Abstracts of the talks
Jacob Giltaij – Separating the Universal and the Local: Ideas of Subsidiarity in Classical Roman Law?
The role of local culturally determined norms vis-à-vis the application of international law on a national level is an ongoing problem. Particularly in the context of human rights, for example the European Court of Human Rights has been reluctant to violate the principle of laïcité in France in its interpretation of religious freedom under article 9 of the European Convention. The same goes for other “hot topics” such as euthanasia, abortion et cetera. The lesson seems to be that a “universal” rule touching on what is locally regarded as an essential cultural property, its effect will be minimal regardless of which institution aims to enforce it, and by what means.
In the context of a new appreciation of ideas of “international law” in Antiquity, the question is whether this lesson can be applied to Roman law in its so-called Classical period (c. 100 BCE – 250 CE) to explain certain developments. As demonstrated by Mitteis and a century of epigraphical research, the Romans did not really touch on the local legal orders of the territories they conquered, especially not in the eastern provinces. Nevertheless, they did seem to provide an intricate system of legal redress under Roman law accessible to the inhabitants of these legal orders. Does this mean the Roman more generally separated the universal and the local according to an idea of subsidiarity akin to the ECHR nowadays?
Marian Helm – Enabling Consensus: The Legislation of the Early Roman Republic
The Roman Republic’s success has generally been ascribed to its ability to negotiate competing interests and to maintain a broad consensus in society. At the same time, intense internal conflicts at the beginning of the Republic suggest that this had not always been the case and that certain steps had to be taken to establish ground rules favoring consensual strategies. In this context, early Roman legislation played a crucial role in enshrining the rights and privileges of citizens both against powerful individuals and the state. The proposed paper will trace this legislative process, which started with the publication of the Twelve Tables, a legal code to “secure equal liberty” (aequandae libertatis – Livy 3.31.7) for every member of the Roman community. Additional legislative action regarding provocatio and debt issues will serve to demonstrate that early Roman laws steadily improved the position of the ordinary civis and culminated in the recognition of the concilium plebis in the context of the lex Hortensia. The legislative activity of the early Roman Republic was therefore intricately interwoven with the emergence of both Roman citizenship and the political system and culture of the res publica.
Matthias Sandberg – Riding the Bull: Europe between Orient and Occident, or: Christliches Abendland revisited
When it comes to narrating European unity, a phenomenon that can be observed again and again is the way in which antiquity is dealt with: Greco-Roman antiquity and especially the Roman Empire as ‘das nächste Fremde’ (U. Hölscher) are sometimes used as an intellectual quarry to provide a historical foundation for European unification. The myth of the abduction of Εὐρώπη is such a common and frequently cited narrative of European history. According to Greek mythology, Zeus, the father of the gods, fell in love with Europa, a daughter of the Phoenician king Agenor and Telephassa. In the form of a white bull, he abducted her from Sidon, crossed the Mediterranean and carried her to Crete, where the Olympian finally resumed his anthropomorphic form and made Europa his wife and sovereign over Crete. This is – grosso modo – the short form of the Europa myth and, to a certain extent, a nucleus of the most diverse ancient Greek or Roman narratives of the material. Common to these narratives is, among other things, the passage between Asia and Crete, and thus the interweaving of the eastern and central resp. western Mediterranean world.
Apart from questions about the role of sexualised violence in Greek myth, or matriarchal and patriarchal perspectives on the narrative, research has always seen that the abduction of Europa represented a joint venture between the Eastern and Western Mediterranean worlds. Thus, the narrative corresponded to a symbiotic imaginary world between the Phoenician Levant and the central or western Mediterranean, which was not atypical for the ancient Mediterranean. However, alongside this integrative perspective, disintegrative conceptions between the Lebenswelten of the East and the West can also be found in antiquity, which manifested themselves in a divergence between Orient and Occident.
