The Law Under the Swastika (34 page)

This process occurred in postwar Germany in stages between 1945 and 1949. It seems to have been based on a scheme that is always repeated when an old legal system is to be replaced by a new one in the wake of revolution or defeat in war: Highly visible symbols or symbolic figures of the old regime are immediately removed, and the top of the old legal system is cut off. The justice system bridges the gulf in public order until the new legislative power has established itself. The risks of transition this entails are ameliorated in various ways, depending on the circumstances: by ideological training of the judges or the intimidation or radical replacement of the judicial personnel. Once the new legislative authority starts working, the “hour of the judicial system”
¹⁰⁹
is over and it returns to its original function, which is primarily supportive. Postwar Germany with its four zones provides a wealth of examples to illustrate all of these phases.

TWELVE
Theodor Maunz: The Life of a Professor of Constitutional Law

I.
Theodor Maunz (1901–1993) has undergone a definitive metamorphosis: Once the pillar of the German doctrine of constitutional law, he has become its stumbling block and the center of controversy. All the undiscussed and undigested part of the German past that seemed in part buried, in part paid off and forgiven, is reemerging in disturbing and unpleasant ways.

The files of the “Maunz case” seemed closed. The obituaries for the kind and reclusive old man, who died on September 10, 1993, had been written, and there were no surprises. Most writers followed the eulogy Peter Lerche had penned in the festschrift
Juristen im Portrait
(Portraits of jurists [C. H. Beck, 1988]). Lerche took Maunz’s Nazi past, known to a wider public for thirty years, and marginalized it with a single, skillfully obscuring sentence. That was not pretty, and it was no testimony to the author’s candor. But one could concede that Maunz was, after all, still alive at the time, and Lerche was not writing a scholarly study but a contribution to a festschrift.

There were dozens of professors with a Nazi past, though Maunz was the only one whose past led to his spectacular fall as Minister of Culture. This had engendered a lot of discussion in 1964, but later it was all gradually forgotten again. For the younger generation of university students at the time, the “Maunz affair,”
¹
triggered by Gerhard Haney (Jena), Konrad Redeker, and Hildegard Hamm-Brücher, was a revelation within the halls of academia. Together with the cases of M. Oberländer, H. Globke, and G. Freiherr von Pölnitz, and the Auschwitz and Eichmann trials, it was part of the postwar generation’s discovery of its own identity and another piece of ammunition in the generational conflict. These cases and trials fed the younger generation’s distrust of declarations and hush-ups from the official political establishment and helped set in motion the student movement of 1968.

Maunz appeared tailor-made as an example of it all: His solid, though not exactly inspiring, textbook on German constitutional law seemed an indestructible model of the Federal Republic, like the Volkswagen Beetle—and like the Beetle it had its hidden roots in the Third Reich. The commentary on the Basic Law by Maunz and Günther Dürig became the constitutive oracle, so to speak, for the new state. “Papa Maunz” was a Munich institution, especially when it came to obtaining seminar certificates in public law. He was “an incomparable teacher (and a very lenient examiner),” as Peter Lerche wrote, adding that Maunz “showed almost too much lenience.”
²
Kindness, courtesy, unusual diligence and self-discipline, tolerance, an orientation toward praxis, a scholarly freedom from bias: Nobody who ever knew him would deny that he possessed all these qualities. As Lerche put it: “So far hardly anybody has been able to tip his hat to Maunz sooner than Maunz tipped his own.”

It is likely that with the passage of time, the conviction will prevail that no truly independent idea can be linked with Maunz’s name in the history of constitutional law, despite the extensive bibliography of his publications (running into the many hundreds). Scholars will admit that his contributions to whatever was prevailing law were rarely original or bold. Instead, they can be seen as the embodiment of the middle-of-the-road, conflict-avoiding opinion. As the
Frankfurter Allgemeine Zeitung
put it, his publications are “characterized by a pithiness tinted by positivism and focused on the essential.”
³
One could at least mention that “leniency” in grading student papers also had the welcome effect of raising income from enrollments. But apart from this, until recently the unanimous view went something like this: “It is true that Maunz had a Nazi past, there is no denying that, but he had long since transcended it by his active participation in the democratic state and his sincere work in developing the Federal Republic’s constitutional and administrative law.” If one got a little carried away by pathos, one might actually say, “His name is among the great names in German constitutional theory,”
⁴
or, “One cannot solemnly praise the jurisprudence of current public law without praising Maunz.”
⁵

