Catch Researcher Ville Erkkilä's presentation at the Europe and the Crisis of Reason workshop, titled "The Images of Law and Society After the End Law - Two Visions of Justice and Tradition in a Divided Germany."
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My presentation deals with two different responses to the crisis of reason. The crisis, the starting point for these responses was the total collapse of [jurisprudence? 00:00:15] and justice in Nazi Germany. And the two responses I'm dealing with today at the heart of this presentation are the discourses of jurisprudence in the East and the West Germany. Both of these legal scientific schools or discourses were constructed in response to this total defeat of justice and morality that occurred in Germany in the 1930s and 40s. I discuss the responses of two influential German scholars, [Franz Wieacker and Karl? 00:00:44]. And both of them were largely responsible for the content and direction of their own paradigm of [?? 00:00:56] that they represented. And they also shaped the way these discourses dealt with the Nazi past and possible Nazi future. In this presentation, Franz Wieacker represents the West German Concert of Legal Tradition and Karl [?? 00:01:17], the East German Socialist Legal Tradition. Before going into more detail about the differences and similarities between the two responses, I will begin by showing how Nazi Germany, how justice in Nazi Germany was precisely a crisis of reason, and how [?? 00:01:39] as a practice and as a structure of thought reflected more broadly the low point of humanity that occurred in post-Weimar Germany. Both scholars, [Franz Wieacker and Karl Pollack? 00:01:51], had been trained in Weimar and they had been socialized in the image of the relationship between law and society that prevailed in Weimar, Germany. At the beginning of the 20th century, German [jurisprudence? 00:02:07] was admired, copied all over the world, and it was enriched by the work of such greats as [Carl von Savigny, Bernard Windscheid, Otto von? 00:02:17] and [Hermann Kantorowicz? 00:02:18]. It is reasonable to argue, and it's a pretty common idea, that it was in the German in the 19th century that legal science was born. Also in many aspects of Weimar constitutional order, jurists played an important role. The legal culture was based on the norms of the civil code and the criminal code inherited from the German Empire. The interpretation and application of both these very complicated codes to the changing social circumstances required a high level of legal sophistication.
A large proportion of civil servants in Weimar in the state administration were lawyers and legal practitioners were valued and appreciated. In law schools and prestigious law schools, legal scholars provided analysis of the interface between law and social development and contextualized new legislation. Lawyers saw themselves as guarantors and guardians of the rule of law, in Weimar, in German tradition. Law training itself was exclusive and it included a long unpaid traineeship. Lawyers saw themselves as a group in the service of the state, and emphasized the virtues of their own profession as a central piece of the bureaucracy. The division into three branches of government, legislative, executive and judiciary, was not a German invention, but this division was honed into a sophisticated model in which the subjective rights of citizens against the [excesses? 00:04:26] of state power were valued and guarded by legal professionals. However, lawyers also played a prominent role in the destruction of the rule of law in Weimar. In the end, the Nazis did not need the help of lawyers to build a totalitarian state and carrying out their genocidal policies. But early in the 1930s, when Nazis tried to secure their power, take control of all the fields in society, and to exclude Jews from public life, jurists were important. Their part was to turn the rule of law against itself, for example, through racial laws or through regulations regarding private property or marriage. [Franz Wieacker? 00:05:17] was one of those who contributed to the destruction of this legal culture and to the establishment of the totalitarian [illegality? 00:05:30] of the Nazi state. [Wieacker? 00:05:38] was a prominent legal scholar and renowned for his contributions to the study of Roman law and legal history and the development of modern legal systems in Europe. The highlight of [Wieacker's? 00:05:47] career and the book that brought together his earlier works, including those written in Nazi Germany, was A History of Private Law in Europe. The first edition appeared in 1952. This book provides a comprehensive overview of the development of private law from ancient times to the modern era. And it is still a foundational text in the field of legal history. And Wieacker is still regarded as one of the most influential scholars of European legal history of all times. As a young researcher in 1930s, however, Wieacker was a member of Carl Schmitt's inner circle and a member of the so-called [Kieleschule? 00:06:38]. Kiel Schule or Kiel School was a group of young national socialist legal scholars who worked at the University of Kiel during the early Nazi years. These scholars were assigned a task to create a kind of a national socialist model faculty, storm troop faculty from the law school of the Kiel University. And the faculty was to serve the national socialist idea of legal renewal. So Wieacker, among others, interpreted legal tradition through national socialist ideology and produced research designed to shape the interpretation of the law to support not only Nazi policy in Germany, but also the power of the Third Reich across occupied Europe. What made Wieacker a prominent legal historian, however, after the war, was that he emphasized the importance of understanding justice within its historical context. He explored how notions of justice have evolved over time, influenced by social, cultural and legal developments. Wieacker took these ideas, which he had already elaborated in Nazi writings, into his post-war writings as he tried to explain the collapse of the German legal order, how lawyers worked with the Nazi regime, and when he tried to redraft a model of a healthy and sustainable legal order as a response to the crisis of reason that just had occurred.