A similar dichotomy can also be observed today, but enriched by the field of religious patterns of interpretation: Considering the current discourse on the role of a political-cultural Europe in the context of increased migration, it becomes apparent that, in addition to integrative, exclusionary narratives are also increasingly gaining ground. The dictum of the first President of the Federal Republic of Germany, Theodor Heuss, is well known. On 16 September 1950, on the occasion of the reconstruction of the Rosenau School in Heilbronn, he declared: "There are three hills from which the Occident took its starting point: Golgotha, the Acropolis in Athens, the Capitol in Rome. From all of them the Occident is spiritually wrought, and one may see all three, one must see them as a unity." The unity of Golgotha, the Acropolis and the Capitol referred to here - the interweaving of the Greco-Roman and Christian traditions - thus insinuated the idea of a Christian occidental heritage of the nascent European Community. In current discourse, however, the formula ‘christliches Abendland’ sometimes also marks the attempt at a cultural demarcation of a common European cultural and traditional space in the face of increased migration and alternating religious ideas. In any case, the Occident in the form of the ‘christliches Abendland’ is currently the subject of debate and sometimes of heated argument. This is reason enough to address the question of the possible genesis of the idea of a unified Christian Occident in late antiquity and to situate it in the processes of integration and disintegration between East and West in this transformative period of European history.
Jan Matthias Hoffrogge – How is the History of European Union presented in European Schoolbooks?
“United in diversity” – the history of the European Union is a history of inclusion and exclusion, and also of unity and pluralism. My investigation focusses on the question, how this history is presented in contemporary history schoolbooks from the Netherlands, UK, France and Germany. These countries – the UK in its own, very special way – participated to a very high degree in the founding and evolution of the European Union. If even their textbooks don’t share a common narrative of the European unification, any effort to create a common history schoolbook for Europe (van der Leeuw Roord) would be even more challenging.
In taking the concept of narrative literally, the analysis of the schoolbooks shall be based upon four research questions:
a) What kind of actors of the European unification are presented? (And is it possible to identify even some kind of Pierre Nora’s lieux de mémoires?)
b) Which motives of the unification are described by the schoolbooks, especially regarding the 1940s and 1950s (see e.g. Winfried Loth)?
c) Do the schoolbooks mention and explain a kind of transgression, a crossing of a certain boarder between pluralism and unification?
d) What kind of judgements do the different narrators of a schoolbook (Johannes Jansen) make in terms of this unification process?
Ville Erkkilä – On Continuity and Change in a Socialist Dictatorship. A Conceptual History of Law and Morals in the GDR
My talk is about the administration of Justice in an East German county of Erfurt from 1952 to 1981. In my paper I will scrutinize how the upper-level “renewals” and attempts to politicize and ideologize the practical, every-day work of the lower courts played out in the criminal cases concerning offences on common property. The paper is based on an extensive archival work of the court records of the district court of Erfurt and the 8 lower courts that it supervised.
Marianne Sandelin – The Paradox of Pluralism and Universalism: Joseph de Maistre’s Critique of the Enlightenment
In this presentation, I will talk about pluralism and universalism from the perspective of Joseph de Maistre (1753–1821) – a Savoyard lawyer, diplomat, and writer. Although Maistre has often been portrayed as the forefather of European conservatism, as an intransigent reactionary and as one of the most anti-modern critics of the Enlightenment and the French Revolution, his thought contained some rather unpredictable and more modern aspects as well. Maistre was one of the first thinkers to observe and distinguish those contradictions and tensions within the Enlightenment, of which it has been accused from a variety of directions from 20th century onwards.
I argue that Maistre foresaw strikingly far ahead the enormous tension within the Enlightenment, at the heart of which was the paradoxical nature of universalism and the question of pluralism. On one hand, it was liberal, pluralistic, tolerant and preaching for the equality, liberty and happiness of all people. On the other, the very universalism that held that all people are the same and thus equal due to the universal reason that separates humans from animals, would inevitably lead into a monistic worldview, intolerant of any kind of diversity and arrogantly telling people and other cultures from above, how to live their lives, organize their societies, constitutions, and institutions or what to believe in. Maistre sought to prove that when trying to establish a just, free, and equal society guided by universal reason, the Enlightenment had allowed itself any kinds of means for the purpose. He saw it as an arrogant and dangerous hypocrite that spoke in the name of general good, while trying to coerce its own monistic world view and outlooks on others. When seeking to oppose the Enlightenment and its universalism with all possible means, Maistre came to provide an effective intellectual defense of pluralism of cultures, constitutions, and legal systems.
