The rise and demise of non-existent universalism: Reinhart Koselleck and the universality of legal concepts

ABSTRACT This article addresses the boundaries of law and historiography in scrutinizing some rarely analyzed aspects of the works of Reinhart Koselleck. The article studies the significance of the tradition of ‘politico-juridical’ concepts in Koselleck’s thought, by tracing the intellectual history and biographies of some notable legal historians that for the large part defined the legal historical discourse after the Second World War. It is argued that a research of the connections between Koselleck and these legal historians provides an insight into the themes of the temporality of law and the universality of legal concepts in Koselleck’s articles. In contextualizing the thinking and texts of Reinhart Koselleck, this article benefits from previously unused primary sources and illuminates the reference group and intellectual atmosphere in which Koselleck worked in and around 1968.


Introduction
Reinhart Koselleck, a theorist of history and the most renowned scholar of concepts in our time, was a staunch anti-universalist. As he himself put it, that was due to personal experiences during and after the Second World War. 1 Another reason for his explicit rejection of 'universalism', I argue, is the intellectual context in which he produced most of his early classics. The conservative circle of scholars gathered around Carl Schmitt and his theory on law and society, was from the very beginning aimed at ripping apart all theoretical systemsbe it legal, sociological or historicalconstructed in the hope of an allencompassing conceptualization of human affairs. 2 Indeed, it is clear that a certain reluctance towards universalism occupied Koselleck's works and writings up until the very end. 3 However, some parts of his works, without doubt, attempted to bring forth analytical, ubiquitous categories that have been usedalthough not by Koselleck himselfin universalist projects. A common misunderstanding, but perhaps a telling one, is to read Koselleck's Geschichtliche Grundbegriffe project as an attempt to capture the universalist core of each political and social key concept of 'the modern'. Reinhart Koselleck's indispensable contribution to the theory of history and concepts extends far beyond traditional disciplinary borders. Thus, in this article I will focus on a specific trait in Koselleck's works: the universality of legal concepts. I aim to show that the topic was in many ways pivotal to the scholarly community in which Koselleck developed and formulated his theory of concepts in history, and further, studying the topic helps to contextualize Koselleck's thought within the evolving social sciences of the Federal Republic of Germany. Hence, this article asks: How did Reinhart Koselleck perceive the legal notion of universality in concepts? Or in other words, what role did the universality of legal concepts play in his ideas and works?
The concept of the universality of concepts has a slightly different meaning in historiography and in legal science, at least in pragmatic terms. 4 In history (as an academic discipline), universalism related to concepts is more or less tied to the philosophical prerequisites of writing history and to the deconstruction of Eurocentric preconceptions of historiography. In legal science, the universality of concepts is a more practical theme and is at the centre of the aspirations in comparative or international law to construct a transnationally binding legal system. 5 To put it briefly, in the theory of history, scholars are mostly interested whether concepts are 'true', whereas in legal science, or in international law, the question is whether legal concepts are 'accurate' or 'just'. According to Geoff Gordon, 'Universalism [in legal science] can be doctrinally described as an underlying principle, or abstract tenet, classically related in international law to ends of harmony, equality or autonomy.' 6 The legal sphere of concepts was a relevant theme to Koselleck for two main reasons. First, in the German humanities, concepts used as vehicles of representation and as forms of cognition have played a central role since at least Immanuel Kant and G.W.F. Hegel, in whose works the legal and historical dimensions were inseparable. 7 Second, Koselleck started his academic career at a peculiar time when the 'crisis of universalism' plagued the foundations of legal concepts. The discussion centreing around the phenomenon of universalism was a context for Koselleck's initiation into the dynamics, paradigms and conceptualizations of German academia, and this heated debate also characterized Koselleck's contributions. I further argue that in order to fully comprehend Koselleck's ideas on the universality of concepts one needs to study his thoughts, keeping in mind the general social situation, and compare his ideas to the works of his colleagues. It is not my intention to reduce Koselleck's works to a mere follow up of the ideas of some other scholar or scholars. Rather, I analyze the thoughts of Koselleck's predecessors and colleagues as an intellectual atmosphere and context that helped him in constructing his own theory of history and concepts.
