Guilt about the Past (3 page)

And yet, longing not to be chained to a traumatic past is not wrong. What is mistaken, however, is the idea that fixation on the traumatic past would somehow guarantee being set free from it. A collective past, like that of an individual, is traumatic when it is not allowed to be remembered, and is just as much so if it has to be remembered. In other words, fixation on the past is merely the flipside of repression. Detraumatisation is the process of becoming able to both remember and forget; it is leaving the past in the past, in a way that embraces remembrance as well as forgetting. This applies in the same way to the victims and their descendants as to the perpetrators and their descendants. Detraumatisation can only fully succeed if it is successful on both sides, but for it to happen and be successful across the divide can only be hoped for, with no expectations harboured.

There is no entitlement to having the victims and their descendants lay aside the past once the Germans have shown exemplary efforts in coming to terms with it. How and what they remember and forget, to what lengths they go in attempting to free themselves from the traumatic past through mourning the victims or accusing the perpetrators or claiming restitution from the perpetrators’ descendants is their business. Whatever course of action they follow – it is not for us Germans to raise objections or feel indignation. Instead we owe respect to the other side’s difficult struggle with a past that we made traumatic for them.

We must accept what they do but we do not always have to comply with it. An accusation made on behalf of the victims is not true solely because it was made on their behalf, restitution must not be paid simply because restitution has been claimed. Still, though the law may not require it, there are cases where respect and tact may require restitution to be paid even when it is not due, in consideration for their sensitivity, as well as for the perception of the world. It makes sense even though it goes beyond what is required in a strictly legal sense. It pays tribute to the fact that the past is still traumatic to others. It does not mean that it has to be traumatic for us to the same extent. Detraumatisation takes place concomitantly within the dialogue and on each side independently, and one side does not have to wait until the other side successfully completes the process. Waiting for each other can also keep both mutually mired in trauma.

There is no mastering the past. But there is living consciously with present-day questions and emotions that the past releases. Questions and emotions – of course the past does not just trigger questions, but also makes us lose our composure, be at a loss for words, and become sad, fearful, and enraged, despair of cosmic and human justice, and suffer under the guilt that ensnares not only those who were then perpetrators, but those who later tolerated the perpetrators living among them.

In the instances in which the past does not currently evoke questions or emotions nothing is gained by referring to it again and again. This only devalues and squanders the past’s moral legacy. Where the Third Reich and the Holocaust do not bring up the questions and emotions that our generation has experienced, the next generation will have to experience its own questions and emotions and in its own way. In any case, they will not have to confront some of the issues that the first generation and my generation faced; the third generation is only slightly caught up in the guilt of the past, and the following generation will not be at all.

Under no circumstances does the past allow itself to be dismissed. Not only because its horrors were so terrible that they can never be forgotten. Not only because it makes us perceive the threats to our cultural and civilised existence. It touches on all themes and problems of morality. Responsibility and conviction, resistance and accommodation, loyalty and betrayal, hesitation and taking action, power, greed, justice and conscience – there is not a single drama that cannot be exemplified by an occurrence out of this particular past with ample proximity to our present world and with adequate aesthetic quality.

Unlike Stalin’s gulag and Pol Pot’s killing fields, the Holocaust and the Third Reich are perversions of bourgeois culture and offer, moreover, this culture’s universal content and structure in a perverted form. So the flood of books, films, plays, and performances dedicated to the Holocaust and the Third Reich will not cease for a long time to come, not in Germany and not throughout the rest of the world. And the past they encompass is global: the Holocaust and Second World War were the last historical occurrences that seized all the world at once, Germans and Jews, Eastern and Western Europe, America and even Asia and Africa. That past is our common history.

And so, the past is not lost, even without special efforts and events, even without the endless reproduction of what my generation started in the sixties and seventies, even without the next generation being confronted with the past to the dangerous point of becoming bored and cynical. Precisely because the Third Reich and Holocaust have become a universal experience and teach universal lessons they will not fade into obscurity. The past can become history for the generations to follow without losing any of its importance and impact.

