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N°26, june 2024 - Thinking the methodology of law and legal history with Michael Stolleis

Coordination :

  • Aurore Gaillet (Toulouse Capitole)

  • Hans-Peter Haferkamp (Cologne)

  • Nader Hakim (Bordeaux)

As Michael Stolleis (1941-2021) passes away and tributes multiply, jurists and legal historians in Europe and beyond are re-reading the works he left us as a legacy. Among these are a few texts of a more methodological nature. It is precisely this methodological reflection that is at the heart of this draft issue of the journal Clio&Themis.

Two of his texts will be of particular interest: Rechtsgeschichte als Kunstprodukt. Zur Entbehrlichkeit von "Begriff" und "Tatsache", Baden-Baden, Nomos, 1997 (30 p.); Rechtsgeschichte schreiben. Rekonstruktion, Erzählung, Fiktion ?, Basel, Schwabe Verlag, 2008 (48 p.). They constitute the starting point of a reflection in which we wish to involve a wide range of researchers, historians, lawyers and legal historians, but also linguists/translators or other representatives of social sciences who might be interested in the subject.

The aim is to explore a methodology, or perhaps more precisely an epistemology, which has always been the focus of the author of the great History of Public Law in Germany (4 vols. 1988-2012). It will therefore be important, beyond the tribute paid to the man and his work, to extend a discussion with the author. Nothing would be more appropriate than to discuss his choices, to pursue his quest for a path that leads, not to truth, but to knowledge. Whether one agrees or disagrees with him, totally or partially, it is above all important to pursue his work in that it is an invitation to constructive doubt, creativity and perseverance.

The overall conception of this call for contributions is intended to be original, both in the disciplinary openness to which it invites (and to which Michael Stolleis was attached) and in the expected junction between all the contributions: they will all start from the two aforementioned texts, from one or more of their elements, to feed them, extend them, discuss them and/or contradict them. The texts will be published in the journal Clio&Themis, Revue européenne d’histoire du droit. An exchange seminar could be envisaged, before or after the event.

Without being exhaustive, the following avenues can be proposed as starting points for reflection:

  • The historiography of legal history. Is it not a necessary starting point for an epistemological reflection to take an interest, as Michael Stolleis does, in the different approaches that have succeeded one another within a discipline, in order to take stock of and compare the methodological choices made over time? (In this case, it is obvious to him that the history of law should be more closely integrated into the history of science and knowledge, although this is still a matter of debate).

  • Is the intellectual construction of law in a historical context compatible with the classical history of ideas as it is widely practiced today? The method developed by Wieacker in his History of Private Law (Privatrechtsgeschichte) has remained an orientation for Michael Stolleis' Public Law: can we discuss this link between the history of law and the history of ideas?

  • The importance of contextualisation in legal history, especially in the debate on the history of concepts and legal dogmatics

  • Beyond the importance of successive historical temporalities, the 'present time' receives specific attention in the work of Michael Stolleis. Assuming a form of presentism allows him to bring the distance of a scientific reflection to it. Is the question of 'progress' and the service of the community, not only scientific but also global and European, not a structuring element in his research themes as well as in his scientific options? Can the history of law serve the present (for example, to build a European history of law) when, at the same time, the injunction to distance ourselves from our philosophical presuppositions, the prescriptions of the law in force and our personal experience seems to impose itself? How can we think about a history that we have lived and/or are still living?

  • As for the possibility of linking the historical method with the method of jurists working on positive law: if Michael Stolleis' object is indeed history, is what he proposes not transposable, in whole or in part, to today's law and to jurists' ways of knowing and narrating? The question seems all the more relevant to us if we accept, with him, to connect history and the present.

  • The importance of the linguistic turn in legal history. The omnipresence of the linguistic question in the work of Michael Stolleis, a student of Sten Gagnér, is striking. In his methodological work, he constantly questions the relationship to facts and evidence of a history that reconstructs the past on the basis of linguistic and perhaps (but this is an open debate) non-linguistic materials. In this framework, he gives specific importance to language in its context of enunciation as well as of a posteriori interpretation (the variability of linguistic usage versus the deep legal structures mobilised in particular by legal dogmatics).

  • A point for reflection: in his book Rechtsgeschichte schreiben (2008) Michael Stolleis refers to the criticism that other historians have made of his thesis (p. 5, no. 1), according to which for historians there are no 'facts', but only interpretations ('objects are mute', p. 30). In this regard, he invokes his analytical approach to language, drawing on the influence of Ludwik Fleck, for example. Karl Kroeschell is thus among his opponents. When did Stolleis develop this approach? How does his thesis fit into the contemporary debate on methods, especially since the trends towards a 'materialist' history developed in the 1970s (Une Wesel and contra Peter Landau and Joachim Rückert)? What effects have these views had on Stolleis' concrete work?

