código Almaraz de 1929 siguió esa corriente, al igual que el de 1931, pese a que sus autores lo consideraban ecléctico (con detalle, Z [1985]). Véase también Z (1998). Entre nosotros, en un sentido alejado del derecho, Mario Bunge cuestiona con fuerza el efecto demagógico (conservador) del positivismo. Estas incoherencias entre la filosofía antipositivista de un mo-mento histórico y la simultánea su-pervivencia del positivismo penal, tampoco fueron ajenas a la Argentina, aunque cabe explicarlas más por competencia académica que en razo-nes estructurales.

92 El período radical (1916–1930) ex-tendió ciudadanía real a la clase me-dia; después de una etapa de regresión (1930–1945), se operó una amplia-ción que incorporó a amplios sectores obreros (1946–1955). Si bien hubo episodios violentos (semana trágica en 1919; bombardeo a la Plaza de Mayo en 1955, ejecuciones en 1922, 1930, 1931, 1956), su magnitud no es ni lejanamente comparable a la Revolu-ción Mexicana.

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del propio Ferri 93 y su sospechoso vínculo con el racismo – del que todos quisieron tomar distancia en la posguerra 94 – hicieron las veces de lápida. 95En la Argentina, sobrevivió en algunos trabajos aislados, en alguna cátedra 96 y en la criminolo-gía, 97 pero prácticamente desapareció del campo del derecho penal, aunque con algunos rebrotes inorgánicos.

Con el ocaso del positivismo comenzaron las polémicas acerca de la culpabilidad psicológica o normativa 98 y aparecieron dos obras generales de derecho penal elaboradas sobre un modelo dogmá-tico que se movía entre Liszt, Beling y los neokan-tianos: Ricardo C. Núñez 99 en Córdoba y Carlos Fontán Balestra 100 en Buenos Aires. En síntesis, en los años sesenta del siglo pasado, las obras generales que dominaban la ciencia jurídico-penal argentina eran las de Soler, Núñez y Fontán Balestra, como también los tomos con que Jiménez de Asúa avanzaba en su trabajo enciclopédico. Era de rigor la lectura de Liszt, Beling y Mezger.

De cualquier manera, la dogmática alemana se había vuelto dominante no sólo en la Argentina, sino en toda la región, como lo demuestran los trabajos del llamado Código Penal Tipo, desarrolla-dos principalmente durante los años sesenta 101 y que proyectaron la consagración legislativa regio-

nal de la sistemática neokantiana del delito, que parecía inconmovible. 102

La polémica alemana entre finalismo y causalis-mo se fue conociendo por referencias, 103 aunque se publicó en Buenos Aires una traducción de la parte general de Welzel en 1956, 104 que en su momento no resultó muy comprensible. La traducción es-pañola de Maurach 105 permitió entender mejor las cuestiones sistemáticas de teoría del delito que se debatían, como también el libro publicado por el propio traductor de Maurach, 106 siendo lo más determinante la traducción de El nuevo sistema del derecho penal 107 y, por fin, la traducción chilena de la parte general, 108 como también la de trabajos de filosofía jurídica del catedrático de Bonn. 109 Con anterioridad, algunos escritos habían comenzado a poner de manifiesto el interés por su pensamiento y a adelantar la polémica. 110

6 La polémica «finalismo-causalismo» en la Argentina de los setenta

El contacto directo con los autores alemanes hasta la década de los años sesenta era muy escaso y difícil. La revolución comunicacional que vivimos hace que esto parezca hoy extraño o demasiado

93 La claudicación filosófica de Ferri frente al idealismo actual y la política ante el fascismo, desilusionó a sus partidarios locales, G (1947).

94 Entre otras cosas se perdió en el olvi-do la lamentable polémica entre el último de los positivistas importantes y el más alto exponente del neokan-tismo, sostenida en la RIDPP. La tra-ducción castellana: Filippo Grispigni (M [2009]).

95 Los trabajos del primer congreso de criminología de posguerra (París, 1950) mostraron el desconcierto de esta disciplina al renunciar a su base biologista.

96 Recordamos en Buenos Aires en los años cincuenta a los profesores Jorge Eduardo Coll y Juan Silva Riestra.

97 Principalmente la cultivada por mé-dicos legistas, como Nerio Rojas y Roberto Ciafardo.

98 Se tradujo en Córdoba G(1943); también se publicó póstuma-mente G (1944) y la dis-cusión continuó: D B(1945); N (1946); C(1970) 83; etc.

99 N (1959–1960). Sobre su vida y obra M P (1997). En su último libro (1988) Nuñez siguió manteniendo la estructura neokan-tiana. N (1972) es, a nuestro juicio, la obra en que la concepción neokantiana alcanzó su más esmerada construcción en la Argentina.

100 F B (1966).101 Código Penal Tipo para Latinoamérica,

1968; Código penal Tipo para Latino-américa, publicado bajo la dirección del Prof. Francisco Grisolía, 1973.

102 La Argentina participó con dos co-misiones, que respondían a Jiménez de Asúa y Soler respectivamente, que se habían distanciado como resultado de las críticas del primero al Proyecto de Código Penal del segundo. De la comisión del primero oficiaba como vocero Francisco P. Laplaza, y de la del segundo Eduardo Aguirre Obarrio y Guillermo J. Fierro.

103 Especialmente R M(1953).

104 W (1956).105 Nos referimos a la traducción de Juan

Córdoba Roda (M [1962]).

106 C R (1962).107 La traducción de Das neue Bild des

Strafrechtssystems es de J. Cerezo Mir (W [1964]).

108 W (1970), traducción de Juan Bustos Ramírez y Sergio Yañez Pérez. En Chile había publicado Sergio Po-litoff Los elementos subjetivos del tipo penal (1965), y Juan Bustos Ramírez Culpa y finalidad (1967), dos mono-grafías de excelente calidad. Con ca-rácter general, C U (1969).

109 Entre otros, W (1962); W1957.

110 Hubo otras publicaciones (Adela Re-ta en Uruguay en 1959, nosotros en México en 1966), que no tuvieron repercusión en la Argentina, donde Bacigalupo publicó en 1965 La noción de autor en el Código Penal.

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lejano en el tiempo, pero no eran muy habituales los desplazamientos académicos a Europa por tiempo prolongado, y menos a Alemania. Si bien en 1960 había estado Maurach en Buenos Aires, 111su presencia no dejó mayor huella posterior. Fue a partir de mediados de esa década que, en los seminarios de la Alexander von Humboldt Stiungse despertó interés por el llamado finalismo y, merced a las becas de esa Fundación, varios pena-listas argentinos y latinoamericanos pudieron per-manecer por largas temporadas en Alemania. 112

En el mundo penal de Argentina, la difusión del finalismo de Welzel 113 tuvo un notable im-pulso a raíz de un evento académico importante, que fueron las Jornadas Internacionales de Derecho Penal argentino de la Universidad de Belgrano en 1971, 114 que convocó a un notable grupo de profesores europeos, 115 entre los que se hallaba el propio Welzel, Jürgen Baumann, Klaus Roxin y Armin Kaufmann. La presencia de estos últimos reforzó el interés de los jóvenes penalistas argenti-nos del momento por las entonces nuevas corrien-tes alemanas. 116 En el propio congreso hubo tra-bajos argentinos en la línea del finalismo 117 y, sin duda, la tónica del evento permitía verificar que se tambaleaba la firme estructura neokantiana, que hasta ese momento se consideraba poco menos que inconmovible.

Con posterioridad, los trabajos en la nueva línea se hicieron más frecuentes, en especial los publica-dos en las revistas Nuevo Pensamiento Penal y luego

en Doctrina Penal, y en los años siguientes apare-cieron exposiciones más completas. 118

Era inevitable la discusión con los partidarios de la sistemática neokantiana. No obstante, ésta no se centraba en la teoría del conocimiento que separa-ba y daba fundamento a ambas posiciones, o sea que, en el campo penal no se discutía en general acerca de las tesis de las sachlogischen Strukturen de Welzel ni del opúsculo de Mezger de 1950, 119 sino casi exclusivamente sobre las consecuencias para la sistemática del delito.

Por ende, la discusión argentina se centraba en general en la posición del dolo (tipo o culpabili-dad), en su naturaleza (si abarcaba o no la llamada consciencia de la antijuridicidad), en sus efectos sobre la teoría del error (unitaria o diferenciada) y en la omisión.

Lo cierto es que en este debate los nombres de los penalistas alemanes se volvieron no sólo fami-liares, sino incluso dominantes en la discusión de la ciencia jurídico-penal argentina y se generalizó la aceptación del método y de la hegemonía de la ciencia penal alemana. 120 Se sepultaron sin mu-chos honores los últimos rebrotes – ya obsoletos en ese tiempo – del viejo positivismo 121 y los contac-tos directos con los académicos alemanes se hicie-ron más frecuentes, con viajes y permanencias prolongadas de penalistas argentinos. 122

No obstante, este debate y el llamado finalismotuvieron un curso tortuoso en la Argentina, que por curioso resulta seguramente poco comprensi-

111 Jornadas de derecho penal (Buenos Aires 22–27 de agosto de 1960) 1962.

112 Entre los argentinos, Enrique Baciga-lupo y Gladys N. Romero.

113 En las revistas se podía ver el interés que iba despertando (por ejemplo, la traducción de W [1968]).

114 C (1973).115 Los italianos Giuseppe Bettiol, Giu-

liano Vassalli, Angelo Raffaele Lata-gliata y Dario Santamaria, los españoles Marino Barbero Santos y Enrique Gimbernat Ordeig y los ale-manes Hans Welzel, Jürgen Bau-mann, Klaus Roxin y Armin Kaufmann.

116 Hubo una ponencia de W(1951) y la cit. de K (1973).

117 Así, el relato de Enrique B(2002), y las ponencias de Gladys N. Romero (¿Constituye el deber de ga-rantía, en los delitos impropios de omi-

sión, un elemento del tipo o de la antijuridicidad?) y Z (1971).

118 B (1974); Z(1973).

119 M (1950).120 Hubo un interesante intento de

aproximación metodológica al dere-cho anglosajón: N (1980); tam-bién N (1984).

121 Algunos brotes tardíos pueden verse en los proyectos de parte general de 1974–1975 (cfr. Z /A[1996] T. 7), entre otros la propuesta de medidas de seguridad para homo-sexuales.

122 En esa década es dable señalar los nombres de Enrique Bacigalupo, Gladys Romero, Roberto Bergalli, Julio Maier, Carlos Elbert y algunos otros. Algo similar comenzaba a su-ceder en otros países, como por ejemplo el peruano José Hurtado

Pozo (más tarde catedrático en Suiza), el costarricense Francisco Castillo González (catedrático de la Univer-sidad de Costa Rica) y el mexicano Moisés Moreno (tesis doctoral M M (1977]). Esteban Righi, desde la cátedra en su exilio mexicano, seguía los pasos de la nueva corriente.

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ble para los alemanes 123 y sólo explicable por los lamentables y dramáticos accidentes políticos del país.

Desde 1930 – en que por primera vez en el siglo se rompió abiertamente el orden constitucional –, se sucedieron golpes de estado (1943, 1955, 1962, 1966) y la década de 1970 comenzó bajo el imperio de un régimen militar, producto del golpe de estado de 1966, que culminó con la convocatoria electoral de 1973, de la que surgió un gobierno democrático, promisorio pero de fugaz duración. Renació la violencia política y el gobierno fue tomando un giro también peligrosamente violen-to, hasta ser derrocado por el golpe militar de 1976, apoyado por los sectores más reaccionarios y ultra-montanos, en momentos en que las dictaduras sangrientas cundían por América Latina. Si bien la Argentina había sufrido golpes de estado y dictaduras, ninguna fue comparable en criminali-dad, crueldad e insensatez, a la que padeció entre 1976 y 1983, cuyo objetivo económico fue el desbaratamiento de buena parte del aparato pro-ductivo del país.

Algunos de los jóvenes penalistas que, atraídos por las perspectivas de un destino mejor para el país, habían participado en la primera etapa del gobierno democrático, tuvieron que marcharse al exilio – incluso antes del golpe de 1976 –, pues peligraban sus vidas. 124 Esto, sumado a la mala fe y a la complicidad política de ciertos connotados partidarios del llamado causalismo, dio lugar a que

se motejara al finalismo como marxista o filomarxis-ta, aunque parezca una enormidad, dado que, como es notorio, el realismo de Welzel no pasaba de cierta consonancia con el momento de la cons-trucción de la República Federal.

Esta imputación no se formuló por escrito por ningún penalista importante, porque eran cons-cientes de la aberración y sólo la expresaban sola-padamente; tampoco ninguno de ellos teorizó en el país un derecho penal de seguridad nacional. Esto último lo hizo un tratadista uruguayo, al que la Universidad de Buenos Aires (intervenida por la dictadura) le otorgó el grado de Doctor honoris causa, 125 habiéndose encargado también de cum-plir la triste misión de afirmar por escrito lo que sus colegas argentinos no se animaban a hacer. 126

Si bien no hubo una pura persecución por finalista, para el oficialismo genocida esta corriente estuvo teñida de una suerte de progresismo sospe-choso. No obstante, en un nivel más alto de la discusión teórica, ésta siguió su curso, especialmen-te en las revistas, 127 liberándose de estas insidias a partir de 1984, con la normalización y la provisión de las cátedras de las universidades nacionales por concursos abiertos.

A partir de la segunda mitad de los años ochenta se abre el período que podemos considerar actual, con neto predominio de la dogmática jurídico-penal alemana y, tal como lo señalamos antes, se multiplicaron los contactos directos que habían comenzado años antes.

123 Dimos cuenta de este curso en el seminario «Significato e prospettive del finalismo nell’esperienza giuspe-nalistica» (Università degli Studi Fe-derico II, Napoli, 2002): Che cosa resta del finalismo in America Latina?(2002).

124 Nos referimos a Enrique Bacigalupo, Esteban Righi, Gladys Romero, Leo-poldo Schiffrin, entre otros. Juan Bustos Ramírez y Roberto Bergalli lograron salir del país después de su-frir prisión sin proceso, o sea, deten-ción a disposición del P. E., en virtud del estado de sitio. Las gestiones ale-manas contribuyeron decididamente a su rescate de la prisión y salida del país, en particular las de Hilde y Ar-min Kaufmann, que viajaron a ese efecto a Buenos Aires.

125 Así, B B (1975). Estas ideas le valieron ser Ministro de Jus-ticia de la dictadura de su país. En un

totum revolutum construye un delito de lesa Nación, que afectaría a la na-ción misma, pero no en el sentido de la traición a la patria tradicional, sino como una nebulosa subversión (p. 20).

126 Lo hizo en un trabajo posterior, don-de criticó las tesis del finalismo con-cluyendo que puede transformar al derecho penal en el paraíso de los doc-trinos de una nueva Weltanschauung, resuelta e interpretada según las menta-das verdades eternas, o considerar con argumentos metajurídicos, que el derecho penal es el «instrumento técnico» para asegurar la preservación de las masas proletarias. // La enunciación de cuyos riesgos, es de suyo elocuente como para plantear el impostergable abandono de la posición doctrinaria examinada(B B [1983] 58).

127 Se multiplicaron también las tra-ducciones de Bacigalupo, de Gladys Romero (en 1982, en el exilio en

Madrid, Gladys Romero tradujo el Derecho Penal de Günter S- [1982], obra de especial clari-dad), que junto con las españolas contribuyeron a difundir textos de Klaus Roxin, Joachim Hirsch, Armin Kaufmann, etc.

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7 La innere Gesinnung de la recepción argentina

Como hemos dicho, hoy las discusiones en la ciencia jurídico-penal latinoamericana reproducen los debates alemanes en casi todos los países. La técnica jurídica alemana ha sido adoptada en toda la región y casi nadie pone en duda seriamente su superioridad metodológica.

Llegados a este punto, es hora de preguntarnos si no estamos en condiciones de hacer una devolu-ción, o sea, si el aporte alemán es unidireccional o si, por el contrario, no debemos contribuir con una respuesta a la cultura jurídico-penal general.

En este sentido, rechazamos de plano impu-taciones de colonialismo jurídico-penal alemán y similares. Si hubiere una influencia meramente unidireccional o de pura recepción acrítica, no sería responsabilidad del pensamiento penal ale-mán – ni resultado de ninguna pretensión por parte de sus penalistas –, sino de la pobreza de nuestra capacidad de devolución creativa.

La ciencia jurídico-penal alemana no fue adop-tada en la Argentina sólo por su alto grado de elaboración y consiguiente capacidad de solución lógica de problemas, 128 sino que su versión neo-kantiana fue asumida como un instrumento de lucha contra el siniestro positivismo. Lo nuevo no sólo aparecía como avanzado por renovador y de superior calidad técnica, sino como instrumento de lucha contra una cosmovisión abiertamente reaccionaria y hasta racista. 129

Si bien no siempre se lo expresaba con claridad, en esa lucha contra el positivismo dominaba cierta certeza de que el concepto normativo – o el natural– de acción, la tipicidad y la antijuridicidad obje-tivas (más bien un injusto objetivo) y una culpabi-

lidad psicológica (o bien normativa compleja) conteniendo un dolo con consciencia de antijuri-dicidad (dolo malo), bastaban para garantizar – en cualquier circunstancia – un derecho penal liberal o de límites al poder punitivo. Expresa o tácita-mente, así la entendieron quienes la difundieron en la Argentina y en toda la región, casi todos ellos penalistas de indudables convicciones democráti-cas y en muchos casos avanzadamente progresistas; tan ciertos estaban de esto, que trataron de consa-grar sus categorías legislativamente en un código penal modelo de validez regional. 130

Por lo tanto, cualquier discusión que pretendie-ra alterar ese esquema teórico era considerada peligrosa e incluso sospechada de cercana al derecho penal autoritario, idea en la que se englobaba tanto al nazista como al fascista y al stalinista. 131 Esto facilitó que en el debate de los años setenta, los planteos de la dogmática alemana que llegaron a la Argentina en tiempos de violencia fuesen conside-rados peligrosos, circunstancia aprovechada – co-mo vimos – por algunos personajes de la época, mientras otros las tildaban de filonazistas.

Los desvaríos nazistas de buena parte de los más connotados neokantianos alemanes eran conside-rados como productos coyunturales del miedo o, en el peor de los casos, censurados sólo por abjurar de los verdaderos principios de la ciencia penal. 132Los verdaderos neokantianos eran para estos autores los que no se habían plegado al nazismo, sea por-que fueron privados de sus cátedras (como Rad-bruch), se habían marchado al exilio (como James Goldschmidt) o habían muerto antes (como Max Ernst Mayer).

La idea se reforzaba en gran medida, porque los autores del neokantismo latinoamericano – y tam-bién los alemanes – no habían reparado suficiente-

128 Capacidad en la que la obra de Robert Alexy es un ejemplo (la ponderación).

129 El mismo halo de progresismo había rodeado a cierto positivismo varias décadas antes, cuando se lo esgrimía contra concepciones ultramontanas.

130 El intento comenzó en los primeros años de la década del sesenta, cuando con ingenuo optimismo se pensaba que las dictaduras latinoamericanas desaparecerían, ilusión que se acabó trágicamente en la década siguiente, que se llevó también al Código Tipo, después de una penosa reunión en Buenos Aires, donde los redactores

cumplieron el rito de saludar perso-nalmente al dictador de turno.

131 Era común tratar los tres conjunta-mente, por ejemplo, D V (1938).

132 En un muy documentado artículo de Jiménez de Asúa en los últimos días de la guerra, señalaba que Mezger cambió sus conceptos empobrecién-dolos y no tuvo arrestos para defender sus antiguas ideas liberales (43), o sea que consideraba que esta abjuración estaba unida al abandono de sus ca-tegorías de preguerra, que estarían vinculadas indisolublemente al libe-ralismo penal. Las bases liberales del

anterior Tratado de Mezger estaban para Jiménez de Asúa unidas a una perfecta ilación de principios, que no osó reeditar (49) (J A[1945a]). De esta lectura queda la impresión de que el verdadero Mez-ger penalista neokantiano era el an-terior, y el que escribió entre 1933 y 1945 fue una falsificación producida por el miedo. Después de las investi-gaciones de los últimos años, de cuyos datos no disponía Jiménez de Asúa en 1945, sería imposible sostener que Mezger era sólo un penalista atem-orizado (ver M C [2003]).

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mente en los componentes autoritarios de la cien-cia penal alemana, incluso muy anterior al nazis-mo, 133 en particular de los líderes de las dos escuelas en disputa desde fines del siglo XIX. 134

En Alemania la situación era diferente, pues durante los años del nazismo, las categorías de la dogmática neokantiana se defendían bajo el ropaje de una ciencia penal políticamente neutra, indepen-diente de la política, y en abierta lucha contra los de Kiel, que sostenían que esas categorías no servían para la elaboración del derecho penal totalitario, necesitado de una sistemática nueva y por comple-to diferente, 135 para lo cual elaboraron una dog-mática organicista o sistémica, 136 que eliminaba los límites entre los estratos neokantianos, en alguna medida validos de las contradicciones pro-pias de éstos, puestas de manifiesto por la dog-mática de posterior. 137 En la posguerra, el exilio académico y la marginación temporal de los de Kiel se entendió como el triunfo de la ciencia sobre la política.

Con el correr de las décadas, los investigadores alemanes se encargaron de aclarar las cosas. La ilusión de una ciencia políticamente neutra se ha desvanecido hoy, incluso en las ciencias duras. No podemos tolerar ahora la idea de que cultiva-mos una ciencia jurídico-penal políticamente neu-tra, 138 que sirva también para legitimar aberracio-nes o, sin llegar a esos extremos, susceptible de ser manipulada como instrumento de consolidación de una inmovilidad social vertical o de resistencia a una sana redistribución de la renta. Semejante

ciencia merecería el duro calificativo que Carrara dirigía a los prácticos: sería una schifosa scienza.

Como primera devolución podemos sugerir que tanto en el hemisferio norte (con crisis en las sociedades de distribución mesocrática) como en el sur (con sociedades fuertemente estratificadas), es urgente dar la razón a los de Kiel en cuanto a la necesidad de categorías adecuadas al modelo de estado, pero para construir un modelo exactamente inverso al de Kiel, o sea, elaborar categorías que enfrenten al autoritarismo, hoy vestido de puniti-vismo.

Las racionalizaciones autoritarias pueden llegar a pervertir cualquier teoría, pero no creemos que la vuelta a un neokantismo más o menos ortodoxo – con el nombre, las correcciones y las variables que fuere –, como tampoco el regreso a un esquema sistémico, avancen mucho respecto de la indefen-sión metodológica de los tiempos oscuros. La primera y general devolución que podemos hacer es, pues, poner de manifiesto la urgente necesidad de reflexionar sobre la metodología y las categorías, para combatir a los de Kiel desde la acera opuesta.

8 Una devolución temática

En el hemisferio sur las sociedades tienen una muy marcada estratificación social y la desigual-dad, si bien también aumenta en el hemisferio norte, 139 es exorbitante en el sur. 140 Los conflictos violentos – y a veces las masacres – sólo pueden

133 Cfr. M (1975); M C(2011).

134 La dura crítica que – con sobrada razón – formuló Jiménez de Asúa en el trabajo citado a la disparatada Kri-minalsoziologie de Wilhelm Sauer, pasa por alto que algunas de sus pro-puestas habían sido adelantadas por Franz von Liszt muchos años antes.

135 Justamente las críticas de los de Kiel reforzaba la convicción de los neo-kantianos latinoamericanos, pues consideraban que el neokantismo penal, en lugar de ser políticamente neutro – como lo pretendían los propios neokantianos alemanes – era inadecuado al régimen nazista por ser liberal. Más aún confundían a la opi-nión penal latinoamericana al consi-derar liberales a los retribucionistas y socialistas a los seguidores de la pena fin. Este pandemónium político lo

crearon desde su primer escrito de lucha: D / S (2011).

136 El concepto de Volksgemeinscha co-mo sistema queda claro en varios tra-bajos de Kiel, como por ejemplo en el de D (1935), donde hace radicar en lo sistémico su diferencia con el estatismo fascista. En este sentido, afirma Dahm con toda precisión que no podría considerarse a Binding co-mo un antecedente del derecho penal nazista, porque está vivo en el derecho penal fascista. Por otra parte – pese a que se citaba –, nunca se había tradu-cido al castellano el horripilante tra-bajo póstumo de este autor y Alfred Hoche (B / H [2009].

137 Aunque habían sido detectados antes y desde dentro del propio neokantis-mo, como lo ponen en evidencia los conocidos trabajos de Hellmuth von Weber y del Graf zu Dohna.

138 Sería conveniente profundizar la comparación y funcionalidad de esta tesis con la doctrina norteamericana del derecho y el estado políticamente neutros de las últimas décadas del siglo XIX (cfr. H [1992]).

139 Cfr. S (2012).140 Según la ONU y la CEPAL, América

Latina es la región con la mayor de-sigualdad de todo el mundo, pese al fuerte crecimiento económico, esa desigualdad no ha podido ser erradi-cada, se ha consolidado. (El creci-miento no se tradujo en desarrollo, Amartya Sen cree efectivamente que la desigualdad es y termina siendo siempre un obstáculo para el desarro-llo y la democracia). Esto nos obliga a pensar también de qué sirve a veces importar un código de Europa cuan-do la situación social es tan diferente. Cuando los desafíos son otros.

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evitarse fomentando canales de comunicación in-terclasistas, cuando se sabe que el incremento de la represión selectiva tiene el efecto inevitable de obturarlos.

Los monopolios mediáticos transnacionales marcan las agendas de nuestros gobiernos median-te el pánico moral, en tanto que las agencias de algunos países centrales señalan las de los organis-mos internacionales y hasta la selección temática de las asociaciones científicas, todo lo cual produce leyes penales altamente represivas o compromisos internacionales de sancionarlas.

Ante este panorama, no ponemos en duda el valor de las categorías larga y laboriosamente ela-boradas por la ciencia jurídico-penal alemana y que de ella hemos aprendido, pero creemos que es menester advertir que esas categorías señalan una lógica, indispensable para no caer en contradiccio-nes, pero en modo alguno podemos recaer en el error de elevar la lógica a ontología.

Un cerrado normativismo nos llevaría por ese camino. El contenido y sentido de cada categoría científica exige que se nutra de datos de la realidad. No podemos colocar anteojeras normativistas a los jueces ni rechazar los datos de realidad, por el mero peligro de que una racionalización autoritaria pue-da elevar dogmas a la condición de datos ónticos.

Considerando que nuestra ciencia no es mera-mente especulativa, sino que siempre aspira a convertirse en jurisprudencia, es decir, en senten-cias, que son actos de un poder del estado, no puede negar su componente político y, para precaver el riesgo del congelamiento ontológico – del que sin duda debemos cuidarnos –, no es posible caer en una metodología indiferente al creciente riesgo de precipitarnos en el infierno ardiente de la masacre.

Tenemos constituciones y tratados internacio-nales que garantizan límites al poder punitivo, pero ningún derecho puede respetarse en el plano de la realidad, cuando a los jueces se les impide tomar en cuenta las circunstancias particulares del caso, o bien las generales respecto del encuadre de éste en su respectiva sociedad.

Más allá de que no es posible asegurar cuál orden es verdaderamente tal, lo cierto es que si desde el orden de una sociedad central, con predo-minante distribución mesocrática de la renta, se observa una sociedad altamente estratificada, se percibe desorden. En la medida en que se pretendan resolver los conflictos presuponiendo el orden en un marco de desorden, las decisiones serán erróneas y paradojales, como sucede siempre que se decide

sin tener en cuenta un mínimo indispensable de datos de realidad.

El propio pensamiento crítico central es de relativa utilidad para nosotros, porque se dirige contra el reforzamiento del poder punitivo como instrumento de control social de minorías en sociedades mesocráticas, lo que claramente es in-justo, pero cuando no se trata de minorías, sino de la mayor o gran parte de la población, otro es el problema y también la crítica y la atención y precaución que merece la estructura de poder de esa sociedad.

La mención de la necesidad de adecuar catego-rías dogmáticas al derecho penal de sociedades muy estratificadas, que postulamos como devolu-ción, puede parecer demasiado abstracta. Si bien es imposible enumerar todas las posibilidades concre-tas, porque justamente esa sería la tarea a empren-der en la presente etapa, a mero título de ejemplo nos permitimos mencionar algunos problemas concretos que debe afrontar la ciencia jurídico-penal del hemisferio sur en América Latina – pero también en África –, y que darán cuenta de la magnitud de la tarea que tenemos por delante.

1. Hay sociedades en las cuales buen número de conflictos se resuelven en el seno mismo de comu-nidades y conforme a costumbres ancestrales, co-mo son las de cultura andina, pero también otras. En África hay países que no tienen una estructura judicial apta para todo su territorio, y la mayor parte del control social queda en manos comuni-tarias. La aplicación del derecho penal de tradición europea continental es impensable en esas circuns-tancias.

Se hace necesario reconocer la existencia de dos órdenes jurídicos y trabajar científicamente los conceptos jurídicos que permitan reconocer cuán-do la intervención del derecho penal de tradición europea es menos violenta que la solución comu-nitaria, para intervenir sólo en esos casos.

2. Hay conflictos que no se presentan hoy en Europa – o que son excepcionales – y que, por tanto, no son contemplados por la doctrina euro-pea. La tortura, el maltrato carcelario y policial y la violencia carcelaria, no han sido erradicados del hemisferio sur. Hay personas que infringen la ley y sufren las consecuencias de estos hechos ilícitos. No hay categorías que permitan resolver cómo serán tratadas las víctimas de estos hechos en caso de ser condenadas posteriormente. Ignorar lo que han sufrido es pretender que lo prohibido no existe. Es menester trabajar un nuevo concepto

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de compensación, puesto que las penas ilícitas no dejan de ser penas.

3. La alternativa de la pena de multa no puede tener la misma extensión y eficacia en las socieda-des estratificadas que en las de distribución meso-crática. Su extensión puede incluso resultar discri-minatoria, pues quedaría sólo reservada a los sec-tores con mayor capacidad de pago.

4. El mismo reproche de culpabilidad se torna problemático, porque la co-culpabilidad social – y estatal – es norme. ¿Hasta qué punto existe un ámbito de decisión más o menos amplio que permita fundar un reproche, cuando la persona ha carecido de lo elemental a lo largo de su vida y sólo ha recibido del estado desprecio, indiferencia, marginación, rechazo y punición?

5. La estigmatización penal en una sociedad en que el espacio social está mucho más limitado que en las centrales, tiene un efecto condicionante de conductas desviadas más graves, traducido en ca-rreras criminales, en particular porque proporcio-na mano de obra barata al crimen de mercado (organizado). Faltan instrumentos jurisprudencia-les que disminuyan los efectos de la señalización criminalizante.

6. La ciencia penal alemana nos ha proporcio-nado una finísima teoría del delito. Sin embargo, no ha tenido igual desarrollo la dogmática en torno de la individualización judicial de la pena y, en la recepción latinoamericana, esta carencia es aún mayor. 141 En esta materia se filtra aún el peligro-sismo positivista – a veces disfrazado de culpabili-dad – como también los peores prejuicios de clase de los jueces. Se hace menester potenciar el desa-rrollo científico de este capítulo.

7. Las prisiones latinoamericanas sufren de ma-les endémicos (superpoblación, predominio de prisión preventiva, violencia carcelaria, etc.). Toda previsión de medidas de seguridad trasladada a la región, se traduce en un simple aumento de presos y la consiguiente potenciación de los males tradi-cionales. En Latinoamérica es imprescindible reco-nocer el carácter punitivo de las llamadas medidas y someterlas a las mismas o mayores limitaciones que las penas. La dogmática necesita desenmasca-rar el recurso legislativo de cambiar el nombre de pena por el de medida, para eludir los límites constitucionales al poder punitivo.

8. El exceso intensivo en la legítima defensa y la atenuación extrema en los casos de error indi-recto de prohibición (conforme a la llamada teoría limitada de la culpabilidad), cobra en la práctica un sentido muy particular en la región: se traducen en un beneficio para los agentes del Estado que abusan de las armas y hasta para quienes practican ejecuciones sin proceso.

9. La responsabilidad penal de las personas jurídicas, por efecto de la selectividad según vulne-rabilidad, propio del ejercicio del poder punitivo, se traduce en un peligro para la pequeña y mediana empresa, que es la mayor proveedora de trabajo de la región. Por otra parte, la situación se agrava, porque con la pena no se elimina la responsabi-lidad administrativa de la empresa, sino que se suman ambas sanciones.

10. La gravedad y rigidez de las penas por cri-men organizado, impuestas por tratados interna-cionales – en particular en el tráfico de tóxicos –, se traduce en penas elevadas para personas empleadas en estado de necesidad por los organizadores, o sea, las llamadas mulas, que por lo general son mujeres. Faltan conceptos jurídico-penales que permitan contemplar esta situación y evaluar más finamente el estado de necesidad en sus dos niveles (justifica-ción y exculpación).

11. Los servicios de seguridad latinoamericanos – policías – padecen de distintos grados de dete-rioro institucional y laboral y se sufre la llamada autonomización policial. Algunos delitos – como la trata de personas o el robo de ganado – no son concebibles sin protección policial. En la crimina-lidad de mercado (o crimen organizado), se verifica en forma permanente la vulnerabilidad de los servicios de seguridad. En estas condiciones, con harta frecuencia, el poder punitivo se convierte en un mero instrumento de eliminación de com-petidores – o de monopolio del marcado – en la prestación del servicio ilícito. La jurisprudencia está condenada a cumplir este triste papel, sin elementos jurídicos que le permitan al menos paliarlo.

12. Los jueces son con harta frecuencia agredi-dos por los medios masivos como encubridores de criminales, cuando en realidad no hacen más que poner coto al ejercicio abusivo y a veces corrupto del poder punitivo, lo que es funcional al fenóme-

141 En los últimos años en la Argentina casi no hay trabajos relevantes, salvo los de Patricia Ziffer.

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no de autonomización policial. La tradición indica que el juez no debe defenderse públicamente, pero esta limitación lo deja indefenso ante los medios de comunicación y ante los políticos que demagógi-camente explotan la indefensión. Es menester ela-borar técnicamente las condiciones y situaciones en que el juez queda habilitado para quebrar la regla tradicional.

13. A diferencia de lo que se pensaba durante la guerra y la posguerra, verificamos hoy que no existe un derecho penal autoritario único, sino que es el resultado de los múltiples y tortuosos caminos, perversamente creativos e ingeniosos algunos, que racionalizan en torno del poder punitivo para liberarlo de todo límite. Estas racionalizaciones nos amenazan más en el sur, porque todo exceso punitivista acaba en una masacre.

Esto exige que pongamos una especial atención en el estudio de esas racionalizaciones, o sea, que sin perjuicio de investigar y elaborar en positivolas condiciones del derecho penal de garantías, lo hagamos también en negativo, dedicando preferen-te interés a los a veces insólitos caminos del com-plejo llamado derecho penal autoritario, porque no podemos prevenir ni defendernos de lo que no conocemos.

14. Cabe agregar que incluso uno de los temas más debatidos en Alemania – la imputación obje-tiva –, plantea en el hemisferio sur interrogantes particulares, debido a las frecuentes decisiones políticas que se imponen como opciones ante la limitación de recursos. ¿Hasta qué punto se puede imputar objetivamente el resultado lesivo de una decisión política, en ocasiones escogida como aten-ción de necesidades más urgentes? Estas decisiones pueden salvar muchas vidas, pero también no evitar la pérdida de otras que son en igual medida inocentes, lo que se sabe al tomar la decisión. Estos supuestos no pueden resolverse como casos de in-culpabilidad. 142 Si así se lo hiciese cabría la legíti-ma defensa contra decisiones políticas, pese a que en la coyuntura serían racionales. Necesariamente deben resolverse en el nivel de la tipicidad objetiva, lo que no es sencillo.

La adecuada elaboración de conceptos que per-mitan acercarnos a decisiones que contemplen estos y otros muchos datos de la realidad, sería nuestra principal devolución, como contribución a una ciencia jurídico-penal más universal, en una hora difícil para el derecho penal en ambos hemis-ferios.

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Elisabetta Fiocchi Malaspina,Nina Keller-Kemmerer

International Law and Translation in the 19th century*

1 Introduction

In European Legal History – Global perspectiveThomas Duve issued a challenge to cultivate an openness to interdisciplinarity in legal history scholarship, which has tended towards an episte-mology of law in the global process of cultural translation. He maintains: »to do so, we have to open the field of observation, and obviously, seek a well-balanced interdisciplinary approach that does not consider ›law‹ as something categorically differ-ent from other fields of cultural production, but as one modus of normativity.« 1

This perspective allows us to trace the process of legal appropriation and reproduction of inter-national law during the 19th century. The Western approach to translation was pivotal to how trans-lation was instrumentalized in the universalizing process of the 19th century as an invisible force behind the global circulation of ideas.

Even if translation has taken the center stage in all major cultural exchanges, 2 at the same time it still remains an underestimated phenomenon. 3Even today, it is perceived as a mechanical process, which can be acquired by studying a foreign lan-guage. As Susan Bassnett pointed out:

»What is generally understood as translation involves the rendering of a source language text into a target language text so as to ensure that (1) the surface meaning of the two will be approximately similar and (2) the structure of

the sources text will be preserved as closely as possible but not so closely that the target language structure will be seriously distort-ed.« 4

According to this understanding of translation the translator is not seen as a creator but a mere technician. Translation is therefore regarded as a secondary activity in researches that oen only consider the value of a translation. »What is ana-lyzed in such studies is the product only, the end result of the translation process and not the process itself«. 5

The translation process was foundational to the formation and legitimation of the international law doctrine. At the same time, the complexity of the 19th century translation process cannot be understood without the critical intervention of Postcolonial, Cultural and Translation Studies. That sets the history of the circulation of European ideas, in particular, of the international law doc-trines, in a broader context and allows us to reread it in a different way.

2 Translation and universalization of concepts

Translation is not a recent phenomenon, but played an important role in the circulation of Western ideas especially during the 19th century, as recent studies on global, intellectual and trans-national history have shown. 6

* This research is the result of the work carried out within the Group »Trans-lation« at the Max Planck Institute for European Legal History. We would like to express our gratitude to Pro-fessor Thomas Duve for permitting this collaboration, to Lena Foljanty and to the Group for their support and for all the interesting suggestions received. Special and sincere thanks to Professor Miloš Vec for reading the dra critically and providing precious comments.

1 D (2013) 18; see also D (2012).2 »In Europe that represented the scene

of the most sustained and intense cultural transfers throughout its long history, a long process marked by an enormous efforts in translation: of religious, scientific, political and literary works […] and of vernaculars crossing national and linguistic boundaries«: B / P- H(2007) 1.

3 B (2013) 15.4 Ibid.

5 Ibid.6 Among many: A (2013)

17–32; A (2004); M /S (2013). See also: I(2013); I / S (2009), and the recent book edited by MM / M (2014).

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214 International Law and Translation in the 19th century

The American historian and philosopher of science, Arthur Lovejoy, has noted »Ideas are the most migratory things in the world«. 7 European concepts spread all over the world during the 19th century, due in equal part both to the numer-ous publications of textbooks and to their trans-lations. However, this process had some important consequences: first, European concepts came to be perceived as universally valid, and second Europe established its expansion through the spread of control and culture, as it affirmed its mission to »civilize« the »uncivilized nations«.

»As concepts moved – as the global intellectual historian Christopher Hill wrote – around the world, they experience multiple mediations, including translation into other languages and mass reproduction in the form of textbooks and publication for popular audiences. The resulting process of abstraction attenuated the concepts’ connection to their originators and to the Euro-pean examples from which they were derived. Mediation and abstraction allowed the ›univer-salization‹ of concepts in a specific sense. The use of a concept as if it were valid in all places at all times«. 8

International law doctrines were a part of this wave of universalization for their intrinsic and peculiar aim to regulate relations between states and to create an international legal order. 9 Ideas on international law circulated due to the prolific works of international lawyers. In the 19th century international lawyers, in fact, were called to take an active part in this process and »to mediate between universalism and nationalism, humanitarian aspi-rations and colonial impulses, technical, economic and financial challenges, nations and states«. 10

They were hired by non-European states to teach international law and to partake in diplo-matic and government matters. Paul Louis Ernest Pradier-Fodéré went to Perù and founded in Lima a faculty of political and administrative sciences, 11where he taught international law and also worked

as a legal advisor to the Peruvian government; 12Gustave Rolin Jacquemyns, one of the founders of the Institut de droit international (in Ghent, 1873), worked as the counselor to the King of Siam (1892–1902). 13

Non-European scholars and practitioners of in-ternational law would meet in European capitals, where they were sent as diplomatic emissaries to their nations and governments while they were acquiring knowledge about the European law of nations. The Latin American legal scholar Andrés Bello lived in London for two decades from 1810 on, working as a diplomat for different Latin American countries; 14 in 1827 the US-American Henry Wheaton was appointed chargé d’affaires to Denmark, and between 1837 and 1846 he worked as US minister to the Court of Berlin. 15 The same can be said for the Argentinean Carlos Calvo, who gained his knowledge on international law in Europe. He wrote his works in Spanish and also in French, the language of diplomacy, so »that he would reach a broader European audience«. 16 He also translated Henry Wheaton’s Histoire de Progrès du Droit des gens en Europe into Spanish (Paris 1841). All of them – Bello, Wheaton and Calvo – »promoted the European legal doctrine. Thus they took an active part in the globalization and global-ization of international law«. 17

Furthermore, with the prolific circulation of literature on international law, the field of inter-national law had properly »universalized« from the second half of the 18th century, and particularly during all the 19th century. Handbooks, textbooks, comprehensive treaties on positive international law, compendia, texts on history of international law (or history of the law of nations 18) were »mass« produced and translated for European and non-European countries, where governments spon-sored and incentivized their translation. 19

The number of textbooks and comprehensive treatises on positive international law that were published are impressively shown (but not with-out gaps) in the work of Peter Macalister-Smith and Joachim Schwietzke, Bibliography of the Text-

7 L (1904) 4.8 H (2013) 135.9 B L (2010) 476; N

(2012).10 N / V (2012) XII.11 L (1987) 77.12 B L (2010) 484 note 15.

For more biographical information

on Pradier-Fodéré see: S-B(2007) 641; E (1908).

13 B L (2010) 484, note 15. »According to his biographer, Rolin Jacquemyns played a vital role in Siam with his daily advice on foreign affairs and domestic judicial re-forms«: L (2006) 55.

14 J (2001) 8.15 L (2012) 1133.16 O T (2009b) 158.17 V (2012) 674.18 For a conceptual history see S

(1992). On the history of interna-tional law see K (2012).

19 B L (2010) 484, note 15.

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Elisabetta Fiocchi Malaspina, Nina Keller-Kemmerer 215

books and Comprehensive Treatises on Positive Interna-tional Law of the 19th Century, in which they classify international textbooks by country, region and language and provide references to the different translations. »A greatly increased market demand for the works on international law that were printed in the 19th century is evident not only from the large quantity of very similar titles of publications in this period, but also from the number of editions and translations which were produced«. 20

Translation played an important role in this process. It was traditionally relegated to the pref-ace, introduction of textbooks translated, but, as it will be shown, it played an important part in the circulation of Western ideas.

Translators, together with international lawyers, could be depicted as mediators and diplomats, who are called on to manage different cultures, lan-guages, spaces and times and are central agents of European ideas and values. 21

Recent studies have focused their attention par-ticularly on the translation of international law textbooks and on the »appropriation« of European concepts in Eastern countries. In The Clash of Em-pires. The invention of China in modern world making, Lydia Liu offers a precise reconstruction of the translation and circulation of Wheaton’s Elements of international law in China, in which she aims to »explore the spectacular conjuring of the real in the translated articulation of international law in the 19th century and raise the question how the text of international law negotiated the reality of its un-folding by insisting on a vision of the global that was yet to come.« 22 Stefan Kroll wrote in Norm-genese durch Re-Interpretation. China und das euro-päische Völkerrecht im 19. und 20. Jahrhundert about the adoption of international law in China and identified the different phases of this process. 23Ram Anand has analyzed the circulation of inter-national law textbooks in India, where he shows

the relations with European States and the pressure on India to join the family of »civilised nations«; 24Tetsuya Toyoda focused his research on Japan where, due to the pressure of the Western world »le droit international des pays occidentaux a du être imposé à la nation japonaise. Mais […] le droit international a été accepté par les Japonais, plutôt volontiers, malgré l’immense différence culturelle entre les Occidentaux et les Japonais«. 25 Urs Mat-thias Zachmann also elaborated on the transfer of concepts and translation of western treatises into Japanese during the 19th century. 26

Translation was perceived as the perfect instru-ment to surpass the linguistic and cultural barriers: »the spread of universal knowledge as Europe im-posed to do especially during all the 19th century also meant overcoming the resistance of local lan-guages at the textual level.« 27

The aim of the present paper is not to focus all attention on the linguistic approach, scrutinizing the choices adopted by translators, nor all the difficulties they had to find equivalent meanings for Western concepts (as for example for the West-ern idea of »sovereignty«), 28 but to depict the close connection between the western theories of trans-lation and the circulation of international law textbooks, both a part of the universalization of European concepts.

3 Western idea of translation

It is necessary to underscore the fact that the idea of translation has always been depicted and defined through the world of words: textual integ-rity, mother tongue, literary property, fidelity and equivalence. This means that translation was never conceived of as an autonomous and separate dis-cipline but was always perceived as closely tethered to the original text, and was focused on the best way to translate it. Studies on translation have

20 M-S / S(2001) 78.

21 L (1999) 128.22 L (2004) 108. Armitage also argued

that »The translation and circulation in Asia of Henry Wheaton’s Elements of international law (1836) major vector of Euro-American interna-tional thought, suggests that the assumptions underlying modern international law thought were be-

coming increasingly trans-regional, if not yet fully global, by the middle of the nineteenth century«: A(2013) 28; see also: S (2007).

23 K (2012).24 A (2005).25 T (2010) 60–61. See also:

H (2002) 8–30.26 Z (2012) 69–84. See also

Y (2012) 485–488; A(2012).

27 L (2004) 125.28 K T (2013) 24.

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concentrated on linguistic transfer – translation techniques, strategies, standards, and styles. 29

It has been conventionally affirmed that trans-lation is linked to the Western philosophical no-tions of reality, knowledge and language; following that, it is necessary to point out that the 19th cen-tury German philosophical approaches to herme-neutic studied translation.

For instance, Friedrich Schleiermacher (1768–1834) presented his own concept on translation in his celebrated lecture titled Über die verschiede-nen Methoden des Übersetzens, delivered on the 24th June 1813 at the Royal Academy of Science in Berlin. 30

With his essay, Schleiermacher launched the hermeneutic approach on translation that was con-ceived of as »the investigation of what it means to understand a piece of oral and written speech, and the attempt to diagnose this process in terms of general model of meaning«; 31 this approach was later developed by Wilhelm Dilthey and in the 20th century by Martin Heidegger. 32

The translator had to draw attention both to the word and the meaning, and as Susan Šarčević has emphasized, »the hermeneutic approach raised the question whether the translator can convey the sense of a text by literal translation in which the basic unit of translation is the word«. 33

At the base of the hermeneutic approach were some corollaries linked to the idea of universality, as the valorization of a totalizing concept of mean-ing inscribed in the idea of the historical truth-fulness and the prioritization of a universal tradi-tion of world conception. 34 This included debates that started in the 19th century on the evolving consciousness of the national language and, anal-

ogously within those bounds, the need to create a legal language and legal categories: »Linguistic imitation of law is a sort of ›circulation of legal models‹ that has normally accompanied the recep-tion of legal, and even more so, doctrinal mod-els«. 35

Translation now also included linguistic imi-tation. Imitation, translation, and reproduction are concepts linked to the idea of linearity as well as fidelity to the original. This conception allowed an idea of homogeneous and universal circulation of doctrinal and legal standards: »legal translation involves translation from one legal system to an-other«. 36

Furthermore, the real problem at the center of the debate concerning translation is the incom-mensurability and irrationality of languages, which can also lead to the impossibility of translation. To solve it, Schleiermacher, for example, clearly distinguished between translating literature and translating scientific texts, Übersetzen and Dolmet-schen, 37 and between the two methods that a translator could use, Verfremdung and Entfremdung, depending on if »the translator leaves the author in peace, as much as possible, and moves the reader towards him; or he leaves the reader in peace, as much as possible, and moves the author towards him«. 38

This philosophical approach and its underlying questions did not terminate the process of trans-lation that was in use and conceived of as the per-fect achievement of universal communicability. 39

As for legal translation, in Europe the notion that a strict adherence to the original was possible and desirable has dominated over different epochs, due to the authority of legal texts. However this

29 See: M / B (2013). For the Western idea of translation and Chinese’s context: N / Y(2008); C (1997).

30 S (1816). It is a well known fact that Wilhelm von Hum-boldt, in his capacity as the minister of education, was appointed by the King of Prussia in that period to es-tablish a new university in Berlin. He invited the best German scholars, such as Schleiermacher, Fichte, Sa-vigny, Wolf and Niebuhr, to partake of the new venture: N (2003) 223.

31 Š (1997) 34. See also: P(1969) 84–97.

32 F / T (2002) 1021.

33 Š (1997) 34.34 L (2002) 2.35 S (2000) 115–116; see also S

(2008).36 C (2007) 24.37 Schleiermacher argued: »Paraphrase

strives to conquer the irrationality of languages, but only in a mechanical way [...]. The paraphrase treats the elements of the two languages as if they were mathematical signs which may be reproduced to the same value by means of addition and subtraction. Imitation, on the other hand, submits to the irrationality of languages; it grants that one cannot render a copy – which would correspond to the original precisely in all its parts – of a

verbal artifact in another language, and that, there is no option but to produce an imitation, a whole which is composed of parts obviously dif-ferent from the parts of the original, but which would be yet in its effects come as close to that whole as the difference in material allows«: pas-sage translated in: S-H(2006) 8.

38 S-H (2006) 9.39 M / S (2013) 20.

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doesn’t mean that legal translators did not already follow the hermeneutic principles, because

»[a] legal translator must be able to select the proper translation strategy for various types of legal texts and constituent parts thereof. [...] A skilled legal translation should be able to deter-mine how far he or she can depart from the source text and still produce a target text that leads to the same legal effects. The challenge of legal translation is to strike a proper balance between linguistic purity and legal equiva-lence.« 40

More probably, the international lawyers of the 19th century did not consult the translation theo-ries elaborated in the different philosophical ap-proaches of the time, but discussed the process of translation. Seminal textbooks on international law and their translations show different patterns of translation: some international lawyers stressed the importance of content and not the syntax, for others a word-for-word translation is impor-tant.

In his introduction to the first edition of his Principios de Derecho de Jentes of 1832, Andrés Bello raised the question of translation superficially, which nevertheless revealed his position on the subject:

»No he escrupulizado adoptar literalmente el testo de los autores que sigo, aunque siempre compendiándolo, y procurando guardar la de-bida consonancia y uniformidad en las ideas y en el lenguaje.« 41

For Bello, the translator's task was always to determine how to convert one text into another, while preserving the original meaning. Bello, in fact, emphasized the necessity of adopting and translating international law concepts in conso-nance with the ideas, but as it will be shown,

Bello’s own work represents more than an »imper-sonal« translation.

This is a brief excursus, as further examples could be found before the 19th century in the translations of some works written by the founders of the law of nations, starting with the first French edition of Grotius De iure belli ac pacis published in 1687. The translator Antoine de Courtin wrote in his Avertissement du traducteur, underlining his invis-ible role, that

»[...] on a voulu se tenir prez de l’Auteur, et comme le suivre pas à pas, autant que l’a pû permettre le génie de nôtre Langue [...], et la fin que l’on s’est uniquement proposée dans la traduction, de dégager si bien les choses que tout fût naturel, distinct at intelligible. On a voulu dis-je conserver autant qu’il se pourroit le caractère de l’Auteur, ce qui est même de l’es-sence de la traduction; afin que ceux qui la liroient eussent toûjours devant eux l’Auteur même et non pas le Traducteur.« 42

During the Enlightenment, Jean Barbeyrac, »the most erudite professor of his time«, 43 repre-sented a perfect example of the fruitful circulation of ideas during the 18th century, when translation activity made the tangible effort to provide greater accessibility to knowledge. 44 He translated Samuel Pufendorf’s De iure naturae et gentium in 1706 45

and De iure belli ac pacis of Grotius in 1724 into French. 46 In the long Préface, in fact, he described his method and his approach to the original texts, underlying all his choices. The peculiarity of his works lies in the sheer number of notes and com-ments on the translated texts; even if it is possible to recognize and identify his additions, »Barbeyrac was a highly visible translator« and his works met with great success and were, at the same time, a model for the other translations. 47

It is also worth mentioning in this context Emer de Vattel’s Droit des gens. His work, published in 1758, was translated into English in 1759, and a

40 Š (1994) 306; Š(1989).

41 B (1832) iii.42 C (1687) iii–iv. 43 T (2011) 37.44 P (2009); see also G

(2013) 130.45 P (1706).46 G (1724).

47 P (2009) 12. See also G-F (1996). Concerning Barbeyrac’s work as professor and translator, Labriola said that: »è ca-ratterizzato dal continuo alternarsi di contributi originali e traduzioni, se-condo una cadenza che non permette di privilegiare gli uni rispetto alle altre. Barbeyrac appare infatti impe-

gnato con eguale intensità in en-trambe le attività che giudica com-plementari e convergenti al medesi-mo scopo: la divulgazione massima delle teorie del diritto naturale, oltre il pubblico ristretto e tradizionale degli eruditi«: L (2003) 17. See also: B (2007); S(2003) 483–484.

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year later into German, into Spanish in 1774 (even if this edition was never published due to the Inquisition), and finally into Italian in 1781. Lu-dovico Loschi, the translator of the Italian edition, wrote: »una traduzione esser non può bella ed elegante che a misura del suo originale. Basta bene che l’opera sia riconosciuta eccellente pel metodo e per la sostanza delle cose.« 48

The re-printing of Vattel’s work, which in-cluded new and updated translations and editions, as will be shown, remained a constant through-out the 19th century, in competition with the great number of translations of Wheaton’s Elements of international law.

Furthermore, in 1863 the international lawyer Paul Louis Ernest Pradier-Fodéré published an edition of Vattel’s Droit des gens 49 and in 1867 he translated the work of Grotius. Both of these editions are full of his annotations concerning the practice and doctrine of 19th century interna-tional law. In his Avant-Propos of De iure belli ac pacis, criticizing Barbeyrac’s version, he wrote about the method used for his translation, which involved word for word translation. His purpose as a translator was to adhere to the original text as much as possible, almost sacrificing his mother tongue:

»Pénétré de l’idée que le devoir du traducteur est de faire abstraction de lui-même, et de faire connaître l’auteur tel qu’il est, non tel qu’on aurait désiré qu’il fût, je me suis attaché à suivre de très-près le texte; préférant toujours l’exacti-tude à l’élégance du style, et ne craignant jamais de répéter un mot, lorsque ce mot se trouvait répété dans l’original. [...] Lorsque le style de Grotius a résisté par sa concision au tour de la phrase français, je me suis efforcé de ne pas abandonner pour cela le texte; j’ai sacrifié vo-lontairement les lois de ma langue maternelle […].« 50

Pradier-Fodéré was depicted by Manfred Lachs as an international lawyer who »has popularized the work of Grotius and Vattel«. 51 The idea of

word-for-word translation or of republishing and re-editing not just the works of the great authors of the past, such as Grotius and Vattel, but also the numerous versions of other important inter-national law textbooks derive from the fruitful circulation of European textbooks all over the world.

However, it is important to distinguish between the different ways international law textbooks circulated, namely as commentaries, compendium of international law treaties, remembering that all of them contributed to a homogeneous depiction of the discipline. Since the 18th century, and espe-cially during the course of the 19th century, com-mentaries on the international law textbooks and treaties became a permanent fixture. All the edi-tions of Vattel’s Droit des gens published in the 19th century demonstrate this, starting with Sil-vestre Pinheiro Ferreira’s notes published in 1838, 52 the above-mentioned version edited by Pradier-Fodéré, the English edition translated and commented by the English lawyer Joseph Chitty in 1833, who »collect[ed] and condense[d], in numer-ous notes, the modern rules and decisions«, 53 the Spanish translation full of »unas sacadas de l’His-toria de España y de nuestra legislacion, con aplicacion de ellas á la doctrina del autor«. 54

The commentaries on international law text-books explain in a concrete way both the process of translation and circulation. Understanding translation as a linear and literal process allowed international lawyers to add notes on case laws, jurisprudence, practice and doctrine of interna-tional law to fortify the authority of an interna-tional law textbook and to increase the circulation. All editions – revised, translated, commented – »can be just as illuminating as the original work in registering the process whereby, in this case, inter-national law has been globalized and universal-ized«. 55

Andrés Bello’s work offers an example of com-pendia in that he used Vattel’s work as a major reference work, but also that of Martens and other international lawyers:

48 L (1781) vi. On the translator, his method and the Italian translation itself see: T (2011a); T(2011b). See also T (2013).

49 V (1863). This edition was con-sidered the best in the 19th century,

see: B (1904) 66–67; R(1896) 405; C (1885) 297.

50 P-F (1867) vii.51 L (1987) 77.52 V (1838).53 V (1833).

54 V (1820).55 L (1999) 128.

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»Cito los pasajes de que hago uso, ya como autoridades y comprabantes, y para indicar los lugares en que pueden consultarse y estudiarse á fondo las materias que toco. Si alguna vez me sucede apartarme de las opiniones de aquellos mismos que me sirven como guia, manifiesto las razones que me asisten para acerlo así. Cuando trato de cosas que estan suficientemente eluci-dadas en las obras de Vattel, Martens y otros, trasladadas ya al castellano, soi breve, y me limito a presentar, como en una tabla sinóptica, todo aquello que he creido digno de encomen-darse a la memoria [...].«. 56

The idea of the compendium, based mainly on Vattel’s theories that advanced word-for-word translation of the commentaries on international law textbooks, is an instance and a part of the process of the universalization of Europe. The abstraction of the universal principles born in Europe became evident in this manner. The same books and concepts could be used in different contexts and times, given that conceiving of trans-lations as a linear process permitted their applica-tion all over the world. The aim of universal-ization seems complete. universalization did not necessarily involve homogenization – differences may just have become less important, and in part due to the circulation of international law text-books in translation they may even have become invisible.

4 Translation Turn and Postcolonial Studies

The linear translation and the circulation of the international law textbooks represent more than a homogeneous and neutral process. Using trans-lation it is possible to trace a turn, because a translated text could be not depicted as »the final component of a static dichotomy«. 57

The perspectives and sensibilities cultivated by Translation and Cultural Studies in the last dec-ades, and by Postcolonial Studies as well, are important for a broader and more differentiated

understanding of the processes of appropriation and reproduction of international law’s doctrines during the 19th century. 58 Within the so-called ›cultural turn‹, even the notion of translation has been critically scrutinized since the 1980s. 59 The category of translation, which until then had only received little attention, became a central question in cultural science, as the translation expert Law-rence Venuti described in 1990. 60

In his recent book, Translation changes everything, Venuti has argued that

»translation changes the form, meaning, and effect of the source text, even when the trans-lator maintains a semantic correspondence that creates a reliable basis for summaries and com-mentaries. Translation changes the cultural sit-uation where the sources text originated through an investment of prestige or a creation of stereotypes. Translation changes the receiving cultural situation by bringing into existence something new and different, a text that is neither the source text nor an original compo-sition in the translating language, and in the process it changes the values, beliefs, and repre-sentations that are housed in institutions.« 61

In the context of different cultural science ap-proaches, the concept of translation was rejected as a linguistic challenge, and yet was open to different kinds of disciplines, as it was understood as a practice that brought about cultural transforma-tion. Thereinaer translation is no longer bound to the mere activity of translation itself, but becomes a transdisciplinary challenge, which means not just transdisciplinary collaborations but also a widen-ing of perspectives by dealing with other discipli-nary concepts and approaches within the different areas themselves. Furthermore, »translation is understood as an activity that preserves the ›origi-nal‹ meanings of an author, but one which sees its tasks in producing meanings«. 62 The source text was therefore »dethroned« and the concept of »origi-nal« as well as the relationship between translator and translation was revised. 63 The translator and

56 B (1832) iii.57 L (2002) 4.58 See: M / B (2013);

M (2013); S-H(2006); S / C

(1997); B (1980); L(1978).

59 B / L (1998); L(1992) and also B-M(2006).

60 V (1998) 9.61 V (2013) 21.62 S-H (2006) 61.63 S-H (2006) 62.

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his product therefore became the focus of the attention as »visible and active participant[s]«. 64This metaphorical extension of the notion of trans-lation from a linguistic-textual paradigm to an im-portant and even crucial practice of the modern world, fundamentally summarizes the core of »re-orientation« within Translation Studies. As the linguist and translation scholar, Hans Josef Ver-meer, pointed out:

»Eine Translation ist nicht die Transkodierung von Wörtern oder Sätzen aus einer Sprache in eine andere, sondern eine komplexe Handlung, in der jemand unter neuen funktionalen und kulturellen und sprachlichen Bedingungen in einer neuen Situation über einen Text (Aus-gangssachverhalt) berichtet, in dem er ihn auch formal möglichst nachahmt.« 65

Another important impulse for this re-evalua-tion came from Postcolonial Studies, which chal-lenged the Eurocentric direction of translation, especially Europe’s monopoly over »transfer« and thereby questioned Europe’s claim to universality in different fields. Scholars increasingly challenged what they perceived as an occidental approach to translation, which they depicted as linear and clearly imbricated in a universalizing process. At the same time, they stressed the importance of translation for the circulation of western concepts. This broader understanding of the notion of trans-lation, used to generate a monolithic depiction of the world, has been deconstructed: the categories of »original« and »copy« are no longer firm refer-ence points and translation is now considered more a hybrid process than a linear one. Differ-ences must now be recognized and acknowl-edged. 66 Breaks and misunderstandings as well as the epistemological power of this understanding of translation are highlighted and rendered visible.As Susan Bassnett pointed out:

»translation does not happen in a vacuum, but in a continuum; it is not an isolated act, it is part

of an ongoing process of intercultural transfer. Moreover, translation is a highly manipulative activity that involves all kinds of stages in that process of transfer across linguistic and cultural boundaries. Translation is not an innocent, transparent activity but is highly charged with significance at every stage; it rarely, if ever, involves a relationship of equality between texts, authors or systems.« 67

In this sense, translation is understood not as a mechanical process, but as agent of cultural inter-mediation and exchange. Instead of concentrating on equivalence and synonyms, Postcolonial Stud-ies, translation and cultural studies focus on the differences and breaks, on difficulties of transla-tion, creative re-constructions, and overlappings. In effect, they illustrate how hybrid and complex the process of translation is. In other words, the process of translation is not understood as pure or merely as a simple reproduction of words in another language or even as an instrument to overcome cultural differences. Translation does not mean harmonization. Rather quite the con-trary: it is a transformative process, as Doris Bach-mann-Medick pointed out. The result of a trans-lation is a whole new situation, which, combined with the different context to which it is borne, generates something different that cannot easily be equated with the original. 68

5 Conclusion, an example: The works of Andrés Bello and Emer de Vattel

The process of translation is an autonomous creation and generates changes itself. 69 In this sense, a key theme within translation studies is power, in that it is not simply an act of faithful reproduction, but, rather, involves a deliberate and conscious act of selection, assemblage, structura-tion and fabrication. »In these ways translators as much as creative writers and politicians participate in the powerful acts that create knowledge and

64 S-H (2006) 62.65 V (1986) 33.66 B-M (2008) 141.67 B/T (1999) 2.68 B-M (2008) 141. 69 Armitage argues that: »Texts carried

ideas but always amid framing para-

texts and then into unpredictable contexts for their translation and reappropriation. These conditions generated dissimilitude out of simi-larity, but rarely to the extent of complete disjuncture and incompa-rability«: A (2013) 30.

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shape culture«, 70 and this process is well shown through Andrés Bello’s work.

Bello’s Principios de Derecho de Jentes is one of the first Hispano-American doctrines of Inter-national Law. For Bello, Emer de Vattel was »el escritor mas elegante y popular [...], y su autoridad se ha mirado tiempo ha como la primera de todas«. 71 Especially the first edition of Bello’s manual of international law, published in 1832 in Santiago de Chile, is mainly based on Vattel’s Droit des Gens.

At first glance, Bello’s work belongs to the gen-re of the compendium, as he seemingly summa-rizes the theories of the most important European lawyers, among them Vattel’s Droit des Gens. But, on the contrary, it is a new work bearing its own characteristics.

Liliana Obregón argues that from his Prologo:

»Bello informa a sus lectores que su obra no es original, sino un repertorio bien organizado de las obras de muchos autores. Se presenta como un editor ilustrado y selectivo que, según su propia descripción, adopta, revisa, discute, cita, prueba, presenta, contradice y reescribe las obras de los autores que ha consultado. Podríamos decir que Bello conversa con estos autores a lo largo del libro y mediante la edición cuidadosa, la homogenización del lenguaje y estilo, y la adición de múltiples pies de página, nos pro-porciona, de hecho, una voz autorizada sobre sus ideas. Incluso, la selección de textos que resume o reescribe (a menudo sin citarlos) hace difícil distinguir si se encuentra editando más de lo que reconoce en su prólogo o si realmente lo que está escribiendo es un texto original.« 72

The originality of his work is clearly exemplified by the theory of non-intervention, Vattel and Bello were both depicted as advocates of the theory of non-intervention, 73 and it has always been re-marked that Bello »relied on the writings of [...] Emer de Vattel«. 74

Vattel did not write a specific chapter on non-intervention, but in some passages of his Droit des gens he created »the nidus of the modern doctrine relative to intervention«. 75 He linked the principle of non-intervention to his idea of state sovereignty:

»It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no State has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her as injury.« 76

In particular, he noted that the domestic juris-diction was inviolable, even if he admitted that in some cases intervention had to be allowed, as for example »good offices, unless requested to do it, or induced by particular reasons«, 77 or in the case of self-preservation, 78 the moral obligation of restraining wrong-doing. 79 Vattel also legitimized interventions to liberate oppressed people from a tyranny. 80

Bello pursued Vattel ideas, but pointed out that »the development of rules of non intervention as historically linked to the response of Latin Amer-ican States in the 19th century to intervention by United States and the European Power.« 81

Bello, like Vattel, did not dedicate an entire chapter to the question of intervention, but ad-dressed it in the chapters on independence and sovereignty of a state or nation:

»De la independencia y soberanía de las na-ciones sigue que a ninguna de ellas es permitido dictar a otra la forma de gobierno, la relijion, o la administracion que esta deba adoptar.« 82

Although Bello in that passage does not cite any »European authority« or any other doctrine of international law, a comparison of the two doc-

70 T / G (2002) xxi.71 B (1832) 9.72 O T (2010) 70.73 F et al. (2009) 87.74 L E (2014) 21. 75 W (1922–1923) 134.76 V (1797), B. II, Chap. IV, § 54.

See: C (2014) 291–292. On

Vattel’s intervention theory among many: D (2011) 226; Z (2010); B (2004) 150–155, and also G (2013) 56–59.

77 V (1797) B. I, Chap. III, § 37.78 V (1797) B. II, Chap. IV, § 50.79 V (1797) B. I, Preliminaries, § 22.

80 See: R (2013) 218–224.81 K A (1999) 65.82 B (1832) 15.

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trines clearly shows that this part was based on Vattel’s ideas. Vattel made some exceptions to the general doctrine of non-intervention, while Bello only allowed one exception to the general principle of non-intervention. For him, intervention is only justified in cases of self-preservation:

»No hai duda que cada nacion tiene derecho para proveer a su propria conservacion y tomar medidas de seguridad contra cualquier peli-gro.« 83

Bello limits even this exception, as he explicitly states that the danger, which justifies the interven-tion of a state, needs to be »significant, evident and imminent […].« 84 But Bello also used his strict idea on non-intervention to criticize the European practice of intervention. Bello therefore only used Vattel’s ideas in very narrow and selective ways.

Bello’s work remarkably shows how different codes and normative models interact in the target society.

As Koskenniemi writes »Latin American inter-national law textbooks have adapted the universal vocabulary of European writings into a ›professio-nal style uniquely Latin American‹, thus support-ing not the passive assimilation of the region to

Europe, but its asserted distinctiveness from it.« 85Taking that as the point of departure, Bello’s

work appears to be his own work, written in a particular moment of Latin American history, and used as an international law textbook to explain European principles on the law of nations, but also used to address Latin American interests. He re-modelled European theories of international law and used the authority of Emer de Vattel to argue against Europe (especially the Holy Alliance) and to legitimize his own political aims. 86

Translation of textbooks, or translation of ideas, is a more complex phenomenon than generally acknowledged. It is not a homogenous, neutral and linear process and only on superficially can it be considered a vehicle for universalization. »The concept and practice of appropriation may thus reconfigure the status of translation as the produc-tion of texts that are not simply consumed by the target language and culture but which, in turn, become creative and productive, stimulating re-flections, theorizations, and representation within the target of cultural context«. 87

n

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Urs Matthias Zachmann

Does Europe Include Japan? European Normativity in Japanese Attitudes towards International Law, 1854–1945

Introduction

Europe has been an epistemological problem throughout Japan’s modernity (1868–1945). More than just a geographical region, it was the cultural reference point and yardstick, which measured Japan’s progress on the trajectory towards a Euro-pean present. This was the case in all important matters of state and society, but outwardly no more so than in Japan’s diplomatic dealings with west-ern powers and, soon, also with its East Asian neighbours. The key towards acceptance as a »reg-ular« power amidst the all-Western club of great powers was the complete and perfect adherence to the norms of international law which, of course, were set by the European powers and were there-fore an example of European normativity. Japan did so assiduously and with immense success, and within fiy years, Japan had acquired a hegemonic position in Northeast Asia and risen to the ranks of great powers. It is therefore not surprising that the few studies on international law in Japan focus on this early »success story« of reception. 1 How-ever, it is also for this reason that the same studies paint a rather bleak picture of Japanese attitudes towards international law as overly Euro-centric, passive and positivistic, with little or no creative input of its own. If taken positively, the Japanese case merely »exemplifies the universal applicability of the concept and logic of international law«. 2

In a sense, the emphasis on Japan’s adherence to European standards is a reflection of a Euro-cen-trist perspective in these studies itself which leads, conversely, to a rather light treatment of the later and darker side of Japanese attitudes towards in-ternational law that harboured considerable reser-

vations against European normativity and longed to regain normative autonomy (or »subjectivity« (shutai-sei) to use a more contemporary term). However, »Europe« or Euro-centrism has again come under attack in recent times and demands for readjustments such as »provincializing Europe« (Chakrabarty) or »reclaiming Asia from the West« (Wang Hui) are widely heard in the fields of cultural studies, global history and postcolonial studies. 3 Whatever the justification for these de-mands in general, the destabilizing critique of the western subject can be productive, too, as Thomas Duve has shown for the field of legal history. 4 It allows us to question fundamental parameters of European normativity, widen the scope and field of enquiry and thereby deepen our understanding both of western and non-western normativity.

This ratio certainly applies to the study of Japanese attitudes towards western normativity. The question whether Europe includes Japan may seem strange from a Euro-centric perspective of the concept, which has come to define Europe very much within the confines of geographical borders. 5 However, from the »outside«, such as Latin America or Japan, the question was histor-ically a very real one. From the very beginning of Japan’s re-establishment of contact with the west in the nineteenth century, positionality was an issue, and we can observe a constant debate on Japan’s standpoint vis-à-vis »Europe« in Japanese politics and the public which expressed either longing to »leave Asia« and become part of »Eu-rope«, or to »return to Asia« and reclaim its sub-jectivity. Either choice had dramatic consequences, most of all for Japan’s neighbours in East and Southeast Asia.

1 See inter alia Y (2012); A (2012); Y (2011); A (2004); O (1999), O (1986). For a more compre-hensive and detailed study, see Z (2013). – Note: Asian names are given in their traditional order, i. e. with their surname first.

2 A (2012) 742.3 C (2000); W (2005). 4 D (2013) and id. (2012).5 D (2013) 3–11.

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228 Does Europe Include Japan? European Normativity in Japanese Attitudes towards International Law, 1854–1945

The following essay will trace the whole trajec-tory of this discussion on positionality, i. e. beyond the usual focus on Japan’s final (but elusive) achievement of equality in 1905 and well into the darker and more troubled period of first tacit reservations towards European normativity and later open challenge through the concept of an alternative »East Asian International Law«. The benefits of this undertaking will be threefold: It will complement the history of international law and relations in general by clarifying the impor-tant, but so far under-researched motivations of the only non-western actor that, together with the western powers, shaped international politics until 1945. It will thereby shed light on the interpreta-tion of European normativity from a non-western perspective, including an early critique of its he-gemonic nature. And finally, it will demonstrate the complexity of developing alternative visions of international order and establishing an autono-mous »subject« merely on the basis of negating European normativity. Although beyond the scope of this essay, this insight may be also useful to discuss contemporary criticism of allegedly west-ern-centred normativity, as it is for example voiced in the human rights or global governance debate today.

1 European Normativity in Early Modern and Meiji Japan

Although it is oen said that international law entered Japan only in the last phase of the Tokuga-wa period (1603–1867), i. e. aer the arrival of Admiral Perry in 1853, 6 this is a somewhat Euro-centric statement. Arguably one could claim that there existed notions of international order and a normative understanding of it prior to the arrival of the western powers, especially if we adopt a wider definition of international law to accommo-date non-Western concepts. 7 Thus, the traditional notion that Japan had been an »isolated nation« (sakoku) during the Tokugawa Period has been contested for some time now, and it has become

an accepted opinion that Japan instead maintained a defensive order in the style of other East Asian nations with a very limited number of trade and political relations (the so-called »Tokugawa inter-national order«). 8 Moreover, from very early on, Japanese international lawyers argued that notions of state sovereignty and equality as basic elements of international law existed in Japan even during the early modern period, 9 which of course served as an explanation of why Japan adapted to the western order so much more quickly than, for example, China.

Whatever the truth to these assertions, the fact remains indisputable that Europe in early modern Japan played only a very minor, peripheral role, both as a political region and as a cultural refer-ence. Japan pursued political relations with Korea and the Ryūkyū Kingdom and economic relations with Dutch and Chinese merchants in Nagasaki (and relations with the Ainu in Hokkaidō that are difficult to characterize). The great absent power in this order was not a European power, but China, which played a far more significant role as the absent centre. Politically, the Tokugawa rulers did not want to submit to the hegemony of China and therefore refused to join its tributary system. How-ever, culturally it was omnipresent in Japanese society as the central standard of civilization. 10Europe as a cultural reference existed in the so-called »Dutch Studies« (Rangaku, due to the Dutch presence in Nagasaki), but these were oen thought as a complementary rather than alterna-tive knowledge to Chinese centrality.

This arrangement was replicated in the Japanese taxonomy of nations and ethnicities. Thus, Euro-peans were not considered an ethnic species com-pletely different from other, Asian foreigners with which the Japanese conducted relations. It has been observed that the term Tōjin, i. e. literally a »people of Tang China« or China in general, was commonly used in the Tokugawa period to all foreigners, including the people who resided on Dejima, the Dutch trading station in Nagasaki. 11Conversely, »Asia« was not a meaningful category for the Japanese either, as it was of wholly Euro-

6 E. g. S (1979) 1.7 Z (2013) 44–48. D

(2013) 16–18 argues for an inclusion of other forms of normativity; on the problem of assessing non-western in-ternational legal orders, see P(1976).

8 T (1984); Y (2012) 477–481.

9 E. g. T (1901).10 J (1992).11 W (2012) 315; J (1992)

86–87.

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Urs Matthias Zachmann 229

pean provenience, with no expression in reality as a communal identity among Japanese and »Asian« nations. Thus, the proto-nationalist scholar Aizawa Seishisai wrote in 1833:

The Western barbarians have allocated names to the continents, such as Asia, Europa and Africa. However, this allocation of names is an outra-geous abuse because such names have not been approved by the Emperor of Japan nor are these ›universal names‹ that have been conventionally accepted since antiquity. It is only the Western-ers’ arrogance that has made them use the term ›Asia‹ and include our divine land [Japan] as part of it. For that reason I will never use the names they have given. 12

Thus, the accustomed binary of opposites, Eu-rope and Asia, did not exist in early modern Japan, nor were Europe and its laws the dominant refer-ence point for the Japanese.

This changed dramatically with the so-called Meiji Restoration (1868) that nominally restored the powers of the emperor, but in effect led to a political oligarchy of patriarchal rulers under im-perial auspices which henceforth pursued a drastic modernization course along western lines. One of their first measures was a pledge of the emperor and his feudal retainers to five »oaths« that could be considered as fundamental policy principles. The fourth and fih declarations already pointed towards a positive engagement with western knowledge in general and international law in particular:

Item. We shall break through the shackles of former evil practice and base our actions on the principles of international law.Item. We shall seek knowledge throughout the world and thus invigorate the foundations of this imperial nation. 13

It should be mentioned that the phrase given in this modern translation as »international law« originally reads in Japanese as tenchi no kōdō, a phrase laden with Neo-Confucianist meaning that

would most literally translate as »the Common Way of Heaven and Earth«. Thus, there are dozens of alternative translations, such as »just and equi-table principles of nature« (transl. 1909) 14 or »just laws of nature« (transl. 1958/2005). 15 This example may already illustrate the general linguistic diffi-culty of including other forms of normativities in legal history, 16 when the original text is very ambivalent about the scope of meaning in the first place.

Whatever the intended meaning of the above declarations in theory, they very centrally came to apply to international law in the practice of the new Meiji government. Whereas the old Tokugawa government was reluctant to enter diplomatic treaties with the western powers and sought to mitigate their impact through negotiation as much as possible, 17 the new Meiji government declared immediately aer the succession to power that it would honour the treaties (which was remarkable in that it had fiercely attacked the old government for concluding them in the first place) and set about to actively »seek knowledge throughout the world« (item 4 of the Charter Oath). 18 For inter-national law, this was done through four channels of knowledge dissemination: contact with western diplomats, the translation of books, Japanese stu-dents going abroad and western experts coming to Japan. 19

Already prior to the Meiji Restoration, the scholars Nishi Amane and Tsuda Mamichi were sent abroad to study international law and other subjects at Leiden in the years 1863–1865. Upon their return, Nishi compiled his notes and pub-lished them in 1868 under the title Bankoku kōhō(The public law of nations) as the first treatise on international law written by a Japanese. 20 Hence-forth, it became de rigeur for all Japanese experts of international law (and law in general) to make their »grand tour« through European or US uni-versities before assuming permanent positions in Japan.

The first book on western international law in Japan was, in fact, a reprint of a translation into classical Chinese. Thus, in 1864, the American mis-sionary William A. P. Martin published a Chinese

12 S / S (2011) vol. 1, 49 (transl. Matsuda Kōichirō).

13 As translated in B (1996) 410.14 K (1909) 45.15 DB et al. (2005) vol 1, 672.

16 D (2013) 16.17 Cf. A (2004).18 Z (2013) 48–84; see also

A (2012), A (2004), M (1994)

19 A (2012) 732.20 On Nishi, see M (1973). Tsuda

Mamichi later became influential in the reception of civil law in Japan, see R (2005).

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translation of Henry Wheaton’s Elements of Inter-national Law (1836) to assist the Chinese Foreign Ministry under the title Wanguo gongfa. 21 As edu-cated Japanese could read Chinese, this was reprint-ed in Japan (under the same title Bankoku kōhō). However, soon many more translations of author-itative western works directly into Japanese ap-peared. 22 In 1873, for example, Mitsukuri Rinshō published his translation of Woolsey’s Introduction to the Study of International Law (1860) under the title Kokusaihō, ichimei bankoku kōhō (»Internation-al law, also called the law of nations«) and this is considered the first usage and origin of the current Japanese word for international law – kokusaihō.

Finally, foreign experts, so-called o-yatoi gaiko-kujin (employed foreigners), played an important role in the early decades of Japan’s modernization. Thus it is well known that many of the Japanese codes of law that are still extant today – especially in civil law – were craed with the help of foreign experts. 23 The field of international law was no exception to the practice of hiring foreign exper-tise, and the names of E. Peshine Smith, Charles William Le Gendre, Gustave Boissonade, Henry Williard Denison and Thomas Baty are integral to the history of international law in Japan. 24 Some of these foreign experts – although none of them as specialists – taught the subject at Japanese uni-versities. However, as a matter of sustainability, but also of prestige and more importantly, of budget-ary constraints, the Japanese government sought to make the costly foreign experts redundant as soon as possible and employ native talent instead. This was realized in the 1890s, when Japan finally made a major step towards joining Europe.

