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Posts tagged ‘Germany’

My take on the German Question

Photo credit: Wolfram Huke at http://wolframhuke.de

Photo credit: Wolfram Huke at http://wolframhuke.de

Jürgen Habermas, Germany’s best-known living philosopher, sees a “historical failure of the political elites in Germany” because in the current election campaign they talk about every possible banality except the big questions for Europe and Germany.

Actually, those questions are only a new form of a centuries-old bundle of geo-strategic dilemmas called “the German Question”. I wrote an essay about that Question for Juncture, the journal of a British think tank called IPPR, the Institute for Public Policy Research.

Here is the full essay, which they have kindly allowed me to reblog below.

Also, as some of you have already noticed, I am currently keeping a “German Election Diary” on our Charlemagne blog at The Economist. That’s in addition to my “regular” coverage in the magazine. Stop by if you’re interested.

The dilemma at the heart of Europe: Germany and the German question

Andreas Kluth is Berlin bureau chief for the Economist.

03 Sep 2013

Andreas Kluth highlights the issue that has been conspicuous by its absence from Germany’s parliamentary campaign: the relationship between Europe and the economic powerhouse that is too small to lead, too large simply to fall into line.

The biggest surprise about Germany’s parliamentary election – the results of which are not yet known as I write – is what has not been discussed. The omission is glaring, and it raises fundamental questions about the future not only of Germany but of all Europe.

Let us begin with a very partial list of what was debated, in some cases ad nauseam. Whether or how much the Americans spy on Germans. Whether mothers should use subsidised childcare or keep their toddlers at home. Whether Germans should be discouraged from eating meat on Thursdays. To what extent paedophiles once held sway in the Green party; whether foreigners driving on German motorways should pay toll; whether mothers should get higher pensions. And always, always, that German evergreen: whether the rich are too rich and should forfeit part of their wealth (not just their income) in the name of ‘social justice’.

These matters become campaign issues because they are easy to have opinions about. In some cases (spying), they tap into peculiarly German phobias about the invasion of privacy and endemic strains of anti-Americanism. In other cases (childcare), they mobilise reliable legions from old culture wars. Some (meat on Thursdays) reflect the Germanic tendency, best embodied in the Green party, to mix do-goodiness with school-masterly paternalism. And an entire bloc of issues (‘social justice’) is based on a perennial obsession, one that the Teutons share with the Puritans, which was best defined by the late American journalist HL Mencken as ‘the haunting fear that someone, somewhere is having a good time’. (The nuance, by the way, is that Teutons worry about other people having money, Puritans about other people having sex.)

So what was not discussed? In a phrase: the German question. This is not in fact one question but a complex of geostrategic dilemmas that have haunted Europe for centuries. For decades, until reunification, the German question was considered temporarily solved, or at least no longer pressing. But now it is back, rephrased by what is called the ‘euro crisis’. It is a question that the eurozone – and really the entire EU – must answer. In this election campaign, then, one would have expected Germany’s politicians, above all chancellor Angela Merkel and her challenger Peer Steinbrück, at least to begin grappling with it. They did not.

The question, over the centuries, has always had two premises. The first is Germany’s geographical centrality. Even today, Germany has more neighbours than any other country in the EU. The second is Germany’s ‘awkward scale’, as Kurt Georg Kiesinger, then chancellor of West Germany, called it in 1967. It is neither huge like America nor tiny like Belgium. It is too small either to dominate (‘lead’) Europe outright or to exist independently in a world of US, India and China-sized powers. At the same time, it is too big simply to ‘get in line’, as just another member of the system. Thus Germany may have one vote, equal to Malta’s, on the governing council of the European Central Bank. But as supplier of almost 20 per cent of the ECB’s capital, its interests and sway cannot be considered equal to Malta’s (providing less than 1 per cent of the bank’s capital).

