Review of Developments in German, European and International Jurisprudence. Editors in-chief: Russell Miller; Peer Zumbansen

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1 GERMAN LAW JOURNAL Review of Developments in German, European and International Jurisprudence Editors in-chief: Russell Miller; Peer Zumbansen Editors: Gregor Bachmann; Gralf-Peter Calliess; Matthias Casper; Morag Goodwin; Dominik Hanf; Florian Hoffmann; Alexandra Kemmerer; Malcolm Maclaren; Stefan Magen; Ralf Michaels; Petra Minnerop; Hanri Mostert; Betsy Röben; Volker Röben; Christoph Safferling; Marlene Schmidt; Frank Schorkopf; Robert Schütze; Craig Smith; Cornelia Vismann. Copyright by German Law Journal GbR. All rights reserved. Vol. 6 No. 2 Pages February 2005 TABLE OF CONTENTS ARTICLES: SPECIAL ISSUE CONFRONTING MEMORIES: EUROPEAN BITTER EXPERIENCES AND THE CONSTITUTIONALIZATION PROCESS GUEST EDITORS: CHRISTIAN JOERGES AND PAUL BLOKKER, WITH CHRIS ENGERT TABLE OF CONTENTS PAGE I

2 TABLE OF CONTENTS INTRODUCTION Christian Joerges Introduction to the Special Issue: Confronting Memories: European Bitter Experiences and the Constitutionalization Process: Constructing Europe in the Shadow of its Pasts REFLECTING HISTORY Bo Stråth Methodological and Substantive Remarks on Myth, Memory and History in the Construction of a European Community Fabrice Larat Present-ing the Past: Political Narratives on European History and the Justification of EU Integration CONSTITUTIONALIZATION AFTER BITTER EXPERIENCES David Fraser National Constitutions, Liberal State, Fascist State and the Holocaust in Belgium and Bulgaria Matthias Mahlmann Constitutional Identity and the Politics of Homogeneity Mattias Kumm Thick Constitutional Patriotism and Political Liberalism: On the Role and Structure of European Legal History TABLE OF CONTENTS PAGE II

3 TABLE OF CONTENTS Alexander Somek Constitutional Erinnerungsarbeit: Ambivalence and Translation ANTI-EUROPEAN EUROPEANISM: THE RISE OF POPULISM Paul Blokker Populist Nationalism, Anti-Europeanism, Post- Nationalism, and the East-West Distinction Patricia Chiantera-Stutte Populist Use of Memory and Constitutionalism: Two Comments I Andrea Pető Populist Use of Memory and Constitutionalism: Two Comments II MEMORY, POLITICS AND LAW Thomas Mertens The Eichmann Trial: Hannah Arendt s View on the Jerusalem Court s Competence András Sajó Legal Consequences of Past Collective Wrongdoing after Communism Stefan Seidendorf Defining Europe Against its Past? - Memory Politics and the Sanctions Against Austria in France and Germany TABLE OF CONTENTS PAGE III

4 TABLE OF CONTENTS Anton Legerer Preparing the Ground for Constitutionalisation through Reconciliation Work Thorsten Keiser Europeanization as a Challenge to Legal History EPILOGUE Vivian Grosswald Curran Law's Past and Europe's Future TABLE OF CONTENTS PAGE IV

5 TABLE OF CONTENTS DEVELOPMENTS Shedrack C. Agbakwa Genocidal Politics and Racialization of Intervention: From Rwanda to Darfur and Beyond Florian Stork Comments on the Draft of the New German Private Law Anti-Discrimination Act : Implementing Directives 2000/43/EC and 2004/113/EC in German Private Law Maximilian Rittmeister The Management Board s permission to disclose Due Diligence Information Before a Corporate Acquisition in consideration of the Impact of the Act to Improve the Protection of Investors (Gesetz zur Verbesserung des Anlegerschutzes) TABLE OF CONTENTS PAGE V