Although the political and societal ideals and products of the Enlightenment thought, such as liberal democracy, human rights, rule of law principle etc. have become pivotal for the postwar European narrative and self-understanding, not all Europeans have rejoiced in their wide spreading and success. By looking at the writings of the early conservatives, such as Maistre, or their modern political followers, we observe that the grand European self-narrative emphasizing the liberal ideals of the Enlightenment neither did nor does represent a shared view of what Europe has been, what it is today or what it ought to be in the future.
Ville Louekari – Ernst Bloch and Counternarratives of Natural Law
Legal positivism and its focus on social facts and social recognition has been dominant in contemporary philosophy of law. There is, however, renewed interest in natural law theory. Natural law theories hold that the validity of a law is also a moral, not just a procedural question and that some natural part of law pre-exists an act of the state. Contemporary formulations of it challenge the accusation that natural law is static, transcendent and theistic. German philosopher Ernst Bloch’s book Natural Law and Human Dignity (1961) could contribute to the discussion. In it, Bloch hermeneutically reads classical natural law theorists to find their radical intentions that were subsequently suppressed. Bloch claims to uncover a natural standard for law that is not static and timeless, but not-yet-determined and open. His reading complicates the story of European legal past and recovers values and rights (like solidarity, struggle and dignity) that have not been taken in by the unitary narrative of natural law.
Kaius Tuori – Roman Law and the European Pasts
One of the most influential narratives of European unity has been that of its shared legal past. It has been interpreted as both an sign of inherent past unity and a foundation for a future unification. The purpose of this paper is to analyze the narratives of legal unity from the point of view of Roman law and the different legal traditions that see their heritage as part of the wider Roman law tradition. Its main argument is that while the stories of Roman law as the shared foundation of European legal traditions are quite uniform, what is remarkable is that their vision of Roman law is remarkably different. There are, in fact, numerous different interpretations of what constitute the Roman law tradition and what is one’s own relationship to the ancient Roman legal culture. Through an analysis of the various arguments, the article seeks to present an understanding of the history politics of law and its implications.
Benjamin Seebröker – Homicide Rates in Europe and the Myth of a Long-Term Decline
One of the very persistent narratives regarding Europe is the idea that there has been a long-term decline in interpersonal violence and especially homicides since the late Middle Ages. This narrative is mainly based on the development of homicide rates and it serves not only as evidence for ‘modernization’ and the superiority of modern over pre-modern times, but also for the pioneering role of Western civilization in trying to achieve peaceful societies. This thesis of a long-term decline in violence, however, is based on source material which contains serious flaws. First, there are considerable gaps in the surviving records on homicides for many parts of Europe. Second, and apart from the very basic insight that homicides have been criminalized all over Europe, the source material is heterogenous to an extent that it is nearly impossible to compare different regions or times within Europe, let alone putting different homicide rates together in one pot in order to create such a broad narrative. Furthermore, new evidence from Lancashire suggests that there has been even a century-long rise in lethal violence in the eighteenth and early nineteenth centuries – especially in those parts of Europe that were most effected by early processes of ‘modernization’, such as urbanization and industrialization. All in all, this paper argues, the thesis of a long-term decline in violence cannot be maintained and it should be put aside, opening the path to a more nuanced picture of the development of interpersonal violence in Europe.
Quentin Verreycken – The Legal Heritage of the Power to Pardon in Europe: Not One but Many
The right to pardon – the legal provision for mercy in criminal cases – is a common feature of most European legal systems. Usually placed in the hand of the Head of State, this prerogative is traditionally described by legal scholars as a heritage of the medieval and early modern periods, when kings and princes had the absolute power to punish and save the lives of criminals. Such power also founds its origins in Roman law but also in early Christian theology, as mercy was considered an attribute of the good ruler following the imitation of God’s justice. Although such narrative on the historical heritage of European institutions of pardon is not intrinsically incorrect, it often neglects the fact that the history of the power to pardon is not a straight line: for centuries, the power to pardon has been largely criticized or restricted, abolished and re-established, and has repeatedly faced competition from other legal mechanisms of mitigation and clemency, especially in the Middle Ages. As such, the purpose of this paper is to analyse the contemporary unitary discourse on the shared legal heritage of the power to pardon in Europe, how it justifies the existence of such a power today, but also how it masks the plurality of legal provisions for mercy in European history.
