Transatlantic Perspectives on Law and Illiberalism, 1907–49

AHA Session 165
Central European History Society 9
American Society for Legal History 1
Saturday, January 6, 2018: 8:30 AM-10:00 AM
Maryland Suite A (Marriott Wardman Park, Lobby Level)
Mary L. Dudziak, Emory University
Udi Greenberg, Dartmouth College

Session Abstract

This panel sheds new light on the intellectual, legal, and political history of Germany and the U.S. in the first half of the twentieth century by considering the conceptual connections and institutional affiliations linking putatively liberal and illiberal strands of political thought. The intellectual history of Europe and the U.S. during this period is often understood as a clash of liberal visions of constitutional democracy, international trade, and world peace with authoritarian projects from both left and right. Building on recent developments in the histories of transatlantic intellectual migration and human rights, this panel tells a different story, in which the collapse of the pre-World War I international order and the emergence of mass welfare states gave rise to new conceptual frameworks that challenged liberal conceptions of the rule of law, while retaining fluid political affiliations. In particular, we illuminate the centrality of legal thinkers in facilitating the rise of illiberal forms of political thought that paradoxically called for diminishing the power of the judiciary and statutory law vis-à-vis executive authority and presumed national interests. We show how during this period, jurisprudence transformed from a specialized, isolated domain of inquiry to one that increasingly incorporated and informed debates in political thought, sociology, and theology, with important consequences for contemporary understandings of mass democracy, executive power, and political legitimacy. The panel probes the intersection of legal thought and political transformation: Why did the transatlantic turn away from legal positivism (the vesting of political legitimacy in statutory law) in the 1920s take on opposing political connotations in Germany and the U.S.? To what extent was the dramatic expansion of executive power in both Germany and the U.S. in the 1930s bolstered by a shared legitimating vocabulary and transatlantic jurisprudential networks? Did the experience and observation of National Socialism cause an abandonment or mere repurposing of the political language deployed by German jurists in defense of the Nazi regime?

The papers address these themes through studies of jurisprudential networks, while highlighting connections between law and other disciplines. They exemplify an approach to legal and intellectual history that works at the nexus of conceptual thought, intellectual networks, and political conflict. Moreover, the papers highlight the centrality of the German experience, both the iterative crises of interwar parliamentary democracy and the rise of National Socialism, for framing legal thought on both sides of the Atlantic. The panel will proceed chronologically, moving from the transatlantic rejection of legal positivism during and after the First World War; to the flourishing of alternatives to rule-of-law liberalism during the interwar years; to sites of reckoning already during the period of Nazism and the Second World War; to the emergence of a postwar, religiously-inflected West German democracy whose political foundations rested in part on innovations in legal thought during the interwar era. We hope to draw a broad audience including scholars of the political, legal, and intellectual history of modern Europe and the United States, as well as historians interested in challenges to liberal democracy in the twentieth century.

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