6 ARTICLES : SPECIAL ISSUE CONFRONTING MEMORIES - INTRODUCTION Introduction to the Special Issue: Confronting Memories: European Bitter Experiences and the Constitutionalization Process: Constructing Europe in the Shadow of its Pasts By Christian Joerges * The contributions to this Special Issue of the German Law Journal originate from a meeting in July 2004 at the European University Institute, which was convened following a disappointing experience. The participants lawyers, historians, political scientists had co-operated intensively in the preparation of a project on The Shadows of the Past(s) over the Construction of Europe which they had submitted to the Volkswagen Stiftung. Although the foundation acknowledged the core aspirations and importance of its individual components, our application was, however, criticized for its overly broad scope and alleged lack of coherence. Should we, however, retain our loose multi-disciplinary, multi-issue and multi-national exploratory approach? Or, should we instead seek to tighten up the whole enterprise and explain what form of common result we would like to deliver? What was planned as a debate on these alternatives developed into enormously interesting, sometimes breath-taking discussions. At the end, we felt that we were able to articulate what we had more intuitively sought for, namely, a formula that would link our concern about European past(s) with our concern for Europe s present and future. A. Darker Legacies The past had been the object of the proceeding project. The constitutionalizing moment to which the European integration project responded was the sum of the atrocities of the twentieth century in general, and the persecution and * Christian Joerges has been a Full-time Professor at the European University Institute since 1998, and was formerly Co-director of the Centre for European Law and Politics. His present teaching and research projects deal with risk regulation at European and international level, the Europeanisation of Private Law, compliance problems of transnational governance arrangement and anti-liberal traditions of legal thought in Europe.

7 246 G ERMAN L AW J OURNAL [Vol. 06 No. 02 extermination of European Jews in particular. 1 The post-war effort to create a European community derives its strength and legitimacy from the dignity of this response. However, this legacy is not merely precious, it is also precarious. We must be aware of as well as ashamed of and on guards against the darker legacies of law in Europe : 2 the involvement of law and lawyers in the Untaten and the atrocities committed and both the weaknesses in good constitutions and the fragility of seemingly stable political cultures. It is one thing to acknowledge the importance of such a working through the past 3 but quite another to appreciate the messages they entail. Germans are captives of their history. The war generation may have somehow and more or less effectively managed to verdrängen their experiences and their guilt. All post-war generations continue to experience their identity as Germans through shaming memories. So strong is the weight of this past that acts of working through the past necessarily become somewhat ambivalent wherever they do not occur in exclusively and specifically German frames. This is what made the Darker Legacies of Law in Europe both an ambivalent and a risky project. The project was not just about German legacies and the continuities and discontinuities in German traditions. Instead, it implicitly and unavoidably raised unsettling questions: 4 how proud can the non-germans be that it did not happen to them; and how sure can we be that it will not happen again? 1 In the FRANKFURTER ALLGEMEINE ZEITUNG: Das heutige Europa ist durch die Erfahrungen der totalitären Regime des zwanzigsten Jahrhunderts und durch den Holocaust die Verfolgung und Vernichtung der europäischen Juden, in die das NS-Regime auch die Gesellschaften der eroberten Länder verstrickt hat gezeichnet Eine bellizistische Vergangenheit hat einst alle europäischen Nationen in blutige Auseinandersetzungen verstrickt. Aus den Erfahrungen der militärischen und geistigen Mobilisierung gegeneinander haben sie nach dem Zweiten Weltkrieg die Konsequenz gezogen, neue supranationale Formen der Kooperation zu entwickeln ( Today s Europe is marked by the experiences of the totalitarian regimes of the twentieth century and by the Holocaust the persecution and extermination of the European Jews, in which the Nazi regime also involved the societies of the countries they had conquered...a belligerent past formerly involved all the European nations in bloody conflicts. It was from the experience of the military and intellectual mobilization against each other that, after the Second World War, they drew the conclusion that they had to develop new supranational forms of co-operation. Translation by Iain Fraser). 2 See DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS (CHRISTIAN JOERGES / NAVRAJ S. GHALEIGH, EDS., 2003) and The Darker Side of a Pluralist Heritage: Anti-liberal Traditions in European Social Theory and Legal Thought, special issue of 14 LAW AND CRITIQUE 14: 3 (CHRISTIAN JOERGES, GUEST ED., 2003). 3 On this notion, see note 12 below. 4 Cf., BERNHARD SCHLINK, VERGANGENHEITSSCHULD UND GEGENWÄRTIGES RECHT (2002).