When a collective occurrence, just as an individual one, is deemed as history, it no longer dominates the collective or individual narrative, but is integrated into it. With regard to the Third Reich and the Holocaust that means that German history does not have to be viewed as if everything in the past were building up to this particular outcome and would be fulfilled by it. It means that German history should not be evaluated in the present day only in light of those years, and that it should not be viewed and dealt with only from this perspective. It means that the literature of persecution and exile, so prominent in German literary scholarship since the eighties, can easily give up some of its prominence. It also means that the well-intentioned way in which German institutions take care of the Jewish legacy beyond what the Jewish community in Germany can afford and administer themselves should be more careful not to become patronising.

If something is wrong with one’s biography, then one’s sense of self and also one’s relationships with others will suffer. What makes sense about the younger generation’s often-heard wish to be able to be proud to be German is not that being German is in fact a merit one deserves to be proud of. One deserves to be proud only of what one achieves, not of what one is. But the younger generation’s wish makes sense as an expression of the desire for a biography that allows for an undamaged sense of self and undamaged relationships with others. For these young people the Third Reich and the Holocaust can no longer be present the way it is for my generation, and if we would like them not to be dismissive of the past then they must be allowed to see the past merged into history. Instead of assuring the younger generation that they have the right to be proud or denying them the right, we owe it to them to integrate the past into our collective biography. The future of the presence of the past is history.

Mastering the Past through Law?

What is past cannot be mastered. It can be remembered, forgotten or repressed. It can be avenged, punished, atoned for and regretted. It can be repeated, consciously or unconsciously. Its consequences can be managed either to encourage or discourage their impact on the present or the future. But what is done is done. The past is unassailable and irrevocable. The word ‘mastering’ in its true sense applies to a task at hand that must be worked on and worked through, until it is completed. Then the task no longer exists as such. That the term
Vergangenheitsbewältigung
, i.e. mastering the past, is used and recognised in Germany but has no corresponding word in English and French reveals a longing for the impossible: to bring the past into such a state of order that its remembrance no longer burdens the present.

Roman law recognises the principle ‘
in praeteritum non vivitur
’. As a practical point of law it means that alimony cannot be claimed for the past but only for the present and the future. Its philosophical legal meaning is that we live in the present and into the future, not in or into the past; hence, the law governs and sets into order only present and future, not past, life. Of course, a judge can issue a verdict that awards compensatory damages or imposes jail time for an offence committed. Still, the compensatory damages are only an ersatz for the goods that were damaged or lost and the jail time does not make the offence ‘un-happen’. Even laws with so-called retroactive effect do not actually work retroactively; they operate instead in the present and the future with a mere reference to the past. Since laws often refer to and have to refer to the past, the question of whether a law is truly retroactive is often difficult.

The notion that the past could be brought into form and order is foreign to the law. Law rests on the idea that at one point past acts are concluded and their consequences should therefore be settled. After a while the citizen has to come to terms with government actions or those of other citizens that he or she didn’t fight legally or didn’t fight successfully. After enough time, administrative decisions attain administrative finality and court decisions gain the force of law and can no longer be appealed. After sufficient time has passed, the statute of limitations prohibits state prosecution for most offences, as well as citizens’ claims for damages. In a country under the rule of law, state prosecution of criminal offences proves unavailing when it pursues actions that were not punishable at the time they were committed. The difficult constitutional law question concerning retroactive application of the law starts with ‘
nulla poena sine lege
’, a well-established principle that prohibits the legislature declaring an action a crime in hindsight.

Nevertheless, the law can be used to deal with the past in whatever way a society chooses. It can foster remembrance, neglect and repression. Criminal prosecution, restitution, fact-finding commissions and tribunals, and the granting of access to files and archives all support remembrance, while the granting of amnesty and the banning of certain topics and themes from public discourse encourage forgetting and repression. The law can rehabilitate citizens convicted of crimes, compensate for punishments suffered, repair destroyed careers and correct past decisions retroactively and it can likewise allow past sentences, punishments, decisions and careers to stand as they are. In every one of these instances the law is and was made to fit a given situation because some societies favour remembering, while others would rather forget.

