Guilt about the Past (6 page)

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.

Already as I was speaking I did not have a good feeling. At first I thought it was the oppressive atmosphere in the room, the dogmatic airs of Volker N’s opponents so certain of their victory, the scant number of his supporters, the strong applause against him, and the meagre clapping that we who supported his admittance received, the hostility visible in some of the faces. But if that is all it had been – then would I not have felt better when we won?

Yes, we won. In a secret ballot Volker N was admitted with eighty-seven ayes and sixty-one nays and seventeen abstentions. The younger colleagues had indeed openly applauded the older ones, their mentors for their doctorate, and their habilitation whose goodwill they depended upon for their careers and which they did not want to lose. But in secret they did not want to have anything to do with the ancient history of their political affairs.

We who had supported Volker N’s admittance received a few compliments. How good it was that we led the discussion so diplomatically in this important disagreement. How good it was that the senior members could have lost their fight without losing face over it. How good it was that our younger colleagues could vote against the old ones without disavowing them too severely and laying themselves too open to criticism. How good it was that Volker N was accepted; they would not have believed it could be accomplished. How excellent that the whole nasty business could be settled without tearing the association apart with resignations or any other further offence.

We won and still a thorn in my side remained, and whenever I thought about the fight for Volker N’s acceptance in the Association of German Constitutional Law Professors the same bad feeling returned.

Years later I read a doctoral dissertation that one of my research assistants wrote about the law school faculty at the Berlin University in the upheaval of 1933. The situation was critical in the spring of 1933; the law school faculty was largely Jewish, a Jewish dean and assistant dean ran the program. Among the professors there were neither convinced national socialists nor resolved opponents of national socialism, instead there were politically moderately engaged legal scholars, irritated by the change of circumstances, peaceably going forward in their research and teaching. They got hit with pressure from above by the new national socialist Minister of Culture and from below by the national socialists among the students. It was only at the beginning of the summer semester that Jewish professors were forcibly put on leave and a new election for the dean was organised. But already at the beginning of March the dean and the assistant dean of the law school had resigned from their official positions.

It happened quietly. The minutes of the faculty meetings make no note of any removal or resignation from office or new election; at the beginning of March the Jewish dean simply invited everyone to a meeting and a dinner in his apartment, as was customary at the end of a period in office. The next meeting at the end of April was led by an informally appointed new dean. Since this person officiated both as dean and assistant dean, the position held by the Jewish assistant dean was simply made to disappear.

The dissertation explores the reasons behind this pre-emptory rush of obedience and cannot find its origin in national socialist zeal, in anti-Semitic malice, or even out of fear over job security and salary. It appears much more plausible that the Jewish and non-Jewish colleagues agreed to avoid every provocation and escalation. They did not want to provide anyone with a target and chose a response meant to protect Jewish as well as non-Jewish colleagues from attacks. Even later, when leaves-of-absence, firings and other machinations were enforced against Jewish professors, everyone’s efforts, those of Jewish and non-Jewish colleagues alike, were directed toward minimising the problems behind the scenes with assistance from old established contacts within the ministry in hopes to solve them through diplomatic channels. Anything not to alienate the Minister, anything not to defy the students!

Over the spring of 1933, the law school faculty allowed itself to be corrupted. It was not corruption on account of a lust for power or money or fame. It was corruption through good intentions. No one wanted the Jewish professors to be exposed to unfavourable treatment. It is true that the non-Jewish professors did not want to be exposed to unfavourable treatment either, but that did not preclude them from simultaneously having good intentions. Corruption through good intentions, just like every other form of corruption, has its price. In 1933, when the diplomatic channels, so often relied upon in the old days, had led nowhere, it was already too late for protests which would have had to have happened earlier, and not just because they had become dangerous in the meantime. Protests would no longer have been credible after the professors had at first accepted the rules as they had been presented to them by the national socialist regime and had attempted to find a solution under the premise of these rules.