Henry Kissinger once phrased this dilemma as ‘too big for Europe, too small for the world’. Thomas Mann, Germany’s greatest modern writer, expressed essentially the same idea in a famous speech in 1953 as a tension between ‘a German Europe’ or ‘a European Germany’. As the eurozone now decides whether to submit to ‘German’ rules about fiscal and economic management, and as the EU as a whole decides where its political centre of gravity should sit, they are all in effect asking the same timeless question over and over again.

During the Holy Roman empire of the German nation, the question was about whether the vast area in the middle of Europe would centralise and dominate the continent or stay fragmented and destabilise it (as during the Thirty Years war). After Napoleon dismantled that empire, the question became how these German lands would unite: as a ‘greater Germany’ with Austria or a ‘lesser’ one with Prussia but without Austria. Bismarck supplied his answer and Europe responded by trying to balance German power with other alliances. This approach led to the first world war. Afterwards, Europe tried to answer the question by keeping Germany down. Indirectly, this led to the second world war.

After that war, the world – as by now the US was involved – gave not one but two answers. First, the whole world was to be split, and the split was to run through Germany, so that it was no longer at the centre of anything but rather at the edges of something, each of its halves being submerged into one of the two global camps. Second, within western Europe, West Germany voluntarily tried to make the question irrelevant by becoming just another member of an ‘ever-closer union’, now called the EU. As part of that deal, Germany explicitly ceded political primacy to France and military power altogether, no matter its economic might.

The first part of that double answer became obsolete when the Berlin Wall fell in 1989 and German unification the following year undermined the second part. France, in particular, pushed for a reinforcing of Germany’s integration-cum-subservience in the EU by making Germany give up the Deutsche mark, which president François Mitterand once called Germany’s ‘nuclear weapon’. Yes, the successor currency’s central bank would be located in Frankfurt to assuage the Germans. But ‘Frankfurt’ also sounded reassuringly like ‘franc fort’. The ultimate point was – staying with Thomas Mann – to keep Germany, and in this case its money, European. As Timothy Garton Ash at Oxford University has put it: ‘European monetary union forged during and after German unification was not a German project to dominate Europe but a European project to constrain Germany.’

It is therefore ironic that this same monetary union has, from the point of view of the Greeks or Cypriots or Portuguese, led instead to a Europe made German. Only this feeling can explain the posters of Angela Merkel defaced with Hitler moustaches and swastikas that accompany the distressed and angry citizens of the crisis countries when they take to the streets. It is the iconography of a belief that Germany has in fact become a hegemon over the eurozone. In the protesters’ minds, ‘austerity’ – budget cuts to reduce indebtedness – and simultaneous reforms to make their labour and product markets more competitive within Europe and in the world are ‘German’ rules, imposed by Mrs Merkel.

From the German point of view, however, the same crisis looks very different. Leave aside for the moment the question of whether austerity is actually effective as policy and whether reforms are politically feasible in this climate. What Germans see is their chancellor failing to impose her will on Europe, that she is at best slowing down the process of pledging more German money to rescues (despite a ‘no bail out clause’ in the EU treaties that every German seems to know about), paying at best lip-service to new rules (such as the ‘fiscal compact’). The Germans do not blame Merkel for this, for they suspect that any chancellor from the opposition parties would have done more of the same, and faster. But Germans see no evidence that they are dominating anybody. Meanwhile, they do see evidence – the Hitler moustaches on Merkel posters and all that – that they are being blamed as if they were.

This situation both irritates and scares Germans. They see that the euro situation is causing old resentments to resurface, and that many of those resentments are directed against Germany. As Dominik Geppert, a historian in Bonn, argues, they also observe ‘another disagreeable relic of the past: more and more often Germany’s representatives in negotiations at a European level find themselves isolated’. Is this another Sonderweg?

Reared on the lesson that Germany must never again try to be a ‘leader’ (the word is Führer), the German elite is now hearing calls to become just that. ‘I fear German power less than I am beginning to fear German inactivity,’ the Polish foreign minister Radoslaw Sikorski said in 2011. Soon after that speech, the debate started within German academia, when Christoph Schönberger at the University of Constance called for Germany to drop its provincial mindset and become a ‘hegemon against its will’.