In this rather narrow sense there is also a sort of mastering the past. The past is not simply the events that have happened but a construction of them in a manner that successfully integrates them into an individual or collective memory. The past is a construct, and creating that construct is a task to be undertaken and completed, at least provisionally, because new findings constantly arise from past events or new needs for integration develop. In this narrow sense the past is a task that will be undertaken regardless of whether it is reconstructed in a culture of remembrance, with partial forgetting, or in a culture of forgetting, with partial remembering. Moreover, the task must be completed. Individual and collective biographies require integration of the past as a requisite for the integrity of self-perception and identity. Past events must be integrated so that they are not played out against the present, thereby possibly damaging the current state of self-perception and identity.

There are many instances in which mastery of the past flows just as well through forgetting as through remembrance. Cultures of forgetting have appeared from ancient to modern times, and, for countries such as Spain with its Civil War, Russia with its Stalinist past, or Austria with its national socialist crimes, it is difficult to argue that forgetting and repression do not work. These countries have integrated the atrocities committed during a generation or more into their respective collective biographies and have achieved a peaceful transition to the next generation.

The law’s instrumentality for overcoming the past through recollection as well as through repression, for fostering a culture of remembrance or a culture of forgetting, does not negate the fact that certain factors invite forgetting and make remembering difficult, while others invite remembering and make forgetting difficult.

The more recently an event took place, the easier it is to recollect and the more difficult to forget, the stronger the demand for legal redress and the resistance to legal amnesty. But once a first wave of remembrance and legal redress has occurred, a condition of exhaustion can set in, hindering the next wave. In Germany in the fifties, the first wave of remembrance and legal redress tapered off, partly because the Germans were exhausted from war, destruction, and expulsion, were weary of dealing with the past, and were concentrating the energies they had on new beginnings and reconstruction. That first wave would have tapered off even earlier had the Allied Forces not triggered and supported it. Again, after the fall of the Berlin Wall the citizens of the new states in the East were exhausted from change and soon did not want to hear another word about privation and injustice in the German Democratic Republic (GDR). Here again, the legal proceedings that did occur regarding the privations and injustices of the former GDR were due to the outside impetus of the old West Germany. In any case, the Germans are not a people who revel in legal redress to settle accounts. The First and Second World Wars and the economic and political collapse of the GDR were experienced more as ‘the slings and arrows of outrageous fortune’ to be commonly borne, rather than as something that a minority of the Germans did to the majority and for which they now had to pay a price.

How recent or remote an event is is not its only measure of relevance. An event can be recent and yet feel very distant because then it was war and now there is peace; because it happened in a place far away and now one is home again; or because it happened under an old regime or during a revolution and now one is living under the new system. Two experiential worlds can, within short periods of time, be so strikingly different that it becomes arduous to map the past using the coordinates of the present. Because the world is constituted more along the lines of the collective rather than the individual, a collective need to forget will tend to overcome an individual desire to remember, and a collective need to remember will overcome an individual wish to forget.

Furthermore, if there is an ‘other’ who remembers and insists on remembrance, redress, restitution, criminal proceedings and verdicts, then that can become decisive for whether remembrance is pursued and done on account of the law. One individual has a difficult time forgetting if there is another who steadfastly connects him or her to an occurrence, a conduct or a crime. This is also true for a community that others identify as connected with specific happenings, conduct, and crimes; it cannot free itself by simply forgetting and repressing. Think of Germany, or more recently Serbia, Rwanda, and Cambodia on the one hand, and on the other of Russia and Spain – in the latter cases, forgetting and repressing work because there is no ‘other’, just Russians who had inflicted harm on other Russians under Stalin and Spaniards who fought other Spaniards in the civil war. The more numerous and strong those insisting on remembrance are, the less feasible forgetting becomes. Should they also be victims and should they be sufficiently numerous and influential then they can imprint their mark on the culture of the community and define it as a victim culture. Conversely, a victor culture could disregard a few, weak victims.

