Guilt About the Past Read online

  Prudence and Corruption

  1970 was a year that divided two different political climates. In the sixties, foreign affairs were full of conflict and tension, but there was much hope in domestic affairs. The sixties saw the construction of the Berlin Wall, the Cuban missile crisis, and the escalation of the war in Vietnam. At the same time, they saw Kennedy’s New Frontier and Johnson’s Great Society in the US, liberal, social democratic and socialist governments replaced conservative administrations across Europe, and on both sides of the Atlantic students protested against rigid institutions and for peace and the power of love. In the seventies the situation was reversed; the years brought the end to the Vietnam War, détente between East and West, and an easing of tension in the Near East, but domestically conflicts intensified; peaceful student protests descended into violent demonstrations and were met with an increase of government repression, each feeding off the other.

  Of course, the major shift between the sixties and seventies did not happen all in one year. In 1970, however, there were events that symbolically presaged it: the National Guard was sent in against demonstrators at Kent State University, Ulrike Meinhof helped Andreas Baader escape from prison, starting the terrorist Baader-Meinhof group, Willy Brandt kneeled at the Memorial of the Warsaw Ghetto Uprising. Just as pressure built up by gradual tectonic movement is suddenly released in earthquakes, the change in political climate erupted in a storm of demonstrations.

  In 1970, young people took to the streets all over the world, as if a better world could be found there. In Germany, they demonstrated against the American engagement in Vietnam and Cambodia, for the students shot down at Kent State University, against Apartheid in South Africa, against the construction of the Cabora-Bassa Dam in Mozambique, for the workers shot in Gdansk, out of joy over Lenin’s one-hundredth birthday and Allende’s election victory, out of sadness for the deaths of Jimi Hendrix and Janis Joplin, for reform in the universities and education system, for cheaper public transportation, against the strengthening National Democratic Party, in Frankfurt for a better police, in Dortmund for the mini-skirt. They demonstrated with serious purpose or as a joke, militantly or playfully, often with absurd overestimation of their significance and sometimes even with ironic distance to themselves.

  On 19 June 1970 there was an international conference on development policy strategies in my hometown Heidelberg and the President of the World Bank, Robert S McNamara, participated. The students of the SDS, the Socialist Union of German Students, were outraged; in their eyes development policy strategies were capitalistic and imperialistic, and the presence of the one-time American Secretary of Defense was a provocation. They organised a demonstration that was supposed to ‘break up’ the conference, and the police prepared themselves for a violent confrontation. As some of the demonstrators tried to storm the Hotel Europäischer Hof where the conference was being held and were driven back by the police, a street battle ensued during which demonstrators pelted the police with paint bombs, wooden slats and stones and the police countered with water cannons, tear gas and truncheons. There were injured demonstrators and injured police officers, several students were taken into custody for a short time, and a member of the SDS was charged with attempted manslaughter for having hurled a piece of iron at a police officer. He was taken to prison, which led to further demonstrations and to further use of tear gas. Naturally, the students and the police disputed the details of what actually happened and who was responsible for the escalation of violence. But it was indisputable that the violence on either side had escalated in a way Heidelberg had not seen before – even though all the injuries were treatable on an outpatient basis and the charge of attempted manslaughter was soon dropped.

  Across the street from the Hotel Europäischer Hof is the University of Heidelberg’s law school. On 19 June its doors were carefully supervised; it was not supposed to be affected by any street battles. When two young female students sought entry they were reluctantly let in. One, an education major, had been beaten by the police, lost her glasses, was distraught and crying; she was brought into the law school by the other student, a law student, so she could freshen up and calm herself down. As they both came out of the restroom and wanted to leave the building, they found the doors were locked and Professor S wanted to know who they were. The law student gave her name and semester. But why did he ask? The education student snapped that he should keep his mouth shut and let them get out. Did she also call him a ‘filthy pig’ as Professor S reported to the Heidelberg press? In any case, he slapped her across the face and then, according to the students’ report, he became enraged and struck the education student again and again. According to Professor S’s report both students left the law school without further incident after the slap.

  There was no legal consequence to the incident; the district attorney’s investigation against the professor was dropped and an investigation against the education student was never opened. But there was a consequence of a different kind. On 22 June, the law students held a plenary meeting in response to the events of 19 June. Not all the law students were gathered but the politically active ones were there, especially those from the Basis Gruppe Jura, the association of radical-left law students at Heidelberg University in those days. They resolved that ‘S no longer lecture’. A professor hit a student – the students did not want to let him get away with it. And they especially did not want to let this particular professor get away with it since in previous years he had attacked the students’ representation for their political position and had refused the Basis Gruppe the use of law school rooms that other student groups had enjoyed. He had fought them politically, using the law as a weapon while simultaneously preaching the apolitical formality and neutrality of the law. And in 1938, he had recognised the will and command of the Führer as the source of all law.