8 2005] Introduction - Confronting Memories 247 B. Constitutionalisation as Aufarbeitung der Vergangenheit (Working Through the Past) It seems worth mentioning that the responses to the Darker Legacies project did not refute the Europeanization of our concerns with law. Editors and contributors felt relieved. But the responses were unsettling in another sense. The sheer number of reviews, their intensity and their thoughtfulness, came as a real surprise. Did our book deserve so much attention? Was it so much better than we had thought? Had we been overly scrupulous in our own perceptions? In our discussions, we began to venture an explanation which we are now exploring in more depth. Could it be that we had hit a nerve in the constitutionalization debate? The Darker Legacies project had pointed to the ambivalent heritage of law in Europe. But its messages were fundamentally constructive, if not affirmative. The memory of the Holocaust is the strongest conceivable raison d être for the integration project. The memory of the failures and weaknesses of the law provides an indispensable way-marker in the debate on good European constitutionalism. But these were not the messages that reviewers found worthy of intense discussion. The nerve that we have hit seems to be the need to reconsider and renew what Fabrice Larat, in his contribution to this issue of the German Law Journal, calls the acquis communautaire historique. 5 Nobody is seriously questioning the importance of this basis for the European project even if the language used is less dramatic and less normative than, for example, that of the Habermas-Derrida manifesto of the 31st of May And yet, as Tancredi put it so well in GIUSEPPE TOMASI DI LAMPEDUSA S IL GATTOPARDO: Se vogliamo che tutto rimanga come è, bisogna che tutto cambi. We can preserve the great European accomplishments only if we reflect upon their context and upon the responses that this context requires. The challenge is three-dimensional, namely, technocratic, normative and historical. Enlargement is the most visible new challenge to the technocratic and economic potentia of the Union. It is also a challenge to the historical bases for and the aspirations of the integration project. The new Member States did not take part in the post-war settlement and their motivations for joining the Union need to be brought into harmony with the post-war settlement of the founding members of the European Economic Community. The second challenge may be a bit more subtle. The move towards a deepened constitutionalization has provoked an enormous debate with which hardly anyone 5 See Fabrice Larat, Present-ing the Past: Political Narratives on European History and the Justification of EU Integration, in this issue. 6 In the FRANKFURTER ALLGEMEINE ZEITUNG.

9 248 G ERMAN L AW J OURNAL [Vol. 06 No. 02 can keep pace. Constitutionalization is primarily perceived as an effort to cope with the so-called democracy deficit in the European project. Whether, and if so, to what degree, the perceived democracy deficit is connected with a social deficit and how the dimension of this deficit may be tackled is more contested today than ever before. The historical dimension of these challenges and the European project, in which we are interested, has mainly been tackled with benign neglect in the debates on the European Constitution. But at the very end of the process, less than a month before our meeting in July 2004, and following a Polish initiative, the Intergovernmental Conference changed the Preamble to the Draft Constitutional Treaty of 18 July 2003 quite considerably. 7 The first two somewhat ostentatious passages 8 were dropped. The reference to re-united Europe was replaced by a Europe, re-united after bitter experiences. One could have imagined a more substantiated reference. The bitter experiences are copied from the Preamble of the Polish constitution. 9 It would have been difficult, but nonetheless conceivable, to find a formula which included the European need for reconciliation, or to cite a more drastic term, Entgiftungsarbeit 10 (decontamination work). The title that we agreed upon at the end of our July meeting for our own analytic and normative responses to these challenges was: Die Konstitutionalisierung Europas als Aufarbeitung seiner Vergangenheit, without, however, discovering a translation which seemed truly adequate for this heading. 11 Was bedeutet: Aufarbeitung der Vergangenheit is the title of a famous essay by Theodor W. Adorno, written in 1959, in which he took issue with what the Germans have coined Vergangenheitsbewältigung : How can Germans ever come to terms with Auschwitz Vergangenheitsbewältigung is definitely and rightfully resistant against/to translation exercises. But this is then also true for Adorno s counter-concept OJ C 310/2004, 1 of 16 December Namely, the reference to Thucydides and the praise of Europe as the herald of civilisation. 9 Which reads: Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland 10 Cf., Theodor W. Adorno, Zum Gedächtnis Eichendorffs, in: NOTEN ZUR LITERATUR Vol. I 105 (1958). 11 Published, for example, in THEODOR W. ADORNO, EINGRIFFE 143 (1963), in which Adorno took issue with what the Germans have coined Vergangenheitsbewältigung : Germany cannot come to terms with Auschwitz, and the term is rightfully resistant against translation exercises. 12 The Meaning of Working Through the Past in THEODOR W. ADORNO, CRITICAL MODELS 89 (TRANS. HENRY W. PICKFORD, 1998)) may be the best conceivable translation. The dilemma is that Aufarbeiting der Vergangenheit owes its meaning to the critique of the notion of Vergangenheitsbewältigung.