It is also, of course, harder for a community to be freed from identification with past injustices and crimes when a sufficient number of its members are implicated. Entanglement in the past arises not only through having been a perpetrator, an accessory, inciter or supporter. Common knowledge, observing and turning away, the omission of lending aid to the victims, not expelling, prosecuting, and punishing the perpetrators afterward, but seeing them instead tolerated or even respected – these all contribute. Solidarity with the perpetrator leads to entanglement in his or her crime and guilt – we discussed this as the centre of the idea of collective guilt.

Even given these considerations, the question still remains: does law, an instrument that can facilitate both remembering and forgetting, have an intrinsic proximity to either agenda? I will cite three often-used arguments for remembering as opposed to forgetting or repressing, be it in regards to the national socialist, communist, or any other horror-filled, criminal, and guilt-laden past. Then I will try to evaluate these arguments as to their claims on the law. According to the first argument, remembering is the secret of redemption. A second argument posits remembering and the work on guilt and grief as prerequisites for a strong individual identity, trust and solidarity in families and in society. The third argument holds that remembering is necessary in order to prevent us from repeating the past.

The first argument is the darkest. Remembering as the secret of redemption is a wisdom contained in the Jewish tradition, and rightly so within that tradition; without the will to remember the Jewish people would have lost their identity in captivity, diaspora and exile. But wherein lies the wisdom for those who didn’t have to save their identity while being dispersed into the world? What does the wisdom teach beyond a collective’s need to keep its collective memory alive?

Because of these questions, the wisdom is modified in the debates surrounding other past histories. The state of redemption is interpreted as opposite to a state of apathy. Apathy is regarded as dangerous because it is the opposite of hope, belief, and love. It makes people numb to what happens in the world, and especially to the injustice that goes on in it. Finally it allows people to lapse into complicity. Active remembrance could disrupt apathy, it could raise consciousness for the roots as well as the consequences of injustice; in a state of redemption humanity would not allow injustice to occur. Remembering becomes a prerequisite for not allowing what has happened, or something similar, to repeat itself – thus the first argument melds into the third, which I’ll come to in a minute.

There are various considerations contained within the second argument, which states that remembering is necessary for successful familial, social and political relations. Psychologically, forgetting and repressing a traumatic past can serve to further aggravate its effects. Parents who keep their traumatic experiences a secret – be they perpetrators, guilty bystanders or victims – cannot express their individuality and offer their children openness and trust. Without learning openness and trust, their children cannot develop a resilient individuality that knows when to be steadfast and when to compromise. Second, there is the presumption that a generation that does not acquire openness, trust, and individuality in the family will founder in its attempts to achieve such qualities in society. These are not just relational qualities but skills upon which democracy depends. A democracy replacing a dictatorship would endanger its credibility, particularly among the victims of the dictatorship, if it did not punish the perpetrators and legally prevent them from retaining their positions and further pursuing their careers. Here the goal of punishment and other legal sanctions would serve to strengthen civic virtues and, again, prevent the past from repeating itself.

The third argument directly addresses the goal of preventing the past from repeating itself. It takes punishment as a deterrent that aims to prevent criminal events from being repeated by influencing individual perpetrators or even the society as a whole – if all of its members had been involved in the crimes of the past then all have to be deterred from committing them again. But applied in cases of atrocious political systems the theory of preventive punishment is rather weak. The conformist who committed crimes that were within the legal bounds of a past political system will still be a conformist under the new system and does not need to be deterred from what does not conform to the new system. Also, he or she does not need to be re-socialised; in the former political system the conformist comported themselves in accordance with the strictures of society and will do so again in the new society. When national socialist crimes were being prosecuted and sentenced, the perpetrators were regularly found to be leading normal lives after 1945 and could exhibit great neighbourly, collegial friendliness, reliability, and good will. Thus, in a society where an old political system has failed and a new political system has taken hold its people do not really need to be deterred from acting as they had under the old regime.

So there is no either–or. Both to remember and to forget are intrinsic to the law. Law requires perpetrators to be answerable for their guilt; their punishment is a signal showing that something like that must not happen again, and that it will not be accepted but actively opposed. Simultaneously, after a certain amount of time has passed, the law calls for past events to be brought to conclusion and let go. The rule of law also demands closure and settlement if an act was legal at the time it was committed.