To Wieacker, justice in history was always related to the special position of legal professionals in a given society. Legal learnedness was a skill that enabled the lawyers to adapt and apply centuries old legal principles into various circumstances and values of different societies. Legal learnedness meant historical awareness. It means true [historicity? 00:09:02] in the sense that one was able to find similarities in different legal cultures and understand the historical layers that comprise the legal evaluations of contemporary world. Wieacker used this narrative or worldview to explain the demise of Weimar also. [Wieacker? 00:09:28] considered that in Weimar Germany, legal learnedness had been undermined for too long, and heretic theories on the relations between law and politics became hegemonic in German universities. So, the jurists were unable to resist the Nazi revolution because they had lost their understanding of the connection between law and social justice. To Wieacker, the way the socialist reform the universities and the legal system imposed for Eastern Europe was totalitarianism. According to him, the destruction of Weimar, the Nazi rise to power and communist legal policy were all basically the same phenomena. And here we come to [Karl Pollack? 00:10:17] who was born in 1905 in Germany as the second eldest son of Jewish parents. Already as a teenager, he experienced harsh racism and witnessed antisemitic outbursts and terrorization. And this, he later recalled, initiated his personal break with [bourgeois society? 00:10:45]. He studied law in Heidelberg, Munich, and Frankfurt, and obtained his doctorate in 1933. But as a Jew, was no longer allowed to complete his studies and work as a judge or a lawyer in Germany. He emigrated to the Soviet Union, wrote some works on legal theory in Russian, and found out the other German emigres, connected with them, and this group later comprised the political elite of East Germany. He moved to East Germany after the war and immediately became the head of the Communist Party's Justice Branch. He was the key figure behind the East German Constitution in 1949. And after that, he continued to work as a professor of political science, constitutional and international law at the University of Leipzig. Where we really remember Karl Pollack is the late 1950s, when the GDR again had to redefine what kind of a socialist country it actually was. It had to build the relationship between the legal system and politics anew. Basically, Pollack was the legal advisor and closest ally to the leader of the GDR, Walter Ulbricht. Pollack was the legal mastermind behind the socialist legality of the 1960s GDR. I have to emphasize here that, like [Franz Lieke? 00:12:29], I don't consider Karl Pollack as some kind of a hero. That he was not. He assisted in building a dictatorship, and his construction of law and society, first and foremost, ensure that laws serve the interests of the socialist state and its ideology, but above all, the Communist Party of East Germany. As a socialist jurist, Pollak was kind of a middleman [?? 00:13:02] law was superstructure like to most socialist legal scholars, superstructure, like family or philosophy, etc. And it was subordinate to the relations and means of production, or to the base, as it was expressed in Marxist theory. Pollack was a bit different in the way he believed in justice, [residing? 00:13:37] in relationships between people.