10 2005] Introduction - Confronting Memories 249 C. Zukunftsbewältigung (Mastering the Future)? The new Europe is thus being built upon historical sands at least as shifting in nature as those upon which the post-war edifice was mounted From Spain to Lithuania, the transition from the past to the present is being recalibrated in the name of a European idea which is itself an ahistorical and illusionary product with different meanings in different places. 13 This may all be true. But do these historical conditions really affect the performance of the Union? Are these effects totally contingent or can we speculate about them? It is, indeed, a core premise of our project that we have to pay attention to the legacies of the past in Europe s present, and that we must always be aware of the burdens that this implies. How can we be so sure? What we can see are the ambivalences within the current situation, disquieting events which accompany the deepened constitutionalization of the European Union and its enlargement. It seems so evident that the new tasks that Europe seeks to shoulder will require a strengthening of its governance structures and its bureaucracy; but national governments are not willing to cede new significant powers to the Commission, and we cannot find a deepened acceptance for bureaucracy and technocracy among the European citizenry. There is wide support for a strengthening of the European Parliament; but its acceptance as the representative body of European citizens remains precarious, while citizen participation within European elections continues to disappoint the protagonists of democratization. Ever more policy fields and governmental responsibilities are being Europeanized ; can Europeans, however, welcome these developments as progress where they tend to erode national welfare-state traditions and put an open method of co-ordination in their place without knowing where thay may lead? Convinced that, while remaining proud of their own national identities and history, the people of Europe are determined to transcend ancient divisions and, united even more closely, to forge a common destiny. This statement from the Preamble to the Draft Constitutional Treaty 14 stands in sad contrast with antisemitism, xenophobia and a new anti-americanism all over Europe, even in countries which are proud of their long traditions of democracy and tolerance. As Bo Stråth notes, today, popular mobilisation occurs in referendums on politics against a reinforced European institution-building, and not 13 Tony Judt, The past is another country: myth and memory in post-war Europe, in: MEMORY AND POWER IN POST-WAR EUROPE. STUDIES IN THE PRESENCE OF THE PAST 157,182-3 (JAN-WERNER MÜLLER, ED., 2002). 14 Supra note 4.

11 250 G ERMAN L AW J OURNAL [Vol. 06 No. 02 for a European democracy. Is it really too speculative to assume an interdependence between these developments and the failure of Europe to cope with its social deficit? In Alexander Somek s pessimistic account, ordinary Europeans feel belittled by the Union because of the neglect of their material concerns. A social deficit is likely to provoke a crisis in the social acceptance of Europe and is challenging the potentia of Europe s constitutionalism. To generalize from these scattered observations: even though the original ideals of the post-war period are by no means outdated, they seem to have lost their mobilizing strength. This is the concern that motivates our efforts to understand the presence of European pasts. The order of the essays should be self-explanatory and their significance for the current debates on the constitutionalisation of Europe seems equally obvious. Bo Stråth spells out the methodological premises underlying the whole project. We cannot ask the historians, as Ranke did, to tell us wie es wirklich gewesen ist. Instead, history is a reflection on the past from the present, and we must be aware that the common identities that we forge and the narratives that we live with emerge from processes of remembering and forgetting. In a very similar vein, Fabrice Larat reconstructs the political narratives on the history of the European integration project and its justification, thereby revealing an acquis communutaire historique and the need to renew its legacy and redefine its finalité. Integration through law has been the credo of institutionalized Europe ever since the formation of the European Economic Community, and the present endeavour to establish a written Constitution is testimony to its strength. It is not by accident that 9 out of the 16 contributors to this issue are lawyers who focus on the role of law in the integration process in general, and in European constitutionalism in particular. Is law a sword or a shield? Vivian Curran, David Fraser, Mattias Kumm, Matthias Mahlmann, András Sajó and Alexander Somek all confront this question. The law has legalized suffering and protected perpetrators. It is important that the Preamble underlines European commitments to human rights, democracy, and the rule of law. It is equally important to remember the history of suppression and the betrayal of these ideals. And it is simply dishonest to conceal the fact that the institutional construction of Europe was deliberately non-democratic. True and wonderful: It was from experience of the military and intellectual mobilization against each other that, after the Second World War, they [the European nations] drew the conclusion that they had to develop new supranational forms of cooperation. 15 It is unsurprising, however, that the architects of the (then) new 15 Habermas / Derrida (note 3).