A hegemon, as defined by the late economic historian Charles Kindleberger and others, is a country that has military, political and economic power, but chooses to use its power not to dominate other countries but to preserve the existing system, even against its own short-term interest, for instance by acting as lender of last resort. Britain during the years of the gold standard comes to mind, or the US more recently. America’s refusal to become a hegemon sooner, Kindleberger thought, actually made the Great Depression so long and bad.

Right away, this makes the case for German hegemony problematic. After the second world war, Germany explicitly forswore military and political power. It does have economic power, which it could in theory use to be lender of last resort in the euro crisis. But for the time being, the ECB has stepped into that role.

This points to a particular problem with hegemonic theory in this instance, as Werner Link at the University of Cologne has pointed out. The ECB (like the ESM and all the other acronymised EU-spawned institutions) exists precisely because the system to be preserved – the euro and the EU – was designed so that nobody could ever be a hegemon over it – not Germany, nor France nor Britain, nor any combination of them. Under the EU’s horridly complicated voting rules, a decision requires at least 55 per cent of the member states (15 countries) provided these states represent at least 65 per cent of the EU population. The EU’s other bodies, such as the ECB, have similar decision-making rules in place. The whole point is that no single country can dominate.

In this context, then, calls for German hegemony in the current systems amount to demands for German money without any other form of German influence – euros without strings. This is what Germans fear: another ‘transfer union’. They already have two transfer unions at home, and like neither. The first is the German system of equalising revenues among the 16 federal states, so that strong Bavaria, say, gives money to weak Berlin. The second is a solidarity tax that all Germans have been paying since reunification (due to end in 2019) to send money to eastern Germany. They’d rather not add a third layer for the eurozone.

Geppert argues that the resulting ‘semi-hegemony’ is in fact the real German dilemma. Germany is damned if it does and damned if it doesn’t. If it does insist that recipients of rescue funds observe certain economic rules then it will earn enmity for its ‘neo-imperialism’. If Germany instead opens its purse (through debt mutualisation or eurobonds, say) then its own voters, and probably courts, will eventually balk. ‘Maastricht’ could one day have the ring of ‘Versailles’, ventures Geppert. Regardless, both scenarios are bad for Europe.

These views are, admittedly, rather pessimistic. Germany and Europe are capable of finding a better course. But the point is that they must begin to talk about how to do this – and all the political parties in Germany during this campaign have done their best to talk about anything else instead. Jürgen Habermas, Germany’s best-known philosopher today, calls this a ‘historical failure of the political elites in Germany’. He believes that these debates would be ‘unavoidably polarising’. That they did not occur in Germany in 2013 is a shame.

This article appears in issue 20(2) of Juncture, due out shortly.

The Holocaust in the streets, one brass plate at a time

IMG_0648

Above you see several so-called Stolpersteine — “stumbling stones” — in a sidewalk near my place in Berlin. The flowers and candles are from a neighbor, who regularly looks after the many, many stones in our street. Each one commemorates one victim of National Socialism who lived at the address where the stone is placed.

The Stolpersteine were among the first things I noticed when I moved to Berlin last year. There are about 40,000 of them now, all over Germany and in much of Europe. Every week many more are laid. No governments are involved. All this is a private art project, conceived by an intriguing artist, Gunter Demnig.

One of those now sponsoring such a stone is a friend of mine, Menasheh Fogel, a Jewish American living in Berlin. I tell Menasheh’s story, and a few of the many stories of the people he met, of the victims he learned about, of the artist behind the project, in the current issue of Intelligent Life, a sister publication of The Economist. You would make me happy by reading it.

I will let the piece speak for itself. But I just want to add two strands of thought here:

  1. one about the different style and voice of this piece, compared to my usual fare in The Economist, and 
  2. one about Germany’s style of remembrance generally.