Since at least Niklas Olsen's excellent intellectual biography of Reinhart Koselleck, the influence of Carl Schmitt on many tropes circulating in Koselleck's works has been acknowledged. 8 In this article I would like to concentrate on Koselleck's colleagues who were close to Schmittnamely legal scientist Ernst Forsthoff and legal historian Franz Wieackerwho, I argue, also helped Koselleck significantly to categorize his understanding of the relationship between power, law and society (in other words, administration), as well as introducing him to the idea of legal language as an indicator of communal values. In this article I have chosen Forsthoff and Wieacker to represent the discourse of studying concepts from a 'politico-juridical' perspective, and in what follows, I will study the interaction between that discourse and Koselleck's early ideas on concepts in history. 9 It was not only that Koselleck was familiar with Forsthoff's and Wieacker's works on 'politico-juridical' concepts. With those scholars, he shared an intellectual Heimat as 'Schmitt-scholars'. Their unofficial interaction in the context of the 'Schmitt school' was frequent, regular, as well as significant for the scientific aspirations of each member of the group. A concrete embodiment of this school of thought were the annual Ebrach seminars for a select circle of scholars in a small town of the same name near Heidelberg. 10 In this article I will focus especially on the 1968 seminar. I will scrutinize the way with which the scholars contributing to the colloquium dealt with the contemporary crisis of the political world and the challenges it posed to their scientific orientation.
Another major focus of this article is Koselleck's encounters with legal historians in the late 1980s. Through this 'reunion' I intend to study the conception of universalism in the works of Reinhart Koselleck in relation to the theme of the universality of concepts as upheld by some notable German legal historians. As I aim to show in this article, Koselleck's ideas were originally outlined and sharpened in the intellectual atmosphere of Continental (German) socio-legal studies. Another, and wider, task of this article is to show that Koselleck's Historik envelopes an important conceptualization between law and history, which could offer a novel path in studying legal orders and their embeddedness within societies.
2. The Rechtshistorikertag of 1986: are legal concepts universal or not?
Although Koselleck is a somewhat new acquaintance to anglophone legal history, that has not been the case in German legal historiography. In 1986 Koselleck was invited to give a keynote speech at the biannual Rechtshistorikertag, the most renowned legal historical conference in the field of continental legal history. 11 Usually the programme and the speakers at the Rechtshistorikertag are, as the name indicates, primarily interested in legal science, and, secondly, oriented toward historical research as a methodology. One could interpret the choice of keynote speaker as a nod of approval by the legal historical community toward recent developments in the theory of history that Koselleck's works according to the common opinion represented, and as an attempt to build new bridges among the two separate fields of legal and general history.
For the more senior members of the conference audience, Koselleck was by no means a recent celebrity scholar, but an old colleague. Many of the most reputable legal historians present at the conference knew Koselleck personally. 12 The same was true for his scientific works. Although to many Koselleck was, and still is, primarily a historian of concepts, in legal historiography Koselleck's theory of concepts in history was often approached with a touch of reluctance. However, his theory of Historik, the untranscended history of history, immediately rang a familiar bell within the ranks of the older generation of legal historians. 13 Hence, the chair of the session, Franz Wieacker (legal historian, and a colleague, whose works comprised an important point of reference to Koselleck's thought), 14 introduced Koselleck to the audience as the 'Master of the domination of the overarching context' [Meister der Beherrschung der übergreifenden Zusammenhänge], and implied that Koselleck had been invited to talk about themes beyond that of concepts in history. 15 Koselleck started his speech by asserting that 'justice' as an experience is an inherent element and even an aim of not only legal historical accounts, but all histories. 16 A sense of cathartic unfolding of the past and present injusticesa comprehension which is almost always grasped via its mere negation, that is, a certainty about the lack of justice in the present worldpreconceives the human understanding of the temporal world. Hence, to work toward repairing unjust conditions in contemporary reality is the ethically sound motive behind all writings of any historian, 17 even though that orientation often remains unsaid or even unconscious.
