Michael Stolleis (December 2004)

Prof. Dr. Dr.h.c.mult. Michael Stolleis is Director of the Max Planck Institute for European Legal History (a.k.a das Max-Planck-Institut für europäische Rechtsgeschichte). Prof. Stolleis studied legal science in Heidelberg and was awarded his doctorate in Munich under Prof. Sten Gagnér. Prof. Stolleis has taught law and legal history in Germany, including at Munich, Frankfurt and Göttingen, since the early 1970s. In 1991, Prof. Stolleis won the Leibniz Prize and was appointed Director of the Institute. Among his numerous works on legal history, an English translation of his History of Public Law in Germany 1914-1945 (Geschichte des öffentlichen Rechts in Deutschland 1914-1945) was published in 2004 by Oxford University Press. The Legal History Project interviewed Prof. Stolleis in December 2004. The following version provides a translation of Prof. Stolleis's original German responses.

The Max Planck Institute for European Legal History is part of the Max Planck Society, which has more than eighty branches devoted to science, law and other fields in the humanities. How did the Institute for European Legal History come to be a part of the Society?

The Max Planck Institute for European Legal History was founded in 1964 by Prof. Helmut Coing. Prof. Coing was convinced, as a legal historian and civil lawyer, that it was part of the fundamental European task, in the context of the European movement, to use legal history to bring to mind that Europe (especially Latin, "Roman" Europe) possessed a unified legal culture. Linked with this was the hope that recourse to the "ius commune europaeum" [i.e. the "European common law" based on Roman law] would help overcome the age of nationalism and national codification.

What are the main activities of the Institute for European Legal History?

The primary activities of the Institute lie today (or at least currently) in legal research on the late Middle Ages and the administrative and penal practices of the early modern period, in the investigation of the 19th-century juristic culture of letters and periodicals, in the exploration of the scientific history of international and public law in the 19th and 20th centuries, and also in several large projects concerning 20th-century dictatorships.

While there is a brief mention of the Institute in English on the Max Planck Society's website, the Institute's own website is in German. Was there a policy decision not to employ other languages online, and is the Institute's work limited or otherwise influenced by the fact that only German is used?

The working language of the Institute is predominantly German, even though it has Italian, Scottish, Polish and Hungarian employees. The countries with which the Institute has the most contacts are Italy, the Netherlands, France, Scandinavia and the U.S., although, unfortunately, not England. We are here consciously somewhat different from the departments of natural science and social science.

Today, important German figures like von Savigny are barely known to lawyers in the United States and perhaps elsewhere in the English-speaking world. Do you feel that positive German contributions to Western law over the centuries have been overshadowed by the attention given both abroad and in Germany to the Nazi regime's legal perversions?

There is indeed a great public interest in the Nazi era. That is as it must be. My own work has for 30 years been in large part devoted to this subject. I do not have the impression, however, that positive achievements of German legal studies have been thereby overshadowed (for example, the theoretical penetration of basic rights and the rule of law, contributions to modern European law, business law, comparative law, etc.).

To follow up a bit on the previous question, in 2002 you published "Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence after 1933 and post-1945." Do you believe that the traumas of fascism and World War II have affected German law as strongly as did the German "reception" of Roman law in the early modern period?

West German legal culture after 1945 was deeply influenced by the traumatic experience of the state acting as a criminal and the fact that lawyers could be carried away by it. This is not really comparable to the process of Europe's "Reception" of Roman law from the 12th through 16th centuries. Roman law touched all Western European countries, it influenced the "style" and "language" of law, and it accompanied early capitalism and the origin of the modern state. These were much larger, longer and active processes than the experiences of the 20th century, which were indeed extremely sad, but which affected only two generations.

Looking beyond Germany for a moment, do you find that the European Union's growing legal regime reflects older European legal models and customs, or is it a wholly new system without ties to the legal past? Put differently, does the European Union represent a continuity or disruption of Rome's legal legacy to Continental Europe?

The comparison between modern Europe, i.e. from the Rome Treaties of 1957 to the present, and the ancien régime is very important and historically fascinating. As always with comparisons, there are similarities and differences, and the outcome always depends on what one wants. There is no real continuity. Also, no serious person dreams of a restoration of an imperium romanum [i.e. Roman Empire] or an actual return to the ius commune [i.e. European common law based on Roman law]. Modern industrial societies face different conditions and tasks. Nevertheless, it is sensible for one to take account of the similarities and differences, above all in the education of young lawyers. I therefore favor all legal education in Europe being required to provide basic information on the older legal culture existing before the age of nationalism.

Would you consider the average German lawyer today to be well-versed in German legal history, in broader European legal history, and perhaps even in English or American legal history?

The "average German lawyer," as I have stated, should possess solid, basic information on German legal and constitutional history, and is expected to be familiar with the most important European legal systems (including, for example, those of England and Scotland). Most young attorneys today are already rather well-informed about English, American and French law, often through stays in the U.S.

Does instruction in legal history form a standard part of the training of German lawyers? Does the Institute take any particular view on the role of legal history in German legal education?

Legal history is a strong, core element in nearly every German university. There are usually two legal historians (one for Roman legal history and one for German legal history), but sometimes only one. At the present time, legal history is under pressure because many faculty chairs are going to be cut for financial reasons. This is giving rise to situations where there is competition as to what is now worthwhile law. Moreover, the knowledge of Latin is continually receding.

The Max Planck Institute cannot solve these problems, but it offers through the International Max Planck Research School for Comparative Legal History excellent possibilities for research and the awarding of doctoral degrees. It organizes each year a "Summer Course on European Legal History," and since autumn 2004 also a "Study Week" for young legal historians dealing with the 13th-16th centuries.

What originally drew you to legal history?

In Munich, I met my teacher, Sten Gagnér, a Swedish legal historian with a quite special charisma. My wishes for scholarly work, up till then unclear, took shape through contact with him. My interests in the state, administration and politics led me into public law. Hans F. Zacher particularly impressed me with respect to social welfare law.

In your work, you have dealt with numerous and varied aspects of German legal history. Which topics do you feel are unduly neglected these days by the German academe, and which subjects deserve more attention and prominence abroad?

Unfortunately, the history (and scientific history) of penal law between the 16th and 20th centuries is being neglected. I am altogether convinced that a modern scientific history should be given much greater support. Also, a comparative European legal history is desirable but almost entirely yet to be realized.

Are you currently working on any legal history projects?

I will, if I remain in good health after my retirement in 2006, complete my History of Public Law in Germany with a fourth volume (covering 1945-1990). In addition, I have always, and with special pleasure, considered the promotion of younger talent to be a "legal history project."

Prof. Stolleis was interviewed by Peter C. Hansen, who has also provided the translation of Prof. Stolleis's responses into English. Mr. Hansen would like to thank Akua Gyekye for reviewing the draft translation, and for her very useful suggestions and corrections.

© Peter C. Hansen, The Legal History Project.