My style in this piece

Way back in 2008, I mused here on this blog about the pros and cons of writing in the first person (which is completely banned at The Economist, but encouraged at Intelligent Life). I also told you about my efforts to find my own natural voice, because I was, of course, writing my book at the time, and was using this blog in part to loosen myself up after writing in my Economist voice during the day.

Well, writing this story transported me back to all that. It necessitated a completely different voice, and I discovered that I loved finding it. I wrote a first draft that was quite good and sent it off.

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Then I had a great chat with the editor, Samantha Weinberg, who told me to “feature it up”. For example, she asked, again and again, for more quote. At The Economist we don’t quote much, and when we do, we use just the choicest bits of a quote, perhaps a single word, for maximum efficiency. But Samantha wanted everything. “Even the uhs and ers, the wrong syntax and dead ends?”, I asked. “Especially the uhs and ers and the wrong syntax,” she said. I went back to my notes and put all of it, or most of it, in. And lo, the piece was better.

And I put a bit of myself in, in the first person. Discreetly and sparingly, though. And lo, it was better again. (But more of me, and it would have started getting worse.)

I loved this process. For those among you who are editors, there are also lessons for you in Samantha’s style: she didn’t fiddle with my words; she just helped me to understand what changes were necessary. (Thanks, Samantha.)

The German style of remembrance

Yes, there is such a thing as a “German” style of remembrance, as I have concluded since moving back to this country last year.

It is to remember everywhere and all the time, never taking a break, never looking the other way but always at what happened before, and integrating all of it into a new present.

If you ever get the chance, for example, walk through the Bundestag in Berlin, in the old Reichstag building. A British architect, Sir Norman Foster, rebuilt it. As a signal and symbol of the new German political culture, he made it physically transparent on the inside (and it really is, as much as any large building can be). The entire edifice invites all those in it to remember and reflect, every day and all the time. For example, members of parliament, like journalists such as myself, walk every day past walls such as these:

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You see the bullet hole? You see the graffiti? It’s the scrawlings of the young Russian soldiers after they took the building in 1945. Things like “Vladislav was here” and “Fuck all Germans”. The graffiti and bullet holes were not merely kept; they are emphasized.

(One of the staff at the Bundestag is working on a book about these graffiti. She’s found some of the — now old — Russians who wrote them, and they have amazing stories to tell.)

In the weeks since finishing my piece in Intelligent Life, I’ve got deeper into the subject. (This often happens to writers.) And I’m thinking of getting even deeper into it yet.

For example, I met up with Petra Merkel, a member of parliament, the lady in red in the picture below.

(Yes, Germany’s Bundestag has two Mrs Merkel, one named Angela and one named Petra. Both once married and divorced (different) Mr Merkels, but kept their name. Both are wonderfully down-to-earth. Petra says she occasionally gets mail for Angela by mistake. She enjoys being on the parliamentary committee that oversees the federal budget, proposed by the government the other Merkel heads, since “Merkel is watching Merkel.”)

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Well, Mrs Merkel also sponsored a Stolperstein. And then she brought over the descendants of the victim, Paula Dienstag, from Israel to Berlin. In front of Mrs Merkel on the right is Yuval Doron, Mrs Dienstag’s grandson. Next to him are his two sons.

And that’s the other thing about remembrance done right: It never separates human beings, it always connects.

Du or Sie? A tale of awkwardness

Sprechen Sie Du?

What happens when a sort-of German dude, softened by years of Californian informality, returns to Germany and encounters the natives?

Why, it’s friggin’ awkward, of course. Just one aspect: When meeting different kinds of people, should I use Sie or Du, the formal or the informal version of “you”?

The resulting contortions, as I tell them in The Economist’s sister publication Intelligent Life, are meant to be amusing. So go be amused, please, and have compassion with me.

(BTW, the English “you” is actually the formal second person, which completely replaced the informal “thou” centuries ago.)