It should be kept in mind that from the outset, the overarching goal of Meiji foreign policy was to renegotiate the initial treaties that had been con-cluded with the western powers between 1858 and 1869 and achieve a more equal standing vis-à-vis Europe. Due to their lack of reciprocity in tariffmatters and the privilege of consular jurisdiction for foreigners, these treaties were considered »un-equal treaties« (fu-byōdō jōyaku). 25 The Japanese

government thus, as soon as the last treaty had been concluded, tried to re-negotiate these, albeit to no avail at first, as the western powers and especially Britain long argued that Japan had not met the required standard of civilization, yet.

This led to a complete reversal of standards. If »China« had been the cultural standard in early modern Japan, the point of reference soon switched to »civilization« (bunmei kaika), which exclusively came to signify European (and by ex-tension American) culture. 26 However, in terms of strategy, Japanese politicians and intellectuals ap-plied the same to Chinese and European culture. Thus, they invariably argued that »China« or »Eu-rope« signified both a political and a cultural entity and that these dimensions were separate and in-dependent. »China« as manifestation of cultural hegemony could be wherever it was most perfectly realized. 27 Similarly, »Europe« in the eyes of Japa-nese became a modular, universal standard and was not limited to the geographic region. 28 Con-versely, Asia or »the Orient« as the binary opposite of Europe was a cultural concept and could not forever commit a country to being »Asian«. This is most apparent, for example, in the following ob-servation which a Japanese journalist wrote in 1884:

Therefore, what people today call »the Orient« is not the geographic Orient, but refers to the Orient of international relations. It is not an entity defined by natural geography, but it is called Oriental because all institutions of man-made society in a uniquely singular way differ from Europe. […] Therefore, supposed the Turkish Empire would change all things of their society, from the political system, law, religion, science etc. down to everyday clothing, food, housing, and transform everything into the European style, there is no doubt that nobody would consider it Oriental anymore, and that from that day on [Constantinople] would be added to the capitals of the great countries in Europe. 29

21 On Martin’s translation and other early translations into Chinese, see K (2012).

22 Z (2013) 78–80; Y (2011) 454.

23 See R (2005).24 See I (1973) 11–18.25 See K (2007).

26 On this radical shi, see W(2012) 315–390.

27 H (1980) 1628 Z (2009) 18–20.29 Hinohara Shōzō, Nihon wa Tōyō-koku

taru bekarazu (Japan must not be an Oriental country, 1884), as translated in Z (2009) 19.

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These hopes seem too sanguine for the Ottoman Empire in hindsight, but only served as a hypo-thetical model for Japan at the time. And it is only from this perspective of Europe and Asia that we can understand the popular idea that Japan should »leave Asia« (datsua) and, possibly, join Europe. 30

However, joining Europe was more than any-thing a matter of perception, not just power. Thus, the demonstrative application of international law in relation to western powers, but also towards Japan’s neighbours was another means to gain the recognition of Europe. Demanding neutrality from the western powers during the Boshin War (1868–1869) and declaring neutrality during the Franco-Prussian War (1870–1871) were early ex-amples of such a demonstrative use. 31 However, between 1871 and 1895, Japan had much more occasion to use international law as an effective tool of imperial careerism in relation to its East Asian neighbours. Thus, in 1871, Japan tried to foist an »unequal treaty« on China, but failed for the time being due to lack of credible military leverage. 32 It was more successful in bullying Korea into concluding the so-called Kanghwa Treaty in 1876, arguably Japan’s first success in western-style »canon boat diplomacy«. However, Japan’s breakthrough came with the first Sino-Japanese War (1894–95). 33 The peace treaty with China in April 1895, the so-called Shimonoseki Treaty, was in part an unequal treaty in the style of other European-Chinese treaties. Thus, Japan had assumed the role of Europe in its relation towards China and Korea. Moreover, through annexation of Taiwan, it also became the only non-western colonial power at the time. This position was consolidated through the annexation of Korea in 1910.

The war with China also gave Japan the long-desired opportunity to demonstrate its knowledge of the law of war. Although there remain doubts as to Japan’s actual compliance in certain cases, 34Japan had two of its prominent international lawyers, Ariga Nagao and Takahashi Sakuei, pub-lish scholarly treatises in English and French to

publicize the absolute correctness of Japan’s war-fare; their effort found support in prefaces written by the influential British scholars John Westlake and Thomas Erskine Holland. 35 Japan pursued this line of »responsible« global citizen by actively participating in the two Peace Conferences at The Hague in 1899 and 1907, despite the fact that their common goal, the limitation of war, did not necessarily serve Japan’s expansionary policy. 36

Japan’s strategy of presenting itself as diligent and studious pupil of Europe soon produced tan-gible results in its relations to the western powers. Thus, the shiing balance of power led Britain to accept a new, more equitable treaty with Japan in 1894. Other powers followed suit and the odious institution of extraterritoriality was abolished in 1899, when the new treaties came into effect. Thus, only thirty years aer Japan had concluded the last unequal treaty in 1869 it had rid itself of this barrier and acquired the »certificates of civiliza-tion«, as the new treaties were aptly called. 37 Bri-tain seemed to confirm this valuation by conclud-ing the so-called Anglo-Japanese Alliance in 1902. Although this was more an expression of British weakness than of Japanese strength, it helped to prepare the way for the Russo-Japanese War (1904/05), the result of which catapulted Japan into the position of hegemonic power in Northeast Asia for the next decades. Once again, Japan used the war to propagate its high standards of compliance with the law of war. 38

The years 1894–1905 thus had a tremendous impact on Japan’s status and the political geogra-phy of Northeast Asia. This was also reflected in the status of international law as a discipline in Japan. If international law had been important from the start as a practice (and therefore also dictated the very pragmatic approach to international law at the time), 39 it was only a minor academic discipline which, as we have seen above, was only taught on the side at universities. However, this changed in 1895, when the first chair for international law was established at Tokyo University. When Kyoto Uni-versity was founded in 1899, it already had a chair

30 »Leaving Asia« (Datsua-ron) is the title of a famous editorial written by Fu-kuzawa Yukichi in 1885 that has come to signify Meiji foreign politics in general. For a full translation, see C E A C S (1973) vol. 3, 129–133.

31 Cf. A (2012) 735 f.; Y(2011) 452 f.

32 Z (2013) 62 f. 33 Z (2009) 31–54.34 See H (2007) and (2008).35 H (2007) 186–200.36 Z (2013) 76 f.

37 Cf. Z (2013) 61.38 I (1973) 33–36.39 A (2012) 734 f.

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for international law right from the start. 40 The sudden rise in status was no coincidence; the Sino-Japanese War and the Russo-Japanese War pro-vided a huge stimulus for international law in Japan. 41 The same applies to the Japan Society of International Law (Kokusaihō gakkai), one of the oldest professional associations in the world, which was founded in 1897 as an unofficial think tank for the Ministry of Foreign Affairs to deal with the arising issues in relation to the peace treaty with China. 42 Again, this points at the immensely prac-tical role of international law even as an academic discipline. Thus the second chair holder at Tokyo University, Tachi Sakutarō, simultaneously served as permanent advisor of the Foreign Ministry until his death in 1944. Likewise, all other international lawyers until 1945 served more or less frequently on an ad hoc basis as advisors to the Foreign Ministry. 43 This may be one of the reasons why Japanese international lawyers, especially the older generation, had an immensely positivistic, policy-oriented approach towards international law. If Japanese leaders wanted Japan to »join Europe«, it was not their task to question Europe.

However, this does not mean that engagement with Europe was wholly uncritical. On the con-trary, a certain estrangement or disaffection with the modernization course could be felt from the early 1880s onwards, when the Japanese govern-ment came under criticism as being too subser-vient to the western powers in the treaty renego-tiation process. 44 The real break came in the 1890s, when Japan finally vanquished China as its East Asian competitor and therefore entered into direct confrontation with the western powers. The first proof of this came on the very same day that the conditions of peace with China were published in Japan in May 1895 and the public learned that Russia, France, and Germany had intervened and pressured Japan in retroceding an important stra-tegic point (Port Arthur) back to China (Tripartite Intervention). 45 If the official explanation that this was for the sake of »peace and stability in East Asia« seemed hollow to many readers at the time, they

were infuriated to learn in late 1898 that Russia had taken the very same spot by force, followed by Germany occupying and ›leasing‹ Shandong (the so-called Far Eastern Crisis). 46 Thus, the influential journalist Kuga Katsunan lambasted the double standard of western powers which, under the loy pretexts of the mission civilisatrice and a »new interpretation of international law« merely justi-fied their personal greed and egoism:

The ideology of civilization [bunmei no shugi] says: ›Generally speaking, all the superior races of the world should encourage the unenlight-ened people and let them follow civilization. They should admonish countries in disorder and let them attain peace and order.‹ Europeans call themselves civilized people. However, on grounds of racial otherness or differences in the national way, they exclude others and looking for an easy pretext, they pilfer property and rob territory or suppress their freedom or limit their independence. Thus, the so-called ›conveniences of civilization‹ [bunmei no riki], have turned again into dangerous weapons of barbarism. 47

This became the standard rhetoric of protest against a European double standard, alleged or true, until 1945. For the time being, the critique was voiced only unofficially, in the Japanese public opinion, but never from the government side. However, many politicians, diplomats and intellec-tuals sympathized with this perspective. More im-portantly it came to condition the perception of international politics and the actions of the west-ern powers as inherently selfish and hypocritical even in cases when objectively there was no reason for such allegations or where at least there was doubt. This was already so in contentious cases of consular jurisdiction during the 1880s in which foreigners were involved and which were tried not by Japanese, but consular courts. In most cases we cannot observe decisions biased towards foreigners and discriminating against the Japanese party, de-spite public Japanese opinion. 48 Moreover, the so-

40 Z (2013) 81–84.41 I (1973) 33.42 I (1973) 126–143.43 O (1986) 33.44 On the perspective of major Japanese

intellectuals, see P (1969).45 Z (2009) 36–39.

46 Z (2009) 55–88.47 Kuga Katsunan, »Shina bunkatsu no

mondai« (The problem of China’s partition), 1898, as quoted in Z (2009) 82.

48 On these cases, see C (1984).

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called Yokohama House Tax case before the Perma-nent Court of Arbitration (1902–1905) is oen cited by Japanese legal historians as the watershed when the Japanese lost trust in the fairness of international law and international arbitration. 49However, closer inspection does not necessarily uphold the verdict of an unfair and biased deci-sion. The decision that Japan could not levy an isolated tax on houses of which the properties had been already exempted does not seem wholly arbitrary, at least from the perspective of continen-tal law of property. Yet, whatever the correct interpretation in this case, so ingrained was the assumption that Japan was the victim of power politics that this became the standard impression of the Japanese public in the following decades and even survived the war. 50

This is not to say that, at least on the point of racial discrimination, there was not grounds for complaint. It is well known that Japan’s unex-pected victory in the Sino-Japanese War and rise towards hegemony in East Asia led to the first example of Japan-bashing in history and a resur-gence of the »clash of races« discourse which has been hitherto subsumed under the phrase »yellow peril«. 51 The German emperor had a notable role in this, but the discourse was widespread in Britain, the dominions and the US as well. Most troubling in this latter respect was the question of labour migration, 52 but national prestige and interna-tional status were also at stake. The Japanese gov-ernment therefore desperately tried to counter this image and discouraged all notions that would further incite the western fears, such as calls towards a pan-Asianist solidarity in open opposi-tion against the western powers. 53 For the same reason, any challenges towards European norma-tivity in the form of alternative visions of order were unthinkable. This remained so for the next three decades, until 1931.

2 Western normativity during the InterwarPeriod, 1905–1931

The First World War is oen seen as the water-shed, the »original catastrophe« of the twentieth century which laid waste to the belle époque of the long nineteenth century and initiated the cataclys-mic convulsions that gave rise to a new epoch. 54However, this again is a somewhat Euro-centric perspective and does not apply to Japan. If we speak of an »interwar period« in the Japanese context at all, it would be more appropriate to let it begin with the Russo-Japanese War (1904/5), which signalled the consolidation of empire, and let it end with the year 1931, when Japan entered a second and self-destructive round of expansion. This period also tallies with a certain attitude of growing reservations towards western normativity, and international law in particular.

The »Great War« from the perspective of Japan was but a distant occurrence and consequently came to be called the »European War« (Ōshū sensō) in Japan. By and large, the government used the war to consolidate Japan’s position in East Asia and extend it towards the German possessions in Shan-dong and Micronesia. It was therefore less than thrilled to hear about the new developments in diplomacy that has come to be known as »Wilso-nianism«. 55 Aer all, Japanese politicians and dip-lomats had been socialized and particularly suc-cessful in the traditional diplomacy of the »Great Game« and were wary of any change that would upset its »running horse«. Due to previous bad experiences with international arbitrations and interventions, they were particularly distrustful of any kind of multilateralization of the game that would allow powers not invested in the region to meddle and contain Japan’s position of power. Thus, the Japanese leaders first tried to ignore Wilson’s Fourteen Points, but felt confirmed in

49 O (1999) 357; Y(2011) 461.

50 For a discussion of the postwar iden-tification as victim, see O (2002).

51 G (1961); on racial con-structions in and of East Asia, see also K / D (2013).

52 Cf. M (1995).53 V (1974); Z (2009)

45 f., 66–73.54 S (1997) 5.

55 For Japan’s position during the war, see Dickinson (1999).

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their suspicion when Wilson’s call to »national self-determination« threatened to upset colonial rule in Korea in the spring of 1919. 56

On the other hand, the foreign policy of Japan during the interwar year is oen praised as the most »internationalist« and liberal phase of its diplomacy until 1945, as Japan outwardly joined in most international agreements and institutions, even against its own immediate self-interest, and seemed to acquiesce in limited containment of its military. In this respect, Japan continued its policy of presenting itself as responsible »civilized country« in the midst of European powers. The »Shidehara Diplomacy« (named aer its most prominent representative, Foreign Minister Shide-hara Kijūro) is oen seen as the consistent outward expression of the so-called »Taishō Democracy« (ca. 1905–1932), a similar liberal trend in Japanese domestic politics signalled by the ascension of party rule and the extension of the ballot to male universal suffrage. However, in the same way as the »Taishō Democracy« had a very repressive second face and narrowly limited political expression which seemed to threaten its middle-class and elite base (i. e. especially Socialist and Marxist groups), the liberal foreign policy had a dark undercurrent and was determined to forestall all new develop-ments that threatened its »special interests« in Northeast Asia.

Thus, when the Japanese delegation was sent to the Paris Peace Conference in 1919, it was the only one which did not have a dra of its own for a »general association of nations« (point fourteen of Wilson’s declaration). 57 On the contrary, even Vice Foreign Minister Shidehara opined at the time that it would be »extremely troublesome« (meiwa-ku shigoku) if such a multilateral organization came into existence and that Japan should go along with it only if it could not be helped at all. 58 The Japanese delegation soon had to accept the inevi-table and sought to salvage the situation by at least placing a racial equality clause into the Covenant of the League of Nations. 59 This was done less for the sake of solidarity with non-western races as for the simple calculation to improve Japan’s standing

vis-à-vis the western powers and mitigate problems with labour migration. It is exactly for the latter reason (and the latent fear of a »yellow peril«) that the British dominions, especially Australia, struck down the proposal.

Feelings towards the League of Nations there-fore were ambivalent from the beginning even among international lawyers. Tachi Sakutarō, per-manent advisor of the Foreign Ministry and mem-ber of the Japanese delegation to Paris, commented in 1918 on the idea of the League of Nations:

Peace in the world will not be maintained merely on the basis of the Covenant of the League of Nations, but has to find its roots in the firm belief of nations in the real benefits of peace. […] No nation will be persuaded by sweet words alone. But it will be no easy task to make the nations understand the benefits of peace and willingly shoulder the burdens of a League of Nations, as long as there will be nations in peacetime which monopolize the huge natural resources of the world, completely shut out other nations from it and deny them their so-called »spot in the sun«, or as long as some nations will suppress and persecute other peoples because of differences in race, language, culture and creed. 60

Although Tachi did not name names, it was abundantly clear – and made much more explicit in other publications of a similar tenor – that his critique was directed mainly against Britain and the US, i. e. the »Anglo-American Centred Peace« (as another famous pundit, Konoe Fumimaro, called and rejected the Paris agreements at the time). 61

A similar combination of outward compliance and inner reservations can be observed in the Washington Treaties of 1922. These were even closer to home, as they ended the Anglo-Japanese Alliance, re-confirmed the US-American Open Door-Policy in China (Nine Power-Treaty) and, even more threateningly to nationalists, limited Japan’s naval power as part of a general quota

56 M (2007) 97 f.57 B (2007) 60.58 Z (2013) 93; B

(2007) 16.59 S (1998).

60 T (1918) 14.61 For a partial translation of Konoe’s

notorious article, see S /S (2011) vol. 1, 315–317 (transl. Eri Hotta).

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system (Washington Naval Treaty). Japan on the surface acceded to the agreements. However, part of the Japanese leadership was only willing to do so if the agreements did not touch Japan’s »special interests« in Northeast Asia. 62 Thus, they accepted the Nine-Power-Treaty only with the understand-ing that it tacitly recognized Japan’s interests in Manchuria. 63 However, such subterfuges, if they were known at all, did not placate nationalists in Japan who fiercely protested against any limita-tions of Japan’s powers in East Asia, and vented their anger in a series of political assassinations. 64

The inner reservations against western norma-tivity of the interwar period were most apparent in the case of the other hallmark of Wilsonian institutions, the Kellogg-Briand Pact or Pact of Paris of 1928. 65 This Pact, which sought to outlaw war by a single stroke of the law (and became the predecessor of Art. 2 No. 4 UN Charter and Art. 9 of the Japanese Constitution of 1946), was a de-ceptively simple piece of legislation on the surface, but with treacherous depths underneath. Both France and Britain declared reservations, the for-mer a general exception for wars fought in self-defence (thus simply shiing the problem to the definition of self-defence), the latter concerning »certain regions« in the world in which Britain had vital interests, but remained conveniently unde-fined (the so-called »British Monroe Doctrine«).

The Japanese government, which was just in the middle of another troublesome »expedition« to politically unstable China, viewed the Kellogg-Briand Pact with wariness, lest it would circum-scribe Japan’s abilities to »defend« its interests on the continent in the future, as well. The involved parties deliberated whether they should make a reservation similar to Britain with regards to Man-churia, i. e. declare another »Japanese Monroe Doctrine«. However, in the end, cautiousness won the day and Mori Kaku, one of the prime minister’s advisors, cunningly argued that such an open reservation would merely incite the suspi-cions of the western powers and without necessity circumscribe Japan’s actions in Northeast Asia. It

would be much more beneficial for Japan to just wait and see and invoke Britain’s precedent when it was necessary and politic. 66 In the end, Japan joined the Pact without open reservations, but made sure that its representative communicated Japan’s concerns regarding Manchuria verbally to the other major powers.

Japanese international lawyers by and large viewed the Pact with great scepticism. This was less because of its many loopholes, which the Japanese public criticized. On the contrary, they feared that the Pact was too ambitious and unrealistic in the face of real power politics. As in the case of the League of Nations they argued that the Pact merely served to uphold the status quo by out-lawing war to enforce (legitimate) change. It was therefore, again, in the interest of great, monopo-lizing powers and to the disadvantage of smaller, but ambitious and upcoming nations. The interna-tional lawyer Taoka Ryōichi formulated the defects of the Kellogg-Briand Pact from the perspective of Japan thus:

In my opinion, the real deficit of the Kellogg-Briand Pact lies not in its many reservations, but in the fact that it outlaws war as a means of self-help [jiryoku kyūsai] for states whose rights have been violated, but without providing any sub-stitute for this. 67

Taoka continued that such an arrangement would merely encourage violations of internation-al law, as the harassed country now was prohibited to strike back. It is quite obvious from the context of these arguments that, again, Japanese interests in Manchuria, which were felt to be threatened by Chinese actions, were at the core of these concerns.

Therefore, on the surface Japan in the interwar period seemed to continue its pro-western policy and accepted European or western normativity without formal reservations. However, the chasm which had opened up in the late Meiji period due to the increased potential of conflict and friction with western powers became ever wider under-

62 I (1965) 62.63 Z (2013) 96 with further

references.64 Prime Minister Hara Takashi was

murdered in 1921, on the day of the opening of the Washington Confer-ence; Prime Minister Hamaguchi

Osachi was attacked and subsequent-ly died in 1931 on occasion of the London Naval Treaty; many others followed.

65 On this in more detail, see Z(2013) 121–157.

66 Z (2013) 140 f.

67 T (1932) 33; Taoka uses the English word substitute.

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neath. To the alleged double-standard in European normativity, Japanese politicians and international lawyers reacted with a similarly complex attitude of honne (real intent) and tatemae (public face). The real intent was to protect Japanese hegemony in Northeast Asia and, if possible, regain normative autonomy over it. This desire for autonomy was manifest in the »special interests« of Japan in Manchuria, and as we shall see, Manchuria became the core or seed for a Japanese exclusive sphere in Asia and raison d’être for an »East Asian Interna-tional Law« when all political pretences to sub-mission to East Asian normativity fell away.

3 From Western Normativity to an »East Asian International Law«

The great watershed in Japanese modern diplo-matic history is the so-called Manchurian Incident of 1931 in which the notorious Kwantung Army (Japan’s overseas army stationed in and around Port Arthur since 1905 to guard the South Man-churian Railway) staged an attack on the tracks of the railway near Shenyang and, pretending to defend it, in the course occupied the whole of Manchuria. It subsequently established the puppet regime Manzhouguo in 1932, again on the pre-tences of Manchurian »national self-determina-tion«. 68

The Japanese government, although not happy with the methods of the Kwantung Army, certainly was not unsympathetic to its immediate aims and soon endorsed the faits accomplis by »recognizing« Manzhouguo. However, China protested to the League of Nations, as is well known, and aer a protracted debate, the Japanese delegation le the General Assembly in 1933 never to return. The decision to withdraw from the main body of the League of Nations is one of the more puzzling problems of Japanese diplomatic history, as the League of Nations, despite formal protest, basically handed Manchuria to Japan on a platter (under the construction of an autonomous region Manchuria with foreign, mostly Japanese advisors) and all but factually recognized Manchuria in practical

terms. 69 Especially the great powers kept a suspi-ciously low profile. It is true that US Secretary of State Stimson declared the principle of non-recog-nition of territorial changes brought about by use of force (Stimson Doctrine), but he did not want to follow up with sanctions, as public opinion was against sanctions. The British government consid-ered Stimson’s declaration a »publicity stunt« and internally showed a very understanding attitude towards Japan. 70

Whatever the motivations of the Japanese gov-ernment, in the light of the effectively very lenient attitude of the western powers towards Japan’s actions in East Asia, Japan’s withdrawal from the League of Nations all the more emphasizes its in-tention to rid itself of European heteronomy and establish a sphere of autonomous rule. One of the most frequent criticisms against the new develop-ments of international law – be it the League of Nations, the Geneva Protocol, or the Kellogg-Briand Pact – was (apart from the fact that they sought to uphold the status quo) that these insti-tutions were largely craed with the Europeansituation in mind and in order to govern Europeanaffairs. 71 They were inapplicable to the wholly different situation and interests in East Asia in the first place. Thus, an alternative regional order for Japan’s »sphere of interest« should replace European normativity.

The scope for this new order grew with the es-calation of the conflict in East Asia. At the begin-ning, Manchuria formed the core of the new »sphere«. When the second Sino-Japanese War broke out and Japan occupied the coastal area of China in 1937/38, the sphere expanded accord-ingly; in 1938, Prime Minister Konoe Fumimaro sought to rationalize Japan’s advance by declaring a »New Order in East Asia« (Tōa shin-chitsujo) that envisioned a union of solidarity among Japan, Manchuria and China on the basis of »same race, same culture«. Similarly, when Japan advanced even further south and into Indochina, a new declaration was issued in 1940 that proclaimed the establishment of the »Greater East Asia Co-Prosperity Sphere« (Dai-Tōa kyōei-ken) in East and Southeast Asia for the »liberation« of this region

68 On the Manchurian Incident in more detail, see Z (2013) 159–203; N (1993).

69 Z (2013) 176 f., 183–185.

70 N (1993) 184.71 See Z (2013) 139 (Geneva

Protocol), 157 (Kellogg-Briand Pact), 182 (League of Nations).

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from western imperialism and the realization of a common destiny (less defined than in the »New Order«) through co-operation. 72

The declaration of the Greater East Asia Co-Prosperity Sphere finally set the stage for the am-bitious project of an »East Asian International Law« (Tōa kokusaihō). 73 In December 1941, simul-taneously with the attacks on Pearl Harbour, the Japanese Society of International Law applied for status as a foundation and henceforth dedicated itself under the auspices of the Ministry of Foreign Affairs to the »study and investigation of the international law which governs the relation be-tween the member states and peoples of the Great-er East Asia Co-Prosperity Sphere«. 74 To this end, the society set up a number of committees, among which was the »Committee for East Asian Interna-tional Law« (Tōa kokusaihō i’inkai). All influential international lawyers in Japan were members of this committee, albeit with a varying sense of com-mitment. Thus, the older generation such as Tachi Sakutarō, Yokota Kisaburō and Taoka Ryōichi re-mained more in the background and were less conspicuous in their activities than the younger, among which especially Yasui Kaoru (Tokyo Im-perial University) and Tabata Shigejirō (Kyoto Im-perial University) made the most relevant contri-butions to preliminary studies of an »East Asian International Law«.

To understand the context and atmosphere in which this project was undertaken, it should be kept in mind that by 1941, international law had lost much or all of its authority in public opinion and, as the realities in the theatres of war demon-strated, was deemed dispensable in practice by the Japanese military as well. If the Manchurian In-cident in 1931 still had been discussed in terms of legality, such a concern was considered a wasteful luxury by 1941. For more than ten years, positive international law had been openly criticized as a European concern and thus discussion on these grounds were ridiculed in the press as a »conversa-tion between fish and birds«. Japanese ultranation-alists even argued that the concept of law as such (i. e. the notion of duties and rights) did not fit East Asian mentality and would be unnecessary under

enlightened imperial rule. Moreover, although militarists certainly acknowledged the propaganda merits of the »Co-Prosperity Sphere«, they loathed its egalitarian pretences and decried its »cosmopo-litism« as a miniature version of the hateful inter-nationalism of the 1920s and therefore »un-na-tional« (hi-kokumin-teki). 75

In setting up an alternative »international law«, Japanese international lawyers therefore argued from a defensive position, trying to defend the law as well as their profession. More importantly, they had to cope with an even profounder prob-lem, namely the epistemological problem of how to come up with an alternative »East Asian« order from scratch, i. e. without anything to go on and without relying on gradual development from the existing European normativity. Since the project remained – luckily – unfinished and was aborted aer less than three years by the end of 1944, when defeat seemed inevitable and imminent, we have but a small number of preparatory studies that indicate the direction which Japanese international lawyers took to tackle this problem. To summarize it in general terms, they maintained a gradualist, »rational« approach and defended the necessity to develop new law on the basis of a critical evalua-tion of existing models and concepts of interna-tional order. However, in choosing their models, they deliberately opted for those which stood in contrast to classical European normativity or posed a recent, revisionist threat to it, i. e. made use of the split in European normativity itself in recent times.

Despite the Pan-Asianist pretences of the Co-Prosperity Sphere, the »East Asian International Law« as its underlying legal framework thus was to become a hybrid of many sources. At its most obvious, traditional level, the US-American Mon-roe Doctrine set the example of a sphere outside European interference. A Japanese or »Asian Mon-roe Doctrine« had been a recurrent subject in Japanese discussions since America’s rise to impe-rial power in 1898, and in 1932, Tachi Sakutarō once again confirmed that, if the US and Britain had legitimate interests to protect their spheres of influence, even more so did Japan have a case for Manchuria.

72 For translations of these Pan-Asianist declarations, see S / S(2011) vol. 2, 167–174, 223–227.

73 For a more detailed discussion, see Z (2013) 205–260.

74 »Business plan« of the society, De-cember 1941, as quoted in Z(2013) 229; see also T (1995).

75 Cf. Z (2013) 210, 267–269.

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That Japan’s interest to guarantee Manchuria’s security in Manchuria is even greater than that of the US on the American continent and Britain in Egypt and Persia is proven by the fact that we have been already forced once [during the Russo-Japanese War 1904/05] to send a large army to this region. 76

However, to add structure to the »Japanese Monroe Doctrine«, younger colleagues such as Tabata Shigejirō and Yasui Kaoru added new layers and used Soviet and Nazi German concepts of international law. 77 As we shall see, especially useful for this purpose were Carl Schmitt’s concept of Großräume (autonomous large spaces), Evgeny Korovin’s »international law during the transition-al period« and (more as a cautionary tale) Evgeny Pashukanis’ ultra-realist interpretation of interna-tional law. 78

Thus, in a seminal essay on the »Plural Con-struction of the International Legal Order« (Koku-saihō chitsujo no tagen-teki kōsei), 79 Tabata sought to fracture the unity of the global international legal order by arguing that international law was not a »constitution« that set up a closed community out-side of which there was no legal life. Rather it was more of a lex generalis that could be derogated by more specific legal provisions for specific cases. Japan therefore had been an autonomous legal subject even prior to its accession to the western international legal order and it would be so even aer its withdrawal from it. Moreover, Japan could devise its own, more specific regional order or, in fact, become a member of multiple orders. Although Tabata never quotes Evgeny Korovin directly, it is already obvious from the wording of the title of his essay that Tabata refers back to Korovin’s idea of a »plural construction of modern international law as a totality of several different legal planes« which Korovin developed in his International Law during the Transitional Period(1924, Japanese translation 1933).

Similarly, Tabata shared Korovin’s gradualist and conservative approach to the development of

new law in recommending critical legal history as the only rational point of departure:

During transitional phases it oen happens that people assume a radical stance that naively rejects all manifestations of the past without sufficiently testing the foundations of their val-idity. […] Generally speaking such a direct negation of historical manifestations, i. e. the establishing of a new order as if one could create something out of nothing without any historical precedence, is not possible. This al-ways has to be done through the negation of the past and this negation must be motivated by a profound analysis of the historical order. […] As long as we speak about the interna-tional law of the Co-Prosperity Sphere as a mere conceptual idea without historical analy-sis of the old international legal order, the question whether one agrees with the new law is not a theoretical issue, but merely a matter of [irrational] belief which leaves no room for constructive debate. 80

Thus, Tabata obviously sought to defend his gradualist and »traditionalist« approach against the growing criticism and impatience of ultrana-tionalist.

It is well known that Carl Schmitt’s theory of »autonomous large spaces with a prohibition against intervention of foreign powers« (1939) was highly influential in the construction of an »East Asian International Law«, even to the extent that it is considered by some as a mere replica of the former. 81 And indeed, the new law was deliber-ately called an »international law of large space« (kōiki kokusaihō, of which the German equivalent would be Großraum-Völkerrecht). 82 Thus, Yasui Kaoru devoted a large portion of his notorious study »Basic concepts of the European interna-tional law of large spaces« (Ōshū kōiki kokusai-hō no kiso rinen) 83 to the discussion of Carl Schmitt (the other, smaller portion to the Soviet authors Korovin and Pashukanis).

76 T (1932) 10 f.77 S / M (1978) 59; M

(2002) 15; Y (2004).78 S (1939); K (1924);

P (1935).79 T (1942/43); on this, see

Z (2013) 238–242.

80 T (1943) 11 f.81 E. g. A (2012) 741.82 Z (2013) 233 with further

references.83 Y (1942).

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However, what is oen overlooked is the fact that Japanese international lawyers used these references of alternative or revisionist »European normativity« in a creative way to serve their own particular ends in the defence against their ultra-nationalist critics at home. This is particularly obvious in the case of Carl Schmitt, whose theories Tabata Shigejirō, for example, used to defend international law against more racialist, hierarch-ical notions of »international order«. In the same way as Carl Schmitt had to defend himself against his racist nemesis Werner Best in Germany, Tabata argued (with explicit recourse to Schmitt’s de-fence) that even Carl Schmitt did not see the »large space« as a closed, homogeneous unity, but as an open structure which allowed for legal relations outwith and within the large space (i. e. not as a hierarchy of races). 84 Similarly, Yasui Kaoru, who was otherwise an explicit Sovietophile, used the example of Evgeny Pashukanis as a cautionary tale for the consequences of the excessive politicization of international law. Pashukanis is famous for his ultra-realist view of international law as an argu-mentative »weapon« in the hands of Soviet diplo-mats. However, due to his political involvement, Pashukanis finally fell victim to the Stalinist purges in 1937, and Yasui pointed out that this was the »inevitable fate of an international lawyer who subjected science [kagaku] completely to the dic-tates of politics«. 85

Thus, Japanese lawyers creatively used the mod-els and examples of an alternative »European nor-mativity«, not only for the construction, but also for the defence of law itself against those critics who would rather do without »normativity« alto-gether and proposed an imperial rule based on »moral« precepts and racial principles alone. Tragi-cally, the theatres of conflict during the Asia-Pacific War show that the lawless (and rather immoral) state had become already reality. In line with their general line of defence (and with the policy of the central government and the Ministry of Foreign Affairs), Japanese international lawyers tried to keep up the pretences that Japan was still fighting by the book of humanitarian law, and became in-

creasingly dissociated from reality. 86 Yet, their arguments betray the painful tension between law and reality, and point towards the inevitable moment when »total war« would have swept away all legal pretences and the discipline of interna-tional law altogether.

Conclusion

Luckily, but tragically, defeat in 1945 inter-vened. Under US occupation, Japan soon reverted to its accustomed commitment to positive interna-tional law and re-joined the western powers on the side of the US in the Cold War. Japanese inter-national lawyers, most of which remained in their positions of influence, mastered the transition with remarkable ease, not only personally, but also in terms of their international legal worldview. 87 If until 1945 East Asian »autonomy« had been the goal, Japan’s neutrality now became the vaunted ideal for many international lawyers. Likewise, arguments for the Co-Prosperity Sphere were swily rededicated to Japan’s commitment to the United Nations. Again, the US-Japanese Security Treaty of 1960 and the realities of the cold war soon destroyed dreams of neutrality and world government and Japanese international lawyers reverted to the rather »positivistic« and pragmatic approach to international law that characterized their initial encounter with it in the nineteenth century. 88

In looking back on the whole trajectory, one could argue that Japanese attitudes towards inter-national law for most of the modern period (1868–1945) were marked by an exceptional com-mitment to and acquiescence in European, or Western normativity. This was largely motivated by the consistent effort to rise as a power and »join Europe« (nyū’ō) or the ranks of the western powers. »Europe« in this sense was defined as modular, i. e. as a de-localized, universal standard which could be applied throughout the world and compliance with which ensured prestige and, ultimately, pow-er. »European normativity« therefore was more a

84 Z (2013) 240 f., also on Ja-panese attitudes toward Nazi racialist concepts of international order in general.

85 Yasui Kaoru, »Sovieto riron no ten-kai« (The development of Soviet

theory), 1937, as cited and discussed in Z (2013), 252 f.

86 In more detail, see Z (2013) 261–278.

87 See T (1995); Z(2008); Z (2013) 279–342.

88 Cf. Ō (1990).

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means of political expediency than intrinsic con-viction, and rather than describing the approach as positivistic it would be more appropriate to simply call it purely pragmatic. However, this does not mean that Japanese attitudes were uncritical. On the contrary, aer the initial phase (ca. 1854–1905) of receiving and practising the principles of inter-national law in its own foreign policy with con-siderable success, many Japanese began to feel a certain estrangement and inner reservation to-wards European normativity. This was less due to western international law as such than arguably the result of Japan’s rising status and the begin-nings of confrontation with Europe. Until then, Japan had been in no power position to challenge Europe, but gradually came into this position by consolidating its hegemony in Northeast Asia. Thus, Japan’s interwar period (1905–1931) was an uneasy combination of outward compliance and inner reservation, a tension that Japan even-tually resolved by withdrawing from »Europe« and the project of building an autonomous sphere of its own aer 1931. However, the example of Japanese international lawyers shows that in order to save international law from its ultranationalist critics and enemies, European normativity still remained a cultural reference, including its internal split in recent times. Classical European international law served as point of departure for critical historical studies; revisionist »European« (especially Soviet

and Nazi German) concepts and ideas served as current reference for the establishment of an »East Asian International Law«. Thus, from the perspec-tive of Japanese international lawyers, despite the Pan-Asianist pretences, Japan merely made use of the normative ri and fractured state of European normativity itself at the time, but never actually le»Europe«.

It is for this reason that Japan’s case does not comfortably serve as an historical example for challenging an allegedly still persisting European normative hegemony in international law. 89 On the contrary, as an example it throws a rather revealing light on the so-called »Asian Values« debate of the early 1990s which, more than any-thing else, should be understood as a similar at-tempt to re-negotiate universalism towards partic-ular ends and without a clear vision of alterna-tives. 90 This being said, the Japanese experience is also more constructively valuable in that it has engendered a heightened sensibility for the limi-tations of European normativity in the face of diverse historical and cultural experiences and a tradition for the holistic study of international law from a »social science« perspective which could be a useful complement to the study of European normativity from a global perspective. 91

n

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Fokus focus


Ute Frevert

Honour and / or /as Passion: Historical trajectories of legal defenses

I. Cultural translation versus historical amnesia

This article revolves around a case of cultural translation, or rather non-translation, that is firmly placed in the contemporary world but builds on a longer history of European normativity. The case concerns so-called honour killings or Ehrenmorde, as they are called in German.

We have been hearing and reading about them since the late 1980s, when they started to make news headlines across Europe. The facts are quite similar: usually, a male member of a family kills a female member in order to restore the family honour. The woman is considered to have violated this honour by transgressing the boundaries of what is perceived as appropriate behaviour for women, mainly concerning the sexual and moral standards of her group of origin. Honour killings of this sort are carried out amidst migrant families all over Europe: families of Turkish (in Germany), Somali or Indonesian (in the Netherlands), North African (in France) or Pakistani origin (in Britain), mostly Muslim. 1

The European public is outraged. Increasingly, and especially aer 9/11, Europeans tend to view these honour killings with outright disdain and contempt. They attribute them to religious beliefs, and they are quick to draw a strict line between ›us‹ and ›them‹: We, civilized Europeans of mostly Christian faith, respect women and have come a long way to establish gender equality in the family and beyond. They, Muslims from other, less civi-lized parts of the world, are stuck in antiquated, patriarchal, women-hating practices that might even include the ruthless killings of sisters, daugh-ters, and wives.

The article will question such narratives and perceptions – without, however, aiming to cast a

more positive light on so-called honour killings. What needs to be highlighted, instead, is the sense of hypocrisy that prevails among many Europeans who comment on those crimes and use them to distance themselves from anything ›Muslim‹. Their narrative is based on juxtaposing an enlightened European culture against a deeply flawed Muslim culture that degrades women. This juxtaposition rests on a sense of historical amnesia and an in-herent inclination to employ double standards of evaluation and judgment.

By radically ›othering‹ so-called honour killings, the European public (the legal profession in-cluded) adheres to a politics of cultural non-trans-lation defying the modern history of European penal law. Legal tradition in countries like Britain, France, Italy and Germany, diverse as it might be, has been more familiar with, and sympathetic to, honour killings than legal experts are generally willing to admit. In fact, what Europeans have come to understand, acknowledge, and excuse as a crime of passion, crime passionnel, Affekttat, had oen (and until very recently) been considered and partly justified as a crime of honour. It was mainly due to a wave of feminist criticism from the 1970s onwards that the glow of those crimes, which were deeply rooted in European culture and society, has faded. The fact that it faded into total oblivion, however, is noteworthy, for it allows ›us‹ Europeans to stage ourselves as superior, advanced, progres-sive, and civilized compared to ›them‹.

To engage in the work of cultural translation thus means to draw attention to the role European legal codes and practices played in initially legiti-mizing and eventually discarding practices of hon-our killings. This will be achieved by examining French, British, German, and Italian legal codes and practices from, roughly, the early nineteenth to the late twentieth century.

1 A (2013); O / K(2011); E (2008); E(2003).

Fokus focus

Ute Frevert 245

II. Crimes of honour and passion in European legislation

To historians interested in emotions and the role they play in modern societies, the law offers excit-ing insights and venues. 2 In the effort to under-stand when and why penal codes refer to ›affects‹ or ›passions‹ and how they influence criminal acts, historians encounter a striking detail: When they accepted passions as potential motives for criminal action, all modern legal codifications mentioned one situation in particular: a husband finding his wife in bed with another man and, in a fit of fury and jealousy, killing the other man (and /or the wife) on the spot.

1. France

The French Penal Code of 1810 was a bold stroke of Napoleonic legislation that was widely acclaimed for its clarity and consistency (but also criticized for its harshness). As such and to a certain degree it influenced most of the European legal codifications that ensued during the nineteenth century. Moreover, it had an impact on non-Euro-pean lawmaking. Japan adopted it during the Meiji reforms, and so did Turkey in 1858. By way of France’s imperial and colonial policy, the Code pénal became influential in countries such as Hol-land, Belgium as well as in the southern German states and the occupied Rhineland. 3 It was also introduced in many regions of Muslim faith, mainly in North Africa and the Middle East. 4

Regarding defense based on honour-related ar-gumentation, the Code kept it short and statutory. Those who draed it were not concerned with investigating individual motive, and they were not interested in fine or not-so-fine social distinc-tions. Instead, they tried to be as abstract and general as possible. So the Code simply stated that »homicide«, if »committed willfully, is denomi-nated murder« and »shall be punished with death«.

Yet, there were excuses, and a major excuse was provided in advance: »In the case of adultery […] murder committed upon the wife as well as upon her accomplice, at the moment when the husband shall have caught them in the fact, in the house where the husband and wife dwell, is excusable.« Under such circumstances, the death penalty »shall be reduced to an imprisonment, of from one year to five years«. 5

What resonated here was ancient Roman law, but somewhat soened. Under the auspices of absolute paternal power, a Roman father could have killed the violator of his daughter and the daughter herself without being punishable for his action. It was mostly an issue of property: a daughter belonged to her father’s household, and the violator was perceived as a thief who had broken in and stolen her virginity. The same logic applied to the husband of an adulterous wife – but, obviously, not to the wife of an adulterous hus-band.

When the French legislators considered a wife’s infidelity as a husband’s excuse for killing her and/or the other man, they revived the Roman tradi-tion without, however, letting the killing go un-punished. It was still considered a crime – but one that was committed under extenuating circum-stances. Those circumstances were not explained any further, by referring, for instance, to concepts of honour or passion.

2. Anglo-Saxon countries

In English law, manslaughter was introduced as a crime category in the early modern period in order to spare offenders with diminished responsi-bility the death penalty. Courts that had to decide whether a perpetrator had had little to no control over his actions tried to establish the subjective degree of his rage. Starting in the eighteenth century, rage was increasingly objectified by intro-ducing the concept of the ›reasonable man‹. This

2 B (ed.) (1999) 1–15.3 W (1890) passim.4 It has even been claimed that the

honour defense was not the product of Islamic law but introduced to Is-lamic countries through the French Penal Code (S [1991] 600). See also C (1964) 152: »Criminal law and procedure are almost com-pletely Westernised, though the last

few decades have witnessed a move-ment away from the French Codes towards other sources. In 1926 Tur-key promulgated a Criminal Code based on Italian law, and her Code of Criminal Procedure which followed two years later was of Germanic in-spiration. Italian law was also directly adopted by Egypt in her Criminal Code of 1937, is the predominant

influence in the current Lebanese Criminal Code, and has been amal-gamated with French law in the Criminal Code now operative in Libya.«

5 French Penal Code of 1810, access-ed at: www.napoleon-series.org/research/government/france/penalcode (19 May 2014).

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246 Honour and / or / as Passion: Historical trajectories of legal defenses

concept served as a benchmark against which the adequacy of provocation could be measured. As case law taught, insulting words or the sight of an unfaithful fiancée were not considered sufficient to provoke manslaughter, unlike witnessing adultery and physical assault. 6 As stated in a 1707 case: »Jealousy is the rage of man and adultery is the highest invasion of property.« 7»Jealousy is the rage of a man«: this was what

Daniel Sickles’ lawyers repeatedly quoted through-out the trial against their client, 150 years later. Sickles, a well-known New York Congressman, had shot and killed US District Attorney Philip Barton Key aer learning of the latter’s ongoing affair with his wife. Lawyer James Brady convinced the jury to acquit Sickles by arguing that he had only »yielded to an instinct which the Almighty has implanted in every animal or creature that crawls the earth«. No man who found before him »in full view, the adulterer of his wife«, could be asked to be »cool and collected«; instead »jeal-ousy will be the rage of that man, and he will not spare in the day of vengeance«. 8

Sickles had killed Key shortly aer learning of his wife’s infidelity. It could thus be argued that he had acted »in the heat of passion«, which granted him leniency. This is what became known as an »unwritten law« in American jurisprudence. Fran-cis Wharton, one of the country’s leading legal commentators, explained in 1855 that »a man smarting under a sense of dishonour« (by finding »another in the act of adultery with his wife«) and killing the adulterer »in the first transport of passion« was only guilty of manslaughter and »entitled to the lowest degree of punishment«. Dishonouring acts such as adultery were thus considered as »grievous« provocation to which a husband might »instinctively« react in a passionate and vengeful way. 9

This kind of »honour defense« usually encoun-tered a favourable reception on the part of jurors. Juries, composed of »average laymen«, felt sympa-thetic to the claim made in 1907 that »every man who has a family« knew how he would feel about an adulterous wife and the man who »invades the sanctity« of his home. To the »legalistic mind«, however, as a 1934 article in the Yale Law Journal

claimed, the recognition of honour motives con-doned private justice and »encourages a general disregard for all law«. 10

The ri between public opinion and ›all law‹ became particularly obvious in those cases where the ›heat of passion‹ argument was not effective. There were »honor killings« (as the Yale Law Journal called them) that took place long aer »the first transport of passion« (Wharton), like the one that happened in New York on 25th June 1906. At 11 pm in the rooop theatre of Madison Square Garden, 35-year-old Harry Kendall Thaw, son and heir of a Pittsburgh coal and railway baron, shot and killed Stanford White, a well-known New York architect. In this case, the heat-of-passion defense did not apply, and there had been no actual adultery involved: Thaw’s wife had not yet been his »property« when she met White. Yet Thaw’s lawyer tried to present the murder as a crime of honour: his honour was supposed to have been insulted by the architect’s disdainful treat-ment of the woman who had later become Thaw’s wife. In his closing statement, the defense lawyer’s strategy was to plead for insanity related to an honour issue: His client’s action was supposed to have been motivated by »that species of insanity which, if you desire […] to give it a name, I ask you to label dementia Americana. It is that species of insanity which makes every American believe that his home is sacred. […] It is that species of insanity which makes him believe that the honor of his wife is sacred. It is that species of insanity which makes him believe that whoever invades the sanctity of that home, whoever brings pollution upon that daughter, whoever stains the virtue of that wife, has forfeited the protection of human laws and must appeal to the eternal justice and mercy of God.« 11

The defense lawyer’s speech was noteworthy for two reasons: first, he translated the legal concept of insanity into the language of honour, thus trying to depict the killing as an act of chivalry. Second, he deliberately blurred the lines of distinction between adultery (»staining the virtue of a wife«) and treating a single, unmarried woman disrespect-fully. In both ways, he extended the notion of male honour to encompass issues that went beyond narrow property rights (»invading the sanctity of

6 D (1982) 426–428.7 E (2010) 230.8 K (2008) 285.9 W (1855) 33, 177.

10 Recognition of the Honor Defense under the Insanity Plea (1934) 813.

11 New York Times, 10 April 1907; cfr. U (1999) 417.

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Ute Frevert 247

the home«) extending to wider and allegedly no-bler moral concerns.

In ›legalistic‹ terms, the defense could not hold water. The jury, too, although usually sensitive to honour defenses, was hung. What stood in the way of granting Thaw a mild sentence was the long time between knowing about his wife’s former liaison and carrying out an attack against White. Legal experts framed this as a »cooling period« allowing for »immediate passion« to be succeeded by »sober reflection«. »However great the provoca-tion may have been«, homicide committed aer »cooling time« would be murder and punished accordingly. 12

But did slandered honour know cooling peri-ods? Was the insult perceived and felt with lower intensity aer a day or two had passed? This was the question that Thaw’s clever lawyer had asked and answered in the negative. And it was one of the questions that continued to haunt ›legalistic‹ minds when they, time and again, tried to make criminal justice less »inchoate« and »distorted«. 13Criticism was voiced not only by psychologists and psychiatrists whose expertise was increasingly sought from the late eighteenth century on-wards. 14 In the 1970s, feminists launched a major attack against the discriminatory bias of the heat-of-passion doctrine. In their view, it privileged male behavioural patterns while putting women at a disadvantage: Battered wives, for example, who aer a long period of suffering killed their abusive husbands, normally could not make use of the doctrine’s extenuating circumstances. 15

This criticism notwithstanding, the heat-of-pas-sion doctrine is still recognized in the US. 16 In Britain, it became limited so as to explicitly exclude what, for a long time, had been its major justifica-tion: adultery. In 2000, Leonard Hoffmann, Lord of Appeal in Ordinary and Life Peer of the House of Lords, resumed that »male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whe-ther inflicted on the woman herself or on her new lover«. In 2003, the Law Commission followed his

recommendation, and the 2009 Coroners and Justice Act ruled out sexual infidelity as a qualify-ing trigger. 17

3. Germany

Prior to 1872, there was no German law, but Bavarian, Hanoverian, Saxon etc. laws. Bavaria had been the first state to compile a radically new penal code. From the mid-nineteenth century, Prussia led the way, which, even before the unification, more states were prepared to follow.

In contrast to older codes such as the sixteenth century Carolina, the Prussian General Law of 1794 (ALR) did not mention affects, passions, or provocation as extenuating circumstances in hom-icide cases. Although the legislators were aware that those passions did exist, they were unwilling to accept them as justification of offences. Instead, their ambition was to punish offenders, thus teach-ing citizens that they should fight those passions and not let them take over. Consequently, the ALR no longer allowed the kind of private justice that husbands delivered against adulterers. 18

From the 1820s onwards, Prussia started to revise its penal law; aer ten dras, the new code eventually came into effect in 1851 (and, in its general structure, is still valid today). Legal experts, ministries, as well as the representatives of the Stände went to great lengths to debate major differ-ences between murder and manslaughter, discuss-ing the notion of »just affect« and passion and negotiating the concepts of provocation, premed-itation, and deliberation. In the end, they agreed to define murder based on the criterion of premed-itation. Homicides that were not committed upon deliberate thought (Überlegung) qualified as man-slaughter, which ruled out the death penalty. The law further allowed »just affect« (gerechter Affekt) as an extenuating circumstance: If a person had been unjustifiably (ohne eigene Schuld) provoked into rage (zum Zorne gereizt) by another’s abuse or grave insult (schwere Beleidigung) directed against the person himself or members of his family, and acted

12 Recognition of the Honor Defense (1934) 810; W (1855) 179.

13 Recognition of the Honor Defense (1934) 810, 813; D (1982).

14 K (1799) 28; D (1834); F (1835); Recognition of the Honor Defense (1934) 814.

15 S (1991); E (2010).16 F (2009) 72.17 E (2010) 230; F-G

(2013).18 G (1895) 77–79;

W (1890) 149; S(1888) 229.

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having lost his temper, he would be mildly sen-tenced: Instead of a life sentence, he would get away with two years in prison. The law did not specify what was meant by »abuse« or »grave insult«, but legal commentators explained that it included physical as well as emotional abuse. They also clarified that adultery figured prominently and »notably« amongst the latter as »deeply hurting« the husband’s »sense of honour«. 19

This continued well into the twentieth century with a dramatic peak in the 1930s. Although the National Socialist regime failed to create its own penal code, as had been originally planned, courts eagerly complied with the regime’s emphasis on honour. To quote from a 1936 Reichsgericht deci-sion: »Anyone who infringes on a woman’s hon-our – even with her consent and thus not subject to prosecution –, injures the honour of her husband. This opinion is rooted in the German notion of family.« While liberal legal practice had increas-ingly distanced itself from the remote party con-cept and privileged the honour of the single person rather than the honour of the family, völkisch and Nazi ideas considered the convictions of the people as an »authoritative source of law«. And for the German people, the honour of the husband was regarded as marred should his wife’s honour be insulted, through adultery or other »indecent« acts. 20

This opinion, shared both by »the people« and legal experts, remained unaltered until the 1970s. It was only then that courts became increasingly reluctant to apply the law and classify adultery as a grave insult justifying homicide. 21 Feminist criticism was partly responsible for this, and so were changing attitudes towards marriage and gender equality in society at large.

4. Italy

In Italy, as in Germany, the (much longer) period of fascist rule had favoured the ›causa di

honore‹. While the 1889 liberal Codice Zanardelli did not explicitly mention honour issues as exten-uating circumstances in those homicides where the perpetrator had caught his wife in the act of adultery (in flagrante adulterio), the new Codice Rocco of 1931 openly acknowledged and vastly expanded the applicability of the ›honour cause‹. The relevant article 587 read: »Whoever discovers unlawful sexual relations on the part of their spouse, daughter or sister and in the fit of fury occasioned by the offence to their or their family’s honour causes their death, shall be punished with a prison term from three to seven years. Whoever, under the same circumstances, causes the death of the paramour of their spouse, daughter or sister shall be subjected to the same punishment«. 22

Three things are noteworthy about this article. First, it deliberately talked about ›family honour‹, a concept that was not mentioned in the French penal code or in German legislation before the Nazi era. Second, it held not only husbands but also fathers and brothers responsible for protecting the family honour. Third, family honour could obviously be violated only by female members of the family as the concept of ›unlawful sexual relations‹ seemed to refer exclusively to women.

As late as 1972, the Cassation Court called the honour defence »anachronistic«. A decade earlier, the film Divorce Italian Style (1961) had zoomed in on what, in the absence of legal divorce, could be a convenient way of getting rid of an unwanted wife. Finally in 1981, article 587 was repealed, despite maintaining sexual infidelity as a serious provocation and ›unjust act‹ that could lead to an act of homicide »in a fit of fury«. 23

What does this short review of legal history contribute to issues of cultural translation or non-translation? What can be learnt from it about European normativities and non-European per-spectives? Three suggestions:

First: From a legal perspective, »honour kill-ings«, crimes of honour, Ehrenmorde, which are

19 B (1851) 351 f.; R(1881) 499; E et. al. (1925) 638.

20 Entscheidungen des Reichsgerichts in Strafsachen 70 (1936) 97 f.; S(1935) 317 (called adultery a »harsh personal offense«, schwere Kränkung, of the husband). See also G(ed.) (1935) 286; G (ed.) (1936) 411.

21 T (2007) 787; a commen-tary from the 1960s still named adul-tery as a prominent (and the only) example of insult: K /L (1961) 480; see also G- (2010) 243: quoting the 1962 dra of a revision of the Penal Code that explicitly mentioned adultery as an extenuating circumstance and referred to »frequent« cases that it

deemed »tragic«. For criticism of the heavily gendered model of sponta-neous affect, see ibid. 340 f.

22 B-B (2005) 234 f.; Codice Penale (1908) art. 377.

23 B-B (2005) 236 f., 243; C (1988).

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Ute Frevert 249

supposed to be encountered solely within non-European traditions and values, are neither alien nor new to European law in its many national versions. What nowadays is considered as an anti-quated, predominantly ›Muslim‹ practice, had been, in one way or another, popular in Europe (and North America) until most recently. Concepts of family honour that were considered irrelevant in liberal, individualistic legal practice had openly entered legal codes during the Fascist era, but they had had a hidden presence in earlier codifications as well. When in the 1840s, in total agreement with contemporary opinion in Germany, Russia, France, and Spain, Prussian lawyers stated that a wife’s infidelity was much more harmful to the family than a man’s, they not only justified its being punished much more harshly. 24 They also excused a husband whose rage about his wife’s adultery had driven him to kill the other man (and the wife).

Second: Looking back at the long and twisted history of European legal codifications, it is strik-ing how closely intertwined defenses based on heat-of-passion and honour-related argumenta-tions have been. What earlier codifications used to call »heat of passion«, »fit of fury«, »aufflam-mende Leidenscha«, »Gemüthsbewegung« or »Erregung«, very oen, if not always, seemed to have been caused by an offense against honour. Up until very recently, legal codes or commentaries preferred to use the example of adultery to shed light on how passions could overwhelm a person and prompt him – and it was always a he – to kill. At the same time, adultery was defined as an offense against a husband’s honour. Everyone, including judges, juries (where they existed) and the public, seemed to agree that even ›reasonable men‹ – as they were referred to in the British Common Law – could lose their temper and self-control under such circumstances. Legally, the killing was still considered a crime; culturally and socially, however, it was justifiable, to say the least. In places with a very strong tradition of clan and family power such as southern Italy, a cuckolded husband who failed to attack his opponent would

have been socially ostracized as a coward, unwor-thy of his head-of-family status.

Third, it is worth pointing out that modern legal codifications mostly refrained from openly addressing the honour issue. Instead, they chose to focus on emotional states that might or might not be connected to honour. Passion, affect and agita-tion mattered and counted as potential extenuat-ing circumstances for homicides committed with-out premeditation. The reasons why legal codes became so interested in emotions are manifold and need further elaboration. Firstly, law increasingly conceived of crimes not only as ›external facts‹, actions and their consequences, but also took account of their motivational structure. This re-quired psychological expertise and, concomitantly, the study of emotions. 25 Even those legal tradi-tions that, like the Common Law, did not address the issue of motive, increasingly referred to emo-tions as factors impinging on intentionality. As much as legal theory and practice became ever-more concerned with individual responsibility and culpability, emotions were re-evaluated as interfer-ences that could permanently or temporarily hin-der the use of reason and free will.

In addition, emotions appeared somewhat more ›objective‹ than honour: everyone seemed to pos-sess them and know how they felt. In the age of medical science and physiology, anger, rage, fury, jealousy – i. e. those emotions that were usually evoked in heat-of-passion defenses – were deemed to be universal and obvious. Only recently, in the last decades of the twentieth century, were those self-evident truths questioned, mostly with regard to their gender bias, but also because of the exclusion of emotions such as fear, despair, and compassion. 26 Furthermore, historical research has started to reveal the extent to which passions and emotions are social rather than biological facts. As a consequence, the concept of emotions that underlay legal codifications and was used in court proceedings turns out to be spatially, temporally, and socially specific as well as limited in scope and meaning. The so-called loss of self-control due to emotional overwhelm is as much a historical

24 S (ed.) (1994) 135.25 K (1799) 28, 107.26 E (2010) 227 quoting the

British Law Commission’s 2003 pa-per on »Partial defences to murder«.

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construction as the notion of male or female honour. Those legal theories that avoided speaking about honour (since it was supposed to be too subjective and socially fraught) and instead re-ferred to passions or affects (as more objective and ›natural‹) were thus barking up the wrong tree. Honour was oen lurking behind that tree, anyway.

III. The limits of the honour defense

What was problematic about honour? Why did it prove to be a difficult concept for legal theorists and practitioners who subscribed to liberal legal anthropologies? The reason can be found in its sociological texture. Honour was not a concept that lent itself to clear definitions and universal application. Historically, it had been associated with distinct social groups, classes, and estates that claimed to own and guard particular, self-described dispositions and attitudes. Honour figured as a social and moral code linked to a person’s family and class, which in turn demanded from its mem-bers to fully comply with, and adhere to, specific rules of honourable conduct. According to Georg Simmel, honour was a central instrument of social self-preservation that stabilized a group through its internal cohesion and external prestige. Through this crucial role, honour was translated from cor-porate norms into personal action, from »social duty« into »individual salvation and well-being«. Although regulated by strong social expectations, individuals usually accepted these as their own interest and acted accordingly. 27

Furthermore, honour was perceived as being subject to social hierarchy. In this vein, members of the aristocracy traditionally expected to be treated more honourably than members of the middle or lower classes. Honour offences were regarded (and sentenced) unequally, depending on who had in-sulted whom. In a similar fashion, insults were held to matter differently to different people. The same slur or slight was supposed to bear more or less weight depending on who had uttered it and to whom it was addressed. 28 Such a vertical concept

of honour clearly violated the notion of equal rights and justice and, consequently, attracted growing criticism from liberal-minded jurists and politicians. The French Code Pénal of 1810 eradi-cated it completely, while the new Prussian code of 1851 still considered »crimes against honour«, without, though, allowing for socially graded dif-ferences of punishment. 29

What remained, however, was the gendered notion of honour. To men and women, honour and shame meant completely different things. While male honour was closely associated with courage and steadfastness, female honour de-pended on sexual restraint, purity, and decency. A ›fallen woman‹ who had given herself to a man who was not her husband was condemned as dishonourable. General opinion held that she had not only brought shame on herself, but also on her husband, or her father or brother should she be unmarried. According to a widely held belief in nineteenth-century society, male honour largely depended on managing to control a wife’s (or daughter’s, or sister’s) sexuality. If this control failed, honour was lost, for men and women alike.

The actions that brought dishonour thus clearly differed between men and women. While wives, daughters or sisters dishonoured themselves by engaging in illegitimate sexual conduct, husbands, fathers or brothers were dishonoured by the men who had engaged in inappropriate relationships. The latter humiliated the legal and legitimate guardians of female sexuality and challenged their masculine prowess. Such an assault demanded strong action and could not go unpunished. Dur-ing the long nineteenth century, polite society in many European countries considered it a point d’honneur to call the offender out and challenge him to a duel, as the archetypical crime of honour. It was forbidden by law (for different reasons), but, at the same time, deemed utterly honourable behaviour both because of its ›noble‹ motives and the way it was practiced: restrained, in cold blood, on equal terms. The outcome did not really matter; wounding or killing the opponent was not what the duel was ultimately about. As much as violence was necessary in order to prove a man’s determi-

27 S (1968) 403–406; W(1972) 635ff., 722; W (1958) 270ff.; B (1974) 60ff.

28 K (1799) 193.29 F (1995) 28–35.

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nation to stand up for his honour at the risk of his own life, physical harm was neither movens nor final goal. Duels rarely ended fatally, and were not meant to do so. 30

Duels were not about female honour, but about male honour, as late nineteenth-century feminists were quick to point out. While those who praised the duel as an act of chivalry stressed men’s altruism and generosity in defending wom-en against male assault, critics described it as a practice confirming patriarchal attitudes and male rights. Such criticism might have found further evidence in the way in which the law treated adultery. Well into the twentieth century, legal opinions and commentaries supported the idea that adultery meant and functioned as a strong insult against the husband whose wife had had a sexual encounter with another man. Although the French Penal Code made no open reference to honour, contemporaries knew that honour was at stake when a husband caught his wife and her accomplice »in the fact, in the house where the husband and wife dwell«. 31 German legal dis-course was more outspoken. Throughout the nine-teenth century, adultery was portrayed as a »grave insult« (schwere Beleidigung) to the husband. He might thus feel deeply offended (innerliche Krän-kung) and humiliated in his sense of honour, and consequently his fury might drive him to commit a spontaneous act of manslaughter, i. e. to kill the other man and even his own wife. 32

Fury as affect or passion was thus aroused by a man’s feeling that his honour had been attacked and violated. In this vein, a crime of passion could ultimately be linked to issues of honour. Yet it was not cast in stone that a man’s honour depended on his wife’s faithfulness and had to be respected by other men. By the turn of the century, legal opinions had started to differ. In 1902, a German

regional appeals court stated that adultery could not by itself be considered an offense against the husband. Although it destroyed the fiduciary rela-tionship between husband and wife, this was not sufficient to qualify the act as a personal insult. Only if the other man treated the husband with disrespect and contempt should the latter sue him in private action. 33

Stressing the need to examine the relationship between a husband and the other man at an individual level was in sync with liberal legal theory that strongly disapproved of collective no-tions of honour. As early as 1901, the German Supreme Court declared that honour as a legally protected good was only due to individuals. Under these auspices, family honour was a concept un-known to German penal law and could not be appealed to by parents who felt insulted by some-one claiming that their daughter had given birth to an illegitimate child. 34 This opinion, however, attracted severe criticism aer 1933. In 1936, the Supreme Court (that had by now been purged of its liberal and Jewish members) took an altogether different stance. It reinstated the notion of family honour which, at closer sight, was identical with that of the husband who, as head of family, was directly targeted by any attack that violated the honour of his wife or other family members. As the Minister of Justice Franz Gürtner emphasized, the National Socialist sense of justice (Rechtsempfinden) not only held honour to be the most precious property of Germans, but also believed strongly in the honour of communities or corporations rather than individuals. 35

Even aer 1945, such concepts were not alto-gether discarded. As late as 1961, a major com-mentary still considered adultery a »grave personal offense« to the husband, thus invoking long-famil-iar notions of male (and, consequently, family)

30 F (1995) 150–171.31 French Penal Code art. 324;

M (2003) 24.32 Berathungs-Protokolle der zur Revi-

sion des Strafrechts ernannten Kom-mission des Staatsraths, den Zweiten Theil des Entwurfs des Strafgesetz-buchs Tit. 1–16 betreffend (1841) 190; S (ed.) (1994) 611; B (1851) 352; S(1869) 328; R (1881) 499; O (1886) 776; G(1895) 77.

33 Archiv für Strafrecht und Strafprozeß 49 (1903) 324 f. Those signs were found when an adulterer had con-tinuously and for a long time met the wife in her husband’s house or apartment. Such behaviour was con-sidered contemptuous of the hus-band’s »personality« and his rights as head of family and household (»als Familienoberhaupt und als Haus-herr«). See, for a similar opinion, ibid. 63 [1917] 469 f. A personal offense was even more at stake when husband

and adulterer had been old friends (Sächsisches Archiv für Rechtspflege 8 (1913) 449).

34 Archiv für Strafrecht und Strafprozeß 48 (1901) 441; see also ibid. 57 (1910) 209; Juristische Wochenschri 41 (1912) 934.

35 Entscheidungen des Reichsgerichts in Strafsachen 70 (1936) 94–100; G (ed.) (1936) 400, 411 f., 419.

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honour. 36 In post-fascist Italy, such notions were discussed even more openly. Here as in West Germany, it was not until the 1970s and 1980s that these provisions and paragraphs were either dis-cretely forgotten or officially repealed.

Following on from this discussion, we might be prompted to reconsider the allegedly deep and essential ri between European and non-Euro-pean, ›Muslim‹ ways of dealing with women’s illegitimate (sexual) behaviour. In both cases, hon-our has played a huge role, albeit in different respects. In both cases, male family members could and would feel offended by women’s ›indecent‹ conduct and take violent action. For a long time European legal traditions had condoned such vio-lence as driven by justified affect; crimes of passion usually attracted a high degree of public attention and sympathy. If taken to court, men who had murdered their adulterous wives or/and compet-itors could count on understanding and compas-sion. 37 People would empathize with those men’s feelings of humiliation and dishonour. At the same time, however, the law insisted on the immediacy of emotional stress. Only when an act of homicide had been committed in the heat of passion, driven by spontaneous rage, fury or despair, did it deserve lenient treatment.

This distinguishes crimes of passion from the kind of honour killings that happen in contem-porary Muslim communities and countries. These killings are generally not of a spontaneous and passionate nature. ›Affect‹ is not involved when brothers, fathers or husbands contemplate about the most suitable perpetrator and method to kill the deviant sister, daughter, or wife. In this sense, honour killings resemble premeditated murder, without necessarily sharing the provision of base motive initiating the act. Perpetrators usually in-voke the duty to uphold the family honour that has allegedly been sullied by the woman’s inappropri-ate conduct. In their view, her failure to comply with the mores and rules adopted by the family and the community has brought shame upon all

family members. They are held responsible for this failure and consequently suffer from their peers’ contempt and derision. In order to cast off their shame und restore the family status, they kill the woman in a well-organized and willfully planned way that strengthens the family’s ultimate control and power.

Although the concept of family honour with its in-built bias towards male supremacy seems utterly alien to contemporary Western culture and there-fore encounters collective indignation, it played a prominent role in European legal traditions and social practices until very recently. 38 A long pro-cess, oen strewn with controversy, was required in order to reach the point where a person was not perceived as part of a larger group but as an in-dividual with genuine rights. Male dominance embedded in, and validated by, the concept of family honour oen survived until as late as the 1970s.

Remembering this part of European legal and cultural history might help to engage in a process of cultural translation. It resists the temptation of ›othering‹ a pattern of thought and behaviour that has been broadly familiar to ›us‹ in the not-so-distant past. This is not synonymous with advocat-ing leniency in treating today’s honour killings. As far as individual rights are concerned, develop-ments in current European law and jurisdiction should not be reversed. Acknowledging concepts of family honour that defy a woman’s right to live her own life is at odds with how modern Western societies are normatively structured. Furthermore, family honour can be used as a pretense and excuse for more egoistical and ›ignoble‹ motives and should therefore be closely scrutinized and ques-tioned in all cases. At the same time, however, European normativities should be exposed both in their past and present deficiencies and inconsisten-cies. Discrimination against women had long been inherent in European law codes and court senten-ces, and sometimes lingers on until the present. As much as the honour defense has worked to

36 K / L (1961) 480: Insult includes »any grave offense, f. ex. adultery«. See also G(2010) 243–256.

37 L (2008) 139; B (1992) 28.

38 See, as a valid critique, A-L(2011).

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Ute Frevert 253

consolidate male dominance and power, the heat-of-passion defense has privileged male acts of vio-lence over women’s. The manner in which legal experts, theorists, and practitioners have used emo-tions in order to thoroughly gender crimes such as manslaughter and murder has not yet been fully analyzed. Honour and shame, empowerment and

humiliation, passion and affect, insanity and self-control have been implicit as well as explicit con-cepts of legal anthropologies that are in dire need of cultural critique and translation.

n

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gerichts, 3rd ed., Berlinn E, C (2003), Purified by Blood. Honour Killings amongst Turks in the Netherlands, Amsterdamn E, S S. M. (2010), Anger and Fear as Justifiable Preludes for Loss of Self-Control, in: Journal of Criminal Law 74

(2010) 223–241 http://dx.doi.org/10.1350/jcla.2010.74.3.638n Entscheidungen des Reichsgerichts in Strafsachen 70 (1936)n E, C P (2008), Stolen Honor. Stigmatizing Muslim Men in Berlin, Stanfordn F-G, K (2013), Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control, in:

Journal of Law and Society 40 (2013) 280–305n F, R G (2009), The Wrongfulness of Wrongly Interpreting Wrongfulness. Provocation, Interpretational Bias,

and Heat of Passion Homicide, in: New Criminal Law Review 12 (2009) 69–92 http://dx.doi.org/10.1525/nclr.2009.12.1.69n French Penal Code of 1810, accessed at: www.napoleon-series.org/research/government/france/penalcode (19 May 2014)n F, U (1995), Men of Honour. A Social and Cultural History of the Duel, Cambridgen F, J B. (1835), Systematisches Handbuch der gerichtlichen Psychologie. Für Medicinalbeamte, Richter und

Vertheidiger, Leipzign G, A (2010), Das vorsätzliche Tötungsdelikt, Tübingenn G, L (1895), Die Idee der Wiedervergeltung in der Geschichte und Philosophie des Strafrechts, Erlangen 1895n G, F (ed.) (1935), Das kommende deutsche Strafrecht. Besonderer Teil: Bericht über die Arbeit der amtlichen

Strafrechtskommission, Berlin (revised 2nd ed. 1936)n Juristische Wochenschri 41 (1912)n K, D (2008), From Anger to Jealousy. Explaining Domestic Homicide in Antebellum America, in: Journal of Social

History 42 (2008) 269–297 http://dx.doi.org/10.1353/jsh.0.0079n K, E F (1799), Grundsätze des gemeinen deutschen peinlichen Rechts nebst Bemerkung der preussischen

Gesetze, Hallen K, E, R L (1961), Strafgesetzbuch mit Erläuterungen und Nebengesetzen, 43rd ed., Berlinn L, K (2008), Mord und Totschlag (§§ 211–213 StGB). Reformdiskussion und Gesetzgebung seit 1870, Berlinn N Y T, 10 april 1907n M, P (2003), Husbands, Wives, and Lovers. Marriage and its Discontents in Nineteenth-Century France, New

Haven

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790872n R, H (1881), Strafgesetzbuch für das Deutsche Reich. Mit Kommentar, 3rd ed., Berlinn Sächsisches Archiv für Rechtspflege 8 (1913)n S, W (ed.) (1994), Gesetzrevision (1825–1848), 1. Abt., Vol. 5, Vaduzn S, O (1935), Strafgesetzbuch mit allen wichtigen Nebengesetzen und Verordnungen, 3rd ed., Munichn S, G (1968), Soziologie, Berlinn S, M (1991), A ›lesser‹ crime: A comparative study of legal defenses for men who kill their wives, in: Columbia

Journal of Law and Social Problems 24 (1991) 597–638n S, M. (1869), Das Strafgesetzbuch für das Königreich Bayern vom 10. November 1861, Münchenn S, A (1888), Brandenburg-Preußens Rechtsverwaltung und Rechtsverfassung, Bd. 2, Berlinn T, S (2007), Die Rolle der Ehre im Strafrecht. Rechtsvergleichende Zusammenfassung, in: eadem (ed.), Die

Rolle der Ehre im Strafrecht, Berlin, 723–808 n U, M M (1999), The Dialogics of Legal Meaning. Spectacular Trials, the Unwritten Law, and Narratives of

Criminal Responsibility, in: Law & Society Review 33 (1999) 393–423 http://dx.doi.org/10.2307/3115169n W, F (1890), Die Begriffe von Mord und Totschlag, Marburgn W, F (1855), A Treatise on the Law of Homicide in the United States, Philadelphian W, M (1972), Wirtscha und Gesellscha, Tübingenn W, M (1958), Gesammelte politische Schrien, Tübingen

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Ute Frevert 255

Paolo Grossi

Die Botscha des europäischen Rechts und ihre Vitalität: gestern, heute, morgen*

Ich möchte dem Direktor, Herrn Professor Thomas Duve, meinen aufrichtigsten Dank dafür sagen, dass ich die Rede zum Beginn einer neuen Phase im mittlerweile langen Leben des Frankfur-ter Instituts halten darf. Für einen Rechtshistoriker handelt es sich um eine wirkliche Ehre, hat doch das Max-Planck-Institut für europäische Rechts-geschichte seit 1964, seinem Gründungsjahr, dank seiner Leiter – u. a. Helmut Coing, Dieter Simon, Michael Stolleis und Thomas Duve, die allesamt herausragende, allgemein anerkannte Wissen-schaler waren (und sind) – die Studien zur mittel-alterlichen und neuzeitlichen Rechtsgeschichte wesentlich vorangetrieben und sich damit weltweit als wichtigstes Forschungszentrum durchgesetzt.

Hatte ich in der Vergangenheit die Ehre, dem wissenschalichen Beirat und dem Fachbeirat des Instituts anzugehören, so empfinde ich es heute als eine große Auszeichnung, in dieser Stunde einer so bedeutsamen Feier beiwohnen zu dürfen. Herzlichen Dank, Thomas.

1 Das Europa des Rechts und seine historischen Zeiten

Der westliche Teil des eurasischen Kontinents (Europa eben) war in der neueren Geschichte nicht mehr als ein geographischer Ausdruck, zählten in politischer und rechtlicher Hinsicht doch nur die Staaten, die ihn in zahlreiche souveräne Einheiten gliederten und aus ihm einen regelrechten politi-schen und rechtlichen Archipel machten. Aus einem streng rechtlichen Blickwinkel hat diese weitläufige Region allerdings eine unbestreitbare Einheit erlangt und in zwei bestimmten umfas-senden, aber doch genau eingrenzbaren histori-schen Momenten eine ebenso unbestreitbare Typi-zität gewonnen: zum einen im späteren Mittel-alter, d. h. ungefähr zwischen dem 11. und 14. Jahrhundert, zum anderen in der Postmoderne, d. h. seit den 50er Jahren des 20. Jahrhunderts.

Diese höchst unterschiedlichen historischen Momente sind für das Auge des Rechtshistorikers dennoch vergleichbar wegen der Art und Weise, wie in ihnen das Recht wahrgenommen, gelebt und theoretisch gefasst wurde, aber auch wegen der kulturellen Botschaen, die sie vermitteln und die heute unsere größte Aufmerksamkeit verdie-nen, denn nach Überwindung der staatlichen Zer-stückelung reichen uns nicht einmal mehr die europäischen Grenzen, vielmehr richten wir unse-ren Blick auf eine entschieden globale Welt.

Das sind die verbindenden Züge: Durchsetzung einer Rechtseinheit unter Wahrung der ihr inne-wohnenden Vielfalt, eine zutiefst dialektische Be-ziehung zwischen der Rechtseinheit und Einzel-elementen der Vielfalt; Aufwertung der Juristen in der Rechtsproduktion (denn das Recht ist Sache der Juristen und nicht der Politiker) und vor allem Würdigung der Rechtswissenscha wegen ihrer Fähigkeit, harmonisch verbindende, tendenziell unbegrenzte Prinzipien zu entwickeln.

Eine Präzisierung jedoch ist notwendig, um jeglichem Missverständnis vorzubeugen: Man mei-ne nur nicht, ich wolle einem mittelalterlichen Modell zur Konstruktion des gegenwärtigen und zukünigen Rechts das Wort reden. Das wäre eine unverzeihliche Einfalt insbesondere für einen His-toriker, handelte er doch vor allem auf epistemo-logischer Ebene leichtsinnig. In der Tat zwingt die Geschichte der Gegenwart und Zukun keine Modelle auf, denn – wie bereits die alte Heils-weisheit lehrt – jedes Ding hat seine Zeit und jede Zeit ihr Ding. Die Schätze der Geschichte dienen allein dazu, sie in ein dialektisches Verhältnis zu unserem heutigen Bewusstsein zu setzen, wobei das einzige Ziel darin besteht, dieses komplexer zu machen, zu bereichern und zu größerer Reife zu bringen.

Mein Vortrag leitet einen neuen Abschnitt im Leben eines Instituts ein, das aufmerksam auf die Vergangenheit schaut, dabei aber dem heutigen und zukünigen Juristen, dem europäischen und

* Übersetzung von Gerhard Kuck.

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Paolo Grossi 257

globalen Juristen das entsprechende kulturelle Werkzeug an die Hand geben will; 1 er verfolgt nur das bescheidene Ziel, die Typizität der Bot-scha des europäischen Rechts im Mittelalter und in der Gegenwart auf den Punkt zu bringen, sie in ihrer zweifelsfreien Vitalität herauszuarbeiten, dabei nicht der Versuchung zu erliegen, sie abzu-flachen und dadurch zu enthistorisieren. Ein weite-res Ziel besteht darin, den hier aufscheinenden Reichtum mit Blick auf die ›globalhistorischen Perspektiven‹ zu erfassen, in die der heutige und zukünige Jurist tief eingebunden ist.

Auf diese Weise erfüllt der Rechtshistoriker seine meiner Meinung nach wichtigste kulturelle Funktion: Er schär beim Anwender eines gelten-den Rechts das kritische Bewusstsein, 2 indem er ihm das Auge für die historische Linie öffnet, auf der dieses Recht einen präzisen Punkt besetzt, und ihn daran hindert, diesen Punkt zu isolieren, zu verabsolutieren und zum Mythos zu machen. 3

2 Die ›europäische‹ Botscha des mittelalterlichen ius commune

Das Mittelalter kannte nicht jenes total ausgrei-fende politische Subjekt, das jegliche gesellscha-liche Äußerungsform (und damit auch das Recht) monopolisiert, von uns gemeinhin als ›Staat‹ be-zeichnet wird und eine Hauptrolle in der moder-nen Zivilisation spielt. 4 Was zur höchst bedeut-samen Folge hat, dass die Inhaber der politischen Macht sich des Rechts vor allem hinsichtlich der öffentlichen Ordnung und der Organisation der öffentlichen Gewalten annehmen, während sie die Gesellscha sich selbst regulieren lassen. Daraus ergibt sich eine zweite, nicht weniger wichtige Folge: Verschiedene Kräe sind an der Rechtspro-duktion beteiligt, so dass ein allgemein gelebter Rechtspluralismus vorherrscht.

