Law and history: The benefits and disadvantages of hypothetical questions of progress

Hypothetical causal processes have a dubious reputation in historical science.

But renunciation is not an option: Without hypothetical causality, there is no causality at all.

If something would have happened the same way under different circumstances, the actually existing circumstance has not become causal.

In general: without a hypothetical story, there is no story.

However, the extent to which the law requires the use of such historical hypotheses is disputed.

In the debate about the compensation payments for the "Hohenzollern" this dispute becomes practical: Does the "considerable advance payments" in the sense of the regulation actually require that Hitler would not have come to power without the former Crown Prince Wilhelm?

But which stirrup holder would not have to be dismissed as irrelevant when applying this standard?

In the volume he and his specialist colleague Frank-Lothar Kroll and the lawyer Christian Hillgruber published, the historian Michael Wolffsohn presented a counterfactual thought experiment in an attempt to prove that the Compensation Benefits Act, which was limited to the former GDR, was unfair and absurd as such and as a whole at:

According to the idea of ​​the right of restitution (as was the case in the east under the Soviets) "logically the Hohenzollerns would subsequently be expropriated in the west without compensation";

Hohenzollern Castle would become a "nationally owned tourism company".

Normatively different categories

The premises of this sarcasm are neither logically nor legally plausible.

Law must be linked to the past.

Positive right is changeable.

But not everything can be changed at the same time.

Some things remain unchanged due to a lack of resources such as time or acceptance.

The compensation law balances out which past is changed in the present - and which is not.

The decision to let what happened rest and not to replace a past assessment with a current assessment does not mean that one should hypothetically have created this legal situation oneself.

Normatively, these are completely different categories.

In this respect, the right of the historical hypothesis is denied.

It keeps the present and future open, even if it ties in with the past.

But the sober finding does not apply to the law in general.

A look at the neighboring rehabilitation law shows this.

In a recent decision (Az.: 2 BvR 1985/16), the Federal Constitutional Court twice requested historical hypotheses.

Without them, a legal assessment cannot be made.

A man who was separated from his mother as a child in the GDR after an attempt to escape and taken to a home had applied for rehabilitation.

His placement was unlawful.

Unlike before the Rostock Higher Regional Court, the complainant was successful with this assertion in Karlsruhe.

From today's perspective, the fact that the GDR refused to place the child abroad (i.e. in the Federal Republic) was unacceptable.

West German,

democratic law spoken.

The present hypothesis changes a past assessment.

In another context, the judges called for historical expertise.

Because the question of whether the GDR took too long according to constitutional standards to finally hand over the child to the mother, who has meanwhile left for the Federal Republic, requires a hypothetical parallel analysis.

The fact that, as assumed in Rostock, "organizational and bureaucratic obstacles" prevented faster reunification, does not answer the question of whether these obstacles are part of the harassment of refugee children.

In case of doubt, a historical report can clarify this.

That alone should be of interest for the Hohenzollern trial, as some lawyers regard the involvement of historians as its “birth defect”.

Compensation and rehabilitation law confirm a doctrine of legal positivism: law can create parallel worlds and order anachronisms - or refuse both.

The legal yardstick for evaluating the past is the law itself. However, the autonomy of the law does not mean that the descriptions of neighboring disciplines cannot be used.

Out of wise self-restraint, the law refers to the assessments there, even if their usefulness is open.

This does not only apply to the Hohenzollern report dispute: It remains to be seen whether administrative history research can clearly distinguish between official delays and desk repression.

If it succeeds, the supposedly historically unproductive question “What would have happened if .

.

.?” for the right to the normative starting point.