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.

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. 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. This methodological shift does not deny 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.

“Die Geschichte ist Gegenstand einer Konstruktion, deren Ort nicht die homogene und leere Zeit sondern die von Jetztzeit erfüllte bildet.” wrote Walter Benjamin. “So war für Robespierre das antike Rom eine mit Jetztzeit geladene Vergangenheit, die er aus dem Kontinuum der Geschichte heraussprengte.” (“History is the subject of a construction whose site is not homogeneous, empty time, but time filled full by now-time. Thus, to Robespierre ancient Rome was a past charged with now-time, a past which he blasted out of the continuum of history.)

In The Fragility of Goodness: Why Bulgaria's Jews Survived the Holocaust, Tzetvan Todorov offers the following lesson from his study of the “rescue” of Bulgarian Jews from the Nazi killing machine:

“It seems that, once introduced into public life, evil easily perpetuates itself, whereas good is always difficult, rare and fragile. And yet possible.”

The identity of the European Union has, for some years now, been the topic of many debates. The recent enlargement of the Union has stirred this debate and has not appeased it. There are various key topics that inspire the discussion, which included, for example, conceptions of citizenship. The following remarks will offer a sketch of some of the issues that come to the fore in this respect. Of particular interest here are the connections between the process of the constitutionalisation of Europe and the question of the desirability, or even necessity, of a homogenous European identity. I will first name some exemplary concrete problems that are connected with questions of politics of identity. I will then undertake a short illustrative look into the history of ideas to trace back some of the lines of thought that are relevant in the discussion. Finally, I want to suggest a possible normative perspective of how to proceed.

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?

Contributions dealing with the European constitution have abounded over the last few years. Now that the amended Draft of the Constitutional Treaty has been adopted by the European Council, they are likely to burgeon even more. For scholars working in the field, this creates a paradoxical situation. Why write another piece on Europe's constitutionalization — even if it be with the unmovable confidence that it is necessary to rescue the existing debate from impending debilitation? Under current circumstances, any paper on the issue is doomed to be buried among countless other like-minded interventions.

In the literature on emergent populism and nationalism in post-communist Eastern Europe, two main assumptions regarding the origins of the phenomenon can be distinguished. One line of argumentation holds that the unexpected resurgence of populism and nationalism after the collapse of the communist regimes is a direct result of the ‘valley of tears’ that characterizes the post-communist transformation from a communist, centrally planned system, to a democratic, market society. The ‘social costs’ of the transition and the still ‘incomplete’ nature of modernization make a large number of ‘modernization losers’ susceptible to mobilization by populist movements. The emergence of populist, nationalist movements should be understood as a radical form of protest against the degradation of the quality of life and widespread social dislocation and unemployment. A second explanation for the phenomenon is that populism and its naturalist, exclusivist portrayal of the nation is the result of the re-emergence of deeply, culturally ingrained perception of social belonging, and of the foundations of the polity, in which the social whole is considered prior to the individual, and in which local culture is valued differently from Western culture. In this explanation, the structural difference between Eastern and Western Europe is emphasized, a difference that can only be overcome by the former adopting the political model of the latter.

The reasons for the recent rise of Eastern European populism constitute a puzzling issue in political and scientific discussions. As Paul Blokker shows, Eastern European populism can neither be seen as a mere reaction to communism, nor as the “natural” consequence of the transition from a socialist economy to a liberal market model of production. Nor is populism just another form of ethnic nationalism, developed in Eastern Europe and juxtaposed to civic nationalism. The strong dichotomy between an ethnocultural and exclusive nationalism and a civic and inclusive nationalism does not exist in these terms and is the product of a scientific bias, and not a product of empirical observation.

In November of 2003, I received an e-mail from Diana, a 26 year old Hungarian Ph.D.-student of archaeology and Egyptology. She is also interested in gender studies, she wrote me, especially in the cult of female goddesses. She also sent me the article on this topic that she had recently published in the very mainstream Hungarian journal of religious studies, the Review of History of the Church. In this article, she refers to articles published in English, French, German and Italian, quoting sources in Latin and in Ancient Greek. In the e-mail, Diana asked for my help to give suggestions about literature on re-interpreting the role of women in religion because she was familiar with my work on populism, religion and gender. Before the reader starts believing that I am using this very precious occasion to celebrate the developing communication between two generations of female scholars in Hungary, I would like to continue the story with a police report issued on the 23 June in 2004. In this police report, it was announced that, posters announcing a meeting of the so-called Group of Hungarian Future had been placed on the main boulevard of Budapest Arrow Cross. As is well known, the Arrow Cross was the Hungarian Nazi Party before and during World War II. The Group which is so concerned about the so-called Hungarian Future has 27 members and the founder of this group is Diana.