Das Recht, das den Alltag des Privatbürgers regelt, entspringt hier der Erfahrung, nährt sich aus den Tagesgeschäen und zeichnet sich durch seine Faktizität aus. Aus eben diesem Grund bildet die Gewohnheit, 5 besser: die Vielzahl der tausend-fältigen Gewohnheiten, die vorherrschende Quelle des mittelalterlichen Rechts während seiner fast tausendjährigen Entwicklungsgeschichte. Hinzu treten, aber immer nur am Rande, die Rechtsnor-men der lokalen Fürsten und der freien Städte. Da es sich bei den Gewohnheiten um dauerha in der Zeit sich wiederholende Fakten handelt und die Gefahr besteht, dass sie Unsicherheit, Chaos und Unordnung heraueschwören, kommt den Juris-ten eine hochwichtige Funktion zu, sind sie es doch, die sich im Recht auskennen und in der Lage sind, die ökonomischen und gesellschali-chen Fakten auf der Grundlage ihres Wissens in eine vollständige Ordnung zu bringen. 6

Im Frühmittelalter sind es die Notare und Richter (d. h. Männer der Praxis), Notare und Richter auch im späteren Mittelalter, wo allerdings die Wissenschaler, doctores und Hochschullehrer, ein entscheidendes Gewicht besitzen – auf sie hört man, sie bewundert man in den zahlreichen Uni-versitäten, die sich seit dem 12. Jahrhundert in einem Großteil Westeuropas verbreiten. In einer Kultur, in der das Heilige und das Profane tenden-ziell miteinander verschmelzen, steht die Wissen-scha, diese Vermittlerin zwischen Himmel und Erde, für Erleuchtung und Annäherung an die Wahrheit, so dass sie zwangsläufig eine entschei-dende Rolle bei der Schöpfung und Systematisie-rung des Rechts spielt. Vor allem der Wissenscha fällt es zu, jene Begrifflichkeit, jene Ordnungs-prinzipien bereitzustellen, mit denen sich das zu-sammenhanglose Magma der gesellschalichen und ökonomischen Fakten ordnen lässt; und da es keine arrogante, zudringliche politische Macht gibt, vermag die Wissenscha ein universelles

1 Erinnert sei an einen 1990 erschiene-nen Aufsatz, in dem der Initiator und erste Direktor des Instituts, Helmut Coing, die zahlreichen Juristen, die sich damals schon um die Konstruk-tion eines europäischen Rechts be-mühten, ermahnte, die Rechtswissenscha, die im Europa des civil law noch zu stark an staats-zentriert-legalistische Rechtsmodelle gebunden war, müsse einer vorläufi-

gen, aber doch grundlegenden Ge-wissensprüfung unterzogen werden: C (1990).

2 G (1998c).3 G (2006b); G (2006c).4 G (1998b).5 Das ist die eigentliche, ungeschrie-

bene ›Verfassung‹ – im Sinne Otto Brunners – der mittelalterlichen politisch-rechtlichen Ordnung.

6 G (1995).

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258 Die Botscha des europäischen Rechts und ihre Vitalität: gestern, heute, morgen

Rechtsgewebe zu schaffen, das für jeden Ort gilt und auf lange Dauer angelegt ist.

Das von der Wissenscha auf der Basis des justinianischen und kanonischen Rechts geformte Recht mündet in eine ausgefeilte Auslegungskon-struktion. Über die römisch-antiken auctoritateserhebt sich die interpretatio doctorum als reine Stimme des Mittelalters und als dessen genuiner Ausdruck. Dieses Gewebe legt sich über das ge-samte zivilisierte Europa; Hochschullehrer haben es geschaffen, die sich aufmachen und an den renommiertesten Universitäten lehren, junge Stu-denten, die über alle politischen Grenzen hinweg ausschwärmen, um den Vorlesungen der hochge-achteten Meister zu folgen, eignen es sich auf-merksam an.

Es ist die Epoche des ius commune, eines univer-sellen, weil wissenschalichen Rechts, eines höchst formbaren Rechts, dessen Prinzipien sich durch eine Elastizität auszeichnen, die der autoritären Herrscha fehlt. Das ius commune verkörpert sich nämlich nicht in einer politischen Instanz, unter-steht keiner Institution, repräsentiert vielmehr nur eine Gemeinscha von Gelehrten, die allein auf ihre Kultur und ihr technisches Wissen setzen und überall anzutreffen sind; sie bewegt das entschie-dene Bewusstsein, berufen zu sein, jenes einheit-liche Rechtsgebäude zu schaffen, dessen das in so zahlreiche politische Gebilde auseinanderfallende mittelalterliche Europa verzweifelt bedarf.

Man denke nun nicht, das Gewebe des ius commune begrabe die Rechtspartikularismen unter sich. 7 Die iura propria (Gewohnheiten und lokale Rechtsnormen) passen sich harmonisch in die wissenschalichen Konzepte ein und bilden eine authentische Ordnung, die eben authentisch ist, weil sie Einheit schafft unter Wahrung der Viel-falt. 8 Wo die Gewohnheiten schweigen, wo die lokalen Fürsten schweigen (in der Überzeugung, das Wesen ihrer Macht bestehe nicht darin, Nor-men zu produzieren), da spricht das juristische Wissen des Gelehrtenrechts, in dem hingegen alles effektiv und potentiell vorgesehen ist dank der expansiven Natur der Prinzipien. Das ius communerepräsentiert die rechtliche Einheit des gesamten zivilisierten Europas.

3 Zwischen Moderne und Postmoderne: Anfänge einer neuen ›europäischen‹ Botscha

Diese höchst singuläre erste europäische Bot-scha, d. h. eines Rechts mit europäischer Aus-strahlung, bleibt in seinem offensichtlich so fernen historischen Wurzelgrund verborgen. Tatsächlich geht die rechtliche Botscha des Mittelalters aus einer Kultur ohne Staat hervor.

Die seit dem 14. Jahrhundert als Kultur der Staaten aufsteigende moderne Kultur verdrängt nach und nach jenes Spektrum an autonomen Rechtsordnungen aus den Zentren der politischen Macht, einer absolut pluralistischen politischen Macht, weil hier verschiedene Rechtsordnungen auf ein und demselben politischen Territorium nebeneinander bestehen und miteinander konkur-rieren. Die neue Kultur hingegen zielt auf eine rigorose Kontrolle der Rechtsproduktion. Auf dem Scheitelpunkt der Moderne, d. h. im jakobinischen Würgegriff der Französischen Revolution, sollte das Recht im Staat (zumindest dem offiziellen Anspruch nach) seinen einzigen Schöpfer und im Gesetz seinen einzigen Ausdruck finden. 9

Die Rechtslandscha wandelte sich, als im Ver-lauf des 20. Jahrhunderts, eines typisch postmoder-nen Jahrhunderts,10 höchst bedeutsame Ereignisse eintraten. Die Staaten sahen, wie der Panzer ihrer Souveränität aufgeweicht wurde von einer räum-lich immer weiter ausgreifenden wirtschalichen Dynamik sowie von Techniken und Technologien, welche die abschnürenden, künstlichen politi-schen Grenzen immer weniger dulden mochten. Im kontinentalen Raum eines von einem rigorosen Legalismus beherrschten civil law gelang es den Staaten nicht mehr, die sozioökonomische Ent-wicklung zu ordnen, und selbst das hochgelobte Instrument des Gesetzbuches, das mit dem An-spruch antrat, eine ganze Rechtsdisziplin auf ein geschlossenes, vollständiges Regelsystem zurückzu-führen, musste einsehen, dass es sich dabei um ein unerreichbares Ziel handelte.

Auf der Ebene der Rechtskultur gilt es einen einschneidenden Moment hervorzuheben. Bis in die Zeit nach dem Zweiten Weltkrieg führte die

7 Vgl. G (2005).8 Eine Analyse des Begriffs ›Ordnung‹

vgl. in G (2011c).9 G (2006d).

10 Einige Präzisierungen dieses augen-scheinlich allgemeinen und zwie-spältigen Begriffs vgl. in G(2011b).

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Paolo Grossi 259

Welt des common law gleichsam wie auf einem anderen Planeten ein abgesondertes Leben, weil man in ihr das Recht weiterhin auf eine völlig mittelalterliche Weise wahrnahm und lebte; nun aber trat sie immer häufiger und intensiver in Kontakt zur Welt des civil law, wo sie mit ihren Ideen und Werten die Mentalität des unheilbar staatszentrierten, legalistischen Kontinentaljuris-ten kontaminierte. Von Rom (1957) bis Maastricht (1992), Amsterdam (2007) und Lissabon (2009), von einer ›Wirtschasgemeinscha‹ bis zu einer überstaatlichen Union entstand langsam, aber ste-tig eine neue Rechtslandscha, die mit dem 1973 erfolgten Eintritt des Vereinigten Königreichs in die Gemeinscha klare Konturen gewann.

Unter großen Schwierigkeiten und auf einem hochzerfurchten Terrain (denn die alten souverä-nen Inseln halten sich hartnäckig) machte man sich an den Auau eines europäischen Rechts. Noch ist es nicht vollbracht, doch in dem bereits Erledigten und in dem, was gerade ansteht, er-fassen wir eine Botscha, in der außerordentlich klar aufscheint, dass es darum geht, eine rechtliche Einheit unter Wahrung der Vielfalt zu schaffen; man erkennt, dass das Recht Sache der Juristen ist und der Gesetzgeber niemals eine totalisierende Funktion auszuüben vermag. Ganz im Gegenteil, unmöglich kann man von der Rechtswissenscha und der Rechtsprechung als den Quellen absehen, aus denen sich ohne Verzerrungen eine Rechtsent-wicklung ableiten lässt, die hochmobil wie das beständige Werden der europäischen Institutionen ist.

4 Das Europa des Rechts: Vielfalt in der Einheit

Wie es treffend in der Präambel der ›Charta der Grundrechte‹ – die im Vertrag von Lissabon den-selben Rechtsstatus der Verträge erhält (»die Char-ta der Grundrechte und die Verträge sind rechtlich gleichrangig«) – heißt, trägt die Union »unter Achtung der Vielfalt der Kulturen und Traditionen der Völker Europas sowie der nationalen Identität der Mitgliedstaaten« zum Schutz und zur Entwick-

lung der gemeinsamen Werte bei. Der Vertrag von Lissabon bekräigt diese Formulierung noch, wenn er sich nicht einfach auf die Vielfalt be-schränkt, sondern »den Reichtum ihrer kulturellen und sprachlichen Vielfalt« betont (Gemeinsame Bestimmungen, Art. 2). Und in allen Vertragsins-trumenten, die im Verlauf von über sechzig Jahren entstanden sind, bezieht man sich immer wieder auf nationale Identitäten, Kulturen, kulturelle Ver-mächtnisse und Verfassungstraditionen und grei dabei beständig auf den Plural zurück, der auf eine zur Einheit gebrachte Vielfalt verweist, auf eine Vielfalt, welche die Einheit weder ausmerzt noch auszumerzen anstrebt, sondern aufwerten will.

Denn mehr als ein Zusammenschluss von Staa-ten und Regierungen wollte das rechtliche Europa eine Gemeinscha von Völkern sein. Es handelte sich in der Tat um ein grobes Missverständnis, vergäße man, dass die Europäische Union ein Projekt darstellt, das die Völker eines weiten (und immer größer werdenden) geographischen Rau-mes gemeinsam anzugehen sich vorgenommen haben. Völker, das will heißen: unterschiedliche Traditionen und Vergangenheiten, die sich auf einer soliden Grundlage gemeinsamer Grundwerte zusammenschließen, aber nicht in einer kompak-ten, vermassenden Realität aufgehen wollen.

Europa erscheint uns hingegen wie eine authen-tische Ordnung, d. h. eine komplexe Realität, die darauf zielt, den Reichtum der ihr eigenen Kom-plexität zu bewahren: Das Proprium der einzelnen Elemente, deren unterschiedliche Geschichte und singuläre Typizität finden in der gemeinsamen europäischen Dimension die konkrete Möglich-keit, ihre jeweilige Besonderheit und Typizität als einen Reichtum zu setzen, der sich mit anderen ebenso als Reichtum verstandenen Propria kon-frontieren lässt.

Anlässlich des 50. Jahrestages des Europäischen Gerichtshofes verlieh Ludwig Adamovich, Präsi-dent des Verfassungsgerichts der Republik Öster-reich, in der Feierstunde am 4. Dezember 2002 dem beschriebenen Sachverhalt einen angemesse-nen, wirkungsvollen Ausdruck: »Ohne diese Viel-falt wäre Europa nicht, was es ist.« 11

11 A (2003) 36.

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5 Die Rolle des Gerichtshofes bei der Herausbildung eines ›europäischen‹ Rechts: das Problem der Identifizierung der Grundrechte

Die Geschichte des europäischen Rechts erweist sich dem Beobachter zweifellos als ein langwieri-ger, mühseliger Prozess, zeichnet sich aber durch eine höchst singuläre Besonderheit aus; sie ent-spricht passgenau dem schwierigen Übergang vom Gemeinsamen Markt zur politisch-rechtli-chen Gemeinscha, wobei die politischen Organe in ihrer Regulierungsfunktion omals zur Untä-tigkeit verdammt sind. Und da das Recht vor dem Vakuum zurückschreckt und die Rechtsordnung sich in einem unauörlichen Fluss befindet, kann das Vakuum nur von den Richtern ausgefüllt wer-den, denn sie allein schöpfen an vorderster Front aus der Erfahrung.

In dem sich herausbildenden Europa geschieht dies dank der wesentlich schöpferischen Funktion, die der Gerichtshof übernimmt. Einer seiner Präsi-denten, Gil Carlos Rodriguez Iglesias, verwies 2002 in seiner Festrede zu dessen fünfzigjährigem Be-stehen auf »crìticas que reprochan al Tribunal de Justicia que actùe màs como motor de la integra-tion que como guardiàn del derecho«, 12 denn unter den kontinentalen Juristen, die unheilbar mit dem Rechtspositivismus infiziert und noch von Aulärungsmythen durchdrungen waren, gab es unvermeidlich einige, die angesichts eines Richterkollegiums, das sich nicht ausschließlich auf den niederen Ebenen der reinen Textexegese bewegte, den Mund verzogen.

Dank ihres aufmerksamen Blicks auf das be-ständige Werden und dank ihres Bewusstseins, eine konstruktive Aufgabe zu erfüllen, leisten die Richter hingegen einen entscheidenden Beitrag zum Projekt eines entstehenden europäischen Rechts, 13 das – und es kann auch gar nicht anders sein – markant auf der Rechtsprechung beruht; insbesondere zeigt dies sich auf dem Gebiet der

persönlichen Grundrechte, die den Kern einer jeden Rechtsordnung bilden.

Wir wollen bei diesem Punkt kurz verweilen, weil genau hier die vitalste Botscha aufscheint, die vom Europa des Rechts ausgeht.

Bei den Grundrechten handelt es sich um fun-damentale Rechtspositionen für die Person, die ihre Gültigkeit nicht aus den Dimensionen der gesetzlichen Ordnung beziehen, sondern unmit-telbar, d. h. ohne Vermittlung, aus den darunter liegenden Werten vor allem ethischer Natur. In diesem Zusammenhang gilt es zwei Aspekte zu erkennen und hervorzuheben: In der ursprüngli-chen Anlage der Römischen Verträge fand die Einzelperson mit ihren Rechten und Pflichten keine Aufmerksamkeit, vielmehr konzentrierte man sich auf die freie Zirkulation der Waren und Produktionsfaktoren innerhalb der Gemeinscha, während sowohl die Verträge als auch der ›Markt‹ (der von der Organisation der Wirtscha vollstän-dig vereinnahmt war) sich in den ersten Jahren des gemeinsamen Weges über die persönlichen Grundrechte ausschwiegen.

Dann jedoch trat den Richtern des Gerichts-hofes entschieden ins Bewusstsein, dass eine wich-tige Aufgabe nicht mehr aufgeschoben werden konnte, nämlich »die in den allgemeinen Grund-sätzen der Gemeinschasordnung, deren Wahrung der Gerichtshof zu sichern hat, enthaltenen Grundrechte der Person« zu schützen; darauf lau-tet das Urteil Stauder von 1969, 14 das einen ersten Schritt zu einer höchst fruchtbaren Rechtspre-chungstradition bildet.

Hier nimmt – auf entschiedener Rechtspre-chungsbasis – der Plan einer komplexen Rechts-ordnung Gestalt an, die sich aus verschiedenen Schichten zusammensetzt und auf einem tiefen Wurzelgrund ruht, wo die Werte zu Prinzipien werden und die Prinzipien die Anerkennung von Grundrechten ermöglichen. Dergestalt legt man Hand an ein kühnes theoretisches Gebäude, das auf Einzelfallentscheidungen auaut und dem

12 R I (2003) 42.13 Eine Bilanz über die ersten sechzig

Jahre seiner Tätigkeit hat der Ge-richtshof unter Mitarbeit einer gro-ßen Zahl herausragender Juristen durchgeführt: R u. a. (2013).

14 Urteil vom 12. November 1969 (Rechtssache 29/69) – Entschei-dungsgründe, n. 7.

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Paolo Grossi 261

europäischen Bürger und seinem Alltagsleben eine größere rechtliche Robustheit verleiht.

Ein Jahr nach dem Urteil Stauder verknüpe der Gerichtshof im Urteil Internationale Handels-gesellscha die Wahrung der Grundrechte engstens mit den »gemeinsamen Verfassungsüberlieferun-gen der Mitgliedstaaten«. 15 Diese neuen Verflech-tungen und Bezüge wurden drei Jahre später im Urteil Nold 16 wiederaufgenommen und weiterent-wickelt, in der Folge dann in einer Reihe von Rechtsentscheidungen bestätigt und bekräigt.

Die Verknüpfung ›Grundrechte /gemeinsame Verfassungstraditionen‹ – ein typisches Produkt der Rechtsprechungspraxis – entwickelte sich rasch zu einer theoretischen Ressource, um die für den europäischen Staatsbürger vitalen subjektiven Po-sitionen hinreichend zu identifizieren. Sie tritt im Artikel 6 des ›Vertrags über die Europäische Union‹ von 1992 17 deutlich hervor und wird unverändert wiederaufgenommen im ›Vertrag‹ von Lissabon, der am 1. Dezember 2009 in Kra trat. 18 Es ist hier nicht der Ort, das von einigen Gemeinschasrecht-lern zu Recht erörterte Problem aufzuwerfen, ob es sich bei den erwähnten Traditionen um einfache Erkenntnisquellen oder regelrechte Rechtsquellenhandelt; 19 es geht darum, dass das europäische Recht in seinem Entstehungsprozess auf der Recht-sprechung ruht, es geht um die typisierende Natur seiner kulturellen Botscha.

Zwei Beobachtungen drängen sich auf, deren erste allgemeiner Art ist. Indem der Gerichtshof die vier Grundfreiheiten des Gemeinsamen Euro-päischen Marktes – die Warenverkehrsfreiheit, die Arbeitnehmerfreizügigkeit, die Niederlassungsfrei-heit, die Dienstleistungs- und Kapitalverkehrsfrei-heit – sowie die Begriffe der unmittelbaren und

mittelbaren Diskriminierung extensiv interpretier-te, hat er den Schutz der Grundrechte des Unions-bürgers in dem Maße gefördert und weiterentwi-ckelt, als sie von den Verfassungstraditionen der Mitgliedstaaten und von den internationalen Ver-trägen (insbesondere der Europäischen Menschen-rechtskonvention) sichergestellt werden. Dank die-ser teleologisch ausgerichteten Auslegungstätig-keit, die mit einem durchgängig wachsamen Blick auf die Bewegungsdynamik der Rechtsordnung insgesamt schaut, werden sie als allgemeine Grund-prinzipien des Gemeinschasrechts anerkannt, und ihre Einhaltung wird sowohl gegenüber den Gemeinschasinstitutionen als auch gegenüber den Mitgliedstaaten eingefordert.

Dergestalt hat der Gerichtshof nach und nach ein Brevier der Grundrechte erstellt und stellver-tretend eine hervorragende, unentbehrliche Arbeit geleistet. Aus dieser subtilen, wirkungsvollen und aufmerksamen Einzelfallarbeit haben die Verfasser der sogenannten Charta von Nizza im Jahr 2000 die bereits vorbereiteten Bauelemente zur Errich-tung des Gebäudes bezogen.

Die zweite Beobachtung ist spezieller Art, aber in rechtshistorischer Hinsicht von großer Bedeu-tung; sie betrifft das Syntagma ›gemeinsame Ver-fassungsüberlieferungen‹, eine höchst eloquente Prägung von Richtern auf der Suche nach sicheren Fundamenten. Warum eloquent? Weil diese euro-päischen Richter sich nicht bequem hinter ge-druckten Texten und unausweichlichen normati-ven Bestimmungen verstecken wollen, sondern das komplexe, unartikulierte Terrain der Überlieferun-gen wählen. Hier bündeln sich so tief verwurzelte, tatsächlich gelebte Erfahrungen dergestalt, dass sie mit der Geschichte eines Volkes verschmelzen, und

15 »Die Gewährleistung dieser Rechte muss zwar von den gemeinsamen Verfassungsüberlieferungen der Mit-gliedstaaten getragen sein, sie muss sich aber auch in die Struktur und die Ziele der Gemeinscha einfügen« (Urteil vom 17. Dezember 1970 [Rechtssache 11/70]. Entscheidungs-gründe, n. 4).

16 »Der Gerichtshof hat bereits ent-schieden, dass die Grundrechte zu den allgemeinen Rechtsgrundsätzen gehören, die er zu wahren hat, und dass er bei der Gewährleistung dieser Rechte von den gemeinsamen Ver-fassungsüberlieferungen der Mit-

gliedstaaten auszugehen hat. Hiernach kann er keine Maßnahmen als Rechtens anerkennen, die unver-einbar sind mit den von den Verfas-sungen dieser Staaten anerkannten und geschützten Grundrechten« (Ur-teil vom 14. Mai 1974 [Rechtssache 4/73] – Entscheidungsgründe, n. 13).

17 Art. F,2: »Die Union achtet die Grundrechte, wie sie in der am 4. November 1950 in Rom unterzeich-neten Europäischen Konvention zum Schutze der Menschenrechte und Grundfreiheiten gewährleistet sind und wie sie sich aus den gemeinsa-men Verfassungsüberlieferungen der

Mitgliedstaaten als allgemeine Grundsätze des Gemeinschasrechts ergeben.«

18 Art. 6, 3: »Die Grundrechte, wie sie in der Europäischen Konvention zum Schutz der Menschenrechte und Grundfreiheiten gewährleistet sind und wie sie sich aus den gemeinsa-men Verfassungsüberlieferungen der Mitgliedstaaten ergeben, sind als all-gemeine Grundsätze Teil des Unio-nrechts.«

19 Als erster hat R (1993) die gemeinsamen Verfassungstraditionen behandelt.

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sie müssen als ein Schatz von Werten betrachtet werden, aus denen sich ein Fundus von Grund-sätzen und schließlich von Grundrechten ergibt.

Die rechtshistorische Bedeutung eines solchen Ansatzes besteht darin, dass die Überlieferungen als Prinzipien identifiziert, interpretiert und kon-solidiert werden; das Verfahren ist dabei vor allem das der Auslegung, eine der Gemeinscha der Juristen eigene Aufgabe, seien sie nun Wissen-schaler oder, wie in unserem Fall, Mitglieder eines Richterkollegiums. Auch wenn die Charta von Nizza die in den Einzelfallentscheidungen des Gerichtshofes aufscheinende historische Vielfalt in einen gedruckten Katalog eingefroren hat und der Vertrag von Lissabon ihr heute im Artikel 6 ein besonderes Gewicht verleiht, bleibt festzuhalten, dass der Gerichtshof bei der Entwicklung und Umwandlung (wie ein italienischer Verfassungs-richter bezeugen kann, der lange Zeit als General-anwalt am Europäischen Gerichtshof wirkte) des ursprünglichen ›gemeinsamen Marktes‹ in einen »ambito giuridico in cui trovano riconoscimento tutte le istanze che caratterizzano le moderne democrazie, la tutela e la promozione del lavoro, dell’ambiente, della cultura, delle aree sfavorite, fino all’attenzione per i valori e i diritti fondamen-tali«, 20 eine entscheidende Rolle gespielt hat.

6 Das europäische Recht und sein Bedarf an Prinzipien: die Rolle der Rechtswissenscha

Das Luxemburger Richterkollegium erscheint, wie soeben erwähnt, als ein arbeitsames Labor, wo angesehene Juristen nach Werten zur Verankerung von Prinzipien suchen, mit denen sich Rechtssitua-tionen, die den europäischen Bürger existentiell betreffen, angemessen fundieren lassen. Uner-wähnt blieb bisher, sei aber jetzt betont, dass es sich bei ihnen bisher zumeist um Hochschullehrer handelte, die an berühmten europäischen Univer-sitäten lehrten, um Gelehrte, die für ihr wissen-schaliches Werk allgemein bewundert wurden. Es sei mir erlaubt, einen einzigen namentlich zu

nennen, dem ich persönlich und kulturell tief verbunden war, den hochrangigen italienischen Zivilrechtler Alberto Trabucchi; mit voller Über-zeugung setzte er sich für die Schaffung eines europäischen Rechts ein und verteidigte jenes Ur-teil Van Gend en Loos, das bereits 1963 als erster robuster Grundpfeiler des rechtlichen Europas aus der Rechtsprechungspraxis emporragte. 21

Auch wenn es ein Gericht war und die Richter über Einzelfälle zu entscheiden hatten, blieben die rechtswissenschalichen Ressourcen keineswegs aus den strengen Gerichtssälen verbannt. Es han-delte sich kurzum um eine im weitesten Sinne verstandene iurisprudentia in Aktion.

Europa, dieses substantielle Novum, wo der Markt dahin tendiert, unter Wahrung seiner inne-ren Vielfalt in eine politisch-rechtliche Einheit überzugehen, erweist sich hier als ein Versuchs-labor, das neuer theoretischer Werkzeuge bedarf, deshalb für theoretische Beiträge höchst offen ist und äußerst anziehend auf jene Rechtswissen-schaler wirkt, die neuen Wegen gegenüber auf-geschlossen sind. Um den Blick nicht allzu sehr auszuweiten und damit meine Rede über Gebühr auszudehnen, beschränke ich mich auf jenen Kom-plex von autonomen Privathandlungen, die unter die allgemeine Kategorie des Vertrages fallen und den dynamischen Kern der Wirtschasorganisa-tion bilden.

Neben der unauörlichen Flut von ›Handbü-chern‹, Aufsätzen und Zeitschrien, die sich mit dem theoretischen Gerüst des zu schöpfenden europäischen Privatrechts und insbesondere des Vertragsrechts befassen, stechen – abgesehen von den (mehr oder weniger originellen, im wesent-lichen aber hinfälligen 22) zivilrechtlichen Kodifi-zierungsversuchen – die unabhängigen Initiativen von Gelehrtengruppen hervor, die das spezifische Ziel verfolgen, Prinzipien zu entwickeln, mit denen sie der Praxis unter die Arme greifen wollen und die die Praxis spontan zur Regelung der eigenen Tagesgeschäe übernehmen kann. 23 Das gelungens-te Beispiel bieten hier jene »Principles of European Contract Law«, die unter der Leitung des bekann-

20 T (2013) VII, n. 3.21 Es sei mir erlaubt, auf meinen Beitrag

zu seinem Gedenken hinzuweisen: G (2008b). Sehr zu Recht hat der Gerichtshof am 13. Mai 2013 in Luxemburg eine Tagung zur Erinne-rung an das Urteil des Gerichtshofes vom 5. Februar 1963 veranstaltet.

22 Vgl. das reichhaltige ›Sonderhe‹ von Contratto e impresa / Europa (XVII [2012] n. 1), das die Aussagen von Trenta giuristi europei sull’idea di codice europeo dei contratti enthält.

23 Ein Überblick bei Z(2011).

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Paolo Grossi 263

ten dänischen Handelsrechtsexperten Ole Lando in drei Phasen zwischen 1982 und 2003 erarbeitet und vollendet worden sind. 24

Auch auf einer anderen Ebene, d. h. mit Blick auf die europäischen politischen Institutionen wie Parlament und Kommission, ist eine ähnlich be-deutsame Öffnung gegenüber der theoretischen Dimension des Rechts festzustellen. Zwar waren die letzten 25 Jahre, und das hat man häufig hervorgehoben, von Unsicherheiten, Stillstand und auch Widersprüchen gekennzeichnet, wäh-rend die Tragweite der verschiedenen Projekte sich je nach den Wechselfällen verengte oder erweiter-te, doch lässt sich ebensowenig leugnen, wie ein italienischer Rechtsvergleicher, Gian Maria Ajani, billigerweise bemerkte, dass ein kontinuierlicher »Dialog zwischen den Gemeinschaseinrichtun-gen und der Akademie« stattgefunden hat, »der in der Geschichte der Kodifizierung seinesgleichen sucht«. 25 Und gerade darauf kommt es im vor-liegenden Zusammenhang an. 26

Von Seiten des Parlaments sah man schon ziem-lich früh, ab 1989, 27 die Notwendigkeit, das Zivil-recht der Mitgliedstaaten einander anzunähern, eine Beobachtung, die sich im Verlauf der Jahre zur Überzeugung verdichtete, dass »ein einheitli-cher Binnenmarkt ohne weitere Schritte hin zu einer Harmonisierung des Zivilrechtes nicht voll-ständig funkionsfähig ist« und »die Initiative zum europäischen Vertragsrecht die wichtigste Initiati-ve ist, die derzeit im zivilrechtlichen Bereich an-hängig ist«. 28 Im Übrigen hatte das Parlament die Kommission bereits aufgefordert, »die laufenden Arbeiten der Forschergruppen zur Erarbeitung eines europäischen Vertragsrechts und des Netzes zum ›gemeinsamen Referenzrahmen‹ bereits jetzt zu nutzen«. 29

Die Kommission hatte sich ihrerseits seit 2001 in ihren Mitteilungen und Berichten den Proble-men eines europäischen Vertragsrechts gewidmet; mit einer wichtigen Mitteilung von 2004 hat sie die Realisierung eines ›Common Frame of Reference‹ ins Werk gesetzt, dessen Inhalte bestimmt, nämlich »klare Definitionen von Rechtsbegriffen, Grund-prinzipien und kohärente Mustervorschrien des Vertragsrechts« 30 zu liefern, und die »Einsetzung einer ständigen Arbeitsgruppe von Sachverständi-gen aus den Mitgliedstaaten« vorgesehen. 31 In völliger Übereinstimmung mit dem typischen Merkmal der europäischen Rechtsordnung (Ein-heit der Vielfalt, Vielfalt in der Einheit) unterstrich die Mitteilung »die Notwendigkeit, unterschied-liche Rechts- und Verwaltungstraditionen in den Mitgliedstaaten zu respektieren« 32 und »den viel-fältigen unterschiedlichen Rechtstraditionen in der EU […] Rechnung zu tragen«. 33

Bereits 2005 hatte die Kommission ein Forscher-netzwerk auf universitärer Ebene zur Erstellung einer juristischen Studie finanziert, mit der der Grund für einen ›gemeinsamen Referenzrahmen‹ gelegt werden sollte; kürzlich, im Jahr 2010, hielt sie es für notwendig, eine Expertengruppe im Be-reich des Zivilrechts und insbesondere des Ver-tragsrechts 34 einzurichten, die »aus hochqualifi-zierten ad personam berufenen Zivilrechtsexper-ten«, 35 aus Fachleuten bestehen sollte, »die in Wissenschas- und Forschungseinrichtungen oder Hochschulen tätig sind«. 36

Diese kurzen Hinweise bekräigen, was mir eine typische rechtliche Botscha aus dem La-bor / Europa zu sein scheint: Über die Normen hinaus zählen die Prinzipien. Es handelt sich um den Ausgang aus einem streng positivistischen Ansatz, dem Kapitalfehler des civil law, das sich

24 Vgl. die hervorragende Synthese von Z (2009).

25 A (2012) 83.26 Beispielha ist hier die ausführliche,

nüchterne Analyse von V(2009) Kap. I. Vgl. zuletzt unter den italienischen Veröffentlichungen M (2012).

27 Entschließung vom 26. Mai 1989.28 Entschließung des Europ. Parlaments

zum Europäischen Vertragsrecht vom 7. September 2006, Buchstabe B, Nr. 1 und 2.

29 Entschließung zum Europäischen Vertragsrecht vom 23. März 2006.

30 Mitteilung der Kommission an das Europ. Parlament und den Rat vom 11. Oktober 2004 – Europäisches Vertragsrecht und Überarbeitung des gemeinschalichen Besitzstands wei-teres Vorgehen (Mitteilung, 2.1.1). Dieselbe Mitteilung (Nr. 3.1.3) präzi-sierte im Detail: »Für den GRR wird eine Struktur ins Auge gefasst, wo-nach erstens gemeinsame vertrags-rechtliche Grundsätze festgelegt werden, unter Hinweis auf etwa not-wendige Ausnahmen von diesen Grundsätzen. Zweitens würden diese Grundsätze durch die Definition von Schlüsselbegriffen ergänzt. Drittens

sollen diese Grundsätze und Defini-tionen durch Mustervorschrien als Hauptbestandteil des GRR ergänzt werden.«

31 Loc. ult. cit.32 Ibidem, 2.3.33 Ibidem, 3.1.2.34 Beschluss der Kommission vom

26. April 2010 zur Einsetzung einer Expertengruppe für einen gemein-samen Referenzrahmen im Bereich des europ. Vertragsrechts – In Erwä-gung, Nr. 7.

35 Ibidem, n. 9.36 Ibidem – Beschluss, art. 4, n. 4.

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heute als unangemessen erweist, um unsere post-moderne Gesellscha zu ordnen. Das ergibt sich eindeutig aus der Option für die Prinzipien. Denn das Prinzip besitzt nicht die Trockenheit und Härte – also Starrheit – des Befehls, d. h. der autoritären Regel. Seine natürliche Elastizität macht es durch-lässig für die schnelllebige Dynamik der Interessen und die höchst langsame Dynamik der Werte; es bewahrt sich damit einen wertvollen expansiven Zug und ist bereit, auf seinem Weg all das aufzu-nehmen, was sich um ihn herum als das Beste erweist.

Das sich in beständiger Entwicklung befindli-che europäische Recht stützt sich vorzugsweise nicht nur auf Normsetzungsakte, sondern auf anpassungsfähige Quellen, auf praktische Recht-sprechung und Rechtswissenscha, die beide offen sind für die Zukun, die beide Schöpfer und Erarbeiter von Prinzipien sind.

7 Das Europa des Rechts und die heutige rechtliche Globalisierung

Unser heutiges Frankfurter Treffen verfolgt je-doch ein bestimmtes Ziel, nämlich die Botschaen des europäischen Rechts in einen globalen Kontext zu projizieren, der immer dichter wird und heute die Linien einer nahen Zukun vorwegnimmt. Der Titel unseres Symposiums ist ein eindeutig: »Europäische Normativität: Globalhistorische Per-spektiven«. Das Frankfurter Max-Planck-Institut, das sich mehr als jedes andere rechtshistorische Forschungsinstitut mit gleichmäßiger Aufmerk-samkeit den zeitlichen Dimensionen der Vergan-genheit, der Gegenwart und der Zukun gewid-met hat, genügt damit voll und ganz der kultur-ellen Rolle, die es von Anfang an ausfüllen wollte.

Genau in dieser Hinsicht kommt das rechtliche Europa nicht umhin, sich mit einem Rechtsgebilde auseinanderzusetzen, das nur einige Jahrzehnte alt ist, sich aber konstant ausweitet und folglich ent-schieden auf die Zukun gewendet ist: das Phäno-men, das gemeinhin als ›rechtliche Globalisierung‹ oder ›globales Recht‹ bzw. unter der fragwürdigen Verwendung des lateinischen Syntagmas als lex

mercatoria bezeichnet wird. Es handelt sich dabei um allgemeine, damit mehrdeutliche Benennun-gen, die es ohne Verzug inhaltlich zu bestimmen gilt, um dem Treibsand einer allzu vagen Begriff-lichkeit zu entkommen.

Natürlich sind hier die Prinzipien, Regeln und neuen Institute gemeint, welche die Wirtschas-handelnden – eine Gemeinscha, die immer glo-balere Formen annimmt – aus eigener Initiative auauen und auf diese Weise der Taubheit, Feind-seligkeit oder Ohnmacht der Staaten und der internationalen Rechtsordnung begegnen. Diese Prinzipien, Regeln, Institute werden von den po-sitiven Normen der Einzelstaaten und der inter-nationalen Rechtsordnung ignoriert, doch der ge-genwärtige Wirtschasverkehr bedarf ihrer un-bedingt; geschmiedet werden sie in erster Linie von den Wirtschashandelnden selbst (in erster Linie den großen multinationalen Unternehmen), aus deren lebendiger Erfahrung neue Bedürfnisse emporwachsen, die häufig aufgrund innovativer Techniken der Informatik in einen künstliche po-litische Grenzen nicht duldenden globalen Raum ausgreifen und die es in eine rechtliche Ordnung zu bringen gilt.

Es handelt sich dabei um einen Komplex von juristischen Linien, die parallel zu denen der Ein-zelstaaten, der zwischenstaatlichen Verbände oder der internationalen Ordnung laufen; mittlerweile stellt sich dieser Komplex nicht mehr als etwas Fragmentarisches und Freischwebendes dar, son-dern als ein Phänomen, das sich zunehmend orga-nisiert und bereits als primäre Rechtsordnung, 37als ein »tiers ordre juridique« 38 bezeichnet wird.

Bereits hier zeichnen sich klar einige Analogien zum rechtlichen Europa ab. Beide wurzeln in einem ökonomischen Boden, beide sind jung und unvollendet; nicht nur die sogenannte globa-le lex mercatoria ist, wie es ein scharfsinniger Ex-perte des internationalen Rechts, Alain Pellet, wirksam ausdrückt, eine Ordnung, »qui se cher-che«, 39 das gleiche gilt auch von Europa trotz der institutionellen Konsolidierungen und der immer markanteren Schritte in Richtung auf eine politi-sche und rechtliche Einigung. Dass im Übrigen auch im rechtlichen Europa ein solcher Prozess

37 So zum Beispiel sehr klar ein be-kannter italienischer Zivilrechtler, der das Globalisierungsphänomen aufmerksam verfolgt hat, vgl. G (2010).

38 P (2000).39 P (2000) 60.

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Paolo Grossi 265

abläu, geht bereits deutlich aus der ›Präambel‹ der ›Charta der Grundrechte‹ hervor, wo es nicht nur heißt, dass die Union zur Entwicklung gemein-samer Werte beiträgt, sondern auch »angesichts der Weiterentwicklung der Gesellscha, des sozia-len Fortschritts sowie der wissenschalichen und technologischen Entwicklungen« das Ziel ange-strebt wird, »den Schutz der Grundrechte zu stär-ken«. Auch Europa ist noch eine unvollkommene Rechtsordnung auf der Suche nach sich selbst.

Aber der Dialog drängt sich auch im Hinblick auf spezifische Übereinstimmungen auf. Wenn die Institute der rechtlichen Globalisierung aus der ökonomischen Praxis hervorgehen und auf Not-wendigkeiten wirtschalicher Natur antworten, ist der Beitrag der Juristen unabdingbar, um die wirt-schalichen Wahrnehmungen in rechtliche Ord-nungsvorschrien zu gießen. Die großen law firms, mehr noch aber die Universitätslehrer ermöglichen es, dass jene Wahrnehmungen die Form vollkom-mener rechtlicher Architekturen annehmen. Die ›Unidroit Principles of International Commercial Contracts‹ als bekanntestes und bedeutsamstes Bei-spiel der heutigen globalen lex mercatoria, auch wenn sie als ein Versuch des Restatement aureten wollen, sind in ihrer ersten Fassung von 1994 das Ergebnis einer theoretischen Leistung von sieb-zehn Rechtsprofessoren (darunter der bereits er-wähnte Ole Lando).

Jenseits der Initiative zur Systematisierung, die das ›Internationale Institut zur Vereinheitlichung des Privatrechts‹ durchgeführt hat, kommt es in der globalen Wirtschaspraxis zu einem konti-nuierlichen Prozess von Vertragsschöpfungen (aty-pisch gegenüber den von den staatlichen Gesetz-büchern vorgesehenen Mustern), die der ordnen-den Hand der Juristen bedürfen, damit aus ihnen echte Vertragsmodelle werden, denen die Alltags-praxis sicher folgen kann. Wie im rechtlichen

Europa bildet der Vertrag das Kardinalinstitut im Globalisierungsstrom, und so ist die Aufmerksam-keit verständlich, mit der sich ihm sowohl die europäischen Einrichtungen als auch die globale Gemeinscha der Wirtschashandelnden widmen.

Mehr noch. Da das Globalrecht zu seiner Stüt-zung nicht die Existenz einer politischen Institu-tion mit seiner Polizei und seinem Rechtspre-chungsapparat voraussetzt, andererseits aber auch das Globalrecht nicht von Organen absehen kann, die bei möglicher Nichterfüllung die Kontroversen beizulegen vermögen, spielt hier der Zivilrichter (Schlichter) eine Hauptrolle; die Vertragsformulare setzen für gewöhnlich fest, dass man sich zur Ent-scheidung an ihn wende. Vorrangige Quelle sind hier – neben den Vertragsmodellen und den Han-delsgebräuchen – die Schiedssprüche, die man in organischen Sammelwerken zusammenzustellen anstrebt und die hier wie ein wirkliches Gelehrten-recht aureten. Vom Ansehen eines Schlichters hängt es dann ab, ob ein Schiedsspruch zu einem Präzedenzfall wird, der es verdient, dass man auf ihn zurückgrei.

Ich denke, wir können hier einhalten. Die Bot-scha des rechtlichen Europa, einer im Entstehen begriffenen Kultur, findet seine Entsprechung in einem globalen Recht, das auf Rechtsprechung und Gelehrsamkeit beruht. Dessen ›Unruhe‹ – nach einem geistreichen Urteil der wichtigsten italienischen Expertin auf dem Gebiet 40 – verlangt elastische Quellen, die sich seismographisch der Bewegung und Veränderung anpassen. Und elasti-schen Quellen hat sich bis heute vor allem das europäische Recht auf seinem schwierigen Weg anvertraut. Das ›unruhigere‹ globale Recht kann von der rechtlichen Botscha des alten und neuen Europa nur lernen.

n

Bibliographien A, L. (2003), Ansprache, in: Corte di Giustizia delle Comunità Europeen A, G. (2012), Un diritto comune europeo della vendita? Nuove complessità, in: Trenta giuristi europei sull’idea di Codice

europeo, 71–85n C, H. (1990), Europäisierung der Rechtswissenscha, in: Neue Juristische Wochenschri 43, 937–941n Corte di Giustizia delle Comunità Europee (2002), 1952–2002: Cinquantesimo anniversario. Udienza solenne del 4 dicembre

2002, Luxembourg: Pubblicaz. Uff. Comunità Europee

40 F (2012) 72.

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n F, M.R. (2012), Prima lezione di diritto globale, Roma, Barin G, F. (2010), Lex mercatoria, 5. Aufl., Bolognan G, P. (1995), L’ordine giuridico medievale, Roma, Barin G, P. (1998a), Assolutismo giuridico e diritto privato, Milanon G, P. (1998b), Un diritto senza Stato (la nozione di autonomia come fondamento della costituzione giuridica medievale)

(1996), jetzt in: G (1998a) 275–292 (auf Deutsch: Ein Recht ohne Staat: der Autonomiebegriff als Grundlage der mittelalterlichen Rechtsverfassung, in Staat, Politik, Verwaltung in Europa. Gedächtnisschri für Roman Schnur, Berlin 1997)

n G, P. (1998c), Modelli storici e progetti attuali nella formazione di un futuro diritto europeo, in: Norm und Tradition. Welche Geschichtlichkeit für die Rechtsgeschichte? / Fra norma e tradizione. Quale storicità per la norma giuridica? Atti del Convegno tenutosi al Monte Verità dal 24 al 27 aprile 1996, hg. von P. C und G. D, Köln [usw.] 145–151; auch in: Rivista di diritto civile XLII (1996), Teil 1, und auf Spanisch in: Anuario de historia del derecho español LXVII (1997) (Homenaje a Francisco Tomàs y Valiente)

n G, P. (2005), Il sistema giuridico medievale e la civiltà comunale, in: Rivista di storia del diritto italiano LXXVIII, 31–52n G, P. (2006a), Società, diritto, Stato. Un recupero per il diritto, Milanon G, P. (2006b), Il punto e la linea (L’impatto degli studi storici nella formazione del giurista) (1995), jetzt in: G (2006a)

3–12n G, P. (2006c), Storia del diritto e diritto positivo nella formazione del giurista di oggi (1998), jetzt in: G (2006a) 13–25n G, P. (2006d), Dalla società di società alla insularità dello Stato: fra medioevo ed età moderna, jetzt in: G (2006) 75–95n G, P. (2008a), Nobiltà del diritto. Profili di giuristi, Milanon G, P. (2008b), Alberto Trabucchi civilista europeo, in: G (2008a) 713–739n G, P. (2011a), Introduzione al Novecento giuridico, Roma, Barin G, P. (2011b), Novecento giuridico – Un secolo post-moderno, jetzt in: G (2011a) 3–40n G, P. (2011c), Ordine / compattezza / complessità. La funzione inventiva del giurista, ieri ed oggi, auch in: G (2011a)

95–118n M, S. (2012), Il contratto di diritto europeo, Torinon P, A. (2000), La lex mercatoria ›tiers ordre juridique‹? Remarques ingenues d’un internationaliste de droit public, in:

Mélanges en l’honneur de Philippe Kahn, Paris, 53–74n R, H.W. (1993), Grundrechtsschutz in der Europäischen Gemeinscha. Bestandsaufnahme und Analyse der Recht-

sprechung des Europäischen Gerichtshofs zum Schutz der Grundrechte als allgemeine Rechtsgrundsätze, Münchenn R I, G.C. (2003), Discurso, in: Corte di Giustizia delle Comunità Europeen R, A u. a. (Hg.) (2013), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years

of Case Law, Berlin, Heidelbergn T, G. (2013), Commento allo art. 19 del Trattato dell’Unione Europea, in: Trattati dell’Unione Europea e della Comu-

nità europea, hg. von A. T, Milanon Trenta giuristi europei sull’idea di Codice europeo (2012), Padova (Contratto e impresa, Europa 17.2012,1)n V, G. (2009), Contratto e rimedi, Padovan Z, R. (2009), Principles of European Contract Law, in: B, J., K. J. H, R. Z (Hg.),

Handwörterbuch des Europäischen Privatrechts II, Tübingen, 1177–1180n Z, R. (2011), »Wissenschaliches Recht« am Beispiel (vor allem) des europäischen Vertragsrechts, in: C. B, A.

R (Hg.), Privates Recht, Tübingen, 21–48

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Kommentar

commentary

Mario Ascheri

A final comment and requestI was here about 10 years ago as a member of

the Beirat, when Prof. Michael Stolleis was proud to show the project for the new Institute, and now we are in front of a well noteworthy reality thanks to his efforts and of his colleagues.

So, many congratulations, just to start!There is no need to speak about the positive

results of so rich a conference and the quality of the answers it gave Prof. Duve’s proposals.

The proceedings are a quite clear product and leave no space to any doubt.

With Prof. Stolleis we lived through a first new trend aer the long and fruitful direction of Prof. Helmut Coing’s. I remember the first strong impetus given by Prof. Stolleis to the history of public law and the open-minded look at a larger Europa. He broke with the tradition of Privat-rechtsgeschichte and Ius commune with his strong interest on national developments and the judicial and practical problems of legal systems, focusing on the ›police‹ first of all.

Prof. Duve is now proposing ideas much more revolutionary. Their basic objectives, as far as I understand, are to go over traditional European legal history and a break with the past. Not com-pletely, but deeply and significantly.

I am basically in great simpathy with his call for a deep shi in method and goals of our Rechts-geschichte. We face a new world context. I feel this necessity not only from today, even if I could not hitherto succeed in showing it in my concrete daily work. I agree also with his pragmatic approaches and the well balanced judgements.

But the break is deep. To penetrate it: no more concentration on European Rechtsgeschichte, but to move towards a global, transcultural, legal his-tory. It should inherit the best from the traditional approach, but go further with new aims and tools which are applicable.

Duve speaks of utopia and rightly, because his aim is probably very close to other recent brave breaks with the past. For instance, to the incredible American dream of 50 years ago: basically, the problem is that of a transcultural dialogue. But this is difficult in general in social sciences, and becomes even more delicate when it involves legal history.

Because it has a traditional close bond with positive legal science, and is a discipline with a

strong constitution. Further, a constitution which is strongly bound with rich and deep European traditions, Eurocentric traditions with their trends oen related to specific political and national needs. That is why is so difficult for us even to manage an interdisciplinary discourse within the social sciences alone.

Indeed, speaking of course from my national experience, till recent decades we have normally had few possibilities to speak with other social sciences and also with public opinion, the com-mon reader with cultural interests, the ›ordinary people‹ who are willing to feed more and more the global culture.

Traditional legal history shows itself too insti-tutionalized exactly like positive jurisprudence, too abstract, too learned; sometimes also too much linked with professional interests or with politics. The critics of legal history are everywhere strong, beginning with historians who have different in-terests, who are now entering our world more frequently.

It is important therefore to leave the Eurocen-tric, ›Germanized‹ traditions of legal history. If we want to fill this gap and also to participate in contemporary global problems with our specific skills, we should also put both the problem: (a) of the contents of our new researches, and (b) of the communication of the results: their destination.

I want to be clearer.It is right to give up the pure Dogmengeschichte,

and right again to make more space for praxis, for the real conflicts, for the different levels and faces of normativity; right to put aside the narrow paths of positivism.

But we should also be more aware of the more general significance of our research.

A critical, open-minded history of legal institu-tions sheds new light not only on the laws of the past, more or less distant though they could be.

If it is well furnished with transnational and interdisciplinary tools, it could help us to contrib-ute not only to general jurisprudence and so to make a contribution to the development of aca-demic awareness. Sure. But I see more in the global perspective Prof. Duve has outlined.

I see an attempt to make legal history a social science useful for answering contemporary anxi-

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eties, showing the dangers of certain contexts, or the effects of some legal provisions. A contribution to the general, global, cultural awareness. In what way? By showing that the contemporary crisis is not (only) an economic one, (possibily) temporary. But awareness that there is a larger and deeper crisis because of the cultural obstacles to the con-versation of peoples. We have to make history of these difficulties also. Starting with the right point of view on our traditions.

Critical legal history does not see continuous positive achievements throughout the centuries of European history. It shows, on the contrary, much stop and go, winning and defeated people and ideas. Even when they were not worse, considering then ex post. A past of conflicts of all kinds, of public and private affairs, of lay and religious problems, always hard to understand, however, because the entanglements are the rule, and their interpretation always largely subjective and histor-ically conditioned.

But they cannot be put in order for showing the happy end of the story just to make their reading easier. We should read them, on the contrary, to detect how far the discovered complexity can con-tribute to a wider knowledge of the still tragic human, global history and condition.

Here the duty of the historian springs out particularly difficult and evident. The selection of the facts is not only inevitable but necessary. And the selection is a great responsibility which we should feel: neither hiding or concentrating on bad stories (good for best sellers!), but focusing on whatever transnational work could bring as more fruitful. And for these aims we should not obey formalistic schemas of learned legal doctrine, be-cause otherwise we become prisoners of its internal questions.

We should look more to the fields which imply common problems with other social sciences, and other specialized histories, like political and social history.

Here we find the broad areas of colonialism, of immigration, of the various minorities, citizen-ships, discriminations of many kinds, religious intolerance, labour and gender studies and so on.

Topics are important, certainly, but how to ap-proach them? With new categories and proposals is important.

I see a first step in abandoning our main tradi-tional discontinuities, as for instance the neat opposition ius commune / codification, or the sepa-

ration of powers, or political and administrative functions like metaphysical realities finally realized in the contemporary Rechtsstaat. These are to be considered some main European historical prob-lems in themselves, not as the end of the story: the fulfilment of Civilisation; not as rules sometimes operating here or there in the past and present, luckily discovered and steadily realized for our intellectual happiness!

Europe has been magistra of principles, of gen-eral rules explained with great and noble doctrinal speeches, but with much less paramount interest for their practical application, for their concrete impact.

The most sophisticated and well respected legal doctrine in Europe, as we all well know, could exist at the same time as the deepest barbarian total-itarism. That says something about the dangers of the self-celebrating formalism and the always pos-sible blindness of intellectual elites. A gap between universities and the contemporary world is always possible and was not uncommon in the past.

So public law, criminal law – a ›dark side‹ of ius commune as I stressed in the volume on Nordic Medieval Laws edited by D. Tamm and H. Vogt (2005) – and judicial and extra-judicial procedures imply strong political and cultural involvement, which better shows the contradictions of a specific context. Think, for instance, of the permanent gap between the proclaimed right of defense or the par condicio litigantium and the actual pratice. The needs of politics have oen introduced false mes-sages for acquiring the consent of the people. The gap between formal normativity and the real, effective normativity can be very wide and focused with precise documents and the resulting historical interpretations. Obviously the same edictal law can be obscured or subverted by norms officially of a lower level or even from illegal customs. Under-ground illegality can be widespread in fields of great practical importance and void of interest under a doctrinal point. Burocratic or tax prob-lems, considered lower legal questions, can involve daily life much more than a judicial problem or a legal question which is difficult from a doctrinal point of view.

In a few words: we need more freedom in posing questions without being bound by the traditional frameworks and prejudices of the past and to use this freedom in choosing topics easier to be studied and able, compared even to other social disciplines, to reach results of global interest.

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Mario Ascheri 271

In the effort to communicate these peculiarities of our context, what should we do? How can we promote as problems of general historical meaning our specific queries? How can we find the right road for leaving topics which are too technical and specific?

Here the other side of the problem emerges.Only if we use categories of global utility, which

could be available to everybody, can we usefully select our achievements and translate them into a common language to allow wider comparisons and to reach higher levels of conceptualisation and new light and stimulation for future research.

Here I think we need to make more use than usual of the languages of social and political history as common fields of a wider communication. It is on the level of social functions of a legal institute that we can make a link with researchers in other disciplines and realize a contribution to a global general jurisprudence. Human needs, human feel-ings are basically common and equal. The histor-ical answers were conceived in different languages and concepts, but their functions are to be framed as comparable and evaluable.

We should not respect the formalisms and technicalities which can hide the substance of the problems. The claim to autonomy of legal thought is in itself an historical problem, as the separation of the law from religion, politics, the economy or cultural traditions.

Normativity is a whole with many changing and less than obvious faces.

Looking at the past, whatever past, we find a peculiar language (thought more or less as ›legal‹ language) in that context, since it is the fruit of a complex cultural heritage, either more indigenous, more autonomous or the fruit of many encounters and transfers. But in any case that language will therefore be the fruit also of social and political factors. The relative stability of the law or of its concepts cannot hide its different use through time, and therefore we should always refer to the conflicts and the means of their resolution (or not!). With flexibility in our understanding, since the situation could be so complex that even con-flict could not arise. Attention should be paid to reading all signs, but mainly the weak signals, the underground difficulties, the world with no words of a large part of the ›common people‹, the world with no explicit witnesses – ambiguous themselves. What is not forbidden was permissible, or not even conceivable for the evident possible negative

effects? The answers of the sources are normally ambiguous, increasingly so in sophisticated and learned contexts. Adulterated communications are the rule and hide real life. The deepest legal doc-trine can obscure some tragic human conditions.

Smart but abstract discourses are part of our culture, and not only of the legal one. The civil values we all appreciate and we all consider a com-mon acquisition are indeed always to be verified and reached immer wieder: never definitively con-quered.

Always, the sophisticated propaganda of author-ities and public powers and of jurists can even obscure an open-minded approach to the real world. Let me recall for instance the worthy campaign for the abolition of the death penalty. It was a brilliant moment in the great European struggle for respect of human life. But everybody knows it was contemporary with a large run of colonial conquests, and now that (reputedly sa-cred) principle exists at the same time as practical, wide-ranging politics of omission of help in vari-ous contexts of necessity, even if not formally ›labelled‹ death penalties!

The global context sheds further light on tradi-tional principles, which are easier to respect in a narrower context. Global reality, like global his-tory, involves new problems and challenges, and they are interlinked. We understand the new glob-al world if we are aware of our past, and vice versa.

History is always ›contemporary‹ history – as Benedetto Croce explained. But this consciousness is not easily respected in our concrete historical work. Paradoxically, at least for the Italian case, probably we better apply this maxim when work-ing on the founding period of the Middle Ages than on the recent history of 18th–19th centuries! Even fascism was not able to reduce the strong and conflicting urban and territorial identities still operating today – and not always in a positive way.

Jumping to a broader context and thinking of Mr Koskenniemi’s brilliant paper, I consider a problem how right is our concentration on Early modern history for its colonial side and conflicting sovereign national States, and leaving aside – as is normally done – the Medieval world with its multifaceted ›international‹ jurisdictions and en-counters of peoples.

But it has become more urgent to be able to speak outside our discipline and even outside the academic world, just as we should breath air from outside Europe and our own discipline. Sometimes

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we just have to regain a space already lived in the past. I am considering for instance how far Italian jurists are now from a forerunner like David Santillana, professor at Il Cairo and writer of the important Tunisian code of obligations more than a century ago. Well, he was Jewish and worked on behalf of the Bey of Tunisia.

Let us go back to Duve’s proposal. The difficult and uncertain contemporary context demands pre-cisely for new utopic discourses. The exit from the crisis could be a false consolation, but also a utopican adventure. Anyway, this could be the right attempt for ensuring a positive presence of legal history in the transnational culture facing contemporary dramas: a way to give some hope to us (and to public interest). The other choice is a quiet, possible, existence, but in an academic world without any lively debate. Does the alternative need concrete proposals?

I should like to aim for these:We need a series of national legal histories

which should be written for an international read-

ership. That means: short books but answering to the same predetermined questions, so that they can contribute to the discussion and make it easier to overcome the traditional picture of single, differ-ent, national histories.

We have to aim also to realize an international conference for determining the topics which can now be seen as useful in aiming to develop the transnational transfer we are seeking. A lot of work has been done already. Now is the time to push it in the desired direction. With wise flexibility, to be sure, but with strong determination.

History presents awful stories, but shows also some trust in the future, many possibilities of change, of positive developments. The Enlight-ment was a European turning point with many aspects we should look at. The negative trend could be stopped.

But historical consciousness is necessary. And new work has to be done.

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Mario Ascheri 273

Kjell Å. Modéer

The Deep Structures of European Normativity in a Global Context

Comments

Let me apply some personal experiences to the important and fascinating themes Thomas Duve has introduced in his programmatic article we have discussed these three days. 1 This colloquium has been a confirmation of a context breaking moment – to use one of Martti Koskenniemi’s concepts yester-day: The late modern turning point in relation to the legal modernity of the 20th century and its implications on European legal history research. What we have observed during this conference is a highly diversified experience, demonstrating what I would define as a turning point within European legal history, a turning point also sym-bolized through the inauguration of this new construct of the institute at Hansaallee. In our time of legal globalization we increasingly identify transparent borders, multi-normativity and inter-disciplinary perspectives – all concepts diminished, suppressed, neglected or even prohibited during the modernity of the law. Late modern European legal history goes beyond the modernity as well as beyond Europe to be able to re-identify the deep structures of the law in our times. Below you find my reflections regarding this turning point within legal history.

Transcontinental legal cultures

Let me start in the Orient, in postcolonial Indo-China, in Hanoi. Fieen years ago the Lund Law Faculty initiated a law and development program in Hanoi / Vietnam aimed to support a rule of law based legal education at the Law Schools in Hanoi and Ho Chi Minh City. The program was financed by the national Swedish development agency (SI-DA). This program ran for ten years and is now terminated. We were a bunch of law professors at the Lund Faculty of Law who took on this chal-

lenging possibility to participate in an exotic Asian experience. We came from our local teaching obligations at Lund within the late modern Swed-ish welfare state related to the transnational courts in Luxembourg and Strasbourg. The aim of the project was to export a modern legal education based on the rule of law and human rights to young law teachers in the communist state of Vietnam. It was a great cultural and professional challenge. In retrospect, I regard this experience as a sort of colonial program of our times, where we, the Swedish law professors, (in an uncon-sciously magisterial way) taught our young Viet-namese colleagues about the superior Swedish law within a European (and even global) context. 2 My task in this project was to give a class in compara-tive legal history. My Vietnamese students listened with wide-open ears and eyes when I introduced them to some interdisciplinary and / or postmod-ern theories in comparative law and legal history.

Aer a couple of days one of my students came up to me in a break and asked me humbly:– Teacher, what you are telling us, is that right or wrong?

Is that right or wrong!!! My cognitive paradigm experienced an earthquake. I answered him, that it wasn’t my task to come to Vietnam to tell him what is right and what is wrong. Too many West-erners had done so before me.

But I will never forget the comment from this Vietnamese student. His comment gave me, to talk with Theodor Fontane, »one of the most signifi-cant incidental circumstances in my life« – »einer von den signifikanten Nebenumständen meines Lebens«.

From the Vietnamese student’s perspective his question of course was a very relevant one. He was trained within a traditional, hierarchic socialist legal education, in which the students were just to accept that the teacher always told the truth about »the valid law«. The teacher always gave the

1 D (2013).2 Some of my reflections in that respect

are published in M (2012).

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Kjell Å. Modéer 275

right answers. In his dogmatically based legal culture there was no place for interactive argumen-tation within seminar discourses or an alternative jurisprudence in a Western style.

At the same time the student’s question gave me a bad conscience. Why hadn’t I been more aware of the prerequisites for the Asian students I had to address? Why did I go to Hanoi as a sort of colonial professor of our times immanently imposing post-modern discourses to them without having learnt more of the legal culture into which I was invited? In my defense I presume my colleagues in the fields of positive law were (and are) still more ignorant about this cognitive problem.

My Vietnamese experience, however, has given me a much more humble view of my task as a law teacher. Listen to your students before you intro-duce your knowledge to them! Especially aer having learnt what Jürgen Renn taught us yester-day; in the globalization process the place of local knowledge has to be a matrix.

My Vietnamese students identified their mixed legal system as related not only to Chinese Con-fucian thought, but also European and American elements. The French code Vietnamese style was adopted in the 1880s and is still regarded as a living ruin of the law. Their elderly law professors had all been trained in Moscow or East-Berlin in Marxist-socialist legal thought, and contemporary Ameri-can law sipped into the legal cultures not only from the U.S. law firms in Saigon in the south but also through affiliation to global conventions like WTO, and the wish to be a member of CISG, and other UNCITRAL conventions. Several of the students had been trainees at the offices of Amer-ican law firms. So their cognitive legal system could be identified by legal transplants and legal transfers from ancient times up to today. Legal history is a must if you want to be a part of the global law! My Vietnam experience confirmed Reinhard Zimmermann’s metaphor regarding mixed legal systems as »a tapestry of many different shades and nuances«. 3 The Vietnamese example became the eye-opener for a fresh historical per-spective on the many European legal systems and cultures.

Law and development as a part of the globalization process

Since then I have also learnt more about the relation between law and development. The research problems Thomas Duve has indicated in his paper could have had their embryonic phase within the American discourse on law and development in the 1960s and 70s. In the postwar era the U.S. State department sent out a lot of lawyers as »mission-aries« to teach the U.S. constitution and other American legal phenomena in developing coun-tries. From a critical perspective this experience was much more imposition than reception, and this naïve perspective on how to relate to legal transplants was heavily criticized. 4 Among those who reacted was Lawrence M. Friedman, whom in an oen-quoted article with the title »On legal development« in Rutgers Law Review criticized the modernization of law as formulated within law and development-projects, which aimed to modernize (read: Americanize) the law in the developing countries. It was in this article Friedman used the oen quoted metaphor, that »[y]et no one could modernize a country by changing its clothes«. 5 It was in the same article Friedman introduced the modern sociological concept of legal culture, which has been so important for the discourses on con-textualization of legal history in increasingly trans-parent and heterogeneous nation states.

This was in the late 1960s, really one of these »context breaking moments« we talked about yes-terday. The critics of this first stage of the law and development movement belonged to the Critical legal studies movement. 6 And it was those »Crits« who dominated the postmodern postcolonial dis-courses within American legal history from the 1970s onwards. 7

Today critical schools have turned mainstream. An American legal historian told me some years ago, that »nowadays we are all Crits, more or less«. The conflict perspective within legal history estab-lished by Morton Horwitz in the 1970s introduced a quite new perspective on legal history research of great importance in the Anglo-American legal world. 8

3 Z (2001) 158ff.4 T, G (1974).5 F (1969).6 S (2013).7 K (2006).

8 H (1978). Horwitz’s Transfor-mation had a major influence on the field of American legal history. Cfr. Review Symposium on the 25th An-niversary.

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276 The Deep Structures of European Normativity in a Global Context

Hybridization of Comparative Law: Comparative Legal Cultures

One important part of this turning point within legal history is the dynamic interpretation of the concept of legal culture, as Werner Gephardt yesterday so brilliantly demonstrated. By bringing in new scales in our time of globalization, com-parative law and legal history have merged into a new fascinating and developable discipline: com-parative legal cultures.

Comparative law is a discipline, which like International Public law has experienced a para-digm shi from the year of 1900. As we heard from Werner Gephardt yesterday, the World fairs intro-duced global comparisons, and the International Congress of Comparative law was initiated at the World fair in Paris 1900. The famous Schulstreitbetween the two French law professors in compa-rative law Raymond Saleilles and Edouard Lam-bert indicated two almost dichotomic positions, one more idealistic and culturally orientated (that of Saleilles) and one more functional and prag-matic (that of Lambert). 9 We all know that Lam-bert won this intellectual struggle, and that com-parative law as well as many other legal disciplines became dominated by the rationalism and func-tionalism of the modernity of the 20th century. The German Law émigré Ernst Rabel and Max Rhein-stein were the successors of this Lambert-tradition.

But the discipline comparative law of today has also passed a new turning point. One can say that the loosers in the Schulstreit 1900 have turned out to be the winners of today. 10

Some years ago I picked two catchwords in the Yale Journal of Law and Humanities defining the current trends within the globalization of law: De-secularization and Re-traditionalization. 11 Those two concepts were defined in relation to moderni-ty. The secularization and the negative attitude to history and tradition belonged to the paradigm of the post-war period. In the 21st century secula-rization is challenged by multi-religiosity and the visions for the future compete with an increasing consciousness for history, traditions and culture.

This transition of attitudes to religion, culture and identity legitimizes to a great extent the need for a context-orientated comparative law and culture-research.

Law and Religion in Historical Contexts

I will continue by demonstrating another exam-ple of the implementation of the perspectives Thomas Duve suggests is his article: Legal history in relation to religion. During the modernity of the 20th century, religion became increasingly margi-nalized, and the secularization process dominated discourses within church law, religious law and law and religion – especially in the Scandinavian countries. The Scandinavian countries belong to the most secularized in the modern world.

Some years ago a Scandinavian project group of theologians and jurists investigated comparatively the Nordic countries and their relation to state and church and the cultural role of religion. The result of this project became an impressive volume on Law and Religion in the 21st Century in the Nordic countries, published in 2010. 12 All Nordic coun-tries have a long tradition with the Lutheran Evangelical church as a majority church in society and as a state religion. The progressive Swedish state, however, le its relation to the church in 2000, and some ten years later Norway made a constitutional reform, implemented in 2014. In a parliamentarian compromise Norway kept the re-lation to state and church, but gave more au-tonomy to the Norwegian church. In Denmark a recent commission has worked for about a year to investigate if some changes also should be made in the Danish constitution as regards the relation between state and church. The mandate for this commission, however, has been so limited that just minor changes are expected in the relations be-tween the state and the church in the future. 13 The diversities between the Nordic countries in this area demonstrate to a great extent the differences in the legal cultures in relation to religion. It’s time for the legal historians not only to bring church

9 V (2012).10 M (2002), M (2013).11 F (1998).12 A, M,

C (eds.) (2010).13 Betænkning 1544 (2014).

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history and its cultural aspects into its sphere, but also to identify the fundamental Christian societal values on e.g. solidarity, democracy and human dignity, which Robert N Bellah brought up with the concept of civil religion already in the 1960s. 14

Bellah’s concept has been increasingly impor-tant within the post-colonial constitutionalism of our times. Bellah in his later works returned to the civil religion-discourse and has described the role of Confucianism not only in China but in South-East Asia as a whole as a form of re-traditionalization of the legal culture. 15 Bellah argued for a more open and comparative view on the four cultures ema-nating from what Karl Jaspers called the axial age(Achsenzeit; China, India, Israel and Greece) be-tween 800 and 200 BC. Bellah described the on-going current discourses on Chinese civil religion, »which would not be a state ideology, which would not be legally enforced, but would operate on a voluntary basis as a kind of conversation about the deep sources of Chinese culture and would be open to the rest of the world. So the degree to which the Confucian argument is alive and well in China is very encouraging«, he stated. »It is divided between ultra-conservative or reactionary views and some very open liberal views – views that would have no problem linking Confucianism to human rights and democratic political forms.« 16This current civil religion discourse underlines the importance of comparative constitutional law as an important field not only from a European but also from a global perspective.

Europe and The Post-Colonial Other

Boaventura de Sousa Santos introduced the metaphor of legal maps in his description of the relation between the Western and the post-colonial legal systems, 17 and in the mid 1990s he published an article on the three metaphors identifying legal post-colonialism in his mapping concept of the law in which he identified three postcolonial elements in relation to the Southern hemisphere: The Fron-tier, the Baroque and the South. 18 He identified a great mental frontier between the North and the

South. The culture of the South is in his view dominated by the baroque, not only in the artifacts of the Spanish 16th century and its baroque-cathe-drals, but also as a metaphor for colonial elements in postcolonial Latin America: The Spanish lan-guage, the Roman-catholic church and the formal-istic Spanish bureaucracy. The mixed legal systems are, so Santos, diversified and fragmentized and are exposed as »different legal spaces superimposed, interpenetrated and mixed in our minds as in our actions«. 19

Post-apartheid South Africa represents another interesting example of this diversified law where colonial law is mixed with deep structures of law. Albie Sachs describes the visibility of Ubuntu-bothoin the contemporary South African constitutional and judicial culture. Ubunthu-botho is a concept he finds »intrinsic to and constitutive« of the South African constitutional culture. 20 »Historically it was foundational to the spirit of reconciliation and bridge-building that enabled our deeply trau-matized society to overcome and transcend the divisions of the past. In present-day terms«, so Sachs, »it has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of cen-tral constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution …«. Sachs compares the original concept of ubunthu-botho with the concept of the amende honorable in the traditional Roman-Dutch law. Both share the same underlying philosophy and goal of restorative justice. »Both are directed towards promoting face-to face encounter between the parties, so as to facilitate resolution in public of their differences and the restoration of harmony in the community. In both legal cultures the cen-terpiece of the process is to create conditions to facilitate the achievement, if at all possible, of an apology honestly offered, and generously accep-ted.« 21 So Ubuntuism represents a philosophy in contemporary South Africa with deep roots in history and defined as »humanity towards others« – an immanent civil religion. A colleague of Albie Sachs, Justice Yvonne Mokgoro has explained the

14 B (1967); M (2009).15 B (2011).16 J (2012).17 S (1987).

18 S (1995).19 S (1987) 297 f. 20 S (2011) 100.21 S (2011) 102.

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meaning of ubuntu as «it envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense, it denotes human-ity and morality«. 22

In a setting of global normativity the South African Ubuntuism and the Chinese Confucian-ism represent different forms of deep structures like a civil religion embedded in constitutional cultures.

Transatlantic interaction within the law

The discipline comparative law is an interesting instrument if you want to study the legal trans-lations of norms from strict legal rules to norms in metaphors. I’m currently involved in a project on what happened within the Scandinavian legal cultures in the post-war period 1945-75. The title of my project is »When the Wind turned from South to West: The Transition of Scandinavian Legal Cultures 1945–1975«. Aer 1945 when the young generation of legal scholars got the possi-bility to travel abroad aer the war, they couldn’t like their predecessors go to Germany, so they turned West and went to the U.K. and the U.S.A. In post-war U.S. they met not only with very dynamic academic legal cultures, they also met with former German law professors, prominent German law émigrés, e. g. Ernst Rabel in Ann Arbour, Max Rheinstein in Chicago, Hans Kelsen, Albert Ehrenzweig and others at UC/California at Berkeley – all of them examples of legal scholars of great importance for establishing international private law and comparative law as important legal fields within the North American law curriculum. The Scandinavian legal scholars also observed the alternative jurisprudence in the U.S. and trans-formed it into the Nordic legal cultures. So: The transatlantic interaction within the law – including legal history – during this period is a fascinating topic – another example of a context breaking moment in Nordic legal history. 23

A Roundtrip to Vietnam

When I, with help of my Vietnamese students, identified the Vietnamese postcolonial period, Boa-ventura de Sousa Santos’ legal mapping construct was very useful. The Vietnamese legal culture had several layers of legal culture, first the Chinese, then the French, and from the 1950s Soviet-in-spired and then the last 25 years the current global or Americanized legal culture. The Vietnamese legal culture is a salad-bowl of all these cultural elements transferred into the Vietnamese legal culture. The Vietnamese history is visible in its urban legal culture. French architecture still dom-inates the Vietnamese courthouses constructed in the colonial era. They are drawn by French archi-tects and look like 19th century Palais de justice. They are still used for this purpose by the Vietnam-ese judiciary. In the temple of the court of appeal in Ho Chih Minh City (Saigon) you still can find a bronze of the Goddess of Justice from the French colonial period in the entrance-hall, even if the judges at least since the late 1970s have be trained into a more or less Soviet-inspired legal culture.

My Vietnamese students taught me there are around 70 minorities to be identified in Vietnam. They informed me about the important role of customary law in the territories of these minorities. One of the customary law sayings runs: »The emperor’s laws stop at the village’s gate«. It meant, the Emperor’s law had the general jurisdiction, but in the villages ruled the customary law of the minority. Interestingly enough this customary law jurisdiction of the Vietnamese minorities is still respected by the political institutions. 24

By turning East, by going to Vietnam and getting insights into the post-colonial legal culture, filled up with foreign legal translations into Indo-China, I brought new perspectives with me back to Sweden and implemented them in my legal edu-cation and tried to identify which general forms of transplants and transfers from foreign legal cul-tures we can identify in that comparison in the Scandinavian countries.

22 S (2011) 107.23 M (2008).24 Cfr. the role of traditional courts in

Mozambique: S (2006).

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Conclusion

Thomas Duve’s valuable article as well as this inspiring colloquium gives all of us reason to reflect on the future of European legal historical research. Europe of today is not only a part of a common internal European legal history, but also of an external one, diversified – and as my contri-bution here today witnesses – related to our iden-tity as legal historians and to our personal experi-ences in the past. Today customary law as well as International Public Law again is an increasingly important legal source, a part of the deep structures of law to be identified. In European legal history comparative private law has had priority. Today

however, comparative constitutional law is an upcoming field of study in European legal history. I have taken the metaphor civil religion in its different concepts – not only from the West – to demonstrate an example of important globalized legal discourses. The legal deep structures in China, Vietnam, or South Africa are not necessarily ema-nating from European legal history. But those elements definitively belong to the comparative legal history we have to use if we want to put European normativity into a global setting.

n

Bibliographyn A, S, K Å. M, L C (eds.) (2010), Law and Religion in the 21st Century. Nordic

Perspectives, Kopenhagen: DJØFn B, R N. (1967), Civil Religion in America, in: Daedalus 96, 1–21n B, R N. (2011), Religion in the Human Evolution: From the Paleolithic to the Axial Age, Cambridge/Mass. 2011n Betænkning 1544 (2014): Folkekirkens styre. Betænkning fra Udvalget om en mere sammenhængende og moderne

styringsstruktur for folkekirken. Kirkeministeriet – [Copenhagen] April 2014n D, T (2013), European Legal History – Global Perspectives: Working Paper for the Colloquium, European

Normativity – Global Historical Perspectives (Max-Planck-Institute for European Legal History, September, 2nd – 4th, 2013), Max Planck Institute for European Legal History Research Paper Series No. 2013-06

n F, R R. (1998), Lamas, Oracles, Channels, and the Law: Reconsidering Religion and Social Theory, in: Yale Journal of Law & the Humanities 10 (1998) 505–535

n F, L M. (1969), On Legal Development, in: Rutgers Law Review 24 (1969), 11ff.n J, H (2012), A Conversation with Robert Bellah, in: The Hedgehog Review: Critical Reflections on Contemporary

Culture 14,2 (Summer) 72–78n H, M (1978), Transformation of American Law 1780–1860, New York, Londonn K, D (2006), Three Globalizations of Law and Legal Thought: 1850–2000, in: T, D, A S

(eds.) (2006), The New Law and Economic Development. A Critical Appraisal, Cambridge, 19–73n M, K Å. (2002), Der Verlierer als Sieger? Rechtsgeschichte und Rechtsvergleichung in einem neuen Schulstreit, in:

M, K Å. (ed.) (2002), Europäische Rechtsgeschichte und europäische Integration. Festskri till Heinz Mohnhaupt , Rättshistoriska skrier 4 (2002) 93ff. [Institutet för rättshistorisk forskning]

n M, K Å. (2008), Young Men Go West! Nordische Juristen, ihre Studienreisen in die USA während der Nachkriegszeit und die Rechtskultur, die sie dort vorfanden, in: H, A et al. (eds.), Gedächtnisschri für Jörn Eckert 15. Mai 1954 bis 21. März 2006, Baden-Baden, 585–603

n M, K Å. (2009), Den svenska och nordiska samhällsreligionen, in: M, A (ed.), Författningskulturer: konstitutioner och politiska system i Europa, USA och Asien, Malmö, 175–195

n M, K Å. (2012), Kulturkrockar mer än kulturmöten: Om ett rättsligt biståndsprojekt i Vietnam ur ett rättskulturper-spektiv, in: Juridisk Publikation (01/2012) 99ff.

n M, K Å. (2013), Time and Space in Comparative Legal Science: Twins or Aliens? Comparative Law and Legal History from Modern to Late Modern Discourses, in: Essays in Honour of Michael Bogdan, Juristförlaget i Lund: Lund, 337–347

n Review Symposium on the 25th Anniversary of Horwitz’s Transformation, in: American Legal History in Retrospect and Prospect: Reflections on the Twenty-fih Anniversary of Morton Horwitz’s Transformation of American Law (2003), Law &Social Inquiry (2003), 1135ff.

n S, A (2011), The Strange Alchemy of Life and Law, Oxfordn S, J (2013), A Menace to Society: Radicalism and Legal Scholarship in the United States, Scandinavia and

Finland, 1965–1980, Diss. Helsinkin S, B S (1987), Law: A Map of Misreading. Toward a Postmodern Conception of law, in: Journal of Law

and Society 14, 3, 279–302n S, B S (1995), Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the

South, in: Law and Society Review 29,4, 569–584

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n S, B S (2006), The Heterogeneous State and Legal Pluralism in Mozambique, in: Law & Society Review 40,1, 39–76

n T, D, M G (1974), Scholars in self-estrangement: some reflections on the crisis in law and development studies in the United States, in: Wisconsin Law Review (1974) 1062ff.

n V, S (2012), Rechtsgeschichte und Rechtsvergleichung um 1900: Die Geschichte einer anderen »Emanzipation durch Auseinanderdenken«, in: Rabels Zeitschri für ausländisches und internationales Privatrecht 76,4 (2012) 1122–1154

n Z, R (2001), Roman Law, Contemporary Law, European Law: The Civilian Tradition Today, Oxford University Press: Oxford

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Philip C. McCarty

Globalizing Legal HistoryIntroduction

Trained as an anthropologist and sociologist, I do not have sufficient knowledge or expertise to comment on the field of European legal history as it has developed in the post-WWII period. How-ever, as a self-identifying scholar of Global Studies, I am immersed in various intellectual debates about the past, present and future of global pro-cesses and how these impact disciplines such as sociology, political science, anthropology, litera-ture, history and law. It is in this context that I find Thomas Duve’s essay »European Legal History – Global Perspectives« a truly innovative and im-portant contribution toward rethinking discipli-nary paradigms and their normative theoretical and methodological approaches.

The field of Global Studies is a relatively new interdisciplinary field of inquiry that is rapidly growing and becoming institutionalized in aca-demic institutions around the world. It is a dy-namic field of inquiry that draws upon the human-ities, social and natural sciences to explore global-izing processes that challenge the analytical frames that to date have dominated Western scholarship in the modern period. Similar to most modern Western scholarship, European legal scholarship is founded upon and is limited by core Enlighten-ment ideals such as individualism, rationalism and secularism. Globalizing Western legal scholarship requires us to complicate fundamental assump-tions about individual responsibility, private own-ership and property, authorship, and state-bound notions of citizenship and civic rights. It requires us to seek, as Duve notes, »emancipation from one’s own Eurocentric traditions«. 1 This article describes global perspectives that inform the field of Global Studies and argues for the relevance of these perspectives to all scholarly research includ-ing that of European Legal History.