However, Koselleck's coupling of justice and history went beyond the level of the methodology of historiography or research ethics. In his speech, Koselleck strove to outline the basic building blocks of human historical experience, which were then inevitably reflected in all modes of historical writing. Hence, Koselleck starts his comparison between legal history and general history by deconstructing histories of all kind and then categorizing the 'repetitive structures' or 'anthropological possibilities' within the universal proto-experience of the temporal. 18 While reasoning on the inherent bind between justice and history, Koselleck simultaneously more or less summarizes the main arguments of his previous works to an audience that might or might not subscribe to a similar understanding as him concerning historiography as an expression of human temporality. The idea of temporality as a fluid condition that no history is exhaustively able to explain, was the starting point for young Koselleck in his post-war studies on society and historical change. 19 Hence, in his speech, Koselleck emphasizes that although historiography can be perceived as an attempt to present 'justice' in the temporal sphere, '[t]o interpret history according to criteria of justice is thus a necessary but never a sufficient' way of capturing the always changing yet awkwardly familiar historical experience. 20 This view of history was the research object behind Koselleck's monumental work on concepts. To Koselleck, concepts were excellent vehicles for representing and carrying forward historical experience in different contexts and distant times. Rather than being an end in itself, concepts could provide a window into the ambiguous appearance of historical experience. 21 Therefore, in his speech Koselleck arrived at a logical conclusion: as a discipline, legal history is especially able to study the repetitive structures in society, since paradigmatic ruptures in law occur at a different pace and are asynchronous to, for example, social or political historical development. The time of law and the time of society in general are two different things. 22 For further review in this article, three points are emphasized in Koselleck's speech. First, to Koselleck law in general was subject to a slower pace of change than, for example, political systems. Second, to a scholar of contemporary history like Koselleck, law as a normative system was only one sphere in the larger entity of administration. Administration was perceived as the interplay between the people and power in which the state apparatus strove to respond to the needs of the people while at the same time endorsing the state's legitimacy to rule over its subordinates and maintain the hierarchies necessary for any modern society.
Third, the legitimacy of law wasin the endrooted in its own repeatability. For example, to Koselleck, the legal reforms of nineteenth-century Prussia were successful since the officials responsible for the renewal were able to draw from the preceding legal tradition in building a new kind of normativity needed for novel modes of social life in the developing Prussia. 23 Legal scholars as the subjects of this legal development were able to find sufficient similarity between the legal relations in the past and the new patterns of social life in creating a normative framework that produced repeatable solutions for legal disputes. Koselleck asserts that in the legal context such transmission of past structures to the novel circumstances of the present and the foreseeable future is synonymous with justice. 24 The audience's reaction was cautiously positive. Clearly Koselleck's presentation was a 'powerful' and 'inspiring' approach to the multifaceted concurrence of change in law and in general history, but what exactly was this 'repetition' [Wiederholbarkeit] that Koselleck talked about? 25 The audience for the most part agreed with Koselleck that the history of a given legal norm could be studied separately, and the change in legal definitions marked a change in the more general sphere of social values and political aspirations. Moreover, the commentators consented, it was often fruitful to distinguish between the change in legal norms and the political history and analyze their interaction. But to legal historians, law was more than that. Koselleck seemed to suggest that not only norms, but also legal interpretation and thinking were subject to some form of justice, whose fulfilment all people searched for and striving toward that justice was a trait that repeated itself in history. However, and in the last instance, that 'justice' was doomed to forever reside outside the sphere of law and legal matters. 26 In other words, Koselleck explicitly abandoned all modes of universalism, but, nevertheless, seemed to suggest that a universal base directed human experience and that this allembracing foundation became evident in language, which also included legal concepts. Was Koselleck, then, for or against the universality of legal concepts?
Indeed, the ambiguity in Koselleck's works regarding the universality of legal concepts is especially apparent in Geschichte, Recht und Gerechtigkeit. That duality refers back to the very core of Koselleck's theory on concepts in history, and to his way of interpreting legal language as reflecting the noninstitutional, communal values of its contemporary society. This trait in his thought is often connected to Otto Brunner, but I would argue that in order to understand this area of Koselleck's oeuvre, one needs to widen the scope and study the influence of his other colleagues. 27 This means especially those legal historians close to Koselleck who, like Brunner, took Carl Schmitt's model of 'concrete order' as a methodological tool in their works on the relation between power, law and historical change, that is, the history of the state and its administration. However, concrete-order thinking was no more than a starting point for many studies in the 1930s. In order to understand the afterlife of this originally very vague discourse within German social sciences, as well as appreciate the evolution of Koselleck's theories, one has to study the subsequent 'concrete-order theories' within and against the social change of the early 1940s and 1968.