12 2005] Introduction - Confronting Memories 251 Europe had limited trust in the sustainability of political democracies. 16 And it is much too simplistic to criticise technocratic governance structures because of their incompatibility with the normative underpinnings of constitutional democracies. And, last but not least, the experiences of Europeans with constitutional law are bitter, in that even good constitutions could not provide the protection they were designed to ensure. The fragility of constitutionalized governance is a generally traumatic experience, and not simply an attribute of the Weimar Republic. Vivian Grosswald Curran summarizes many of her earlier pertinent studies when she observes that [t]he post-war focus on judicial methodology has caused an unfortunately irrational faith in its power. This focus draws attention away from identifying domains of analysis and action that would be more influential in affecting the institutional and individual values of society, those values that are strongly correlated with whether the courts are a force for or against justice and a humane rule of law. Constitutionalism has to reflect this experience. One issue that deserves and receives special attention is the quest for a European identity and its juridification. Just because Europe is seeking its unity while preserving its diversity, or, as the Preamble puts it so solemnly, just because Europeans are prepared to forge a common destiny although they still remain proud of their own national identities and history, the law has to provide an answer to this seemingly paradoxical task. But the possible contours of an answer are readily apparent, or, at least, have been so ever since Dolf Sternberger s famous response to Germany s post-war identity crisis. 17 We owe the transplantation of this notion into the European constitutional discourse to Jürgen Habermas. 18 Did Habermas constitutional patriotism abstract too rigidly from the social, political and cultural embeddedness of human beings? By no means, argues Matthias Mahlmann in his contribution. Probably, but Habermas intuitions are, nevertheless, pointing in the right direction and can be enriched, argues Mattias Kumm. Alexander Somek s and Bo Stråth s scepticism about the constitutionalization project is of a different kind. European citizens, they argue, have legitimate reasons 16 See SONJA PUNTSCHER-RIEKMANN, DIE KOMMISSARISCHE NEUORDNUNG EUROPAS. DAS DISPOSITIV DER INTEGRATION (1998). 17 Dolf Sternberger, Verfassungspatriusmus. Rede bei der 25-Jahr-Feier der Akademie für Politische Bildung in Tutzing am , in: POLITISCHE REDEN (MARIE-LUISE RECKER, ED., 1999). In the same vein, NORBERT ELIAS, STUDIEN ÜBER DIE DEUTSCHEN 159 et seq. (4th ED., 1990); M. Rainer Lepsius, Nation und Nationalismus in Deutschland, in: INTERESSEN, IDEEN UND INSTITUTIONEN 232 (1988). 18 STAATSBÜRGERSCHAFT UND NATIONALE IDENTITÄT (1991). The short monograph was reprinted in: FAKTIZITÄT UND GELTUNG 632 (1992).

13 252 G ERMAN L AW J OURNAL [Vol. 06 No. 02 to expect some respect for the social dimension of their citizenship. The European social model is certainly a widely discussed issue. But the contours of social Europe are not very visible. Instead, Europe s political élites have, ever since the 1973 Copenhagen summit, responded to the deepening of the integration project by a deliberate turn to identity politics. Can one build up an identity without excluding minorities living in Europe or would-be Europeans on cultural or social grounds? Should tolerance of diversity, rather than identity, be the leitmotiv of a polity seeking unity in diversity? Is identity politics being used as an ersatz for a stronger social policy? Whatever the answer, it cannot be denied that the failure of Europe to cope with its social deficit is being extensively exploited by populist leaders. And Tony Judt points to the example of the last years of the Habsburg monarchy, where economic modernization, a common market and the free movement of peoples was accompanied by a steady increase in mutual suspicion and regional and ethnic particularism. 19 European populism has no constitutional status. But it is a phenomenon that threatens the aspiration for constitutional patriotism and for European constitutionalism in general. The contributions by Paul Blokker, Patricia Chiantera-Stutte and Andrea Pető all deal with Eastern Europea. But they do not subscribe to the comfortable thesis that populism can be characterized as a phenomenon which is specific to the accession countries and attributed either to their political cultures or their difficulties with the transition to Western economic and political models. Transitions are supposed to move us into a better world. The move will require and, sooner or later, be accompanied by some sort of Vergangenheitsbewältigung. This is an enormous challenge which, once again, cannot be undertaken in a uniform form across Europe, but which instead needs to discriminate between bitter experiences. Germany is something like the natural leader in this respect. Thomas Mertens reconstruction of The Eichmann Trial as analysed by Hannah Arendt in her classical study, David Fraser s comparative study on the involvement of Belgium and Bulgaria in the Holocaust, and András Sajó s quest for a shame dictated legal policy and culture cover a broad time-span and a great diversity of pasts. Anton Legerer pays tribute to an unspectacular and encouraging model of non-legal Vergangenheitsbewältigung whereas Stefan Seidendorf addresses a more spectacular example in which the instrumentalisation of memories is clearly visible, scarcely avoidable and difficult to civilize. 19 Tony Judt (note 13), 183.