The article begins with a brief outline of the development of Global Studies as an emerging interdisciplinary field of inquiry. Part II reviews key global perspectives that animate scholars of historical and contemporary global processes. Part

III presents some specific comments that build upon Thomas Duve’s path-breaking essay and lo-cates his comments firmly within a Global Studies paradigm. I conclude, along with Duve, that legal historians must interrogate the historiographical biases and limitations of European Legal History in light of the global processes and contexts in which those histories developed. Global processes played a significant – albeit unacknowledged – role in shaping modern European capitalism, nationalism and the formation of Europe’s legal norms. More-over, these processes continue to play a role and so destabilize the centrality and primacy of »Europe« in analyzing legal normativity and its hybrid for-mations around the world.

I. Development of Global Studies

I was confronted with economic globalization in the early 1990’s as an anthropologist studying peasant agriculture in central Mexico. To my cha-grin a large multinational food company dropped a chicken factory-farm operation in the isolated village in which I was studying. In a matter of months, quiet isolation was replaced with chaotic interconnection. Nearly every aspect of village life was transformed as modernity and consumer cul-ture quickly took hold. Beyond obvious superficial changes, the entire social, economic and political structure of the village was overturned. The village elders became increasingly redundant and the youth fled for jobs the city. I was at a loss because I could not complete a conventional ethnographic study of a traditional agricultural village. I was too late. Globalization had arrived and, to my thinking at the time, ruined everything.

Anthropologists, along with scholars across the disciplines, encountered a world that was much more complex than they had imagined. Enormous transformations were going on in a complicated world system and the pace of change, fast as it was, seemed to be increasing. The impacts of these changes were being felt not just in one remote village, but everywhere. It became increasingly

1 D (2013) 1.

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Philip C. McCarty 283

apparent that the conceptual tools provided by the disciplines were no longer adequate. In my own work, I became painfully aware that my anthro-pological training was simply not designed to deal with the complex transformations that accompa-nied the onset of globalized capitalism. Scholars were faced with the daunting task of developing new theories and analytical approaches that could grapple with complex ongoing global processes. The prospect of engaging the global was so daunt-ing that I remember a day in 1995 when one of my senior colleagues stormed down the hall asking »What is all this nonsense about globalization? There is no such thing!« Since then I have oen wished he had been right.

Global Studies can be understood as an exten-sion of interdisciplinary efforts that influenced academia during the 1970’s and 80’s. Huge in-creases in post-World War II integration made it clear that no single academic discipline was suffi-cient to describe the economic, social and political changes going on in the world. New interdiscipli-nary approaches such as World-Systems Analysis built upon existing approaches such as Political Economy and International Relations. A variety of interdisciplinary fields and programs were estab-lished including Environmental Studies, Postcolo-nial Studies, Feminist Studies, Cultural Studies, Development Studies, as well as Race, Ethnic, Diaspora and Area Studies. It is from these critical and interdisciplinary trajectories that a coherent body of scholarship began to emerge dealing with new challenges posed by globalization, the neo-liberal deregulation of the global economy, and widespread social and political transformations accompanying events such as the fall of the Berlin Wall and Tiananmen Square.

Throughout the 1990s most scholarship en-gaged in global issues revolved around what is oen called the globalization debate. What is globalization? How do we know it exists? When did it start? What are its causes and effects? How can we go about studying these macro-scale pro-cesses? As a result, much of the early work in Global Studies tended to focus on locating, de-

scribing and measuring the complex macro-social, political and economic processes of globalization. 2Initially the analytical and methodological tools used to study these complex global-scale issues evolved from the various disciplines in which the global scholars themselves were trained. These included political science, economics, sociology, anthropology, history, law and environmental sci-ences, along with many other disciplines that span the humanities, social and natural sciences. Like other interdisciplinary programs that developed during this same period, Global Studies was oen presented as a confusing multi-disciplinary ag-glomeration of wildly different approaches taken from all these disciplines. 3 In Global Studies there was, and remains, a strong tendency to revel in the mesmerizing complexity of it all. However, over the past two decades an increasing number of scholars began to synthesize and articulate a more coherent field of inquiry and explore historical linkages to contemporary global issues as they played out in the vast diversity of local settings around the globe. 4

Without denying the complexity of global is-sues, or the field’s mongrel multidisciplinary ped-igree, I argue that in the last few years Global Studies has reached new levels of interdisciplinary synthesis, a deeper historical contextualization of contemporary issues, and new understandings of global-scale issues. 5 With these developments Global Studies has begun to emerge as a coherent interdisciplinary field with unique analytical per-spectives and approaches that are not necessarily replicated in conventional disciplines. These unique global perspectives suggest that with re-spect to European Legal History we need to de-stabilize the prevailing construct of Europe as a privileged / superior assemblage of secular nation-states transferring legal norms to non-Western societies around the world. As Duve argues, »If there is one important message in Postcolonial Studies, or Global History, for Legal History, it lies in the emancipation from the nationally or region-ally bound analytical categories which constrain our research«. 6

2 G (1991), R (1992).3 N P (2013) 6.4 A (1995), A (1996),

H 1995, H et al. (1999), J (2000).

5 N P (2013) 8.6 D (2013) 17.

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284 Globalizing Legal History

II. Integrated Perspectives in Global Studies

The interdisciplinary analytical perspectives that have developed in Global Studies reflect both the field’s interdisciplinary roots and the complex characteristics of global issues. 7 I would argue that global processes and the tools we use to analyze them are essentially transgressive and integrative. By transgressive I mean the breaking down of boundaries, in a spatial sense of crossing geo-political boundaries and in a temporal sense of crossing discrete historical periods. This transgres-sive impulse blurs disciplinary boundaries and many fundamental categories of Enlightenment thinking. By integrative I don’t just mean an interdisciplinary synthesis, but recognizing multi-ple connections between what are oen thought of as discrete social, political and economic processes, as well as the fundamental interdependence of apparently autonomous phenomena. The global perspectives discussed below are examples of trans-gressive and integrative themes in Global Studies.

Global and Local – Issues of Scale

The first thing one may notice about global issues such as climate change, economic develop-ment, human rights, immigration, transnational violence and processes of democratization is their sheer size and scale. Global-scale issues are so large and encompass so much variation that it can be difficult to wrap your head around any one global issue. However, it is important to note that »global-scale« doesn’t simply mean big – it does not mean that we need »to study everything and every-where«. 8 Global-scale issues are not only imposed on the local in a top-down fashion. 9 For global scholars the local, national, regional and the global are mutually constitutive, they create and recreate each other. 10

Global Studies scholars are interested in global-scale issues not simply as grand abstractions. For most of us large, abstract or monolithic global-scale issues only become real when they become tangible in the world. It is a characteristic of large global-scale issues that they frequently manifest differently at regional, national, and local levels.

Global-scale issues can also manifest in different ways across a variety of cultural contexts. 11 One difficulty of our work is that in some cases the variation of global issues at the local level is so extreme that it challenges the definition of abstract Western analytical concepts and their assumed universality. 12 Nonetheless, global-scale issues nec-essarily link large analytical abstractions to their myriad local variations.

From this discussion it should be clear that global-scale issues aren’t found only in the large macro processes of globalization. Global-scale pro-cesses become manifest in the lives of ordinary people and across the full range of human activ-ities. The global can be found in large cities but also in villages and neighborhoods. The global can be found in multinational corporations but also in the workplace, in mass culture and in the rituals of daily life. The global can be found in grand histor-ical narratives and individual life stories. Focusing on the sites where global issues become substantive helps to keep Global Studies grounded, critical, relevant and accessible.

Interconnection and Interdependence

Modern Western scholarship seeks to ration-alize the study of society and social practices, breaking units of analysis down into ever finer categories and discrete areas of specialization. In contrast, Global Studies is about re-integrating our understanding of the world, and proceeds from the assumption that studying the separate components of society may obscure the massive interconnectiv-ity of all of its parts. Historical and archaeological records indicate that human civilizations have al-ways been interconnected and that it rarely makes sense to separate human history into distinct geo-graphical regions or specific time periods. The ingrained habit of dividing up the study of differ-ent aspects of society into distinct units is one of the main reasons that scholars find it difficult to see the myriad interconnections that define societies and connect them across time and space. Today the economic, political, legal and cultural realms of social activity are clearly interconnected. 13 In an increasingly globalized world, whenever and wher-

7 G (2013), J (2014), N P (2013), S(2009), S (2013), S (2003).

8 D (2013) 23.

9 N P (2013) 11.10 See structuration in G (1984).11 D (2013) 22.12 C (2000) 9.

13 D (2013) 7.

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ever we look for connections we find that appa-rently discrete elements are interconnected, inter-dependent and mutually constitutive.

Global Studies has the potential to show us connections we could not have otherwise seen or even imagined. It suggests that important connec-tions exist between events and processes even when events appear to be disconnected and separated by time, space, or even our own categories of thought. By problematizing our dominant Western logics and binary thinking, a global perspective has the power to destabilize our modern and linear under-standing of cause and effect in the social world.

Analyzing interconnections and interdepend-ence is not a purely theoretical exercise and has important practical applications. For example, Global Studies shows us that the more policy-makers underestimate the structural interconnect-edness of related global issues, the more likely it is that their policies and programs will have fewer predictable outcomes and more unintended con-sequences. The multiplication of unintended con-sequences has real-world implications for interna-tional development programs and many other public policies.

Engaging the transgressive and interdependent qualities of global issues may at first make the world appear disorganized and chaotic. However, the disruption of established ways of knowing has the potential to yield new understandings; in this case disruption and re-integration can yield new analyses of systemic global-scale issues. For exam-ple, the interconnection and interdependence of global issues such as recent increases in poverty, growing urban slums and terrorism indicate that these apparently discrete phenomena are interac-tive elements in a larger global system. 14

Decentralized and Distributed Processes

Scholars that are trained to find clear connec-tions and simple dichotomies may be dismayed when they find global issues are not only large and complex, but like the Internet they can also be decentralized and distributed. Global processes may have more than one center or no center at all. 15 They may have no hierarchy, directional flow or even clear linear causality. They tend to have a

de-territorialized quality in that they are every-where and nowhere, or at least not neatly con-tained within established political borders and natural boundaries in the ways we are accustomed.

As an example, take the controversial issue of immigration. Even a cursory study reveals that the migration of people no longer happens from one point to another, from Third World to First World, or vice versa. Immigration, transmigration and return migration have become so widespread and complex that immigration can no longer be said to have a clear directional flow. The sense of violation that accompanies the massive cross-migration of people fleeing poverty and war is not limited to one nation or another. The borders of all nations are impacted by this problem and the crisis is felt simultaneously – though to different degrees – all over the world. The Third World is no longer somewhere »out there,« safely far off as it may once have seemed.

The point-to-point model of immigration fails to adequately describe the complex flow of people around the world. From a global perspective the ebb and flow of immigrants has over the last two hundred years been closely tied to the flow of global capital through a global economy. Where global-scale issues such as immigration are driven by global-scale economic processes these issues tend to defy geographic and political boundaries. This makes it difficult to study global-scale issues using territorial categories such as the nation-state. It follows that in terms of a global analysis the data sets that nation-states collect are also territorially bound and essentially flawed. If immigration is a distributed issue driven by decentralized global-scale processes then it should be no wonder that national immigration policies based on flawed nation-bound understandings of immigration will fail to deal with the issue.

Synchronic Contextualization

Global Studies scholars seek to situate appa-rently discrete phenomena back into the fabric of society, the social, political, economic, historical and geographic relations from which they have been artificially extracted and abstracted. 16 What can appear as discrete institutions and realms of

14 K (1999), D (2006).15 N P (2013) 10.16 W (1982).

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productive activity in society are necessarily func-tioning parts of a whole. Treating them as separate units is a fundamental misrepresentation that ob-scures their interdependence and function within the social system. This is an important point, since modern scholars typically approach topics such as economics, politics, culture and law as singular fields of analysis.

With respect to European Legal History it is essential to remember that law is a social construct that can’t be removed from its cultural context and must always be situated within the fabric of social, political and economic relations. Duve argues, as have other socio-legal scholars, that we must not »consider ›law‹ as something categorically different from other fields of cultural production, but as one modus of normativity«. 17

Historical Contextualization

Global Studies scholars recognize that history matters and that what went before explains a great deal about the world today. 18 It is impossible to understand the current geo-political map and multiple conflicts without some understanding of colonial and imperial histories that in many cases established modern national boundaries and set up enduring ethnic and territorial tensions. In short, a complex, interconnected and globalizing present can only be understood in the context of a com-plex, interconnected and globalizing past.

Take for example terrorism. In some ways the kinds of terrorism we are seeing today are com-pletely new, yet terrorism as a political tool has existed for centuries. By inserting contemporary terrorism into historical contexts we can see that while terrorists might claim religious motivations, acts of terrorism are political – not religious – acts. 19 Reinserting global processes into historical contexts allows us to reconnect the dots and begin to make sense of what may otherwise appear to be discrete phenomena and random events. Global analyses look for both patterns of change and patterns of continuity, highlighting the deep his-torical continuities between the past and ongoing global processes today. 20

Moreover, it is important to note that histories are always plural. Global histories should be decen-tralized and not privilege one historical narrative over another. This means that one community’s understandings of the past must be situated against other peoples’ narratives and historical memories that may be contradictory or even oppositional. 21As Duve points out with respect to law »we have many legal histories within the space called Eu-rope«. 22 It is not sufficient to tell a singular or do-minant history that presents European law being transported around the world influencing others. Notes Duve, this analytical point of view eliminates internal differentiation of legal cultures within the spatial construct of Europe, and externally reinfor-ces »the image of the unity of a European legal culture by juxtaposing ›in‹ and ›outside‹«. 23

Critical and Constructive

From the above discussion, it is hopefully clear that global perspectives challenge ways of knowing that are bound in modern scholarly disciplines. Beyond this, Global Studies is essentially critical in the sense that it challenges the status quo and taken-for-granted assumptions in all kinds of dis-course, knowledge production, and knowledge paradigms. Moreover, global perspectives recog-nize that the modern global system produces un-precedented economic growth and concentrations of wealth, as well as extreme poverty and various kinds of economic, racial, ethnic, and gendered inequality. Global perspectives are also inherently critical because they include a multiplicity of voices and alternative histories that bear witness to the violence and inequalities within the global system.

Global Studies questions historical narratives and political ideologies that are embedded in a given culture and tradition, and ultimately em-power certain groups and disempower others. Narratives and ideologies are not taken at face value but interrogated, highlighting intersectional dimensions of power around issues of gender, class, race, religion and ethnicity. 24 Global Studies is also essentially postmodern in the sense that it chal-

17 D (2013) 18; see also D-S (2013a).

18 M (1985), H (2014).19 J (2000).20 MC (2014).

21 T (1995).22 D (2013) 4.23 D (2013) 6, D-S

(2013b).24 C (2000).

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lenges taken-for-granted assumptions that too oen went unquestioned in the modern period. For example, Global Studies probes the limits of the nation-state and the international relations paradigm, problematizing nationalism and mono-lithic national identities. 25 Global Studies also criticizes mainstream economics, free-market ideologies, and the assumptions behind economic modernization and development models that put Europe at the center and relegate everyone else to the periphery. 26 This is important for European Legal History which, Duve points out, largely presupposes that enlightened Europeans devel-oped the »rule of law« and continue to deliver it to the rest of the world.

I would add that being critical should not be understood as a destructive or negative impulse, but rather as a constructive and inclusive impulse. The unpacking of dominant paradigms is oen analytically constructive. Opening up scholarship to multiple and alternative viewpoints can be threatening, but it is also creative, producing new avenues of inquiry and pointing toward new syn-theses and solutions. 27

Breaking Down Binaries

Increasing levels of communication, integration and interdependence in the global system require us to complicate simple binaries such as East and West, colonizer and colonized, First and Third Worlds, developed and developing. Such binaries can be used effectively to emphasize inequality and injustice. However, these same binaries also ob-scure the complexity of global issues. We may talk of rich and poor countries, but only a handful of countries are unequivocally rich or poor and the large majority of them fall somewhere in between. Dichotomies such as rich and poor obscure the variation between countries, as well as the internal variation within each country. Even the poorest countries have wealthy elites, middle and working classes. And conversely, even the richest regions have poverty and inequality.

Immanuel Wallerstein’s world-systems ap-proach is a good early example of systemic think-ing that moved beyond nation-states and simpli-

fied binaries (1974). Even though Wallerstein’s core / semi-periphery / periphery model is oen used as if it were a simple binary or triad, this is not an accurate portrayal of his work. Wallerstein described a complex global system made up of distributed systemic processes that are de-territori-alized in the sense that they can exist side-by-side in the same place. In his approach, core and periphery are the two ends of a spectrum. Along this spec-trum some nations have more diversified econo-mies and more total core processes than other nations. It is important to note that in his model this spectrum could also be applied to sub-national regions. Within every nation there are sub-regions made up of predominantly core, semi-peripheral or peripheral processes. For example »global cities« can be understood as core areas containing many diverse core, semi and peripheral processes, and these cities are in some ways more closely linked to each other than to the peripheral rural areas that surround them. 28

One must always be careful when applying Western binary logics and abstractions to non-Western regions. As the world becomes more globalized the lines between East and West, First and Third worlds, global North and South, are increasingly blurred. The people and issues that Europeans historically positioned »out there« at the margins are now right next door, and vice versa. At the same time we should recognize that it is becoming more appropriate to apply devel-opmental and human rights paradigms to our own post-industrial societies. In Global Studies, and across the humanities and social sciences more generally, scholars should avoid using binary logics that oversimplify and obscure variation. We should continually work to develop new terminology that more accurately reflects the range of variation across a continuum.

Hybridity and Fluidity

In addition to a strong preference for binaries, Western scholarship has a particular fondness for fixed categorical distinctions. It is assumed that categories such as race, ethnicity, class, gender or nationality accurately describe the world. The im-

25 A (1983).26 E (1995).27 N P (2013) 7.28 S (1991), D (2013) 15.

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plicit assumption behind these kinds of categorical schemas is that they are both comprehensive and mutually exclusive. As we know, such categories have many overlapping variations and are never truly comprehensive or mutually exclusive.

Categories are assumed to be mutually exclusivewhen a person cannot fit into more than one category. With increasing immigration, and a bet-ter understanding of the deep histories of human movement, it is clear that our tidy racial and ethnic categories are overly simplistic and essentializing. Similarly national identities have become complex, hyphenated and multiple. There have always been groups that don’t fit neatly into the available categories, and globalization is making it increas-ingly difficult to ignore the limitations of our categorical schemata.

Developing new terminology that more accu-rately reflects the range of possible identities in a globalized world is not sufficient. Any new under-standing of hybrid identities also needs to take into account the transient nature of identity itself. People have the ability to take on different identi-ties in different social settings. People in hybrid racial, ethnic and national categories can shi back and forth between categories, or occupy their hybrid identities, depending on the context. This kind of fluidity indicates that we need to increase the range of variation of our categories, allow overlapping categories, as well as movement be-tween categories.

Multiple Perspectives and Voices

When dealing with complex global issues there isn’t just one side, or even two sides, to every issue. It is important to recognize that people around the world have their own cultures, religions, values and their own ways of knowing grounded in historical traditions and validated by lived experi-ences. This means that there is never just one community, history, understanding, or truth since each cultural tradition has its own understandings and truths. The ability to understand an issue from multiple perspectives is an important part of crit-ical global scholarship. This makes cultural relativ-ism, standpoint and intersectional theories, plural-

ism and cosmopolitanism key concepts in Global Studies. 29

Acknowledging pluralism is not only about recognizing the existence of other cultures in the events and processes we study. Pluralism shapes the field of global studies itself and impacts every aspect of our work. Like the global processes we study, global scholarship is a distributed process. 30Global scholarship is produced by people in all the regions and cultures of the world. It doesn’t come from one place and can’t be just one thing. As a result, global scholarship should not recoil from plurality but embrace a plurality of voices and perspectives. Duve makes this point when he argues, »In an age of globalization of research, and of a certain tendency to adopt Anglo-Ameri-can scholarly practices, it is ever more important to preserve and cultivate different canons and con-cepts, to safeguard and promote epistemic plural-ity«. 31 Global scholarship should recognize histor-ical asymmetries of power in the production of knowledge, actively work to include scholars from the Global South and support the multi-vocal production of knowledge around the world.

III. Globalizing Legal Histories

Duve’s achievement in situating European Le-gal History in global perspectives is very important. I would like to suggest that Duve could push his argument further in terms of both temporal and spatial integration. Firstly, regarding time, Duve notes that legal historians must take into account medieval histories of law that filter into the nation-state building projects of the early modern era. Global perspectives suggest that even these medie-val histories of law were legally pluralistic formu-lations drawn from deep global historical contexts that included Middle Eastern, Far Eastern and African conceptions of government and law. As a result, many European business and legal practices that emerged in the early modern era were appro-priated directly from African, Middle and Far East-ern cultures.

Secondly, with respect to spatial integration, Duve’s essay rightly recognizes the global impact

29 S (1977), C (1980), A (2006), G (2013).

30 D (2013) 2 and 24.31 D (2013) 20.

Fokus focus


that European law had on other cultures in the colonial context of the 18th and 19th centuries via processes of diffusion, reception, translation and imitation. 32 This diffusion model implicitly af-firms a center-periphery model of causal influence, whereby Europeans influenced their colonial out-posts. We need to acknowledge a more robust multi-directional exchange throughout the colo-nial context. This argument could be expanded to show that the colonies also influenced European societies and their legal systems. 33 European soci-eties reaped the natural and economic resources of the colonies and at the same time were influenced by the intellectual and cultural traditions they encountered. Historical events in the colonies, such as the American and Haitian Revolutions, played an important role in shaping European law and politics. 34 The flourishing of European arts, sciences, politics and laws during the modern period can’t be separated from bloody histories of conquest and imperialism. 35 Similarly, it would not be possible to conceive of the formation of our current trade, immigration and asylum laws out-side of our more recent neo-colonial and neo-imperial histories. In short, European laws and

societies have been, and continue to be, influenced by colonial others in many unacknowledged ways.

In conclusion, Duve’s essay has given me an opportunity to think about global perspectives as they play out in European Legal History. I am confident that his pioneering contribution will spur others to confront historiographical biases and Eurocentric assumptions, and strive for new analytical syntheses in the global history of law. The global perspectives outlined above indicate that the ongoing evolution of European law has always been embedded in a web of other legal pluralities that includes non-Western legal tradi-tions in the ancient, colonial, and contemporary moments. Global perspectives also challenge legal scholars to incorporate emerging systems of trans-national governance, sub-national legal cultures, and a variety of informal and illegal normative systems. Whatever the object of study or field of inquiry, global perspectives shape the kinds of questions we ask, the analytical approaches we take, and the ways we engage the world.

n

Bibliographyn A, B (1983), Imagined Communities: Reflections on the Origin and Spread of Nationalism, London:Verson A, A (1996), Modernity At Large: Cultural Dimensions of Globalization, Minneapolis: University of Minnesotan A, K (2006), Cosmopolitanism: Ethics in a World of Strangers, New York: Nortonn A, B (1995), The Global System: Politics, Economics and Culture, New York: St. Martin’s Pressn C, D (2000), Provincializing Europe: Postcolonial Thought and Historical Difference, New Jersey: Princeton

University Pressn C, P H (2000), Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment, New

York: Routledgen D-S, E (2013a), Laws and Societies in Global Contexts: Contemporary Approaches, Cambridge: Cambridge

University Pressn D-S, E (2013b), Postcolonial Theories of Law, in: M T, R B (eds), An Introduction to Law and

Social Theory, 2nd edition, Oxford: Hartn D, M (2006), Planet of Slums, New York: Verson D, T (2013), European Legal History – Global Perspectives. Working paper for the Colloquium »European Norm-

ativity – Global Historical Perspectives« (Max-Planck-Institute, September 2nd – 4th, 2013)n E, A (1995), Encountering Development: The Making and Unmaking of the Third World, Princeton: Princeton

University Pressn G, A (1984), The Constitution of Society: Outline of the Theory of Structuration, Cambridge: Polity Pressn G, A (1991), The Consequences of Modernity, Stanford, CA: Stanford University Pressn G, G (2013), Ideas to Die For: The Cosmopolitan Challenge, New York: Routledge

32 D (2013) 7.33 D (2013) 15.34 H (2014) 209.35 D (2013) 1.

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n H, G (2014), The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America, New York: New York University Press

n H, D (1995), Democracy and the Global Order: From the Modern State to Cosmopolitan Governance, Cambridge: Polity Press

n H, D, A MG, D G, J P (1999), Global Transformations: Politics, Economics and Culture, Stanford: Stanford University Press

n H, E (2014), Fractured Times: Culture and Society in the Twentieth Century, New York: New Pressn J, M (2000), Terror in the Mind of God: The Global Rise of Religious Violence, Berkeley: University of

California Pressn J, M (ed.) (2014), Thinking Globally: A Global Studies Reader, Berkeley: University of California Pressn K, M (1999), New And Old Wars: Organized Violence in a Global Era, Stanford, CA: Stanford University Pressn MC, P (2014), Integrated Perspectives in Global Studies, San Diego: Cognellan M, S (1985), Sweetness and Power: The Place of Sugar in Modern History, New York: Penguinn N P, J (2013), What is Global Studies?, in: Globalizations 10,4, 499–514 http://dx.doi.org/10.1080/

14747731.2013.806746n R, R (1992), Globalization: Social Theory and Global Culture, London: Sagen S, S (1991), The Global City: New York, London, Tokyo, Princeton: Princeton University Pressn S, A (2009), The Idea of Justice, Cambridge, MA: Harvard University Pressn S, D (1977), Feminism and Marxism: A Place to Begin, A Way to Go, Vancouver: New Star Booksn S, M (2013), Introducing Globalization: Ties, Tensions, and Uneven Integration, West Sussex: Wiley-Blackwelln S, M (2003), Globalization: a very short introduction, Oxford: Oxford University Pressn T, M-R (1995), Silencing the Past: Power and the Production of History, Boston: Beacon Pressn W, E (1982), Europe and the People Without History, Berkeley: University of California Pressn W, I (1974), The Modern World-System, vol. I: Capitalist Agriculture and the Origins of the European

World-Economy in the Sixteenth Century, New York, London: Academic Press

Fokus focus


Kritik critique

Gunnar Folke Schuppert

The Cosmopolitan State*Der Staat ist ein Gebilde, dem schon viele

Namen gegeben worden sind, 1 die – wie etwa der Begriff des Interventionsstaates 2 – historische Einschnitte markieren oder – wie zum Beispiel der Begriff des Präventionsstaates 3 – auf Gefährdungs-lagen aufmerksam machen wollen. Besonders be-liebt ist auch, Reformbemühungen auf den Begriffbringen zu wollen, wie etwa der Begriff des »schlanken Staates« zeigt. 4 Ähnliches gilt für den Begriff der Staatlichkeit, heiße diese nun »offene Staatlichkeit« 5 oder – was immer häufiger einen Realitätsbefund wiedergibt – prekäre oder be-grenzte Staatlichkeit. 6 Hier nun geht es um den »kosmopolitischen Staat«, 7 wie er uns soeben in beeindruckender Weise von H. Patrick Glenn vor-gestellt worden ist.

I. Gibt es eine Geburtsstunde des »cosmopolitan state«?

Wenn ein vergleichsweise neuer Staatstyp vor-gestellt wird, fragt man sich als neugieriger Be-obachter zwei Dinge, nämlich einmal, wann dieser Staatstyp zum ersten Mal die Bühne des Weltge-schehens betreten hat und ob es – bei einem frühen Geburtsdatum – angemessen ist, hier schon den Begriff des Staates zu verwenden, dessen Entstehen üblicherweise in der frühen Neuzeit verortet wird. 8 Ein Geburtsdatum des »cosmopolitan state« verrät uns Glenn zwar nicht, aber er sieht seine Wurzeln bereits im Imperium Romanum und im Mittelalter; was die Verwendung des Staatsbegriffs für diesen Zeitraum angeht, so hat er insoweit – wie er ausdrücklich klarstellt – keine Bedenken: »It

may … be necessary to think of the state without any limit in time, though there will be variations in the types of state we then encounter. This would also flow from the strikingly large array of infor-med opinion, across disciplines, that rejects any temporal limit to the notion of the state.« 9 Für Glenn existiert also der Staat »avant la lettre«, eine jedenfalls dann plausible These, wenn damit nicht eine Festlegung auf einen bestimmten Staatstyp verbunden ist, eine »variety of statehood« vielmehr immer mitgedacht wird.

Auch sonst hat Glenn keine Schwierigkeiten damit, Begriffe der Zeitdiagnostik auf vergangene Zeitläue anzuwenden. Dies gilt etwa für den Begriff der Globalisierung, den er – in Überein-stimmung mit N. Chanda 10 und Osterhammel /Petersson 11 – auf Erscheinungsformen von »ar-chaic globalization« anwenden will; wir sehen dies genauso 12 und halten dies auch für den Gover-nance-Begriff für angemessen, jedenfalls dann, wenn man »governance« nicht als normatives Konzept (»good governance«), sondern als Analy-seinstrument verwendet. Insoweit ist das Glenn’-sche Buch zugleich ein Beitrag zum Thema »Vom Nutzen und Nachteil der Anwendung zeitdiagnos-tischer Begriffe auf die Historie«.

II. Cosmopolitalism als Koexistenz verschiedenartiger Governancekollektive

Wenn wir nun einen Blick auf die Vorläufer des »cosmopolitan state« werfen, so gilt es einmal, diese selbst zu identifizieren, zum anderen heraus-zufinden, inwieweit diese selbst kosmopolitischen

* Eine Besprechung von H. P G, The Cosmopolitan State, Oxford: Oxford University Press 2013, XI, 383 S., ISBN 0-19-968242-9

1 Mit zahlreichen Nachweisen: V (2001).

2 S (1989).3 D (1988).4 Zum Kontext J (2002).5 H (1998).6 S (2006); R /

L (2006).

7 Der Beitrag von M K(2013) »Kosmopolitischer Staat und konstitutionelle Autorität« handelt allerdings trotz seines einschlägig klingenden Titels nicht vom kosmo-politischen Staat, sondern von Fragen globaler Gerechtigkeit, die in der Gerechtigkeitsdiskussion normaler-weise unter der Überschri »global justice« diskutiert werden.

8 Vgl. dazu E / S (2014).9 Ebd. 6.

10 C (2007).11 O / P (2007).12 S (2014a).

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294 The Cosmopolitan State

Charakters sind, weil »this will mark the state as cosmopolitan from its early, and distant, ori-gins«. 13 Unter der Überschri »Early Cosmopoli-tanism« macht Glenn insgesamt vier Vorläufer-Institutionen aus, nämlich »The Church as State«, die »Diversity of Empires«, »Collaborative Cities« und »Affirmative Crowns«.

Die in diesem Ensemble von Governancekollek-tiven wichtigste Institution ist für Glenn die mit-telalterliche Kirche, die nicht nur quasi-staatli-chen Charakter aufweise, sondern – avant la lettre – selbst als Staat charakterisiert werden müsse: »There is therefore widespread historical opinion that the Christian church is not simply a significant antecedent to the contemporary state but is itself its first manifestation. Figgis concluded textually that ›the Church was not a State, it was the State‹ and that it had no recognizable civil counterpart. Others concur but differ in the timing. … The me-dieval Christian church would therefore confirm the thesis that the institution of the state could exist before the name, and before its theoretical articulation.« 14

Die Institution »Kirche« ist für die Argumenta-tionskette Glenns natürlich eine Perle von beson-derem Glanz, zeichnete sie sich doch nicht nur von Anfang an durch ein ausgesprochenes »Globalisie-rungsgen« aus, sondern gilt sie – im Rückblick auf ihre 2000-jährige Geschichte – der zeitgenössischen Religionssoziologie geradezu als der Prototyp eines deterritorialen religiösen Governanceregimes von globaler Reichweite. 15

Auch das Beispiel der Imperien wird man nicht nur gelten lassen müssen, sondern ist aus zwei Gründen gut gewählt: Einmal kann man – wie wir an anderer Stelle dargelegt haben 16 – Imperien – ebenso übrigens wie Netzwerke – als Erscheinungsformen von globalisiertem »institu-tion building« verstehen, zum anderen sind sie – was Kosmopolitismus im Kern ausmacht – Gover-nanceregime, die notwendigerweise Techniken und Strategien entwickeln mussten, um mit ihrer inneren Diversität umzugehen: »In discussing em-pires as antecedents of contemporary states it should be recalled that empires would have existed

not only as sources of persistent concepts and norms, taken over in contemporary states, but as states themselves. They were ›composite‹ or cosmo-politan states, the only kind of temporal gover-nance available beyond chiefdoms or city-states. Their state-like character is more evident if they are compared to some contemporary, recognized states such as India or Indonesia, with their diverse populations and laws, largely natural (or contes-ted) boundaries, and federal or regionally auto-nomous structures.« 17

Auch Städte passen – auch ohne Absolvierung eines DNA-Tests – problemlos in die Ahnengalerie des »cosmopolitan state«. Nicht nur haben sie als ein Flechtwerk von Handelsbeziehungen – man denke nur an den Städtebund der Hanse als Er-scheinungsform virtueller Staatlichkeit 18 – schon früh einen ausgesprochen »cosmopolitan spirit« ausgestrahlt, auch heute sind die sogenannten MEGA-Cities Governanceakteure kosmopoliti-schen Charakters. 19 Nach Meinung von Experten leben wir in einem Zeitalter, das von ihnen als URBAN AGE bezeichnet wird und durch eine weiterhin explosionsartige Zunahme des in gro-ßen Städten lebenden Bevölkerungsanteils gekenn-zeichnet ist – Städten, die sich zunehmend, z. B. in Sachen des Klimaschutzes, auch netzwerkartig organisieren.

Schließlich gehört auch die zählebige Institu-tion der Monarchie zu den Vorläufern des moder-nen kosmopolitischen Staates, ein Befund, den Glenn wie folgt formuliert: »Kings and queens are well-known phenomena. About a fih of the world’s present states are monarchical in form (absolute, semi-constitutional, constitutional, sub-national) so we already know of the persistence of the tradition. … Given the events of the second millennium, there is now widespread agreement that of all the medieval European actors it is monarchy that was the immediate predecessor of the contemporary state. It was a predecessor but not the state itself, since medieval monarchs en-countered ›fierce resistance‹ and the unitary ideal was overshadowed by different forms of political plurality. Crowns were affirmative, but there was

13 Ebd. 17.14 Ebd. 21.15 C (2009).16 Fußnote 12.17 Ebd. 28.18 Näher dazu S, Fußnote 12.

19 S (2001); zur Rolle von global cities als Kristallisationspunkten von »legal spaces« siehe auch D (2013).

Kritik critique

Gunnar Folke Schuppert 295

much to be affirmative against, and absolutism turned out to be more theoretical than real.« 20

Das Besondere an diesen vier hier skizzierten Governancekollektiven ist, dass sie alle in einer Form von »cosmopolitan coexistence« miteinander leben und miteinander auskommen müssen; dies sei der eigentliche Ausweis – so Glenn – ihres Kosmopolitismus: »There have thus been antece-dents to the contemporary state, all exemplifica-tions of a broadly conceived state tradition and all irresistibly cosmopolitan in character. They were irresistibly cosmopolitan because there were no effective instruments of closure that could be put to use. Church, empire, city, and kingdom could not be separated from one another; they necessarily lived together. To the extent that we see historical struggle amongst them today, this too is evidence of their cosmopolitanism.« 21

III. Das Werden des kosmopolitischen Staates als Gratwanderung zwischen »cosmopolitan ways« und territorial- sowie nationalstaatlicher Abschottung

Patrick Glenns Buch ist auch deswegen so an-genehm zu lesen, weil er es trotz der Vielfalt der mitgeteilten Informationen und Befunde sowie der beeindruckenden Menge verarbeiteter Litera-tur versteht, den Leser bei der Hand zu nehmen und gemeinsam mit ihm den schwierigen Weg des Entstehens des »cosmopolitan state« zu gehen und diesen Weg als einen Prozess des YING und YANG zu beschreiben, als einen Prozess nämlich, in dem es einerseits die von ihm so genannten »cosmopo-litan ways« gibt, zum anderen Abschottungsstrate-gien, die auf der Territorialität und Nationalität des neuzeitlichen Staates beruhen. Beginnen wollen wir mit einem ganz kurzen Blick auf die »cosmo-politan ways«, die sich – etwas genauer – als drei Wege darstellen, die Glenn als »institutional cos-mopolitalism«, »constitutionalism« und »common laws« bezeichnet. Da von diesen drei Wegen später noch zu reden sein wird (ihnen sind drei eigene Kapitel gewidmet), sei hier vor allem benannt, was sich uns nach sorgfältiger Lektüre als Oberbegriff

aufzudrängen scheint: Es ist der Begriff der »multi-plicity«, der uns in drei Varianten begegnet.

Das, was Glenn »institutional cosmopolitalism« nennt, bezeichnet bei näherem Hinsehen zwei Befunde, nämlich einmal das Vorhandensein einer Vielfalt von Institutionen sowie eine damit zusam-menhängende »multiplicity of sources of law«; beide hat Glenn mit den folgenden zwei Sätzen prägnant zusammengefasst: »The jurists of then-existing institutions worked at a cosmopolitan interface between variable and sometimes contra-dictory norms, with no means of definitive inclu-sion or exclusion. That which persisted most signi-ficantly, over centuries, was this underlying institu-tional cosmopolitanism in the sense of multiple institutions.« 22

Begleitet wurde dieser »institutional cosmopo-litalism« durch einen »accompanying constitutio-nalism«, in dem sich die Pluralität der mittelalter-lichen Gewalten widerspiegelte; insofern spricht Glenn zu Recht von einem mittelalterlichen Kon-stitutionalismus mit – und hier erscheint erneut das Zauberwort – »multiple patterns of authori-ty«. 23 Besonders wichtig aber sind Glenn die im-mer wieder beschworenen »common laws«, von denen er stets nur im Plural spricht, weil damit nicht allein das englische »common law« gemeint ist, sondern alle Varianten eines wie und wo auch immer praktizierten ius commune, nämlich »the common law …, the droit commun, the derecho commun, the gemeine Recht«. Diese Rechtsregeln seien ihrer Natur nach kosmopolitisch: »Common laws in this historical sense were therefore pro-foundly cosmopolitan; they had no autonomous existence of their own. Lawyers working with them were always, at least potentially, working at the interface with a particular law.« 24 Soweit zu-nächst zu den »cosmopolitan ways«.

Was die vor allem mit dem Begriff des Territo-rialstaates einhergehenden Abschottungsstrategien angeht – Glenn spricht insoweit von »elements of closure« –, so sind es wiederum drei miteinander zusammenhängende Bausteine. Einer dieser drei Bausteine sind »boundaries«, also die auf Karten und Schulatlanten eintragbaren Grenzverläufe, die die Reichweite der Herrschasbefugnisse des in-

20 Ebd. 32.21 Ebd. 36.22 Ebd. 41.23 Ebd. 43.24 Ebd. 47.

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zwischen konsolidierten Territorialstaates markie-ren; da sie später der Globalisierung weitgehend zum Opfer fallen, soll dieser Baustein hier nicht weiter besprochen werden. Der zweite Baustein heißt »hierarchy«, wobei dieser für Glenn zentrale Begriff weniger ein Organisationsprinzip meint, vielmehr als Kurzformel für eine effektiv organi-sierte Staatlichkeit dient, wahrgenommen und aus-gefüllt durch Staaten als einem besonderen Typ von Akteuren, der nicht nur gut organisiert, son-dern auch rechtlich als eine selbständig handlungs-fähige »corporate person« verfasst ist. Mit dieser rechtlichen Konstruktion als juristischer Person avanciert der Territorialstaat, gestützt auf seine effektive bürokratisch-hierarchische Organisiert-heit und ausgestattet mit dem nützlichen Gewand der Souveränität – Juristen wie Jean Bodin als unbezahlbare Hofschneider –, zum zentralen Go-vernanceakteur der frühen Neuzeit. Der Erfolg des Organisationsmodells STAAT beruht also – worauf Glenn immer wieder hinweist – auf einem Zusam-menwirken von vor allem drei Faktoren, die sich in ihrer Wirkung gegenseitig verstärken: seiner »em-bodiment«, seiner administrativen Durchsetzungs-kra und seiner legitimatorischen Fundierung durch die Souveränitätslehre Bodins. Dazu Glenn im Originalton: »The hierarchy built around the crowns was facilitated by ongoing and more re-fined notions of bodily or corporate existence, by organizational success on the ground, and through emerging theory of the state and its sovereignty.« 25

Macht beruht also – wie der von Glenn zu-stimmend zitierte Autor John Searle es formuliert hat – weniger auf Gewehren oder Kanonen, »but grows out of organization«. 26 Als Verwaltungs-wissenschaler kann der Rezensent dem nur zu-stimmen; dass »organization does matter« darf in-zwischen als organisationstheoretische Binsenweis-heit gelten und Organisation und Organisations-recht werden daher zu Recht zunehmend auch aus der Steuerungsperspektive gewürdigt. 27 Es kann

angesichts all dessen auch nicht überraschen, dass das von Patrick Glenn so hoch gehaltene Hierar-chieprinzip bei näherem Hinsehen gleich dreifach legitimiert werden kann: Einmal theologisch-kir-chenrechtlich als ein göttlich eingestietes Orga-nisationsprinzip der katholischen Kirche, 28 zum anderen – im Sinne Max Webers – als Struktur-modell moderner Verwaltung 29 sowie – last but not least – als unverzichtbarer Baustein des demo-kratischen Verfassungsstaates – wie insbesondere Horst Dreier überzeugend herausgearbeitet hat. 30

Als drittes Element von »closure« wird von Glenn »writing« genannt, was auf den ersten Blick vielleicht etwas ungewöhnlich, aber letztlich leicht erklärlich ist. Schrilichkeit sei – so die Argumen-tation Glenns – zwar nicht per se ein »instrument of closure«, ihr sei aber insofern eine Ausschlie-ßungstendenz inhärent, als »legal writing« nur in der jeweiligen Landessprache stattfinde und damit den »closure«-Effekt des Nationalstaates verstärke; wenn wir in diesem Zusammenhang an die von Max Weber betonte Aktenförmigkeit bürokrati-schen Verwaltens denken, gewinnt dieses Argu-ment zusätzlich an Plausibilität. Aber auch hier verhält es sich so, dass erst die drei »elements of closure« durch ihr Zusammenwirken effektiv wer-den: »The elements of a territorial state are thus brought together: writing as the technique of control; hierarchy as a means of structure and enforcement; and boundaries as the necessary en-cadrement of both.« 31

Aber all die Zäune und Schutzwälle, die der Territorialstaat und der Nationalstaat um sich errichtet haben, mussten letztlich – wie die be-rühmte Maginot-Linie, die Frankreich vor einem deutschen Angriff schützen sollte – an Wirkung verlieren, wenn sie von den Auswirkungen einer faktischen Globalisierung schlicht umgangen wer-den: »Territory is not what it was.« 32

25 Ebd. 73.26 S (1995) 117.27 Ausführlich dazu S (2012).28 Näher dazu S (2014/2015).29 S (2012), Fußnote 27,

Randnote 40ff.30 D (1991).31 Ebd. 85.32 Ebd. 201.

Kritik critique


IV. The Challenge of Globalization

Wenn man die Wirkung von Globalisierung und insbesondere von globalisierter Kommunika-tion 33 kurz und bündig beschreiben will, so ist dafür die von David Harvey 34 geprägte Formel der »space-time compression« besonders hilfreich: mit dem »death of distance« verlieren Grenzen unaualtsam an Bedeutung und haben sie häufig nur noch einen symbolischen Wert. Wenn man – wie Glenn dies tut – »hierarchy« als Kurzformel für staatliche Governancekapazität 35 versteht, so kann auch sie von der Globalisierung nicht unbe-rührt bleiben; die durch die Denationalisierung der Problemlagen 36 bewirkte »factual globaliza-tion« 37 verringert kontinuierlich das Vermögen der klassischen Nationalstaaten, aus eigener Kra grenzüberschreitende Probleme wie etwa den an dieser Stelle unvermeidlich zu nennenden Klima-wandel zu beherrschen. 38 Nicht nur werden da-durch »cooperation and collaboration … the order of the day«; vielmehr ist dies – wie wir die Dar-stellung von Patrick Glenn ergänzen können – auch die Stunde des Bedeutungsgewinns und der Vermehrung Internationaler Organisationen, die als neue Autoritäten und zunehmend politischer werdende Institutionen 39 eine neue Ära von »in-stitutional cosmopolitanism« einläuten.

Was das »writing« angeht, so geht es auch mit seiner Bedeutung als Kontrollinstrument bergab: »With the advent of writing in electronic form the primacy of governmental writing has declined precipitously. The problem, in both a broad and a narrow sense, is one of legal sources. Global com-munication networks threaten not only national languages and cultures but also national law and legal authority.« 40

Besonders interessant ist, was Patrick Glenn zur Rolle des Staates im Prozess der Globalisierung zu sagen weiß. Der Staat begegnet uns – so Glenn – als ein zum »multi tasking« befähigter Akteur gleich in drei Rollen: Erstens handelt er selbst als »agent

of globalization«, indem er andere, mehr sicht-bare Globalisierungsakteure wie etwa TANGOS (Transnational Advocacy NGOs) unterstützt oder auch die für transnationale Austauschprozesse not-wendige Infrastruktur bereitstellt; zum anderen muss er sich, wenn er von der Globalisierung profitieren will – »the state as beneficiary of glo-balization« –, entscheiden, in welchem Umfang er an Formen globalisierter Kooperation teilnehmen will. Diese Entscheidungssituation nennt Glenn den »transborder calculus«, bei dem die »richtige« Entscheidung allerdings schon weitgehend vorge-geben sei: »States must necessarily increase their cosmopolitan capacity, itself dependent on infor-mation«; 41 drittens schließlich ist der Staat im Prozess der Globalisierung notwendigerweise ein »adaptive state«, der sich – will er sich nicht selbst ins Abseits manövrieren – der globalisierten Welt öffnen muss, wie dies in der Redeweise vom »offenen Staat« 42 zutreffend zum Ausdruck ge-bracht wird; dass er dabei auch strukturelle Anpas-sungsleistungen erbringen muss, hat Anne-Marie Slaughter mit ihrer Beobachtung einer »disaggre-gation of the state« in Form einer Teilnahme an zahlreichen transnationalen Netzwerken klarsich-tig beschrieben. 43

V. Gibt es so etwas wie eine »Cosmopolitan Theory«?

Zwei wichtige Zweige der Politikwissenscha – die Theorie Internationaler Beziehungen und die vor allem demokratietheoretisch argumentieren-den Varianten der politischen Philosophie – be-schäigen sich intensiv mit der Frage, wie eine neue, eben kosmopolitische Weltordnung ausse-hen könnte. Michael Zürn hat unlängst in kosmo-politischer Absicht vier Modelle einer globalen Ordnung vorgestellt 44 und dabei die aus der nach-stehenden Übersicht ersichtlichen vier Varianten eines »cosmopolitan designing« unterschieden:

33 Dazu demnächst S (2014b).34 H (1990).35 Näher dazu L / W (2014).36 Begriff bei Z (2006).37 G, ebd. 169.38 Aber es geht nicht nur um Klima-

wandel, Geldwäsche und »human trafficking«, sondern auch um die Notwendigkeit einer globalisieren-

den Sicht auf das Recht; weiterfüh-rend dazu D (2012).

39 Grundlegend dazu Z / E-E (2013).

40 Ebd. 167.41 Ebd. 183.42 H (1998).43 S (2004).44 Z (2011).

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Zwei Dinge sind an dieser Übersicht auffällig: erstens die Tatsache, dass das Ordnungsmodell STAAT in unseren Köpfen so stark verankert ist, dass – wie die Modelle eins, drei und vier zeigen – auch eine zukünige Weltordnung ohne den Grundbaustein »Staat« nicht gedacht werden kann; 45 zum zweiten, dass das Modell Nr. 2, das in seinem Kern aus der Idee eines »cosmopolitan constitutionalism« besteht, institutionell so gut wie nicht ausgeformt ist, ein Gesichtspunkt, auf den Zürn ausdrücklich hinweist. Das zweite, hier besonders interessierende Modell ist also eine noch ziemlich vage Angelegenheit, eine Charakterisie-rung, die sich nach der Einschätzung Glenns wohl auch für den Entwicklungsstand einer »cosmopo-litan theory« zutrifft; anders wird man seine Be-merkung »The cosmopolitan theory has not pro-duced easily identifiable results« 46 wohl kaum verstehen können.

Auch seine Darstellung des sogenannten »cos-mopolitan turn«, wie er in der Redeweise von einem »cosmopolitan constitutionalism« zum Aus-druck kommt, bleibt merkwürdig blass. Unserer Auffassung nach hat dies auch einen identifizierba-ren Grund: Die auf den ersten Blick so plausibel daherkommende Idee einer »Hochzonung« der Verfassung auf die globale Ebene nimmt die Ent-wicklungsrealitäten des internationalen Weltge-

schehens nicht hinreichend zur Kenntnis, die darin bestehen, dass wir es in der Realität der interna-tionalen Politik immer weniger mit dem klassi-schen Governancemodell von regelsetzenden und regeldurchsetzenden Nationalstaaten zu tun haben – eben mit »ruling by rules« –, sondern mit einer Welt von zunehmend »loosely coupled spheres of authority«, vor allem in Gestalt von »epistemic authorities« wie »credible NGOs« oder dem Inter-governmental Panel on Climate Change. Michael Zürn hat diese Entwicklung unter der Überschri »From Rule to Authority« kürzlich in überzeug-ender Weise wie folgt skizziert: »Leaving the era of neatly separated territorial states does not lead us to a world state, to a moving up of the constitutional state to a higher level. It rather seems that seg-mentary differentiation as the fundamental prin-ciple of politics is partially replaced by functional differentiation in absence of a meta-authority that can coordinate from above. There is no constitu-tionalized place for the final decision. It may be too far-fetched to talk about full-scale institutional fragmentation, yet it is an institutional architecture which lacks centralized coordination – which is why we move from encompassing constitutional rule to plural and only loosely coupled spheres of authority.« 47

45 Dazu S (2013).46 Ebd. 172.47 Z (2014) 10.

Intergouvernementales Modell globaler Ordnung

Kosmopolitischer Pluralismus Kosmopolitische DemokratieKosmopolitischer Föderalismus

Vertreterinnen und Vertreter (Beispiel)

Grundnormen

Staatlichkeit

Dahl; Maus; Moravcsik; Scharpf

Dryzek; Forst; Krisch; Kumm

Habermas; Höffe; Schmalz-Bruns

Archibugi; Brunkhorst; Caney; Held; Pogge; Marchetti

Staatliche Souveränität; Gewaltverbot; Nichtinterventionsgebot; Kooperationsgebot; demokratische Organisation der Staaten

Menschenrechte; rule of law; due process; practical reasoning; diskursive Demokratie

Menschenrechte; demokratische Legitimation des Gewaltmonopols; diskursive Begründung von Regelungen

demokratische Legitimation aller Regelungen; Gerechtigkeit; Grundrechte

Staatlichkeit zerfasert sich in unterschiedliche Rechts-ordnungen; Gewaltmonopol bleibt auf der nationalstaat-lichen Ebene; Souveränität ist an Grundnormen gebunden

Territorialstaaten bündeln alle Funktionen der Staatlichkeit

Legitimes Monopol zur Friedens- und Grundrechts-sicherung wandert auf die globale Ebene; demokratische Staaten bleiben bestehen und in vielen Fragen dominant

Entstehung eines rudimentären Weltstaates; Nationalstaaten

Vier Modelle einer globalen Ordnung (von Michael Zürn)

Kritik critique


VI. Degrees and Varieties of Statehood

Dieser letzte Punkt dieser wenigen Anmerkun-gen zu dem großen Buch von H. Patrick Glenn liegt dem Rezensenten besonders am Herzen. In dem genannten Text spricht Glenn immer wieder von »degrees of stateness«, »degrees of statehood«, unterschiedlichen Intensitäten von »étatisation« sowie von »varieties of statehood«; ganz offensicht-lich denkt er – wie auch der Rezensent – in gradu-ellen Abstufungen statt in containerhaen Schub-laden sowie in Übergängen, die – und dies ist eine große Herausforderung – sprachfähig gemacht werden müssen.

Auch wir predigen seit langem – gefühlt: seit Jahrzehnten –, dass der realen Welt von Staatlich-keit nicht mit Denken in Dichotomien – Staat oder Nicht-Staat, Recht oder Nicht-Recht oder wie auch immer – beizukommen ist. Wie gerade auch die von Glenn mehrfach angesprochene Diskussion über strong, weak, failing und collapsed states zeigt, gibt es unterschiedliche Grade von funktion-ierender oder eben nicht funktionierender Staat-lichkeit, gibt es ferner unterschiedliche Typen von Staaten – etwa »godly« states wie den Iran, halb »godly« states wie etwa Ägypten und so weiter und so fort. Wir sprechen daher einmal – im Anschluss an Überlegungen von Christoph Zürcher 48 – von einer »variety of statehood«, zum anderen halten wir es für unzutreffend, sich auf einen bestimmten Staatstyp zu fokussieren, um sodann – wie Wolf-gang Reinhard dies getan hat 49 – dessen Unter-gang zu konstatieren; angemessen erscheint uns daher nur eine prozesshae Perspektive – Staat als Prozess 50–, um der historisch bedingten Vielfalt von Staatlichkeit gerecht werden zu können.

In seinem letzten Kapitel nun liefert Glenn unter dem Titel »Cosmopolitan Thought« für die-ses Denken in Abstufungen statt in Dichotomien

eine anspruchsvolle Begründung, in der er der klassischen binären Logik eine kosmopolitische »neue Logik« gegenüberstellt. Die Funktionslogik des »alten« binären Denkens ist denkbar einfach: »There is no middle ground between contradictory positions … You either have $ 3.75 to buy a latte or you do not.« 51 Repräsentativ für diese Denkweise seien »notorious dichotomiser« wie etwa Jean Bo-din, Thomas Hobbes oder auch Hans Kelsen.

Für jemanden, dem es wie Glenn und dem Rezensenten gerade um die Erkundung des »mid-dle ground« geht, also um Abstufungen, Übergän-ge und Hybridisierungen, 52 ist ein Denken in Dichotomien unbehilflich; wessen es also bedarf, ist nicht nur eine differenzierende Sprache, son-dern – so Glenns Schlussfolgerung – auch eine andere Logik, um die Komplexität der Phänomene angemessen erfassen zu können. Diese Logik kann nur eine abstufungsorientierte sein: »The essential characteristic of multivalent logic is that it is ›de-gree-theoretic‹ in replacing a binary option with one that tolerates degrees, usually expressed as degrees of truth (as in the statement ›there is some truth in that‹). Where different and contradictory laws are seen in conflict under classical logic, a multivalent logic would admit assessment of rela-tive degrees of applicability and more nuanced means of choise, …« 53

Nur so gelangt man zu dem, was der unüber-sichtlichen Welt allein angemessen ist, nämlich einer Herangehensweise, die Glenn als »sliding scale or rainbow of possibilities«-approach bezeich-net; dem ist außer engagierter Zustimmung nichts hinzuzufügen.

Auf der Suche nach einer abschließenden und möglichst kurzen Rezensionsformel schlagen wir diese vor: Must read!

n

48 Z (2007).49 R (2007).50 S (2010).51 G, ebd. 262.52 Vgl. S (2008).53 Ebd. 267.

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Manuskript)

Kritik critique


Antonio Manuel Hespanha

The Legal Patchwork of Empires*Legal Pluralism and Empires, 1500–1850, edited

by Lauren Benton and Richard J. Ross, 1 can be regarded as the synopsis of a historiographical stream that made pluralism a core feature in the political and legal constitution of empires. At the origin of the interest in the composite nature of empires was an article of a distinguished historian of European empires, John Elliott. 2 Political and legal »composite« bodies have been a recurring theme in the Anglo-Saxon academic tradition since the 1960s, when political anthropology rediscov-ered non-statist modes of power and law in its reflections on colonial and early post-colonial, legal or political situations (and state-building), or in political bids to overcome the failures and short-comings of representative democracy. Without making a clear reference to any of the previous debates, John Elliot – a great expert on 17th century Spanish monarchy and the concurrent tensions between centripetal and centrifugal models, espe-cially in his reflections on Monarquía Católica 3 – was able to »produce« from his historical expertise the model of a »composite monarchy«, which combines the traditional structure of corporative polities with the new centralistic pathos of con-temporary political doctrine and praxis.

Since the late 1970s, European historiography has been re-evaluating early modern political and legal models, mostly in Italy, Portugal and Spain. Its main topics converge in a criticism of state-oriented history of polities, now considered anach-ronistic: the centrality of body and jurisdiction (as a local and relative legal power in concrete cases) in political doctrine, imagery and practice in the formation of medieval and early modern political bodies; the relevance of »oeconomia« or the man-agement of the household affairs in the political culture of pre-modernity, erasing the distinction between »public« and »private« in the medieval and early modern age; the critique of a formalistic (positivistic) conception of law that ignores the

multiplicity and the contextual nature of social regulations. Although these views were initially quite unorthodox, they began to gradually be followed by the Iberian and Italian historians and commented upon as a consistent historiographical stream in political and legal history, particularly that of Latin Europe. 4 This model was extended to European »empires« only somewhat later, in spite of its stronger plausibility, especially in the case of early, dispersed and heterogeneous imperial com-posites, like the Portuguese Empire in the eastern hemisphere. In Latin America, the last decade generated a wave of studies stressing the complex-ity, ambivalence and plurality of imperial situa-tions, the agency of the local normative spheres, of the colonists or the natives, and the relative open-ness of the European legal doctrine to different legal orders.

This book, however, derives from a historio-graphical tradition that is almost independent of the strands of Europe’s continental historiography described above, which explains both its major points and its silences.

The aim of the editors was »to produce a volume that studied the provenance, meaning, and impli-cations of legal pluralism across a wide range of early modern empires, in settings as far apart as Peru and New Zealand, and in every century between 1500 and in the middle of the nineteenth century« (ix). However, the earliest and most di-verse imperial experience, namely the Portuguese empire in the late 15th and 16th century, a kaleido-scopic of the entangled and exemplary set of political designs, is absent. If that had been taken into account, the root of many institutional mod-els, thereaer borrowed by other imperial powers and colonial communities, could have been better explained and contextualized: The export of the traditional Iberian municipalities (concelhos) to locations overseas, from Madeira and Azores to Malacca and Macao, the revival of feudal models,

* L B, R J. R(eds.), Legal Pluralism and Empires, 1500–1850, New York: NYU Press 2013, 323 p., ISBN 978-0-8147-7116-7

1 The volume developed out of a con-ference on »New Perspectives on Le-

gal Pluralism« organized by Lauren Benton and Richard Ross through the Symposium on Comparative Early Modern Legal History, Center for Renaissance Studies at the Newberry Library in Chicago (2010).

2 E (1992).3 E (2002)4 See, e. g., S (1995).

Kritik critique

Antonio Manuel Hespanha 303

such as Portuguese and Spanish captaincies in the Atlantic and in earliest period of South American colonization; the use of the military institutional model of »fortresses«, from North Africa to the Indian Ocean; the diffusion of the commercial pattern of »factories« and »warehouses« from Afri-ca’s west coast to the Indian Ocean; the predom-inantly ecclesiastical framing of colonial expansion (padroado) in the remote areas of the »Eastern Empire«, like Japan. Moreover, even Dutch colo-nialism is not represented, so that only the late West European colonialism, especially of Great Britain, is given proper consideration.

Focusing on the »pluralistic« shape of imperial polities is fully justified. »Empires – as program-matically stated in the initial paragraphs – were legally plural in their core regions as well as in their overseas or distant possessions. Many empires as-sembled political communities boasting divergent constitutional traditions that uneasily maintained overlapping or clashing royal, ecclesiastical, local, and seigniorial jurisdictions and encompassed a variety of forms and sources of law. Such pluralism grew more complex in the colonies and the far-flung peripheries, as administrators and settlers dealt with indigenous, enslaved, and conquered peoples. The resulting legal orders encompassed multiple zones with unstable relations to one another and to the imperial centers« (n. 1). This assumption, which is rightly deemed to correct »a deeply ingrained view that state law is necessarily central to all legal orders« (4), underpins the grid of core issues concerning the definition of imperial institutional matrix as a pluralistic one.

As Ross and Stern underline in their chapter, 5pluralistic or corporate polities correspond to the basic medieval and early modern model of orga-nizing communities. In terms of its intrinsic na-ture, each human polity was deemed endowed with a proper government and the capacity to create law. The accommodation of different com-munities of uneven importance didn’t comply

with a centralized, hierarchical model, rather it responded to a flexible and context-sensitive situa-tion, which arose from the actual and concrete autonomy of each human aggregate. Continental common law fully adopted this model, stressing its rules of construction: natural political autonomy of the parts with respect to the whole, primacy of the local law over the common law, sensitivity of law to social contexts (by promoting consuetudi-nary law, traditional or »rooted« rights, »local« equity). This explains the antipathy of the estab-lished political and legal thought towards any kind of absolutism and voluntarism, as well as the fact that resistance movements were accorded a rela-tively friendly reception in the traditional milieux if they did not reek of excessive individualism or were willing to subvert the corporatist patterns. The obstacles to a centralized legal order were not primarily a problem of communication with over-seas dominions, but a question related to the very nature of human polities, as they were seen in the political culture of pre-modern Europe. It is true that »the period [early 17th century] witnessed an efflorescence of writings advocating more central-ized forms of sovereignty in which, as an ideal type, a state was ›sovereign‹ if its authority was final and absolute, subject to no other human will, and entitled to supervise the institutions and groups contained within it«. 6 However – as the reader is also rightly reminded, »this particular definition of sovereignty arose as a political ideal and guide to constitutional reform rather than as a description of lived experience in early modern Europe« (ibid.). Even in the very level of political and legal reflection, the doctrinal canon was not that of Jean Bodin or Thomas Hobbes, who – along with many other »modern« political thinkers – were listed in the Catholic index librorum prohibitorum in Rome, Spain and Portugal, where they were cast outside the intellectual horizon (even of scholars) until the mid-18th century. Therefore, the largely dominant legal and political literary repository, at least in the

5 R J. R (professor of law and history, University of Illinois-Urbana) and P S (professor of Early modern British colonial history, Duke University), Reconstructing early modern notions of legal pluralism, 109–143).

6 R and S (n. 5) 113.

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304 The Legal Patchwork of Empires

South, corresponded more to the traditional plu-ralistic design than to anything else. If we add to this doctrinal panorama a balance of social inter-ests and political dispositives, 7 it would be fair to conclude that »legal pluralism was not the dying remnants of something once more vital but an essential feature of the social organization of pol-itics«.

Another crucial theme, closely related to the pluralistic perspective, is the perception of a fun-damentally uneven subjecthood. Political bounds in Empire were non-monotonic. Although this is an intuitive situation in the imperial political bodies (even in the archetypical case of the Roman Empire), the imperial ideology tended to conceal a lack of unity, which had the potential of damaging the imperial magnificent imagery. Unitary empires were far from realized and, historically speaking, were not the final stage of imperialism (see Jane Burbank and Frederik Cooper 8). Uneven subject-hood did not mean a balanced coexistence of legal and political statutes of different groups; on the contrary, diverse forms of multiple citizenship coexisted, albeit within a hierarchy ranging from groups that propagated the hegemonic culture of the colonizers to those that were dominated by a presumed central logic, be that divine law, princi-ples of natural conviviality, law of nations, moral decency, rational prescriptions, or civilizational criteria). If a unique subjecthood is problematized, the very concept of empire – a theme this volume does not address – becomes vague, although the semantic tradition of the word alludes more to a composite political entity than to a larger territo-rial extension.

Very impressive, especially in light of the em-phasis it gains in the whole theoretical bedrock of

the book and its efficacy in some of the collected essays, is the jurisdictional approach, proposed by Laura Benton. 9 Jurisdiction would be the moment when norms lose their ethereal and virtual nature and become social effects: »The study of jurisdic-tional politics does not depend on a general defi-nition of ›law.‹ Nor does it require distinctions between ›state‹ and ›non state‹ law. The jurisdic-tional claims of a wide range of authorities, from a guild or merchant ship captain to a conquistador or trading company, can be analysed without they being defined neatly as public or private. Jurisdic-tional divides come into focus and matter most to an understanding of legal pluralism when conflicts occur, and so a methodological advantage of the approach is the focus on clusters of conflicts, rather than on elusive and oen inconsistently applied rules or norms. This approach invites historical analysis because it becomes possible to analyse structural shis propelled by the legal strategies of parties to jurisdictional conflicts«. 10 Magistrates, socially endowed with jurisdictional privileges transform the wide constellation of virtual legal norms in actual jurisdictional standards, according to which a specific issue is to be ruled. In the late sixties and seventies, the »jurisdictional« model was deeply explored by the European continental his-toriography, 11 jurisdiction becoming a guideline to the most innovative legal history. 12 In the jurisdictional model, two choices concerning juris-diction decided the political outcome. The first, namely the choice of one of the competing juris-dictions by the subjects, was not a free choice, but the wide jurisdictional uncertainty as well as the possibility of changing the circumstances of the relevant case to fix the jurisdiction greatly en-hanced the possibility of choosing the most con-

7 »The state was so dependent on pro-vincial magnates, local notables, and corporations that its very operation assumed pluralism and, in certain ways, the expansion of its ambitions further entrenched pluralism. Al-though some officials such as French intendants owed their power to the Crown and served at its pleasure, most did not, from provincial and local estates and feudal lords to guilds and urban corporations. State en-deavors commonly succeeded if they worked through rather than against these powerholders, who needed to

be recruited into alliances with the Crown. […] Over the course of the seventeenth century, Castilian and French monarchs desperate for reve-nue accelerated the sale of offices and jurisdictions and committed the Crown to their protection«, R and S (n. 5) 112.

8 J B (professor of history and expert on peasant law, New York University) and F C(professor of history of colonization and decolonization, New York Uni-versity), Rules of law, politics of Em-pire, 279–294.

9 B (2002).10 L B and R P.

R, Empires and legal pluralism: Jurisdiction, sovereignity and politi-cal imagination in the Early Modern world, 1–19, here 6.

11 C (1969); C (1977).12 S (2001).

Kritik critique


genial court in the specific context (see Linda M. Rupert 13). The second choice was that of the magistrate, which involved selecting the »locally« enforceable norms (see Lauren Benton and Lisa Ford 14). Even this choice was not absolutely arbi-trary. Continental common law carefully ruled the arbitrium of magistrates through precedents, »styles of the court« (styli curiae), »rational« precepts (recta ratio decidendi vel iudicandi). 15 In any case, the merely probabilistic structure and the epistemo-logical casuistry of jurisprudence (prudentia, as opposed to scientia) scarcely limited the power bestowed upon the magistrates to configure spe-cific decisions. Also here, »court« (or »jurisdic-tion«) is a plural entity, which has to be culturally contextualized as the institution recognized by one specific community to regulate social and political conflicts. In this sense, jurisdiction loses its (contemporary, not early modern) public na-ture and covers »private« institutions like family (household, casa, casata) (or corporations (societies, guilds, universities, confraternities). 16 This (»post-Hartian«) reformulation of the concept of jurisdic-tion allows a broader – and culturally neutral – use of the jurisdictional approach, yet raising a some-what uncomfortable set of perplexities in defining relevant institutions and levels of analyses.

Jurisdictional approach deepens the under-standing of the mechanisms of rule. Several au-thors insist on the fertile idea of »governing through differentiation«, insisting that differentia-tion would not weaken rule, but instead ease and expand the government. In a way, they apply the conclusions of Michel Foucault in order to explain the political efficiency of plural and non-statist governments. A political patchwork institutes a model of rule (governance) which, through diverse political devices (dispositives), can reach every social site through an appropriate process of control (see S. Paul Halliday 17). Furthermore, power becomes

invisible, inaccessible to the possibility of reifica-tion or perception, therefore immune to identifi-cation and opposition. Therefore, political plural-ism and political liberalism can be described as two strategies for reinforcing rule through dispersion across society and through delegating political decision-making to the lower administrative units (»une politique au ras du sol«, Jacques Revel).

Besides these methodological themes, identified and discussed in the introductory chapter quoted above, 18 the illustrations in the book exemplify the uses of law in colonial policy – either to control or to resist – and are chosen from the British (3 articles), French (1 article), Ottoman (1 article) and Spanish (2 articles) »empires« in their Ameri-can or Southern Pacific extensions. The Portuguese, Dutch and Russian empires in Brazil, Africa and Asia are not addressed, a shortcoming to be con-sidered in a future development of the project. The methodological awareness and the concep-tual discussion generate a comparative perspective, which increases the impact of the argument on ongoing research projects.

The book is organized in chapters, some of which predominantly deal with methodological issues, while others explore specific cases, although always clarifying aspects of the underlying meth-odological issues.

In their chapter, Richard J. Ross and Philip J. Stern 19 reflect upon the openness of early modern European political culture to pluralism – at least to a »weak« form of pluralism – consisting in the admission of a plural constellation of legal orders by paramount political entities. Authors remind us that at the institutional level, autonomous juris-dictions traditionally shared the European political space and that the advent of the so-called »modern state« (or even »absolutist state«) oen still in-creased the jurisdictional complexity (for example, by increasing the territorial and cultural range of

13 L R (professor of early modern Atlantic and Caribbean history, North Carolina-Greensboro), »Seeking the water of baptism«: fugi-tive slaves and imperial jurisdiction in the early modern Caribbean, 199–233.

14 L B (professor of history and law, at the New York University) and L F (professor of legal history, University of New South Wales), Magistrates in Empire. Con-

victs, slaves and the remaking of the plural legal order in the British Em-pire, 173–197.

15 See M (1998).16 R and S (n. 5) 126.17 P D. H (professor of

history and law, University of Vir-ginia, Law’s histories. Pluralism, pluralities, diversity, 261–277.

18 L B and R P. R(n. 10).

19 See above n. 5.

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polities or by integrating the formerly autonomous lower political units). The integration of several former separate Iberian kingdoms into a »Catho-lic« monarchy was one of the most conspicuous examples. Another history, however, was the tran-scription of institutional practice at the level of doctrinal narrative. The chapter is concerned with identifying discursive constructs, which created a space for the doctrinal justification of powers out of the range of the newly discovered »sovereignty«, such as the church, municipalities, seigniorial lands, corporations (from guilds to universities), officialdom, foreign communities and a large array of other corporate entities, beginning with patron-age networks and households. Ross and Stern rightly emphasize that this »workaday pluralism« did not struggle against a predominantly hostile climate. This statement would have sounded con-troversial forty years ago, when the established historical narrative firmly adhered to the thesis of a progressive centralization of European monar-chies since the late 14th century. Aer a decade or two of discussion, the mood has decisively changed; more and more historians are now ready to accept what the sources emphatically tell about the vast plurality of the jurisdictions and the wider acceptance of this fact by mainstream political and legal cultures. This is evident in early modern southern Europe, where Jean Bodin and the »po-liticos« were barred, either by way of religious interdictions or by ideological differences, intellec-tual repugnance or even by virtue of the royal and ecclesiastic censorship. In contrast, the political orthodoxy in Catholic Europe was based on the general opinion of the scholastic theologians, from Vitoria to Molina, or on »traditionalist« encyclo-pedists, like Domenico Toschi, Agostinho Barbosa or Giovanni de Lucca, whose intellectual domi-nance was overwhelming. They went on support-ing and diffusing a composite model of political constitution and a pluralistic frame for the theory of the sources of law. Although this point – central to the evaluation of the doctrinal situation in Latin metropolises – is not being given its due impor-tance, Ross and Stern list a series of doctrinal contexts that potentially promote legal and politi-

cal pluralism. The first would be a civic version of contractualism, which stressed either the limited and revocable nature of political pact, or the natural origin of the jurisdiction of ordinary offices (ordinaria iurisdictio, proper to »les vrais officiers de la république«, to take Charles Loyseau’s words), or finally the consensual nature of custom, by which »voluntary« pacts should be revoked. The second argument to refuse a single law was the autonomy of the conscience towards external co-action, implying the existence of a supreme inter-nal rule against which the temporal sovereign was impotent. This thesis was developed in a theory about the relations between civil and ecclesiastical potestas, which led to the »natural« separation between the two powers (actually a pretty efficient proto-laicism) and to the condemnation either of religious integrism (religious supremacy over sec-ular matters, pope’s dominium mundi, crusade or any kind of conversion by force) or of kingly pretensions of domination over religious matters and magistrates. Finally, pluralism was decisively supported by the natural powers of family and household. The central role of oikomomy in the shaping of medieval and early modern political culture was decisively stressed in the forties by Otto Brunner – and (in an imperial context) by Gilberto Freyre – and rediscovered in the early 1980s by an active branch of the Italian political historiogra-phy 20 that explored the transposition of discourses on the domestica potestas (on wife, children, and servants) to the republic, but also the limitations the paterfamilias’ jurisdiction was creating for the emergent »higher« jurisdictions – both spiritual or temporal. This focus on the family »ambiance« triggered the attention of contemporary historio-graphy towards the affective context of power (paterna or pastoralis potestas, fraterna correctio) and to the valorization of normative consequences of the states of the soul (or virtues: amicitia, liberalitas, gratitude, charitas, misericordia), consid-ered by medieval and early modern culture as sources of rules which also curtailed a unique sovereign order. 21 Although the impact of the individual virtues on law is not addressed in the chapter, it should probably be considered a rele-

20 F (1985); M (1988); later rich developments in Italy, Spain and Portugal.

21 Classical: C (1991); also H (1994); C (1999).

Kritik critique


vant source in the future owing to the centrality of private agency in generating the autonomous gov-ernance of »civil society«.

In the last section, the book revisits the theoret-ical issues.

Summing up the previous chapters, Paul D. Halliday 22 stresses the importance of distinguish-ing between two concepts of legal pluralism. One that regards every norm that enjoys social accept-ance as law and the other that tries to isolate a distinct set of norms – »legal« norms – that are state endorsed. This distinction between law and social norms, he notes, is marked by an essentialist con-cept of law, which is also tied to an essentialist concept of the state. I would add that this approach is typical of the discourses developed within the established legal theory, even when it tries to escape a legalist positivistic approach (as it happens in L. H. Hart’s legal theory). In contrast, historians are more ready to eliminate a state-centred reading of political or legal worlds and to accept a broad and theoretically undifferentiated concept of law, thereby expanding pluralism to include further normative constellations, where the cogency of norms is defined not by the state, but by social consciousness.

This inclusive concept of law and of legal plural-ism (he proposes the expression »legal plurality«) would be decisive to consistently grasp normativ-ity, even in the post-Westphalian era. In fact, the author stresses the fact that the expansion of the state was only possible because sovereignty gener-ated (recognized) non-sovereign forms of political power through which regulation and control reached the farthest peripheries of the system. This process of extending sovereignty by non-sovereign means can be described without stressing the role of the state in creating new normativity. In fact, as it is shown in a preceding chapter (Philip Stern 23), the binding character of »non sovereign« legal orders did not derive from the state but from the pervasiveness of social representations of the na-ture of family, of corporations, of economy. De-centring the state in the justification of the binding

character of norms also has significant consequen-ces for »international« law, as – in this global arena – states are now replaced by a variety of subjects armed with different kinds of regulation and served by jurisdictions with different levels of impact.

Halliday’s core methodological proposal thus attempts to radically divert our gaze to a political condition replete with norms that cannot be grasped under legalism or by adopting a strict legal pluralistic stance.

In the last chapter, Jane Burbank and Frederik Cooper 24 reflect on the importance of the legal pluralist approach to the history of empires. Either in political and legal history or in theory of law, legal pluralism was one of the reactions against a merely formalist reading of law, as the will of the state or as the product of the learned tradition of professional lawyers. At a broader level of analyses, legal centralism (or statism) was – as the authors say – a century long habitus of reading political world (see Richard J. Ross and Philip J. Stern 25), and not only in the imperial dimension of politics. With contemporary imperialism, which grew out of a political culture dominated by statism, plural-ism functioned as a political succedaneum for the state in the context of the extreme cultural and political diversity of empires. Actually, pluralism was indispensable to how empires had been func-tioning since the Roman era, when a unitary law (ius civile, since 212) only formally applied to the huge territorial extension of the Roman world and when in fact localities were organized according to the local law, tacitly admitted into the common imperial law under the umbrella of the principle that every city had the natural right to decide upon its regime. What harmonized the plurality of local legal orders was the concept of iurisdictio, a limited power to declare the law, not in general, but only within the range of a specific self-defined commu-nity. As jurisdictional claims could and did conflict and their limits were not fixed (or adjudicated) by a higher authority, the overlapping of jurisdictions caused tensions between factical powers operating

22 See above n. 17.23 P S (professor of early

modern colonial history in Duke University, USA), »Bundles of hy-phens«. Corporations as legal com-munities in the early modern empire, 21–47.

24 See above n. 8.25 See above n. 5.

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within the empire. At the same time, the merely contextual efficacy of jurisdictions blurred the external frontiers of empires, which could appear or disappear according to the issues locally at stake or the way in which jurisdictions were mobilized when the one or the other party handled specific interests and strategies.

Once adopted, the pluralist stance allows differ-ent answers to the classic questions. One question could be: Who made the laws of the empire? In a plural empire, they are made by all polities inhab-iting the imperial space. Nevertheless, the mere existence of an empire – i. e. the common under-standing that there was a whole comprising differ-ent parts – introduced the idea that at least some sort of an imperial power had to exist, in the absence of a spontaneous harmony (sympathy) between the composing elements (in one of the versions, the »colonial pact«). The answer to the question opened up a wide array of (theoretical) alternatives. However, as the medieval legal doc-trine put it, the law had to be accepted, for which reason its acknowledgement by its addressees was the most important criteria for proclaiming its validity. Only when global imperial issues were at stake, the imperial head could impose its rule independent of the subjects’ consent; therefore, it was only at that moment that it really made law. Another question could be: How did the colonial constitution change? Also here, the centre as the guiding star was more the exception than the rule. Colonial constitution changed through a varie-gated bottom up dynamics: conflicts within the empire at different levels and involving a wider range of interests than those of the dominant centre and the dominated peripheries. Conse-quently, constitutional evolution was not linear, moving from dispersion and confusion to unity, rationality and universality (or homogeneity) and did not follow a consistent line from ancient to modern empires, organized according to a clear-cut hierarchy of jurisdictions. Therefore, avoiding the assumption that modern states have to be unitary and uniform nation states, we could better understand – it is suggested – the failure of empires and states that excessively enforce the idea of

assimilation and legal unity (like the Austro-Hun-garian Empire).

Further illustrations of how pluralism was present in the constitution of the empires are draed in the remaining texts.

Philip J. Stern’s chapter 26 revisits a theme that renewed European political and legal historiogra-phy in the 1980s – corporatism as the characteristic feature of political culture of the medieval and the early modern period. Although this corporatist turn is not expressly invoked, Stern’s text revisits topics that were central to the efforts made by historians to go beyond the individualistic and contractual gaze inaugurated in the 17th century, mainly in central and northern Europe. »Going beyond« means, in this context, going south, to-ward the Italian and Iberian post-Tridentine social thought that prolonged corporatism to the late 18th or even until the 19th and 20th century (if we refer to the Romanticism or reactionary political attitudes, this is highly meaningful amid criticism of anti-liberalism in Italy, France Spain or Portu-gal).

Stern stresses – in line with the seminal writings of Pierangelo Schiera, Pietro Costa or Bartolome Clavero 27 – the corporatist model of the European pre-modern society, where the paradigmatic meta-phor for political society was that of the body, composed of an intricate constellation of lesser autonomous organs, each one endowed with the power of self-government (jurisdiction, iurisdictio), mutually limited and spontaneously harmonized within the whole.

Corporations 28 were seen as social aggregations endowed with a natural jurisdiction to express their natural right of self-rule, for themselves and their members, as well to claim complex rights and authorizations well beyond the rights accorded to an individual, competing with the political power of king and the parliament and decisively complicating the constitutional architecture. Seen through corporatist lens, political bonds were not straightforward and unidirectional top down rela-tions. Legal order did not have just one centre. Individuals were not considered simple and exclu-sive, so that the (British) modern »state« instead

26 See above n. 23.27 For an overview, see H

(2013).28 Universitates: M-Q

(1970).