Koselleck within the circle of schmittians and the anti-universalist tradition
From the perspective of the evolution of Koselleck's theory on concepts, the significance of his article 'Historical Criteria of the Modern Concept of Revolution' [Der Neuzeitliche Revolutionsbegriff als geschichtliche Kategorie], published in Studium Generale in 1969, is pivotal. 28 Initially the 'Modern Concept of Revolution', was a speech that Koselleck gave at the annual Ebrach seminar in 1968, in the shadow of unprecedented social unrest, not only in the Federal Republic of Germany (FRG), but also across Europe. To many intellectual historians, the Ebrach seminars symbolize the continuation of certain dubious, pre-Second World War ideas in the FRG, and the seminars seemed to manifest the reluctance of conservative scholars to detach themselves from the forms of thinking prevalent in Nazi Germany. 29 The seminars were an attempt to preserve the social status that German scholars had previously possessed, and to evade the consequences of the state's interventionin the form of the denazification programme and the establishment of 'mass universities'in the highly romanticized 'academic sphere'. 30 Selective forgetfulness of Nazi atrocities was most evident in the case of Carl Schmitt, who, despite his fierce, well-documented, and unrepentant anti-Semitism and consequent expulsion from German universities, was the guest of honour in the (many) Ebrach seminars he attended. 31 The Ebrach seminars were arranged by Ernst Forsthoff, a legal scholar and professor at the University of Heidelberg. Most of the original conference participants had had some kind of connection with Schmitt before or during the war, but, in time, the Ebrach seminars expanded from a gathering of a small circle into a conference of not only older scholars, but also promising students of Schmitt's original group. The list of participants represents an exhaustive collection of first-class social scientists of the Federal Republic: from legal historian Franz Wieacker and legal scholar Werner Weber, to philosophers Arnold Gehlen and Joachim Ritter, along with newcomers like sociologists Niklas Luhmann and others. 32 Reinhart Koselleck was not just a casual acquaintance at the Ebrach seminars, but was instead a frequent contributor. For example, on 26 May 1970, Forsthoff wrote to Koselleck: It is time to think about this year's [Ebrach] seminar. The question of the overall topic has occupied me for some time.
[…] You have spoken on this topic under the aspect of historical studies and that encourages me to ask whether you would be willing to take part in the seminar this year, as so often before [.] 33 Koselleck and Forsthoff both worked at the University of Heidelberg, where Forsthoff had already taught Koselleck when the latter returned from war imprisonment in Russia and began his studies. They both firmly belonged to the core circle of 'Schmittian' scholars, and as late as 2003, Koselleck acknowledged in an interview that Forsthoff had been one of the most influential teachers in his career. 34 So it is understandable that their relationship was scientifically important and active, but in the late 1960s and early 1970s (Forsthoff died in 1976) they were also colleagues in the field of administrative history. Koselleck edited the journal Die Verwaltung (Administration) with Forsthoff, and in his letters to the contributors of the journal, he introduced himself as an administration researcher. 35 On legal and historical studies on administration there was hardly a more learned mentor for Koselleck than Ernst Forsthoff. As early as 1933, Forsthoff had published Der totale Staat in which he experimented with fascist ideas and sketched a utopian form of administration. 36 Whereas German legal science as a whole could not boast of having kept itself at arm's length from National Socialism, Forsthoff's involvement in the 1930s Gleischaltung [political synchronization] was obvious. He drew from nationalistic ideas on the distinguished mode of German sociability, in accordance with Carl Schmitt's presentation of 'concrete order', and combined these elements with legal sophistication and undisputedly anti-Semitic references. In short, Forsthoff's Totale Staat belonged without doubt to the 'New Legal Science' movement of the first years of the Nazi regime that contained young legal scholars like Forsthoff, Werner Weber and the so-called Kieler Schule (including, among others, Franz Wieacker and Ernst Rudolf Huber). 37 The foundational experience for the 'New Legal Science' in the early 1930s, which later became the bedrock of their post-war works, was the lingering 'crisis of justice' of the bourgeois world. Rather than coupling this 'crisis' with the emergence of totalitarian ideologies of the interwar years, the young scholars of the 'New Legal Science' interpreted their own 1930s association with National Socialism as an attempt to repair the long-lasting incompatibility between social reality and law. 38 The primary aim was to 'purify' and redefine national jurisprudence, to strip off the 'liberal' infiltration from legal language, akin to the contemporary 'völkisch revolution' that was taking place in other spheres of society. 39 An explicit target for the scholarly endeavours of the 'New Legal Science'in their programmatic assault on established legal conceptswas the nineteenth-century 'jurisprudence of concepts' [Begriffsjurisprudenz] and its intellectual heirs. 40 The jurisprudence of concepts had attempted to construct a hierarchical and universal system of carefully drafted terms that would cover all legally regulated activity and under which all legal cases could be subsumed. 41 In opposition to these 'liberal' legal theories, and inspired by Martin Heidegger's deconstruction of the philosophical act, and, even more so, Carl Schmitt's critique of legal positivism, the members of the 'New Legal Science' were self-declared anti-universalist. 42 To the 'New Legal Science', concepts were 'symbols' and embodiments of scholarly craft that arose from both communal virtues and national experience. The young scholars of the 'New Legal Science' were assured about the revolutionary nature of their ontological innovationthat the historically materialized values of a given community were inseparable from the language of its legal normsand genuinely believed that the principle offered a touchstone to study all distinct legal cultures in time and space. 43 Hence, in their declarative anti-universalism, scholars of 'New legal science' in fact studied the universality of law through distinguished (and hypertrophied) nationalism.
