Hawkins: Law as Last Resort: Prosecution Decision‐Making in a Regulatory Agency

AuthorSteve Tombs
Publication Date01 July 2004
Date01 July 2004
Christian Joerges and Navraj Singh Ghaleigh (eds),Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism over Europe and
its Leg al Traditions,Oxford: Hart Publishing, 2003, xvi þ416pp, hb d55.00.
The central theme of thi s collection of essays is wonderfully evoked by the photo
on its cover of a sculpture ^ ‘Liberated Man.The gaunt and shaven-headed ¢gure
huddles with hisback turned towards the future, but his hands are ¢rmlyclasped
overhis face, obscuring his vision of the past. As Europeans wrestlewith the pro-
blems of integration and engage in experiments with a constitutionalism that
transcends national boundaries, do they need also to take account of the past of
Nazism andfascism? The answer the bookgives is‘yes’. Collectively the essays are
supposed to make the point that one cannot construct a liberated legal future
without paying serious attention tothe past from which one hopes to be liberated.
W|th nineteen essays, plus a substantialand customarily insightful prologue by
the foremost historianof Germany’s legal order, Michael Stolleis, and a customa-
rily feisty epilogue by the most distinguished constitutional theorist of Europe,
Joseph Weiler, the book provides an opportunity for both an unrelenting stare
into the past and a justi¢cation for that stare.The justi¢cation goes beyonda claim
that the past is likely to repeat itself if it is not thoroughlyconfronted. It includes
the thesis thatthe principal ¢gures of fascist and Nazi legal thought posed a ques-
tionwhich no constitutionalexperiment can a¡ord to ignore ^ the question of the
basis uponwhich a politicalunity can successfully be founded. Is it su⁄cient, with
Jˇrgen Habermas, to posit a constitutional patriotism, an allegiance to the values
of liberal democracy? Or is something thicker needed ^ something which
can grou nd the substantive homogeneity of the Vo l k , the Schmittian idea which
occupies many of the authors?
The two parts of the justi¢catio ncomb ine at least in the thought that if the past
is not properlyconfronted, volkisch elements will play their role belowthe surface
of liberal legalism. But more important for some of the contributors is the claim
that the issue is not just about bringing those elements to the surface in order to
eradicate their in£uence. Rather, one has to see that one cannot simply choose
Habermas over Schmitt in reaction to Schmitts repugnant views about homoge-
neity, because Schmitt was right that something beyond li beral democratic values
is as a matter of fact constitutive of every successful political unity and so every
successful legal order. If the European project of integration is to make any sense,
it must make sense for reasons other than a commitment to the rule of law,
human rights and so on, since all the countries involved in the project are already
so committed, even if some of the countries that are seeking participation have
only recently made such commitments and have still a long way to go in turning
theory into practice. These ideas are thoroughly and perceptively canvassed by
Weiler, Joerges, NeilWalker and John McCormick.
But perhaps one does not really need a detailed account of Europe’s legal past to
engage in this kindof debate.Weiler’spassing remark in his Epilogue that he does
not ¢nd the generationof German lawyers of the1930s all that interesting might
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(4) MLR 700^713

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