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was a composite political entity made of corporate entities, sometimes mutually conflicting or con-flicting with the crown. According to Stern, colo-nial constitution shared this corporatist structure, intensified by the patchwork of corporations (mu-nicipalities, republics of natives, trade companies, »feudatories«) through which the colonial enter-prise was channelled. In the British case, large, medium and small colonial companies, whether chartered or operating by way of direct pacts with settlers, were conspicuous, as Stern rightly men-tions. In the foreground of other empires, like the Portuguese or the Spanish, were instead municipal-ities, ecclesiastic collegia and para-feudal institu-tions (like Portuguese or Spanish administrative divisions known as captaincies). Stern stresses that even »families«/households – the quotidian site of domestic matters (»oeconomic« rule) – were present in this jurisdictional patchwork. The au-thor alerts against any idyllic vision of corporatism (in this case, colonial corporatism) as a realm of self-government before the heteronomous rule of the state. As other essays in this volume underscore, political pluralism was a rather useful factor for building and developing the imperial political network in distant and still novel situations over-seas. However, the more the crown was able to directly organize its colonial dominions, the more uncomfortable the corporative constitution was. Thus empire came to be reframed in the 18th and 19th centuries, reactivating a forgotten Roman dis-tinction between the public and the private and reducing corporative autonomy to royal conces-sions.

Helen Dewar 29 accomplishes the additional task of decentring the state in the colonial narra-tive. It addresses the litigations in empires, more precisely in the North American French empire in early 17th century, to show how the pervasive culture of litigation moulded »national« empires. Dewar stresses that the plurality of laws and courts was a structural fact even in early modern France

(as well as in the rest of Western Europe, it must be said). However, extending the metropolitan system of justice to »New France« hurt entrenched inter-ests and provoked an uneven reception and accom-modation of an already uneven jurisdictional pat-tern, always contextualized by a quasi contractual and case-sensitive allegiance to royal justice. The essay’s point of departure is the idea that the contours of a concrete jurisdiction (as that of a magistrate, of a corporation, of a company, of a settler’s community) are the product of an arrange-ment between the universal pretensions of royal law and those of local rooted usages or political representations, but also of strategies for handling conflicting political interests in the metropolitan or colonial playing fields. This vantage point, be-sides allowing a reflection on the crossed influences between state formation and colonial enterprise, looks at state formation from above, considering it as the hazardous outcome of jurisdictional con-flicts whose object barely related to any grandiose global political project.

Karen Barkey 30 departs from a more restricted concept of pluralism (a situation in which »[the] sovereign commands different bodies of law for different groups of population and […] the parallel legal regimes are dependent on the state legal system« (83), that – I would say – leaves unspoken important zones of legal particularism, where a specific law is enforced independent of any »offi-cial« consent. Although this »official« legal plural-ism corresponds to the explicit legal structure of the Ottoman Empire, aptly described in this chap-ter, this conceptual perspective seemingly impov-erishes the legal patchwork of several »informally« coexisting legal orders. In spite of the character-ization of the Ottoman Empire as an example of a centrally coordinated legal pluralism, I dare sup-pose that »hidden« or unofficial pluralism also existed in the Ottoman Empire. Besides a meth-odologically proficient analysis, the chapter pro-vides a persuasive case for comparing the Western

29 H D (historian of French early modern North American colo-nies, McGill University, Canada), Litigant empire. The role of French courts in establishing colonial sover-eignty, 49–79.

30 K B (professor of sociology and history, Columbia University, USA), Aspects of Legal Pluralism in Ottoman empire, 83–107.

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European model of combining the religious and secular laws. As the Western European empire and realms, the Ottoman State was independent from religion, since shari’a (Islamic law) and the ulemas’body (religious leaders) did not formally control the state. The imperial model was that of the Greek-Byzantine model of empire, where state and reli-gion appeared united, but where religion was in practice an instrument of the state. Actually, reli-gion was, at the same time, a source of political legitimacy and an institutional framework for the enforcement of state administration and state ju-risdiction. State servants and state representatives in the peripheries were educated in state funded religious schools (medreses). The imperial law (ka-nun, from the Greek kanon, rule) was a set of norms, autonomous from Islamic law (shari’a), and issued by the sovereign or established at the sovereign’s court. Royal judges (kadi) were re-cruited from among the educated elite to admin-ister justice according to both the Sultanic and Islamic law and were highly respected among the imperial officialdom.

This apparently centralized system was made flexible through temporary but renewable pacts (milet) through which the right of self-rule was granted to important Jewish and Christian com-munities. The millet was a semiformal convention between non-Muslim religious groups, by which religious group authorities were recognized by the Ottoman State as the rulers of specific self-regulating communities, provided they recognized the supremacy of the state. Anyway, archival re-search has established the frequent preference of non-Muslim subjects for the kadi court, which would demonstrate either the advantages it offered to escape the tyranny of holistic minorities or the efficiency of the assimilation process through alle-giance to imperial institutions, whose social pres-tige was largely established. The role of kadi in the court as an assimilationist device is one of the most interesting points in the chapter, as it also addresses the unifying role of the metropolitan appeal juris-dictions in the outskirts of Empires. The balance between assimilationist and autonomist effects of

pluralism is an underlying concern of the chapter. And rightly so, because this issue is still today critical for evaluating the ›liberating‹ potential of pluralism as a political proposal for legal policy-making. According to K. Barkey, pluralism is polit-ically a rather ambiguous option. Oen, oppres-sion is mostly experienced through powers in near proximity, more than through the direct submis-sion to a distant and »neutral« sovereign, confirm-ing a typical medieval concept of liberty – liberty, as the exclusive political allegiance to the king. Other chapters raise, more or less directly, this same question (for example, Brian P. Owensby 31 on the »Indian« policy of Spanish Monarchy or L. Benton and Lisa Ford 32 on the option between local and central of discipline).

Brian P. Owensby’s chapter 33 on the »Indian« policy of the Spanish monarchy analyses the tran-sition between two versions of a plural structure of the empire. On the one hand that of the Catholic empire of the Habsburgs, which pursued tradi-tional ideas of governing, and on the other, that of the Bourbons, which was introduced in the late Ancien Regime and only fully prevail later under a liberal legal and economic policy. The chapter is particularly eloquent in its description of the Habsburgian model of imperial rule. As suggested, the Spanish Habsburgs, at home or overseas, adop-ted the traditional European corporate or »jurisdic-tional« model of monarchies, 34 so well described since the 1980s in a rich strand of southern Euro-pean political historiography. The core feature of the model was to reserve for the king the role of balancing a plurality of spheres of power and law (iurisdictiones) through his supreme power of har-monizing corporate political bodies and regulating jurisdictional conflicts between them, in order to ensure the common good of the republic. In this model, Indians were represented as corporations, either by their native authorities or by their ap-pointed civil or ecclesiastic »protectors« (comenda-tores, provisores, curatores, to use an ecumenical Latin terminology). This system was based on the double assumption that the natural leaders of each body (sanior pars) duly represented the common

31 B P. O (professor of History, University of Virginia), Be-tween Justice and Economics: »In-dians« and reformism in eighteenth-century Spanish imperial thought, 143–171.

32 See above n. 14.33 See above n. 31.34 L / G (2007).

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interests of its members and that the royal decision did not result from an unbalanced (unfair) weight-ing of the conflicting interests. When this did not happen, because of the submission of common interests of the universitas to the private interests of its representatives or because the king-judge was misinformed (obreptio, subreptio), good govern-ance, or justice, had failed. This was deemed to be the case in Spanish Empire at the time of the transition from Habsburg to Bourbon dynasty. Indians’ grievances concerning misrepresentation and bad government were mirrored in several proposals for political reform, the most meaning-ful point of which was that of changing the place of natives in the political architecture of Empire corresponding to a new concept of imperial con-stitution. As economy tended now to be seen as the nerve centre of politics, and was supposed to automatically generate harmonious laws, the polit-ical solution to the Empire would be to integrate colonized subjects into the economy – assuring them property, imposing on them taxes that create the need of producing goods for the market and of trading according its laws. Once carried out, this policy would transform Indians into »useful vas-sals« – producers, consumers and taxpayers – and let the laws of economics generate the best con-stitution for the Empire. Actually, the transition would not replace pluralism through a political and legal monism; rather the transition would occur just from one type of pluralism – jurisdic-tional pluralism – to another, very similar to the liberal governance. 35 In this sense, the chapter also exemplifies the liberal proposals of constitutional reform, where a wider governance (and not only for the colonies) 36 replaced the prior pretensions (of absolutism and mercantilism, not of traditional corporative order) of rule through state govern-ment.

Lauren Benton and Lisa Ford 37 build their essay on local stories of slaves (in the Caribbean) and convicts (in New South Wales). As they point out, the difference in the formal status among the lower classes needing protection is fairly irrelevant for the geometry of the model. In all the cases, local tyranny can be overruled by setting up central and universal standards and a network of delegate

magistrates, thus building a bridge to peripheral elites and directly taking care of the interests of the »miserable people« (miserabiles personae) that al-ready in Middle Ages came under the direct pro-tection of the king.

The studied cases concerned troubles caused to local peripheral communities by the shipment of captives or slaves to several points along the North American Atlantic shore or, later on, to the New South Wales. For the affected peripheries, the threats to the communitarian order and security owing to the shipment of the captives were similar to the unsettling effects of an increase in the number of slaves. For the centre, however, the autonomy claimed by the peripheries to ensure local order and security was the real danger of disorder. Accordingly, the Crown’s policy to limit the disciplinary powers accorded to slave masters ran parallel with a concern of an emergent colonial bureaucracy with building and legitimising a com-mon imperial rule in the respective colonial con-stitution.

The existence of local magistrates, who were more or less lenient towards local elites, certainly contributed to the continuation of slavery, affect-ing core antislavery policies. However, the main concern of colonial rulers was not slavery but empire, in fact, a new kind of empire, where the ordering pathos of the centre could efficiently reach the peripheries. More than promulgating legislations that would emancipate poorer and more vulnerable segments of the population from parochial forms of tyranny, the key issue was the weakening of local »ordinary« jurisdictions or the promotion of the right to appeal to extraordinary »commissioners« or central courts. This issue was not unknown to the imperial government. In the 17th century, the »extraordinary« jurisdiction of Inquisition was used by the Spanish monarchy to gain control of Sicily. Ecclesiastical protectors (e. g., »pais dos cristãos«) used their »domestic« powers to take care of the interests of catechumens against the natural jurisdiction of their pagan community. The »pastoral« power of episcopal general vicar or even the confessor controlled the fulfilment of religious precepts, undercutting the ordinary powers of the paterfamilias. Not least, professional

35 F (1976).36 See P (2000).37 See above n. 14.

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crown judges tried to circumvent local justices. A more efficient means of resolution (classified as imperium, extraordinaria iurisdictio, domestica vel oeconomica potestas) was granted that allowed ordi-nary jurisdiction to be bypassed in order to protect the weak from the local despots, but mostly in order to establish universal standards in the pe-ripheries that would forge uniformity in the em-pire – on the legal and the bureaucratic front.

Linda Ruppert’s chapter 38 explores the entan-glement of both inter-imperial and intra-imperial jurisdictions concerning slavery, as well as the con-tradictory political aims they support. The context is the confrontational politics of the Spanish and British Empires in the Caribbean archipelagos during 17th and 18th centuries, as well as the di-verse perspectives of local, royal and ecclesiastic powers regarding the »good regime« of slavery. In the inter-imperial policy, the main conflict was between the British colonial interests of the slave economy in the Caribbean plantation colonies and the religious strategic interests that were deemed to be the inspiration of the Spanish Empire, namely in the Caribbean and neighbouring areas. How-ever this oversimplified picture would get more complex if the inner conflicting interests in both empires were taken into consideration. Actually, on the British side, the colonial elites’ views on slave trade and slave economy were not fully supported by the central power, as they increas-ingly confronted the anti-slavery sensibilities at home. On the Spanish side there were tensions between local planters desiring to preserve or intensify slavery, the royal magistrates who were concerned with local abuses in the disciplining of the slaves, and the Catholic missionaries. In these complex political interplays, slaves saw an oppor-tunity for (limited) jurisdictional shopping.

P. G. McHugh writes a suggestive essay 39 on the obstacles to the development of a full colonial sovereignty in the British Empire. Taking as a case in point the slow and hesitant progress of British

political ascendance in New Zealand, the author analyses the doctrinal and practical context of the substitution of British traditional colonial models for those that would dominate in the late 19th cen-tury. In the first era of sporadic contacts with the new territories and population, colonial control could be set through the model of »jurisdictional sovereignty«, i. e., through the casuistic empower-ment of magistrates with jurisdiction over a certain class of people or acts. Accordingly, colonial dom-ination was punctual, contracted, asymmetric, and contrasting with what would be the colonial sov-ereignty imagined by colonial and constitutional theorists of the late 19th century. 40 Around 1830, with the increasing number of settlers in New Zealand, problems (of abuse over natives, of the acquisition of indigenous land, of colonial taxa-tion) could no longer be handled solely by such dispersed and tiny administrative units. The alter-native to building a blunt sovereignty was still unusual, although the bureaucratic seeds of a new conception of colonial rule were being sown, with the advent and development of an autono-mous colonial administration. Therefore, a more robust administration needed to be set up to work out something similar to the East Indian experi-ments that instrumentalized indirect rule. In New Zealand, where the native political organization comprised more than 50 tribes, indirect rule im-plied building some sort of confederation (the »Confederation of United Tribes«) that could con-centrate on native political interlocutors and ease colonial control. Along with the Confederation, the policy of indirect rule also »created a Maori nation«, formally sovereign, subject of internation-al community, worthy of respect from third powers (namely, the French), although dependent on the protection of the British, for whom Maori’s sover-eignty had no contents. In fact, the clauses of the »international« acts that ruled Maori-British rela-tions allowed almost every kind of colonial inter-vention in native domestic affairs. This model,

38 See above n. 13.39 P. G. MH (professor of law

and legal history, Univ. Cambridge), »A pretty government!« The »Con-federation of United Tribes« and the British’s quest for Imperial order in the New Zealand Islands during the 1830s, 233–260.

40 E. g. D (1885).

Kritik critique


draed for an elemental native polity, was to be the model for the British colonial empire in Africa, where it found similarly less segmented political units.

On the whole, the chapter is a proficient analysis of the trends that directed the British colonial constitution, evolving from an atomistic jurisdic-tional constitution, as a gathering of inconsistent jurisdictions, to a pluralistic one, built on the acknowledgement of native powers and their use as a support for indirect rule and, eventually, to a

general and homogenous sovereignty – never fully achieved – set up through universal regulation and standardized administration. The respective politi-cal and doctrinal challenges of each one of the options are very well defined, with the chapter providing a brilliant overview of British colonial constitution from the mid-18th to the early 20th century.

n

Bibliographyn B, L (2002), Law and Colonial Cultures: Legal Regimes in World History, 1400–1900, Cambridge: Cambridge

University Pressn C, P (1999), Amor e amizade na cultura política dos sécs. XVI e XVII, in: Lusitania sacra, 2nd ser. 11, 21–57n C, B (1977), Temas de Historia del Derecho: Derecho común, Sevilla: Universidad de Sevilla, Secretariado de

Publicacionesn C, B (1991), Antidora. Antropologia Catolica de la Economia Moderna, Milano: Giuffrèn C, P (1969), Semantica del potere politico nel pubblicistica medievale (1100–1433), Milano: Giuffrèn D, A.V. (1885), Introduction to the study of the law of the constitution, London: Macmillann E, J (1992), Europe of Composite Monarchies, in: Past and Present 137, Nov., 48–71n E, J (2002), Imperial Spain: 1469–1716, London: Penguinn F, M (1976), Il faut défendre la société, Paris: Gallimardn F, D (1985), Il Padre di Famiglia. Governo della Casa e Governo Civile nella tradizione dell’»Economica« tra Cinque

e Seicento, Roma: Bulzonin H, A. M. (1994), La gracia del derecho, Madrid: Centro de Estudios Constitucionalesn H, A. M. (2013), La cultura giuridica europea, 3.ed., Bologna: il Mulinon L, M, C G (2007), Cádiz, 1812. La constitución jurisdiccional, Madrid: Centro de Estudios Políticos y

Constitucionalesn M, M (1998), Arbitrium. Un aspetto sistematico degli ordinamenti giuridici in età di diritto comune, Milano:

Giuffrèn M-Q, P (1970), Universitas. Expressions du mouvement communautaire dans le moyen-âge latin, Paris:

Vrinn M, C (1988), »Familia« del Principe e famiglia aristocrática, Roma: Bulzonin P, J M (2000), Revolución de Nación. Orígenes de la cultura constitucional en España, 1780–1812, Madrid:

Boletín Oficial de Estadon S, J-F (1995), La penisola iberica nei secoli XVI e XVII: la questione dello Stato, in: Studi storici 36, 9–50n S, J-F (2001), Le Portugal au temps du comte-duc d’Olivares (1621–1640): Le conflict de jurisdictions comme

exercise de la politique, Madrid: Bibliothèque de la Casa Velázquez

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Li Yang

Legal Orientalism, or Legal Imperialism?*For hundreds of years, with the passage of time,

the image of China in Western books is experienc-ing historic cycles, while the western scholar, as an observer, is also under mixed reviews. Voltaire and Leibniz make China fascinating and desirable in their books, with exaggeration and imagination; Montesquieu, Hegel, Max Weber, and even Henry Maine from the Historical School of Law, believe Chinese law is obviously beyond understanding by Western concepts as their legal history is different, which further makes traditionally Chinese law in modern times the object of western scholars criti-cized. It is natural to draw the conclusion based on discourse context in modern civilized countries.

In an odd way, in recent decades, the research on China seemingly has come to a new field. Since Orientalism by Edward W. Said came out in 1978, the idea of »Orientalism« in western context sud-denly appeared on the horizon; the 1984 book Discovering History in China: American Historical Writing on the Recent Chinese Past by Paul A. Cohen, strived to get rid of the traditional discourse struc-ture from colonial history, which push to a new high the empirical research on China-centered ap-proach. These works undoubtedly develop a new domain of discourse for traditional Orientalism in the west. Of course, some scholars doubt the so-called study of »Asian Law« advocated by the west is still oriented publicly by political and economic gains of the country. 1

Professor Teemu Roskula’s new book Legal Orientalism: China, the United States, and Modern Law emphasizes on the combination of modern context and American view, and studies modern Chinese Law by making a comparison, which dif-fers from the general idea of Orientalism studied by the Near East and from China-centered approach concerning China strictly only. It is obvious that

the term »Legal Orientalism« is derived from the subject term in Edward W. Said’s book. Edward W. Said defines Orientalism as a discourse politically, sociologically, militarily, ideologically, scientifi-cally, and imaginatively, 2 while Teemu Roskula focuses the research of discourse on legal area and locates in East Asia, esp. China, to make a study of Orientalism with a new perspective.

In fact, since 1992 Teemu Roskula has kept on his research on Chinese law, with a series of articles highly commended and valued by academia, espe-cially the representative paper »Legal Orientalism« published in Michigan Law Review, with 3 trans-lated reprints in Zeitschri für Chinesisches Recht(Germany, 2005), Foucault and Law (UK, 2010), and Chinese Social Science Quarterly (China, 2012) respectively. 3 Therefore, this book starts with this subject and constructs the research framework of Chinese law against the background of modern law. Then, such papers as »Law Without Law, or Is The ›Chinese Law‹ an Oxymoron«, »Conceptualiz-ing and Kinship: Comparative Law and Develop-ment found in a Chinese Perspective«, »Canton Is Not Boston: The Invention of American Imperial Sovereignty« and »Colonialism Without Colonies: On The Extraterritorial Jurisprudence of The U.S. Court for China«, make up main chapters in the book and provide some indispensable materials.

Teemu Roskula is so passionate about the re-search of Chinese law, however, he also men-tioned, the initial choice of Chinese law as the research object was taunted by his colleagues. Actually, he probably should not feel lonely. Amer-ican scholars like Jerome A. Cohen, Victor H. Li, Stanley Lubman, R. Randle Edwards, and William C. Jones also devoted themselves to the research of Chinese law since 1960s, either by creating East Asian Legal Studies Program, or by setting up

* T R, Legal Orientalism: China, the United States, and Modern Law, Cambridge, Mass.: Harvard University Press 2013, 338 p., ISBN 978-0-674-07576-4

Li Yang, Dr., Post-Doctoral Fellow Nanjing Normal University, China. Email: [email protected]

1 See V T, Asian Laws through Australian Eyes, Sydney: LBC Information Services, 1997, 61–62.

2 E W. S, Orientalism, New York: Vintage Books 1979, 3.

3 See Teemu Ruskola’s Curriculum Vitae, http://www.law.emory.edu/faculty/faculty-profiles/teemu-rusko-la.html (2014.4.16).

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316 Legal Orientalism, or Legal Imperialism?

courses on Chinese law without sparing any ef-fort. 4 In recent years, the number of American scholars paying attention to Chinese law is rock-eting. Involved in economic and social history, Philip C. C. Huang then turned to legal history since 1990s, putting forward a lot of provoking terms such as »the third realm«, »semiformal gov-ernance«, etc. Under the support of Philip C. C. Huang and the research group involving Kathryn Bernhardt, Bradly Reed, etc., the study on the history of Chinese law gradually formed an aca-demic trend for researches from archival case re-cords, and triggered an »intellectual earthquake«, 5thus forming a research pattern on »New Legal History«. 6 In addition, William P. Alford for ages focuses on the study of traditional Chinese copy-right law and regulation system, while Alison W. Conner makes great contributions to modern legal education in China, especially the in-depth re-search on Soochow University Law School.

Other than scholars who pursue »a China-cen-tered history of China«, and explore micro histor-iography or social historiography centered on Ju-dicial Archives, Teemu Roskula adopts a research approach of comparison or interdisciplinary ori-entation. This book focuses largely on one partic-ular instantiation of legal Orientalism by studying Oriental law as »others«, and makes a tentative review on Chinese law under the perspective of the United States and modernity. It has made two contributions. First, it states whether Chinese law and the rule of law depends on the observer’s definition of law, by combing and analyzing the western classical proposition »law and China exist in an antithetical relationship«, a widely shared assumption, with legal Orientalism as epistemol-ogical discursive analysis, approach Orientalism as a structure of legal knowledge. In the process of study, he surveys Confucian family law widely applied in traditional Chinese clan corporations, based on which further demonstrates Confucian family law as a kind of corporation law. Second, he

shows a desire to banish the subjects of Oriental despotism outside of the borders of the United States resulted in the institutionalization of a kind of legal despotism inside the United States, through the analysis of anti-Chinese immigration laws or Chinese Exclusion laws, and the survey of the intent of congress to issue the act, especially the Supreme Court. Then, by describing the unex-ploited and uncharted United States of Court for China, through analyzing the development prop-osition of modern international law as well as the extraterritoriality, he indicates that the traditional mode of promoting jurisdiction through the con-trol of a territory in some ways gets overturned, and the legal practice of the United States Court for China marks final implementation of colonialism without colonies and of legal imperialism. 7

Furthermore, his standpoint is based on the postcolonial research framework, where the tradi-tional straight western ethnographical research framework becomes useless, in turn a unique way of cultural imperialism is adopted, exercising an invisible influence on other countries by spreading civilization. Obviously, compared with the tradi-tional research, postcolonial studies get more ap-proachable. However, it should be noted that scholars on postcolonial study pay more attention to the imperialism of law (as a symbol) to culture or mentality of non-western countries. Teemu Roskula is no exception, advocating the rule of law shines brighter than ever, as likely the single most appealing index of modernity. 8

To the question whether there are laws or rules of law in China, Teemu Roskula sees why scholars always criticize Chinese law and society by inves-tigating the traditional epistemology of Hegal, Marx and Weber, that is, they have known »China is an anti-model and stands for everything that we would not wish to be – or admit to being.« 9 The developing western civilization is in urgent need of an »Others« to identify it, and then it is not difficult to understand these popular inquiries about China

4 See S Y, Research of Chinese Law in Contemporary America, in: Peking University Law Journal 8,5 (1996) 69–73.

5 N J. D, Book review: Sex, Law, and Society in Late Imperial China, in: American Historical Re-view 106,2 (2001) 546–547.

6 C Y, How a ›New Legal History‹ Might Be Possible: Recent

Trends in Chinese Legal History Stu-dies in the United States and Their Implications, in: Modern China 39,2 (2013) 165–202.

7 See R (2013) 5–23.8 T R, Law Without Law,

or is ›Chinese Law‹ an Oxymoron?, in: William &Mary Bill of Rights Journal 11 (2003) 657.

9 See R (2013) 42–45.

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Li Yang 317

in the west, involving the question why capitalism cannot be developed in China and the well-known »The Needham question« – why there is not mod-ern science and technology in China. The answer of Weber to the former question is thought provok-ing, as he explains his research aims to express the significance of western civilization by stressing non-western civilization. Therefore, it is obvious that the image of China set up on such epistemol-ogy depends on western judgment. Under the western civilization, non-western law is objectiv-ized as fall behind »Others«. So the superiority of American law comes from regarding non-western countries’ law as outdated, feudal, or even nothing, based on their prejudices about legal Orientalism. The scholars believe there is no legal system in China, in that their definition of law is based on western law.

It can be seen from the analysis of these facts that the existence of law cannot be simply argued just through surveys. Then, Teemu Roskula makes a comparison of American law and Chinese law-lessness, while such juxtaposition is ultimately too simplistic and too static. As the author notes, the point of analyzing legal Orientalism as a discourse is emphatically neither to prove nor disprove either the historical or theoretical existence of Chinese law, the definition of law obviously so narrow as to exclude China from the legal universe smacks of the dogmatism of the untraveled. 10 When this question is put forward, the answer actually al-ready exists in the questioner’s hypothesis, that is, it depends on the observer's definition of law. He convinces »so long as we insist that real law is a Western notion, it will always be the West that holds the keys to the truth about law.« 11

In the meantime, Teemu Roskula intends to explore the field neglected by traditional academia and even Chinese scholars, with a comparison method and interdisciplinary orientation of com-bining American legal culture with Sino-American relations history, from universality and particular-ity under modern law, and makes a ground-break-ing study on Chinese law since modern times, thus

succeeding in extending the research on Chinese law to the field outside that of Orthodox Con-fucian representations of law and the mundane adjudications undertaken by county magistrates in the late imperial period. Viewing thoroughly ques-tions aroused from argument, the term legal Ori-entalism is inclusive, with various complex con-cepts, aiming to treat Chinese legal practice during the modernization process more reasonably and objectively. When investigating traditional Chinese companies, Teemu Roskula found traditional west-ern scholars and even some Chinese scholars tended to believe most Chinese enterprises are family businesses, lack of basic corporate legal forms, and further pointed out this mode led to the fact that China has no genuine native prede-cessors to the modern business corporation, also referring to the fundamental question whether China is lawless. The author refutes this idea, redefining the difference of company systems be-tween China and America, with stress on collec-tiveness and individualism, and then arguing in late imperial China many extended families con-stituted clan corporations in which Confucian family law functioned as a kind of corporation law. 12 Thus, Teemu Roskula indicated Chinese law had even construct similar structure to that of western law traditionally, and Chinese political and cultural values pretended to a universal status in East Asian, while he named it East Asian law of nations against European tradition of ius gentium. As an important measuring standard, legal Orien-talism is not a special kind of pattern but a method or norm of investigation. This opinion has a market for its pragmatic function. As an echo, Peter L. Berger, a professor of sociology and religion in Boston University, classifies traditional Chinese concepts into vulgar Confucianism or post-Con-fucian ethics, and put forward two kinds of mod-ernization: western modernization and oriental modernization. 13

As legal Orientalism is not a fixed pattern, it can be formed and applied flexibly without specific subject, and present diversity in various fields. In

10 M R. D, The Faces of Justice and State Authority: A Com-parative Approach to the Legal Pro-cess, New Haven: Yale University Press 1986, 199.

11 T R, Legal Orientalism, in: Michigan Law Review 101 (2002) 234.

12 R (2013) 24.13 See P L B, In Search

of an East Asian Development Model, New Brunswick: Transaction Books 1988, 3–11.

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terms of legal Orientalism in the United States, the Chinese exclusion movement in the 19th century is undoubtedly representative. The movement was special for the involvement of the masses as well as the authority, finally causing the congress issuing a set of Chinese Exclusion Laws and quite a few judicial decisions, which implied legal Orientalism as a kind of discourse. The decision of Committees of Congress preventing Chinese people from civic rights and suffrage gave full play to such discourse. Chinese Exclusion Laws issued in 1882 marked China as a symbol of Oriental despotism defeated by American civilization norm thoroughly. In 1889, the Supreme Court even decided on specific cases that it had the right to deport long-term Chinese residents even those had lawful admis-sion. 14 Obviously, Legal Orientalism is an essential reason leading to Chinese exclusion policy and a standard to measure civilization in the East and West.

Teemu Roskula takes as the study subject the United States Court for China – a little-known story of the beginnings of Sino-American legal relations as the study object, exploring complicated relations among Europe, America and China under the political context of modern internation-al law of the 19th century. In this sense, he thinks, legal and disciplinary structures of colonialism shows the entire historical process where modern international law initiated in Europe as to exclude the East, and gradually took it in through conquer-ing. In addition to traditional pattern, there is an extreme special practical pattern of imperialism, namely informal imperialism, a new pattern over formal territorial colonialism. This concept is not created by Teemu Roskula but by Ronald Robin-son and John Gallagher in the 1970s before, »in-formal imperialism is a process whereby agents of an expanding society gain inordinate influence or control over the vitals of weaker societies by ›dol-lar‹ and ›gun-boat‹ diplomacy, ideological suasion, conquest and rule, or by planting colonies of its own people abroad.« The power society then in-tended to use this strategy to »shape or reshape them (weak nations) in its own interest and more or less in its own image«. 15 The informal imperial-

ism is not only reflected in economics, politics and culture in a narrow sense, but also extended to legal imperialism in a deeper level, perfectly em-bodied by the expansion of western rule of law. This court, judges and lawyers of western rule of law obviously contributed a lot in the expansion. Institutions represented by the United States Court for China and the U.S. legal professionals in China, superficial and objective, reflects the expectations of American legal imperialism. For example, the congress authorized the United States Court for China to apply Federal acts of the U.S. as well as special acts of Congress in the U.S. and to enact rules and regulations, for the sake of making up weakness of the applicable law. It’s also important to note that as an extraterritorial court, the United States Court for China, does not apply relevant institutional rules from constitution of the U.S., even though under the jurisdiction of federal judicial system, which fully reflected another in-appropriateness of the American legal Orientalism discourse.

If read carefully, there are still a few places need discussing in Legal Orientalism. Teemu Roskula believed though American imperialism in East Asia started with access to the Philippines in 1898, American legal imperialism in the Orient started half a century before Spanish-American War. The landmark event was the 1844 Treaty of Wanghia for getting the right of extraterritorial jurisdiction, and then before Spanish-American War, he believed the United States became a leader in the institutionalization of legal imperialism in the Orient. 16 The author cannot agree this view as to how to define the legal imperialism? Indeed, this term cannot be defined by any standard. Even so, however, it must refer to a subjective driving force in the process of legal imperialism. In fact, at the time of signing Treaty of Wanghia, whether the activeness of Caleb Cushing as one party can fully represent the overall situation in the U.S. is still need investigating. The United States of the time separating from British colonial domination less than a century, focused more on territory expan-sion and national system restructuring, with less interest in oriental countries. Caleb Cushing ap-

14 See R (2013) 141–146.15 R R, Non-European

Foundations of European Imperia-lism: Sketch for a Theory of Collab-oration, in: R O, B S-

(eds.), Studies in the Theory of Imperialism, London: Longman 1972, 119.

16 See R (2013) 20–26.

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Li Yang 319

pointed to China even has caused domestic dis-content. Though intended to seize judicial privi-lege of other countries following Britain, it still acted passively over positively. So, only four years aer obtaining extraterritoriality, the congress prac-ticed the judicial privilege by passing an act to set consular courts. Thus, it is not exactly true Teemu Roskula’s expression that signing of the treaty indicates the United States expanding its legal imperialism. The expression is inappropriate even during the next six decades. The United States didn’t pay close attention to the extraterritorial judicial situation until sending Consular Inspector to make an investigation on consul and judicial status, then, the United States Court for China was set up, as the practical expression of legal imperial-ism. It is also inappropriate to regard as legal imperialism the occupation of the Philippines aer the 1898 Spanish-American, as it is not strictly informal imperialism, but an accessory aer con-quering.

Teemu Roskula holds Chinese legal research, from the very beginning, studied orthodox Con-fucian representations, then in recent decades the mundane adjudications undertaken by county magistrates in the late imperial period. 17 Obvi-ously, it is just the American research of Chinese law. There is no denying that American scholars’ research orientation in some ways bring about reconsideration and inspiration for Chinese schol-ars, for example, Philip C. C. Huang, etc. advocat-ing research from archival case records caused more attention of Chinese academia paid to full exploration and use of local archives. However, it doesn’t mean that the research orientation of American scholars can represent that of Chinese legal history. Meanwhile, referring to the study of Sino-American relations history, Teemu Roskula, as an American scholar, holds that Chinese study of America focuses more on America during the Cold War and American imperialism on the East Asia (including Korea and Southeast Asia) aer World War II. The latter study is popular in recent years. Therefore, he believes the modern diplomatic his-tory of China and America is worth studying for

lack of research. From Chinese perspective, it is undeniable that China does pay well attention the first two topic, however, it doesn’t mean the study of the modern history of China and America is inadequate. There are famous works about Sino-American exchange history already at an earlier time. American scholars like Warren I. Cohen, and Chinese scholars like Tao Wenzhao are all leading authorities on the history of Sino-U.S. relation. What is more, numerous young and middle-aged scholars also devote themselves to the study.

In addition, when it comes to Lobingier, Teemu Roskula makes a wrong statement that he is the court's second and longest- serving judge. 18 His-torical materials suggest that the United States Court for China set up in 1906 and ended in 1943 had five official judges during the 37 years, respectively Lebbeus R. Wilfley (1906–1908), Ru-fus Thayer (1909–1913), Charles S. Lobingier (1914–1924), Milton D. Purdy (1924–1934), and Milton J. Helmick (1934–1943). 19 Only two jud-ges’ terms expire, namely Charles S. Lobingier and Milton D. Purdy. Under the investigation and recommendation of the president Woodrow Wil-son and the Secretary of State William Jennings Bryan, the Senate on February 8, 1914 officially passed the commission to appoint Charles Sumner Lobingier as the third judge in the United States Court for China. On February 14, aer his expira-tion of the 10-year term as the Judge of the Court of First Instance of the Philippine Islands, Charles Sumner Lobingier hurried to Shanghai, taking office in the new Judge of the United States Court for China. 20 Also, when it comes to Peter Parker’s missionary works and diplomatic activities, Teemu Roskula writes, »many of the substantive provi-sions of the Treaty of Wanghia were informed directly by articles published in the Chinese Repo-sitory, a missionary periodical edited by Parker and his joint Chinese Secretary, Reverend Elijah Cole-man Bridgeman.« 21 Obviously, this narration is an evident misunderstanding of historical facts, while indeed, Peter Parker had never served as the editor-in-chief of The Chinese Repository, or at best, the periodical just issued some of his works. Moreover,

17 R (2013) 17.18 R (2013) 163.19 See: Brevia Addenda: Records of the

United States Court for China, in: The American Journal of Legal History 1 (1957) 235.

20 See: Judge Charles S. Lobingier, in: The Green Bag 26, 8 (1914) 343.

21 R (2013) 138.

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it can be seen from the notes that Teemu Roskula’s inference is quoted from Tyler Dennett’s Americans in Eastern Asia, which writes, »The Chinese Reposi-tory of which Bridgman and Williams were not merely the editors but to which they oen the chief contributors …«, 22 specifying the editors are Bridgman and S. Wells Williams. In addition, this text originates from page 557, while Teemu Ros-kula listed page 577 in his notes. Obviously, Teemu Roskula’s research on this question is inaccurate. In fact, in 1832, with the help of Robert Morrison, Elijah Coleman Bridgeman in Canton established The Chinese Repository. As an editor-in-chief and a significant writer, he delivered more than 350 articles in the periodical, 23 exerting a far-reaching influence.

In general, as Teemu Roskula said, Orient itself is a traveling concept. The object it refers to is not constant. So in some sense, legal Orientalism is a kind of expression, while the implied legal im-perialism behind is the fundamental purpose. As such, though this book provides another research orientation for western scholars, trying to study the picture of Chinese law with a more comprehensive and objective perspective, the final conclusion of this book doesn’t seem to get over the epistemol-ogy of traditional western scholars.

n

22 T D, Americans in Eas-tern Asia, New York: The Macmillan Company 1922, 557.

23 See: List of the Articles in the Volumes of the Chinese Repository, in: The Chinese Repository 20 (1851), 9–54.

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Stefan Kroll

Selbst die Kopie ein OriginalDie Konstruktion und Adaption globaler Ideen*

Die geistes- und sozialwissenschalichen Diszip-linen haben ihr Spektrum in der jüngeren Ver-gangenheit um globale Perspektiven erweitert. Auch für das Feld der Intellectual History liegt nun ein Sammelband von Samuel Moyn und Andrew Sartori vor, der die Frage des Globalen diskutiert und dabei viele Beobachtungen enthält, die über das Feld der Ideen- und Geistesgeschichte hinaus Beachtung verdienen. Von rechtshistori-schem Interesse sind vor allem die Abschnitte zur Konzeption des Globalen und zur Übersetzung und Verankerung globaler normativer Muster.

Was genau kennzeichnet das Globale der Global Intellectual History? Ist es wirklich angebracht, Glo-balität anzuführen, fragt Frederick Cooper, wenn lediglich »long-distance connections« untersucht würden (284)? Zumindest scheint es sinnvoll, eher von globalen Netzwerken bestimmter Akteure aus-zugehen als die Existenz eines globalen Raumes anzunehmen, der alle möglichen Akteure (nicht nur die Eliten) prägt und von diesen geprägt wird. Auch Duncan Bell argumentiert, dass sich viele als globalhistorische Forschungen gekennzeichnete Projekte treffender als »transnational or translocal history« beschreiben ließen. Die Herausgeber for-mulieren demgegenüber ihre Erwartung an die Global Intellectual History vor allem in Hinblick auf die Herausbildung eines Bewusstseins des Glo-balen, denn als die Beschreibung einer – insgesamt unwahrscheinlichen – Integration auf globaler Ebene (16 und 21). Cooper, der am Ende des Bandes einen kritischen Blick auf das Gesamtpro-jekt wir, gelingt es am besten, diesen Ansatz bündig zusammenzufassen: »[G]lobal intellectual history should center on ideas that truly encircle the world or that formulate propositions about the world as a whole.« (284) Es geht also um die Konstruktion einer bestimmten Perspektive auf die Welt – Bell überschreibt seinen Beitrag denn auch mit dem Titel Making und Taking Worlds(254–279) – deren Grundlagen und Konsequenzen

für die Ideen- und Geistesgeschichte zu untersu-chen sind.

Besonders anschaulich wird dieser Ansatz im Beitrag von Christopher L. Hill (134–158), der sich mit der Ausbreitung europäischer Ideen im 19. Jahrhundert befasst. Für Hill sind globale Ideen daran erkennbar, dass es für ihre Aneignung nicht notwendig sei, zu ihren Ursprüngen zurück-zugehen, sondern dass sie in adaptierter Form als Teil eines allgemeinen, kulturübergreifenden Dis-kurses wirkten: »The fact that many of the concepts arrived in mediated form – through the intellectual vulgate, through translation – means it was not necessary to go to the origin to get the concepts.« (145) Hill beschreibt für das 19. Jahrhundert ins-gesamt die Herausbildung eines transnationalen intellektuellen Feldes, das sich zur Jahrhundert-wende mit dem physikalischen Globus gedeckt habe (152). Auch hier ist aber zu betonen, dass dieses Feld wohl eher ein Netz ist, an dessen Knoten sich bestimmte Akteure austauschen, es aber hinreichend freie Räume gibt, in denen Men-schen von transnationalen intellektuellen Aktivitä-ten unberührt bleiben.

Für die Entstehung und Vermittlung globaler Ideen sind Intermediäre von zentraler Bedeutung. Vanessa Smith schildert das eindrucksvolle Fallbei-spiel Tupiaias’, eines Begleiters Joseph Banks’ auf dessen Reisen in der Region Tahiti im 18. Jahr-hundert, und verdeutlicht dessen Rolle als Infor-mant, Übersetzer und Führer (82). In jüngerer Vergangenheit sind in diesem Zusammenhang vor allem Fragen der Übersetzung stärker in den Fokus der Forschungen gerückt. In diesem Band grei Hill das Thema auf und zeigt anhand der umfangreichen Studien in den Asienwissenschaf-ten, dass das Problem der Übersetzung mit rein sprachlichen Betrachtungen nur unzureichend er-fasst werden könne (143). Vielmehr müssten in der Interpretation von Übersetzungen auch sozia-le und kulturelle Aspekte berücksichtigt werden.

* S M, A S, Global intellectual history, New York: Columbia University Press 2013, 342 S., ISBN 978-0-231-16048-3

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Stefan Kroll 323

In diese Richtung gehen auch die Beobachtungen von Sudipta Kaviraj, die ebenfalls auf die Bedeu-tung von Sprache und Kultur in Translationspro-zessen hinweist: »[…] this process cannot be un-derstood except through a truly linguistically and culturally double-sided history.« (305) Zu ergänzen wäre in diesem Zusammenhang lediglich der von Bourdieu abgeleitete Hinweis, dass Übersetzungen ganz unabhängig von ihrem Verhältnis zu ihrer Vorlage neue soziale Tatsachen schaffen, die für das Verständnis der Veränderung zirkulierender Ideen wertvoll sind – selbst wenn sie, aus philologischer Sicht, nur von geringer Güte sein mögen.

Dass in der Veränderung eines Konzepts schließ-lich ein Moment der Originalität steckt, formuliert Samuel Moyn in einem wichtigen Kommentar zu den Arbeiten seines Mitherausgebers Andrew Sar-tori: »Even in the case of a European concept, as Sartori observes, one must acknowledge its spread and not fear treating its secondary users as deriva-tive, for its appropriation itself is always as inven-tive as its earlier coinage,« (199) Es wird hieran deutlich, dass nicht jeder Analyse der Diffusion eines »europäischen Konzeptes« zwingend eine eurozentrische Perspektive zugrunde liegen muss. Vielmehr geht es darum, die Originalität zu be-schreiben, die auch in einem Prozess der Aneig-nung liegt. Dies ist ein wichtiger Hinweis, denn, wie Bell beobachtet, wird das Attribut »global« auch dafür verwendet, sich von einer »westlichen« Form der Geschichtswissenscha abzugrenzen, die aber in ihrer angestrebten »nicht-westlichen« Per-spektive freilich nicht automatisch global ist (256). Es ist eine perspektivische Verengung, wenn glo-bale Perspektiven so ausgelegt würden, Europa nicht nur zu provinzialisieren, sondern unsichtbar zu machen. Dies umso mehr, als der überwiegende Teil der Beiträge in diesem Band sich mit histori-schen Akteuren befasst, die aus einem außereuro-päischen Hintergrund heraus europäische Ideen in anderen Weltregionen vermittelten: »The people

who are the subjects of these chapters are obesessed with Europe.« (Cooper 288)

Eine wichtige Voraussetzung für das Verständnis der Ausbreitung und Veränderung von Ideen liegt in der Erkenntnis, dass diese sich nicht aus sich selbst heraus erklären. Es sind vielmehr zusätzliche kausale Faktoren – soziale, politische oder ökono-mische –, die Teil eines Erklärungsmodells sein müssen: »Culture must be carried by some larger structural agency.« (Kaviraj 299) Mit anderen Wor-ten ist der durch Akteure vollzogene Transfer von Ideen eingebettet in spezifische historische Gege-benheiten. Eine wichtige, aber auch sehr klassische Einsicht, die häufig aus Marx’ Der Achzehnte Bru-maire abgeleitet wird: »Die Menschen machen ihre eigene Geschichte, aber sie machen sie nicht aus freien Stücken, nicht unter selbstgewählten, son-dern unter unmittelbar vorgefundenen, gegebenen und überlieferten Umständen.« 1

Auch wenn nicht alle Fragen, die durch Global Intellectual History aufgeworfen werden, neu sind, sondern bereits in anderen Diskussionen des Glo-balen gestellt wurden, so enthält der Band doch eine Reihe interessanter Impulse. Der spezifische Blick auf die Herausbildung globaler Ideen ist von zentraler Bedeutung für die historische und gegen-wärtige Forschung zu globalem Recht und globa-ler Normativität. Auch hier stellt sich seit langem die Frage nach der Einordnung der Ausbreitung europäischer normativer Ideen, jenseits klassischer Rezeptionsparadigmen. Ein wichtiger Ansatz hier-zu drückt sich in einer der Kernaussagen dieses Bandes aus: »In any event, conceptual spread is an occasion for subaltern originality rather than sim-ple derivation.« (Moyn 200) In der Adaption fin-den sich also originelle Elemente, die sich vor allem dann offenbaren, wenn die Verwendung und Wandlung globaler Ideen eingebettet in ihre spezifischen historischen und sozialen Kontexte untersucht werden.

n

1 M, K, Der Achtzehnte Brumaire des Louis Bonaparte, zweite Ausgabe, Hamburg: Otto Meißner 1869, 1 [http://www.deutschestextarchiv.de/book/show/marx_bonaparte_1869].

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324 Selbst die Kopie ein Original

Christiane Birr

Die seidenen Bande des Empire*Protagonist des Buches des nigerianisch-kanadi-

schen Historikers Bonny Ibhawoh (Hamilton, On-tario) ist das Judicial Committee of the Privy Council(JCPC), das 1833 formal als letzte Appellations-instanz für die koloniale Gerichtsbarkeit im Briti-schen Empire installiert wurde. Das JCPC fungier-te zugleich als Beratergremium der Krone und als letztinstanzliches Gericht mit einem unklaren Sta-tus: Die Richter des JCPC sprachen keine bin-denden Urteile, sondern gaben Entscheidungs-empfehlungen an die Krone, welche diese in Form von Orders in Council verbindlich erließ. Bislang hatte sich die historische Forschung auf die Rolle des JCPC bei der Entwicklung des Case Law in Regionen des sog. Old Empire, d. h. Kanadas, Aust-raliens, Neuseelands und Irlands, konzentriert. Die vorliegende Monografie rekonstruiert zum ersten Mal seine Bedeutung für die Rechtsentwicklung in den afrikanischen Kolonien, allerdings ohne die Befunde in Bezug zu den Ergebnissen der Old Empire-Forschungen zu setzen. Dagegen erhält die Analyse besondere Tiefe durch die Auswertung der reichen archivalischen Quellen des JCPC, die Ibhawoh noch in einem »staubigen Keller in der Downing Street« konsultierte (22) und die inzwi-schen in die National Archives in Kew überführt wurden. Der Beobachtungszeitraum erstreckt sich von 1890 bis zum Ende der 1960er Jahre, als sich die unabhängig gewordenen ehemaligen Kolonien aus dem Rechtsprechungsverbund des Common-wealth lösten und die Appellation an das JCPC in ihren Verfassungen abschafften.

Ibhawoh geht es um die Bedeutung des JCPC für die Rechtsentwicklung in den afrikanischen Kolonien und den post-kolonialen Staaten West- und Ostafrikas. Ausgangspunkt der Arbeit des JCPC war die Annahme, unter den vielgestaltigen Formen aller, auch aller indigenen Rechte im Empire seien identische Rechtsprinzipien verbor-gen. Seine Aufgabe war es, sie herauszuarbeiten und zur Geltung zu bringen. Die daraus resultie-rende dogmatisch anspruchsvolle Arbeit der Rich-ter in der ständigen Spannung zwischen imperial

universalism und local exceptionalism analysiert der Autor eindringlich anhand zentraler Thematiken wie des Umgangs mit indigenen Rechtsgewohn-heiten (Kap. 3), Fällen sog. witchcra (Kap. 4) und indigenen Landrechten (Kap. 5). Die gefundenen Entscheidungen besitzen bis in die Gegenwart als Präzedenzfälle hohen Wert und beeinflussten Ge-setzgebung und Rechtsprechung in den Kolonien stark. Gestritten wurde vor dem JCPC, wie ange-sichts des Aufwandes, der Dauer und der Kosten eines solchen Verfahrens nicht anders zu erwarten war, um hohe Einsätze: um Autorität und Macht in den Kolonien, um widerstreitende Interpreta-tionen von Moral und Kultur und nicht zuletzt um die Verteilung wirtschalicher Ressourcen.

Ibhawohs Analyse zeigt die zwei Gesichter der imperialen Justiz. Koloniale Unterschiede zwi-schen Europäern und Afrikanern wurden durch sie festgeschrieben und verstärkt. Zugleich aber gehörte zu ihren Aufgaben, die Integration aller Angehörigen des Empire in ein einheitliches Normgebäude voranzutreiben (138). Koloniales Recht und seine Institutionen mussten flexibel, dehnbar und modifizierbar sein: nicht trotz der »Zivilisierungsmission«, als deren Träger sich die europäischen Kolonialmächte verstanden, sondern gerade ihretwegen. Damit zeigen sich jurisdiktio-nelle Institutionen wie das JCPC als zentrale In-stanzen für die Konstruktion kolonialer Alterität und zugleich als Schmelztiegel, in denen neue, von Ibhawoh als hybride bezeichnete Rechtskulturen entstanden, welche die koloniale und post-kolo-niale Ordnung in den (ehemaligen) afrikanischen Kolonien bestimmen (186). Als Beispiele für die neuen Formen, die in den Konflikten innerhalb sowie zwischen europäischen und afrikanischen Rechtskulturen entstanden, nennt Ibhawoh das Verwischen kolonialer Dichotomien durch das Streben nach einheitlichen Rechtsmaximen (Doct-rine of Repugnancy) und die grundlegende soziale Umgestaltung afrikanischer Gesellschaen durch neue Verschaltungen zwischen Macht, traditio-neller Autorität und (europäischer) Bildung, etwa

* B I, Imperial Justice. Africans in Empire’s Court, Oxford: Oxford University Press 2013, 211 S., ISBN 978-0-19-966484-9

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Christiane Birr 325

durch die Entstehung eines afrikanischen Anwalt-standes oder die Neu-Definition der Rollen lokaler chiefs und indigener Amts- und Funktionsträger im Kolonialstaat.

Zu den fortwirkenden Prinzipien der kolonia-len Rechtsprechung gehört nach Ibhawoh die Fi-xierung auf den vermeintlich kollektiven Charak-ter afrikanischen Rechts. So habe es für britische Juristen als ausgemacht gegolten, dass traditionelle afrikanische Systeme zur Konfliktlösung nicht auf Gerechtigkeit oder die Aufrechterhaltung strikter Rechtsregeln gerichtet gewesen seien, sondern auf das Finden freundschalicher, einverständlicher Lösungen. Die Ausrichtung des Rechts auf das Individuum und seine subjektiven Rechte sahen die britischen Juristen als europäisches Phänomen an, in Afrika sah man stattdessen die Gemeinscha und ihre fortgesetzte Solidarität im Mittelpunkt des Rechts. Diese bis in die Gegenwart geläufige Gegenüberstellung eines individualistischen Euro-pa und eines kollektivistischen Afrika demaskiert der Verfasser als Mischung aus afrikanischer Selbst-Idealisierung und kolonialer bzw. ethnologisch-politischer Theorie (82).

Leider nur angedeutet, aber umso interessanter erscheint der erhebliche Unterschied zwischen Ei-gen- und Fremdwahrnehmung des JCPC und sei-ner Richter. An dieser Stelle wünscht sich der Leser eine vertiefende Beschäigung mit dem Personal des JCPC. Dagegen führt die konzise Studie die Institution JCPC als »wirksamen und wichtigsten Teil der seidenen Bande, die so reibungslos unser großes Empire zusammenhalten« (Lordkanzler Lord Richard Haldane über das JCPC, 1922), ein-dringlich vor Augen. Die Art und Weise, in wel-cher das JCPC Recht in den afrikanischen Kolo-nien zwischen imperialem Universalismus und kolonialer Alterität geformt und festgeschrieben hat, bildet bis heute die Grundlage der Rechts- und Gerichtskultur in den post-kolonialen Gesellschaf-ten. Insgesamt eröffnet Ibwahoh in seiner gut lesbaren und lesenswerten Arbeit weiterführende Perspektiven auf die »Erfindung der Tradition« (71) in den afrikanischen Kolonien, vor allem aber auf die juristische Bewältigung kolonialer Multi-normativität.

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Otto Danwerth

Von den Inka lernen, heißt herrschen lernen*Zu zwei Editionen von Schrien eines spanischen Juristen im frühkolonialen Peru

Im Gefolge der spanischen Kolonisation bildete sich ein für Hispanoamerika geltendes Normenge-füge heraus, das später so genannte Derecho India-no. Aus Europa stammende Institutionen und Normen wurden in der »Neuen Welt« (re-)produ-ziert, doch gingen in seine Entstehung auch ge-wohnheitsrechtliche lokale Praktiken ein: spani-sche ebenso wie indigene aus vorkolonialer Zeit.

Um die komplexe Genese dieses multinormativen Rechts verstehen zu können, sind neben den klas-sischen Quellen auch die jeweilige lokale Rechts-produktion und der juristische Diskurs zu berück-sichtigen. Wichtige diesbezügliche Zeugnisse hin-terließen im 16. Jahrhundert zahlreiche in Hispa-noamerika wirkende Juristen. Im zentralandinen Raum, dem heutigen Peru und Bolivien, war Polo

* P O, Pensamiento co-lonial crítico. Textos y actos. Edición de Gonzalo Lamana Ferrario, estudio biográfico de Teodoro Hampe Martí-nez, Lima/Cuzco: Instituto Francés de Estudios Andinos / Centro Barto-lomé de Las Casas 2012, 406 S., ISBN 978-612-4121-02-9

P O, El Orden del Inca. Las contribuciones, distribuciones y la utilidad de guardar dicho orden (s. XVI). Edición de A C- y M Z, Lima: Edi-torial Commentarios 2013, 398 S., ISBN 978-9972-9470-8-7

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Ondegardo einer der herausragenden juristischen Autoren und Akteure, dessen Schrien in zwei neuen Auswahlbänden vorliegen.

Der ca. 1520 in Valladolid geborene Polo On-degardo studierte – sehr wahrscheinlich – an der Universität Salamanca die Rechte, bevor er als junger licenciado 1544 nach Peru kam. Nach dem Ende der »Bürgerkriege« 1548 amtierte er als Cor-regidor und Capitán General von Charcas (Hoch-peru). 1550 verfasste er für Potosí die ersten Vor-schrien zum Silberbergbau im Vizekönigreich Peru. In Anerkennung seiner Dienste erhielt er eine encomienda in Cochabamba sowie eine Silber-ader in Potosí. Während seiner Amtszeit als Corre-gidor von Cuzco, der ehemaligen Inkahauptstadt (1559–61), führte die Beschäigung mit andiner Religion zu Berichten über die sakrale Topographie (Ceque-System) und zum Fund von Inkamumien. 1561 griff Ondegardo in Lima in die Debatte um die Erblichkeit der encomiendas ein, die er unter strengen Bedingungen für gerechtfertigt hielt. Nach einer zweiten Amtszeit als Corregidor von Cuzco (1571–72) kehrte Ondegardo nach Charcas zurück, wo er als Capitán General und Gobernadorwirkte. Er war einer der wichtigsten Ratgeber von Vizekönig Francisco de Toledo (1569–81). Polo Ondegardo starb am 4. Nov. 1575 in La Plata. 1

Der von Vizekönigen und Klerikern geschätzte Jurist wirkte als vielseitiger Beamter und Norm-setzer; als encomendero und Geschäsmann wurde er wohlhabend. Ruhm erwarb er sich jedoch als Kenner andiner, besonders inkaischer Ordnungs-vorstellungen und -praktiken. Seine Texte behan-deln Themen aus den Bereichen Recht, Politik, Wirtscha, Kultur und Religion zu vorspanischer und frühkolonialer Zeit. Ondegardo war kein »Chronist« im eigentlichen Sinne: er schrieb zu-meist ohne Veröffentlichungsabsicht und verfasste keine Monographien wie z. B. Juan de Matienzo (Gobierno del Perú, 1567). Seine Untersuchungen verdankten sich häufig konkreten juristischen Anfragen oder ergaben sich aus der eigenen admi-nistrativen Betätigung und der Einsicht, dass sich die spanische Herrscha in Peru durch exaktere

Kenntnis der im Inkareich geltenden Normativität im Sinne eines buen gobierno verbessern ließe. Ondegardo empfahl nachdrücklich, dass das spa-nische Rechtssystem in Peru bestimmte andine und inkaische Organisationsformen anerkennen solle.

In Ermangelung vorspanischer schrilicher Zeugnisse ließ lic. Polo Älteste durch Übersetzer befragen und bediente sich proto-ethnographi-scher Methoden, zog aber auch Bildquellen und Knotenschnüre (quipos) heran. Ondegardo lässt sich weder als eleganter Stilist noch als gelehrter Autor charakterisieren, doch die zuweilen schwie-rige Lesbarkeit seiner Werke ist weniger seiner »trockenen« Bürokratenprosa als vielmehr der feh-lenden Sorgfalt seiner Editoren geschuldet. Ein kurzer Text über indigene Religiosität wurde als Teil des Confessionario para los curas de indios 1585 in Lima veröffentlicht, doch nichts von seinen Gutachten, Berichten und Briefen zu Lebzeiten des Autors gedruckt. Gleichwohl zirkulierten Ma-nuskripte und Abschrien; sie wurden auch von späteren Juristen, Klerikern und Chronisten ge-schätzt. Obwohl Pedro Sarmiento de Gamboa (Historia índica), José de Acosta (Historia natural y moral de las Indias) und Bernabé Cobo (Historia del Nuevo Mundo) aus seinen heute verlorenen Manu-skripten zitierten, litt Ondegardos œuvre unter einer schwierigen Editionsgeschichte, in der er bald auch unter dem falschen Namen »Juan Polo de Ondegardo« firmierte. Nach der fehlerhaen Veröffentlichung einiger Texte in spanischen Do-kumenten-Sammlungen des 19. Jahrhunderts ga-ben Carlos Romero 1906 und Horacio Urteaga 1916–17 ausgewählte Werke heraus, die trotz ihrer Mängel bis heute benutzt werden. Erst seit den 1980er Jahren wurden einzelne Texte wieder ver-öffentlicht. Hervorzuheben sind die von Laura González Pujana vorgelegten Bände, die Doku-mente über Ondegardo aus spanischen und boli-vianischen Archiven versammeln. 2 Obwohl unab-hängig voneinander der inzwischen verstorbene Thierry Saignes und Fermín del Pino Díaz mit seinem Team seit den 1990er Jahren an Gesamt-

1 Vgl. J, C, A M P (2008), Polo Ondegardo (ca. 1520– 1575), in: P, J(ed.), Guide to Documentary Sources for Andean Studies, 1530–1900, 3 Bde., Norman/Oklahoma, vol. 3, 529–535.

2 Vgl. G P, L (1999), Polo de Ondegardo: Un cronista va-llisoletano en el Perú, Valladolid. Unter den Dokumenten befinden sich z. B. das Testament und seine »probanza de méritos y servicios«. Einige dieser Quellen aus spanischen

Archiven sind inzwischen als Digita-lisate auf der Webseite des Portal de Archivos Españoles (http://pares.mcu.es) zu finden.

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ausgaben arbeiteten, sind diese bisher nicht er-schienen.

Vor diesem Hintergrund ist es zu begrüßen, dass Gonzalo Lamana, ein historisch arbeitender Hispanist (Pittsburgh), 2012 folgende sechs Texte Ondegardos neu edierte: 1. Informe al lic. Briviesca de Muñatones sobre la perpetuidad de las enco-miendas en el Perú [1561]; 2. Ordenanzas de las minas de Guamanga [1562]; 3. Las razones que movieron a sacar esta relación y notable daño que resulta de no guardar a estos indios sus fueros [1571]; 4. Parecer sobre la guerra propuesta contra los Chiriguanaes [ca. 1573]; 5. Los errores y super-sticiones de los indios sacadas del Tratado y averi-guación que hizo el Lic. Polo [ca. 1559]; 6. Copia de unos capítulos de una carta del lic. Polo, vecino de la ciudad de La Plata, para el doctor Francisco Hernández de Liébana [ca. 1565]. Es handelt sich um eine repräsentative Quellenauswahl. Neben Bergbau-Verordnungen (2.) und einer Skizze an-diner Religiosität (5.) findet sich ein Gutachten über die militärische Kampagne des Vizekönigs Toledo gegen die guaraní-sprachigen Chirigua-nos (4.). Wie schon die Guamanga-Normen (2.), so behandeln die Briefauszüge (6.) die Prozessflut indigener Kläger. Ondegardo riet dazu, sich auch vorspanischer Konfliktlösungsmechanismen zu be-dienen; er schlug zudem die Ernennung indigener Richter vor. Den Bezug zum »derecho inmemo-rial« stellen auch die ersten beiden Texte her. Im Bericht an lic. Briviesca (1.) stellt lic. Polo die Tributverpflichtungen der Provinzen an den Inka-herrscher sowie die Änderungen dar, die sich nach Einführung des spanischen Encomienda-Systems ergaben. 1571 nahm Ondegardo zu diesem Thema nochmals ausführlich Stellung (3.): Er erläuterte die Landverteilung, die Nutzung von Weideland und Vieh; die Arten und Verteilung der Tribut-leistungen (von Arbeitsdiensten bis Kleidung) und die demographische Mobilität (mitimaes) im Zu-sammenhang der inkaischen Geschichte, Religion und »vertikalen Ökonomie«. Seine Verbesserungs-vorschläge kolonialer Politik betrafen z. B. das Tributsystem und die Rolle lokaler indigener Herr-scher (caciques).

Im Titel dieses Textes beklagt Ondegardo den »erheblichen Schaden, der sich ergibt, wenn die indios ihre fueros nicht bewahren dürfen«. Schon die kastilischen Siete Partidas (13. Jh.) unterschie-den im Rahmen des Gewohnheitsrechts »fueros« von »usos« und »costumbres«. In Ondegardos Ge-brauch meint »fueros« althergebrachte Rechte, also

vorspanische indigene Normen und Organisa-tionsweisen, die gemeinsam mit den »costumbres« vom spanischen Recht in Peru anzuerkennen seien, solange sie nicht gegen die Prinzipien der Religion und das Naturrecht verstießen; dies war auch die Position der Krone (Cédula, 1555). Onde-gardo war wohl der erste Jurist, der den Begriff»fuero« in diesem Sinne für den andinen Raum verwandte. Er empfahl Kontinuität und behut-same Veränderungen statt radikaler Zäsuren und einschneidender Gesetze.

Lamana hat eine sorgfältige Edition dieser sechs Quellen auf Basis von neuen Transkriptionen der Manuskripte vorgelegt. Die Orthographie und Zei-chensetzung wurden modernisiert, der Fließtext in Kapitel und Absätze eingeteilt, so dass die Texte wesentlich lesbarer geworden sind. Die Fußnoten enthalten gestrichene Worte, Randbemerkungen, divergierende Lesarten, zudem Übersetzungen von Quechua-Worten und wenige Erläuterungen.

Dem Quellenteil vorangestellt sind drei einlei-tende Aufsätze. Im ersten Kapitel (15–48) fasst der Herausgeber die Editionsgeschichte der Manu-skripte kundig und kritisch zusammen. Ausführ-lich geht Lamana auf die dritte Quelle (»Las razo-nes que movieron a sacar esta relación y notable daño […]«) und das Verhältnis der beiden Manu-skripte aus der Biblioteca Nacional de Madrid (BNM) ein (25–31). Lamana vermutet, dass es sich bei ms. 2821, das seiner Edition zugrunde liegt, und bei ms. 3169 um zwei Kopien von zwei heute unbekannten Originalen Ondegardos handelt. Die Diskussion anderer dem lic. Polo zugeschriebener Manuskripte, die Lamana nicht in seine Auswahl aufnahm, ist ebenfalls hilfreich. Heute verscholle-ne Texte sind u. a. ein »tratado del matrimonio de los indios« sowie ein »tratadillo sobre la coca« (45).

Im dritten Kapitel bietet Teodoro Hampe Mar-tínez eine fundierte, aus den Quellen gearbeitete Biographie Ondegardos (89–135), die auf eigenen Vorarbeiten beruht und in vielen Passagen text-gleich mit seinen um die Jahrtausendwende er-schienenen Artikeln ist. Aktualisierungen betref-fen vor allem den familiären Hintergrund (inkl. genealogische Listen), die Vermögensverhältnisse der Ondegardo in Spanien und einen kurzen Epi-log zu »Polo Ondegardo y la legalidad« (120–121). Eine »Liste von edierten Dokumenten mit Bezug zu Polo Ondegardo« (393–406) bietet eine nütz-liche bibliographische Ergänzung.

Zuvor, im zweiten Einleitungskapitel (49–87), präsentiert Lamana eine postkolonial inspirierte

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»alternative« Interpretation unter dem Titel »Pen-samiento colonial crítico«. Er versucht, Ondegar-dos Werke als Grundlage einer in den 1560er Jahren entstehenden »kolonialen politischen Theo-rie« über die Anden zu lesen. Dabei bezieht sich Lamana jedoch nur auf den »Informe« (1561) und die »Razones« (1571). Dieses »politische Projekt« sei auf eine »Subalternisierung der Indigenen« ge-richtet und habe einen zentralen Beitrag zum »rassischen Denken« geleistet; das Christentum sieht er dabei als die »wichtigste, den Kolonialis-mus stützende diskursive Formation«. Obwohl einzelne Ausführungen in ihrer provokativen Zu-spitzung anregend sind, überzeugt Lamanas asso-ziative Argumentation insgesamt nicht. Zentrale analytische Kategorien wie »Rassismus« werden nicht problematisiert (56), während andere wie die Metapher der »Taxidermie«, d. h. Präparierung von Tieren, nicht einleuchten (61–62). Mit Hilfe dieses von Fatimah Tobing Rony über die Dar-stellung von »Anderen« in westlichen Filmen ge-nutzten Konzepts interpretiert Lamana Ondegar-dos »politisches Projekt und seine ethnographische Basis«. Dieser habe »den« Indigenen eine unver-änderliche, minderwertige »condición« zuge-schrieben, mit der ihre Beherrschung als Unter-tanen der Krone legitimiert werden sollte. Zwar spricht lic. Polo häufig von »los indios« für die »breite Masse« der indigenen Bevölkerung. Diese Redeweise teilt er mit vielen Zeitgenossen, Chro-nisten (Cieza, Betanzos, Acosta) und Juristen (lic. Falcón, Matienzo), doch diesen Diskurs berück-sichtigt Lamana nicht. Noch problematischer ist, dass Lamana ein »politisches Projekt« herauszu-arbeiten versucht, ohne die juristische Prägung des Autors und seinen rechtlichen Referenzrahmen näher zu untersuchen. Topoi wie »niños« und »mi-serables« erwähnt er zwar, würdigt aber ihre recht-liche und religiöse Dimension als Schutzbedürige (menores, personae miserabiles) nicht hinreichend (67). Ferner würde lic. Polo den indios die Fähig-keit zur Selbstregierung, zu politischem Denken, zu wirtschalicher Befähigung und zu Mobilität absprechen und sie dadurch »subalternisieren« und gar »orientalisieren« (69–72). Solche generalisie-

renden Behauptungen werden nicht durch ein »close reading« der Texte belegt, sondern eher evoziert. Ähnliches gilt für die angebliche »christ-lich-rassische Matrix«, die Ondegardos Denken grundiere (63).

An anderen Stellen und in anderen Texten, die Lamana nicht heranzieht, behandelt Ondegardo jedoch Inkaherrscher, Eliten und andere andine Ethnien differenzierter, als hier suggeriert wird. Wenngleich er zumeist in der Tat ein statisches Bild des Inkareichs vermittelt, kennt er auch Wan-del und Mobilität. Hätte Lamana auch Taten des lic. Polo – wie im Untertitel des Buchs genannt – einbezogen, wären manche Behauptungen relati-viert oder widerlegt worden. Die These beispiels-weise, dass er den indios die Ausübung ihrer Frei-heit verwehrte (63), wird durch seine Tätigkeit als Corregidor in Cuzco konterkariert, wo er in den von ihm gegründeten indigenen Dörfern je einen al-calde de indios einsetzte: ein Beispiel für indigene Selbstverwaltung. Am Ende seines Essays beklagt Lamana die Wirkung, die Ondegardos Texte in der Andinistik und der Ethnohistorie hatten (75–80). Er kritisiert vor allem John Murra, der Ondegardos Texte seit den 1950er Jahren doch erst wieder auf die Agenda gebracht hatte. Als Beispiel für die von lic. Polo und den ihm folgenden Forschern ausge-blendeten Aspekte nennt Lamana die Rolle der caciques in der Debatte um die Erblichkeit der encomiendas (Goldwert, Lohmann Villena).

Lamana warnt zu Recht davor, die Texte Onde-gardos als »objektive« ethnographische Berichte misszuverstehen. Dieser habe vielmehr aus prag-matischen Motiven agiert: um den indigenen Be-völkerungsrückgang zu stoppen und indigenen Tribut zu sichern. Unbestritten ist, dass lic. Polo als Repräsentant der spanischen Bürokratie ein kolonialer Akteur war. In welcher Hinsicht sein koloniales Denken ein »kritisches« war, wird nicht weiter erläutert (49, 52); der Begriff ist in diesem Zusammenhang anachronistisch. Insgesamt fin-den sich in Lamanas einleitenden Texten Unge-nauigkeiten sowie zahlreiche orthographische und grammatische Fehler, die sich vielleicht einer Über-setzung oder fehlendem Lektorat verdanken. 3

3 Nicht 1583 (16), sondern 1585 wur-den das III. Konzil von Lima und seine »pastoralen Instrumente« ver-öffentlicht. Das Manuskript des »In-forme« (1561) befindet sich nicht im AGI, Patronato 185, sondern 188

(139, korrekt aber 20). Neben Tipp-fehlern wie »Iforme« (21) und »pare-ce« (statt: parecer) (44) sind Autoren-namen falsch geschrieben: Ana María (statt Alicia) Alonso (37–38), Josayne (statt Josyane) Chinese (43–44), Pei-

no (statt Pino) Díaz (46), Hommi (statt Homi) Bhabha (52).

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Otto Danwerth 329

Im zweiten zu besprechenden Buch haben der Historiker Andrés Chirinos und die Linguistin Martha Zegarra 2013 drei Quellen Ondegardos unter dem Titel »Die Ordnung des Inka« ediert, die sie als ein zwischen 1561 und 1571 entstande-nes Werk verstehen (7). Im Mittelpunkt (81–272) steht die auch von Lamana publizierte »Relación de los fundamentos acerca del notable daño que resulta de no guardar a los indios sus fueros« [1571], die nach dem ms. 2821 (BNM) transkri-biert wurde. Parallel dazu wird synoptisch der undatierte und kürzere »Tratado de un cartapacio a manera de borrador que quedó en los papeles del lic. Polo de Ondegardo cerca del linaje de los ingas y cómo conquistaron« (BNM, ms. 3169) auf den geraden Seiten (90–198) abgedruckt. Dieser Text wurde bisher von der Forschung zumeist als unvollständige Kopie des ersten behandelt. Nun können verdienstvollerweise erstmals beide Versio-nen auf einen Blick gelesen werden. Allerdings lautet das erste, titelgebende Wort des Manuskripts (BNM, ms. 3169) nicht »tratado« (Traktat), son-dern »traslado« (Abschri), wie der Rezensent in Madrid hat überprüfen können – ein großer Unter-schied. 4 Dieser Lesefehler durchzieht das gesamte Buch. Lamana hatte in seine Edition den auch von ihm so genannten »tratado« (35) nicht aufgenom-men, aber Varianten notiert. Als dritten Text edie-ren Chirinos und Zegarra unter neuem Titel den »Informe al licenciado Briviesca con las Respuestas a la Instrucción del Rey« [1561] (277–349).

Die Transkription der Manuskripte erscheint mit Ausnahme des genannten Fehlers sorgfältig zu sein. Während die Orthographie des dritten Textes beibehalten wurde, hat man die beiden anderen synoptisch präsentierten Quellen moder-nisiert (18–22) und so ihre Verständlichkeit we-sentlich erhöht. Die Herausgeber geben in den Fußnoten knappe Erläuterungen und Varianten an. Auch die im Jahr zuvor erschienene Edition von Lamana, die aber in der Bibliographie fehlt, wird berücksichtigt. Die Absätze aller drei Texte sind durchlaufend nummeriert, was das Auffinden der im Index (351–394) angeführten Textstellen erleichtert.

In der von Chirinos allein verfassten Einleitung nennt er bisherige Editionen und stellt philologi-

sche Charakteristika der Manuskripte vor (12–16). Danach weist der »Informe« (1561) kaum Fehler und keine Lücken auf; auch werden hier Quechua-Begriffe meist epochenspezifisch korrekt wiederge-geben. Die beiden anderen Quellen seien dagegen fehlerhae Kopien. Chirinos vermutet, dass das Manuskript der »Relación« im Verhältnis zum »Traslado«-Manuskript die letzte und komplettere Version des Textes ist, dass beiden aber ein gemein-sames Original zugrunde liege. Besonderes Augen-merk richtet diese Edition auf die Quechua-Be-griffe und die Schreibweise von Toponymen.

Chirinos versteht unter der »Ordnung des Inka« nur die wirtschalich-politische Organisation. Dass er die religiöse Ordnung des Tahuantinsuyonicht berücksichtigt, führt zu einem verzerrten Bild dieses vormodernen Imperiums. Ohne die Leser in diese komplexe Materie einzuführen, wen-det sich Chirinos sogleich den Gebietseinteilun-gen, ihrer Quechua-Begrifflichkeit und den da-mit verbundenen Tribut-Quoten zu. Ondegardo zeichne sich gegenüber anderen Chronisten durch zwei Erkenntnisse aus (25): (1) Die Organisation aller Orte im Reich korrespondiere mit der Ein-teilung Cuzcos; (2) Die Einteilung in vier Reichs-teile (suyos) und Provinzen sei gemeinsam mit dem Ceque-System dafür genutzt worden, die propor-tionalen Zuteilungen von Arbeitsdiensten oder Tributen zu bestimmen. Nach einer kursorischen Behandlung der Quechua-Termini für die politi-schen Bezirke und ihrer spanischen Äquivalente (z. B. »hunu« für »provincia«) widmet sich der Herausgeber einer »Taguansuyo« genannten Kern-region um Cuzco (35–43). Die diversen Tribut-Arten erläutert der Herausgeber nicht, die Tribut-Verteilung inklusive Zähl- und Rechenweise von Quipus nur punktuell und auf Basis selektiver Literatur. Dies setzt sich bei der Behandlung der inkaischen Ordnung unter spanischer Herrscha (1560–71) fort (49–55). Inwiefern die Vorschläge Ondegardos von Vizekönig Toledo umgesetzt wur-den, wird schematisch beantwortet. Welche seiner Texte Grundlage für toledanische ordenanzas zu Bergbau, Kokahandel, cacicazgo, Tributsystem und Arbeitsdienst (mita) waren, wäre zu prüfen. Die Bibliographie (68–78) ist lückenha und nicht durchgehend aktuell. Viele Autoren sind jeweils

4 Vgl. auch F, L (2006), Na-rrativas problemáticas. Los inkas bajo la pluma española, Lima, 180–181.

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mit nur einem Text, nicht immer dem einschlä-gigsten, genannt. Vor der Bibliographie sind sie-ben teils farbige Karten abgedruckt, welche die erwähnten Territorien – vom Ceque-System Cuzcos über mittlere Provinzen bis zum Tahuantinsuyo – unter Berücksichtigung der von Ondegardo ge-nannten Orte abbilden.

Ingesamt lässt sich resümieren, dass beide be-sprochenen Werke philologisch verlässliche Edi-tionen von Quellen Polo Ondegardos zur Verfü-gung stellen, die dank modernisierter Fassungen dazu einladen, das Werk dieses bedeutenden frühkolonialen Autors in den Anden wieder zu lesen. Während die Auswahl der sechs Texte bei Lamana ausgewogener ist, ermöglicht es die sy-noptische Präsentation bei Chirinos / Zegarra, erst-mals zwei miteinander »verwandte« Kopien von Ondegardo-Texten parallel zu studieren. Trotz die-ser zu begrüßenden editorischen Leistung vermö-

gen die Einführungstexte der jeweiligen Heraus-geber nicht zu überzeugen. Auch nach Erscheinen dieser beiden Quelleneditionen darf man also wei-terhin auf die von Fermín del Pino Díaz ange-kündigte Gesamtausgabe von Ondegardos Werken gespannt sein. In sie könnten weitere Quellen, auch solche aus Notariatsakten, Eingang finden.

Ein Desiderat, das man bei beiden rezensierten Werken vermisst, ist eine gründliche rechtshisto-rische Einordnung dieses juristischen Autors und Akteurs, der wie kein zweiter Ethnohistorie und Rechtsgeschichte der Anden im 16. Jahrhundert in einer Person verbindet. 5 Ein solcher Beitrag könn-te sich nicht zuletzt der Frage widmen, auf welche Weise Ondegardos in der Kolonialzeit zirkulieren-de Manuskripte auf die Herausbildung des Derecho Indiano wirkten.

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Leticia Vita

¿Por qué hablar de Culturas Constitucionales? Nuevas perspectivas sobre las revoluciones atlánticas*

Este libro es el producto de una serie de refle-xiones que tuvieron lugar en la ciudad de Münster en mayo de 2011 y que convocó a distintos espe-cialistas en torno a las llamadas revoluciones del «mundo atlántico» y las ideas de representación y Constitución que en ellas circularon. El concepto que nucleó esta iniciativa fue el de «culturas cons-titucionales» y es también el eje que organiza las distintas contribuciones de esta obra. ¿Por qué hablar de culturas constitucionales?

Este concepto parte de la idea de que existe una

dimensión simbólica que toda Constitución con-lleva y que es necesario abordar para comprender cómo el orden político y las ideas que se inscriben en la Constitución son transmitidos. Más allá de algunos usos esporádicos, se trata éste de un con-cepto novedoso (21) que solo muy recientemente se ha comenzado a utilizar en el ámbito académico.

Precisamente por eso esta obra significa un importante aporte para la reflexión histórico jurí-dica e histórico cultural. A partir de distintas contribuciones se ejemplifica cómo es posible re-

5 Nur Hampe Martínez reißt in einem knappen Epilog (120–121) diese Per-spektive an und verweist hier auf Renzo Honores Gonzales. Letzterer stellte dem Rezensenten freundli-cherweise zwei einschlägige Aufsatz-Manuskripte zur Verfügung, die in Kürze erscheinen sollen: »Colonial

Legal Imagination: The Making and Creation of Customary Law in the Andes, 1550–1600« und »El licencia-do Polo Ondegardo y el Derecho Consuetudinario en el Perú del siglo XVI«.

* H, S, U B, K D, H-U T(eds.), Constitutional Cultures. On the Concept and Representation of Constitutions in the Atlantic World, Newcastle Upon Tyne: Cambridge Scholars Publishing 2012, 485 p., ISBN 978-1-4438-4168-9

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Leticia Vita 331

flexionar sobre diferentes aspectos de la simbología constitucional. Así es como la obra cumple con sus dos objetivos. El primero, el de explorar las simili-tudes y diferencias entre los procesos revoluciona-rios del mundo atlántico, advirtiendo sobre el error de caer en una mirada tan simplificada como frecuente acerca de la circulación de conceptos entre ambos lados: las ideas políticas y los concep-tos constitucionales en América Latina no han sido una mera adopción de ideas y conceptos prove-nientes de Europa y Estados Unidos. «Political ideas circulated in the Atlantic World; nevertheless, these ideas were applied and oen not even understood in the same manner in the whole region» (16). El proceso es mucho más complejo y no unidireccional y el concepto de culturas constitucionales permite dar cuenta de eso.

El segundo objetivo en el que esta obra se embarca es el de brindar a la historiografía actual un enfoque que permita un análisis diacrónico de los distintos mecanismos de legitimación y de integración que tienen lugar en los procesos cons-titucionales. El de cultura constitucional podría ser utilizado así como un «concepto puente» entre distintas épocas y culturas, y esto es también lo que las distintas contribuciones de la obra tratan de ejemplificar. Aunque, como sucede con muchas obras colectivas, no todos los trabajos lo logren con la misma profundidad.