From the perspective of Forsthoff's influence on Koselleck, it is not particularly significant that the former had 'traveled along' with National Socialism. More relevant was that 1) unlike many contributions to National Socialist legal science, Forsthoff's draft on the 'comprehensive administration' was genuinely original and it could be used (and Forsthoff did use it) in further outlines of the normative relation between the state and the people. 2) Forsthoff had sincerely believed in the social model he presented in Totale Staat. That the fascist government had no use for his (and his colleagues') legal elaborations on more sophisticated forms of administration, served as an eyeopener to him about the criminality of the Nazi system to such a degree that Forsthoff found himself in serious trouble with the Gestapo. 3) In his disappointment and forced reformulation of his ideas, Forsthoff was not alone. Indeed, reorientation became a key experience for the whole circle of young scholars loosely connected to Carl Schmitt. 44 In a way, with their reformulation process during the late years of the Second World War, the members of the 'New Legal Science' movement were pioneers in the metaphysical turnaround that after the war extended to German legal science as a whole. But whereas most legal scientists implemented that paradigmatic shift by incorporating religious, mostly Catholic, ideas and vocabulary into their scholarship, 45 the 'young lions' -Forsthoff, Wieacker and Huber most notablywere more hesitant in taking a spiritual direction and instead emphasized the significance of an existential reading of history as a heuristic tool in legal science.
Hence, for the members of the 'New Legal Science' their 'revelation' of the early 1940s was not merely a methodological reorientation. It became a key experience in the light of which they evaluated the political and social development of post-Second World War societyin the FRG and beyondas well as reconstructed the meaning and essence of scholarly work (that is, legal language) within societies and in history. On their subsequent quest to uncover the 'anthropological' 46 foundations of legal science, the former prophets of National Socialist legal renewal reinstated the universal foundations of legal science. Science (Wissenschaft) was now itself the immovable and invariable base for universally binding law. A scientifically cultivated (Bildung) mind was able to 'experience law' in a way that enabled just and accurate interpretations of legal traditiona way of drafting and dispensing law which was universally adaptable across time and space. As long as the older generation of scholars was able to continue their work and study at the German universities as usual, there was no reason to challenge this Weltanschauung forged in the disappointments of the 1940s.

The Ebrach seminar of 1968: Koselleck and the crisis of the old scholarly world
In the end, and inevitably, the turning tide of public opinion also became a reality at German universities. The students demanded changes in higher education and a comprehensive working through of the heritage of the Nazi years that still resided in the academic sphere. Ernst Forsthoff was one of the first academics in the line of fire. In 1967, and in lieu of sacking, he chose to retire from his position as Professor of Public Law at the University of Heidelberg. 47 To the conservative professors of the older generation (even ones with a Nazi past) 1968 appeared to be a reoccurrence of the events and atmosphere of 1933. The older professoriate attempted to connect the recent conflicts and the motives of the student demonstrators to the general post-war narrative that explained the relationship between German academia and National Socialism as a climax in a modernization process that had endangered the centuries-old independence and scientific cultivation of free will in the scholarly world. 48 Again in 1968, like so many times before, it was felt that science (Wissenschaft) was under attack, and again it was being attacked by younginexperiencedpeople in alliance with totalitarian ideas, namely Marxist infiltrationists. Thus, the explanation went, it was necessary for the conservative and older generation of scholars to defend the universal character of their knowledge production as a counterforce to the relativizing attacks of students and communists. 49 Hence, for the theme of the Ebrach seminar in 1968, Forsthoff chose a telling topic: 'Beyond Restoration and Revolution'. 50 Reinhart Koselleck had promised to speak at the conference, and on 6 July 1968, Forsthoff sent him further instructions and elaborations on the overall theme of the 1968 seminar: 'Beyond Restoration and Revolution', necessitates a certain explanation. It underlies the following notion. The development of this century indicates that science [Wissenschaft] increasingly determines human selfconception. 51 In Forsthoff's abstract, the acquisition of the human world by 'science' was both a millennia-old transition, but also a tendency that had significantly accelerated during the decades following the end of the Second World War. 