Ich bin ein Berliner

I)

In the late 80s, when we still thought the Iron Curtain and the Berlin Wall were as good as eternal, my friend Matt Lieber and I, fairly fresh out of high school, traveled around Germany and got a visa for a few unforgettable hours in Communist East Berlin. We entered through Checkpoint Charlie (pictured above in 1961, during one of the many standoffs). Then we walked up the famous Friedrichstrasse toward the equally famous Unter den Linden.

I’ll never forget those first few blocks behind the Iron Curtain.

Crosstreets:

  • Krausenstrasse
  • Leipzigerstrasse
  • Kronenstrasse
  • Mohrenstrasse
  • Taubenstrasse

II)

Just a few years later, in 1993, I was back on that same stretch of that same street: Friedrichstrasse, between Taubenstrasse and Mohrenstrasse.

Except this time I was an unpaid intern for CNN, that (then-) unbeatable American, Western, Capitalist media success story. By sheer luck, n-tv, a German start-up that wanted to be, and indeed became, the German CNN, had just opened in the same building and CNN owned a part of it. In the utter chaos of n-tv‘s first weeks, I did all sorts of jobs for both companies that I was entirely unqualified for and benefitted hugely from.

III)

Now, many years later again, I will be back once more at that same stretch of that same street. This time (as of mid-June, 2012) I am Berlin Bureau Chief of The Economist. Our office is right at a corner that Matt and I walked past all those years ago.

It’ll be my fifth beat in the 15 years I’ve worked for The Economist so far. (You may recall my meditation on being that kind of “generalist” when I last switched beats, three years ago.)

IV)

When I visited the office the other day, before the actual move from Los Angeles, I loitered a bit on those blocks, looking for something familiar from the past.

Wasn’t this where that East German cop stopped Matt and me for jaywalking?

And wasn’t that where, in 1993, that god-awful East-Germanesque sausage snack bar was?

I simply couldn’t tell. Yoga, Starbucks, Gucci, banks, BMWs. Physically, the street had become aggressively 2012, and nothing else.

I remembered how somebody once told me about visiting, in 1978, a tiny fishing village north of Hong Kong. It was called Shenzhen. Three decades later he went back to try to find the spot where he stood. Well, you know.

But even that did not capture the feelings I had while standing again at that particular corner of the world. In my imagination, I rewound and fast-forwarded through life on that spot. From its Slavic time through its Prussian time, to its Wilhelmine and Twenties time, its Nazi time, its Cold-War time, its Wende time. Then I opened my eyes again.

V)

Why do people become journalists? For different reasons. But many, I am guessing, want to feel that they lived history.

This year and in the coming years, Europe seems likely to be making history again, and Berlin seems likely to play a big role in that history. If I do my job right, and even if I just do it mediocrely, I’ll see a good bit of it up close.

Privacy law: US “liberty” vs European “dignity”

These naked Germans are enjoying themselves in the middle of Berlin. I’ve been just as gleefully naked in Munich, Berlin and various other European places. To Germans and other continental Europeans this is a) fun and b) part of freedom. The word for public nudity, in fact, is Freikörperkultur (‘free body culture’), often abbreviated to FKK.

To Americans, of course, this tends to be awkward if not shocking:

“Don’t these Europeans have a sense of privacy?”

Then there is, for example, Monica Lewinsky and that whole thing with the president of the United States. A special prosecutor — nay, all of America — parsed every word of the country’s head of state, demanding to know exactly what these two had been up to in which closet — from “distinguishing characteristics” to stains on dresses and all the rest.

To Americans this was part of freedom — the free press and the right to hold government accountable.

To continental Europeans, by contrast, this was amusing at first, then awkward, then distasteful and finally undignified:

“Don’t these Americans have a sense of privacy?”

The Two Western Cultures of Privacy

So there you have it: two western cultures of privacy, each (being “Western”) deceptively familiar and yet incomprehensible to the other. Here are some questions, which fit perfectly into two of my threads here on The Hannibal Blog: the thread on America and the one on freedom.

  • What is privacy? What is to be kept private from whom, when, where and why?
  • And how does that interrelate with freedom and dignity?