14 2005] Introduction - Confronting Memories 253 D. Instead of a Conclusion: A Brief Outlook Within European integration studies, as Claus Offe observes, 20 the philosophers and the lawyers have specialised in bringing in the good news, mainly framed as normative answers to the problems that they identify, whereas sociologists, political scientists and economists more often tend to present sceptical findings and analyses that question the workability of the suggested solutions. This is anything but surprising. Lawyers are expected to explain what is fair and just. They will, therefore, seek normative perspectives with which their addressees can identify. Social scientists who believe in the separability of facts and norms have fewer problems with addressing phenomena that policy-makers are uncomfortable with. This schism is certainly present in our interdisciplinary project. The lawyers among us are in closer contact than the historians and the political scientists with an epistemic community that has embarked upon the venture of constitutionalising Europe. Irritating messages are not so welcome and are perceived as destructive interventions. For better or for worse, the presence of the past is a fact in the construction of Europe. It simply does not make sense to choose between Doctor Pangloss on the one hand, and Cassandra s or other apocalyptic visions on the other. What seems indispensable and even urgent in view of the many problems that Europe is exposed to is that our memories, their divergencies and collisions, become an integral part of the European project. We cannot unify our pasts. Nor should we try to harmonize them or expect our neighbours to honour our own Erinnerungsarbeit. We will mutually have to recognize all our traumas and to learn tolerance or even reconciliation. To cite the Habermas/Derrida manifesto 21 for a third time: The political and ethical will asserted in the hermeneutics of processes of self-understanding is not arbitrary. The distinction between the heritage we are entering into and the one we want to reject calls for just as much circumspection as the decision on the interpretation in which we are taking it on. Historical experience has to be adopted in deliberate fashion or it cannot attain its identity-creating force. Among all the disciplines involved, legal history may be the most promising candidate for a bridging the schism in integration studies. Mattias Kumm s reconstructive approach to the history of constitutionalism and Thorsten Keiser s 20 Claus Offe, Sozialpolitik und internationale Politik. Über zwei Hürden auf dem Wege zum Zusammenhalt Europas, ms. Madrid-Berlin 2002 (on file with author). 21 Note 3.

15 254 G ERMAN L AW J OURNAL [Vol. 06 No. 02 critique of the treatment of Europeanization by legal historians nurture such hopes. 22 The German Law Journal has become an important platform for so many debates. We hope to have opened another one and are extremely grateful to the editors of the GLJ for accepting our contributions. They are not the conclusion of a common long term project, but are merely another small step in its development. We would be grateful to receive comments from the GLJ readership. Details about the contributors and their addresses are included in footnote * of each contribution.

16 ARTICLES : SPECIAL ISSUE CONFRONTING MEMORIES REFLECTING HISTORY Methodological and Substantive Remarks on Myth, Memory and History in the Construction of a European Community By Bo Stråth * A. Methodological Considerations Over the last decades, a shift has occurred in the methodology of academic historiography, from an earlier focus on the quality of the sources towards the narrative framework of the history. The point in the new approach is that the sources are interpreted and put together into a narration. In the earlier approach, there was a kind of myopic source criticism, which stopped at the sources and never really questioned the way in which they were put together into a narration. The way in which this composition is made is as biased as the sources on which the narration is based. For this reason, critical scrutiny must move one step forward, instead of halting at the sources. The path-breaking Metahistory by Hayden White in 1973 demonstrated, in a provocative way, the bias in narrative structures. 1 He moved the focus from the sources as such, towards the manner in which they were employed. When the book was published, it was generally rejected and marginalized by the historians craft. Today, it is no exaggeration to say that, even if it is not generally recognized, at least it is widely accepted. Metahistory alluded, of course, to metaphysics. White s conclusion was that history is basically ideology. History is not the past per se, nor, as Ranke argued, is it wie es eigentlich gewesen, but a reflection on the past from the present. 2 This methodological shift does not deny * Bo Stråth has been Professor of Contemporary History at the European University Institute in Florence since January From 1990 to 1996, he was Professor of History at the University of Gothenburg. Professor Stråth s research focuses on modernization and democratization processes in Western Europe in a comparative context. He has published widely in this field. 1 HAYDEN WHITE, METAHISTORY. THE HISTORICAL IMAGINATION IN THE NINETEENTH CENTURY (1973). 2 Reinhart Koselleck, On the historical-political semantics of asymmetric counter-concepts, in: FUTURES PAST. ON THE SEMANTICS OF HISTORICAL TIME (1985) (2004) (German original, VERGANGENE ZUKUNFT. ZUR SEMANTIK GESCHICHTLICHER ZEITEN, 1979).