'Science' as Wissenschaft, when expressed as being related to the abstract values of the academic world and education (that is, Bildung), was perceived as something valuable and noble, a nostalgic trait from the foregone world of the educated middle classes (Bildungsbürgertum). Yet, 'scientification' (Wissenschaftlichung) meant overrationalization, the superiority of natural sciences, bureaucratization and, in the end, totalitarianism. Although to, for example, Franz Wieacker, National Socialism had been a form of 'scientification', to Ernst Forsthoff in 1968, the real-life embodiment of 'scientification' was communism and the theories, ideas and methods it represented and furthered. 52 Forsthoff continued: The result of this, by now widely attained, development is made up of the destruction of the subjectivity's overindividual ties to religion, nation, state, family, etc. The subjectivity is alone with itself. It confronts a social and political reality, which is the creation of this newly superseded science [Wissenachaft] and whose meaningful further development cannot be considered without science [Wissenschaft]. 53 Again, 'the contemporary crisis' in Forsthoff's formulation did not mean a mere challenge by the totalitarian political regimes nor an 'unnecessary wallowing' in the Nazi past, but what the scholars witnessed was a fundamental discrepancy between the individual consciousness and the world of human affairs. It is revealing that the crisis at hand, as conceptualized by Forsthoff, was described as the same dilemma that the 'New Legal Science' had attempted to illuminate earlier in the 1930s. The crisis affected the ambiguous bind between the individual will and the 'beyond-individual' norm regimes of e.g. the state, family and religion as laid down in the word of law and amid the changing national history. 54 At the centre was, as in the past, 'science', but not as a collection of valueless, expert-statements, but 'science' as a worldview and existentialist pursuit for the true conditions of 'being in the world'. 55 At the surface level, to Forsthoffas it was for Franz Wieacker and Carl Schmittthe crisis of universalism was a non-existent issue, since they vehemently rejected the possibility of any universality of legal or political concepts. Schmitt hated the notion of universalism, and repeatedly asserted that drafting universally applicable legal concepts was impossible. All legal concepts were in the first instance derived from and subordinated to political order that, obviously, had no universal character. Nor were the post-Second World War attempts to incorporate a natural law basis as the foundation for a workable international legal order any more fruitful. Furthermore, to base one's legal argumentation on a hierarchy of values (like, for example, Max Scheler had suggested) was simply not possible, since, in the end, such self-standing and immutable values did not exist. In 1960, Schmitt published his essay collection The Tyranny of Values, which honed his already powerful assault on universalism as an idea, attacking jurisprudence that was based on vaguely defined 'values' and a historical and spatial determination of concepts. 56 He dedicated the book to the 'Ebrachers', signifying that not only had he discussed these themes in many Ebrach seminars, but the other participants had contributed and had supported him in sharpening the argument found in his book.
In 1968, however, the true-blue anti-universalist circle of the 'Ebrachers' were forced to rethink their narrative, and Forsthoff ended his formulation of the theme of the 1968 Ebrach seminar as follows: circumstances that are meant by the formulation of this topic [of the seminar]a formulation which for the time being may sufficeare such that cannot be categorized anymore with 19th-century concepts. First and foremost, the question arises as to whether man is by nature such that he is able to live in a thoroughly rational world, whether he is able and willing to adapt to it. Furthermore, one asks how politics can still function under the specified conditions, what role is left for the state, and what follows from all this for the science [Wissenschaft] that is being institutionalized in universities. 57 Forsthoff emphasized that the seminar was not supposed to concentrate just on the recent conflicts and sackings at German universitiesalthough it is obvious that they were the initial cause for the need to rethink the general principles of scholarly work that the seminar represented. The anti-universalist structures of their conservative world had been shaken, or to be more precise, the nonexistent universalism on which they had built for decades and had used as an explanative framework no longer sufficed. One has to give credit to Forsthoff, however, for his apparently sincere effort to find some novel means to comprehend the changed circumstances in a way that would be scientifically feasible and intellectually fruitful. Nor had the crises of 1968 reduced his belief in the power of language: The way out of the contemporary crisis was to abandon the old concepts and conceptualize the world anew. 58 Koselleck's 'The Modern Concept of Revolution' appears to be a perfect answer to Forsthoff's call for a new conceptualization in the footsteps of older theories. Koselleck contextualized his contribution in the framework of Forsthoff's abstract, and in the frame of mind shared by the Ebrach seminarians, by presenting the original ideas of 'revolution' and 'restoration' as interchangeable terms for a temporary episode of constitutional mutiny. In the political and social reality of pre-Enlightenment societies, Koselleck asserts, revolutions and restorations marked a sequel during which the legitimacy of a given legally constructed political system was questioned: '[I]t was for both [revolution and restoration] a matterterminologicallyof the restoration of ancient law, of a return to the true constitution.' 