James Q. Whitman

James Q. Whitman, a professor of comparative law at Yale, has written a profound article about exactly this. It is called “The Two Western Cultures of Privacy: Dignity Versus Liberty.” I recommend it. Here is the PDF.

For the rest of this post, I’ll try to describe the Atlantic culture clash and then the possible historical causes as Whitman sees them. In the next post, I’ll talk about two cases that are great examples of the two cultures. But first — and before you jump into the comments with your counterexamples (there are many) — note that Whitman himself admits that this is a matter of nuance:

The issue is not whether there is an absolute difference. Comparative law is the study of relative differences.

I. The clash

The conventional wisdom — with which I mostly but not totally agree — is that continental Europe has much stronger privacy laws than America does. In a long list of areas, Europe circumscribes what information can be circulated about people, whereas America hardly does so at all:

  • consumer data
  • credit reporting
  • workplace privacy
  • “discovery” in civil litigation (ie, rummaging around in the records of your opponents in a lawsuit)
  • the dissemination of nude images on the Internet
  • and so on.

As Whitman says,

I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

By contrast, privacy is explicitly enshrined in European law (both national and EU law). For example, Article 8 of the European Convention on Human Rights protects “the right to respect for private and family life,” and the European Union’s Charter of Fundamental Rights features articles on “Respect for Private and Family Life” and “Protection of Personal Data.”

But Americans can counter with a different list to prove that it is actually Europe which allows the compromising of privacy:

  • those “private parts”! (= nudity)
  • baby names: Several EU governments restrict what parents can name their children!
  • Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.
  • Court-room use of evidence that Americans would consider illegally seized
  • phone tapping, which apparently happens much more often in Europe than in the US

So the question is: What’s going on here? How did these differences come about? As Whitman puts it,

Why is it that French people won’t talk about their salaries, but will take off their bikini tops? Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection, but refuse to carry identity cards? Why is it that Europeans tolerate state meddling in their choice of baby names? Why is it that Americans submit to extensive credit reporting without rebelling?

II. Causes: Liberty versus Dignity

Let’s first try to analyze the two cultures of privacy in terms of what each thinks must be kept private from whom and for what purpose.

a) Europe (= dignity)

European privacy laws aim to protect a person’s dignity. In practice, this means protecting the individual’s control over the use of his

  • image,
  • name,
  • reputation, or
  • information

So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.

And who is the enemy/threat? Who would typically do the humiliating? Well, the press, or its new-media descendants today. Let’s just call them all the paparazzi.

b) America (= liberty)

American privacy laws, by contrast, aim to protect a person’s liberty. The word liberty is here defined in the traditional American (and quite narrow) sense of freedom from government tyranny. (Freedom can have many, many meanings: see here, here and here. ;))

Who is the enemy/threat in this culture?

Well, certainly not the press, whose freedom of speech is one of the things most in need of protection, even when that means that individuals (Lewinsky, Clinton) are being humiliated in public.

Instead, the enemy/threat is the state.

The locus of maximum protection, moreover, is not the public sphere (as in Europe) but the private sanctum of an individual’s home. The government must, to the greatest extent possible, be kept out of it. The police must (in most cases) not break in and search it. (This is true in Europe, too, of course, but the relative emphasis is stronger in America.)

In this culture, the right to privacy decreases as an individual moves further (physically or metaphorically) from his home. Once you’re in the workplace, in the subway, on the street, at the beach or otherwise in public, you’ve “asked for it.” Clinton, Lewinsky: you’re fair game!

Whitman puts the mutual incomprehension this way:

When Americans seem to continental Europeans to violate norms of privacy, it is because they seem to display an embarrassing lack of concern for public dignity—whether the issue is the public indignity inflicted upon Monica Lewinsky by the media, or the self-inflicted indignity of an American who boasts about his salary.

Conversely, when continental Europeans seem to Americans to violate norms of privacy, it is because they seem to show a supine lack of resistance to invasions of the realm of private sovereignty whose main citadel is the home—whether the issue is wiretapping or baby names.