17 256 G ERMAN L AW J OURNAL [Vol. 06 No. 02 the continued importance of a critical approach to the sources and does not reject the existence of events and facts. Methodological rules of how to evaluate sources critically are still valid. The events and the facts based on the events can be documented. No serious historian founding his or her work on sources would deny the fact that, for instance, the Holocaust really did occur. On the other hand, the fact that history is interpretation and translation means that there is no zero point of absolute security. However, this does not mean a collapse into the other extreme of total relativity or that anything goes. The growing plurality in the views on the past does not mean that there is no possibility of discerning what is more or less probable. The emancipation from the strait-jacket of the quest for the final and absolute truth, through a growing role for the critique of how narrations are constructed, opens up for a pluralist and vital debate. The deconstruction of old myths through critique opens up new perspectives with the construction of new myths, which, in turn, in an ongoing process, in which the past is seen from an ever changing present, sooner or later become the targets of a new deconstruction. No critical deconstruction of myths is value-free but contains the germs of a new narrative. This is a view of historical construction, which is more realistic and less naïve than the old one, which does not believe that history is precisely a matter of construction, and therefore halts at the source criticism. History is not the past, but about the past. History is a translation of the past into our time, an act of interpretation. This translation necessitates a critical approach not only to the sources but also to their narrative embedding, and to the act of interpretation. This view on myth and history also comes close to Hans Blumenberg who has demonstrated that no society can describe and conceptualize itself without myths and metaphors. Every theoretical reflection on society brings its proper iconography. In particular have organic metaphors and biological language been used. 3 The slowly emerging shift of the methodological focus that followed Hayden White s book meant a growing attention to history as construction. History became a key dimension of the cultural construction of community. This approach emphasizes that social cohesion and community are invented rather than discovered, that they are constructed rather than existing out there, derivable, for instance, from real economic structures. This does not mean, of course, that events as such are also invented. Instead, the facts, and, based on them, the narrations, are constructed by reflection upon the documents that attest to the occurrence of the events. The construction of commu- 3 HANS BLUMENBERG, ARBEIT AM MYTHOS (1979).

18 2005] Myth, Memory and History in the Construction of a EC 257 nity means that images and myths emerge from the transformation of existing inventories of historical heritage and culture. Successful construction appeals to certain cultural chords and conceptual tropes, to narrative plots and discursive frames. Such tropes and plots are, of course, not primordial; they, too, are the products of human creation. In these processes of community construction, the idea of a collective memory and a specific history is a tool that bridges the gap between high political and intellectual levels and the levels of everyday life. What constitutes collective memory and what is consigned to collective oblivion, in other words, taboos and what we do not talk about, is a highly disputed question, which reflects power relations in the definition of social problems. 4 The break-through of the new epistemological view should be seen not least in the framework of the end of the Cold War, which provoked an intense search for new meaning and interpretation. The collapse of the Soviet Empire also heavily eroded epistemological perspectives based on materialism and socio-economic structures as prime movers of social change. The break-through has meant new challenges for professional historiography and has given a concept such as history new perspectives, not least with the growing insight that there is no reality which can be conceptualized and analysed beyond the limits that language sets upon its meaning. When coping with reality, the constraints of language mean, among other things, that the discourse creates its own interests. One might choose to see this linguisticism as a burden, but it also justifies a certain optimism as a result of the interpretative freedom that it gives. Language is multi-vocal and constitutes a huge semantic field with vast ranges, and for this reason it offers greater freedom in the selection of perspective. In this view, myth, in this sense of constructed memory and oblivion, is emancipated from its pejorative connotation and assumes the role of the provider of meaning, thus becoming a constituent element of politics and social cohesion. In this context, emancipation takes on a different meaning from that of the selfunderstanding of positivist historiography, in which activity in the name of science and source criticism is seen as an emancipation or liberation of the sources from the myths which enshroud them. This positivist approach was embodied by Leopold von Ranke and his followers, who believed that they stood outside and above the processes that they studied. They believed that they were the judges or referees 4 Pierre Nora holds that each nation has its canonical memories and myths that bind the community together and create social identities. Myth and memory give the community a narrative through which it can continue to forge its identity. The act of remembering is related to the repository of images and ideals that constitute the social ties of a community. PIERRE NORA, REALMS OF MEMORY: RETHINKING THE FRENCH PAST vol 1-3, vol. 1 xv-xxiv (LAWRENCE D. KRITZMAN, ED., TRANSLATED BY ARTHUR GOLDHAMMER, 1996) (French original LES LIEUX DE MÉMOIRE 1-3, ).