59 The outspoken legitimacy of a revolution would later then become the 'legal title' against which the next revolution (or restoration) would fight. The legally defined Ständesstaat [estate society] ruled before and after any revolution. Law and the political constitution of a society proceeded at a different tempo, yet they were related in a way that sowed and harvested predictability and restrictions against excessive violence. 60 In the 'epoch of the Enlightenment', Koselleck argued in 'The Modern Concept of Revolution', the abovementioned framework, in which 'revolution' and 'civil war' were always understood as interconnected, would change for good. The concept of revolution was redefined to include social emancipation, 'a transformation in which the subjects themselves become the rulers', and it was further constructed in opposition to 'civil war'. As a result, what used to be a 'naturalistic' definition became a 'historicophilosophical category'. 61 In pursuing revolution, people no longer prepared for a civil war. This did not, however, eradicate civil wars; on the contrary, their causes and consequences became blurred in a way that the world now entered an era of endless, expanding civil wars. 'Revolution', a term that had previously denoted a temporary and local uprising against a legal title, received a new meaning as 'permanent' 'world revolution '. 62 Hence, the notion of the Schmittian Weltbürgerkrieg [world wide civil war], is the precise starting point from which Koselleck perceives both the past and his contemporary society. Koselleck holds on to the pessimistic vision of his 1954 dissertation Kritik und Krise of a contemporary society enslaved by universal, secular and historicist eschatology: a world doomed to live in the future, and in anticipation of a cathartic alleviation of contemporary injustice. 63 The problem with the world was not so much the warring, but the universalist aspirations and ideologies that disguised and glossed over the dog-eat-dog reality. Moreover, in 'The Modern Concept of Revolution' and in line with the conservative world view, the easily detectable scapegoat for the tragic situation of 1968the unleashed revolution that had been disguised as a pursuit of universal salvationwere far-left socialists. Not only did Karl Marx significantly further the 'metaphorization' of the concepts of the Enlightenment, but also in concrete terms, no one was more active in promoting and fighting for unrestrained revolution than twentieth-century communists. 64 Furthermore, three themes in 'The Modern Concept of Revolution' connect it to the legal scientific discourse of the 'Schmitt school'. First, the asynchronous development between law and political development provided a special position for legal interpretation in society, but also chained law to its counterpart, administration. An empirical historical example of this socio-legal model was Germany (Prussia) before unification, which was then extended to different regions and times. 65 Secondly, in 1968 Koselleck argued that the actual legitimacy of a given social constellation was included in the language with which it defined its fundamental legal relations. 66 In other words, legal concepts themselves contained the possibility of their inner collapse. When foundational legal relations, that to Koselleck comprised the constitutional social orders of societies, altered, they unleashed destructive 'anthropological' and 'group-psychological' forcesencapsulated in the opposition between e.g. friend vs. enemy, or property and possessionthat legal concepts sought to hinder, deactivate and direct. The erosion of the legitimacy of legal concepts meant the takeover of the same 'primitive' beliefs and feelings that they sought to regulate. Here Koselleck draws heavily on the discourse that Franz Wieacker and Ernst Forsthoff had significantly contributed to. 67 Third, emblematic of Koselleck's 1968 contribution, in accordance with the anti-universalist works of his conservative legal scholar colleagues, is that it seeks universal foundations for its conceptualizationsdespite explicit declarations to the contrary. Just like Franz Wieacker sought the 'beyond historical' roots of justice with his concept of 'legal conscience', or Ernst Forsthoff claimed that all administration could be studied through the notion of Daseinsvorsorge, 68 although both in their works specifically denied universalism as a virtue. 69 In a similar vein, Koselleck denounced the communist universalists in their pursuit to turn the concept of revolution into a self-fulfilling and expanding prophecy under which banner every conflict and progress around the world could be placed. Koselleck himself, however, still searched for a 'direct experience' of the 'modern' behind a concept of revolution that stayed the same despite the varying political contexts in which the concept was used. There was 'ubiquitous semantic potential in the word', Koselleck admitted. 70 In short, what in very end differentiated the conservative anti-universalist from, for example, their colleagues working on natural law, or even socialist legal scholars, was the virtuous foundation of 'science'. The anti-universalists used their universal concepts to dismantle all universalism in the name of Wissenschaft and in the light of their common experience of the early 1940s.