  On the 24 June, shortly after 8 am, the yard in front of the main university building was crowded with students as Professor S tried to enter to teach his class. Most of the students wanted to prevent him from going in, but there were also some who wanted to procure his entrance. One of his colleagues and several assistants accompanied him to offer him their support and to witness everything that happened, and the vice rector of the university was at the ready to diffuse the conflict and to guarantee that the class could take place. The stage was set for the usual drama of the time: an exchange of indignant and enraged words, screaming and tussling and, at the end, the professor’s retreat, or, perhaps arbitrated by the vice president, the students’ exit. But instead of this little political mini-drama, a personal vendetta was performed. A friend of the student who had been slapped, a chemistry major, sprayed Professor S from behind with a rancid liquid. The stench was intense, the students were aghast, and the professor feared chemical burns and other injuries. That was it for the class and the blockade; the professor let himself be taken to the hospital and the students dispersed.

  The liquid turned out to be butyric acid, non-corrosive, non-injurious and only foul smelling. But in the portrayals that followed, the event gained a more and more dangerous timbre. The faculty of the law school stated that Professor S ‘was forced to submit himself for medical treatment’, he himself insisted that he was ‘injured’, and a magazine reported that ‘suddenly the professor felt a horrible burning sensation on his back. He doubled over in pain.’ Everyone waited for the official statement of the attending physician, a professor in the medical school; he chose to remain silent citing the doctor–patient privilege of confidentiality.

  One of the students who wanted to block Professor S’s entrance to the university on 24 June was Volker N. Professor S and other professors later accused him of being the ‘ringleader’ of the Basis Gruppe and of ‘plotting’ the blockade. But the Basis Gruppe was a loose association of students without official members and official leaders and the blockade had been planned at a plenary meeting. Yet among the members and supporters of that gr
oup, Volker N was certainly the most theoretically advanced and the most articulate.

  I got to know him as an interesting opponent in seminars and then later when we sometimes met privately to spar over questions of state and constitutional legal theory, about the role of law and the use of force and about the writings of Carl Schmitt and Walter Benjamin. I was a law clerk and not a student any more, but still attended some seminars at the university and in the law school. For the left-leaning students I was a ‘damned liberal’, meaning one of those who recognised the necessity of reform but who accepted the political and economic system and put faith in the law to solve problems equitably. I rejected violence and also forcing discussions in the middle of lectures, blockading them and disrupting them. But I was also appalled by the legal aggressiveness that the law school professors used to fight against everything that did not suit them politically. They found the political mandate of the students’ representation legally acceptable as long as the students took positions that were against communism, in favor of a unified Germany and European unification. But they were not above exploiting the law to resist the students when their opinions were against the Vietnam War or in favour of governmental and societal reforms. As the students became more radical, the professors regarded themselves as increasingly surrounded by enemies against whom they could only win or lose. They had lost their confidence in the reflective and constructive strengths of the university, and instead relied on the state and the police.

  The student movement came to an end in the early seventies, in the middle of the eighties it became the subject matter of historical study, and by the early nineties it was only a distant, weak memory. Heidelberg had long since returned to being the peaceful, pretty university town it had been at the beginning of the student movement. Germany was no longer divided or subject to the tensions of straddling East and West. We know today that the world did not see a reduction in political tensions and catastrophes at the end of the Cold War. But in the early years of the nineties it seemed for a while as if it had and as if most of its problems could be solved through diplomacy and law enforcement.

  In the meantime Professor S, along with most of the other professors who had been at the centre of the conflict in 1970, had become professor emeritus. Volker N passed his first and second state exam, wrote a doctorate, started a career as a lecturer, and at the end of 1991 completed his habilitation in public law at the law school of the University of Frankfurt. I was teaching at the University of Frankfurt at the time and, along with my Frankfurt colleagues, I signed the recommendation to admit Private Lecturer Dr Volker N to the Association of German Constitutional Law Professors.