However, a few characteristically puzzling questions remained unanswered. As early as 1934 a reviewer noted that Maunz had swiftly reversed “his position that was so diametrically contrary just last year” and had rushed to embrace Carl Schmitt’s concrete-order theory with an “excessively repentant ‘pater peccavi.’”
⁶
The lecturer (
Privatdozent
) Maunz—in 1932 a vehement champion of law and politics, and ardent critic of the “subversion of the legal position of the individual through the erosion and dissolution of existing legal guarantees”
⁷
—was
now waiting for a chair and emphasizing the political nature of law and the totalitarian nature of the Führer’s will. As though to prove his absolute devotion to the party line, Maunz—a student of Hans Nawiasky, whose Jewish background had already embroiled him in one of the largest anti-Jewish hate campaigns
⁸
—appeared as a speaker in 1936 at the conference on “the Jews in jurisprudence.” There he expounded on the “fatal predilection of Jewish theorists of administrative law for the liberal doctrine of the
Rechtsstaat
.”
⁹
In 1935 he received an appointment in Freiburg, and in 1937 he was made full professor. Maunz, who had administrative experience, knew what it meant in practical terms to replace the word
Gesetzmäßigkeit
(conformity to the law) with
Rechtmäßigkeit
(conformity to what is right) in the lecture hall, to declare the “end of subjective-public right,” and to pronounce arrests by the Gestapo sovereign acts outside the judicial realm.
¹⁰
The fact that he did not break off his ties to the church and attended Sunday mass in a village in the Black Forest, away from the public limelight of Freiburg, proved a farsighted insurance strategy. After the Nazi system had gone down in ruin, Maunz was able to join the Christian-Social camp, become involved in the “battle over the Southwest state” as an expert adviser, participate in the deliberations over the Basic Law, write the textbook
Deutsches Staatsrecht
(German constitutional law), and accept an appointment in Munich in 1952. In Munich he became a “regular member” of the CSU and was soon after appointed Bavarian Minister of Culture. Thus he had returned to where he had begun, with parliamentary democracy and the
Rechtsstaat
.

For a long time, the prevailing interpretation of Maunz’s career had therefore gone something like this: While it had contained a good dose of opportunism, the dominant theme was solid professionalism, very hard work, pedagogical talent, and a propensity for a “conservative middle-of-the-road position,” accompanied by decades of unquestioned work on behalf of parliamentary democracy. All that changed on September 24 and October 8, 1993, when the
Deutsche National-Zeitung (DNZ)
, the paper of Dr. Gerhard Frey, leader of the right-radical Deutsche Volksunion (DVU),
¹¹
revealed that Maunz had been a “wonderful companion” and “important adviser” for twenty-five years. According to the
DNZ
, Maunz had written hundreds of anonymous articles for the paper, had advised the DVU in drafting its program and bylaws, and had continuously prepared legal opinions on party law and asylum law, on the Maastricht Treaty, on whether the
DNZ
could be mailed through the postal service, and on many other topics. And that was not all: “During the 1970s and for many years thereafter, Professor Maunz and Dr. Frey met weekly (usually on Monday) for
several hours to discuss all important political and legal issues” (
DNZ
, September 24, 1993). The television show
Panorama
picked up the matter and asked Rupert Scholz (professor of public law and former minister of defense) and Roman Herzog (former professor of public law and now President of the Federal Republic) for their comments. The large newspapers and magazines responded (
Zeit, Spiegel, Süddeutsche Zeitung;
of course, the
Frankfurter Allgemeine Zeitung
did so only with a brief news agency report in the side column of the page). Nobody has any serious doubts about the essential truth of Dr. Frey’s statements. It is obvious what interest Frey had in revealing triumphantly his close relationship with the best known commentator on the Basic Law. The
DNZ
and the DVU became respectable if “Germany’s greatest legal scholar” (
DNZ
, September 24, 1993) and a “democrat through and through” (Scholz) had advised and helped them for many years.