Karolina Stenlund – Legal Pluralism and the Lack of a Legislator’s Will: The Case of Genocide Denial
In 2008 the EU launched the Council Framework Decision on combating certain forms of racism and xenophobia by means of criminal law as an example. According to the Framework Decision the Member States must, inter alia, criminalize genocide denial. The majority of the Member States has as a result of the Framework Decision adopted different new statutes on hate speech etc. However, the concrete implementation of the Framework Decision differs greatly within the union. One could say that this is a great example of legal pluralism – however the commission is not satisfied with the results in many countries.
That the implementation in itself differs is not surprising. The wording of the framework is vague and it is not clear which historical occasions of atrocity is covered by the prohibition. It bears the form of an interstate agreement – the concrete implementation is assumed to be the sole responsibility of the Member States. It lacks the concreteness which usually characterize legislation.
The open wording of the Framework Decision has put some Member States in a precarious situation. Countries such as Finland and Sweden are convinced that they have implemented the framework correctly, but nevertheless the Commission has brought infringement proceedings against them – a move made possible by the Lisbon treaty, since issues on security and criminal law have become supranational matters.
This leaves us with the following questions: What is at stake when the will of a legislator – as we traditionally understand it – is lacking? How are the Member States supposed to handle this legal condition and at the same time meet the duty og sincere cooperation? One answer to this is legal pluralism. However, my claim, which I will put forward in my presentation, is that legal pluralism only with difficulty can be deployed where an outspoken will is absent.
Kostadin Karavasilev – Striving for Unity: The Challenges of Aligning Bulgarian Laws on Interdiction with Human Rights Requirements
With existing literature on the history and role of psychiatry in the Eastern bloc in mind, this working paper focuses on the current narratives related to psychiatry in post-socialist Bulgaria to address a lacuna in anthropological research in the region. It examines the clashes between local laws and international human rights conventions regarding people with mental illnesses that human rights advocates point out. Highlighting the legislative aspect, the paper traces the activity of advocates who employ human rights discourses to challenge and change current Bulgarian legislation connected to legal incapacitation of people with mental illnesses and intellectual disabilities. The work suggests that the European Convention on Human Rights and the United Nations’ Convention on the Rights of People with Disabilities – both of which Bulgaria has ratified – provide conditions for legal plurality. The paper aims to examine the issues that come about with the strive for legal unity in the Bulgarian case. To do this, the study draws on existing research on the history of psychiatry in the Eastern bloc and Bulgaria more specifically, legal documents, and interviews with advocates in the field of human rights of people with mental illnesses.
Lena Klos – Narratives of Dependence: Kingdom of Westphalia and the French Empire
The relationship between the Kingdom of Westphalia and the French Empire is usually characterized by the concepts of satellite kingdom and model state. These two concepts are in a close interaction with each other, resulting in some kind of mixture. Even though it is possible to extract some basic lines of each concept. With regard to the Kingdom of Westphalia the concept of satellite kingdom entails a lack of sovereignty, foremost in foreign affairs, as well as some traditional relationship with the French Empire. The concept of the model state encompasses a modernization program within the Kingdom of Westphalia with the French Empire as role model. Thereby this internal modernization program should act itself as a role model for the other German lands, especially the allied states in the Rheinbund. The latter concept has hence a significantly better implication than the first. But this appearance is deceptive as the modernization program within the Kingdom of Westphalia is usually deemed only partly successful. The successful part one should find in the legal and administrative field, whereas the socio-economic sphere is considered as the failed part. Further one can question if a French Empire styled modernization program in the legal and administrative field of the Kingdom of Westphalia is really a success, or rather unsuccessful because leading in greater dependence. However, this issue incorporates the preliminary question if there is actually general legal harmonization between the Kingdom of Westphalia and the French Empire. Narrating the relationship between these two entities is therefore not easy.
Reetta Toivanen – History of a Unified Europe: Shared History Means Sustainable (and Safe) Future?
