Guilt about the Past (5 page)

If truth and reconciliation are the goals, then truth is the prerequisite for reconciliation. In the South African Truth and Reconciliation Commissions the perpetrators were supposed to genuinely confess their deeds to the victims if they did not want to have their amnesty stripped from them – a threat that was seldom enforced against the perpetrators, just as the promised reparations for the victims seldom came through. If there was any success at all to awaken a readiness to reconcile between the participants it was not due simply to truth. Reconciliation succeeded when the perpetrator presented him- or herself genuinely, listened and provided answers, withstood the victims’ outpouring of emotion and did not hide their own feelings. In order to acknowledge the perpetrator as an equal and to reconcile with them, the victim has to understand the perpetrator, even if they can understand them only in disbelief or in disapproval. Reconciliation requires a truth that can be understood; it requires understanding.

That is not the case with forgiving and condemning – and it is obvious that forgetting and understanding are not compatible. Whoever wants to forgive someone is free to understand or not to understand them; the victim does not owe the other person any understanding. Forgiveness may help them make peace with themself more than with the other person with whom they finally wish to reach closure but without getting involved or understanding. Condemning also works without understanding: in earlier legal systems knowledge that the perpetrator committed the deed sufficed for judgment to be made against them, and today the law only requires knowledge that the deed was committed knowingly and intentionally, or sometimes negligently.

This is not to say that understanding is completely unrelated to condemning and forgiving. The more one understands, the more one is enticed into forgiveness and led away from passing judgment. A verdict without an understanding of the perpetrator, their circumstances, motivations, and limitations is not easily accepted today as a just verdict. Such understanding connotes insight, particularly into the causes of the deed that were outside the perpetrator’s control, and it becomes increasingly difficult to pass judgment against the perpetrator for the deed as an expression of their own free will. That is what is meant by the aphorism ‘
tout comprendre c’est tout pardoner
’. It has an even deeper meaning, since true understanding is more than searching for and finding causes. It includes putting yourself in someone else’s place, putting yourself into someone else’s thoughts and someone else’s feelings and seeing the world through that person’s eyes. How then could you condemn the other, how could you not forgive, if you empathise with them on that level?

Thus, understanding does not have only positive connotations. The aphorism is often quoted with ironic condescension and as a warning: whoever thinks and feels understandingly is giving up the distance needed to make dispassionate assessments and clear decisions; he or she gets caught up in the mire of forgiving indecisiveness and permissiveness and becomes unsuited to the necessary harshness of condemning. Condescension and irony aside – tension necessarily arises for those who want to understand the perpetrator in his or her crime. The tension exists especially for the perpetrator’s children and grandchildren; they know that their parents and grandparents should be condemned but they still love them too much, know them too well, not to want to understand them and, in their understanding, they tend towards clemency. Between wanting to understand and having to condemn they can find no really workable course of behaviour. It is as if understanding would contaminate the pure business of forgiving and condemning, and it begs the question of whether it does not discredit itself as a precondition for reconciliation.

But understanding’s weakness is exactly its strength. Connecting ourselves with the thoughts and feelings of others, although they may be completely different than ours, establishes equality; just as interpreting their rationality in the light of our own, despite major differences, creates parity. Understanding allows us to see that we are equal with others and can experience, empathise and share in their rationality, empirical and normative expectations, thoughts and feelings. We make them equal to us and us to them; we build up society when we understand. Since understanding makes us more hesitant to pass judgment and more forbearing and tending toward forgiveness, understanding brings reconciliation a step closer. The foundation for reconciliation is laid by understanding because it works against all that separates us and toward all that would bring us together.

The ground can slide away and attempts at reconciliation can collapse. While forgiving and condemning settle the consequences of a deed once and for all, and forgetting a crime settles it with the proviso that what has been forgotten can also be remembered again, reconciliation heals only as well and persists only as long as the participants understand each other and acknowledge each other as equals. When the effort at mutual understanding becomes too much for them, if an old injury remains a current source of pain or if it resurfaces through an accidental or a provoked event, or if an outside pressure to acknowledge the other as an equal falls away, then reconciliation again can fail – between peoples, within societies, and in relationships.

This is the problem of reconciliation based only on truth and understanding that forgoes the power of closure that condemning and forgiving offer. The work of the South African Truth and Reconciliation Commissions was often regarded with some scepticism because it was not flanked by judgments against the perpetrators who refused to cooperate and by restitution for the victims. To be sure, restitution does not have the power of closure like forgiveness, but it contains a request for forgiveness and makes forgiveness easier to grant. Passing judgment does not necessarily have to be pursued through legal proceedings in a court of law in order for it to safeguard and stabilise reconciliation through its powers of closure. But without identification of the deed and its perpetrator, without a determination of guilt and imposition of some sort of sanction, without all of this happening publicly, visibly, and through an agency with real authority, it is difficult to reach closure. If passing judgment and restitution are unavailable options, then forgetting can still help and reconciliation means freedom from the wreckage of the past, allowing it to be both remembered and forgotten. But forgetting is not a reliable helper.

Restitution often goes hand in hand with
rituals, condemning always does. Reconciliation, too, recognises rituals and
icons and it probably needs them. When orchestras from one country perform
in another, paintings from one country’s museums are exhibited in another’s
country, or partnership and exchange programs are arranged, these exchanges
promote mutual understanding and they are also attempts to solidify
reconciliation through public ritual. Politicians who stand hand in hand at
a memorial site or lay down a wreath in a cemetery are trying to tangibly
express reconciliation, and sometimes they succeed: the picture of Willy
Brandt kneeling in Warsaw became an iconic image of
reconciliation.

Forgiving, condemning, forgetting and reconciliation – of all the ways to achieve closure in the wake of an injury, reconciliation is the most demanding and difficult. Often enough, that is the very reason why it does not happen. The German experience shows, however, that when it is seriously undertaken it has a good chance of succeeding. A resurgence of the old hostility between France and Germany is unimaginable, and it is unimaginable between Poland and Germany, although the efforts at reconciliation were less intensive and hence the positive results of reconciliation are less evident. Between Jews and Germans there is every indication that in a few generations they will no longer meet harbouring old prejudices, though they may still regard each other with special interest. Studies and questionnaires sometimes indicate that the rift between East and West Germans remains deep and is even getting deeper. Reconciliation was never seriously attempted in this case. It was not really even perceived as a necessary exercise; the thought was that under the roof of common institutions the damages in the relationship would heal on their own. But only forgetting functions on its own; it has its own dynamic and follows its own course. Forgiving and condemning become superfluous when the perpetrators are dead. The degree to which reconciliation occurs depends on the level of efforts made to achieve it. Reconciliation is an endeavour for the long term.

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 group, 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.