19 258 G ERMAN L AW J OURNAL [Vol. 06 No. 02 who were capable of disclosing the truth, wie es eigentlich gewesen, and failed to realize that they, too, were party to the production of the past. 5 In the European Mythosforschung of the 19th and 20th centuries, myth implied irrationality and was thus separated from rationality in the form of logos and reason. The key theoretical question which this dichotomy produced was whether mythical thought was prior to or parallel to scientific thought. And it was through this debate that the myth of rational science emerged. Chiara Bottici has investigated how, in a long historical perspective the separation between myth and logic emerged. She demonstrates how, in a chain from Ancient Greece, mythos and logos, which both were once synonymous for word, separated and took on oppositional meanings. The decisive links in the process of this separation were the triumph of monotheistic religion over Greek pluralism, and the quest of the Enlightenment for truth, which can be seen as a transformation of monotheism under the maintenance of its core dimension of absolutism To close the emerging gap between myth and truth, the works by Spinoza, Nietzsche and Wittgenstein can be seen as being connected to the romanticist critique of Enlightenment. Already Spinoza delivered important contributions to the epistemological debate in this vein. Nietzsche s deconstructivist and historicising approach to the concept of the logos ( was definierbar ist, hat keine Geschichte ) and the Wittgenstein s language game theory were both important contributions in a process towards a more sophisticated view of the concept of myth as a political category. Horkheimer and Adorno (Dialektik der Aufklärung) and Cassirer (Philosophie der symbolischen Formen) worked somewhat in the direction of maintaining the gap. This is particularly true for Cassirer in his heroic attempt to save the values of the Enlightenment from their 5 The idea of scientific history as formulated by Leopold von Ranke was based on the study of new source materials. It was assumed that close textual criticism of the hitherto undisclosed records buried in state archives would once and for all establish the facts of political history. The idea of Ranke became a dogma during the period from the 1870s to the 1930s through the professionalization of academic history writing under development of precise rules for the source criticism. Ranke s statement about wie es eigentlich gewesen has often been misunderstood, and Ranke has been attributed with a rather naïve viewpoint on the historian s task. However, in the preface of the history of the Romance and Germanic peoples Ranke demonstrates, as opposed to what is argued about him, that he was well aware of the bias in history writing. He reflected on the connection between intention, subject-matter and form of his book. The intention of a historian is dependent on his opinion and perspective ( Ansicht ). Out of intention and subject-matter emerges the form. History is thus not free evolution but creative ordering of the past, or, in the language of today, construction. History has been given the task to judge the past in order to teach for the future. However, so great tasks were beyond Ranke s ambition with his book in He just wanted to show wie es eigentlich gewesen. LEOPOLD VON RANKE wrote his famous formulation about history as it really was in the preface of his GESCHICHTEN DER ROMANISCHEN UND GERMANISCHEN VÖLKER VON 1494 BIS 1514 (1824) (VII in the edition published by Duncker und Humblot 1874).

20 2005] Myth, Memory and History in the Construction of a EC 259 surrender to holistic and totalitarian overstretching. In contrast, Sorel, to some degree, reinforced the Nietzsche-Wittgenstein axis and paved the way for a more political understanding of the myth. At this end of the chain, Carl Schmitt s view on political myth must also be critically analysed. 6 The examples of Cassirer and Schmitt emphasize how important it is to approach the concept of myth carefully and critically with full awareness of its explosive force. The analysis of a myth cannot be restricted to examining its function. Analysing the function of a myth means deconstructing that myth, which, at the same time, provokes the question of what new forms of history are being constructed. To what extent can the new history, that is, our re-telling of history, be accepted as a definitive history based upon assumptions of discovery rather than invention? One answer to this question is that we can never recreate the past as it really was, at the moment before the future of that past was known, a future which has become, in turn, our past. We can only try to translate the past in order to produce meaning for ourselves, in our present. For this reason, we must make translation a key methodological concept. This translation can only be made from our point of view of today, and never from the point of view of that past s present. In this sense, concepts such as objectivity and Ranke s wie es eigentlich gewesen become ideology. 7 Both wie es eigentlich gewesen and the cumulative view of history as an inexorable process of mapping reality in a total and definitive sense, through the addition of ever more and better data, become vain undertakings. The truths about the past are conditional and dependent upon the present in which they are formulated. This was the point of view promoted by Lévi-Strauss when he described myths as something which give order and meaning to the universe, in the sense that they give us the illusion that we understand the universe. To create myth is to create order, an intellectual, cognitive order principally, an order that has as its focus the always problematical relations between man and nature. 8 Barthes defines myth as a semiological system (form) and an ideology (content) consisting of three elements: form (signifier), concept (signified) and signification (sign). A myth hides 6 CHIARA BOTTICI, A PHILOSOPHY OF POLITICAL MYTH Ph.D. Thesis, European University Institute (2004). 7 Cf., Georg Iggers, Historiography and the Challenge of Post-modernism, in: THE POST-MODERN CHALLENGE. PERSPECTIVES EAST AND WEST 281 (BO STRÅTH / NINA WITOSZEK, EDS., 1999). 8 CLAUDE LÉVI-STRAUSS, MYTH AND MEANING (1978).

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