El libro se compone de cuatro secciones. En la primera (Constitutions in the Atlantic World, 21–126) se presenta el concepto de cultura consti-tucional y se lo analiza en los casos de cuatro constituciones (USA, el Imperio español, México y Francia) que cobraron importancia durante la época de las revoluciones atlánticas. Aquí el trabajo de Hans Vörlander se propone definir la noción de cultura constitucional a partir de la utilización de un concepto que vincula los de Constitución y cultura: el de cultura política. Esta noción, que utilizaron por primera vez los politólogos norte-americanos Almond y Verba en 1989, permitiría identificar que la cultura es lo que hace que las instituciones y las prácticas sociales sean lo que son. Y aquí es donde cree el autor, el concepto de cultura constitucional hace una contribución al estudio constitucional, porque todas las constitu-ciones tienen un «cultural grounding». Esto significa que además del texto constitucional, existe un contexto cultural que lo excede y que tiene que ver con su formulación, su interpretación y desa-rrollo. Asimismo, esto se comprobaría en el hecho

de que un mismo texto constitucional adquiere diferentes significados. Así, determinadas diferen-cias en la interpretación de conceptos constitucio-nales y principios pueden ser explicadas, hasta cierto punto, por las divergencias y las particulari-dades culturales.

En la misma sección, José Portillo analiza la Constitución de Cádiz de 1812 enfatizando el «carácter atlántico» de este texto pero al mismo tiempo destacando su perfil profundamente colo-nialista y racista. Jaime Rodríguez parte también de esta Constitución pero como clave de lectura de la Constitución mexicana de 1824, con la que en-cuentra importantes coincidencias. Klaus Deinet, por su parte, analiza la cultura constitucional francesa del siglo XIX a la luz de las consecuencias de la revolución de 1789 y finalmente, Andreas Biefang propone una mirada analítica sobre los cuatro trabajos que componen esta sección y pro-pone algunos otros puntos para seguir analizando.

En la segunda sección el libro (Celebrations of the Constitution, 129–224) las contribuciones se abo-can al análisis de las celebraciones de la Constitu-ción y a partir de ello se analizan las culturas constitucionales en México y en Francia. Una de las cuestiones que estos trabajos demuestran es la de cómo estas festividades no sólo eran usadas para informar a la población acerca de un nuevo orden, sino, especialmente, para persuadirlos de su legiti-midad y estabilidad. En esa línea se inscriben los trabajos de Katrin Dircksen, que analiza las festivi-dades constitucionales en México desde la Consti-tución mexicana de 1824 a su restauración en 1846, el de Christina Schröer, sobre las fiestas de la Constitución en Francia de 1792 a 1799 y el de Armin Owzar, que analiza las celebraciones polí-ticas en general y aquellas realizadas sobre la Constitución en Francia en particular, poniendo en cuestión su efectividad como medio de integra-ción política en el caso de sociedades fuertemente fragmentadas. Finalmente, Hans-Ulrich Thamer comenta la sección enfocándose en la relación entre los viejos y los nuevos elementos en las celebraciones constitucionales demostrando que las viejas tradiciones no siempre se desvanecieron al aparecer otras nuevas.

Los trabajos de la tercera sección (Representa-tions of the Constitution and Constitutional Bodies, 227–346) se concentran en el estudio de símbolos y representaciones de la Constitución en los Estados Unidos, los Estados alemanes y México. Vivian Green Fryd analiza los gravados y pinturas que

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332 ¿Por qué hablar de Culturas Constitucionales? Nuevas perspectivas sobre las revoluciones atlánticas

representan a la Constitución, la Justicia y la Libertad en el Capitolio de los Estados Unidos, Martin Knauer se concentra en el temprano cons-titucionalismo del sur de los estados alemanes y la relación entre los símbolos y la impronta monár-quica de esos primeros textos, Sebastian Dorsch explora las representaciones detrás del Congreso de Michoacán, sus diputados y la peculiaridad de su cultura constitucional y Ulrike Bock se ocupa de la falta de un poder integrador en la Constitución mexicana de 1824. Finalmente, Annick Lemperie-re, analiza en su comentario sobre la sección las similitudes y diferencias que aparecen entre los casos analizados.

Finalmente, la quinta sección (The people as Sovereign: Elections, 349–459) presenta una serie de ponencias sobre la cuestión de las elecciones y su significado simbólico. A partir del caso argenti-no, Marcela Ternavasio muestra cómo por mucho tiempo América Latina no fue considerada como una región envuelta en los procesos de las revolu-ciones atlánticas. Desde su perspectiva esto obedece al hecho de que el cambio revolucionario, a dife-rencia del caso norteamericano o europeo, no llevó a una consolidación democrática. Pese a este olvido de la academia la autora demuestra que en el Río de la Plata, aún antes de que se pudiera hablar de una verdadera democracia, el sufragio y la repre-sentación política tuvieron importancia. Malcom Crook se ocupa, por su parte, del caso de la cultura electoral en Francia entre 1814 y 1848 en el con-texto de una monarquía constitucional. Silke Hen-sel analiza el significado simbólico de las elecciones durante el siglo XIX en México y Hedwig Richter se aboca a la cuestión de la registración para el voto en el caso norteamericano y sus consecuencias

excluyentes. Finalmente Ulrich Mücke nos recuer-da en su comentario que la carga simbólica de las elecciones nos habla de la necesidad de diferenciar conceptualmente las ideas de elecciones y demo-cracia.

La obra que reseñamos ofrece, en su conjunto, buenas razones para utilizar el concepto de culturas constitucionales. Como mínimo podemos destacar tres, que son especialmente de interés para los historiadores del derecho. El primero de ellos es el que destaca Andreas Biefang. Este concepto «libera» a la historia constitucional de la «prisión» del pensamiento jurídico y la integra en el contexto más amplio de la historia cultural. Las Constitu-ciones pueden ser así analizadas como parte de prácticas sociales y culturales y no solamente como circunscriptas al fenómeno jurídico.

En segundo lugar, la noción de cultura consti-tucional permite ser utilizada como puente entre tiempos y culturas. Se trata de un concepto que puede viajar en tiempo y espacio para explicar tanto el orden como el cambio constitucional. En especial, se presenta como una noción particular-mente productiva en los casos de crisis y caída constitucional.

Por último, y con especial relevancia para ana-lizar el caso Latinoamericano, esta noción pone de manifiesto que la circulación de conceptos e ideas políticas no se da de una manera unidireccional, sino que es mediada simbólicamente. Los concep-tos o las ideas políticas no se «trasplantan» de un país a otro, sino que son asumidos o rechazados por distintas culturas constitucionales.

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Leticia Vita 333

Pamela Alejandra Cacciavillani

A labyrinth of dissimilar senses*A labyrinth is an intentionally complex place

having a special purpose: to confuse all those who want to enter it. An identical purpose was discov-ered by the author in the last constitutional reform in Mexico. Much like Dedalo revealed to Ariadna the secret of the labyrinth of Crete, Melgarito Rocha attempts to reveal the secret of this reform.

The study of an indigenous constitutional re-form in contemporaneous times calls for a new form of analysis which has to go beyond the legal monism conception. Alma Guadalupe Melgarito Rocha, the author of the acclaimed Legal Pluralism: The Hidden Reality, considers that nowadays a critical attitude towards the legal system is neces-sary when it comes to understanding how different normative orders can coexist in a common terri-tory. As the author well observes, despite the need for a review of the law, the steps forward have been scarce. This is one of the reasons why the work developed in this book is so significant, but per-haps the most relevant aspect of this research is the author’s approach.

Melgarito Rocha’s research on indigenous con-stitutional reform in Mexico in 2001 poses a legal discourse analysis from one multidisciplinary per-spective by means of a thorough study of the second constitutional article connotations. For this reason, the author works from critical legal think-ing, language philosophy and semiotic.

The book is structured in two parts. The first part, called »Planteamiento Teórico. La crítica jurídica como análisis del discurso«, has two chapters and addresses legal critical thinking from a theoretical standpoint. Chapter one traces several currents of legal critical studies and then shares the author’s conception about them. Specifically, Alma Melgar-

ito asserts that it is not possible to understand critical currents under a common title. Neverthe-less, she has found a connection between these currents and their ability to unveil what is under normative structure. Beyond this connection com-mon to different currents, the author adheres to the newest guidelines regarding the trends of the Alternative Law in a strict sense. From this per-spective, it has been advocated the defense of systems that coexist with modern systems in the same territory. Legal Review Epistemological Ap-proaches, Legal Review inspired on Neo Marxism, and Legal Semiology, are the result of the influence of authors such as Antonio Carlos Wolkmer, Oscar Correas, among others.

Second chapter lays the methodological and epistemological basis. Melgarito Rocha first defines science. She depicts it as a kind of discourse which works with an empirical method and it is more prestigious than non scientific knowledge. In her view, law is a prescriptive discourse. Therefore, the role of legal science is to analyze the linguistic form of the norms. In this sense, she makes a special emphasis on the importance of addressing »nor-mative discourse« with an empirical method. This chapter continues with the treatment of certain theoretical concepts which are considered essential by the author.

One of these concepts is Language. In the author’s view, language is a communicative tool but it also bears a special relationship with the ideology. She states that language is able to trans-mit, reproduce and legitimize ideology. According to Jurij Lotman, another special feature of Lan-guage is the ability to create models. In this sense, Melgarito Rocha regards language as the first

* A G M R, Pluralismo Jurídico. Análisis crítico-semiológico de la relación estado – pueblos indígenas (Derecho y Sociedad), Mexico, D. F.: Universi-dad Nacional Autónoma de México, Centro de Investigaciones Inter-disciplinarias en Ciencias y Humanidades 2012, XV, 146 p., ISBN 978-607-02-3505-4

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334 A labyrinth of dissimilar senses

»standardizing system of the world«. Legal lan-guage is also a »standardizing system« since it works with deontic operators.

The book delves into the question: What is the Law? Melgarito Rocha concludes that it is a dis-course aimed at modifying the individual’s behav-ior by means of threat. She explains that the production of the Law is to be done by qualified officers, who have to serve according to a proce-dure and in an authorized sense. Here, we can see the difference between modern law and the com-munity law. In the latter, we witness another form of violence, non physical, which has made it possible for the continuity of community life. In these non capitalist societies there is not a qualified group which produces the law because its genesis lies in the community.

In reference to legal text, Melgarito Rocha ob-serves that there are norms and other kind of statements which do not order behavior: they establish meanings. They are essential in that they serve as ideological foundation of legal texts and, hence, contribute to the social acceptance of the legal discourse as obligatory ruling and eventually to the reproduction of the legal system. The author then digs into the concept of normative system. Alma Melgarito addresses the Theory of Law which explains the idea of systematization based on va-lidity. From Kelsen’s point of view, the concept of hypothetical norm enables the identification of a legal system. This represents the idea of acknowl-edgment of legal orders which is essential because they need to be accepted as obligatory. In this point, Oscar Correas’s critical legal thinking is useful because it shows how different legal systems can regulate one sole territory.

The last section of this chapter depicts various theoretical notions which, according to the author, are mandatory if we are to analyze indigenous legal discourse. Melgarito Rocha illustrates the para-digm of legal monism by means of two character-istics: on the one hand, a State with power over a specific territory and, on the other hand, the monopoly of legal production. These concepts are not present in indigenous communities. Therefore, it is of vital importance to study these communities from a standpoint that considers the idea of coex-istence of different legal orders in one territory. To address these two factors, the author presents Legal Pluralism as the most adequate way to do it. Finally, the idea of alternative normative is stated because it enables the separation of other laws

from the Mexican one. In addition to this expla-nation she remarks that the relationship between these two legal systems calls for pacts among equals.

The second part of the book, called »Crítica jurídica como análisis del discurso. La reforma de 2001 al artículo segundo constitucional en materia indígena«, comprises two chapters; the first of them describes the hypothesis of Melgarito Rocha’s re-search: in the second article of Mexican constitu-tion there is a labyrinth of dissimilar senses which can only be untangled by means of semiologic analysis. The author illustrates briefly on the con-text in which the constitution was passed, partic-ularly as far as indigenous subjects are concerned. In her view, the reform consisted of general prin-ciples and rights with the sole purpose of imposing only one voice for both nation and indigenous communities. At the same time, the author infers a relation of domination from the Mexican state towards indigenous communities. She concludes that this statement of rights masks liberal ideology, and it is a strategy to spread capitalist law.

In the last chapter the author analyzes the ideological senses which are communicated from the second constitutional article. Before turning to this assignment the author suggests two categories of legal pluralism »trans capitalist« and »legal pluralism for global governance« as the appropri-ate theoretical approach to understand the position of indigenous law systems versus systems of capital-ist societies. By analyzing the text in question, the author recognizes a relationship among the follow-ing semiologic systems, the legal monism, the daily life and the one related to the state and indigenous communities. Domination of the State towards the indigenous communities is the common factor among them. The peculiarity is that this ideology of domination is connoted. In this way, it becomes necessary to go beyond the denotative semiotic of inclusion latent in the Mexican nation as being unique and indivisible to observe that this con-notes the domination of the communities.

The text reflects on an innovative point of view inspired from Marxism, anarchism and even psy-choanalysis. The aim of the research is to be a theoretical and practice tool to analyze indigenous normative reforms. Accordingly, we can use this point of view to study other cases in Latin America.

The book has various positive traits, but it also has its down side too. Specifically, when the author explained the context of Mexican reform she omit-

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Pamela Alejandra Cacciavillani 335

ted the continental context »The new Latin Amer-ican constitutionalism«. Additionally, the research leaves aside the study of some constitutional ar-ticles that directly or indirectly have a connection with the indigenous matter. Last but not least, the author highlights the limitations of this reform but ignores its positive aspects. The book is recom-mendable for those who want to question the

ideological sense of legal text which regulates indigenous or another minority group from a plural standpoint. Nevertheless, the theoretical analysis can be obvious for readers who have legal previous knowledge.

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Roberto Gargarella

Explicando el constitucionalismo latinoamericano*

Por qué es que países con historias y trayectorias políticas similares, situados en la misma región, y a veces en épocas similares, llegan a promover reformas constitucionales tan diversas? Qué explica las similitudes y las diferencias que encontramos, dentro de la historia latinoamericana, en materia de creación constitucional? En Making Constitu-tions. Presidents, Parties and Institutional Choice in Latin America, el investigador argentino Gabriel Negretto ofrece un estudio comparativo capaz de explicar los orígenes de diseños constitucionales particulares, y por lo mismo, diseños instituciona-les que en ocasiones se parecen tanto, y en otras terminan resultando tan diversos. Su estudio se apoya en datos provenientes de la historia latinoa-mericana, desde el año 1900 y hasta la actualidad. Las herramientas que utiliza el autor para funda-mentar sus conclusiones son diversas, incluyendo el análisis comparado, la historia, y una amplia base de datos colectada durante años.

Según nos dice el autor, algunas teorías del cam-bio institucional – provenientes sobre todo del campo económico y agrupadas en el libro como teorías cooperativas – sugieren que los reformadores tienden a perseguir objetivos cooperativos, cuando dan inicio a un proceso de cambio constitucional. Mientras tanto, otras teorías – más comunes en la ciencia política, conocidas como teorías distributivas

– consideran que los reformistas se encuentran motivados fundamental o exclusivamente a favo-recer cambios que contribuyan al objetivo de ganar elecciones e influencia sobre el diseño de políticas públicas.

Confrontando a tales aproximaciones unidi-mensionales, Negretto propone una teoría sobre la elección constitucional de dos niveles. El autor parte de la naturaleza dual de las Constituciones, que incluye estructuras cooperativas y de poder. Dicho marco institucional – agrega – provee de incentivos para que se desarrollen iniciativas diri-gidas tanto a asegurar la mayor eficiencia de la Constitución, como reformas sesgadas a favor del partido más poderoso. Según Negretto, dentro de dicho esquema complejo (que sirve tanto como mecanismo de coordinación como de mecanismo distributivo), una lógica dual de elección y diseño constitucional parece resultar más plausible como fuente explicativa de los cambios que se introducen en el texto. Así, frente a un proceso reformista, la elección de un particular diseño institucional esta-ría marcada tanto por consideraciones de eficien-cia, como por pretensiones más directamente par-tidistas. La existencia de motivaciones de dos tipos muy diferentes – agrega el autor – no necesita ter-minar con la producción de textos constitucionales contradictorios, ya que ellas pueden – y suelen –

* N, G L., Making Constitutions. Presidents, Parties, and Institutional Choice in Latin America, Cambridge: Cambridge University Press 2013, XII, 283 p., ISBN 978-1-107-02652-0

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orientarse sobre aspectos diferentes de la Constitu-ción. Esto sería así, ya que los diferentes actores comparten el interés de construir una Constitución eficiente en lo que hace a la organización general de la misma, de modo tal de favorecer un orden político estable y que funcione. Al mismo tiempo, los intereses partidistas tienden a hacer que quienes tienen la oportunidad de influir en el diseño cons-titucional adopten instituciones que les aseguren ventajas particulares.

El mayor o menos impacto de las actitudes de cooperación o partidistas, dependen de diversos factores pero, en particular, nos dice Negretto, del evento particular que dispara el cambio constitu-cional. La presencia de las primeras – y así, de diseños institucionales marcados por consideracio-nes de eficiencia – tendería a primar cuando las elites políticas del caso promueven los cambios luego de un proceso de crisis que incluye, típica-mente, demandas populares a favor de modifica-ciones estructurales. En tales condiciones, en don-de prima la influencia de la performance pasada de un cierto régimen constitucional, resulta esperable que se promuevan arreglos institucionales diferen-tes de los que los actores hubieran alentado desde una posición de mayor hegemonía. Algo similar tiende a ocurrir en situaciones de mucha incerti-dumbre electoral, que también pueden impactar negativamente sobre los intereses partidistas más definidos, forzar el diseño de reformas más equi-tativos entre los diversos actores. Casos como el de Ecuador 1998 y Colombia 1991 ilustrarían la situación de una reforma guiada fundamental-mente por objetivos de eficiencia. Otras situaciones que se han dado en la historia latinoamericana, se distinguen en cambio por el mayor peso de los intereses partidistas y el poder relativo de los reformadores. En ellas, la reforma tiende a quedar marcada por la presencia del partido que cuenta con mayor poder relativo al momento de hacerse la reforma (partido que tiende a ser el que controla o que probablemente va a controlar la Presidencia de la Nación). Reformas como la de 1949, en la Argentina, muestran el dominio del partido del Presidente, y así también una menor necesidad de negociación de ese grupo político con las fuerzas de la oposición. El resultado se vincula entonces, esperablemente, con Constituciones modificadas bajo el impacto de intereses partidistas de más corto plazo.

En varios sentidos, el trabajo de Negretto es único: tanto por su objeto; como por la dimensión

y el detalle de la comparación que aborda; como por el foco, que se extiende a varios países de América Latina, en lugar de pretender generalizar a partir de unos pocos casos. Su carácter singular se deriva también de la excepcional combinación entre un cuidadoso examen cuantitativo, y un fino conocimiento de la historia legal de la región.

Dada su ambición, sin embargo, el estudio enfrenta riesgos significativos. El primero es el de proponer una aproximación que, por su peculiar dualidad, amenaza con convertirse en irrefutable: si el resultado de la reforma termina con un poder más concentrado, es que primaron los impulsos partidistas; si en cambio el poder se descentraliza, es porque no primaron, ganando espacio las ten-dencias a la cooperación. Cuándo es que podría decirse que la explicación no ha funcionado? Su estudio descansa, por otra parte, sobre supuestos que merecen ser precisados. Por caso, cuándo es que puede decirse que una reforma constitucional favorece al partido político dominante o de más peso? Y cuándo es que priman, en cambio, las tendencias a la cooperación? Piénsese, por ejemplo, en la reforma de la Argentina, de 1994. En dicho caso, podría decirse, el Presidente en ejercicio obtuvo lo que pretendía – el derecho de reelección – a cambio de reformas menores, que pretendieron «compensar» a la oposición. El ejemplo es revela-dor de los inconvenientes que afectan al análisis de Negretto. Para el autor, la reforma en cuestión es una reforma «híbrida». Sin embargo, ese juicio resulta de una evaluación problemática de los hechos en juego, derivada de una cierta desaten-ción sobre la historia, y de una mirada más estática que dinámica sobre la práctica política. Ocurre que tanto la historia como la dinámica política muestran de qué modo los Ejecutivos poderosos en América Latina, en momentos que no son de crisis profunda, consiguen que sea su autoridad la que prevalezca (ya sea, gobernado por medio de decretos; pasando por encima de los límites que se le quieren imponer; o presionando sobre la justi-cia). De qué modo puede decirse, en contextos tales, que las ventajas obtenidas por el Ejecutivo (i. e., el derecho a la reelección) ha quedado com-pensado por cambios orientados en dirección apa-rentemente contraria (i. e., y como ocurriera en la Argentina, la introducción de un Consejo de la Magistratura, o de una Sindicatura General que al poco tiempo el Ejecutivo – y como era esperable – logra «torcer» a su favor)? La cuestión, en todo caso, exige de mayores precisiones conceptuales, y

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de un análisis más sensible en términos históricos y dinámicos.

Las observaciones realizadas, de todos modos, de ningún modo cuestionan la importancia y el valor del trabajo de Negretto, que desde su publi-

cación representa un material de lectura necesario para cualquier estudio que quiera fijar su atención al constitucionalismo de América Latina.

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Ulrich Jan Schröder

Verfassungsvoraussetzungen – rechtshistorisch betrachtet*

Der Begriff von den »Verfassungsvoraussetzun-gen« wurde von Herbert Krüger geprägt. Sie liegen in der »geistigen Grundlage« und einer »adäquaten Gestimmtheit, damit das [verfassungsrechtliche] Programm sich verwirklicht«. 1 Hier bricht sich eine pathetische Sprechweise Bahn: In diesem Sinne geht es um die Grundlagen der Verfassung und in gewisser Weise um mehr als nur das, was Recht ist. Auf dieser rhetorischen Wellenlänge sendet das sog. Böckenförde-Diktum 2 und mit dieser Konnotation hat sich die Vereinigung der Staatsrechtslehrer im Jahr 2008 einer »Erosion von Verfassungsvoraussetzungen« angenommen. 3 Da-neben gibt es auch eine nüchtern-rechtsdogmati-sche Sprechweise, die zum Ausdruck bringt, dass eine Aussage keine verfassungsrechtliche Verbind-lichkeit erreicht und insofern weniger ist als Recht. Unklar an der Begriffsbildung Verfassungsvoraus-setzung ist bereits, ob es sich um dasjenige handelt, was von der Verfassung respektive dem Verfas-sungsgeber normativ vorausgesetzt wird (etwa die teloi von Normen), oder um dasjenige, was der Verfassung de facto vorausgesetzt wird. Letzteres wird bisweilen auch als »Verfassungserwartung« bezeichnet. In die pathetische Bedeutung könnte

nahezu alles eingelesen werden, auf dem die Ver-fassung aufruht: der status quo zur Zeit der Ver-fassungsgebung, Wertesystem, kulturelle Wurzeln, anthropologische Grundkonstanten. Schon in die-sem semantischen Spannungsfeld läu der Begriffder Verfassungsvoraussetzung Gefahr, an Unter-scheidungskra zu verlieren. Darüber hinaus büßt er ungemein an Trennschärfe ein, wenn sogar die Akzeptanz des Rechts und der Regelungsgrund bzw. -gegenstand der Verfassung in den Begriffeinbezogen werden. 4

Rechtshistorisch sind die Verfassungsvorausset-zungen in dreifacher Hinsicht relevant: Erstens mag man fragen, welche Bedeutung sie zu frü-heren Zeiten hatten und welche wissenschaliche Behandlung sie seinerzeit erfuhren. Zweitens mö-gen die Voraussetzungen des Grundgesetzes gerade deswegen rechtlich relevant sein, weil sie eine his-torische Tiefendimension haben. Drittens schließ-lich gibt es ein historisch-kulturwissenschaliches Interesse an den historischen Wurzeln verfassungs-rechtlicher Normen auch dann, wenn jene für die Auslegung keine Rolle mehr spielen. Alle diese Spielarten rechtshistorischer Bezugnahme finden sich in dem Band »Verfassungsvoraussetzungen«,

* M A, R K, S K, J P S (Hg.), Verfassungsvoraus-setzungen. Gedächtnisschri für Winfried Brugger, Tübingen: Mohr Siebeck 2013, 832 S., ISBN 978-3-16-152577-3

1 Verfassungsvoraussetzungen und Verfassungserwartungen, in: Fest-schri für Ulrich Scheuner, 1973, 285 (287).

2 E-W B, Die Entstehung des Staates als Vorgang der Säkularisation, in: Recht, Staat, Freiheit, 1991, 92 (112). Vgl. auch U J S, Wovon der Staat lebt, in: JZ 2010, 869 (873 f.).

3 VVDStRL 68 (2009); die Berichts-gegenstände waren: Religiöse Frei-heit als Gefahr?, Soziale Gleichheit – Voraussetzung oder Aufgabe der Ver-fassung?, Demografischer Wandel

und Generationengerechtigkeit, Ero-sion demokratischer Öffentlichkeit?

4 C M, in: VVDStRL 68 (2009) 47 (51 f.) trennt Vorausset-zung und »Sachverhalt«.

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der Gedächtnisschri für den 2010 verstorbenen Heidelberger Staatsrechtslehrer und Rechtsphilo-sophen Winfried Brugger. Hier wird nur auf die in diesem Zusammenhang interessierenden Beiträge eingegangen.

Christian Baldus fragt nach Verfassungsvoraus-setzungen in Rom. Nachdem er den Verfassungs-begriff für Rom (Republik und Prinzipat) relati-viert hat (keine »klar abgegrenzte Formalordnung, die außerrechtlichen Voraussetzungen gegenüber gestellt werden könnte«), geht er auf den »langen Schatten« Theodor Mommsens ein. Mommsen habe die komplexe politische Praxis in die Ver-fassung projiziert, die Wirklichkeit als Rechtsge-bilde interpretiert und damit auch »Verfassungs-voraussetzungen« zu Unrecht als Verfassungsrecht verstanden. Als Voraussetzung lässt sich aber auch die gesamte Soziologie der Machtstabilisierung begreifen. Baldus folgt dieser Linie und fragt, inwieweit fachjuristische Leistungen geeignet wa-ren, den Ruhm eines Magistratsbeamten, insbe-sondere den eines Prätors, und den capital symbo-lique (Pierre Bourdieu) seiner Familie zu mehren. Inwiefern die Fortbildung des Privatrechts durch den Prätor eine Funktionsbedingung der römi-schen Verfassung war, lässt Baldus angesichts des Forschungsstands offen.

Die mögliche historische Tiefendimension einer gegenwärtigen Verfassung lässt sich etwa im Fall der Religionsfreiheit ausloten, deren Ursprung im Nebel der Geschichte liegt: Ist sie ein Kind der Aulärung – wobei innerhalb der Aulärung wiederum christliche oder antireligiöse Strömun-gen verantwortlich sein können – oder ist Reli-gionsfreiheit aus einem christlichen Verständnis heraus gewachsen (Georg Jellinek hat bekanntlich auf die Reformation verwiesen)? Heiner Bielefeldtirritiert diese Wahrnehmungsgewohnheit, indem er mit Moses Mendelssohn (1729–1786) an einen jüdischen Vordenker der Religionsfreiheit erinnert. Bielefeldt überlässt ausdrücklich den Fachhistori-kern die Klärung der Frage, welche historischen Entwicklungen tatsächlich zur Ausbildung und Stärkung der Religionsfreiheit beigetragen haben. Er will die Vielfalt der »Wege zur Religionsfreiheit« aufzeigen, einen weiteren »Ursprungsmythos« hin-zufügen und wendet sich damit gegen eine christ-liche oder antireligiöse Vereinnahmung der Reli-gionsfreiheit. Ihre Geltung dürfe nicht an einen solchen Kontext gebunden werden. Dies sei mit dem »Universalismus der Menschenrechte systema-tisch unvereinbar«. Einerseits wird hier sichtbar,

dass nationale historisch-kulturelle Voraussetzun-gen dem Ideen-Transfer auf die Ebene des Völker-rechts mindestens hinderlich sein können. Ande-rerseits wird eine Gegenstrategie in der Suche nach Multikausalität und ideengeschichtlicher Polypho-nie gesucht. Das macht aber die den Fachhistori-kern überlassene Frage nach der tatsächlichen Wirkungsgeschichte nicht entbehrlich. Und der Jurist muss erklären, warum es auf die tatsächlicheWurzel der Religionsfreiheit für deren heutiges Verständnis nicht ankommen soll.

Eine solche Loslösung der Verfassungsausle-gung von den historischen Voraussetzungen der Verfassung verträgt sich prima facie schlecht mit der »Geschichtlichkeit des Rechts«, die im »Ant-wortcharakter der Verfassung« zum Ausdruck kommt. Paul Kirchhof skizziert diese Auffassung Bruggers und fügt hinzu, dass die friedensstiende Funktion einer Verfassung gerade auch dadurch wirksam wird, dass prekärer Streitstoff – wie die Frage nach der richtigen Religion – ausgeklam-mert bleibt. Staatliche Neutralität und Religions-freiheit bilden damit zwar eine Antwort auf histo-risch gewachsene Konstellationen und Konflikte, doch liegt diese Antwort auf einer anderen, »ahis-torischen« Ebene.

Symptomatisch für dieses Verhältnis des Ver-fassungsrechts zu seinen Voraussetzungen ist auch die Studie Rainer Keils über das Verhältnis von »Recht und demokratischer Tugend«. Den Ausfüh-rungen über die Bedeutung der Tugend bei Aristo-teles, Machiavelli, Spinoza, Montesquieu, Jefferson und den Trennungsthesen von Hobbes und Kant folgen nur kurze Überlegungen zu aktuellen Nach-wirkungen und Konsequenzen (etwa: Gesinnungs-prüfungen seien kontraproduktiv). Am Grundge-setz scheinen ideologisch vorgefasste Ansichten über die Relevanz staatsbürgerlicher Gesinnung nur so abzuprallen. In dieser Trennung des Rechts von der den Rechtsstaat tragenden Gesinnung liegt zunächst ein Rationalitätsgewinn. Es ist auch un-richtig, dass die staatsbürgerlichen Tugenden da-mit preisgegeben werden. Gerade in der »Unge-zwungenheit« der positiven Einstellung der Bürger zu ihrem Gemeinweisen liegt das allergrößte Po-tential. Die von Keil nur angerissene Frage nach der Implementierung von »demokratischen Tugen-den, bürgerschalichem Urteilsvermögen und En-gagement« in das Bildungswesen ist daher auch von verfassungsrechtlichem Interesse.

Ein wichtiger Grund, warum das Verfassungs-recht nicht auf eine staatsbürgerliche Gesinnung

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»hinarbeitet«, ist der einfache Umstand, dass sie bislang eine reichlich vorhandene Ressource war. Dies hat auch mit dem Zusammenhalt des Ge-meinwesens zu tun. Dieser lag in Zeiten des Nationalstaats in der – in welcher Hinsicht auch immer bestehenden – »Homogenität« des Staats-volks. 5 In der pluralistischen, multikulturellen Gesellscha fällt dieses Reservoir selbstverständli-chen Einverständnisses weg, oder man muss neue Bezugsgrößen finden. Rolf Grawert untersucht Jo-hann Gottfried Herders (1744–1803) Begriff der Nation auf dessen Bedeutung als einheitsstiendes Band. Um die Einbindung der Nation in einen Staat sei es Herder vorrangig nicht zu tun gewesen. Eine Ordnungskra (Grawert) sah er dennoch in ihr. Die »humanitär« verbundene Nation werde durch Sprache, Schri und Geschichte zusammen-gehalten, sei aber mehr als nur eine Sprachnation. Aus dem Denken in Sprache folge der »National-Geist«. Doch sei die Nation nur eine »Variation der Menschheit«, der Kern der Nation (die Ge-selligkeit) läge in der Familie. Grawert sieht Her-ders Begriff der Nation als anschlussfähig für eine europäische Gemeinscha. Die »Verfassungs-voraussetzung« Staat 6 (Staatsvolk bzw. homogenes Staatsvolk) ist in dieser herderschen Lesart kein Souveränitätspanzer, der die anderen Nationalstaa-ten auf Abstand hält.

Die Befassung mit (historischen) Konzeptionen von Volk, Nation und Homogenität ist auch für die Auslegung des Grundgesetzes zweckmäßig, wenn man mit dem Bundesverfassungsgericht annimmt, dass die Homogenität ein Element einer gegen-über der Europäischen Union integrationsfesten »Verfassungsidentität« sein soll. 7 Es ist aber gerade wieder diese Verrechtlichung eigentlich nicht-nor-mativer Voraussetzungen des Staatslebens, welche Anstoß erregt. Und so wäre es nicht ganz abwegig,

dem Gericht in Karlsruhe denselben Vorwurf zu machen, den die Geschichtswissenscha gegen-über dem Staatsrecht Theodor Mommsens erhebt: Es ist nicht alles Recht, was für das Recht erheblich ist.

Die Kategorie der Verfassungsvoraussetzungen ist ein Sammelbecken. Der dogmatische Wert der Kategorie ist begrenzt. Der Verfassungsrechtler kommt nicht umhin, die konkreten Anknüpfun-gen im Grundgesetz ausfindig zu machen. Insbe-sondere die teleologische Verfassungsauslegung wird in kleiner Münze gegeben: Die Grundrechte werden, jedenfalls vom Bundesverfassungsgericht, einzeln und nicht vor dem Hintergrund einer Grundrechtstheorie auslegt; Staatsstrukturprinzi-pien wie der Rechtsstaat werden »summativ«, also in der Summe von Einzelregelungen, und nicht »integral« verstanden; die Kompetenzvorschrien – für Gesetzgebung und Verwaltung sowie die Finanzverfassung – sollen in erster Linie formales Recht sein. Die teleologische Verfassungsausle-gung lebt gleichsam im Exil. Wenn aber doch einmal eine Verfassungsnorm – etwa das Demo-kratieprinzip in der Lissabon-Entscheidung des Bundesverfassungsgerichts – integral, urwüchsig und staatsphilosophisch ausgedeutet wird, darf der Verfassungsrechtler nicht hilflos am Rande stehen. Über den möglichen Einfluss historischer Konzepte auf die gegenwärtigen Rechtsbegriffe muss er Rechenscha ablegen können. Allerdings mag auch – wie im Fall der Religionsfreiheit – in Betracht zu ziehen sein, dass die Vielzahl möglicher historischer Herleitungen und Legitimationsstra-tegien eine historische Deutung gleichsam neutra-lisiert.

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5 Zur Ideengeschichte R G, Homogenität, Identität, Souveräni-tät. Positionen jurisdiktioneller Be-griffsdogmatik, in: Der Staat (2012) 189ff.

6 Vgl. H. K (Fn. 1) 293ff.7 Vgl. BVerfGE 123, 267 (358 f.) – Ver-

trag von Lissabon; BVerfGE 89, 155

(186) – Vertrag von Maastricht, mit Hinweis auf Hermann Heller. Krit. U J S, Staatlichkeit ist kein Schicksal. Der deutsche Staat zwischen Schicksals-, Werte- und Rechtsgemeinscha, in: Osnabrücker Jahrbuch Frieden und Wissenscha 19 (2012) 167 (169–171).

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Carolin Behrmann

Iconomus*This study is not simply a book about legal

emblems, but about the overall significance of a critical apprehension of the visible for the law. Dealing with the symbolic dimension as well as the imaginary representation of legality as part of the judicial process, Peter Goodrich surpasses well-known discussions about representational aspects, as for example studies such as Representing Justice(2010) by Judith Resnik and Dennis Curtis, re-sponding also to a general growing interest in the visibility of the juridical sphere: »We may not be very conscious of the legal structure of the visible but we are increasingly aware of the visible struc-ture of law.« (xxiii). As in numerous publications before, just to name one of his earlier studies entitled Languages of Law: From Logics of Memory to Nomadic Masks (1990), the author puts empha-size on forms of appearances and representations through which the public recognizes law as sover-eign power. At the outset of the study he points to the present-day significance of the milieu of judi-cial proceedings that affects their perceived legiti-macy and has influence on judgment, including for example courtroom architecture, decorum and the lawyer’s robes. For Goodrich the emblem tradition of the 16th and 17th century proves the central role of lawyers in the structuring of vision and the visualization of power. The emblematic form and pictorial lexicon that legal thinkers like Andrea Alciato (1492–1550) had invented, consti-tute therefore the foundations of that structure reaching far beyond a mere humanist’s pastime. It is the realm of prior images and emblematic patterns in legal training that comes into focus, the so called obiter depicta, meaning something inci-dentally seen on the way to decision, which has been perceived before as marginal or merely illus-trative. Goodrich interprets them as images and figures of norm and law in texts as well as in the »embodiments and performances that influence advocacy and decision« (23). Images function as

mnemonics or »triggers« that engage with the theatre of legality prior to any actual annunciation of norm, rule, or judgement, which is wittily and wittingly paraphrased as: »The image puts us in the mood for law.«

By means of different examples from emblem books, primarily examples from Anglican legal culture between 1530 and 1700, Goodrich braces his topical approach in seven chapters thus depict-ing a coherent idea of the iconomus, the govern-ment of images. Each chapter circles around the fundamental question how the law sustains au-thority via the visual regime. Aer an introductory overview about legal emblems as »elements of law«, he passes over to the question of the repre-sentation of the sovereign, the lawgiver and law-giving, further to the image of Iustitia and the blindfold as aenigma iuris, the question of actioand the missing hands of the judge. The two last chapters on »Visibilities« and »Virtual laws« draw away from individual case studies to generally explain the development of the emblem tradition, discerning a significant trajectory and increase of the normative function of the image in the 16th

and 17th century.There are a handful of iconic concepts central to

the tripartite structure of the emblem that Good-rich is elaborating on throughout his study: one of them is the image as enigma or false truth. Emblem books developed from the tradition of the hieroglyphs or the symbola heroica, military and administrative insignia like devices and impresa, which needed to be recognized but not to be understood. According to Alciato, the picture is a »false truth,« it is not what it represents. As merely the figure of an absence, it has to be conceived as a simulacrum, an index and reference to an absent source that points to a greater verity (29). Goodrich distinguishes between the juristically recognized question of ambiguity and the aesthetically reso-nant domain of the plurality of meanings that

* P G, Legal Emblems and the Art of Law. Obiter Depicta as the Vision of Governance, New York: Cambridge University Press 2013, XXVII, 281 p., 106 illustrations, ISBN 978-1-107-03599-7

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Carolin Behrmann 341

enigmas entail – the exercise of the art of law would go far beyond that (33). This repeatedly discussed enigmatic quality of images can be com-pared with a classical approach to emblems as being conundrums which is connected to a symbol theory, as underlying the monumental handbook Emblemata. Handbuch zur Sinnbildkunst (1967), written by the German scholars Arthur Henkel and Albrecht Schöne. The picture is here inter-preted as core of the emblem that is born from the tension between motto and pictura, which is some-times explained in the subscriptio, through which reality can be explained and interpreted. Also for Goodrich the picture represents the sign (as the natural sign) most directly and is prior to the other elements of the emblem. However, also in Good-rich’s interpretation of the legal emblem exists the idea of an a-temporal dimension of images. Unlike Henkel and Schöne his accurate study of emblem treatises of a restricted period might be less run-ning the risk of arguing a-historically.

Among the art historical references, as e. g. to Horst Bredekamp’s interpretation of the frontis-piece of Thomas Hobbes Leviathan (115–122), Goodrich refers in his discussion of the sovereign’s portrait to concepts of the »anachronic image«, following hereby recent works by Georges Didi-Huberman, Christopher Wood and Alexander Na-gel. Accordingly images exist outside of temporal-ity, referring to other images and series of repre-sentations: »Images substitute for each other, con-tinue and mutate according to a law of continuity, of symbolic reference and repetition that has its own valence and value.« (34). The image is com-pared to a body that »opens up to a multitude of laws«. Among these references to concepts that are directed towards the visual, the reader misses a more thorough consideration and recognition of iconological methods, devised foremost by Aby M. Warburg, Fritz Saxl, Erwin Panofsky, Julius Schlosser, Ernst Gombrich just to name a few, and later most prominently by Michael Baxandall, that encompass the idea of a cross-epochal and anachronic efficacy of images in general which is today intensively disputed, as for example the idea of the »lives« of images (e. g. W. J.T. Mitchell).

However, apart from this blind spot Goodrich’s exploration in the significant layers of a broader »visiocracy of justice« is a fascinating encounter between legal ideas and images, prioritizing the latter. Overall he proves an erudite and attentive iconological reading of emblematic images of

sovereignty and law-making that are interwoven with the history of political thought. In his dis-cussion of Antoine Lafréry’s portrait of Bartolus de Sassoferrato of 1566, that shows the illustrious humanist and jurisconsult of the 14th century with downcast eyes, he points to a crucial paradox of the relation between visuality and legal judgment. Sassoferrato’s famous treatise Tractatus de insignis et armis (1358) tackles the legal aspects of heraldry and teaches the lawyer to understand public signs as coats of arms, banners, flags or devices. Curi-ously, as Goodrich points out, Lafréry’s portrait shows Sassoferrato with downcast eyes, in contra-diction to his attentive reading of the visible world, the ius imaginum. According to Goodrich these closed eyes express emblematically, similar to the blindfolded allegory of justice, the lawgiver’s cau-tion of all appearances, and the need of pronounc-ing judgment with downcast eyes.

The legal emblem tradition from which Good-rich takes numerous examples explaining them congruent to his central argument about the power of obiter depicta, points to the lawyer’s need of learning how to see and make sense of the visible external world. The author offers multi-layered perspectives on the juristic perception of reality and relationship between persons, things and ac-tions and follows a political theology of the image that is inherited and manipulated in law. Lawyers are trained to apprehend the social and the person-al by way of structures, via the long-term schemata of ordering devices, the symbolic unities, and trans-temporal transmission of personae and norms which is according to Goodrich based on Roman Law’s classical tripartite division between person, things and actions (207). Vision is therefore medi-ated, constructed and constrained and especially the complex emblematic medium is meant to convey norms in images and words. Emblems stage law as dramatic intervention, and turn the legal text into vivid action. Legal meaning emerges in the multiple meanings, conjunction of opposites and juxtaposition of images and words (213). Goodrich points to an important analogy of the emblematic structure and the Trinitarian schema of persons, things and actions: the picture is the person (imago), the motto is a thing (res or maies-tas), and the verse is to be understood as the embodiment of the action (245). For Goodrich the emblem embodies the paradox of body and soul, mimicking the Christian doctrine of the »impossible unity« of words and pictures and being

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static representations of action, or silent expres-sions of speech.

This book is a veritable treasure chest for all scholars who set about to unravel the visual re-gimes of the law. This review cannot do justice to the broad and sophisticated approach that every single chapter contains. Touching upon so different fields of legal images, emblem studies and iconol-ogy, Goodrich is also motivating further discus-sions about these topoi and excites in broader terms a critical apprehension of images in law, that might be in part already done in one of his upcoming volumes on Genealogies of Vision edited

together with Valérie Hayaert, one of the few experts in the legal emblem tradition. However, this is also what the author might have had in mind when he wrote the last passage of his book: perceiving the image in general as »a living being«, means that it has to be actively opened up and unveiled through the viewer bringing it to life. This metaphor forms literally a suitable opening, a proper envoi for future studies on legal visiocratic regimes to come.

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Michael Stolleis

Die Rückseite der Malerei ist die Vorderseite des Staates*

Von Inter- und Transdisziplinarität wurde und wird viel gesprochen. Die o karikierte »Antrags-lyrik« zur Gewinnung von Drittmitteln lebt davon. Eine wirkliche Durchdringung verschiedener Fä-cher findet dagegen nur selten statt, und zwar nicht nur aus Trägheit oder mangelnder Kompetenz. Spezialisierung und entsprechende Blickveren-gung, Fachsprachen, unterschiedliche Arbeitsziele und -bedingungen machen den Blick über den Tellerrand tatsächlich schwer. Aber gelegentlich gelingt doch etwas. Der Öffentlichrechtler Erk Volkmar Heyen, Emeritus der Universität Greifs-wald, hatte sich vorgenommen, die europäische Malerei darauin zu mustern, ob sich in ihr Motive finden, die sich auf gute und schlechte Politik, weltlichen und religiösen Staat, Verwal-tung, Städte, Freiheit und Zwang, Wohlfahrt und Fürsorge, Juristen und anderes Staatspersonal be-ziehen, kurzum auf alles, was ein Gemeinwesen oder einen Staat ausmacht. Er hat dies, wenn auch mit vielen dankbar genannten Helfern, im Allein-

gang realisiert und auf diese Weise Interdisziplina-rität wirklich praktiziert.

Sein Ausgangspunkt ist nicht die europäische Malerei in ihren historisch erfassbaren Stilstufen samt der sie umgebenden Lebenswelt. So würden Kunsthistoriker vorgehen. Vielmehr entwir er ein Schema öffentlicher Herrscha, dem er Bilder des Mittelalters, vor allem aber der Neuzeit zuordnet. Insofern bleibt er Staats- und Verwaltungsrechtler, der sich in ungewöhnlichem Umfang den Bildern selbst und der sie interpretierenden Kunstgeschich-te öffnet. Daraus ist ein Text- und Bildband ent-standen, wie man ihn noch nie gesehen hat. Viele bekannte, noch mehr aber unbekannte Bilder tau-chen in einem Reflexionszusammenhang auf, den man nicht vermutet oder öer auch zugunsten der rein künstlerischen Perspektive einfach verdrängt hatte. Insofern kann ein roter Faden für das Ganze nur nützlich sein. Er findet sich immer dort, wo Heyen zeigt, dass Kunst auf die stets politisch gestaltete Lebenswelt reagiert, selbst politisch ist,

* E V H, Verwaltete Welten. Mensch, Gemeinwesen und Amt in der europäischen Malerei, Berlin: Akademie-Verlag 2013, VIII, 313 S., ISBN 978-3-05-006380-5

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aber sich auch über öffentliche Auräge in Politik einbinden lässt. Die verwalteten Welten bringen Kunst ebenso hervor, wie Kunst sie kommentie-rend verdichtet und gestaltet. Dieses Buch betrach-tet also Kunst im Kontext, primär aber verwaltete Welten durch das Medium der Kunst. Heyen führt in dieser Weise den Leser als Cicerone auf einem Gang durch eine »Galerie politisch-administrativer Malerei« (280).

Er beginnt mit Städte- und Industriebildern, mit »Räumen«, ihren Mauern und dem fernen »Horizont« und geht auf das Ämterwesen und die religiöse Orientierung ein (Kap. 1 »Einheit und Gefüge«). Es folgen diejenigen Bilder, die sich dem Etikett »Staatsziele« zuordnen lassen, also Bilder zur Ethik öffentlichen Handelns, die norma-tiv auf »Wohlfahrt« gerichtet ist, aber auch das Jenseits einschließt oder der Repräsentation von Herrschern, Ratsherren, Beamten oder Wissen-schalern dient (Kap. 2 »Orientierung«). Es sind Bilder ganz unterschiedlicher Tendenz, die etwa als Erinnerung, Mahnung, Zukunsentwurf oder Leistungsbilanz, aber auch als Satire gelesen wer-den können. Andere Werke wiederum, in Kap. 3 (»Wohlfahrt«) unter den Stichworten Wirtscha und Arbeit, Sicherheit und Freiheit, Soziale Für-sorge und »Primarschule« versammelt, zeigen In-dustrie und Arbeiterbewegung, den Protest gegen reiche Landbesitzer oder die Illustration von Uto-pien, aber auch die präventive und repressive Tätigkeit der Polizei. Dazu gehören die Opfer des NS-Staates, aber auch, als groteskes Beispiel, das um 1978 entstandene Bild des Norwegers Odd Nerdrum »Der Mord an Andreas Baader« im Stil einer Kreuzabnahme von Caravaggio. Eher be-schauliche Werke sozialen Engagements für Wai-sen, Arme und Alte schließen dieses Kapitel ab.

Anspruchsvolle Kunst ist vieldeutig. Insofern haet der Zuordnung der Bilder auch eine gewisse Willkür an. Dass der Besucher der Galerie, der dem Cicerone getreulich folgt, den roten Faden gele-gentlich verliert, liegt nicht nur an der o mit Bedeutungsschwere beladenen Sprache, sondern auch am anarchistischen Grundelement von Kunst, das sich notwendig strenger Systematisie-rung sperrt. So erscheint das Thema Landnahme sowohl unter »Wirtscha und Arbeit« als auch in der Abteilung »Raum«, die Bilder zu Bodenbe-stellung, Straßenbau, Urbanisierung, Verkehr und Verwaltungsgebäuden vereint. Es sind »Wälder und Felder, Flüsse und Kanäle, Wege und Gleise, Deiche und Staudämme, aber auch Burgen,

Schlösser, Ratssäle, Polizeiwachen, Postschalter und Bahnhöfe« (187). Diese Bilder lassen sich nicht zu einem fugenlosen Konzept zusammensetzen, es sind eben thematische Gruppen in einem imaginä-ren Museum. Was sie trennt, ist der jeweilige historische Kontext und die verschiedenen Deu-tungsmöglichkeiten im Betrachter selbst. Was sie jedoch verbindet, ist der Bezug zur öffentlichen Ordnung. Diese wiederum ist ein Konglomerat von Normen, Gebäuden wie Paläste, Bürgermeis-terämter oder Zollstationen, Fahrzeugen, Waffen, Landmarken, vor allem aber von Menschen voller Geschichte und Überzeugungen (Kap. 5 »Mensch und Amt«). Heyen zeigt hier bildhae Rangerhö-hung von Staatsmännern, aber auch biedermeier-liche Figuren, Bahnwärter, Steuereinnehmer, ein Papstbild (Francis Bacon), bestechliche und kopf-lose Beamte neben dem anklagenden Bild eines vom Berufsverbot betroffenen Kunsterziehers (Jür-gen Waller, 1976).

Heyens Museum der politisch-administrativen Malerei zeigt die Strukturen der Macht, ihre Ge-bäude und Mittel, die in ihnen sitzenden Men-schen, die den ihnen unterworfenen Menschen zum Verwechseln ähnlich sehen. Wir sehen war-tende, schuende, leidende Menschen, aber auch stolze Repräsentanten der Macht, deren Bilder in der Häufung besonders konventionell wirken. In der Moderne dominieren die Entfremdung der Arbeitswelt, die Leere der Räume, die Zerstörung der Natur und die Schrecken des Krieges oder diktatorischer Regime. Der Gang durch dieses Museum lohnt schon wegen der vielen Entdeckun-gen unbekannter Werke, aber wichtiger ist die hier eingenommene Perspektive: Die consecutio tempo-rum der Kunstgeschichte ist durchbrochen, das thematisch Zusammengehörige steht nebeneinan-der, verwandt und fremd zugleich. So kann man sich etwa die Ölgemälde der Bundeskanzler gut zusammen mit denen früherer Herrscher vorstel-len, Kriegsbilder von Callot oder Goya neben denen unserer Weltkriege, niederländische Land-straßen des 17. Jahrhunderts neben heutigen Auto-bahnen. Das vorliegende Buch ist der Katalog zum Museum, reich an Quellen-, Literatur- und Abbil-dungsnachweisen, versehen mit einem Text des Verfassers, der eindringlich zeigt, dass die klassi-sche Kunstgeschichte auch eine diachrone und keineswegs festliche Rückseite von Mensch, Ge-meinwesen und Amt hat.

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344 Die Rückseite der Malerei ist die Vorderseite des Staates

Christoph H.F. Meyer

Mittelalterliche Gerichtsbarkeit – im Zeichen der Sakralität und des Vergleichs?*

Seit mehr als einem Jahrzehnt ist die Religion für historische Disziplinen (wieder) ein attraktives Thema. Das gilt auch für die Rechtsgeschichte. Gegenüber traditionellen Fragestellungen etwa der Kanonistik fällt der veränderte Blickwinkel ins Auge. Es geht nicht mehr um eine christliche Binnenperspektive, sondern um Religion(en) in einem weiteren rechtlichen Kontext. Damit ver-bunden ist o eine vergleichende Betrachtungs-weise, die sich mit der Tendenz, die europäische Rechtsentwicklung verstärkt in transkontinentalen oder gar globalen Zusammenhängen zu sehen, berührt. Auch wenn sich Chancen und Risiken der neuen Zugänge gegenwärtig noch nicht genau abschätzen lassen, liegt es doch nahe, sie an klassi-schen Themen zu erproben.

Das vorliegende Werk ist auch solchen Gegen-ständen gewidmet. Sein Autor Robert Jacob be-schäigt sich seit den 1980er Jahren mit Fragen der mittelalterlichen Rechtsgeschichte insbesondere von Gerichtsbarkeit und Verfahren. Das Buch umfasst abgesehen von einer kurzen Einführung (»Ouverture«, 7–16), die vor allem über den Inhalt informiert, und einem Ausblick (»Perspective«, 497–503) neun Kapitel, die sich um drei bzw. vier große Themenkomplexe gruppieren. – Den Aus-gangspunkt bilden die Gottesurteile oder Orda-lien. Den Verfasser interessiert an dieser markanten Erscheinung des früh- und hochmittelalterlichen Rechtsgangs zum einen die Verbindung von Sakra-lität und Prozess, zum anderen dient sie ihm als Hintergrund, vor dem sich wichtige Entwicklun-gen seit dem 12. bzw. 13. Jahrhundert erschließen, als die Ordalien unter dem Einfluss der Kirche zurückgedrängt wurden und sich auf dem Konti-nent ebenso wie in England neue Formen des Verfahrens vor Gericht herausbildeten. In einem ersten allgemeinen Abschnitt (»Les ordalies: an-thropologie et histoire«, 17–108) wird das Phäno-men aus rechtshistorischer, anthropologischer und

vergleichender Perspektive näher beleuchtet. Die beiden folgenden Kapitel bieten vertiefende Unter-suchungen zu diesem Thema. Zunächst geht es um die Gottesurteile in der Bibel (»La promesse du jugement de Dieu«, 109–130), danach um ihre Geschichte im Früh- und Hochmittelalter (»Des royaumes de justice«, 131–200). Jacob deutet diese als Konstruktion einer neuen, christlichen Form des Ordals, deren Ursprünge im Zusammenwirken einer auf religiöse Legitimation bedachten welt-lichen Macht und der Kirche liegen sollen.

Mit dem vierten Kapitel (»L’acte de juger dans l’histoire des mots«, 201–247) nähert sich der Ver-fasser dem zweiten großen Themenkomplex des Buches, wenn er nach Gebrauch und Semantik zentraler Termini (z. B. iudicium, jugement, juise) fragt, die Aufschluss über Umbrüche im Verständ-nis dessen geben, was im 12. und 13. Jahrhundert ein Urteil ausmachte. Nun geht es um die in diesen Zeitraum fallende grundlegende Verwandlung des Verfahrens vor Gericht, das nicht mehr durch die Vorstellung einer göttlichen Gerechtigkeit und Präsenz Gottes, sondern durch die Sakralität des menschlichen Richters geprägt war. Zunächst (»Le serment des juges ou l’invention de la conscience judiciaire«, 249–276) geht der Verfasser näher auf den Richtereid insbesondere mit Blick auf die Jury im frühen Common Law ein, im folgenden Kapi-tel (»Le pape, l’enquête et la vérité«, 277–307) auf die Entwicklung des kanonischen Prozesses im 12. Jahrhundert. Im siebten Kapitel (»La formation de la déontologie judiciaire«, 309–332) betrachtet er dann das Bild des Richters und seine Pflichten vornehmlich im 13.–14. Jahrhundert.

Nach dem Blick auf Gottesurteile und hoch-mittelalterliches Prozessrecht tritt Jacob in einem dritten großen Schritt (»Juger sous le ciel. Allers et retours d’Occident en Chine«, 333–408) aus dem vertrauten Kreis der westlichen Rechtskultur he-raus und setzt zu einem Vergleich okzidentaler

* R J, La grâce des juges. L’institution judiciaire et le sacré en Occident, Paris: Presses Universitaires de France 2014, 515 S., ISBN 978-2-13-063058-6

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und chinesischer Rechtsentwicklungen an. Dieser beleuchtet einerseits unterschiedliche Baupläne von Staatlichkeit im Westen und im Osten – hier ein Staat der Gerichte und der Rechtsprechung, dort ein solcher der Ordnung und Harmonie –, andererseits divergierende Vorstellungen über die transzendenten Grundlagen des Rechts und die sich daraus ergebenden unterschiedlichen Funk-tionen des Richters, des Prozesses und der Orda-lien. Im neunten und letzten Kapitel (»La grâce des juges«, 409–495) schlägt der Verfasser den Bogen zurück zum Ausgangspunkt des Buches, wenn er sich mit dem Einfluss der Sakramente, ihrer Theo-logie und liturgischen Praxis auf den Prozess vor allem zwischen Spätantike und 13. Jahrhundert befasst. Darauf folgt ein Ausblick (497–503), in dem Jacob mit Blick auf die chinesische Rechts-kultur, das Common Law und die römisch-kano-nische Tradition Kontinentaleuropas über den Ein-fluss der Religion auf das (Prozess)Recht, die Rolle des Richters und seine »Wahrheit« reflektiert. Ein Namenregister (505–510) und ein kurzes Verzeich-nis von Abkürzungen und Kurztiteln zentraler Werke (511–512) beschließen das Werk.»La grâce des juges« beruht zum Teil auf älteren

Studien des Verfassers, die dieser großenteils über-arbeitet hat. Was neu und was schon vorher publi-ziert worden ist, erfährt der Leser nur vereinzelt (z. B. 9 Anm. 1) und kann es anhand des Werkes auch nicht ohne Weiteres herausfinden, weil ihm weder eine umfassende Bibliographie noch ein Sachregister geboten werden. Wenn es sich bei dem Buch weder um eine Aufsatzsammlung im engeren Sinne noch um eine klassische Monogra-phie handelt, dann erklärt sich dies wohl nicht zuletzt aus Entstehungsanstößen von außen. Jacob selbst weist auf das besondere chinesische Interesse an seinen Arbeiten hin (9 f.), das ihn zu einer Fortentwicklung seiner Theorien und zu einer ver-stärkten Beschäigung mit der ostasiatischen Rechtsgeschichte veranlasst hat.

Es fällt nicht leicht, den Eindruck, den das Buch vermittelt, auf einen Punkt oder eine bewertende Formel zu bringen. Das liegt nicht nur an dem heterogenen Charakter des Werks, dessen Kapitel zum Teil nur lose miteinander verbunden sind. Die behandelten Themen könnten Gegenstand gleich mehrerer Monographien sein und führen mitunter in Bereiche wie die chinesische Rechts-

geschichte, die weder dem Verfasser noch dem Rezensenten durch eigene Forschungen vertraut sind. Gerade hier liegt aber auch ein besonderer Reiz: in der Betrachtung des Fremden (z. B. Chi-nas) und der sich daraus ergebenden neuen Wahr-nehmung altbekannter Phänomene der okziden-talen Rechtsgeschichte. Ein solcher vergleichender Blick auf die europäische und außereuropäische Rechtsgeschichte setzt o schon aus sprachlichen Gründen ein Arbeiten jenseits der Quellen und damit eine Abhängigkeit von der Literatur voraus, die problematisch und zugleich unvermeidlich sind.

Stärker als dieses Dilemma fordern manche Schwächen in Jacobs Darstellung zur Kritik he-raus. Dazu zählt etwa eine recht frankozentrische Wahrnehmung mancher Themen der europä-ischen Rechtsgeschichte und vor allem der Sekun-därliteratur. Zudem neigt der Verfasser, gerade wenn er ihm weniger vertraute Gegenstände be-handelt (z. B. in Kapitel VIII), zu einer abstrakten Betrachtungsweise, die leicht in ein Räsonieren oder Philosophieren über »das große Ganze« ab-gleiten kann. Deutlich schwerer als solche eher formalen Punkte wiegen jedoch die inhaltlich-konzeptionellen Defizite. Wenn »La grâce des ju-ges« mehr als bloß eine Sammlung von Einzel-studien sein sollte, dann wäre ausgehend vom Untertitel des Werks nicht nur nach den Begriffen der Gerichtsbarkeit und des Okzidents, sondern vor allem nach dem des Sakralen bzw. der Sakra-lität (»sacré«) zu fragen gewesen. Was bedeutet Sakralität mit Blick auf das Recht, das christliche Mittelalter und das vormoderne China? Inwiefern läßt sich das eine mit dem anderen überhaupt vergleichen, und wo liegt der analytische Gewinn? Jacob bleibt eine Antwort auf diese und ähnliche Fragen schuldig.

Dass sie nicht gestellt werden, verweist auch auf theoretische und methodische Defizite der ein-gangs erwähnten neuen Forschungsrichtungen. Die Suche nach einem begrifflichen Instrumenta-rium, das dem vielschichtigen Verhältnis von Recht und Religion nicht nur in historischer, sondern auch in transkontinental-vergleichender Hinsicht gerecht wird, hat gerade erst begonnen. Auch das zeigt das vorliegende Buch.

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346 Mittelalterliche Gerichtsbarkeit – im Zeichen der Sakralität und des Vergleichs?

Mario Ascheri

Processo romanico-canonico: una ›eccellenza‹ attraverso il tempo?*

1. L’analisi inizia con un esame delle fonti e dell’organizzazione giudiziaria e del personale giu-diziario (cap. 1, 9–36): i giudici nella loro variegata tipologia, complicata soprattutto dall’esperienza canonistica in forte espansione nei secoli XIII–XIV, la loro ricusazione (molto delicata), i loro collabo-ratori (auditor o assessor), le parti litiganti con i loro avvocati e procuratori. Il capitolo 2 (37–57) illustra il ritmo della procedura, dall’ordo cognitionumall’ipotesi di peremptio instantiae e alle dilationes, con giusta attenzione ai fatalia per l’appello e per i substantialia iudicii, fondamentali per il futuro due process e per delineare, in negativo, le possibili forme di processo sommario, fino all’officium iudi-cis – i poteri con cui egli poteva movimentare il processo al di là della generale ›disponibilità‹ del processo rimesso all’iniziativa delle parti.

Il capitolo 3 (59–108) copre le attività anteriori alla contestazione della lite – momento centrale del processo. Si illustrano i praeparatoria iudicii (con possibile prorogatio fori) e le possibilità di denuncia-tio evangelica ed appellatio extraiudicialis, giusta-mente richiamate per quanto marginali concreta-mente, e l’attenzione si concentra com’è ovvio sulla citazione e la successiva contumacia o confessiodel convenuto.

Il rapporto tra libellus (per le eccezioni specie in Italia, 50 nota 81) anche articulatus, e actio nei suoi 5 significati da un lato e le varie ipotesi di exceptio-nes, oltre alla prospettazione della compensatio o della reconventio, sono trattati con attenzione, ma la parte più sostanziosa della trattazione, com’era da attendersi, rispecchia la sostanza del processo, dalla litis contestatio alla sentenza conclusiva (cap. 4, 109–191). Ecco quindi gli effetti della litis conte-statio, i vari giuramenti (di calunnia, verità e ma-lizia), satisdationes, positiones (non usate in Anglia,

118) responsiones con relativi mezzi di prova: te-stimonianza e documento hanno il ruolo centrale prevedibile. La delicata publicatio delle testimo-nianze, che comunicava i risultati degli incontri di solito svolti (almeno in Italia) da notai, la instrumenti editio e le praesumptiones hanno ade-guato spazio, come i rimedi finali del giuramento decisorio richiesto dal giudice o dalla parte.

I capitoli finali si concentrano l’uno (5, 193–210) sulla sentenza, requisiti e costi, la res iudicata e i suoi confini; l’altro (6, 211–220) sul processo sommario, con giusto spazio non solo alla consti-tuzione Ad reprimendum, ma soprattutto alla ›cle-mentina‹ Saepe (testo a 217 s.).

Il capitolo conclusivo (221–228) sul tema fon-damentale della divisione dei compiti tra giudice e parti ribadisce la centralità (v. anche 45) dell’ini-ziativa di parte (concretamente, del procuratore: compare anche dominus litis), non oscura i possibi-li profili attivi dell’officium iudicis (nullum officium residet in parte, Bartolo, 55 nota 108) e fa riflettere sulla sempre deprecata lentezza delle procedure dando esempi sia di celerità che di dilatazione accettabile (226 s.), tenuto conto dell’eterno dilem-ma sull’alternativa tra ricerca della verità (fino a che punto i substantialia non l’ostacolano? Bartolo: sono di diritto civile o di diritto naturale?) e de-finizione conclusiva di una vertenza.

2. Come si vede, si presentano in modo ordi-nato scansioni e modalità di svolgimento del pro-cesso noto come processo romano-canonico, quel-lo formatosi sulla base delle fonti giustinianee, di alcune tradizioni successive e delle novità imposte dal diritto canonico. Esso prevale in Europa, in tempi e modi diversi nei vari Paesi, da fine XII secolo (Compilatio I del diritto canonico e con Pillio dopo un Giovanni Bassiano) – XIII secolo

* N, K W, Romanisch-kanonisches Prozessrecht. Erkennt-nisverfahren erster Instanz in civili-bus, Heidelberg: Springer 2012 (Enzyklopädie der Rechts- und Staatswissenscha. Abteilung Rechtswissenscha), xviii, 241 S., ISBN 978-3-642-23482-8

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(Decretali di Gregorio IX e di Bonifacio VIII ma anche di tanti giuristi) – inizio secolo XIV (grazie alle Clementinae e a Giovanni d’Andrea e Bartolo) fino al delinearsi del nuovo processo introdotto dalle riforme dei principi influenzate dal diritto naturale nei secoli XVIII–XIX. È il processo che l’Autore preferisce chiamare ›romanico-canonico‹ (2) sia per tener conto dell’eredità del diritto longobardo, sia dell’apporto del diritto statutario italiano a partire dal secolo XII: »Die schöpferische Kra und Zweckhaigkeit des Statutarrechts kann kaum überschätzt werden« (ibid.).

L’esposizione è coerente con le premesse. Lo svolgimento del processo ›dotto‹, come è detto per l’apporto non sottovalutabile della dottrina giuri-dica, viene seguito in tutte le sue fasi avendo riguardo al quadro normativo generale, di diritto comune, ma anche al diritto particolare locale su di esso influente e allo stylus curiae, ricordato anche grazie agli studi analitici degli ultimi decenni.

Poggiando sul ›sistema‹ già emergente dall’in-terno della tradizione di diritto comune, da Tan-credi al Foscarari, a Roffredo, Grazia Aretino fino al Fagioli, a Martino da Fano, al Durante (soprat-tutto, ed è comprensibile) e al Passeggieri fino al Ferrari e al Maranta, per tener conto degli sviluppi quattro-cinquecenteschi, Nörr ha spiegato le fasi processuali in modo piano, quasi didattico, passo dopo passo, quasi si rivolgesse a un pubblico a digiuno di questi problemi. Questa è, però, solo un’impressione superficiale.

In realtà, Nörr non solo ha conservato il lin-guaggio tecnico delle fonti esaminate, 1 natural-

mente in latino, ma ha anche dato puntuali in-dicazioni delle problematiche tecniche odierne collegabili ai problemi affrontati dall’antico diritto processuale. Perciò il libro è destinato a un pub-blico con una certa preparazione tecnica.

Infatti, non è infrequente il richiamo alla ter-minologia attuale, come ad esempio alla Offizial-maxime, non tanto per dimostrare la continuità della normativa processualistica nell’esperienza continentale europea, quanto per meglio eviden-ziare quella capacità ›antica‹ di elaborare la com-plessa tipologia processualistica. In questo modo il libro soddisfa non solo lo studioso di diritto genericamente interessato alla storia, perché for-nisce un’introduzione ricca e utilissima, aggiornata com’è, per chi voglia affrontare un impegno di ricerca su uno dei molti temi affrontati.

3. Nörr ha svolto un lavoro di grande impegno. Probabilmente solo lui, tra gli studiosi viventi del diritto processuale dotto, poteva condurlo in porto in questo modo inappuntabile. 2 In queste duecen-to (fitte) pagine, egli ha concentrato un’esperienza di ricerca di mezzo secolo: dal pionieristico lavoro sul giudice del processo dotto nella Frühzeit (1967) ai molti contributi specifici della raccolta del 1993, cui sono seguiti tanti ulteriori contributi negli ultimi vent’anni, 3 pur occupandosi anche di temi molto diversi – anche contemporaneistici. È stato aiutato, questo è vero, dal recente infittirsi della ricerca in questo campo (tradizionalmente trascu-rato per l’autentica passione collettiva dei ricerca-tori per il processo penale – qui soltanto lambito), mettendo al corrente di una bibliografia recente

1 Ne risulta la icasticità, come quando per la collatio scripturae si nota »hinc veniunt diaboli inferni« (159, nota 378), o si ribadiscono principi di fondo (»mores dignitati praeferun-tur« (151, nota 314)), o dati di fatto istruttivi come »modicum vinum fa-ceret magnam causam in Anglia ubi non crescit« (173, nota 489).

2 Ha quindi senso segnalare che pote-vano utilizzarsi utilmente anche altri processualisti antichi o che, tra i mo-derni, si potevano ricordare lavori di un M. Bellomo e di D. Quaglioni o di A. Errera, oppure dedicare maggiore spazio alla motivazione della sentenza per il suo rilievo nella storia delle opiniones, o alla res iudicata (per il rapporto con il consilium sapientis

instaurato da Antonio da Butrio)? I numerosi statuti pubblicati negli ultimi decenni non anticiperanno la formula del »summario et de plano« a data anteriore al 1297 (215)?

3 N, K W, Iudicium est actus trium personarum: Beiträge zur Geschichte des Zivilprozessrechts in Europa, Goldbach: Keip 1993; poi c’è l’imbarazzo della scelta: segnalo solo ad esempio (anche sul Fagioli) ., Von der Textrationalität zur Zweck-rationalität, in: ZRG, Kan. Abt. (1995) e ., Über die mittelalterliche Rota Romana, in: ZRG, Kan. Abt. 93 (2007); utili anche ., Iura novit curia: aber auch fremdes Recht?, in: Ratio decidendi: Guiding Principles of Judicial Decisions, II, ›Foreign‹ Law,

ed. S. D, W. H. B, M. C. M (2010) e ., Clemens papa quartus, lumen iuris, entscheidet über Zweifelsfragen zum Prokurator im Prozessrecht, in: Mélanges A. Le-febvre-Teillard (2009).

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348 Processo romanico-canonico: una ›eccellenza‹ attraverso il tempo?

ormai imponente, 4 con le verifiche consentite nelle carte processuali antiche più copiosamente disponibili.

La conoscenza profonda del processo di ieri e di oggi induce Nörr ad apprezzare molto, come si capisce, il modello così bene esposto. Peraltro, dà anche dei dati grosso modo soddisfacenti sull’e-terno tema della durata del processo (226 s.), per cui non avrebbe motivo per valutazioni negative da questo punto di vista. Il continuum dottrinale, lui sa bene, ha avuto momenti di rottura (diritto naturale moderno), ma i tradizionali problemi tecnici sono rimasti ancor sempre oggetto di interesse scientifi-co. Significativo in questo senso il suo utilizzo a fondo della trattatistica in lingua tedesca del secolo XIX, 5 al tempo stesso storica e teorica nella ten-sione alle riforme processuali imposte dalle novità del tempo.

Quell’antica dottrina poteva dire ancora molto perché fondata su un razionale approccio ai pro-blemi. La razionalità può essere cambiata per certi versi (per l’immediatezza, pubblicità e confronto dei testi, ad esempio, contrariamente all’antico senso comune in contrario), ma rimane avvertibile la seria tensione di quel mondo antico, tra i giuristi come tra i legislatori (molti papi) a loro sensibili, a cercare di risolvere i problemi con approfondimen-ti e tentativi sempre nuovi. Il diritto processuale non è stato trascurato dal Medioevo – come taluni continuano a sostenere – e qui lo si dimostra in

modo luminoso: a livello di studio e di insegna-mento.

L’aspirazione per la Giustizia/giustizia è incar-nata, per così dire, in quegli sforzi di altissimo livello intellettuale portati in eredità all’Europa moderna. Quel sofisticato bricolage affascina e dice molto di un mondo culturalmente avanzato. Resta il fatto che la perfezione dottrinale convisse con ›svolte‹ di assai dubbia razionalità in campo penale (laico e religioso), e che tante subtilitates furono all’origine delle lites immortales contro le quali si lottò in quasi tutta Europa – e certamente con tanta difficoltà e poco successo in Italia.

Giuristi e notai non hanno perciò goduto di grandi simpatie, anche se hanno potuto guadagna-re molto e ci sono state esperienze alternative (dall’Inghilterra a Venezia). La tutela dei diritti, a torto o a ragione, è spesso apparsa più predicata che realizzata, alimentando periodici sogni millenari-stici e ›popolari‹ con le conseguenze che ci sono note. Questa procedura è espressiva di un gapcaratteristico, molto istruttivo, della storia europea più profonda. Ogni tentativo di semplificazione, come la ricorrente contrapposizione tra un mitico mondo passato della consuetudine e il duro mondo moderno della legge, ne viene rintuzzato.

n

4 Come gli apporti recenti e meno re-centi (il seguente non è un elenco esaustivo naturalmente) di R. Helm-holz (fondamentale soprattutto, ma non solo, per l’Inghilterra), Ch. Do-nahue, S. Schlinker, S. Lepsius (testi in Bartolo e sindacato), P. Pichonnaz, L. Masmejan, H. J. Budischin, M. Kriechbaum, M. Schmoeckl, W. Wiegand, Th. Duve, T. Behrmann, P. Martín, Y. Mausen, P. Schulte, A. Meyer, o miscellanee come quella curata da F.-J. Arlinghaus, I. Baum-gärtner e V. Colli sulla Praxis der Ge-richtsbarkeit (2007) o quella della

Lepsius e di Th. Wetzstein sulla scrit-turazione degli atti giudiziari (2008) – mentre la storiografia processualistica italiana è rappresentata essenzial-mente da A. Padoa Schioppa, G. Minnucci, C. Natalini, F. Mancu-so, N. Sarti, M. Vallerani, O. Condo-relli e alcuni canonisti (come P. Pellegrino, R. Balbi, R. Bertolino, L. Musselli, A. Bettetini o G. Bellini) o processualisti come Francesco Cor-dopatri. Un indice degli autori con indicazione almeno della pagina della prima citazione sarebbe stato perciò molto utile.

5 Come un Adolf Wach (sempre da citare per gli statuti italiani per il suo classico Arrestprozess, 1868, rist. 1973, come poi L. Rosenberg, 1908, e H. Himstedt, 1910), un G. Bülow, ma anche P. Hinschius, W. Endemann, J. Weismann, H. Buchka, A. Skedl, J. W. Planck … Entro questo filone è soprattutto il nostro Giuseppe Chio-venda ad aver spazio. Tra i meno re-centi Mauro Cappelletti.

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Mario Ascheri 349

Karl-Heinz Lingens

Kostbare Zeit*Ob es in dem von Serge Dauchy und Albrecht

Cordes herausgegebenen Sammelband zur Ge-schichte des Handels- und Seerechts um private und öffentliche »Justiz« (Buchcover) oder um »Konfliktlösung« (Haupttitelblatt) geht, muss der Leser selbst herausfinden. Offensichtlich hat hier der französische Paralleltitel »Une frontière mou-vante: Justice privée et justice publique en matières commerciales et maritimes« zu Verwirrung ge-führt. Der zweisprachige Titel resultiert aus einer Zusammenlegung zunächst unabhängig vonein-ander geplanter Kolloquien des Centre d’Histoire Judiciaire in Lille und des Historischen Kollegs in München zu einer gemeinsamen Tagung im bre-tonischen Roscoff (1. und 2. Mai 2008). Das nun in Druckfassung vorliegende Ergebnis sind sechzehn vom 13. bis ins 20. Jahrhundert reichende Beiträge in Deutsch, Englisch und Französisch, die jeweils in den beiden anderen Sprachen zusammengefasst wurden.

Interessant wäre es gewesen, angesichts dieser erfreulichen Kooperation in einer thematischen Einführung Näheres über eventuelle Gemeinsam-keiten und Unterschiede der jeweiligen nationalen Herangehensweise zu erfahren. Denn für die fran-zösischen Kolleginnen und Kollegen war das Tref-fen das sechste (und letzte) eines vom Justizminis-terium geförderten Recherchezyklus, während die Forschungen von Albrecht Cordes, Louis Pahlow und Alain Wijffels im Frankfurter LOEWE-Schwerpunkt »Außergerichtliche und gerichtliche Konfliktlösung« fortgeführt werden. Aber die durch Drittmittel geförderte Forschung profitiert nicht nur, wie in diesem Fall, von außergewöhn-lichem Luxus wie Simultanübersetzungen bei einer wissenschalichen Veranstaltung, sondern muss auch mit den Schattenseiten zurechtkom-

men. Albrecht Cordes weist im Vorwort auf den Zusammenhang zwischen dem verzögerten Er-scheinen des Bandes und den Bedingungen heu-tigen wissenschalichen Arbeitens hin: Die Be-richts-, Begutachtungs- und Evaluationsplichten ließen immer weniger Zeit für die eigene wissen-schaliche Arbeit. Dass darunter auch die Präsen-tation der Forschungsergebnisse leidet, ist mehr als bedauerlich und wird gelegentlich geäußerte Vor-behalte (mangelnde Konsistenz, Qualitätsschwan-kungen, Überangebot …) gegen Sammelbände, auf die im Forschungsalltag kaum verzichtet wer-den kann, noch verstärken.

Immerhin: Unter diesen Umständen darf eine besondere Sensibilität der Forscher für ihren Ge-genstand vorausgesetzt werden. Auch für Kaufleu-te bedeutete Zeit stets Geld, gerade wenn Konflikte auauchten. Die im Mittelalter üblichen Gerichts-verfahren, die den Händler im eigentlichen Wort-sinn an den Ort banden, entsprachen nicht un-bedingt den Bedürfnissen des Fernhandels. Jean Hilaire (1–17) und Stephen E. Sachs (19–38) wid-men sich für das 13. und 14. Jh. den Reaktionen der Kaufleute und der Gerichtsherren anhand der Akten des Pariser Parlement und der Aufzeichnun-gen des Messegerichts von St. Ives in England. Letzteres konnte als lokale Institution durch Ge-schwindigkeit und Flexibilität in der Anwendung bestimmter Gewohnheiten das Vertrauen der he-terogenen Handelsgemeinscha erlangen und sich gegen deren selbstorganisierte Streitbeilegungsme-thoden und gegen die königlichen Gerichte durch-setzen. Wie wichtig andererseits den in der Hanse vereinigten Kaufleuten die Verfahren vor den Ge-richten der Machthaber in den Ländern ihrer Handelspartner waren, zeigt Albrecht Cordes’ Untersuchung der von ihnen erreichten Privile-

* Eine Grenze in Bewegung: Private und öffentliche Konfliktlösung im Handels- und Seerecht / Une fron-tière mouvante: Justice privée et justice publique en matières com-merciales et maritimes, hg. von A C und S D unter Mitarbeit von Andreas Karg und Anika Auer, München: Oldenbourg 2013, XII, 366 S., ISBN 978-3-486-71799-0

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350 Kostbare Zeit

gien (39–63), in denen die Stellung ihrer Mitglie-der in Gerichtsverfahren einen zentralen Platz ein-nahm. In der 2. Häle des 16. Jh.s waren die Konflikte einzelner Kaufleute im internationalen Handel und die politischen Beziehungen zwischen den europäischen Mächten bereits untrennbar in-einander verwoben: Alain Wijffels illustriert, wie 1553 in den Londoner Verhandlungen einer Han-se-Gesandtscha beiderseits rechtliche Argumente aus dem ius commune eingesetzt wurden, um Konkurrenzfragen in Danzig zu regeln (65–89).