When the true scale of what would later be called ‘crimes against humanity', ‘genocide’ and, specifically, ‘the Holocaust’ became clear in the aftermath of the Second World War, a number of questions were raised. First, is this a new type of crime, in which evil manifests itself in a radically different way than it had earlier? Some disputed this. Evil exists at all times and it has always confronted people with an abyss of atrocities. With Rawls, one might then say that every ‘great evil’ is sufficient in itself and that making comparisons is not necessary, even if the Holocaust cannot be detached from earlier ravages of evil such as the Inquisition and antisemitism. Others thought this question ought to be answered positively. Adorno and Levinas formulated their philosophies in part as a response to the unique character of the Holocaust. Even now, more than a half a century later, the events associated with the Holocaust form a rich source for public debate, scientific inquiry and literary expression. Secondly, the question has been raised as to how one is to cope with this modern form of political evil and with a new type of criminal offender. Some argued in favour of the familiar recourse to politics and international law. Specifically, political crimes ought either to be dealt with politically or to be considered in the light of the principle of international law: par in parem non habet jurisdictionem. So, ordinary criminal law is not applicable where the mutual conduct of states is concerned. Others, however, including the Allied governments in the period immediately following the termination of hostilities, argued that these crimes were such that punishment would be inevitable. This might give rise to legal problems, but these crimes ought to be dealt with to the extent possible by means of ordinary criminal procedure.

In these notes, I reflect on the possibilities of confronting the darkest chapters of East-Central European history, namely, genocide. This problem is closely related to the moral refoundation of society, law and politics. My concerns are primarily related to the role of law in the process, both descriptively, by trying to explain very contradictory developments in Hungary, and normatively, by arguing for a shame dictated legal policy.

It seems by now an established fact that “social identity” implies a construction against an “Other”. This includes the fact that it is much easier to say who “we are not” than “who we are” (and what this means). The fact that “we Europeans” cannot say “who we are” is commonly accepted and blamed as one of the major deficits of the European Union. One possible approach to overcome this deficit might, therefore, be to say “who we are not.”

In a letter of 1952, the former German judge Lothar Kreyssig launched his idea of a reconciliation programme based on the religious – Christian – concept of atonement. From the manual work of German volunteers, those who had formerly been persecuted and their enemies, namely, the State and the People of Israel and Jews on the one hand and Great Britain and the British on the other, should benefit. The addressee of this letter was Graf Paul Yorck von Wartenburg, the brother of the executed resistance fighter Peter Yorck, then working for the Ecumenical Council of Churches in Geneva, who later worked as a German diplomat with a consul assignment in Lyon.

A project concerning itself with the effects of the past on the European integration process must also raise the question of the emergence of guiding historical images in the course of this process. As the past is not objective truth, but a perception generated by various actors (e.g., politicians, populist movements) as well as by history as a science in accordance with its own aims and rationality criteria, it appears in very different narratives. Many such historical images of Europe are generated by legal history. Since the Treaty on the European Union brought European integration a deeper, political dimension, a euphoria about Europe has broken out in legal history.

As Europe forges its legal order, constitution, and self-understanding, many appear to believe that identifying and enacting laws and a legal framework that correspond to shared concepts of justice and human rights will solve the problem of legalized barbarism which once plagued Europe and which has been a recurrent feature throughout time and across the globe. The historical propensity of courts, even in democratic states, to legitimate and enable policies of persecution and discrimination provides compelling evidence that the current level of faith in law is misplaced.

Last year marked the tenth anniversary of the Rwandan genocide when more than 800,000 people were slaughtered within 100 days under the watch of the international community. As the United Nations has since acknowledged, “[t]he international community did not prevent the genocide, nor did it stop the killing once the genocide had begun.” The whole world failed the victims – a failure the UN Report called a fundamental “failure of the international community [and] failure of the United Nations system as a whole.” Those who could did little or nothing to help. Indeed, some actively concealed or denied the unfolding genocide. Interestingly, the genocide took place more than half a century after the victorious allies of World War II vowed “Never Again!” to genocide in response to the Nazi holocaust. Also, by 1994 the 1948 Convention on the Punishment and the Prevention of the Crime of Genocide under which states assumed a legal duty to prevent and punish the crime of genocide was nearly half a century old.

European Directives impose upon Germany the obligation to incorporate antidiscrimination provisions in its civil law. The anti-discrimination legislation is intended to provide effective civil law remedies against discrimination in everyday life by private persons, e.g. access to housing, restaurants and education. For the purposes of this article, discrimination may generally be defined as any treatment – including a refusal to deal with – by a private party that is less favorable than to another person and is conditioned upon a characteristic such as racial or ethnic origin, sex, etc.

Prior to an acquisition of a stock corporation the purchasers often perform a due diligence at the target company. The due diligence is the examination of the company and can cover the legal, commercial, environmental, financial and fiscal matters of the company. Under US law it is the purchaser's duty to examine a company accurately since the risk of any deficiencies is on him. German law, in contrast, does not require the purchaser to examine the company he purchases. According to § 442 (1) sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) the buyer does not have rights with respect to a defect, if he is unaware of this defect as a result of gross negligence on his part. While for some years now, the performance of due diligence prior to purchasing a company has become quite customary in Germany, German law does not yet require the person wanting to purchase a company to perform a due diligence.