Research has shown that the idea of a unified European history leaves many inequalities and cruelties outside the unification narrative. Like any history, the unification idea needed some violent forgetting and even suppressing of certain memories, life stories, and experiences (Mann 2004). The forgotten memories are partly merely suffocated and suffocated memories tend to resurface to find their expression in new forms. It is a fact that the memories for the process of building Europe are as important as everything that needed, and needs, to be forgotten. This presentation offers the first glimpse into research on Sudentengermans who were displaced from the Czech Republic to Germany after the Second World War. In Germany, they were first treated as refugees but, latest at the cultural revolution of 1968 silenced in their demands for or even remembering lost homes. I am studying using ethnographic multisited research methods the second and third generations in order to understand what silencing has meant in family history and their understanding of Europe as a continent of refugeeness. I shall ponder on the question if the silence on refugee past can help to explain why minority rights still today are a serious stumbling stone for European politics.
Clara Harder – From Coercion to Consent? Medieval Perspectives on the European Marriage Pattern
The European marriage pattern (EMP) has been a matter of discussion among scholars of social sciences, as well as economic, legal and cultural history since it was first brought forward by John Hajnal in the 1960s. Although this discussion led to a correction or specification of some of Hajnal’s findings, the main narrative is still widely accepted today. The EMP is seen as a distinctive character of early modern European identity that shaped and influenced its societies and distinguished them from communities in other areas of the world. The EMP’s medieval origins have only been assumed rather than studied because substantial demographic data cannot be provided for this period. But as the work of Michael Mitterauer has shown, a deeper understanding of the development of medieval families is not only fruitful but necessary to develop conclusive ideas about the EMP and to understand its meaning.
The paper aims to respond to recent work of scholars who offered possible explanations regarding the development of the EMP. Notably, Tine de Moor and Jan Luiten van Zanden published a series of articles and argued that the development of consensual marriage, the role of fathers and the transfer of property between families changed at the end of the Middle Ages, thus giving rise to the emergence of the EMP. From a medievalist’s perspective, though, their understanding of medieval marriage has been rather superficial. The paper will confront their theses with current research in the field of medieval marriage and family, especially before the Gregorian reforms – mainly to offer some insights into why the narrative of the emergence of the EMP might be seen as problematic if it does not address the rather complex legal and social development of medieval marriage. It wants to encourage a closer dialogue between legal and social historians of different periods to reflect on the EMP and the development of marriage and family in Europe.
Tuukka Brunila – Narrating State Sovereignty
One central theoretical issue regarding the modern state in Europe and its development is whether the state has the right to wield sovereign power. Some, like Thomas Hobbes (1588-1679) and Jean-Jacques Rousseau (1712-1778) argued that sovereign power is necessary for the state to establish order. Others, like the politician and historian, François Guizot (1787-1874), claimed that “sovereignty as a right can exist nowhere upon earth, and ought to be attributed to no power.”
In this paper, I am interested in how the concept of sovereignty functions to authorise the state with ultimate authority. Such authorisation means conferring a specific political institution (e.g. the parliament or the president) with the use of sovereign power. Authorising an institution with sovereignty is connected with narratives regarding the nature and history of political power. For example, Hobbes established a narrative about how political communities need centralised and absolute power to exist. Similarly, the conservative and Nazi legal scholar, Carl Schmitt (1888-1985), sought to establish a narrative about how all other branches of government (legislative and juridical) have their origins in the centralised executive power of the sovereign. Such narratives are central to authorising the state with sovereign power over subjects.
My paper will analyse two such narratives. The narrative that (1) executive power is more original than legislative power. According to this idea, law was originally an order given by the sovereign. Another narrative (2) concerns the necessity of sovereign power during exceptional situations. According to this narrative, the state was originally to established to act extra-legally to counter an exceptional situation (such as a war, a catastrophe, a pandemic etc.).
What I hope to achieve by a critical examination of these two narratives, is to counter their recent revival. During the global COVID-19 pandemic, many political scientists have utilised these narratives and claimed that sovereignty has once again become relevant. Even among those who are critical of sovereign power, tend to utilise these narratives in order to analyse the actions of the state during the pandemic. However, my paper suggests that analyses of government action during exceptional situations should steer clear from utilising these narratives that authorise the state with sovereign power. Rather, we should counter them with narratives of the plurality of state power’s origins.