The dissertation also documents how the law school faculties in Munich and Cologne supported their Jewish colleagues and defended them against the attacks from the ministry and the students. In the end, they were not successful either. It makes us feel good to read about them today anyway – someone at least set a good example. For the faculty members in Munich and Cologne it was not about setting an example. For them, like the Berliners, it was about success. None of the members of these faculties had predicted their failure – nor could they have. How could the professors of the Berlin law school anticipate that the diplomatic manoeuvres they had so masterfully executed before 1933 would no longer amount to anything after 1933? On the other hand, how could the professors in Munich and Cologne have any idea that their engagement, at first successful, finally would be to no avail? Each one did what their experience trained them to do in their relations with the university and the ministry, and they both acted with good intentions. But the professors of the Berlin University allowed themselves to be corrupted, and one cannot read this story of corruption without finding it disturbing.

And that is why the thorn in my side and the bad feeling remained. I, too, had allowed myself to be corrupted. On account of my good intentions, I, too, had not said what needed to be said about the events in the summer of 1970 and about the unwarranted uproar in the autumn of 1992. I had wanted to help Volker N and not hurt his chances by escalating the conflict, provoking his opponents, and irritating the silent majority. This well-intentioned corruption could easily have exacted its price too, and again the price would have been credibility. Had Volker N’s acceptance been rejected, it would have been too late to say what needed to be said in the Association of German Constitutional Law Professors. Those of us in favour of admitting him had allowed ourselves to be drawn into the argument under the terms as the opponents to his admission had defined them and we could no longer have credibly withdrawn from those terms in a second attempt. Certainly, we would have been able to nominate Volker N again for membership, but only with the background and under the consideration that his behaviour as a student had disqualified him in the first round. His acceptance in the second round would have been a mere act of mercy.

We did not have to pay that price. We were lucky and we won. That our diplomatic actions would meet with success was something we could not have foreseen. We also could not have predicted the outcome had we followed another, direct, confrontational and adversarial course of action. Would the members have rejected this course of action and then also Volker N’s acceptance? Or would the effect have been to chase away the fears, caution and hesitations that were paralysing the discussion? I must admit that at the time I did not once consider the question. I simply accepted the situation as it had been defined by others.

Today the stories from the autumn of 1992 in Bayreuth and the summer of 1970 in Heidelberg are historic footnotes. Because the past that ended with the autumn of 1992 and the past that began with the spring of 1933 are absolutely incomparable, it appears as though the situations in Bayreuth and in Heidelberg are also of completely different types. The situation in Bayreuth looks minor, inconsequential and harmless and the one in Berlin looms large, and portends doom and danger. But that is the perspective of hindsight. The perspective prior to the events was that there were two minor situations threatening problems, conflicts and frustrations but nothing of a really serious nature. That in 1933 the world would be turned upside down and in 1992 everything remained in good order, that in Berlin the diplomatic, though corrupted, course of action would fail and no amount of luck could help while in Bayreuth luck intervened and diplomacy succeeded – all that was hidden at the time.

Once the consequences of any one action are largely unforeseeable; strategic and tactical calculations can offer no point of reference. So at first what I thought I should learn was that it is proper to simply do the right thing in such situations – to say what needs to be said without regard for diplomacy, but without the risk of corruption. I also thought that I should never again do what I had done in Bayreuth where I accepted the situation as others had defined it for me and did not even think to question the chances of another more direct, confrontational and adversarial course.

Then I started to regard my behaviour in Bayreuth less harshly – as I also judge the Berlin professors’ behaviour in a slightly more favourable light. I said to myself that one cannot make things work without accepting situations defined by others. The terms of reality are mostly determined by others and to be successful in the real world we must submit to it as it stands. The success in Bayreuth confirmed that the situation was as the others had defined it and as we had accepted it. I also said to myself that my generation had refused for too long to accept reality and had held on to an unreasonable belief in our ability to create a new reality. In the early seventies we took our exams and started our careers, got married and started families – the years of moral and political zeal, and the naïve belief that the older generation is guilty and principally in the wrong and our young one is innocent and in the right, were over. But it still took a long time until the communist cells and radical sects disbanded, until among the green party a realist minority developed beside its fundamentalist majority, and until diplomacy and compromise were deemed as respectable as confrontation and conflict. From this perspective, the autumn of 1992 in Bayreuth was simply a late chapter in my long departure from an early moralistic railing against the messiness of reality. Still, the moral thorn in my side has never gone away.