Examples

Let’s take another look at the example of public nudity:

Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image. It’s not even OK for others to stare at you. (I’ve gotten in trouble over that.)

This concept of private public nudity is entirely alien to American law. In fact, it sounds oxymoronic (perhaps even just moronic) to Americans. They assume that once you have left the sanctum of your home and entered a public space, and indeed metaphorically shed the “walls” of your mobile “home” in the form of clothes, you can no longer expect privacy. You have, as it were, asked for it.

Just one illustration: The US Supreme Court’s 1995 decision in Vernonia School District v. Acton.

The question before the court was whether high school athletes could be subjected to mandatory drug testing. Yes, they could, said the court, because — and this is the logic that confounds Europeans to the point of making them guffaw — athletes regularly shower together (naked, we assume), and by voluntarily exposing themselves, these athletes can therefore expect less privacy, which means it is OK to test their piss.

(This might also shed light on the debate we had when I proposed “shaming” people who text and drive by snapping pictures of them and publishing them on the web. It seems that we are “free” to implement my idea in America, but not in Europe, where this might compromise the dignity of the drivers.)

III. History

So where do these fascinating differences come from? The conventional answer is that Europe after the Fascist horror of the 1930s and 40s, and in particular Germany after the Nazis, corrected for the sheer indignity of those crimes against humanity by elevating human dignity to the highest value.

I happen to believe this is largely correct (Whitman does not, and in my opinion this part of his thesis is the weakest). For example, Germany’s constitution, written in 1949, explicitly starts with the phrase

Die Würde des Menschen ist unantastbar (The dignity of each human being is untouchable)

I pointed to this in my post on the different views of healthcare in America and Europe, and alluded to it in my post on the different attitudes toward prisoners. (European law protects the rights of prison inmates “to a degree almost unimaginable for Americans,” as Whitman puts it. The European in me is shocked by the prison conditions in America.)

But Whitman traces the origins of the differences between America and Europe several centuries further back, and this is the most fascinating part of his argument. So here, in brief, are the histories of privacy law in Europe (France and Germany) and America:

1) Europe

In Europe, the concept of dignity “descends” from that of honor and the so-called law of “insult” that accumulated over the centuries around it.

In a nutshell, what we are talking about here are a bunch of toffs dueling, as in the picture above. It was aristocrats and other high-status individuals who protected their honor (ie, their “public image”), both from the prying eyes of the press and from insult by others. Gradually, society lost its taste for cleaning up the gore after duels and encouraged the toffs to meet in court instead.

What Europe’s various revolutions, starting with the French one in 1789, did over time was to elevate more and more low-class individuals to the same “royal treatment.” Eventually, after World War II, all Europeans became entitled to it, just as all adult French and Germans, of whatever status, could now expect to be addressed by other adults as vous or Sie.

France

France and Germany, took subtly different paths to get to the same place: In France, the main body of law was written during the 19th century in response to famous artists and writers doing sexy things of a questionable nature. (I know this comes as a shock.) I’ll highlight one such case, involving the author of The Three Musketeers, in the next post. In most cases, whenever the dignity of a prominent individual was threatened after sexy photos of him or her were published, even when that individual had expressly sold the right to those photos (!), the courts opted to preserve dignity.

Germany

In Germany, also during the 19th century, the individuals whose cases drove the law forward were not so much lascivious artists but brooding philosophers. (Again, I know this comes as a shock.)

Influenced by Hegel, Kant and their ilk, the German lawyers wanted to prove the pre-eminence of free will. They went all the way back to ancient Rome and the law of my hero Scipio to re-interpret the Roman law of “insult” (injuria). From this, they constructed the concept of Persönlichkeit (personality or personhood), which is often used in the same contexts that Americans use liberty but with a twist.

In a nustshell: To be free meant, as Whitman puts it,

to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their full richness…  The purpose of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.