Aus welchen Quellen die Autorinnen und Au-toren ihre Erkenntnisse gewinnen, ist angesichts der weitgesteckten Thematik einer der interessan-testen Aspekte des Bandes. Während alle französi-schen Beiträge (wie der englische und der nieder-ländische) auf Material aus Archiven beruhen, greifen die deutschen Teilnehmer nur vereinzelt auf Ungedrucktes zurück. Der Grund dieser unter-schiedlichen Herangehensweise düre nicht zu-letzt in der Entwicklung der Handelsgerichts-barkeit in Deutschland und Frankreich liegen: Verfassung und Rechtsprechung staatlicher Ge-richte lassen sich leichter allein anhand der pub-lizierten Quellen darstellen als die Tätigkeit der in der Wirtschaswelt verorteten juges consulaires(angesichts der Spezialbedeutung des Begriffs im Deutschen ist die in diesen Zusammenfassungen verwendete Übersetzung Konsulargerichtsbarkeit problematisch). So stützt Karl-Otto Scherner (117–140) seinen Überblick über die frühneuzeit-liche Konfliktlösung in Nürnberg, Hamburg und Leipzig vor allem auf die Sekundärliteratur und Marquards Tractatus politico-iuridicus de Jure Mer-catorum (1662), auch Ulrike Müßig kann die Ent-stehung des Bundes- bzw. Reichsoberhandelsge-richts (Handelsrechtseinheit durch Höchstgerichts-barkeit, 265–292) ohne Weiteres mit dem ver-öffentlichten Material nachzeichnen. Die »reiche archivalische Hinterlassenscha« erlaubt jedoch einen umfassenderen Zugriff: Peter Oestmann be-weist dies in einer eindrucksvollen Studie (221–264) über »Seehandelsrechtliche Streitigkeiten vor dem Oberappellationsgericht der vier freien Städte Deutschlands (1820–1848)«, in der er den hohen wissenschalichen Standard dieses Spruchkörpers und dessen Rolle bei der Formulierung tragender Rechtsprinzipien herausarbeitet. Auch für die Er-forschung außergerichtlicher Streitbeilegung kön-nen Gerichtsakten ergiebig sein, wie Anja Amend-Traut mit ihrer Darstellung der Auseinanderset-zungen um die Handelsgesellscha Brentano vor

dem Reichskammergericht (91–116) belegt. Für das relativ neue Forschungsthema »Konfliktprä-vention durch Vertrag« dagegen geht es zunächst einmal darum, der Rechtsgeschichte einschlägige Quellen überhaupt erst zu erschließen, was Louis Pahlow bei seiner Untersuchung von geistigem Eigentum und internationalem Handel um 1900 (327–344) vorführt.

Einen leichten Einstieg in das französische Sys-tem einer von der Zivilgerichtsbarkeit getrennten autonomen Konfliktlösung der Kaufmannscha bietet Florent Garnier (307–326) mit seiner Unter-suchung der ersten Regionalkonferenz der juges consulaires der Auvergne 1899: Das Selbstverständ-nis der gewählten Handelsrichter und die Proble-me der Selbstregulierung gehen aus dem nicht publizierten Compte rendu beispielha hervor. In einigen Teilen Frankreichs schlossen die durch die Revolution eingeführten Tribunaux de commercesachlich und personell nahtlos an ältere Gerichts-formen an, wie Thierry Hamon (177–206) schlüs-sig am Webereigericht der bretonischen Kleinstadt Quintin nachweisen kann. Die Archive des benach-barten Departements Finisterre bergen aber auch von Pierrick Pourchasse (143–154) ausgewertete Zeugnisse älteren (See-)Rechtsverständnisses der dortigen Küstenbewohner, die anders als der durch die Admiralität repräsentierte französische König gestrandete Schiffe als ihnen unzweifelha zu-stehende Gaben des Meeres ansahen: »on pille toujours les naufragés, mais on les arrache à la mort« (Jacques Cambry 1798/99). Erfolgreicher noch wussten die Eliten der Hafenstadt Dünkir-chen vom 17. bis Ende des 19. Jh.s ihre Interessen gegenüber höheren Autoritäten zu wahren (Chris-tian Pfister-Langanay, 155–175).

Um Konfliktprävention, aber auch Schieds- und Gerichtsverfahren im transnationalen Bereich geht es in dem Beitrag von Silvia Marzagalli (207–219) zu den Gepflogenheiten in den Geschäsbeziehun-gen zwischen den Bordelaiser Handelshäusern mit ihren transatlantischen Geschäspartnern in den Vereinigten Staaten Ende des 18. Jahrhunderts; die geschilderte Suche nach gemeinsamen Normen ist ein Phänomen, dessen Erforschung auch die inter-nationalen Schiedsverfahren des englisch-amerika-nischen Jay-Vertrags in einem neuen Licht erschei-nen lässt. Die ganze Palette wechselnder privater und öffentlicher Konfliktlösungsmechanismen auf internationaler Ebene kam bei der von Estelle Rothweiler née Réhault (291–306) ausgewählten Schiffskollision auf der Reede von Lissabon im

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Karl-Heinz Lingens 351

Winter 1886 zum Einsatz: Ein englisches Kriegs-schiff war aufgrund einer gebrochenen Ankerkette von der Strömung auf ein französisches Handels-schiff getrieben worden, was dessen sofortigen Untergang und den Tod von 32 Personen an Bord zur Folge hatte. Der rechtlich hochkomplexe Fall – die Jurisdiktionsansprüche dreier Staaten waren zu berücksichtigen – wurde, nachdem der franzö-sische Außenminister das seiner Einschätzung nach in den zeitgenössischen internationalen Be-ziehungen im Aufwind befindliche Schiedsverfah-ren befürwortet hatte, kurz vor dem englischen Gerichtsprozess durch einen gütlichen Vergleich ungewöhnlich rasch beigelegt. Angesichts der lehr-reichen Anschaulichkeit des Falles ist es besonders ärgerlich, dass in der deutschen Kurzfassung »abor-dage« sinnentstellend mit »Entern« übersetzt wird (im englischen abstract heißt es gar: »the crew of an English Man-of-War had boarded a French trade ship in Portugal«), wodurch der Vorfall einer völlig anderen Rechtsmaterie zugeschlagen würde.

Mit einer weiteren seerechtlichen Thematik, der gleichzeitigen gesetzlichen Einführung von

Schiedsverfahren zwischen Reedern und Schiffs-besatzungen bei Lohnabschlüssen und zwischen Unternehmern als Alternative zu den als langsam und kostenintensiv empfundenen Verfahren vor den juges consulaires (Christian Borde, 345–362), schließt der Band, der gerade durch seine vielfälti-gen Ansatzpunkte und Herangehensweisen über-zeugt. Wenn Stephen E. Sachs die Betonung der »Rolle informeller Normen und außerrechtlicher Anreize im Vergleich zum formellen Rechtssys-tem« durch jüngere Forschung zur Konfliktlösung im Handel für die mittelalterlichen englischen Messen ausdrücklich nicht bestätigen will (Kurz-fassung 37), düre er sich, was ihren Themen-bereich betrifft, der Zustimmung der meisten anderen Beiträger zu dem Sammelband sicher sein. Das schließt nicht aus, dass auch die quellenmäßig wesentlich schwerer zugänglichen Mittel der Streitvermeidung und -beilegung im Fokus der Rechtsgeschichte bleiben müssen.

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Christian Windler

Objekte als Medien der Diplomatie*

Wovon handelt der vorliegende Sammelband? Der Titel des Bandes, aber auch die Einleitung der Herausgeber weisen zunächst in Richtung einer Problematik, die in den meisten Beiträgen nicht im Vordergrund steht: das Verhältnis von Diplo-matie und Wirtscha in Spätmittelalter und Frü-her Neuzeit. Der Rezensent würde den Herausge-bern nicht widersprechen, wenn sie die Relevanz dieser in der Tat bislang ungenügend beleuchteten Problematik unterstreichen. Doch von Wirtscha,

von den ökonomischen Interessen von Gesandten oder den diplomatischen Aufgaben wirtschali-cher Akteure – etwa von Kaufleuten – handeln die Texte des Bandes nur am Rande.

Der Sammelband enthält stattdessen eine Reihe von Aufsätzen, die überwiegend aus der Perspek-tive einer Kulturgeschichte des Politischen die Bedeutung von Gaben als Medien spätmittelalter-licher und frühneuzeitlicher Diplomatie in den Blick nehmen und mit diesem Fokus durchaus

* M H, C J(Hg.), Materielle Grundlagen der Diplomatie. Schenken, Sammeln und Verhandeln in Spätmittelalter und Früher Neuzeit (Irseer Schrien. Studien zur Wirtschas-, Kultur- und Mentalitätsgeschichte N. F. 9), Konstanz, München: UVK 2013, 292 S., ISBN 978-3-86764-364-1

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einen wertvollen Beitrag zu wissenschalich rele-vanten Fragen leisten. Den Autorinnen und Auto-ren geht es in erster Linie um höfische Kultur, um symbolische Kommunikation, um Fragen des Ga-bentausches in überwiegend europäischen und in einem Fall auch interkulturellen Kontexten. Nicht so sehr die Frage nach den »materiellen Grund-lagen von Diplomatie« als vielmehr jene nach der Art und Weise, wie Objekte verschiedener Art als Medien der Kommunikation zwischen Herr-schasträgern unterschiedlichen Ranges eingesetzt und wahrgenommen wurden, steht also im Mittel-punkt.

Wenn Luxusgegenstände als Medien des zwi-schenhöfischen Verkehrs gebraucht wurden, spiel-te der ökonomische Wert der Objekte durchaus eine Rolle, wie Jan Hirschbiegel und Ulf Christian Ewert zeigen; er sollte die Empfänger verpflichten und schuf zugleich besondere Anreize, von diesen Gegenleistungen zu erwirken. Ökonomisches Ka-pital wurde im zwischenhöfischen Verkehr ebenso wie im Umgang mit Beutestücken (dazu der Bei-trag von Michael Jucker) in andere Kapitalsorten transformiert, Luxusgegenstände also mit neuen Wertzuschreibungen verbunden. Die Beiträge von Harriet Rudolph und Evelyn Korsch behandeln das Schenken als Akt symbolischer Kommunika-tion bei Herrschereinzügen bzw. Herrscherbesu-chen. Der Vergleich der Kaisereinzüge in Nürn-berg und beim sächsischen Kurfürsten zeigt, wie über Schenkakte der unterschiedliche Status von Reichsständen ausgehandelt wurde, während mit dem Austausch von Geschenken anlässlich des Besuches Heinrichs III. in Venedig 1574 die pre-käre Stellung der beiden Hauptbeteiligten – der Serenissima im Kreis der europäischen Mächte, Heinrichs III. als neuen Königs von Frankreich – gefestigt werden sollte.

Die im zweiten Teil unter dem Titel »Akteure« zusammengefassten Beiträge entsprechen am ehes-ten dem Anspruch, das Verhältnis von Diplomatie und Wirtscha auszuleuchten. Hier geht es um den Handel mit Luxusgütern und dessen Ver-schränkung mit den Beziehungen zwischen Herr-schasträgern und anderen Personen hohen Stan-des. Auch bei der Vermittlung seltener und kost-barer Objekte blieben die kaufmännischen Dimen-

sionen des Handelns allerdings der Pflege von Sozialbeziehungen in einem höfisch-adligen Kon-text untergeordnet, wenn etwa Philipp II. einen Hofnarren nach Italien sandte (Susanne Kubersky-Piredda / Salvador Salort Pons) oder Gesandte am französischen Hof Luxuswaren und Künstler nach Hause vermittelten (Corinne Thépaut-Cabasset; Martin Pozsgai). Andererseits dienten die Kontakte zu fremden Gesandten den Erben der Brühl’schen Sammlungen dazu, diese möglichst vorteilha zu veräußern; soziales Kapital konnte in diesem Fall also in ökonomisches Kapital transformiert wer-den (Ute Christina Koch).

Im dritten Teil des Sammelbandes rückt erneut der Geschenkverkehr, nun mit einem Fokus auf die Objekte, in den Mittelpunkt. Johanna Beate Lohfffragt nach der Verbreitung von Bildern aus Edel- und Halbedelsteinen aus Italien, die für die Be-herrschung besonderer künstlerischer Fertigkeiten standen. Magdalena Bayreuther untersucht den Umgang mit edlen Pferden, deren Züchtung im höfischen Kontext ein wichtiges Element fürstlich-adliger Statussicherung darstellte. Der letzte Bei-trag beleuchtet den Umgang mit Objekten in der indianisch-europäischen Diplomatie in Nordame-rika. Ulrike Kirchberger zeigt dort, wie die Euro-päer im 18. Jahrhundert die lokalen zeremoniellen Formen adaptierten. Sie unterstreicht dabei die dy-namischen Interaktionen zwischen verschiedenen Kulturen des Geschenkverkehrs, der Beziehungen auf einem »middle ground« ermöglichen konnte, wo sonst mangelnde sprachliche Kenntnisse Gren-zen setzten. Unterschiedliche Vorstellungen von der jeweiligen Bedeutung der Geschenke beinhal-teten hier (ähnlich wie in anderen geographischen Kontexten) neben der Gefahr von Missverständnis-sen auch ein Potential im Hinblick auf die Siche-rung von Beziehungen.

Die Beiträge des Bandes sind ausnahmslos solide dokumentiert und zum Teil auch methodisch in-spirierend. Während die Frage nach dem Verhält-nis von Diplomatie und Wirtscha nur am Rand thematisiert wird, verdient der Sammelband als Beitrag zu einer Kulturgeschichte von Diplomatie Beachtung.

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Kritik critique

Christian Windler 353

Harald Maihold

Kriegsrecht aus moraltheologischer Sicht*Es ist kein Geheimnis mehr, dass die Theolo-

gen aus dem Umfeld der Spanischen Spätscholas-tik einen immensen Einfluss auf die moderne Rechtslehre hatten. Anders als für das Straf- und Vertragsrecht, wo dieser Einfluss erst durch neuere Untersuchungen der letzten Jahre nachgewiesen wurde, war er für das Völkerrecht schon länger bekannt. Bisher waren die Spanier indes mehr als Vorläufer und Wegbereiter des modernen Völ-kerrechts, ihre theologischen Wurzeln hingegen kaum ernstha in den Blick genommen worden. Dies möchte der vorliegende Band ändern, indem er klassische Texte zum Kriegsrecht aus der Feder Francisco Suárez’ in ihren moraltheologischen Kontext stellt. Es handelt sich um den zweiten Band einer Reihe von Texten zur politischen Phi-losophie und Rechtstheorie, die zentrale Werke von Suárez und Francisco de Vitoria ediert.

Dem lateinischen Text ist eine deutsche Über-setzung beigegeben, die in weiten Teilen freilich nicht neu ist, sondern auf einer 1965 erschienenen Übersetzung von Josef de Vries beruht. In einem 64-seitigen Vorwort des Herausgebers werden der Autor, seine Methode und die einzelnen Texte vorgestellt. Die Erkenntnis, dass das Kriegsrecht bei Suárez in einen moraltheologischen Kontext eingebettet ist, führt hier zu einigen Korrekturen des bisherigen Suárezbildes, etwas was das genuin Christliche an seiner Kriegslehre (XXXII), die Grundlage des Kriegführungsrechts (XXXVIII, LVI) oder das Verhältnis von Recht und Moral (L) angeht. Im Anhang finden sich neben Anmer-kungen die für die Edition benutzten Siglen, Quellen, (leider sehr selektive) Hinweise auf Se-kundärliteratur sowie ein Sach- und Personenver-zeichnis.

Der Titel soll wohl Assoziationen an Grotius De iure belli ac pacis wecken, doch handelt es sich

bei den Texten nicht um einen einheitlichen Trak-tat, sondern um Auszüge, die sehr verschiedenen Stellen des Suarezianischen Gesamtwerkes ent-nommen und in vier Abschnitte zusammengefasst sind. Durch die unterschiedliche Herkun erklä-ren sich einige Ungereimtheiten in der Gliede-rung.

Den Löwenanteil nimmt De bello (60–193) ein, die Schlussdisputation des Traktates De caritate(1521 posthum), der ein kurzer Abschnit aus der Defensio fidei (1613) vorangestellt ist. Suárez be-schäigt sich darin eingehend mit Fragen der Sittlichkeit des Krieges, des gerechten Kriegsgrun-des, der Teilnahme von Geistlichen an Kriegshand-lungen, der Beurteilung von Söldnern bis hin zu einzelnen Fragen der Kriegsführung, etwa der Be-troffenheit unschuldiger Dritter durch Kriegshand-lungen. 1 Mit Ausführungen zu Aufruhr und pri-vatem Duell schließt der Text ab. Wie der Heraus-geber betont, stehen Suárez Ausführungen zum Kriegsrecht nicht im Zusammenhang der Völker-rechtslehre, sondern haben ein pastoraltheologi-sches Anliegen, indem sie das in Kriegszeiten der Sünde ausgesetzte Verhalten des handelnden Indi-viduums in den Mittelpunkt rücken. Von Francisco de Vitoria übernimmt Suárez die Auffassung des Krieges als eines hoheitlichen Strafaktes, der in Ermangelung einer höheren Instanz durch den geschädigten Fürsten selbst durchgesetzt wird. Kriege können nach Suárez nicht nur zur Vertei-digung, sondern im Einzelfall auch als Angriffs-krieg gerechtfertigt sein, unterliegen jedoch stren-gen Voraussetzungen. Die Bekämpfung von Un-gläubigen reicht nach Suárez für einen gerechten Kriegsgrund ebenso wenig aus wie die Bestrafung von Beleidigungen Gottes. Für Suárez sind es die Tugenden von Liebe und Gerechtigkeit, die dem Einzelnen in zweifelhaen Situationen eine ethi-

* F S, De pace – De bello. Über den Frieden – Über den Krieg, hg. und eingeleitet von M K (Politische Philo-sophie und Rechtstheorie des Mittelalters und der Neuzeit, I / 2). Stuttgart-Bad Cannstatt: frommann-holzboog 2013, LXIV, 267 S., ISBN 978-3-7728-2505-7

1 Vgl. hierzu auch H M,Die Tötung des Unschuldigen, ins-besondere im Krieg – Schuld- und Nutzenargumente in der thomisti-schen Morallehre des 16. Jahrhun-derts, in: Ancilla Iuris (www.anci.ch), Artikel 2007:1, 1–19.

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354 Kriegsrecht aus moraltheologischer Sicht

sche Richtschnur bieten können. Die Grundsätze über den gerechten Krieg werden auch für den Aufruhr und das private Duell fruchtbar gemacht.

Schon die Herkun dieses wichtigen Textes aus dem Traktat über die Gottesliebe erweist, dass Suárez’ Ausführungen nicht so sehr rechtlicher Natur sind, sondern in einen moraltheologischen Kontext eingebunden sind. Die drei weiteren vom Herausgeber ausgewählten Texte sollen dies noch deutlicher machen. Der erste Traktat, der in der Edition De pace (2–17) genannt wird, vereinigt mehrere Abschnitte aus den Traktaten De gratia(1619/51) und De fide, spe et caritate (1621). Die Zusammenstellung macht deutlich, dass Suárez’ Kriegs- und Friedenslehre in engem Zusammen-hang mit seiner Heilslehre steht. Das Verständnis des Friedens als Gottesgeschenk und Daseinsziel gleichermaßen ist Ausgangspunkt der Suarezi-schen Kriegslehre.

Suárez konstruiert die Gerechtigkeit im Krieg in Parallele zur Strafgerechtigkeit. Zu deren besserem Verständnis wird als weiterer Text De iustitia vindi-cativa (18–59) vorgestellt, der letzte Abschnitt des Traktats De iustitia Dei (1599). Suárez nimmt darin zunächst Stellung zu der Diskussion, ob die Straf-gerechtigkeit der Kommutativ- oder Distributivge-rechtigkeit angehöre, und verwir beide Ansich-ten, da der strafende Hoheitsträger keine Schuld auf sich geladen habe und zur Strafe nicht ver-pflichtet sei. Stattdessen verortet Suárez die Straf-gerechtigkeit Gottes in der Vorsehungs- oder Re-gierungsgerechtigkeit bzw. die der irdischen Rich-ter in der Gesetzesgerechtigkeit. Als Übel ist die Strafe für Suárez nicht als Selbstzweck zu wollen, sondern stets zur Beförderung sozialer Zwecke. Der Kommutativ- oder Distributivgerechtigkeit komme aber unterhalb dieser Ebene bei der Be-grenzung der Strafe auf das gerechte Maß eine tragende Rolle zu. Der Straegriff wird, ähnlich wie bei Thomas von Aquin, aber anders als bei Alfonso de Castro, nicht auf die Sündenstrafe be-grenzt; er enthält auch »medizinische« und »wie-dergutmachende« Strafen (55, 59). 2

Der dritte, am Schluss des Buches abgedruckte Text De homicidio (194–227) enthält Ausschnitte

aus dem Buch über die Kirchenstrafen (De censuris, 1603), in denen es um die Strafe der Weiheuntaug-lichkeit (Irregularität) für im Krieg geschehene Tötungshandlungen geht. Neben den Soldaten, die von der Irregularität praktisch wenig betroffen waren, geht es vor allem um die Beteiligung von Priestern an kriegerischen Auseinandersetzungen mit tödlichen Folgen, die nicht zuletzt kompetenz-rechtliche Frage des Dispenses nach sich zieht. Die Lösung sucht Suárez in einer konsequenten An-wendung der Theorie des gerechten Krieges, aber auch in strafrechtlichen Differenzierungen wie Vorsatz, Fahrlässigkeit und Zufall oder Täterscha und Teilnahme, für die er sich ausführlich mit den kirchenrechtlichen Autoritäten auseinandersetzt.

Trotz der umständlich und hölzern wirkenden Sprache der Vorlage und trotz einiger Recht-schreibfehler ist dem Übersetzer der Versuch, den Text in eine moderne, lesbare Sprache zu über-führen, weitgehend gelungen. Die Editionsgrund-sätze sind dagegen etwas gewöhnungsbedürig. So werden die Fundstellen der ausgewählten Texte lediglich in den Fußnoten des lateinischen Textes erwähnt; ihre Stellung im Gesamtwerk wird so nicht auf Anhieb deutlich. Leserfreundlicher wäre es auch gewesen, wenn die von Suárez stam-menden Nachweise nicht mit den Anmerkungen des Herausgebers in den Anhang verbannt, son-dern in die Fußnoten gesetzt worden wären. Die meisten Literaturhinweise sind sogar lediglich in den Fußnoten der lateinischen Fassung aufgeführt. Eine Nachverfolgung der für einen scholastischen Text nicht unwichtigen Autoritäten wird dadurch eher erschwert.

Die Ausgabe wie überhaupt die ganze Buch-reihe ist vom Verlag frommann-holzboog äußer-lich sehr ansprechend gestaltet worden. Möglicher-weise ist dies ein Grund für den leider sehr hohen Preis, der für die Edition verlangt wird. Für den Gebrauch in Studienseminaren eignet sich die vorliegende Ausgabe daher leider nicht, obwohl genau dies wünschenswert wäre.

n

2 Vgl. hierzu H M, Strafe für fremde Schuld? Die Systematisie-rung des Straegriffs in der Spani-schen Spätscholastik und Natur-rechtslehre, Köln u. a. 2005. Zur Strafrechtslehre bei Suárez vgl. jetzt

auch F G, Strafe als Pflicht, in: O B / N B / G S (Hg.), ›Auctoritas omnium legum‹. Francis-co Suárez’ ›De legibus‹ zwischen Theologie, Philosophie und Juris-

prudenz, Stuttgart-Bad Cannstatt 2013, 255–266.

Kritik critique


Martti Koskenniemi

On the religious Origins of Capitalism*Political theology’s recent rise to academic

prominence has, no doubt, been inspired by the sense of a certain staleness of standard (read: Anglo-American) analytical political and legal theory. Especially postcolonial and postmodern philosophy has resuscitated debates about the real-ity of secularization in Europe, pointing out that much of our shared political metaphysic is indeed that – a metaphysic – with close historical links to debates in theology. That should be no surprise. For almost half a millennium theology stood as the primus inter pares among the three »higher faculties« at European universities. The best minds at work in Europe explained the social and political changes to European audiences within a fully God-centric intellectual universe. Awareness of that fact, as Wim Decock points out in this massive and brilliant work, not only assists us in under-standing the development of our political and legal vocabularies. It also enables us to grasp the con-tingency of our present debates, the way opposite standpoints on political and legal obligation refer back to assumptions about human nature, the roles of individual and society and the nature of »law« that are hard to detach from religious speculation.

Even such a quintessentially modern institution as »contract« carries a long pedigree of political theology. What is the role of human will in the creation of social relations? How to understand the freedom to dispose of what one owns and the character of the »fairness« we associate with a market society? The emergence of a wholly global network of mercantile relations in the sixteenth and early seventeenth centuries, the discovery of the »New World« and the Protestant rebellion destabilised the religious morality that once pro-vided authoritative responses to such questions. Theologians had a great stake in reacting to what was happening. They did this with great energy, developing a massive literature the point of which

was to relate the individualization of social rela-tions, especially apparent in a novel commercial ethic, to the theology of sin and redemption, the overall search for beatitude that for Christians provides the frame for understanding the world and living in it.

That it fell on the 16th and early 17th century Spanish theologians – the »Second scholastic« or the »Salamanca school« – to articulate the trans-formations into a new morality of law has long been known. In international law, for example, the Dominican scholar Francisco de Vitoria and the Jesuit Francisco Suárez have been heralded as producers of something like the first recognizably »modern« discourse of international legality – just war, »sovereignty« and treaty law as the heart of diplomacy. Their suggestion that legitimate politi-cal government was derived from the consent of the community has inspired much later political thought. To be sure, the debate about the degree of the »modernity« of the scholastics and whether Hugo Grotius should read among them, remains inconclusive. In Decock’s view at least as far as the theory of contract is concerned, Grotius is best read as a loyal follower of the Spaniards. But if not much argument is today needed to highlight the significance of the early modern Spanish theolo-gians, we still lack a good sense of what, specifi-cally, made them so significant. Relevant scholar-ship tends to be hidden in specialist volumes, available only in the most well-resourced research libraries. Modern editions of the scholastics’ works are still few, the texts remain in the original Latin, and most commentary – at least most legal com-mentary – is either in Spanish or in German. Basic questions about the scholastics still need to be posed. What was their principal intellectual con-tribution and how did it express itself in their extensive writings? What sources did they use and how was their contribution received? How

* W D, Theologians and Con-tract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650) (Legal History Library 9) Leiden, Boston: Nijhoff 2013, XVI, 723 p., ISBN 978-90-04-23284-6

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356 On the religious Origins of Capitalism

united was the »school« in reality? We are speaking of three-four generations of intellectuals, initially located on the Iberian peninsula, later also in central and northern Europe. If the founding generation (Francisco de Vitoria, Domingo de Soto, Melchior Cano) were Dominicans, leader-ship in the school towards the late-sixteenth and early seventeenth century shied decisively into the hands of the Jesuits. 1 How justifiable is it to separate those men from the intellectuals debating natural law and the reason of states around them?

Wim Decock’s over 600-page work provides an extensive but engaging and readable discussion of one of the many fields in which the moral theolo-gians of the second scholastic had a huge influence – the law of contracts. It is true, Decock reminds us, that Roman law already had a robust contracts doctrine and that this was part of the source material used by the theologians. But the latter were no civil lawyers. Roman doctrine tended to be too pragmatic and formalist for responding efficiently to the new problems of economic and political government; nor could it alleviate the attendant spiritual concerns. How to integrate Christian tradition in a profoundly transformed social and political world? Bricolage in Roman and Canon law was insufficient for the purpose of ex-plaining the new practices in specifically Christian terms so that they would not challenge traditional authority but, if possible, strengthen it.

In developing their views of contract law the Dominican scholars from Vitoria, his students Soto, Cano and Tomas de Mercado, took their starting-point from the Thomistic metaphysics ac-cording to which human beings enjoyed dominium in actionum suarum, authority over their own acts. But although humans were »free« to construct the social and economic world in accordance with their »will«, the final goal of their freedom was still supernatural beatitude, the ability to see God »in the face«, as Soto put it. The metaphysical freedom that humans enjoyed and that corre-sponded to their biblical status as imago Dei now justified a general liberty of contract. Even »naked

pacts«, as Decock shows, agreements without a definite form, constituted simply of offer and acceptance, were binding for Christians. If a con-tract was the expression of a party’s »will«, then it could be understood as a promise or an oath that could not be broken without sinning. For the scholastics, contractual freedom and the binding force of will were important aspects of moral anthropology. No argument is needed to demon-strate the huge importance of this doctrine to the commercial world of the 16th century, so well described by Fernand Braudel and his followers. Here was a way to justify the free determination of the conditions of economic exchange by the par-ticipants in those exchanges themselves. No sur-prise that much of the very ideological historiog-raphy produced at Austrian or United States uni-versities in the twentieth century has interpreted the Spanish theologians as intellectual forebears of Adam Smith. Playing down the theological presup-positions of the tradition has seemed nicely to support (neo)liberalism’s intellectual hegemony at the economics departments of Western uni-versities.

Wim Decock’s painstaking work should be warmly welcomed because it brings the biblical background and the telelology of beatitude back into our reading of these texts. Much of the work of the scholastics came about as instructions to young clerics on how to manage the sacrament of penance. The theologians insisted that in case a contractual exchange had been unfair – because the principles of commutative justice had not been respected – the duty of restitution was more than a mere legal duty. It was, at least equally importantly, a condition for receiving absolution. Soto, for one, always insisted on the parallelism between the legalprinciple of restitution, as developed under Quaes-tio 62 of the secunda secundae of Aquinas’s Summa theologiae (the unvaried starting-point of the dis-cussion) and the religious duties the sinner has to undergo in the process of penance. Decock re-minds his readers over again that the scholastics operated in the worlds of forum internum and forum

1 A thorough overview on the three generations of the school and espe-cially their theological views is B P, J, La escuela de Salamanca y la renovación de la teologia en el siglo XVI, Madrid: Biblioteca de au-tores cristianos 2000.

Kritik critique


externum simultaneously. They were concerned both with the secular justice of contractual arrange-ments as well as their effect on the soul of the parties. The latter concern was not an add-on to problems of the emerging market economy but the very heart of the discourse being theological. The Christians’ daily lives were increasingly lived under pressure from political authorities, demanding loyalty to secular rules of good government, and from conditions of economic exchange laid out by professional profit-seeking merchant communities. All of this was terribly problematic for traditional Christian morality and acerbated the conflict be-tween secular and religious authority, feeding into the kinds of concerns that Protestant agitators oen managed to turn into the benefit of a reli-gious revolution.

The scholastics were, of course, no revolution-aries. But many of them were in the service of the internal reform movement within the Catholic church (»counter-reformation«). The moral casuist-ry that emerged from their writings resulted from a search for a compromise between traditional Christian ethic and the new practices of political and economic governance. As Decock stresses, the objective was both social peace and the tranquillity of consciences. The moral theologians had great interest in the novel practices, not only in prob-lems concerning the treatment of the Indians (for which they were well-known) but also in under-standing the operations of the expanding economy that boomed as a result of the importation of New World silver to Europe and China. The boom led to the development of new trading practices, in-cluding bills of exchange, a variety of banking and insurance instruments, and other forms of com-mercial exchange that involved routine profit-seek-ing that flew in the face of the prohibition of usury and Aristotelian principles of justice. In this con-text Canon lawyers such as Martin Azpilcueta (Dr. Navarrus) or Diego Covarruvias y Leyva as well as Dominicans such as Soto and Tomas de Mercado, produced some of the best introductions on how, in practice, contractual and property relations and monetary policies organized early modern eco-nomic life. Their concern was not to produce an ethnography but to create a language of justifica-tion within which the tension between tradition and commerce could be managed, the internal and external forums brought together and the Chris-tian struggle for supernatural beatitude won. It was not for nothing that much of their work was

written in confessors’ manuals. The clerks of the Catholic church needed a realistic picture of the conditions in which their clients operated.

Wim Decock demonstrates how it is indeed right to think of the moral theologians as the first theorists of the economic market in which the will of the buyers and sellers provides the basic criterion for assessing the moral justification – and hence the legality, the two being completely intermingled – of the transactions. The criterion of just price is the »common estimation« (communis aestimatio) of the public at large. But the scholastic writers were aware that the conditions of the formation of a common view might not always be present owing to the scarcity of the commodities or monopolistic practices fore example. If the scholastics were no Marxists, they were no Friedmannites either. There were many reasons for the prince to set a »legal price«. This might be needed to relieve the poor or to fight monopolies but also to see to it that the conditions of the market were such as to contrib-ute to domestic peace and spiritual tranquillity. Despite their insistence that the authority of the prince came from the people (and not directly from God), theologians such as Vitoria, Soto and Francisco Suárez, for example, were keen to stress the authority of the prince and to grant a strong preference to formal laws over considerations re-garding the justice of particular types of exchange. That they did not encourage subjects to think for themselves but accepted the king’s law as almost unexceptionally binding is easy to understand from the perspective of their political project. Vitoria’s famous relectio on civil government (1528), for example, emerged as a defence of royal power in a situation where Castile had just expe-rienced a series of urban revolts (the »Comuneros« rebellion, 1520–1521). It is a measure of the flexibility of their political assumptions that they were able to ground absolutism on the view of the »consent of the governed« by the Hobbesian view for which it sufficed that the consent was merely hypothetical or tacit. Moreover, obedience to pos-itive law was also an obligation of conscience. Decock does not engage with such notorious out-liers among the later Jesuits as Juan de Mariana who did argue for an extensive right of resistance against a heretical ruler. Nor does he belabour Suárez’ encouragement for right-thinking rulers to assist oppressed Catholics such as the English recusants compelled to swear their loyalty to the king. These were religiously motivated exceptions

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in an otherwise authoritarian discourse. The main thrust lies with peace and stability that, in the mind of the renaissance thinkers, required accept-ing that government was to be kept firmly in the hands of the ruler, best placed to operate the arcanaof enlightened rulership.

This was also visible in their economic views. If the moral theologians agreed on contractual freedom as the core of contracts theory, they also agreed that this freedom was by no means un-limited. The writers disagreed on the number and nature of the limitations. Decock distinguishes between formal limits that had to do with vices de consentment, cases where the contract did not emerge from free will (fraud, coercion, error), and substantive limits where will collided with imper-ative moral requirements. Most of this book has to do with the way in which the moral theologians conceived of those limits, obviously important in today’s contract law as well. Yet there are differ-ences, too. In the discussion of the »natural limits« on the contractual freedom, Decock expounds the scholastic views on duress and mistake, neither one of which followed automatically from their vol-untarism. »Duress« for example, operated as an independent violation of a duty of justice, coercion of a contract-partner belonging to torts rather than contracts – a construction that allowed thinking of a contract made under duress as not automatically void but voidable in accordance with the wish of the coerced party. Yet here and elsewhere the views of the scholastics were as varied as those of today’s experts. Scholars moved as freely in the consensual and non-consensual, »subjective« and »objective« ends of the spectrum as they do today, illustrating thus the persistence of a discourse of justification that tried to accommodate the individual and the social, reluctant to finally privilege either one. That the result was casuistry, and one that eventually received a bad name is hardly surprising.

The chapters on »formal« and »substantive« limits to the freedom of contract strengthen the reader’s sense that the scholastic discourse is both fluid, in constant motion between opposing prin-ciples and considerations, and rather fixed in what it is able to bring forth as substantive normative resolutions. Freedom of contract is relativized by the argument that subjects have a religious duty to obey positive laws limiting it and that the consid-erations of justice that go to assess the substantive validity of contracts have their predominant sphere of operation in the court of conscience. On the

other hand, the issue of contract for prostitution, at least as presented here, suggests both the difficulty of any general resolution of the dilemmas affected and the reasonableness of the scholastics dealing with them: that the prostitute may keep the money she has received, independently of the injustice of the exchange, is surely something modern readers will find admirable, however contrived the casu-istry that explains the result.

Perhaps the most interesting chapter is the one of »fairness on exchange« that deals with the scholastics’ theory of the just price that comes about as a combination of concerns of »common estimation« and legitimate public intervention for the common good. That the matter has been governed by a search for commutative justice since Aquinas explains much about the enthusiasm with which historians committed to a view of liberal progress have heralded scholasticism. It also ex-plains why it is so easy to see Grotius as a contin-uator of tradition rather than innovator. For the scholastics, it is obvious that no other principle should govern labour relations, either. Grotius would later go as far as to argue that any consid-erations of justice that are extrinsic to commuta-tive, contractual justice are valid predominantly in the court of conscience. In a world where religious institutions have been deprived of enforcement powers, that is as good as throwing distributive considerations overboard. This was not yet the situation when the scholastics were writing. Eccle-siastical courts could, Decock explains, take into account a laesio enormis that was less than half the price of the good – in this way reaching from the pragmatic ethics of the market-place to the moral sensibility of market actors. Concerns about need or merit might still be handled by theological authority. This of course was no longer the case when Grotius wrote. What Decock writes of as »Grotius’ elegant synthesis« (601) was, it seems to me, the product of a somewhat truncated view of his sources; the scholastics would hardly have recognized themselves as the origin of the law /morality distinction into which the Protestant jurists turned the theory of the »forum internum«.

Wim Decock’s extensive study of the 16th and early 17th century moral theologians’ discussions of contract law provides a wholly convincing demon-stration of the interest the second scholastic has for the history of legal and political thought. The casuistry of the moral theologians emerged as a reaction by the best minds of the period to the

Kritik critique


crisis inside the church and to such secular devel-opments as the expansion of the Habsburg empire into a new world with an infidel population the very existence of which had earlier escaped the contemporaries and the massive expansion of in-ternational commerce that was infecting many kinds of human relations with a predominantly secular mercantile ethics. The doctrine of freedom of contract, accompanied by an elaborate casuistry of exceptions was one of the doctrines that sought to accommodate such developments in the tradi-tional world-view. But although Decock calls for a contextual reading of the scholastics, his own work is more concerned with the internal coherence and argumentative structures of their discourse. The author does occasionally point to how a doctrine or an exception was intended to respond to this or that challenge, but he refrains from a more detailed discussion of the operation of the contextual deter-minants. There is, for example, no discussion of the pressures inside the Catholic church that led to the Council of Trent where many of the scholastics played a leading role.

Yet contextualization may also be taken too far – turning even into a »positivism« that reduces intellectual life to a mechanistic superstructure. Perhaps it is in any case more for economic histo-rians to situate these casuistries in the novel com-mercial practices. For legal historians, rules and arguments time-travel more freely. My main crit-ical comment has to do with the decision not to identify specific streams or »tendencies« among the scholastics. Individual theologians make their appearance in this book in a somewhat random or fortuitous way, representing, it seems, only them-selves. The reader encounters a huge number of authors (the bibliography lists altogether ninety-six of them) most of whom are either part of the second scholastic or react to their writings. It would have facilitated the grasp of this literature had the author grouped the scholars as representa-tives of definable tendencies or idioms, seeking to develop the discourse in specific ways. Why did a particular author espouse a position while another took the opposite one? Could one delineate atti-tudes that could be labelled, for example, »con-servative«, »radical«, or »moderate«? Was there a more or less clear mainstream, what were its elements and the main challengers to it? How did religious views link with views in the many controversies concerning the nature of the free-

dom to contract or the power of the ruler to limit it? The difficulties of such a task would of course be great. It was not usual to flag one’s affiliations in this way. The danger of anachronism might would loom large. For the reader, however, called upon to navigate in the thicket of alien or half-familiar names the effort to remember who wrote what in which context will inevitably fail, with the result that the tensions internal to this discourse remain difficult to grasp.

Which is not to say that this would not be a wonderful book. Though extremely erudite and knowledgeable about the world it examines, it is written with a light pen and is full of insights and arguments that link the debates from four-five centuries ago to present concerns. The law of con-tracts becomes alive as a set of problems and solutions that are as plausible or implausible now as they were when the scholastics wrote. It is striking for example, how the scholastics begin to accept that a mercantile ethic may deviate from the morality applicable to ordinary Christians. The book does a marvellous job in showing the rele-vance of religious views for taking a position not only in regard to specific aspects of contract law but also to the very business of governing a society in which the »spiritual« and the »economic« have begun to take separate paths. It brings theology closer to life (and the other way around), by showing how the best theologians sought to man-age concerns raised by the predominance of eco-nomic values in a post-traditional society. What-ever one thinks of their suggested principles and solutions, one cannot avoid admiring the scholas-tics as intellectuals engagés. If only the academy would today produce similar forces! Could theol-ogy provide such? Perhaps not, or at least not university theology. We may have to content our-selves with the heterodox group of political theo-rists and jurists commenting on the successive European »crises« from their tenured positions as experts in some rather narrow technical vocabu-lary. Having put this book down, one is le with a powerful sense that however intractable our present economic and political problems, there is nothing intrinsic in the academy that prevents its engagement in their resolution with an orientation towards political effect and spiritual renewal.

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Geldüberwuchert*Beim Stichwort Wucher reißt manchem Rechts-

praktiker die Geduld. Dabei haben interdiszipli-näre Forschungen zu diesem Thema im Zuge der Finanzkrise und dank der erfolgreichen Entwick-lung des islamischen Bankwesens in den letzten Jahren einen beachtlichen Aufschwung genom-men. Die Frage, was vom Wucher übrigbleibt, stand im Februar 2011 im Mittelpunkt eines Workshops des Exzellenzclusters »Religion und Politik in den Kulturen der Vormoderne und der Moderne« an der Westfälischen Wilhelms-Univer-sität Münster, dessen Ergebnisse nunmehr in ei-nem von Matthias Casper, Norbert Oberauer und Fabian Wittreck veröffentlichten Sammelband vor-liegen. Auch wenn es den Herausgebern gelungen ist, die Debatte um einige neue Perspektiven zu erweitern, ist die Themenauswahl traditionsgemäß hauptsächlich auf die Zins- und Wucherkontrover-se in den christlichen bzw. muslimischen Rechts-traditionen beschränkt. Der Zusammenbruch des christlichen Zinsverbots vor mindestens fünf Jahr-hunderten ist allen bekannt. Aufgrund des Beitrags des Ökonomen Volker Nienhaus über die Entwick-lung Sharia-konformer Finanztechniken erscheint jedoch am Ende die Frage legitim, ob nicht auch das Islamische riba-Verbot allmählich durch die Logik des Geldes überwuchert wird.

Durchaus erfrischend ist der Eröffnungsbeitrag des Alttestamentlers Eckart Otto. Der Autor be-trachtet sowohl das Schuldenerlassgebot in Dtn 15,1–10 als auch das Zinsverbot innerhalb der jüdischen Gemeinscha in Dtn 23,20–21 als bibli-schen Gegenentwurf zur neuassyrischen Praxis der Gerechtigkeitsakten. Diese Akten, in denen der Fürst einen Schuldenerlass ausrufen ließ, entspra-chen im alten Orient der Funktion des Königs, für den Schutz der sozial Schwachen einzustehen. Die Neuassyrier sahen nun die Möglichkeit vor, den Gerechtigkeitsakt des Herrschers durch Abwehr-klauseln in den Darlehensverträgen außer Kra zu

setzen. Das Buch Deuteronomium dagegen trennt die Ebene der Moral von der des Rechts, indem der Schuldenerlass als ethischer, rechtlich nicht-ein-klagbarer Appell neben dem Recht konzipiert wird. Ein Bruderethos soll die Juden dazu veran-lassen auf Kredit- und Zinsgewinn zu verzichten. Die mittelalterliche christliche Tradition leitete einen Prozess der Universalisierung dieser Binnen-moral und damit einhergehend eine Universalisie-rung des Zinsverbots ein. Den Umbruch, der die Moderne einläutete, verbindet Otto in Anlehnung an Benjamin Nelson mit einer Umkehrung dieses Prozesses, das heißt mit einer für die Marktlogik kennzeichnenden Ausweitung der Außenmoral, die seines Erachtens von den Reformatoren be-kräigt wurde.

Eine überblicksartige Darstellung vom Aufstieg und Niedergang des christlichen Zinsverbots vom Altertum bis ins 19. Jahrhundert wird vom Rechts-historiker Hans-Jürgen Becker angeboten. Die syn-thetische Kra dieses Beitrags ist exemplarisch für den Referenzcharakter, den der Sammelband ohne Zweifel dauerha genießen wird. Die rechtshis-torischen Ausführungen Beckers lassen sich gut um Joachim Wiemeyers Analyse der Translation des herkömmlichen Zinsverbots in die christliche Sozialethik des 19. und 20. Jahrhunderts ergänzen. Tatsächlich verweist der gelernte Volkswirt und Theologe auf die Bemühungen etwa von Oswald v. Nell-Breuning (1890–1991), die neue Katego-rie des »Sozialwuchers« einzuführen. Demnach ergibt sich Wucher aus gestörten gesellschalichen Machtverhältnissen, z. B. Wettbewerbsbeschrän-kungen auf dem Markt durch Kartellierung oder Monopolbildung. Unberührt bleibt die Frage, in-wieweit die katholische Soziallehre durch diese neue Kategorie in der Nachkriegszeit zur morali-schen Rechtfertigung der Wirtschasordnung auf europäischer Ebene beigetragen hat. Aufschluss-reich sind Wiemeyers Überlegungen zur aktuellen

* M C, N O, F W (Hg.), Was vom Wucher übrigbleibt. Zinsverbote im historischen und interkulturellen Vergleich, Tübingen: Mohr Siebeck 2014, VI, 195 S., ISBN 978-3-16-152768-5

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Relevanz der Diskussion über Wucherzinsen, etwa bezüglich der Kreditvergabe in Entwicklungslän-dern. Der Ansicht Karl Homanns über den heuris-tischen Wert stark werthaltiger Kategorien fol-gend, sieht der Autor den Begriff »Wucher« als Indiz für moralisches Fehlverhalten, das dann aber einer präzisen ökonomischen Analyse bedarf, be-vor die Situation als unfair beurteilt wird.

Zumindest vorübergehend wird von Experten des Islam Finance nicht erwartet, das Zinsverbot grundlegend umzudenken. Nach Ansicht des Un-ternehmensberaters Philipp Wackerbeck ist das Wachstumspotenzial für Sharia-konforme Kredit- und Versicherungsveranstaltungen geradezu un-begrenzt. Allerdings obliegt den Sachverständigen im Bereich Islamic Banking die schwere Aufgabe, das Spannungsverhältnis zwischen den teilweise entgegengesetzten Zielstrebungen von Wirtscha, Religion und Recht überbrücken zu helfen. Aus dem von Osman Sacarcelik ausgeführten Fallbei-spiel der islamischen Zertifikate (sukuk) ergibt sich, dass sich Friktionen zwischen den Erwartungen der Marktteilnehmer und den religiös inspirierten wirtschasethischen Prinzipien kaum vermeiden lassen. Dem »Profit-Loss-Sharing-Principle« gemäß fordert der Islam eine möglichst paritätische Risi-koverteilung zwischen den Vertragsparteien: Allein aufgrund angemessener Risikoübernahme sind Gewinne erlaubt. Trotzdem wünscht sich der Markt ein sicheres Fremdkapitalinstrument, das feste Renditen abwir und mit einer Kapitalgaran-tie ausgestattet ist. Diesbezüglich hätte sich ein Vergleich mit der teilweise von Becker behandelten 5%-Kontroverse (contractus trinus) in der christli-chen Moraltheologie und Kanonistik der frühen Neuzeit empfohlen.

Wertvolle Erkenntnisse über Inhalt und Reich-weite des riba-Verbots können dem Beitrag des Juristen und Islamwissenschalers Norbert Ober-auer entnommen werden. Im Hinblick auf die zunehmende Klu zwischen Ideal und Wirklich-keit im islamischen Kreditgeschä warnt er im-plizit vor der Gefahr einer zynischen Gesamteva-luation. So sehr die Utopie durch die zahlreichen Umgehungsgeschäe unterminiert wird, als nor-matives Ideal bleibt die Austauschgerechtigkeit im Islamic Banking wenigstens bestehen. Dem-

entsprechend bleibt ein Grundbewusstsein der Fragwürdigkeit von bestimmten Finanztechniken im Ansatz gewährleistet. In ähnlicher Weise be-merkt Oberauer m. E. zu Recht, dass die Bereit-scha, wirtschalichen Phänomenen, die sich nicht eliminieren lassen, durch kompromisshae Konstruktionen einen rechtlichen Raum zu gestat-ten, wenigstens dazu führt, dass ein gewisser Grad an moralischer Kontrolle am Leben erhalten wird. Diese Überlegungen ließen sich problemlos auf die Beurteilungen der wirtschasethischen Bemühun-gen der spanischen Spätscholastiker, die im Sam-melband übrigens vernachlässigt wurden, übertra-gen.

Selbst wenn man diesen Band uneingeschränkt anpreisen kann, düre der Leser das Fehlen eines Schlusskapitels, in dem die Erkenntnisse zusam-mengeführt werden, bedauern. Dabei hätte es reichlich Vergleichspotenzial zwischen dem Phä-nomen des Islamic Banking in der Gegenwart und dem kreativen Versuch der Herausbildung einer christlichen Wirtschasordnung im Spätmittelal-ter und in der frühen Neuzeit gegeben. Anregende Ansätze zu einer Gesamtreflektion über Relevanz bzw. Irrelevanz des Zinsverbots werden immerhin von Fabian Wittreck am Ende des dritten Beitrags im Sammelband angeboten. Der Autor stellt nur geringe Einflüsse der Wucherdebatte auf das gel-tende Recht in Deutschland fest. Wie beispiels-weise aus dem Beitrag von Matthias Casper her-vorgeht, liegen dem aktienrechtlichen Zinsverbot keine moralischen Vorstellungen, sondern rein wirtschaliche Motive zu Grunde. Außerdem ver-spricht die Konfrontation christlicher und islami-scher Zinsverbote seiner Meinung nach nur einen unbefriedigenden Beitrag zum besseren kognitiven und emotionalen Verständnis des heutigen islami-schen Kreditgeschäs. Nicht zuletzt deutet er auf die Gefahr der Folgefrage hin (68), »ob dies nicht nur ein weiteres Anschauungsobjekt zum Beleg der beliebten These ist, der Islam habe diesbezüg-lich Nachholbedarf in Sachen Modernisierung bzw. Säkularisierung – das Christentum habe das Zinsverbot ja auch abgestrei ...«

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Ich sündige, also bin ich!Das spanische Drama als Probebühne für moralische Experimente*

Literatur- und Rechtsgeschichte haben bisher, jenseits der »Law and Literature«-Bewegung, kaum Berührungspunkte. Dass literarische Quellen aber einen reichen Fundus an moralischen Vorstellun-gen bereithalten, der eine rechtshistorische Wür-digung verdiente, zeigt eine neue theaterwissen-schaliche Studie. Anknüpfend an ihr 2007 er-schienenes Buch »Conscience on Stage«, geht Hilaire Kallendorf dem Sündenbegriff in frühneu-zeitlichen spanischen Komödien nach, von denen sie, unterstützt durch eine digitale Edition, mehr als 800 Stücke auswertet, ergänzt durch Hinweise auf das englische Renaissancedrama und auf Bild-material. Strukturiert, lebendig und o mit einem Augenzwinkern, ohne ihre Leser mit Zusammen-fassungen der Stücke zu langweilen, zeigt die Autorin, in welcher Weise die spanischen Dramen die traditionellen moraltheologischen Organisa-tionskategorien, d. h. die Todsündenlehre und die Zehn Gebote, einem kritischen Transformations-prozess unterwarfen.

Auf die Wurzeln des Theaters als moralischen Spiegels weist Kallendorf immer wieder hin. Doch bemüht sie auch die Marxistische Begriffswelt, wenn sie die Kategorien der Sündenlehre als »kom-plexe Moralökonomie« verstanden wissen will, in der Vorstellungen gehandelt, getauscht und ersetzt werden (5). Nach einleitenden Bemerkungen über die Methode und das untersuchte Archivmaterial stellt Kallendorf kurz den Forschungsstand dar, wonach die mittelalterliche Lehre von den sieben Todsünden in der frühen Neuzeit zunehmend durch den Rückgriff auf den Dekalog abgelöst worden sei und dies den Übergang von einer kol-lektivistischen zu einer individualistischen Sicht-weise markiere (6 f.). Die Untersuchung gliedert sich in acht Kapitel – und (die bekannte Einteilung Raymond Williams’ aufgreifend) in drei Blöcke –,

die den sieben Todsünden und den Zehn Geboten gewidmet sind.

Der erste Block (15–94) zeigt, dass Hochmut, Habgier und Wollust in der frühen Neuzeit ihren Stellenwert als moralische Ordnungskategorien weitgehend beibehielten. Kallendorf führt dies da-rauf zurück, dass wichtige Gebote des Dekalogs diesen Sünden entsprachen: Im Fall des Hochmuts waren es die Verbote von Idolatrie und Blasphe-mie, im Fall der Habgier, die in den verschieden-sten Varianten thematisiert wird, das Diebstahls-verbot und im Fall der Wollust das Verbot des Ehebruchs, die für einen reibungslosen Übergang vom Todsünden- zum Dekalogschema sorgten. Zugleich habe sich als Alternative zu religiösen Sündenlehren im Fall des Ehebruchs ein verstärkt säkularer Bezugsrahmen angeboten.

Im zweiten Block (97–151) werden Differen-zierungen angesprochen, die die Todsündenlehre durch die Inkorporation des Dekalogschemas er-fuhr: Faulheit, Völlerei und Hass waren im Katalog der Zehn Gebote nicht mehr direkt enthalten (aber indirekt die Faulheit und die Völlerei im Gebot der Feiertagsheiligung mit Fastengebot, der Hass im Tötungsverbot). Sie erwiesen sich deshalb in den Komödien als weniger stabil und erfuhren partiell sogar eine positive Umdeutung: Müßiggang und gutes Essen waren in der höfischen Gesellscha Spaniens für die Edelleute weniger eine Sünde als vielmehr Pflicht und (auch im Jenseits!) verdienter Lohn, und auch der Zorn wurde als Attribut Gottes nicht mehr geächtet, sondern, innerhalb gerechter Bahnen, als nachahmungswürdig emp-funden (diskutiert wurde in den Dramen etwa die Tötung der ehebrecherischen Frau durch ihren Ehemann, die vom weltlichen Recht erlaubt wur-de). Indem die Tötung in einen juristischen Kon-text gestellt wurde, machte sich gegenüber der

* H K, Sins of the Fathers. Moral Economies in Early Modern Spain, Toronto u. a.: University of Toronto Press 2013. XIII, 446 S., ISBN 978-1-4426-4458-8

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Sündenlehre auch hier ein verstärkt säkularer Be-zugsrahmen bemerkbar; der Zorn verwandelte sich von einer Sünde zur Leidenscha.

Der dritte Block ist den Brüchen mit der Tod-sündenlehre gewidmet. Kallendorf zeigt, wie der Neid (155–173), der in den letzten beiden Geboten des Dekalogs fortlebte, in der höfischen Kultur ubiquitär wurde, als Sündenkategorie aber ver-schwand. Angesichts der spanischen Erfolge in der Neuen Welt bestand Kallendorf zufolge kein Objekt mehr für einen Neid der Spanier außer auf sich selbst. An seine Stelle traten positiv bewertete Eigenschaen wie Ansporn, Mitleid und (Natio-nal-)Stolz, der insbesondere im niederen Landadel materielle Not kompensieren half. Zwei der zehn Gebote, die im Todsündenkatalog noch keine Ent-sprechung fanden, traten nach Kallendorf in das entstandene moralische Vakuum (174–201) ein: In der höfischen Kultur eines zunehmend verarmten Spaniens sei die Erziehung zum Gehorsam gegen-über den Eltern ein wichtiges immaterielles Erbe gewesen. Übertragene Bedeutungen des Gebotes hätten durchaus subversive Züge getragen, etwa indem Gott als himmlischer Vater gegenüber den irdischen Eltern ausgespielt wurde oder die Haf-tung der Söhne für die Sünden der Väter deren schlechtes Beispiel erst offenbarte. Das Verbot des falschen Zeugnisses war in den Dramen Anlass für eine generelle Debatte um Wahrheit und Lüge. Die in der höfischen Gesellscha allgegenwärtige Intrige verlor ihren Charakter als Sünde, an ihre Stelle traten säkulare Debatten um den Beweis der Wahrheit vor Gericht.

So unterstützt Kallendorfs Studie die These von der Ersetzung der Todsündenlehre durch den De-kalog als moralischer Organisationskategorie in der frühen Neuzeit, zieht allerdings auch die prob-lematische Gleichsetzung des Todsündenschemas mit kollektivistischen und des Dekalogs mit in-dividualistischen Vorstellungen in Zweifel. 1 Im Schlusswort (209–211) wendet sich die Autorin gegen bisherige Deutungen, die Entwicklung ein-seitig als Siegeszug des Dekalogs oder der Todsün-denlehre zu begreifen. Stattdessen betont sie die individualistischen Aspekte beider Schemata. Die

Auseinandersetzung mit den Sünden auf der Büh-ne, die das Theater zur Probebühne für moralische Experimente gemacht habe, habe in der Spani-schen Gesellscha zu einem Prozess der Selbster-kenntnis und der Subjektivierung geführt. Um-fangreiche Endnoten, eine Bibliographie sowie Verzeichnisse runden das Buch ab.

Trotz der interdisziplinären Zusammenhänge der Thematik bleibt Kallendorfs Studie eindimen-sional auf die spanischen Dramen beschränkt. Künstlerische Überzeichnungen in den Dramen werden von der Autorin durchaus in Rechnung gestellt, ein interdisziplinären Ansprüchen genü-gender Vergleich der literarischen mit rechts- bzw. theologiehistorischen Quellen wird jedoch nicht einmal angedacht. Die reiche moraltheologische Literatur der frühen Neuzeit, die zur Zeit der untersuchten Komödien von der Spanischen Spät-scholastik getragen wird, wird leider nicht unmit-telbar berücksichtigt. Auch von der Sekundärlite-ratur, die sich sowohl mit den moraltheologischen Ordnungskriterien als auch mit der Kategorie der »Vaterstrafe« ausführlich beschäigt hat, wird nur eine kleine Auswahl, namentlich die Untersu-chung Elena del Río Parras zu den spanischen Beichtsummen (Cartografás de la conciencia espa-nola en la Edad de Oro, 2008), herangezogen. Die großen Namen dieser Zeit – Vitoria, Covarrubias, Soto, Vásquez, Molina und Suárez – werden, wie auch die Sündenspezialisten des Mittelalters – Abelard, Gratian, Hostiensis, Panormitanus, Ray-mundus von Peniaforte – nicht einmal erwähnt, ja sogar Thomas von Aquin taucht nur einmal auf. Das muss als Versäumnis in einer Arbeit verbucht werden, die andererseits neben Michel Foucault, Max Weber und Jacques Derrida auch Gerhard Schröder, Brad Pitt und Speedy Gonzalez einer Erwähnung für wert hält. Denn tragfähige Aus-sagen über die untersuchten Transformationspro-zesse lassen sich eigentlich nur erzielen, wenn die Deutungsmuster der Sünde in den spanischen Dramen mit den Anschauungen der Zuständigen der Zeit, und das waren die Moraltheologen und Kanonisten aus dem Umfeld der Spanischen Spät-scholastik, in ein Verhältnis gesetzt werden. So

1 Der Dekalog in Exodus 20 ist mit seinen einleitenden Worten, in denen die Sünden der Väter bis ins dritte und vierte Glied verfolgt werden, keinesfalls Ausdruck einer rein indi-vidualistischen Moral, dazu auch

H M (2005), Strafe für fremde Schuld? Die Systematisierung des Straegriffs in der Spanischen Spätscholastik und Naturrechtslehre, Köln u. a., 277ff.

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wäre es interessant zu erfahren, ob die von Kallen-dorf vorgenommenen Verknüpfungen der Todsün-den mit den Zehn Geboten auch von den Moral-theologen so gezogen wurden. Der Stellenwert der einzelnen Todsünden hätte näher untersucht wer-den können (in den Beichtsummen löste die Hab-gier den Hochmut als schwerste Sünde ab). Auch hätten weitere Ordnungskategorien wie die Sak-ramente, die vier Kardinaltugenden oder die Wer-ke der Barmherzigkeit, die in den moraltheologi-schen Werken ebenfalls eine große Rolle spielen, in die Untersuchung aufgenommen werden kön-nen. Dass diese Aufgabe von einer einzelnen Unter-

suchung wie der vorliegenden nicht geleistet wer-den kann, versteht sich von selbst und gereicht Kallendorf nicht zum Vorwurf. Doch auf die Per-spektiven einer interdisziplinären Weiterführung der Studie hätte hingewiesen werden müssen. Trotz oder gerade wegen dieses Versäumnisses sollte die Beschreibung der Sündenlehre in den spanischen Dramen für unsere Zun weder Anlass für Neid noch Faulheit sein, sondern zum An-sporn, das dargelegte Material einer rechtshistori-schen Würdigung zuzuführen.

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Papsttreu bis zum Tode*

Zu der herkömmlichen Vorstellung des Verhält-nisses von Kirche und Staat im frühneuzeitlichen Frankreich gehört, dass Fürsten wie Ludwig XIV. die externe Bevormundung der französischen Kir-che durch den Bischof von Rom zugunsten der Formierung einer nationalen Sonderkirche end-gültig eingedämmt haben. Dementsprechend sind die 1682 unter Leitung von Jacques Bénigne Bos-suet verfassten gallikanischen Artikel klassischer Bestandteil des französischen Selbstverständnisses in Sachen Politik und Religion geworden. Sie gelten als das natürliche Ergebnis einer logischen Entwicklung hin zur Verstetigung der Macht-ansprüche der lokalen weltlichen und geistlichen Machthaber dem Papst gegenüber, die spätestens mit der 1438 durch Karl VII. verabschiedeten Pragmatischen Sanktion von Bourges ihren ersten großen Erfolg feierte. Dass diese Errungenscha nicht unumkämp war, belegt nun allerdings die Dissertation von Cyrille Dounot über den äußerst papsttreuen Juristen Antoine Dadine d’Auteserre (1602–1682). Eine reichlich dokumentierte Bio-graphie dieses Zivilrechtlehrers der Universität

Toulouse, die teilweise auf bisher unerforschte Archivmaterialien zurückgeht, bietet der Autor im ersten Teil seiner Arbeit an.

Aufgrund einer gründlichen Analyse vor allem des kanonistischen Schritums Dadines zeigt der Autor anschließend im zweiten Teil seines Buches auf, was für eine bissige Auseinandersetzung es im Frankreich der zweiten Häle des 17. Jahrhunderts zwischen Gallikanern und Ultramontanen gege-ben hat. Dadine wurde 1661 von der französischen Bischofskonferenz damit beauragt, das gallikani-sche Traktat über den weltlichen Rekurs gegen Missbrauch der kirchlichen Gewalt (l’appel comme d’abus) vom burgundischen Rechtsanwalt Charles Fevret zu widerlegen. Bekanntlich spielten histori-sche Argumente in dieser Auseinandersetzung eine bedeutende Rolle (es sei z. B. auf das 2009 erschie-nene He über den Gallikanismus in der Revue de l’Histoire des Religions verwiesen). Dementspre-chend setzte Dadine dem gallikanischen Idealmo-dell der alten Afrikanischen Kirche das gregoria-nische Reformmodell entgegen. Er betonte die Superiorität des Römischen Rechts und des päpst-

* C D, L’œuvre canoni-que d’Antoine Dadine d’Auteserre (1602–1682). L’érudition au service de la juridiction ecclésiastique, Toulouse: Presses de l’Université 2013, 757 S, ISBN 978-2-36170-055-3

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lichen Dekretalenrechts im Vergleich zum Geset-zesrecht der französischen Fürsten. Für Dadine war klar, dass die Zurückdrängung der Offizialate zu-gunsten der weltlichen Gerichtsbarkeit gegen die Bibel und die Grundlagen des kanonischen Rechts verstoße. Darüber hinaus warnte er davor, dass mit den steigenden Machtansprüchen der weltlichen Obrigkeit eine erhebliche Steigerung des Steuer-drucks einhergehen würde (quod non capit Christus, capit fiscus).

Wie Dounot im dritten Teil seiner Arbeit detail-liert ausführt, war Dadine der Auffassung, dass sich die universelle kirchliche Jurisdiktionsgewalt nicht nur gegen weltliche Angriffe, sondern auch gegen Einzelinteressen lokaler Bischöfe, besonders in Frankreich, durchsetzen müsse. Kernanliegen sei-ner Bemühungen war letztendlich die Wiederbe-lebung einer von dem Dictatus Papae Gregors VII. und den Dekretalen Innozenz’ III. geleiteten Welt, die eigentlich schon lange untergangen war. Um dies zu erreichen war Dadine bereit, sogar die communis opinio der zeitgenössischen Kanonistik zu umgehen. Seine maßlose Bewunderung für die päpstliche plenitudo potestatis hinderte ihn bei-spielsweise daran, die Fälschung der pseudoisido-rischen Dekretalen, insbesondere der konstantini-schen Schenkung, anzuerkennen. Dabei galt Dadi-ne eigentlich als der Cujas des Kirchenrechts, weil er das Decretum Gratiani einer tiefgehenden philo-logischen Kritik unterzogen hatte. Offenbar mach-ten ihn seine ideologischen Bestrebungen manch-mal dann doch ein wenig blind.

Dadine ist relativ kurz nach seinem Tod in Vergessenheit geraten. Die Prolegomena Van Hoves erwähnen nur noch kurz seine Kommentare zu den Dekretalen des Papstes Innozenz III. und den Klementinen. Dabei hatte Dadine ein umfangrei-ches und recht variiertes Œuvre geschaffen, mit – neben dem oben erwähnten Traktat zur kirchli-chen Jurisdiktionsgewalt – grundlegenden Werken über die Fiktionen im Recht, das französische Feudalrecht, die Institute Justinians, die Ursprünge des Mönchtums und Dissertationen zu kirchen-rechtlichen Spezialthemen. Deutsche Juristen wie Johann Schilter, Johan Georg Estor, Johann Fried-rich Eisenhardt und Friedrich von Glück haben im Verlauf des 18. Jahrhunderts sogar Neudrucke von Teilen seines Œuvres veranlasst. Allerdings war das Denken Dadines von Beginn an zu rückwärts ge-wandt, als dass es eine dauerhae Wirkung hätte entfalten können. Dadine vertrat seine Ideen in lateinischer Sprache, gerade in dem Moment, als das Französische den Status einer Weltsprache erreichte. Er predigte die Rückkehr des Römischen Rechts, auch wenn dieses schon seit einem Jahr-hundert durch eine nationale französische Rechts-kultur ersetzt worden war. Und er strebte eine Form von Ultramontanismus an, der selbst zu Lebzeiten Gregors VII. utopisch gewirkt hätte. Fünf Monate nach der Veröffentlichung der vier gallikanischen Artikel starb er. Es düre nicht nur aufgrund seines hohen Alters gewesen sein.

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Sylvia Kesper-Biermann

Der aufgeklärte Tod auf Raten*

Die Todesstrafe gehört zu den in den Medien regelmäßig wiederkehrenden Themen, über ihre Recht- und Zweckmäßigkeit wird auf nationaler wie internationaler Ebene kontrovers diskutiert. Diese Debatten lassen sich mittlerweile über 200

Jahre zurückverfolgen: Mitte des 18. Jahrhunderts setzten in Europa die Auseinandersetzungen darü-ber ein, ob die Strafe am Leben als obrigkeitliche Sanktion grundsätzlich beizubehalten sei. Das Großherzogtum Toskana schaffte mit seinem Straf-

* G A, Das Ende für Schwert und Galgen? Legislativer Prozess und öffentlicher Diskurs zur Reduzierung der Todesstrafe im Or-dentlichen Verfahren unter Joseph II.

(1781–1787), (Mitteilungen des Österreichischen Staatsarchivs, Sonderband 11), Wien: Österrei-chisches Staatsarchiv 2010, 633 S., 32 Abb., ISBN 978-3-7065-4935-6

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gesetzbuch von 1786 (»Leopoldina«) als erster Staat weltweit die Todesstrafe ab; das »Allgemeine Ge-setzbuch über Verbrechen und derselben Bestra-fung« (»Josephina«) folgte nur kurze Zeit später, Anfang 1787, für die Erbländer der Habsburger-monarchie. Trotz ihrer Vorreiterrolle hat die deutschsprachige (rechts-)historische Forschung beide Kodifikationen jedoch bis in die jüngste Zeit nur am Rande beachtet. Diese Forschungslücke ist jetzt durch eine kommentierte Übersetzung der Leopoldina 1 sowie die umfangreiche Studie von Gerhard Ammerer über das Josephinische Strafge-setz geschlossen worden.

Ammerer geht zwar von der (Abschaffung der) Todesstrafe aus und stellt sie in den Mittelpunkt seiner Analyse, ordnet sie aber breit in den Zu-sammenhang der Gesetzgebungsarbeiten zwischen 1781 und 1787 ein, so dass er mit seiner Salzburger Habilitationsschri die erste detaillierte Studie über die Strafrechtskodifikation insgesamt vorle-gen kann. Das hängt zum einen mit seinem einer »integralen Rechtsgeschichte« verpflichteten me-thodischen Ansatz zusammen, anhand der Unter-suchung der Entstehung des Gesetzbuches Auf-schluss über Ideen, Argumente, Einflussfaktoren sowie die Interessen und das Zusammenwirken unterschiedlicher Akteure im legislativen Prozess zu erhalten. Zum anderen liegt der Arbeit ein bislang noch nicht ausgewerteter Aktenbestand aus dem Umfeld der Gesetzgebungskommission zugrunde, der die bisherige schlechte, durch breite Verluste gekennzeichnete Quellenlage deutlich verbessert. Ein Teil dieser Dokumente ist im An-hang (437ff.) auf über 100 Seiten ediert. Darüber hinaus hat der Verfasser die weitere verstreute archivalische Überlieferung sowie die reichhaltige zeitgenössische Broschürenliteratur umfassend be-rücksichtigt.

Die teilweise recht kleinteilige Gliederung be-steht aus sechs auf die Einleitung folgenden und überwiegend chronologisch angeordneten Haupt-kapiteln. Zunächst wird die Ausgangslage in den 1770er und 1780er Jahren beschrieben (Kap. 2), wobei die Constitutio Criminalis Theresiana von 1768/69 als Rechtsgrundlage sowie die beginnende öffentliche Auseinandersetzung um die Legitimi-

tät der Todesstrafe im Mittelpunkt stehen. Darauf folgt die Betrachtung des Jahres 1781, als ein kaiserlicher Aurag die behördliche Diskussion über die Reform des Strafrechts in Wien in Gang setzte (Kap. 3). Der nächste Abschnitt widmet sich dem Strafrechtsdiskurs zwischen 1781 und 1788, verstanden als publizistische Debatte »zwischen Ex-perten und Funktionsträgern […] einerseits und der Bevölkerung, vor allem dem gebildeten Bür-gertum andererseits« (185), die in Form bildlicher Darstellungen, vor allem aber in Broschüren und Romanen erfolgte. Der detaillierten Schilderung der verschiedenen, bislang im Einzelnen noch nicht bekannten Etappen des Gesetzgebungspro-zesses innerhalb der Bürokratie ist Kapitel fünf gewidmet. Sechstens geht es um das verabschiedete »Allgemeine Gesetz über Verbrechen und dersel-ben Bestrafung« von 1787, dessen Inhalt, Bewer-tung und Auswirkungen. Dabei wird deutlich, dass die Verabschiedung der Kodifikation im Zusam-menhang mit weiteren Rechtsreformen, nämlich der Gerichtsverfassung (Organisationspatent 1787) und des Strafverfahrens (Allgemeine Kriminal-Ge-richtsordnung 1788) stand. Die weitere Entwick-lung des habsburgischen Strafrechts bis zum Ge-setzbuch über Verbrechen und schwere Polizei-übertretungen von 1803, das die Josephina ablöste, erläutern die folgenden Ausführungen im Über-blick (Kap. 7).

Im Fazit (429–435) gruppiert Ammerer seine knapp zusammengefassten Erkenntnisse um die drei Aspekte Verlauf und Akteure des Gesetzge-bungsprozesses, Ziele und Motive der Strafrechts-reform sowie Abschaffung der Todesstrafe. Die Entstehung der Strafrechtskodifikation von 1787 erscheint erstens als ein langwieriger und komple-xer Prozess des »Aushandelns von Normen und Inhalten« (431) zwischen verschiedenen Akteuren, wobei dem Kaiser und der sog. Kompilationshof-kommission, dem zentralen Gesetzgebungsgre-mium, die größte Bedeutung zukam. Besonders bemerkenswert ist das persönliche Interesse und Engagement des Monarchen, bis in einzelne For-mulierungen hinein selbst mitzuwirken. Auf der Basis von drei Grundsatzgutachten erarbeitete die Kommission bis 1783 einen ersten Entwurf des

1 H S, Die »Leopoldina«. Toskanisches Strafgesetzbuch vom 30. November 1786, Berlin/New York 2010.

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Gesetzbuches, der in mehreren Revisions- und Überarbeitungsschritten schließlich bis 1787 fertig-gestellt und publiziert wurde. Daran hatten weite-re Behörden wie etwa die Appellationsgerichte und auch Einzelpersonen, etwa der für die Redak-tion zuständige Joseph von Sonnenfels, Anteil; zudem lassen sich – nicht näher spezifizierte – Wechselwirkungen zwischen »innerem Entschei-dungsfindungsvorgang« und »öffentlichem Dis-kurs« in Broschüren und Druckschrien feststellen (83). Die Beteiligung der gebildeten Öffentlichkeit erfüllte für den Monarchen zu weiten Teilen eine Legitimationsfunktion für die neue Gesetzgebung (183).

Auch wenn sich die Kompilationshoommis-sion in einigen Punkten gegenüber dem Monar-chen durchsetzen konnte, spiegelte das Gesetzbuch von 1787 nach Ansicht des Verfassers im Ergebnis zweitens vor allem die »persönlichen Strafvorstel-lungen Josephs II.« (361) wider. Diese seien in erster Linie durch Utilitarismus und generalprä-ventive Abschreckung, nicht jedoch durch huma-nitäre Überlegungen geprägt (z. B. 278), was unter anderem an der Beibehaltung entehrender und sehr harter Strafen wie der Brandmarkung, der öffentlichen Züchtigung oder der schärfsten Form der Kettenstrafe (»Anschmiedung«) deutlich wird. Insbesondere in diesen Punkten widersprach die Kodifikation den Forderungen der strafrechtlichen Aulärung, und sie gehörten zu den ersten Be-stimmungen, die der Nachfolger Josephs II. 1790 abänderte. Die Gesamtbilanz fällt jedoch differen-ziert aus: In anderen Belangen erfüllte das Gesetz-buch nämlich aulärerische Postulate, etwa in der egalitären, auf die Durchsetzung der staatlichen Souveränität im Rechtswesen und die Schaffung eines einheitlichen Untertanenverbandes gerichte-ten Zielsetzung, im Auau und in der Sprache, aber auch darin, dass eine Reihe von Sexual- und Religionsdelikten nun gar nicht mehr strafrecht-lich oder deutlich milder geahndet wurden. Sie fanden sich nun im zweiten Teil der Kodifikation, die neben den Kriminal- auch die sog. »politischen Verbrechen«, also das Policeystrafrecht, umfasste.

Wie sehr Berechtigung und Zwecke staatlichen Strafens als zentrales Thema die gebildete Öffent-lichkeit beschäigten, zeigen die ausgewerteten Broschüren. Sie setzten sich neben allgemeinen Fragen des Kriminalrechts auch konkret mit dem 1787 publizierten Gesetzbuch auseinander. Es stieß überwiegend auf solche Kritik, dass der Wiener Polizeidirektor 1790 die »schwerwiegende Unzu-

friedenheit in der Bevölkerung« und ein »wach-sendes Misstrauen an der Monarchie« wesentlich auf die Missbilligung der neuen Kodifikation zu-rückführte (372). Tatsächlich hatten sich zu diesem Zeitpunkt schon einige Lücken und Probleme bei der Anwendung gezeigt.

Die Todesstrafe gehört schließlich drittens zu den in der Publizistik, aber auch innerhalb der Büro-kratie besonders umstrittenen Punkten. Im Straf-ensystem der Theresiana von 1768/69 hatte die Sanktion noch eine »beherrsche Rolle« gespielt: Sie war auf 42 Delikte angedroht, wurde jedoch vergleichsweise selten vollzogen; für die 1770er Jahre geht man von etwa 30 Hinrichtungen jähr-lich in den Erblanden aus (43). Bei den Reform-arbeiten der 1780er Jahre herrschte Einigkeit über eine Reduktion der todeswürdigen Verbrechen, doch war deren Ausmaß umstritten. Die Abschaf-fung der Strafe am Leben verfügte dann der Kaiser persönlich Ende 1783/Anfang 1784 – vermutlich unter dem Einfluss der Arbeiten an der toskani-schen Leopoldina. Im verabschiedeten »Allgemei-nen Gesetz über Verbrechen und deren Bestra-fung« gab es die Todesstrafe dementsprechend im ordentlichen Verfahren nicht mehr; sie wurde lediglich für das bei »Aufruhr und Tumult« anzu-wendende Standrecht beibehalten (§§ 20, 53).

Der letztgenannte Punkt bildet ein Argument für die überzeugende zentrale These des Verfassers, die Kodifikation von 1787 habe nicht das Ende der Todesstrafe in Österreich bedeutet (383–401). Viel-mehr sei diese nicht nur auf dem »legislativen Umweg« über das standrechtliche Verfahren bei bestimmten politischen Verbrechen, sondern auch durch die besonders grausamen Strafen des Schiff-ziehens, der Brandmarkung und der schweren Kettenstrafe beibehalten worden. Diese Sanktio-nen wurden vom Kaiser als Äquivalente für die Strafe am Leben angesehen, weil sie entweder den baldigen Tod des Delinquenten oder – im Fall der Brandmarkung – die »soziale Tötung« bewusst in Kauf nahmen. Die Sanktionen hätten zudem zu einer wesentlich höheren Sterblichkeit geführt als die Hinrichtungen unter der Theresiana – allein für das Schiffziehen nennt die Studie eine Zahl von rund 100 Todesopfern pro Jahr (390). Der »episodenhae Charakter« der Josephina (425) in der Strafrechtsgeschichte der Habsburgermonar-chie zeigte sich insofern nicht nur an der kurzen Geltungsdauer des Gesetzbuches, sondern auch daran, dass die Wiedereinführung der Todesstrafe im ordentlichen Verfahren für sieben Delikte 1803

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mit einer äußerst geringen Vollstreckungsfrequenz von rund 12 Todesurteilen jährlich bis zur Jahr-hundertmitte einherging (427).

Der eingangs bereits hervorgehobene Vorzug der Studie, die Gesetzgebungs- und Diskursge-schichte der Todesstrafe in der Habsburgermonar-chie im letzten Drittel des 18. Jahrhunderts in größere Zusammenhänge einzuordnen, bringt je-doch auch Nachteile mit sich. So lässt sich keine eindeutige Schwerpunktsetzung feststellen, die einzelnen Bereiche der Darstellung wirken eher locker unter dem Dach der Strafe am Leben ver-bunden. Das zeigt sich beispielsweise im Hinblick auf die Ausführungen zu den Strafanstalten: Zwar sind die Freiheitsstrafen als alternative Sanktionen zur Todesstrafe grundsätzlich für das Thema von Bedeutung, doch nehmen die detaillierten Aus-führungen über Gefängnisse, Zucht- und Arbeits-häuser für einen Fokus auf die Todesstrafe bzw. die

Gesetzgebungsgeschichte zu großen Raum ein. Hier kann der Verfasser auf seine umfangreichen Forschungen zur Strafvollzugsgeschichte auau-en. Andererseits hätte man sich, wie beim explizi-ten Bezug auf die Leopoldina geschehen, einen Vergleich des habsburgischen Falls mit weiteren europäischen Ländern oder anderen Territorien des Alten Reichs gewünscht. Dann wäre über die Einordnung der Kodifikation von 1787 in die österreichische Strafrechtsgeschichte hinaus noch deutlicher geworden, in welchen Punkten Ge-meinsamkeiten und Unterschiede und damit Spe-zifika der Wiener Entwicklung bestanden. Insge-samt zeichnet die Studie auf breiter Quellenbasis ein differenziertes Bild der josephinischen Straf-rechtsreform und füllt damit eine Forschungs-lücke.

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Vera Finger

Am Morgen singen die Vögel*Paul Schlesinger alias SLING ist zur Grün-

dungslegende der deutschen Gerichtsreportage ge-worden. Ohne ihn gäbe es den modernen Gerichts-bericht als »Kunstwerk« nicht – Sling habe diese stilistische Form erst erfunden, so war sich Gabrie-le Tergit, ihres Zeichens selbst Gerichtsreporterin der 1920er Jahre und Kollegin von Sling in Berlin-Moabit, sicher. Gerhard Mauz, der SPIEGEL-Ge-richtsreporter der Bonner Republik, wird mit der Selbstverneinung zitiert, Sling sei der einzig wirk-lich legendäre Gerichtsberichterstatter Deutsch-lands. 1 Zur Legendenbildung tragen dato Ferdi-nand von Schirach oder Hans Holzhaider von der Süddeutschen Zeitung bei. Vormals taten Gustav Radbruch und Robert Kempner das Ihrige: Zu-sammen besorgten sie 1929 eine erste Sammelaus-gabe der Gerichtsreportagen, die zwischen 1921

und 1928 in der Vossischen Zeitung veröffentlicht worden waren. Radbruch gab dieser Sammlung ein Vorwort und Kempner gab sie 1969, neu kom-mentiert, noch einmal heraus. Der Tenor dieser Stimmen gleicht sich: Slings Texte würden das »pralle Leben« der Weimarer Republik zeigen, wie es im Berliner Strafgerichtssaal erschienen war. Sie zeichneten sich durch genaue Beobach-tung, feinen Humor und einfühlsamen Humanis-mus aus. Sachlichkeit und Menschenwürde litera-risch kunstvoll vereint – haben die Gerichtsrepor-tagen von Sling deshalb ein solch legendäres Ge-wicht?