Koselleck's contribution was, nevertheless, groundbreaking and went 'beyond' that of the works of his colleagues at least in one particularly original way. Koselleck writes in 'The Modern Concept of Revolution': For the modern professional revolutionary, the determined struggle by legal as well as illegal means belongs to the anticipated course of a revolution; the revolutionary feels free to use any means available because the revolution is, for him, legitimate. The elasticity and pliability of a historicophilosophical 'reinsurance' depends on 'the Revolution' providing a lasting title of legitimacy in the form of a metahistorical constant. 71 The legitimacy of the modern concept of revolution comes from anticipation. Unlike the models of his colleagues in the field of legal science, Koselleck's legal concepts were historical in the sense that they included temporal change in themselves: both the anticipation of the probable course of history and the poised orientation that resulted from past events. Any legal concept contained within it a future expectation and a past experience, and moreover, its legitimacy was based on that temporality.

Conclusions
This article has sought to shed light on the relationship between the ideas of Reinhart Koselleck and legal historical discourse as represented by the works of Ernst Forsthoff and Franz Wieacker. In concentrating on the turning point of 1968, the more general trends of evolution and temporal change were scrutinized both in the works of Reinhart Koselleck and in the stance championed by his colleagues in the field of legal history. In depicting that change, I concentrated on the theme of legal language in societiesas historicized by Koselleck and his colleagues. So what role did the universality of legal concepts play in Koselleck's works on one hand, and in the German legal historical discourse on the other?
From the viewpoint of my elaboration it is clear that the basic concepts of 'revolution' and 'restoration' (as defined in Koselleck's 'The Modern Concept of Revolution') originally derived their dynamic from their legal dimension. Furthermore, that core had its point of reference in the contemporary and prolonged 'crisis of universalism' as experienced by Koselleck and the scholars of the 'Schmitt school'. 1968 represented a terminus for the nostalgic mindset of the older generation of participants in the Ebrach seminars.
As Jürgen Habermas has asserted, the assault on universalism as an ideal by Carl Schmitt and his 'school' fell short for the very reason that Schmitt could not help but use universal conceptualizations in his nihilism. 72 The same oscillation was characteristic of Koselleck's speech in 1968. He argued that conceptsdue to their legal characterwere ubiquitously obliging and self-fulfilling and at the same time he rejected any possibility of universally applicable concepts. I submit that this double bind, that according to many critics characterizes the whole methodological basis of Koselleck's conceptual history, 73 can be traced back to that ambiguous intellectual context of Koselleck's early articles on concepts in history.
Yet Koselleck's speech in the 1968 Ebrach seminar was not just a swansong of a rapidly crumbling conservative and self-deceiving worldview, it also contained the embryos of his theory of history. In his elaboration on how concepts in addition to being constituted on a temporal dimension, acquired their legitimacy through the simultaneous existence in the past, present and the anticipated future, Koselleck outshone his colleagues. Schmitt, Wieacker and Forsthoff had toyed with the same theme, but not with the sophistication and luminosity that characterized Koselleck's presentation.
Hence, when Koselleck again presented his ideas to legal historians in 1986, the audience was both inspired and suspicious. It was not just that Koselleck had further elaborated his ideas, it was also the fact that the audience for the most part no longer saw legal reality in the way it had seemed in 1968. The prior message in Koselleck's Rechtshistorikertag speech would appear to promote some kind of comprehensive research stance on law and history. This stance would have been anchored in a learned interpretation not far from that virtuous mindset that had epitomized the way 'beyond' in the Ebrach seminar of 1968. But to propose that in 1986 to a group of legal scientists, whose professional self-understanding was founded on a strict separation of their field from 'politics' and on cherishing the distinct nature of legal learnednesspartly as a result of learning from the mistakes of the generation of Koselleck's teacherswas a hard sell.
In contrast, the repeatability of law in relation to other spheres of society was the theme that inspired and intrigued the audience most. 'Repeatability', which in 1968 had been nothing new, was now something fresh and was a conceptualization that enabled the participants of the 1986 Rechtshistorikertag to rethink their disciplinary paradigms. 74 Notes