The interaction of values that defined the work of any community were, in fact, the greater good that justice was supposed to just reproduce. The legal institutions and the norms enshrined in the law were vital to society, according to Pollack, but the law had no tradition separate from the rest of society and legal institutes had no working method above the masses. [Socialist legality? 00:14:18] was nothing more as a tool for advancing the socialist transformation of society. The movement, the historical movement, was the other pillar of socialist justice. What socialist justice was not, it was not liberal legal concepts, it was not bourgeois tradition, and it was not the works of [Franz Lieke? 00:14:45]. So, here we see two responses to the crisis of reason, to the crisis of morality, to the crisis of justice. So, how is it important to us? What can we learn from them? I think what we should not do is to just leave the other aside and concentrate on the other. With the fall of the Berlin Wall and the disappearance of state socialism in the 1990s, a narrative emerged about the historical trajectory of the true justice. According to this narrative, Karl Pollack's world never really existed. It was just a facade for a failed dictatorship. And [Franz Lieke? 00:15:39] became this celebrated legal historian, and his vision of justice is perceived as organically true, unique, because it is in the foundation of our current legal order and legal worldview. Well, as I have briefly tried to show in this presentation, this narrative simplifies historical circumstances to such an extent that one can wonder how well it actually corresponds to what actually happened in the past. In this narrative, [Franz Lieke's? 00:16:11] [Nazi parts? 00:16:16] strings to a curiosity, kind of an aberration of youth in his overall production. And the reasons behind Pollack's orientation, the historical collaboration between fascism and capitalist jurisprudence and the [omnipresent? 00:16:34] racism, those reasons are forgotten when he is remembered only as a servant of the dictatorship. I present that in order to understand academic abstractions such as law and reason, we should read academic text as human productions. We should read the ideas of scholars of the past as similar to our own views, which are determined by a certain fate in the future and the weight of the past. Our own views are sometimes going in the wrong direction, fumbling between different options, and sometimes we feel joy of being exactly right. By taking this personal fully into account in our interpretation, in our analysis, we get closer to the right interpretation, true interpretation, that is useful to us in our [?? 00:17:31]. So we can't ignore biography when we study responses to crises, [the collapse? 00:17:42] of justice in history.
And this brings us to another problem, which makes it difficult to study right and wrong, reason and falsehood in time. A rigid view of history prevents us from understanding the agency in the past and of the past. But when we consider our own contemporary understanding of justice and order, is there something that we can't see? Is there something that distorts our own interpretation? And for this, and this is just a kind of a mind game, don't take this seriously. [I warned you already beforehand? 00:18:22], I kind of did the same that many people nowadays do. I went to the internet and asked chat GPT. So, if I want to really understand [Franz Lieke? 00:18:39], please, chat GPT, tell me what is it all about. What's there? Write me a short biography of [Franz Lieke? 00:18:44]. And chat GPT delivered. And according to it, Franz Lieke was actively involved in academic organization. I think [?? 00:18:59] can be considered here an academic organization. Insightful analysis, yes. Maybe the kind of a Nazi understanding of the world and Europe is an insightful analysis. But in general, okay. No one's perfect, let's say this. But then I did the same for Karl Pollack. And the reply was this. Pollack was a scholar of human rights, focusing on constitutional law. And despite the constraints imposed by the authoritarian regime of East Germany, Pollack remained steadfast in his commitment to the principles of justice and equality and fearlessly critiqued the legal system's shortcomings. ChatGPT does not clearly understand. It doesn't know who Karl Pollack is. But what here... And this is just, you know, a mind game. What we can see from these two biographies is that, you know, they actually, they are similar. They are the same. And ChatGPT seems to believe in the narrative of constant progress of law and the rule of law. ChatGPT is under the impression that legal science always contributes to the general well-being of humanity. And it kind of... A legal science helps us to safeguard the full enforcement of human rights. Reason as a tool in the context of legal science always serves justice. I wanted to show this picture in order to make my point. Maybe it's a ChatGPT, I don't know. Maybe the internet, the stuff we, the people, have downloaded there, has this [?? 00:21:07], understanding this belief, blind belief in progress and reason in the service of law that it cannot do wrong stuff. I think this idea is not true, and it's also a bit dangerous. Without even going into details, today there are more authoritarian states in the world than democracies, and even in the countries that count as democracies, there are a huge number of people whose rights are not respected. And I think no one can in good conscience claim that the situation is getting any better. I think also this idea of constant progress of law and the rule of law makes it dangerous, is that it prevents us from seeing the dangers ahead and reacting to them properly.
Many dictatorships and aggressive nations have a well-functioning legal system, not maybe a sophisticated one, but a robust legal support for the authoritarian rule. So do we fight this by kind of making an empty promise that the rule of law shall prevail? We can use history. For example, these two responses in order to make sense of the complicated and complex problems of our present world. For example, Karl Pollack's [response shows? 00:22:49], that blind faith in the timelessness of legal concepts and canonical texts just upholds oppressive structures and perpetuates social injustice. Real change towards a more just world must come about by rethinking the relationship between law and political power. Frans Wieacker's response may help us to see what that change means in the present moment. Law is a construct. It's a framework created by people for themselves, based on the norms and rules of previous societies, but it does not automatically move in a more just direction. To understand how reason, law and society work together at any given moment to the fairest possible outcome, we need to understand the historicity of law, its relationship to other legal systems, its own past and its possible future. Thank you very much.