The Fantasy Men

Abstract

The remarkable success of the Anglo-American legal system in establishing stable, democratic societies throughout the globe contrasts with the catastrophic failure, over the centuries, of the legal systems of continental Europe. Nevertheless, nationalistic sentiment in South Africa and Scotland reacted to increasing Common Law influence with a paradoxical idealisation of the Civil Law system. The various discourses of europäische Rechtsgeschichte behind the ideology are set in their historical and cultural contexts. The nationalistic discourse of Savigny, which reduced the whole of European legal history to a translatio studii of Roman law from Italy to France to Holland to German apotheosis, gave way in the wake of two world wars and the Holocaust to the new discourse of the ius commune, a legal paradigm for a future European Union based not on the historical reality of three centuries of religious, political and juridical conflict, but on a fantasy world of European legal unity from the beginning of the modern period until the 19th century national codifications. This was the post-war narrative of Helmut Coing, which, failing to anticipate the eclipse of the British Empire, steadfastly contrasted the shared legal tradition of continental Europe with the opposing system of the Anglo-American Common Law.With England now in the European Union the discourse has had to be modified. By exaggerating the importance of some minor and long-recognised continental influences on the Common Law, the contemporary discourse of the ius commune europaeum propagated by Reinhard Zimmer mann succeeds in trumping the historical fantasy of a uniform continental legal past with the even more remote fantasy of a uniform continental and English legal culture. The old nationalist programme of a return to the 17th–18th century Roman-Dutch law, imbibed by Zimmermann as a law professor in Apartheid South Africa, can thus be presented as an appeal to the pan-European legal inheritance. This discourse currently enjoys great success both as an authentic picture of the European legal past and as an attractive blueprint for the European legal future.