  • Another distinction that can be discussed is that between scientific writing and literary narration, between recomposed reality and assumed fiction (as well as the relationship between historical science and imagination).

  • The weight of scientific ethics, which for Michael Stolleis constitutes the tribunal of our scientificity (with the question of the verifiability of sources): the question is particularly acute with regard to the role and effectiveness of the Scientific Community and its disciplinary and national borders, its modes and its academic and social stakes.

  • The separation between private law and public law, which he tells us should be a mere burden of the past that must be overcome, even though it still largely structures national and international disciplinary fields

  • In other words, does this summa divisio, which is very contemporary, still condition certain methodological choices today?

  • Is the social history of law, as Michael Stolleis understands it, an axis likely, even today, to federate both private and public law and a wide range of legal history work by decentring the historian's gaze, in particular by obliging him or her to try to understand the new socio-economic configurations that law helps to construct?

  • The explicit or implicit references that he mobilises (already encountered in the above-mentioned themes, but which could also constitute the core of one or other contribution): what can be said of his use of Jacques Derrida, Sten Gagnér, Reinhard Koselleck, Richard Rorty, Ludwig Wittgenstein or, perhaps, Michel Foucault, Eric Hobsbaum, Niklas Luhmann? What can be said of the permanent dialogue that Michael Stolleis maintains with his fellow historians, both publicists and privatists, such as Franz Wieacker and Helmut Coing?

  • Some of the paths already mentioned (construction of 'concepts', relationship to 'facts', importance of contextualisation) are linked, for example, to the discussion of the 'Begriffsgeschichte', as attached to the name of Reinhart Koselleck (1923-2006). How can this discussion be developed today?

  • Other names could be mobilised and discussed. One might even ask to what extent it is possible to identify a 'Frankfurt School', rich in exchanges between Michael Stolleis and his colleagues at the Max Planck Institute 'for European legal history'.

In the end, these are only proposals. This call for papers aims above all to respond collectively to Michael Stolleis' invitation: "Can we write as before, piling one interpretation of a source on top of another, in order to approach the goal of a historical truth? Or do we see ourselves as a narrator whose text says only that 'it may have been so' - and thus renounce any claim to a supra-individual truth? On this point, every historian and every legal historian must decide' (in 'Écrire l'histoire du droit: reconstruction, narration, fiction', op. cit. (2008)).

Selective bibliography

Our two basic texts

  1. Rechtsgeschichte als Kunstprodukt. Zur Entbehrlichkeit von "Begriff" und "Tatsache", Baden-Baden, Nomos, 1997

  2. Rechtsgeschichte schreiben. Rekonstruktion, Erzählung, Fiktion ?, Basel, Schwabe Verlag, 2008

Further reading

  1. Juristische Zeitgeschichte - ein neues Fach?, Baden-Baden, Nomos, 1993.

  2. M. Stolleis, "Concepts, Models and Traditions of a Comparative European Constitutional History", Themis. Revista da Faculdade de Direito da UNL, 2003, no 6, p. 155-163.

  3. M. Stolleis, "Rechtsgeschichte, Verfassungsgeschichte", in H. J. Goertz, Geschichte. Ein Grundkurs, 3rd edn, Reinbek, Rowohlt, 2007, pp. 391-412.

  4. M. Stolleis, "Methode der Rechtsgeschichte", in A. Corde et al (eds), Handwörterbuch zur deutschen Rechtsgeschichte, 2nd edn, Berlin, Erich Schmidt, vol. 3, 2014, pp. 1475-1484.

  5. Verfassungs(ge)schichten, Tübingen, FJP 6 (2017), pp. 1-61.

  6. "Epochen und Zäsuren in der europäischen Rechtsgeschichte", in P. Monnet, Th. Maissen, B. Mittler (eds.), Les usages de la temporalité dans les sciences sociales, Bochum, Winkler, 2019, pp. 85-95.

Provisional calendar

Publication in Clio&Themis, European Journal of Legal History, no 26/2024: https://publications-prairial.fr/cliothemis/

  1. Submission of articles by 1 May 2023.

  2. First evaluation of the articles during the committee meeting of June 2023.

  3. Submission of corrected articles by 1 December 2023.

  4. Second evaluation of articles at the January 2024 committee.

  5. Final submission of articles by 15 April 2024.

  6. Publication in June 2024.

How to apply?

Proposals for contributions must include a sufficiently detailed idea, allowing the author to understand how he or she proposes to fit into the overall project. The text should be between 5000 and 10000 characters. 

Proposals (in French, English or German) should be sent in editable format (*.doc, *.docx, *.odt, etc.) before 30 June 2022 to: nader.hakim[at]u-bordeaux.fr

All proposals must be accompanied by

  1. first name and surname of the author 

  2. electronic contact details 

  3. Academic status 

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