This revelation may have been an embarrassment to Maunz’s family (among them his son-in-law Franz Klein, the President of the Federal Fiscal Court),
¹²
to his assistants, to those who obtained
Habilitation
under him, and to his Ph.D. students. That did not bother Dr. Frey. He is not the kind of person who cares about such sensitivities and fears of contact with the political right wing. His intent is to move from the right wing into the conservative middle by systematically blurring the boundaries. Maunz’s work was a godsend for this strategy. The neo-Nazis become more reputable if they can show that they have succeeded in penetrating into the very entrance hall, so to speak, of the Association of Constitutional Lawyers.

To date, the interpretations of this symbiotic relationship between Maunz and Frey have fallen into familiar patterns: Maunz “could not say no,” and perhaps, Scholz speculated, the old gentleman “may have been somewhat abused.” Some have argued that Frey, who has become wealthy from his mail-order business of extreme-right books, records, and videos, probably paid well for all the advice and writing. Moreover, Frey probably soothed Maunz’s bruised ego after his fall as Minister of Culture by depicting the whole affair as the machinations of a leftist press campaign.

All these interpretations might be true individually or collectively. It is interesting that so far nobody has claimed that this was a case of uninterrupted continuity of extreme-right thinking since 1933. And in fact, the situation is not that clear-cut. We can probably come closer to understanding the type of person Maunz the jurist was by looking at his activities—right across changing regimes—as those of someone trying to create the best possible circumstances for his life and work.
Maunz was a
Vernunftrepublikaner
¹³
and supporter of the
Rechtsstaat
when that was still part of the traditional code of conduct at the end of the Weimar Republic; he was a National Socialist as long as the others were, and a little bit more so and for a little longer; then he was once again a legal positivist with a touch of natural law. It all depended on the time and circumstances, like a chameleon that has the ability to adjust its color and temperature to the environment. Of course, the chameleon can do so only within a certain range. I think we can assume that the articles Maunz wrote for the
DNZ
reflect his real and deepest convictions. He was writing anonymously, and since he had emeritus status there was no pressure to toe anyone’s line. The fact that he published his innermost convictions with strict secrecy about authorship reflects not so much a rudimentary consciousness of injustice as a finely honed sense of how much he could expect the public and his colleagues to put up with. His nose for taboos made him shy away from the conflict he knew his views would stir up. Maunz remained true to himself: During the Nazi period he “secretly” went to mass on Sundays, in the Federal Republic he “secretly” went to the right-wing radicals on Mondays. A double life as a strategy of maximizing his options.

Quite apart from the unsavory nature of these activities, wherein lies the moral problem for German constitutional law? In my view it is not with Maunz and his place in the history of his profession. Rather, the problem is with constitutional lawyers and professors as a corporate body. Events like these are not discussed within the Association of Constitutional Lawyers; in fact, they are probably not deemed worthy of discussion. The responsibility of a constitutional lawyer as teacher, scholar, expert witness, and counsel, against the backdrop of what we have learned from cases like that of Maunz—what a topic that would make! But no managing committee of the association has dared to open this Pandora’s box. Those who listen closely will merely hear some embarrassed whispering for a while longer. After that, a brooding silence is likely to descend once again on the profession.

II.
When the present essay appeared in a newspaper and in the journal
Kritische Justiz
,
¹⁴
it met with a broad response, especially in letters. The events surrounding the Maunz case were intimately linked with current politics.

Roman Herzog, at the time a candidate for the presidency of the Federal Republic, in this affair distanced himself repeatedly and unequivocally from his old teacher.
¹⁵
Faced with inquiries in the state parliament, the state government of Bavaria responded that none of
its current members had anything to do with the DVU; Maunz had been the second minister in its ranks who had contacts to Frey.
¹⁶
Of course, it was soon revealed that there had been contacts between the state government and the so-called Republicans.
¹⁷
Frey himself attracted the interest of the media through his support for the surprise winner of the elections in Russia in December 1993, Vladimir Zhirinovsky. The latter thanked him and declared after the elections, “I send greetings to my friend Dr. Gerhard Frey and the Deutsche Volksunion, with whom we shall continue to work together very closely.”
¹⁸
This cooperation was publicly demonstrated on several occasions, for instance, when Zhirinovsky openly adopted the Führer-principle within his party in the spring of 1994. Finally, several student organizations asked the publishing house of C. H. Beck to strike Maunz’s name from its list of publications.
¹⁹
That request is surely a very problematic one and merely makes Maunz disappear from view. It is not a posthumous ostracism of Maunz that we are after, but critical understanding.