  The association, founded in 1922, disbanded in 1938, and re-established in 1949, is the leading organisation for German constitutional and administrative law academicians. Practically all professors and private lecturers who teach public law at German, Austrian and German-speaking Swiss universities are members of it. Whoever is not recommended for membership, or is not accepted despite recommendation, suffers long-term damage to, if not complete ruin of, his or her career. To be invited to make a presentation and to give a decent presentation at an annual conference are crucial steps for one’s career. The topics of the presentations, sometimes more political, sometimes more doctrinal and practical, sometimes more theoretical, reflect what the association and often the society are concerned about at the moment. The presentations are conservative rather than innovative in tone, and this corresponds to the conservative undertone of German public law academicians. Indeed, lawyers never march at the forefront of change. An appreciation for tradition and its power to keep order and stabilise is inherent in the teachers of public law as well as in those who teach civil and criminal law. Constitutional and administrative jurisprudence is, however, traditionally especially conservative. Jurisdiction in matters of constitutional and administrative law was created substantially later than jurisdiction in civil or criminal law. Fighting in court over matters of administrative law only came in the late ninteenth century, and over matters of constitutional law in the mid twentieth century, while in other areas of the law it has been common since the middle ages. Therefore, in the exchange of ideas between academia and practice, in civil and criminal law, the academic has always had, besides the judge, the conflict-happy practising attorney as their partner. In public law the academic’s partner was and prominently still is the conflict-averse civil servant whose concern is the smooth functioning of the state and its government and administration.

  The by-laws of the Association of German Constitutional Law Professors regulate admittance. The process is commenced through written recommendation of at least three members. Thereupon, the executive committee offers membership to the recommended scholar, except if there are doubts about whether the membership requirements have been fulfilled, or if at least five members raise an objection or request an oral debate concerning acceptance. The debate then takes place at the annual membership meeting.

  There were forty-nine objections or motions for oral debate filed with the executive committee in response to the recommendation signed by eight of the Frankfurt members to accept Volker N for membership. This was an astoundingly large number of members who became active against Volker N’s admittance. There had never been anything like it.

  Professor S and the colleague who had accompanied him at that time on the way to class raised the first two objections. Their objections described the blockade, stated that Professor S had been ‘injured’ and an ambulance ‘had to be’ found. That Professor S had slapped or even beaten a female student beforehand, that the liquid was harmless and that Volker N was no more involved in the blockade than hundreds of other students was not mentioned. Professor S argued that because Volker N could be characterised as a ‘conniving political functionary . . . exhibiting consistent ruthlessness [and] cold recklessness’, who ‘had practised illegal uses of force against members of the association’ and had ‘violently fought against the academic freedom to teach’ he would be ‘intolerable’ as a member.

  The objections that followed sometimes employed even stronger language. What Volker N had done, one said, would imply ‘a fundamental negation of our constitutional law’, and whoever acts as he did would place himself ‘outside every civilised society and is especially incapable of taking part in the scholarly pursuit of law’. Some threatened to withdraw their membership if Volker N were allowed in. Several tried to build bridges, suggesting that Volker N could be accepted if he apologised to Professor S. Naturally, some made the lawyer’s favourite motion for when matters get difficult: the decision should be deferred. Only a few letters to the executive committee expressed their support in favour of Volker N’s acceptance. The executive committee itself did not take a position.

  The cards were dealt. The annual conference of the Association of German Constitutional Law Professors took place in October 1992 in Bayreuth and commenced, as always, with the afternoon membership meeting. The room filled up quickly with 165 members, the chairman opened the meeting and the debate began. It did not go well. Many who had submitted letters of objection again called for the rejection of Volker N’s acceptance. They were not only more numerous than those who spoke up for his acceptance, they also received the stronger applause. I looked around: even the younger colleagues were applauding the older ones who were talking once again about the attack on academic freedom to teach, criticising the lack of an apology in the meantime, or saying it would be too much for Professor S to be in the very same organisation as Volker N.

  Those who supported Volker N’s admittance referred to the by-laws. The conditions for membership required only ‘outstanding academic performance’ and activity ‘as a researcher and teacher’. Volker N’s scholarly works were mentioned wherein nothing blameworthy and nothing hostile to the constitution, democracy and rule of law could be found. The earlier forbearance of the Association of German Constitutional Law Professors, who in the
fifties had without problem accepted academicians tainted by national socialism, was recollected. In my own statement I described the situation in Heidelberg in the early seventies as a university-level civil war, and called to mind that a civil war finds its appropriate ending in an amnesty that leaves the questions of law and guilt behind, lets them fall prey to being forgotten and thereby establishes the grounds for a new coexistence.

  No one spoke about what actually happened in the summer of 1970. No one mentioned that Professor S had slapped a female student and that the ensuing students’ blockade of his class was the students’ response to it. No one spoke about the impertinence of bringing up a story more than twenty years old as if there had been no historical context for it, or as if a professor’s behaviour were sacrosanct for students, or as if the Association of German Constitutional Law Professors had committed itself to the political position of the objecting professors’ generation and would have to continue its political struggles indefinitely. Instead our arguments for admitting Volker N were peaceable and conciliatory. Without having come to any previous agreement, each of his supporters talked about the conflict that erupted after the objections as something really so small that it appeared entirely out of proportion to deny Volker N his acceptance on that account.