Wer nach Antworten sucht, kann seit letztem Jahr zu der bisher umfassendsten Sammelausgabe der »Berichte aus dem Gerichtssaal« greifen. Ihr Herausgeber, Axel von Ernst, schreibt damit eine

* SLING (P S), Der Mensch, der schießt. Berichte aus dem Gerichtssaal, hg. von A E, Düsseldorf: Lilienfeld Verlag 2013, 400 S., ISBN 978-3-940357-27-4

1 F S, Die Büh-ne der Weimarer Republik, in: Der Spiegel 33/2011, 138.

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Vera Finger 369

Tradition fort: Die Publikationskonjunktur der gesammelten Sling’schen Gerichtsreportagen be-stimmt sich nach Krisen- und Reformzeiten (1929, 1969, 1977, 1989 noch als DDR-Ausgabe, 2013). Ist ihre Veröffentlichung ein Indiz für vermehrte Spannungen im politischen Verhältnis von Straf-justiz, Presse und Öffentlichkeit? Vielleicht bieten die beobachtenden und humanistischen Texte ge-rade in Umbruchszeiten der Demokratie eine be-sinnliche Lektüre und sind deswegen so legendär.

Ihr Autor Sling schrieb sie zu einer Zeit, in der Zeitungen das Hoch als konkurrenzlose Informa-tionsquellen erreicht hatten. Der Rundfunk oder gar das Fernsehen hatten die Blütezeit als allge-mein zugängliche Medien erst noch vor sich; der Durchschnittsbürger griff kaum zu Literatur und Büchern – die Zeitung hingegen gehörte ebenso in seine Hand wie das Bierglas. 2 Die Vossische Zeitung, die publizistische Heimat von Sling, be-diente von jeher das akademische, intellektuelle Publikum der liberal-progressiven, bürgerlichen Schicht und zählte zu den überregionalen und einflussreichen Schwergewichten der deutschen Tagespresse. Von dieser publizistischen Baumkrone aus schrieb Sling weithin sichtbar über die Straf-prozesse in Berlin-Moabit.

Sein Stil war präzise und bildha, seine Texte sind von gestochen scharfer Sprache und zugleich hinreißend lebendig. Gegen den Vorwurf über-schießender Phantasie wusste Sling sich zu weh-ren: »Eine Objektivität gibt es nicht. Weder in der Wissenscha noch am Richtertisch« (21). Seine Haltung zu Objektivität und Subjektivität, Sach-verhalt und Phantasie entsprang allerdings keiner kleinen Stilkunde oder Taschenphilosophie für Journalisten. In seiner Haltung kam die Kunst zum Tragen. Sie muss für Sling, den Kabarettisten, Kinderbuchautoren und Dramaturgen, der erst mit 40 Jahren zum Gerichtsreporter wurde, ein Lebenselement gewesen sein. Seine Beobachtun-gen und Beschreibungen der Menschen im Ge-richtssaal vereinen Motive der Neuen Sachlichkeit und des Expressionismus. »Weil er […] ein Künst-

ler blieb, darum hat er den Erfolg seines Lebens ernten dürfen«, 3 betrauerte man Sling nach sei-nem frühen Tod 1928.

Die von ihm so bildha ausgemalten Szenen der Wirklichkeit sind aber mehr als literarische Kunst-griffe, wenn man sie als Gerichtsreportagen kon-textualisiert. Über was schrieb Sling? Die Causes célèbres der Berliner Gesellscha waren für ihn ein Gegenstand seines journalistischen Interesses – ein Gegenstand unter vielen weiteren: Sling verstand sich und seine Texte nicht als »Leitmedium der Sensation«. 4 Er schrieb über den Alltag vor Ge-richt, über »kleine Sünden« und »die ganze Welt«. Einen Skandal wie den »Reigen-Prozess« (264ff.) um Arthur Schnitzler’s pornographieverdächtigtes Theaterstück ließ er ebenso wenig aus wie die »Steglitzer Schülertragödie« (72ff.; 382ff.). Ebenso gut schrieb er aber auch über den Studienreferen-dar Dr. Schreiber, der sich durch den Totschlag seiner Ehefrau hervor getan hatte: »Fast unvermit-telt ragt in das behagliche Schlemmerleben des kleinen Mannes die furchtbare Tat: die einzige seines Lebens« (39). Erst durch Slings Augen ent-faltete sich die ganze Tragik eines Postbeamten, den seine Midlife-Crisis vor den Strafrichter ge-führt hatte: »Ein kleiner, unansehnlicher Mann, schüchtern, dürig, sorgenbeladen […], erklärte seiner Frau, er müsse sich sofort von ihr scheiden lassen, denn nun habe er gefunden, was ihm immer gefehlt. […] Seinen Dienst versah er tadel-los, aber er verkaue fast den ganzen Haushalt, um der Geliebten willen. Am Ende fälschte er eine [...] Postanweisung« (197ff.). Die Berliner Eierhändler hingegen betrogen gleich kistenweise: »Wir ver-handeln immer über die Kiste und was draufstand. Aber was für Eier wirklich in der Kiste waren, weiß kein Mensch«, gab Sling einen ihrer Strafverteidi-ger wieder (120). Auch der Beleidigungsprozess zwischen einem Großschlachtmeister und einem Tierarzt folgte eher verborgenen Kriterien: »Ho-sentrompeter! […] Es hat sich während der ganzen Verhandlung nicht der geringste Anhaltspunkt dafür ergeben, was etwa der Sinn dieses Wortes

2 Dazu E A. J, Urbanization and Crime, Germany 1871–1914, Cambridge 1995, 55ff.; 56.

3 Nachruf auf SLING, in: Beilage zur Vossischen Zeitung, Nr. 241 vom Mittwoch Abend, 23. Mai 1928.

4 Dies war aber die Funktion der Ber-liner Lokalzeitungen; so P

M bis 1914 reichender Befund: Auf der Suche nach dem Täter. Die öffentliche Dramatisierung von Ver-brechen im Berlin des Kaiserreichs, Frankfurt am Main 2005, 362.

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sei. Ich weiß es nicht, der Herr Staatsanwalt weiß es nicht – das Gericht weiß es vermutlich auch nicht« (163ff.).

Die Texte von Sling, ob über Skandal oder Alltag, verloren sich nicht in Anekdoten. Das konnte nur gelingen, weil Sling stets eine Vorstel-lung vom Ganzen mit sich führte: In Berlin-Moa-bit sah er nicht nur den einzelnen Angeklagten, Zeugen, Menschen, dessen »mit wenigen Strichen hingeworfenes Miniporträt« (Hans Holzhaider im Nachwort, 397) auf Anhieb alle Aufmerksamkeit fängt. Er sah mehr. Das deutete er mit typologisier-ten Richterporträts (»Der Jurist«, »Der Beamte«, »Der große Richter«, »Der Leidende«, »Der Straf-richter«; 359ff.) an. Auf abstrakter Ebene setzte sich Sling auch mit dem Zweck der Strafe aus-einander. Präzise und knapp schrieb er unter dem Titel »Der Mensch, der schiesst« (1926; 13ff.) eine Art theoretisches Bekenntnis nieder: »[…] noch blieb ein Strafzweck übrig: die Abschreckung. Seitdem strafen wir Unschuldige, um […] abzu-schrecken, […] lassen wir die explodierenden Unschuldigen für uns sterben.« Der Verbrecher ist derjenige, der »für die Menschheit auf dem Schafott verblutet« (1925; 35). Das Strafrecht, das Sling in Berlin-Moabit beobachtete, war also eines der Gesellscha. Dem präventiven, repräsentativen und symbolischen »Für-uns-Sterben« begegnete man mit Gleichmut oder Mitleid – beides sind

Anwandlungen von nur kurzer Dauer, die durch »Gottes höchstes Gut«, das »miserable Gedächt-nis«, gnädigerweise wieder im Nebel versinken dürfen. Von Berlin-Moabit aus versuchte Sling damit auch an Bequemlichkeit und Betroffenheit, den Festungen des Bürgertums, zu rütteln: »Ist jemand für uns gestorben, haben wir eine schlaf-lose Nacht verbracht – am Morgen singen die Vögel.«

Das Strafrecht lebt als Recht davon, dass es »un-ausgeglichene Widersprüche […] hinter dem Har-nisch der Korrektheit« (19) zu verbergen sucht – das gelang in Slings Augen aber nicht. In Berlin-Moabit sah er zwei solitäre Welten bestehen: »Ver-steinerte« und »allegorische« »Nüchternheit, Ereig-nislosigkeit, Sachlichkeit« »neben dem lebendigs-ten Strom des Leides«. Als Gerichtsreporter ver-suchte Sling immer wieder, diese zwei Welten und damit auch die Klu, die sich zwischen ihnen mit dem modernen Strafrecht aufgetan hatte, aufzu-zeigen. Slings Texte bieten mehr als zeithistorische, humanistische oder besinnliche Lektüre. Seine Gerichtsreportagen sind veritable Gegenerzählun-gen zum modernen Recht – sprachlich, inhaltlich, funktional. In dieser Zeitlosigkeit liegt ihre stärkste Kra.

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Vera Finger 371

Karl Härter, Tina Hannappel, Conrad Tyrichter, Thomas Walter

Terrorismus für die Rechtsgeschichte?Neuerscheinungen zur Geschichte politischer Gewalt im 19. und 20. Jahrhundert*

Post 9/11 haben Forschungen zur Geschichte des »Terrorismus« weltweit Konjunktur. Kaum eine neuere Überblicksdarstellung zur Geschichte der politischen Gewalt und der Staatsverbrechen kommt ohne »Terrorismus« und den Referenz-punkt »9/11« aus, darunter die auf einer älteren Monographie basierende, 2012 publizierte und auf den universitären Unterricht bzw. ein breiteres Lesepublikum zielende Introduction to Political Crime von Jeffrey Ian Ross, 1 der 2011 erschienene historische Überblick über die Geschichte der Crimes Against the State. From Treason to Terrorismvon Michael Head 2 oder die von mehreren fran-zösischen Autoren 2010 verfasste Darstellung his-torischer Terrorismusphänomene Terrorismes: His-toire et Droit. 3 Im Gegensatz zu älteren Darstellun-gen erscheint »Terrorismus« inzwischen als zent-raler Zugang zur Geschichte politischer Gewalt, auch im Hinblick auf die grenzübergreifenden und internationalen Dimensionen sowie die rechtli-chen und polizeilichen Gegenmaßnahmen des counter-terrorism. 4 Allerdings konzentrieren sich die historische Forschung wie die Politik- und Rechtswissenscha auf den modernen zeitgenössi-schen »Terrorismus« seit dem Ersten Weltkrieg und diskutieren Erscheinungsformen, Ursachen sowie Strategien zu dessen Bekämpfung und Be-wältigung. 5 Nur wenige der in den letzten Jahren erschienenen, teils auch neu aufgelegten Gesamt-darstellungen gehen zeitlich weiter zurück und

beziehen die Zeit nach der Etablierung des »Ter-rorismusbegriffs« durch die Französische Revolu-tion mit ein oder greifen gar bis zur Antike aus. So beginnt Randall D. Law seine 2009 publizierte Geschichte des Terrorismus mit dem Kapitel Terror and Tyrannicide in the Ancient World, gefolgt von Abschnitten über das Mittelalter und die Frühe Neuzeit. 6 Antike und Mittelalter nur kurz strei-fend, sucht Martin A. Miller dagegen die Foun-dations of Modern Terrorism in der politischen Ge-walt des frühneuzeitlichen Europa, deren Ursprün-ge er insbesondere in den konfessionellen Konflik-ten verortet. 7

Bereits dieser kursorische Überblick macht deut-lich, dass die historische Forschung unter »Terro-rismus« sowohl hinsichtlich der zeitlichen Dimen-sion als auch bezüglich der darunter gefassten Phänomene ein weites Feld bearbeitet. Zu diesem existieren allerdings kaum neuere Forschungs-überblicke, die sich umfassender mit der Frage beschäigten, ob sich die »Terrorismusgeschichte« historisch vor den modernen Terrorismus des 20. Jahrhunderts ausdehnen lässt und welche An-sätze und Konzepte hierbei verwendet werden könnten. Einen ersten Überblick über den aktuel-len Stand der geschichtswissenschalichen Terro-rismusforschung hat Sylvia Schraut vorgelegt. Aus-gehend von der zeitgeschichtlichen Forschung (vor allem zur RAF) nennt sie die folgenden Perspekti-ven, um terroristische Gewalt zumindest bis zur

* B J, R, The Battle against Anarchist Terrorism. An International History, 1878–1934, Cambridge: Cambridge University Press 2014, 424 S., ISBN 978-1-107-03405-1Gewalt ohne Ausweg? Terrorismus als Kommunikationsprozess in Europa seit dem 19. Jahrhundert, hg. von K W und J R, Frankfurt a. M.: Campus Verlag 2012, 317 S., ISBN 978-3-593-39770-2An International History of Terror-ism. Western and Non-Western Experiences, hg. von J M. H- and B B,

London: Routledge 2013, 336 S., ISBN 978-0-415-63541-7Radikale Milieus. Das soziale Umfeld terroristischer Gruppen, hg. von S M und P W, Frankfurt a. M.: Campus Verlag 2012, 390 S., ISBN 978-3-593-39599-9Terrorism and Narrative Practice, hg. von T A, D D and J H, Wien: LIT Verlag 2011, 248 S., ISBN 978-3-643-80082-4Terrorismus und Geschlecht. Politi-sche Gewalt in Europa seit dem 19. Jahrhundert, hg. von C H und S S, Frank-

furt a. M.: Campus Verlag 2012, 326 S., ISBN 978-3-593-39635-4

1 R (2012).2 H (2011).3 L / D-M (2010).4 D G (2011).5 S / K / H (2011).6 L (2009).7 M (2013).

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374 Terrorismus für die Rechtsgeschichte?

Französischen Revolution historisch fruchtbar er-forschen zu können: eine Einbettung in die Ge-schichte der (politischen) Gewalt; eine Kultur- und Mediengeschichte von Terrorismus als Teil der Er-innerungskultur und der Entwicklung von Me-dien, Kommunikation und Deutungsmustern so-wie die Schnittstellen zur historischen Genderfor-schung. In dieser Perspektivisierung würden sich »Kernelemente des Terrorismus für eine (trans-national) vergleichende Analyse eignen«. 8 Eine verstärkte transnationale Analyse und Berücksich-tigung von Diskursen fordern auch Christopher Daase und Alexander Spencer in ihrem umfas-senden politikwissenschalichen Forschungsüber-blick, um unterschiedliche Formen politischer Ge-walt zu untersuchen. 9 Deutlich wird dabei jedoch, dass dies für eine vor die Zeitgeschichte zurück-gehende historische Analyse mit Schwierigkeiten und Ambiguitäten im Hinblick auf die kontro-verse Definition des »Terrorismusbegriffs« insbe-sondere hinsichtlich der rechtlichen und histori-schen Tragfähigkeit einhergeht. Denn rechtshisto-rische Ansätze – die rechtlichen Reaktionen auf politische Gewalt und deren Bearbeitung als poli-tische Kriminalität wie die Funktion von Recht und Justiz als ein Feld des Austrags und der Regu-lierung der entsprechenden Konflikte – werden kaum als ein Kernelement in die historische Ter-rorismusforschung bzw. den Terrorismusbegriffintegriert, zumal wenn die einschlägigen Neuer-scheinungen von aktuellen Ereignissen wie »9/11« ihren Ausgangspunkt nehmen.

Im Folgenden soll anhand einiger ausgewählter Neuerscheinung gefragt werden, inwiefern »Terro-rismus« auch für die Rechtsgeschichte der politi-schen bzw. Staatsverbrechen vor der Etablierung des »modernen« zeitgeschichtlichen Terrorismus Erträge und Einsichten liefern kann. Angesichts der großen Diversität der in den letzten Jahren erschienenen Darstellungen, die teils sehr unter-schiedliche Phänomene politisch motivierter Ge-walt über verschiedene Epochen und Gesellschas-formationen zum Gegenstand haben, können die Bewertungs- und Vergleichskriterien kaum aus einer historischen Phänomenologie abgeleitet wer-den. Vielmehr werden im Folgenden drei struktu-rierende Schwerpunkte gesetzt, anhand derer sechs

exemplarische Neuerscheinungen vorgestellt und besprochen werden:– die Konzeptualisierung und Anwendung eines historischen Terrorismusbegriffs, verbunden mit der generellen Frage der rechtlichen, politischen und historischen Definition von »Terrorismus« als spezifische Form politisch motivierter, performati-ver Gewalt, die sich auf politisch-symbolische Ziele und ubiquitär auf unbeteiligte Opfer richten kann, um eine öffentliche Wirkung – allgemeine Angst und staatliche Reaktionen – zu erreichen;– die Rolle der Massenmedien und Diskurse, die sowohl die performative und kommunikative Dimension terroristischer Gewalt als auch die ent-sprechenden staatlichen und gesellschalichen Reaktionen vermittelten, verstärkten oder womög-lich erst erzeugten und damit auf politische Ge-walt, staatliche Sicherheitspolitik und Sicherheits-empfinden zurückwirken konnten;– die Gegenmaßnahmen der betroffenen Staaten, wobei insbesondere nach rechtlichen Reaktionen (Strafrecht / Straustiz, Ausnahmegesetzgebung /Ausnahmezustand), Sicherheitspolitik und den grenzübergreifenden, trans- und internationalen Dimensionen gefragt werden soll.

Diese Schwerpunktsetzung gründet sich so-wohl auf neuere Ansätze der rechtshistorischen Forschung – vor allem im Hinblick auf die Ge-schichte des politischen Verbrechens und der For-mierung transnationaler Strafrechtsregime 10 – als auch auf allgemein in der historischen Forschung und den hier besprochenen Werken erkennbare Forschungsinteressen, die sich aus der historischen Kriminalitätsforschung, der Medien- und Ge-schlechtergeschichte, der historischen »Sicherheits-forschung« oder der transnationalen Geschichte speisen. Der zeitliche Fokus wird dabei weniger auf den modernen zeitgenössischen Terrorismus gelegt, sondern es wird vor allem nach der Trag-fähigkeit eines zumindest bis ins 19. Jahrhundert zurückreichenden historischen Terrorismusbegriffs gefragt. Insofern sind auch die in den rezensierten Werken vorgenommenen Periodisierungen von Interesse, weil mit Aussagen über den vermeint-lichen »Beginn des (modernen) Terrorismus« auch Stellungnahmen zur Qualität der beschriebenen

8 S (2011) 118.9 D / S (2011); vgl. auch

D (2013).

10 H / G (2012); D B- / H (2013); H(2011); H (2013).

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Karl Härter, Tina Hannappel, Conrad Tyrichter, Thomas Walter 375

zeitgenössischen Formen politischer Gewalt bzw. politischer Kriminalität und deren Wandel ein-hergehen. Erkennbar wird daran aber auch die Grundschwierigkeit, angesichts disparater Phäno-mene politischer Gewalt »Terrorismus« in histori-scher Perspektive operationalisierbar zu machen. Mit den modernen Begriffen »Terrorismus« und »politische Kriminalität« verbundene Konzepte und Wertungen lassen sich nicht zwangsläufig auf historische Phänomene übertragen. Grundsätz-lich müsste hierfür insbesondere die Bedeutung von »politisch« näher bestimmt werden, die so-wohl den Staat als kriminellen Akteur (»crimes by the state«) als auch Staat oder Gesellscha als Ziel oder die spezielle Motivation von Gewalt (»crimes against the state«) bezeichnen kann. 11 Die Mehr-zahl der hier besprochenen Werke geht von dem letztgenannten Bedeutungsgehalt aus und unter-sucht die von »zivilen« Akteuren verübten, öffent-lichkeitswirksamen Gewalthandlungen, die Angst verbreiten und die staatliche Ordnung destabilisie-ren wollen. »Der Staat« fungiert dabei sowohl als Opfer bzw. Ziel politischer Gewalt wie auch als der zentrale Akteur, der polizeilich und strafrecht-lich auf Terrorismus antwortet und Sicherheit ge-währleistet. Einige Arbeiten betonen diesbezüglich auch die Rolle des Rechts als staatliches Mittel zur Unterdrückung politischer Dissidenz oder sozialer Bewegungen mittels »politischer Justiz«, 12 das über deren Kriminalisierung überhaupt erst das Deliktfeld der politischen Kriminalität geschaffen habe. 13

Hinsichtlich des Zusammenhangs von Terroris-mus und Recht und des definitorischen Zugangs wirkt der Band Terrorismes. Histoire et droit folg-lich vielversprechend, da er die Kategorie »Recht« in das Zentrum rückt. 14 Die Zielsetzung des dem Sammelband zugrunde liegenden Kolloquiums am Collège de France, Synthesen aus historischen und rechtswissenschalichen »analyses et réfle-xions autour du terrorisme« zu bilden, 15 wird allerdings kaum eingelöst. Vielmehr liegen zwei disziplinär getrennte, inhaltlich nahezu unver-bundene Teile vor, von denen der rechtswissen-schaliche ausschließlich gegenwartsbezogen ist. Die drei Aufsätze der historischen Sektion gehen dagegen von einer Minimaldefinition von Terroris-

mus aus, die diesen als »violence d’origine poli-tique exercée contre un État et / ou une société de la part d’un acteur que l’on peut considérer comme non-étatique, même s’il peut disposer, par ailleurs, d’un soutien étatique externe au pays considéré« versteht. 16 Henry Laurens stellt in seinem Über-blicksaufsatz »Le terrorisme comme personnage historique« verschiedene politische Gewaltphäno-mene seit dem 19. Jahrhundert vor, Hamit Bozars-land die »Comitadjilik«, eine transnationale, natio-nalistische Bewegung auf dem Balkan im frühen 20. Jahrhundert, Barbara Lambauer Partisanen-bewegungen und »Konterterrorismus« in natio-nalsozialistisch besetzten Gebieten während des 2. Weltkrieges. Auf phänomenologischer Ebene sind die Beiträge zwar durchaus anregend, kon-zeptionell erbringen sie allerdings wenig für eine systematische Geschichte des Verhältnisses von Terrorismus und Recht.

Dagegen erweist sich die performative und kommunikative Dimension politischer Gewalt in der neueren historischen Terrorismusforschung als fruchtbarere Perspektive. Ubiquitäre terroristische Gewalt, die sich gegen Repräsentanten eines politi-schen Systems, unbeteiligte Dritte oder infrastruk-turelle Einrichtungen richtete, intendierte die öf-fentliche Inszenierung und mediale Kommunika-tion, um wesentliche Ziele wie die Vermittlung einer politischen Botscha, die Erzeugung allge-meiner Angst und die Destabilisierung eines politi-schen Systems zu erreichen, auch indem dadurch weitere »terroristische« Aktivitäten initiiert oder Obrigkeiten und Staaten zu einer repressiven Poli-tik »verleitet« werden sollten. Dieser Zusammen-hang ist auch aus rechtshistorischer Perspektive, insbesondere im Hinblick auf Reaktionen von Bedeutung, die auf die Ausdehnung polizeilicher Kontrolle und die Vorverlagerung der Straarkeit zielten und dabei einzelne »Terrorakte« zum Anlass nahmen, wie die bekannten historischen Beispiele der »Karlsbader Beschlüsse« oder des »Sozialisten-gesetzes« zeigen. Terrorismus und politische Ge-walt werden folglich nicht als statische Phänomene betrachtet, sondern vielmehr als Konstruktion zeit-genössisch spezifischer soziopolitischer, kriminalis-tischer oder rechtlicher Diskurse verstanden, wo-zu auch obrigkeitlich-staatliche Reaktionen zählen

11 Vgl. z. B. R (2012) 1 f., 9.12 H (2011) 3 f., 12.13 H / W (2011) 176.14 L / D-M (2010).

15 J (2010) V.16 L (2010) 11.

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konnten, die ebenfalls medial inszeniert und kom-muniziert wurden. 17

Die Autoren des Bandes Terrorism and Narra-tive Practice spüren in 15 Fallstudien mit Schwer-punkt auf Mittel- und Osteuropa und den Reaktio-nen auf 9/11 terroristischer Gewalt als Thema unterschiedlicher (Massen-)Medien, Diskurse und narrativer Praktiken seit der Französischen Revolu-tion nach. 18 Philipp Schweighauser zeigt, dass der Begriff »Terror« bereits in der zweiten Häle des 18. Jahrhunderts in der Literatur auauchte und durch die Französische Revolution in den politi-schen Diskurs einging; wie sich daraus allerdings der davon erheblich abweichende Begriff des mo-dernen Terrorismus als Form politischer Gewalt entwickelte, bleibt unklar. Beginnend mit dem terreur der Französischen Revolution behandelt der Beitrag von Siegfried Weichlein kommunika-tive, propagandistische Strategien als zentrales Ele-ment der politischen Gewalt anarchistischer Grup-pen und nationaler Bewegungen des 19. Jahrhun-derts, die sich im Hinblick auf zielgerichtetes Handeln (nationale Autonomie) wesentlich von der modernen ideologischen Globalisierung des Terrorismus unterscheiden würden. Dagegen be-tont Christian Giordano im Hinblick auf die Phä-nomenologie und literarische Tradition politischer Gewalt die Kontinuitäten populärer Narrative wie insbesondere der Konspirationstheorien. Diese fin-den sich auch für den frühesten »terroristischen Akt«, der in dem Band behandelt wird, den engli-schen Gunpowder Plot von 1605, dessen literarische Wirkung Dimiter Daphinoff aufzeigt: Überzeu-gend legt er dar, dass der Gunpowder Plot nicht nur das Bild von Terrorismus in der englischen Literatur bis heute nachhaltig geprägt hat, sondern als terroristische politische Gewalt interpretiert werden kann, die ihre eigene Ikonographie und Diskurse selbst kreiert und damit die terroristische Strategie der Erzeugung von kollektivem Misstrau-en und Furcht etabliert (wenn nicht geschaffen) hat. Einen weiteren räumlichen und zeitlichen Schwerpunkt bilden vier Fallstudien zu Osteuropa und dem russischen Terrorismus vor dem Ersten Weltkrieg: Stephan Rindlisbacher behandelt an-hand der russischen Attentäterinnen und Exil-schristellerinnen Vera Finger und Vera Zasulich

die Bedeutung von Literatur für das radikale Mi-lieu; Claudia Verhoeven zieht aus der Figur des Terroristen in der russischen Literatur Rückschlüs-se auf die Zeitlichkeit terroristischen Handelns und die »rhythms of terrorist daily life«; 19 Anatoly Korchinsky untersucht russische Literatur zwi-schen 1860 und 1914 auf die Glorifizierung von Terrorismus oder die Kritik daran; Jens Herlth arbeitet die Darstellung von Terrorismus in einer Novelle (Płomienie) des polnischen Philosophen Stanisław Brzozowski heraus. Methodisch zielen die Beiträge folglich primär, wie auch Guido Ver-gauwen einleitend darlegt, auf die Manifestationen von »Terrorismus« bzw. entsprechender Narrative in Literatur und Philosophie, die überwiegend anhand einzelner Autoren und Werke nachvollzo-gen werden. Die Bedeutung und Funktion dieser Diskurse für terroristische politische Gewalt oder gar die entsprechenden obrigkeitlich-staatlichen Reaktionen werden dagegen nicht systematisch behandelt und kommen bestenfalls punktuell zur Sprache. Zudem liegt dem Band kein systemati-sches historisches Terrorismuskonzept zugrunde, sondern er kompiliert sehr unterschiedliche Er-scheinungsformen von »Terrorismus«, zu denen die gesellschalichen und literarischen Debatten in den USA zu 9/11 – mit vier Beiträgen von Michael C. Frank, Birgit Däwes, Thomas Austen-feld und Michael Ziser ein zweiter Schwerpunkt des Bandes –, die terroristische Kultur des Gettos Litzmannstadt (Nigel Rapport) oder der von Israel 1982 begonnene Libanonkrieg (Arthur Bradley) zählen. Der Band unterstreicht sicherlich die Be-deutung historischer Narrative von Terrorismus in literarischen Medien und gesellschalichen Dis-kursen für die Geschichte politischer Gewalt. Es mangelt ihm jedoch insgesamt an einem konzise-ren historischen Modell von »Terrorismus« und der Einbeziehung der obrigkeitlich-staatlichen Reak-tionen hinsichtlich der Unterbindung, Kontrolle oder Beeinflussung der Medien, Kommunikatio-nen und Narrative. Insofern kann er den auch für die Geschichte des Terrorismus wesentlichen Zu-sammenhang zwischen den kommunikativ-propa-gandistischen Strategien politischer Gewalt, den nachgelagerten medialen Narrativen und Diskur-sen und den entsprechenden obrigkeitlich-staatli-

17 Vgl. hierzu H (2014).18 A / D / H

(2011).19 V (2011) 124.

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chen Reaktionen letztlich nicht systematisch his-torisch auellen.

Die zentrale Bedeutung von Massenmedien, Kommunikation und Diskursen untersucht auch der von Klaus Weinhauer und Jörg Requate her-ausgegebene Sammelband Gewalt ohne Ausweg, der »Terrorismus als einen Kommunikationsprozess« über symbolische, auf Außenwirkung abzielende politische Gewalt versteht, der sich in Europa seit dem 19. Jahrhundert beobachten lasse und sich in den entstehenden Massenmedien vollziehe. Dabei wird auch danach gefragt, ob Kommunikation und Medien eine spezifische Funktion hinsichtlich der Befriedung terroristischer Gewalt zukomme. Der Band erinnert zudem an das Konzept des »radikalen Milieus«, 20 führt aber über dieses hi-naus und thematisiert auch die Rolle des Staates in solchen Kommunikationsprozessen. In ihrer Ein-leitung schlagen die Herausgeber vor, ausgehend von der Kommunikation über politische Gewalt »nicht nur die Eskalation, sondern auch die De-eskalation terroristischer Gewalt [zu] analysieren oder gar [zu] untersuchen, wie und warum es möglich wurde, terroristische Gewalt zu beenden.« In diesen Prozessen sei etwa zu denken an den Einsatz »transnational agierender ziviler Mediato-ren« oder an die Förderung moderater bzw. »de-eskalativer Tendenzen und Kräe« der entspre-chenden »sympathisierenden Milieus«. Die Rolle des Staates wird nicht als lediglich repressiv kon-zeptualisiert, sondern die Straustiz als eine »wich-tige Rahmenbedingung für die Befriedung terro-ristischer Gewalt« benannt. 21 Den Beginn des modernen Terrorismus verorten die Herausgeber im Zusammenhang mit der parallelen Entwick-lung der Massenmedien im späten 19. Jahrhundert und unterscheiden ausgehend von einer Phänome-nologie politischer Gewalt fünf Phasen des anar-chistischen und nationalistischen (bis 1914), rech-ten und nationalistischen (Zwischenkriegszeit), antikolonialen (nach 1945), sozialrevolutionären (nach 1968) sowie des religiös motivierten Terro-rismus seit den 1980er Jahren. Die Mehrzahl der zwölf Beiträge widmet sich allerdings zeitge-schichtlichen und sehr unterschiedlichen Phäno-

menen terroristischer politischer Gewalt wie der nationalistischen Bewegung im Baskenland, dem Nordirlandkonflikt und der IRA, der bundesre-publikanischen RAF, den italienischen Roten Bri-gaden und dem Linksterrorismus nach 1968. Für das 19. Jahrhundert (frühere Zeiträume werden nicht berücksichtigt) untersuchen lediglich Lutz Häfner und Jörg Requate am Beispiel von Frank-reich und Russland den Zusammenhang von Me-dien, Staat und Terrorismus insbesondere im Hin-blick auf den Wandel und das Nachlassen terroris-tischer Gewalt. Requate betont in seinem Beitrag zur Faszination anarchistischer Attentate, dass der Zusammenhang von Terrorismus und dessen Dar-stellung in den Massenmedien keine Einbahnstra-ße sei, sondern ein interdependentes Verhältnis darstelle. Medialer Erfolg war somit zwar auch »ein Anreiz dafür, die Attentate zu verüben«; im massenmedialen Diskurs mussten – so Requate – anarchistische Attentate aber zugleich gegenüber »radikalen Milieus« zu rechtfertigen sein. Die in Zeitungsartikeln festzustellende fehlende Unter-stützung habe schließlich den Wandel terroristi-scher Gewalt selbst bewirkt. Die bei Requate noch offene Frage, welche Rolle Staat bzw. Recht in diesem Prozess spielten und wie die »Terroristen« überhaupt zu der Beurteilung kamen, Gewalt sei eher kontraprodukiv (etwa durch »effektive« Maß-nahmen der Polizei bzw. Straustiz oder durch mangelnde Erfüllung ihrer politischen Forderun-gen), versucht Häfner für Russland zu beantwor-ten. Er erklärt den langfristigen Rückgang terro-ristischer Gewaltakte nicht allein mit der nachlas-senden populären Unterstützung, sondern auch mit der Kanalisierung politischer Konflikte durch politische Reformen.

Medien und Diskurse stehen auch in dem von Christine Hikel und Sylvia Schraut herausgegebe-nen Sammelband Terrorismus und Geschlecht im Zentrum. Die Einleitung bemüht sich zunächst um eine historische Operationalisierung des Ter-rorismusbegriffs und versteht Terrorismus als »ge-waltbereite Politikstrategie«, die auf die »Delegiti-mierung von Herrscha und Sympathiegewin-nung bei der Bevölkerung« abziele und eng mit

20 Siehe dazu unten die Besprechung von M / W(2012a).

21 W / R (2012b) 11, 19 und 44.

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dem Auommen der bürgerlichen Gesellscha seit dem 18. Jahrhundert verbunden sei. 22 Damit würden sich strukturelle Grundvoraussetzungen ausbilden, die spezifische politische Gewaltphäno-mene vergleichbar machen: eine durch staats-tragende Mehrheiten legitimierte Herrscha, die durch terroristische Gewalt überhaupt erst bedroht werden könnte, gleichzeitig aber auch an der Garantie von Sicherheit und Freiheitsrechten ge-messen würde; und ein öffentlicher, kommuni-kativer Raum, in dem über die Legitimität des Staates und über die terroristischen Akte selbst diskursiv verhandelt werden könne. Die Stärke des Zugangs liegt in seiner klaren periodischen Einhegung, die das Untersuchungsfeld für terro-ristische Phänomene maßvoll bis in das späte 18. Jahrhundert ausdehnt und zugleich vor einer antiquarischen und undifferenzierten Vermen-gung von politischen Gewaltphänomenen in his-torischer Langzeitperspektive schützt. Anregend und fruchtbar – besonders in rechtshistorischer Perspektive – ist, dass weniger auf Terrorismus als Gewaltphänomen, sondern als diskursives Kon-strukt abgezielt wird. Durch die Betrachtung von Terrorismusdiskursen entstehen auch Zugänge zu breiteren gesellschalichen Aushandlungsprozes-sen, wie »zur Legitimität des Regierungssystems, zu Sicherheitsvorstellungen, Konzepten politischer Partizipation und Regularien des Umgangs mit politischen Minderheiten oder Außenseitern«. 23Dieser Ansatz soll in Verbindung mit Fragestellun-gen der Gender-Forschung angewendet und Ge-schlechterkonstruktionen und -bilder in Terroris-musdiskursen untersucht werden. Der Band geht folglich von einer großen Schnittmenge zwischen Geschlecht und Terrorismus bzw. Geschlechter-konstruktionen und Deutungen politischer Ge-walt und Terrorismus aus, die anhand der kom-munikativen Dimension terroristischer Gewalt und der durch sie hervorgerufenen Reaktionen in Form von »Erinnerungskultur« in drei Themen-bereichen untersucht werden: Fünf Beiträge be-arbeiten die Wissensproduktion über Terrorismus durch Wissenscha, Sicherheitsbehörden, aber auch die terroristischen Akteure selbst; vier weitere Autoren thematisieren die Deutung und Tradierungdes Wissens über Terrorismus anhand von Aus-

einandersetzungen über die Rezeption, Interpreta-tion und performative Nutzung konkreter terro-ristischer Phänomene durch staatliche und nicht-staatliche Akteure; die letzten vier Beiträge bear-beiten Beispiele der medialen Repräsentation von Erinnerung an Terrorismus in Literatur, Museen, Film und Kunst. Insgesamt fällt auf, dass trotz der differenzierten periodischen und thematischen Er-weiterung des Untersuchungsfeldes überwiegend bereits als »terroristisch« erforschte Phänomene und Gruppen behandelt werden. So beschäigen sich jeweils drei Fallstudien mit der Rolle von Geschlechterkonstruktionen im Zusammenhang mit dem Anarchismus und Nihilismus des späten 19. und frühen 20. Jahrhunderts, dem Linksterro-rismus der 1970er Jahre in Deutschland, Österreich und der Schweiz und verschiedenen europäischen nationalistischen Bewegungen des 20. Jahrhun-derts. Behandelt werden aber auch die Rezeption der mittelalterlichen Assassinenlegende und der Erzählung von den 72 Jungfrauen im Zusammen-hang mit der gegenwärtigen Auseinandersetzung mit dem islamistischen Terrorismus oder der Zu-sammenhang von Weiblichkeit, Feminismus und Gewalt in der zeitgenössischen Kunst. Umfassend wendet lediglich Sylvia Schraut das einleitend ent-wickelte Analysemodell auf das Attentat des Stu-denten Karl Ludwig Sand auf den Schristeller August von Kotzebue an. Überzeugend arbeitet sie anhand des »medialen Meinungskampfes« um das Attentat für die erste Häle des 19. Jahrhun-derts strukturelle Ähnlichkeiten zu »aktuellen Mediendebatten um terroristisches Geschehen« und zugleich die Bedeutung von »geschlechter-spezifischen Charakterisierungen [...] in Politik und Gesellscha« heraus. 24 Zwar können auch die anderen Fallbeispiele Relationen von Terroris-mus und Geschlechterdiskursen aufzeigen, insge-samt ergeben sie jedoch kein stringentes Modell eines strukturellen historischen Entwicklungszu-sammenhangs zwischen Terrorismus- und Ge-schlechterkonstruktionen. Als ein zentrales Ergeb-nis kann vielmehr hervorgehoben werden, dass Wissen über Terrorismus vor allem durch staat-liche und wissenschaliche Reaktionen und Refle-xionen erzeugt wird und als flexible Projektions-fläche öffentlich debattierter Ängste oder als Anti-

22 S (2012a) 12–14.23 S (2012a) 15.24 S (2012b) 165.

Kritik critique


these gesellschalicher Ordnungs- und Sicherheits-vorstellungen fungiert. In das Spektrum dieser Reflexionen und Reaktionen fallen dabei auch ausdrücklich rechtliche Reaktionen, wie etwa das Beispiel der medialen Aufarbeitung der Hinrich-tung Karl Ludwig Sands zeigt.

(Rechts-)Historisch interessante Perspektiven für das Problemfeld des staatlichen Umgangs mit Terrorismus bietet auch der oben bereits behan-delte Band von Weinhauer und Requate. Für Russ-land verdeutlicht Häfner zunächst die Nutzung polizeilicher Maßnahmen (Ausnahmezustand) zur Bekämpfung terroristischer Gewaltakte, wobei der Autor aufgrund des zeitgenössisch nicht eindeutig definierten Terrorismusbegriffs die stark willkür-lichen Tendenzen der staatlichen Akteure betont. Häfner bleibt dann aber bei den polizeilichen Maßnahmen stehen und lässt die Straustiz außen vor. Requate hingegen analysiert für Frankreich auch die konfliktregulierende Funktion der Straf-justiz, etwa wenn über »milde […] Urteile und Freisprüche dafür gesorgt [werde], die Gemüter zu beruhigen und zu einer Deeskalierung beizu-tragen.« 25 Die medial-kommunikativen Funktio-nen der Straustiz im Hinblick auf »Terrorismus als Kommunikationsprozess« kann auch Beatrice de Graaf in ihrem Beitrag zu Terrorismusprozessen als kommunikative Fortsetzung der Regulierung und Deutung terroristischer Gewalt analytisch stärker durchdringen. Denn grundsätzlich seien »Terrorismus-Prozesse ein Beispiel dafür, wie Recht als Kommunikationsbasis dienen« könne. 26 Von den Interaktionspartnern – Angeklagte und Justiz – ausgehend, entwickelt sie eine Typologie von »Terrorismusprozessen«, die sie je nach Akzeptanz der zu Grunde gelegten Rechtsnormen und nach Aneignung divergierender Rechts- und Gerechtig-keitsvorstellungen unterscheidet. »Terrorismuspro-zesse« als Kommunikationsforum – so ein wichti-ges Ergebnis – bergen daher für die staatlichen Akteure (Polizei, Justiz, Politik) politische Risiken, weil sie »die Fronten verhärten« und den Konflikt verlängern oder gar eskalieren können (z. B. durch entsprechende Reaktionen der Anhänger). Mit der

Gewährung einer milden Behandlung der Ange-klagten und mit einer Orientierung an Rechts-staatlichkeit kommunizieren sie anderseits aber auch »Botschaen«, welche letztlich die staatliche Ordnung stabilisieren können.

Die historische Analyse rechtlich-staatlicher Reaktionen auf politische Gewalt sollte nicht allein bei den jeweiligen Normen und Maßnahmen ste-hen bleiben, sondern kann über die unmittelbaren Akteure hinaus das soziale Umfeld politischer Ge-walt mit einbeziehen. Einen solchen Ansatz ver-folgen Stefan Malthaner und Peter Waldmann, mit dem Konzept des »radikalen Milieus«. 27 Da-runter verstehen sie ein Beziehungsnetzwerk zwi-schen politischen Gewaltakteuren und ihrem en-geren Umfeld, aus dem sie notwendige Unterstüt-zung erfahren. Diesem »inneren Beziehungsgefü-ge« steht die Auseinandersetzung mit den staat-lichen Repressionsmaßnahmen entgegen. In der Auseinandersetzung mit dem politischen Gegner und seinen Repressionsmaßnahmen formiere sich ein spezifisches Milieu, innerhalb dessen Hand-lungslogiken, Strategien, aber auch die Grenzen politischer Gewalt stetig neu verhandelt würden. 28Die Unterstützung durch das Milieu wird als unab-dingbare Voraussetzung für terroristische Gewalt-akte verstanden, die die Entstehung, Entwicklung und das Verschwinden spezifischer terroristischer Gewalt maßgeblich beeinflussen. Damit wird das Milieu als missing link in der Terrorismusforschung betrachtet, in dem nicht nur das Beziehungsge-flecht terroristischer Strukturen offengelegt wird, sondern das nach Alex P. Schmid auch Erklärun-gen darüber liefern kann, warum einige terroristi-sche Gruppen langlebiger sind als andere. 29 Dies geschieht anhand von elf überwiegend zeithisto-risch und gegenwartsorientierten Fallstudien, die das soziale Umfeld des modernen Terrorismus nach 1945 anhand der bundesrepublikanischen RAF, radikalen nationalistischen Bewegungen in Spanien bzw. im Baskenland (ETA) und Nordir-land (IRA), der Hizb Allah im Libanon und isla-mistischer Gruppen in den Niederlanden und der Bundesrepublik sowie den Rechtsterrorismus un-tersuchen. Lediglich zwei Beiträge nehmen eine

25 R (2012) 111.26 D G (2012) 298.27 M / W (2012a).28 M / W (2012b)

24–27.29 S (2012).

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dezidiert historische Perspektive ein, wobei zent-rale Beispiele des 16. bis 19. Jahrhunderts fehlen: So will Thomas Scheffler am Fallbeispiel des »mes-sianischen Terrors« im antiken Judentum das Kon-zept des »radikalen Milieus« für die Antike frucht-bar machen. Unbeantwortet bleibt jedoch die Fra-ge nach der historischen Vergleichbarkeit von staat-lichen Ordnungen und Sanktionsmechanismen in der Antike und modernen Nationalstaaten. Dage-gen überprü Fabian Lemmes das Konzept »radi-kalen Milieus« anhand einer Fallstudie des terro-ristischen französischen Anarchismus des 19. Jahr-hunderts. Die beiden eher disparat wirkenden Bei-träge machen folglich das methodische Problem deutlich, ein historisch operationalisierbares Kon-zept von Terrorismus zu entwickeln, welches das vielfältige »Umfeld« systematisch einschließt und auch den untersuchten Gruppen und Formen politischer Gewalt wie den staatlich-rechtlichen Reaktionen gerecht wird. Letztlich kann das Kon-zept des »radikalen Milieus« nur für die phänome-nologische Beschreibung der Strukturen des sozia-len Umfeldes des modernen Terrorismus überzeu-gen, auch wenn diesbezüglich einige wenige histo-rische Wurzeln zur Sprache kommen. Dagegen wird der historische Zusammenhang zwischen staatlicher Verfolgung und sozialem Umfeld und die damit verbundene Ausweitung polizeilicher und strafrechtlicher Maßnahmen auf das »radikale Milieu« kaum systematisch eindringender entfal-tet. Der Band bleibt daher bei – durchaus zutreff-enden – Einzelbeobachtungen, die aber keine (rechts-)historische Einordnung oder Deutung er-fahren.

Aus rechtshistorischer Perspektive von Interesse sind ebenfalls die staatlichen Reaktionen auf ter-roristische Gewalt und das »radikale Milieu«, die sich auf die Figur des Ausnahmezustands stützen. Bereits im 19. Jahrhundert reagierten Staaten auf einzelne Attentate mit einer Intensivierung polizei-licher Maßnahmen und einer Ausdehnung des Strafrechts, o mittels zeitlich befristeter Ausnah-megesetzgebung, um Verfassung und Staat zu schützen und die »innere Sicherheit« zu gewähr-leisten. Diesem historischen Zusammenhang zwi-schen politischer Gewalt / Terrorismus und Aus-

nahmezustand gehen die Sammelbände Le regole dell’eccezione und Post 9/11 and the State of Perma-nent Legal Emergency nach, die an dieser Stelle zumindest erwähnt werden sollen. 30 Schwerpunk-te der 13 bzw. 14 Beiträge der Bände liegen auf der Zeit nach 1945, den Auswirkungen von 9/11, trans- und internationalen Entwicklungen, der juridi-schen Konzeptualisierung des Ausnahmezustands und der Beeinträchtigung von Rechtsstaat und Menschenrechten. Dennoch thematisieren einige Autoren auch weiter zurückliegende historische Phänomene und belegen die allmähliche histori-sche Entstehung von Ausnahmezustand und Aus-nahmegesetzgebung aus den rechtlich-polizeili-chen Reaktionen auf politische Gewalt.

Von aktuellen Entwicklungen ausgehend, hat sich die neuere Forschung ebenfalls den grenzüber-greifenden Dimensionen terroristischer Gewalt und den staatlichen Reaktionen auf der trans- und internationalen Ebene zugewandt, 31 die be-züglich der historischen Entwicklungen allerdings noch kaum erforscht sind. Dies gilt insbesondere für die Entstehung und Ausdifferenzierung eines rechtlich-polizeilichen Instrumentariums, das im Hinblick auf Auslieferung, Asyl, Rechtshilfe, Poli-zeikooperation und internationales Strafrecht ein lohnenswertes Forschungsfeld für die Rechtsge-schichte bildet. Zwei neue Publikationen widmen sich diesen Aspekten: ein Sammelband zur Inter-national History of Terrorism und die Monographie The Battle against Anarchist Terrorism von Richard Bach Jensen. 32 Letztere behandelt die Geschichte transnationaler diplomatischer, rechtlicher und polizeilicher Reaktionen auf den Anarchismus zwischen 1878 und 1934. Methodisch verbindet der Autor dabei die transnationale mit der natio-nalen Ebene und verfolgt ausgehend von den lokalen Phänomenen anhand diplomatischer und polizeilicher Quellen die Entwicklung von Polizei-kooperationen, Rechtsnormen oder auch die me-diale Darstellungen von Attentaten in einem grenzübergreifenden Zusammenhang. Damit ge-lingt ihm eine Darstellung der internationalen Reaktionen auf politische Gewalt, die über lokale Fallstudien hinausgeht; deutlich zeigt sich jedoch

30 M / P / S(2011); M (2012). Eine Rezension ist hier nicht möglich, da ein Rezensent an den Bänden bzw. Projekten mitgewirkt hat.

31 Vgl. z. B. D / O / R(2012).

32 B J (2014).

Kritik critique


auch die generelle Schwierigkeit einer rudimen-tären räumlich-politischen Ausgewogenheit. Der eindeutige Fokus auf europäische Staaten ist aller-dings dem Untersuchungsgegenstand geschuldet, denn Bach Jensen weist nach, dass die zeitgenös-sisch etablierten Verfahrensweisen, Methoden und Rechtsnormen der Bekämpfung politischer Gewalt ihren Ursprung in europäischen Initiativen hatten. Einen Schwerpunkt der Untersuchung bilden die internationalen Konferenzen zur Bekämpfung des Anarchismus, anhand derer der Autor die dichten und o konfliktreichen transnationalen Aushand-lungsprozesse nachzeichnet. Dabei berücksichtigt er zu Recht auch die in der Forschung häufig übersehenen gescheiterten diplomatischen Initiati-ven einer Erweiterung polizeilicher Zusammen-arbeit in den 1890er und 1900er Jahren. Einerseits lassen sich daran ebenfalls die Positionen, Proble-me und Konflikte – gerade im Hinblick auf trans-nationale Normen und Verfahren – ablesen, ander-seits konnten auch solche Interaktionen langfristig praktische und normative Wirkungen entfalten. Im Ergebnis kommt Bach Jensen zu der These, dass gerade das repressivere Vorgehen der staatli-chen Akteure auf der letztlich nur gering verrecht-lichten transnationalen Ebene den Anarchismus eher radikalisiert habe. Allerdings hätte die Analy-se der transnationalen rechtlichen Interaktionen und Normen insbesondere für die Bereiche der Auslieferung (bzw. der Auslieferungsverträge) und des politischen Asyls im Vergleich zu den einge-hend behandelten polizeilichen Maßnahmen noch vertie werden können. Dennoch entfaltet das Buch einen auch für die Rechtsgeschichte gewinn-bringenden Ansatz, wie vor dem Hintergrund grenzübergreifender Bedrohungsszenarien terro-ristischer politischer Gewalt auf der trans- und internationalen Ebene die Ausformung staatlicher und rechtlicher Reaktionen, praktische Polizei-maßnahmen und auch die Entstehung und das Aushandeln von Normen zusammenhängend un-tersucht werden können.

Die grenzübergreifende Bekämpfung politi-scher Gewalt bildet auch den Schwerpunkt des von Jussi M. Hanhimäki und Bernhard Blumenauherausgegebenen Bandes zur internationalen Ge-schichte des Terrorismus. 33 Die 16 Beiträge be-schränken sich nicht nur auf Europa oder die westliche Welt, sondern vier Aufsätze beleuchten

den bengalischen Terrorismus in Indien, den Bür-gerkrieg im Tschad, die amerikanische Interven-tionspolitik in Libyen und die South-West Africa People’s Organisation. Die anderen Beiträge be-handeln die Anti-Terrorismus-Politik einzelner Staaten (Frankreich, Italien, Deutschland) nach 1968, einzelne Terrorakte (Flugzeugentführung), die staatliche Unterstützung terroristischer Orga-nisationen sowie den islamischen Terrorismus und die Politik der USA nach 9/11. Lediglich vier Autoren greifen historisch weiter zurück: Richard Bach Jensen untersucht die internationalen Reak-tionen auf anarchistische Gewalt zwischen 1905 und 1914 als erstes globales Terrorismusphäno-men; Charles Townshend behandelt Genese, Inhalt und Scheitern der 1937 vom Völkerbund erarbei-teten »Konvention zur Verhütung und Bekämp-fung des Terrorismus«; Florian Grafl stellt Aktivitä-ten und Strukturen anarchistischer »Gewaltge-meinschaen« und die staatlichen Gegenmaßnah-men in Barcelona zwischen 1890 und 1914 dar. Abschließend entfaltet David C. Rapoport sein Model der vier historischen Wellen des Terroris-mus im Hinblick auf die internationale Dimen-sion. Beginnend mit dem russischen Terrorismus der 1880er Jahre geht er dabei aber ausschließlich von den jeweiligen als terroristisch eingestuen Phänomenen aus und endet mit der Rückkehr des religiös motivierten Terrorismus und 9/11. Der Schwerpunkt des Bandes liegt folglich auf zeithistorischen und aktuellen Phänomenen, wo-bei methodisch meist ein einzelner Staat oder ein terroristisches Phänomen den Ausgangspunkt bil-den und weniger die trans- und internationalen Aktivitäten insgesamt untersucht werden. Zudem behandeln die Autoren sehr unterschiedliche Phä-nomene wie staatliche Terrorismusfinanzierung, Bürgerkriege und Interventionspolitik als »terro-ristisch«, während im Hinblick auf die staatlichen Reaktionen die politischen, militärischen und po-lizeilichen Aktivitäten dominieren und rechtliche Dimensionen kaum systematischer thematisiert werden. Insofern bietet der Band nur wenig für die rechtshistorische Perspektivierung trans- und internationaler Reaktionen auf terroristische poli-tische Gewalt, versammelt aber reichhaltige empi-rische Fallstudien, die durchaus wichtige Bereiche des internationalen Terrorismus wie der staatlichen Anti-Terror-Politik abdecken. Deutlich wird auch,

33 H / B (2013a).

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dass die internationale Geschichte politischer Ge-walt und staatlicher Reaktionen nicht ohne die Einbeziehung der »non-western experiences« aus-kommt. Auf das Problem, inwieweit sich diese historisch zurückverfolgen lassen und welches his-torische Konzept von »Terrorismus« dabei zugrun-de liegen könnte, lässt sich aus den methodisch sehr unterschiedlich ausgerichteten Beiträgen des Bandes keine übergreifende Antwort destillieren. Einfache Verlaufsmodelle wie das der »four waves of modern terror« reichen hierfür kaum aus, zumal sie lediglich auf die als terroristisch eingestuen Phänomene rekurrieren. Um die in der Einleitung zutreffend gestellte Forschungsfrage nach den »res-ponses of states, international organizations and the international community at large« 34 weiter zu verfolgen, bedarf es fortführender methodisch-theoretischer Überlegungen, welche die histori-sche Entwicklung der trans- und internationalen staatlichen und rechtlichen Reaktionen auf politi-sche Gewalt (neben den jeweiligen Terrorismu-sphänomenen) als zentrale Dimension in ein his-torisches Terrorismuskonzept integrieren.

Bilanziert man abschließend knapp im Hinblick auf die Frage: »Terrorismus für die Rechtsgeschich-te?«, so fällt zunächst auf, dass die besprochenen Werke rechtliche Aspekte kaum systematisch be-handeln und diese meist nur im Rahmen der staatlichen Reaktionen auf Terrorismus (mit dem Schwerpunkt auf Gesetzgebung und Polizei) oder im Kontext von Medien und Kommunikation (Justiz als öffentliches Forum) thematisiert wer-den. Dies resultiert auch aus dem Problem des häufig ubiquitären Terrorismusbegriffs und des überwiegend phänomenologischen Vorgehens der meisten Fallstudien, die sehr unterschiedliche his-torische Ereignisse und Entwicklung unter »Ter-rorismusgeschichte« behandeln, die »Staatsterroris-mus«, »messianischen Terror« im antiken Juden-tum oder radikale Milieus einschließen. Dabei werden teilweise Konzepte des modernen zeitge-nössischen Terrorismus übertragen und gelegent-lich scheint bei einzelnen Studien auch das Ziel durch, aus historischen Erkenntnissen über »er-folgreiches« Vorgehen gegen Terrorismus prakti-sche Folgerungen für aktuelle Versuche einer re-pressiven oder friedlichen Regulierung politischer Gewalt bzw. Konflikte abzuleiten: Derart konzi-

piert, erscheint Terrorismus als Forschungskonzept für die Rechtsgeschichte wenig erfolgverspre-chend. Dennoch machen der inzwischen erreichte, ausdifferenzierte Forschungsstand der historischen Terrorismusforschung und die hier exemplarisch besprochenen Arbeiten deutlich, dass einige der verwendeten Ansätze für weitere rechts- und allge-meinhistorische Forschungen Bedeutung gewin-nen können. Voraussetzung wäre allerdings, dass der Terrorismusbegriff in historischer Perspektive durch eine Fokussierung auf zentrale Elemente und Grundstrukturen heuristisch operationalisier-bar gemacht und noch stärker auf spezifische For-men der gegen eine »Obrigkeit« und »legitime Ordnung« gerichteten Gewalt und deren Wahr-nehmung und Regulierung als politische Krimi-nalität begrenzt wird, was keineswegs religiöse Aspekte, aber »Staatsterrorismus« ausschließt. Aus-gehend von einem so konzipierten Terrorismus-begriff könnten im Rahmen der obrigkeitlichen-staatlichen Reaktionen Recht, Normsetzung / Ge-setzgebung, juridische Diskurse, Straustiz, ge-richtliche und auch andere damit zusammenhän-gende Formen der Konfliktregulierung (Media-tion, Gnade) sowie allgemein polizeiliche und soziale Kontrolle als zentrale Felder der (rechts-)historischen Forschung konzeptualisiert und syste-matisch analysiert werden. Dies schließt das soziale Umfeld politischer Gewalt, deren medial-kommu-nikative Dimensionen und die trans- und inter-nationalen Vernetzungen ein, die sich auch hin-sichtlich der hier exemplarisch rezensierten Werke als fruchtbare Ansätze für eine Geschichte des Terrorismus als spezifischer Form politischer Ge-walt erwiesen haben. So zeigt die Untersuchung der Interdependenzen zwischen politischer Gewalt und Medien, Kommunikationsprozessen und Dis-kursen, dass diese zur Radikalisierung, aber auch zur Befriedung und Konfliktregulierung beitragen konnten, insbesondere wenn sie sich in rechtlichen Kontexten vollzogen oder sich entsprechender Ar-gumentationen und Modi bedienten. »Terrorismus als Kommunikationsprozess« sollte folglich Recht und Justiz als zentrale Diskurse und Foren einbe-ziehen, in denen politische Gewalt gedeutet, kon-zeptualisiert, reguliert und medial vermittelt wur-de und die eigene medial-kommunikative Strate-gien (von der Zensur bis zur aktiven Mediennut-zung) entwickelten. Dies gilt ebenso für die Rolle

34 H / B (2013b) 3.

Kritik critique


des Rechts bei der Ausformung eines transnationa-len Instrumentariums, aber auch umgekehrt für die zunehmende Bedeutung grenzübergreifender politischer Gewalt, welche die nationalen Rechts-systeme irritierte und das Problem der Verrechtli-chung transnationaler staatlicher Reaktionen evo-zierte. Hinsichtlich der Periodisierungsproblema-tik würde dies allerdings bedeuten, dass sich histo-rische Terrorismusforschung nicht allein an einer (wie immer zu konzeptualisierenden und zu defi-nierenden) Phänomenologie politischer Gewalt ausrichten kann. Erst die in der Frühen Neuzeit einsetzende allmählichen Ausdifferenzierung juri-discher Konzepte von politischer Kriminalität und

Staatsverbrechen, die Nutzung von Kommunika-tion und Medien durch Gewalttäter / »Terroristen« und Staat / Justiz zur Deutung und Regulierung des politischen Konflikts und die ebenfalls seit Ende des 18. Jahrhunderts an Bedeutung gewin-nende transnationale Dimension politischer Ge-walt wie der rechtlichen Reaktionen insgesamt formierten einen historischen »Terrorismus«, den auch die Rechtsgeschichte gewinnbringend unter-suchen kann.

n

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n H, H-G, K W (2011), Terrorism and the state, in: B, D, R G (Hg.), Political Violence in Twentieth-Century Europe, Cambridge 2011, 176–209

n H, M (2011), Crimes Against the State. From Treason to Terrorism, Farnhamn H, C, S S (Hg.) (2012), Terrorismus und Geschlecht. Politische Gewalt in Europa seit dem 19. Jahr-

hundert, Frankfurt a. M.n J, H (2010), Présentation, in: L / D-M (2010) V–IXn L, H (2010), Le terrorisme comme personnage historique, in: L / D-M (2010) 9–66n L, H, M D-M (Hg.) (2010), Terrorismes. Histoire et droit, Parisn L, R D. (2009), Terrorism. A History, Cambridgen M, S, P W (Hg.) (2012a), Radikale Milieus. Das soziale Umfeld terroristischer Gruppen, Frank-

furt a. M.n M, S, P W (2012b), Radikale Milieus: Das soziale Umfeld terroristischer Gruppen, in: M-

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n M, A (Hg.) (2012), Post 9/11 and the State of Permanent Legal Emergency. Security and Human Rights in Countering Terrorism, New York http://dx.doi.org/10.1007/978-94-007-4062-4

n M, M, P P, C S (Hg.) (2011), Le regole dell’eccezione. Un dialogo interdisciplinare a partire dalla questione del terrorismo, Macerata

n M, M A. (2013), The Foundations of Modern Terrorism: State, Society and the Dynamics of Political Violence, New York

n R, J (2012), Die Faszination anarchistischer Attentate im Frankreich des ausgehenden 19. Jahrhunderts, in: W / R (2012a) 99–120

n R, J I (2012), An Introduction to Political Crime, Bristol n S, A P. (2012), Vorwort, in: M / W (2012a) 7–9n S, S (2011), Terrorismus und Geschichtswissenscha, in: S / K / H (2011) 99–122n S, S (2012a), Terrorismus – Geschlecht – Erinnerung: Eine Einführung, in: H / S (2012) 7–23n S, S (2012b), »Wie der Hass gegen den Staatsrath von Kotzebue, und der Gedanke, ihn zu ermorden, in Sand

entstand«: Ein politischer Mord und seine Nachwirkungen, in: H / S (2012) 145–168n S, A, A K, K H (Hg.) (2011), Terrorismusforschung in Deutschland, Wiesbaden http://

dx.doi.org/10.1007/978-3-531-93040-4n V, C (2011), Oh Times, There Is No Time (But the Time that Remains): The Terrorist in Russian Literature

(1863–1913), in: A / D / H (2011) 117–135 n W, K, J R (Hg.) (2012a), Gewalt ohne Ausweg? Terrorismus als Kommunikationsprozess in Europa

seit dem 19. Jahrhundert, Frankfurt a. M.n W, K, J R (2012b), Terrorismus als Kommunikationsprozess: Eskalation und Deeskalation politischer

Gewalt in Europa seit dem 19. Jahrhundert, in: W / R (2012a) 11–47

Kritik critique


Thomas Duve

German Legal History: National Traditions and Transnational Perspectives

In this article, I review select institutional and analytical traditions of Legal History in 20th cen-tury Germany, in order to put forth some recom-mendations for the future development of our discipline. A careful examination of the evolution of Legal History in Germany in the last twenty-five years, in particular, reveals radical transformations in the research framework: Within the study of law, there has been a shi in the internal reference points for Legal History. While the discipline is opening up to new understandings of law and to its neighboring disciplines, its institutional posi-tion at the law departments has become precarious. Research funding is being allocated in new ways and the German academic system is witnessing ever more internal differentiation. Internationally, German contributions and analytic traditions are

receiving less attention and are being marginalized as new regions enter into a global dialogue on law and its history. The German tradition of research in Legal History had for long been setting bench-marks internationally; now it has to reflect upon and react to new global knowledge systems that have emerged in light of the digital revolution and the transnationalization of legal and academic systems. If legal historians in Germany accept the challenge these changing conditions pose, thrilling new intellectual and also institutional opportuni-ties emerge. Especially the transnationalization of law and the need for a transnational legal scholar-ship offers fascinating perspectives for Legal His-tory.

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Jürgen Renn

The Globalization of Knowledge in History and its Normative Challenges

The paper discusses the relationship between history of law and history of science. It argues that just as the history of science has recently been widened to include a more encompassing history of knowledge, the history of law may also be conceived of as part of a larger history of norma-tivity. Science and law, when viewed as cultural

abstractions deriving from reflections on concrete practices and experiences along historical trajecto-ries, must be understood from a global perspective. Aspects of a global history of knowledge that shaped the emergence of modern science inform this approach.

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Hartmut Leppin

Christianity and the Discovery of Religious Freedom

With its broad spectrum of cults and coexisting religions Graeco-Roman antiquity seems, at first glance, to be the embodiment of religious free-dom. Yet, a closer analysis shows that a concept of tolerance or the idea of religious freedom did not exist. Political institutions could easily suppress religious practices that were regarded as offensive. Fighting against the oppression of Christians appears to have increased under the influence of oecumenical paganism during the reign of the

Severans. In this time, the Christian thinker Ter-tullian discovered and articulated the concept of religious freedom. However, he did not do so emphatically and the concept was not very success-ful in antiquity. With the Christianization of the Roman Empire it disappeared soon, although its rediscovery in later epochs contributed heavily to the formation of the European norm of religious freedom.

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Abstracts abstracts

Heiner Lück

Aspects of the transfer of the Saxon-Magdeburg Law to Central and Eastern Europe

An important impetus for the development and dissemination of the Saxon Mirror, the most famous and influential German law book of Cen-tral Germany between 1220 and 1235 by one Eike von Repgow, was the municipal law of the town of Magdeburg, the so called Magdeburg Law. It is one of the most important German town laws of the Middle Ages. In conjunction with the Saxon Mirror with which it was closely interconnected, the Magdeburg Law reached the territories of Sile-sia, Poland, the lands belonging to the Teutonic Order, the Baltic countries (especially Lithuania), Ukraine, Bohemia, Moravia, Slovakia and Hun-gary. The peculiar symbiosis between Saxon Mirrorand Magdeburg Law on the way to Eastern Europe has been expressed in the source texts (ius Teuto-nicum, ius Maideburgense and ius Saxonum in the early originally carried the same content). Ius Maideburgense (Magdeburg Law) has reached the foremost position as a broad term, which en-

compassed the Saxon territorial law as well as the Magdeburg town law, and, quite frequently, also the German Law (ius Teutonicum) in general. Modern scholarship recognizes this terminological overlapping and interrelatedness through the no-tion of Saxon-Magdeburg Law. In a very complex process of legal transfer, the Saxon-Magdeburg Lawbecame a fundamental source of the legal systems in several Eastern European states during the late Middle Ages and the early modern period. In this sense the Saxon-Magdeburg Law contributed to the groundwork of the development of law in Europe. Milestones achieved in the process included the formal concession of Magdeburg Law to the cap-itals Krakow (Poland), Kiev (Ukraine), Minsk (Belarus), Vilnius (Lithuania) and other towns by kings and princes between the 13th and 15th cen-turies.

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Raja Sakrani

The Law of the OtherAn unknown Islamic chapter in the legal history of Europe

As the Other is indispensable for the construc-tion of self-identity and collective identity, the question of the Other is viscerally linked not only to the question of identity but also to law. Starting from some reflections in philosophy about Other-ness and the sociological inquiries of building collective identities a fundamental problem re-mains: Who is the Other? Or: What does Europe have to gain from rediscovering the History of the Muslim Other and his normative space in order to understand his collective identity and to resituate his Otherness in an inclusive plural albeit value oriented Europe?

There is no doubt that historians recognize the decisive role played by translations and Arab thought for the reception of the heritage of Antiq-uity and Greek philosophy. But don’t they remain

blind about the role of the evolution of the realm of normativity in Europe?

In order to tackle this complex question some Islamic pasts will be remembered in a first step (I). Then a further look is thrown upon Islamic Law in the History of European Law (II), whereas the case of Spain is analysed as a problem of interacting and overlapping legal cultures on the basis of a critical analysis of research traditions (III). New challenges arise for a more complex understanding of a selective collective memory on the one side and the necessity to improve our knowledge of this entangled normative history beyond the case of Al-Andalus on the other side in: Sicily, France, Eng-land and East Southern Europe.

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388 abstracts

Martti Koskenniemi

Vitoria and UsThoughts on Critical Histories of International Law

How to write (international) legal histories that would be true to their protagonists while simulta-neously relevant to present audiences? Most of us would also want to write »critically« – that is to say, at least by aiming to avoid Eurocentrism, hagiog-raphy and commitment to an altogether old-fash-ioned view of international law as an instrument of progress. Hence we write today our histories »in context«. But this cannot be all. Framing the relevant »context« is only possible by drawing

upon more or less conscious jurisprudential and political preferences. Should attention be focused on academic debates, military power, class struc-tures or assumptions about the longue durée? Such choices determine for us what we think of as relevant »contexts«, and engage us as participants in large conversations about law and power that are not only about what once »was« but also what there will be in the future.

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Tamar Herzog

The Appropriation of Native Status: Forming and Reforming Insiders and Outsiders in the Spanish Colonial World

This article examines the different meanings of native status in Spanish America. It argues that the classification of Indigenous peoples as »natives« was not meant to reflect a reality of indigeneity as many have assumed, but instead was geared towards attributing them with a particular legal status, which in Peninsular Spain was reserved to members of the political community (naturales). It operated to de-ethnicized the Indians by implying, on the one hand, that they would lose their previous condition as members of various distinct human groups transforming them instead into participants in a common patria (the Americas) and, on the other, that rather than being classified by the traditional ties that united them to one another and to their previous lords, they would

become civic members of a community that no longer depended on descent. While in the six-teenth, seventeenth, and eighteenth centuries Indi-ans were de- and re-classified, American Spaniards – who initially were the quintessential foreigners – were gradually transformed into natives and Pen-insular Spaniards were presented as aliens. By the end of this process, rather than creating two republics that clearly separated colonized from colonizers, what colonialism did was to turn the world upside down. It de-naturalized natives while making some Europeans (but not all) the true legal possessors of a world, which they invaded but which they now claimed as rightfully their own.

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Jean-Louis Halpérin

Transplants of European Normativity in India and in Japan: a Historical Comparison

What can we learn from a comparison between legal transplants in modern India and Japan? Are they so strong differences between a colonized territory and an always independent country? The process of reception of Western law appears to be very similar in India and in Japan, as a global importation of legal institutions and schemes. The limits for the reception of Western models have

their origins in sociological and political factors rather than in cultural ones. The question of legal education is crucial until today and also involves the American model. One has to study, as an important element of differentiation, the evolution of legal writing in the two countries.

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Li Xiuqing

The Chinese Repository and Chinese Criminal Law in the Minds of Westerners of the 19th Century

The Chinese Repository was the first well-estab-lished comprehensive English language journal in China. Based on the exploration of The Chinese Repository, the article provides a general view and an analysis of the contents concerning the Chinese criminal law and other relevant information pub-lished thereon, summarizing the views of Chinese criminal law held by the Westerners of the 19thcen-tury and elaborating on the accountability and causes of the final consequence. Typical Western-ers’ views of Chinese criminal law were as follows: There are too many provisions on violent crimes, especially on homicides, and as for homicides, whether murders or manslaughters, a life for a life was always a principle to be followed and the perpetrator had to be executed, with only few exceptions to that rule. Since the purpose of crim-inal punishment was to penalize rather than cor-rect or educate criminals, the punishments were severe and among them, capital punishment was widely employed to cruel effect. The abuse of extortion was widespread and unlawful extortion

or torture was common though prohibited. Laws in China, including criminal laws, lacked certainty, which was not only due to the arbitrariness in law-making and law-amending, but also to the exces-sive degree of discretion conferred on local govern-ment officers and given to the practice of implica-tion (Zhu Lian), which reveals a certain backward-ness and cruelty. These nearly »backward and bar-barian« or »bloody and cruel« views of Chinese criminal law, though somewhat correct, are partial and imaginary to certain extent. These views rooted in the minds of Westerners at that time partly owe to the language obstacles, partly to the influences of West-centrism, the ideology of racial superiority, and conflicts or different ideas between the Chi-nese and Western traditional or historical legal systems. The Chinese Repository was the main, though not the only, widespread media between China and the West, through which the Western-ers’ views of Chinese criminal law undoubtedly spread far and wide.

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390 abstracts

Zhang Zhongqiu

China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty

This article studies the selection of a target country for succession of foreign laws by China of the late Qing Dynasty as well as the channels and approaches based on documentation in the Chi-nese language. According to this article, the selec-tion was mostly limited by information, the national situation and political system, objectives, international environment, legal tradition as well as human and material resources, of which the national situation, political system and objectives serve as key factors. In this case, historically, China of the late Qing Dynasty looked at the United States, Britain, France and Germany before settling

on Japan as the target country for the succession of foreign laws; and with respect to the channels and approaches for the succession, several relatively effective channels and approaches, such as studying aboard, translating foreign texts, making survey trips and hiring foreign experts, were employed. Such selection by China of the late Qing Dynasty for the purpose of succession of foreign laws provide us with useful references for thinking about law succession and the current exchange of laws and cultures between China and foreign countries.

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Eugenio R. Zaffaroni,Guido L. Croxatto

El pensamiento alemán en el derecho penal argentino

The purpose of this essay is to address, from a historical perspective, the influence of German thinking (German philosophy, German dogmas) on the Argentine criminal law, by recalling the way in which different German theorists have been read and received in Argentina. It attempts to think the Argentine criminal coding as a dialogue – many times as a mere uncritical acceptance – among Latin American jurists and codifiers and German thinkers, in their different expressions and historical stages. Different debates are analysed –such as the polemic between causalism and final-ism– both for the manner in which they have occurred in Germany and for the way in which they have taken place in Argentina (the causalism-finalism debate took place in the difficult 1970s in

Argentina), especially considering the political context in which said polemics have occurred, the meaning of such debates – and what taking certain positions meant – according to the political context in which they took place. Thus, the aim is to devise an outlook of the current discussion in the Argentine criminal law, highlighting the his-torical analysis of the problems still faced by Criminal Law, attempting to create, in turn, a critical, conscious criminal thinking – but not a hostage – of the European influences, that is to say, a critical criminal thinking which takes into account the particular social and historical context of the region where the law is applied.

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Elisabetta Fiocchi Malaspina,Nina Keller-Kemmerer

International Law and Translation in the 19th century

The article aims to investigate, under the aspect of translation, the process of legal appropriation and reproduction of international law during the course of the 19th century. An occidental under-standing of translation played an important role in the so-called process of universalization in the 19th century, as it made the complexity of global circulation of ideas invisible. Approaches proposed by scholars of Postcolonial, Cultural and Trans-lation Studies are useful for re-reading histories of the circulation of European ideas, particularly the international law doctrines, from a different per-spective. The great strides made in Translation and Cultural Studies in the last decades, as well as the discernment practiced in the scholarship of Post-

colonial Studies, are important for a broader and more differentiated understanding of the processes of appropriation and reproduction of the doctrines of international law during the 19th century. The present article begins by tracing the connection between translation and universalization of con-cepts in 19th century international law; aer a short excursus on the Western idea of translation, the attention is focused on the translation of inter-national law textbooks. The conclusive section is dedicated to a comparison between Emer de Vat-tel’s Droit des gens and Andrés Bello’s Principios de Derecho de Jentes.

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Urs Matthias Zachmann

Does Europe Include Japan? European Normativity in Japanese Attitudes towards International Law, 1854–1945

European normativity has been an epistemolo-gical problem for Japan throughout modernity (1868–1945). This essay discusses this problem in the case of international law by tracing its recep-tion and application from the beginning, the open-ing-up of Japan in 1854, until the final demise of its imperialist project in 1945. During this period, Japan was the only non-Western great power in the hitherto all-European concert of powers. Inter-national law and the critique of European norma-tivity played a central role in Japan’s ascent to power and confrontation with the West. In the first phase of reception between 1954 and 1905, Japanese attitudes towards international law were marked by an exceptional commitment to and acquiescence with the European standard, in line with Japan’s ambition to »leave Asia«. However, due to its strategic purposes, European normativity was more a means of political expediency than a matter of intrinsic conviction. Moreover, aer the initial phase of receiving and practicing the prin-ciples of international law with considerable suc-

cess, many Japanese began to feel a certain es-trangement and inner reservation to European standards. Not until 1905, was Japan in a position to gradually challenge Europe. Thus, Japan’s inter-war period (1905–1931) was an uneasy combina-tion of outward compliance and inner reservation, a tension that Japan eventually resolved by with-drawing from Europe and trying to build its own autonomous sphere in East Asia aer 1931. How-ever, the example of Japanese international lawyers shows that in order to save international law from its ultranationalist critics and enemies, European normativity still remained the central cultural reference, albeit now in its revisionist variant (especially Soviet and Nazi German political thought) and subject to a strategic re-interpreta-tion. Thus, from the perspective of Japanese inter-national lawyers, despite the Pan-Asianist pretenses of Japan’s official rhetoric during the war, Japan never actually le Europe.

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392 abstracts

Ute Frevert

Honour and / or /as Passion: Historical trajectories of legal defenses

This article provides a historical perspective in a European context on the phenomenon that has become known as honour killings. A cause of outrage and disdain in today’s (Western) societies, the notion of restoring honour through a violent act is, in fact, deeply rooted in European legal and cultural history. By examining French, Anglo-Sax-on, German and Italian examples, it is revealed that to varying degrees emotions, and, in some cases honour in particular, were accommodated in legislation as granting the perpetrator extenuating circumstances. Adultery in particular was thought to compromise the honour of husbands, thus entrenching an inherently gendered conception of honour. However, leniency of the law was

mostly dependent on ›heat of the moment‹ argu-ments, attempts to avenge the violation of one’s honour, rather than premeditated, cold-blooded revenge killings restoring the collective honour of the family. By discriminating between notions of individual and collective (family) honour, exam-ples from European history exhibit a qualitative difference compared to modern day honour kill-ings. The full extent of hypocrisy in judging mod-ern day (Muslim) honour killings, however, be-comes apparent when considering that gendered concepts of emotions and honour only disappeared from European legal thought aer the 1970s, partly following feminist criticism.

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Paolo Grossi

Die Botscha des europäischen Rechts und ihre Vitalität: gestern, heute, morgen

The author wishes to identify the legal message given by Europe in the Middle Ages and in con-temporary times, when a legal entity was achieved therein. This message has ancient roots, but has the following common elements: achievement of a legal unit, while also respecting internal diversity; enhancement of the value of jurists in legal pro-duction (because law is the field of jurists, and not of politicians); and especially enhancement of the

value of legal science, for its capacity to establish harmonising and generally boundless principles.

It is singular that this enhancement of the value of jurists and legal science may also be found in the great movement oen called legal globalisation, a movement borne of the needs of the global economic market, and in which jurists and legal science play a decisive part.

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Autoren contributors

Mario Ascheri Siena Carolin Behrmann Florenz Christiane Birr Frankfurt a. M. Pamela Alejandra Cacciavillani Frankfurt a. M. Guido L. Croxatto Buenos Aires Otto Danwerth Frankfurt a. M. Wim Decock Frankfurt a. M. Thomas Duve Frankfurt a. M. Vera Finger Berlin Elisabetta Fiocchi Malaspina Genua Ute Frevert Berlin Roberto Gargarella Buenos Aires Paolo Grossi Florenz Jean-Louis Halpérin Paris Tina Hannappel Frankfurt a. M. Karl Härter Frankfurt a. M. Tamar Herzog Cambridge (MA) António Manuel Hespanha Lissabon Nina Keller-Kemmerer Frankfurt a. M. Sylvia Kesper-Biermann München, Köln Martti Koskenniemi Helsinki Stefan Kroll Frankfurt a. M. Hartmut Leppin Frankfurt a. M. Karl-Heinz Lingens Frankfurt a. M. Li Xiuqing Shanghai Li Yang Nanjing Heiner Lück Halle Harald Maihold Frankfurt a. M. Philip C. McCarty Santa Barbara Christoph H. Meyer Frankfurt a. M. Kjell Å. Modéer Lund Jürgen Renn Berlin Raja Sakrani Bonn Ulrich Jan Schröder Münster Gunnar Folke Schuppert Berlin Michael Stolleis Frankfurt a. M. Conrad Tyrichter Frankfurt a. M. Leticia Vita Buenos Aires, Frankfurt a. M. Thomas Walter Frankfurt a. M. Christian Windler Bern Urs Matthias Zachmann Edinburgh Eugenio R. Zaffaroni Buenos Aires Zhang Zhongqiu Beijing

Rechtsgeschichte - Katalog der Deutschen Nationalbibliothek

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