(Sounds a lot like Abe Maslow’s self-actualization, don’t you think?)

In any case, both the French and the German legal traditions put much less emphasis on the sordid American obsessions with consumer sovereignty and commercial freedom (credit reporting, for example) and much more emphasis on creativity and the presentation of self, of Persönlichkeit in all its eccentric splendor.

2) America

America, by contrast, embarked on the journey of privacy law with the Bill of Rights. And it focused on limiting state power. The Fourth Amendment specifically establishes the right against unlawful searches and seizures as the main expression of privacy.

Searching and seizing is usually done in one’s home, so right from the start, the concept of privacy resided there.

Of course, there have been American lawyers over the years who have tried to make American law more “European”. The main attempt was “The Right to Privacy” by Samuel Warren and Louis Brandeis in 1890. But these attempts never went far.

Property rights and/or freedom of speech almost always prevail in American courts over appeals to privacy and dignity. Whitman cites, for example, the Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn and Florida Star v. B.J.F. In these cases, the media published the names of rape victims. In both cases the Supreme Court found that the First Amendment protected media outlets against suit. European courts would have been concerned with protecting the rape victims. Ironically, because those victims might once have been aristocratic toffs.

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The White Rose: German heroes

In a recent conversation, I brought up the White Rose–die Weiße Rose–and was reminded that most of you (being Anglophone) have probably never heard of them. But you must know them. Now you will.

They were a smallish group of students and one professor at the University of Munich during the Nazi era who defied and spoke out against the Nazi horrors. The middle petals of the Rose were Hans Scholl (above left) and his sister Sophie (middle) and their friend Christoph Probst (right). The group lasted less than a year until, in 1943, they were caught, “tried” and beheaded.

This summary does not do justice to them, however. They are, to me and to all post-war Germans, synonyms for goodness, courage, humanity. They are romantic, having lived Bohemian lives of pipes and poetry. They saw crimes against humanity and resisted, knowing that this would cost them their lives. At a time when conformity turned an entire nation into a murderous mob, they remained individualists, becoming heroes of all mankind.

The Leaflets

Alexander Schmorell

The Geschwister Scholl (siblings Scholl) and their friends watched with increasing horror what the Nazis said and did in the 1930s and early 40s. Then Hans Scholl and his friends Alexander Schmorell und Willi Graf were sent (nobody had a choice) to the eastern front in 1942 where they witnessed German atrocities in Poland and either saw or heard about the Warsaw Ghetto. Many Germans soldiers did, but these three were different: They decided not to stay silent but to fight the evil, which was their own regime.

Hans Scholl

They returned to Munich, where Sophie, Hans’ younger sister had moved to study biology and philosophy. She became friends with Hans’ friends. Never knowing whom they could trust, they formed their group, printing leaflets in secret back rooms and sending them by mail all over Germany.

They managed to print only about 100 copies of the first leaflet. (You can read an English translation of all six leaflets here, but I’ve chosen excerpts from the German and translated them in my words. Pictures courtesy of the Gedenkstätte Deutscher Widerstand):

Willi Graf

… Is it not true that every honest German today is ashamed of his government? And who among us can even guess the extent …?

… If the Germans, without any remaining individuality, have indeed become a heartless and cowardly mob, yes, then they deserve to perish…

Goethe talks about the Germans as a tragic people, like the Jews and Greeks, but today it seems that the Germans are a shallow, mindless herd of followers (Mitläufern) whose marrow has been sucked out and who, bereft of their core, allow themselves to be led into their extinction. It seems so, but it is not so; instead, each individual–after slow, insidious, and systematic rape–has been put into a moral prison, and only once he was captive did he become aware of his dilemma. Few understood the the menace, and their reward was death….

Each individual, as a member of Christian and Western civilization, must therefore rise up in this final hour and resist, as much as he can, against this scourge on humanity, against Fascism and every system like it. Resist passively, resist, resist wherever you are … Never forget that each people gets the government it deserves…

Christoph Probst

They then quoted Friedrich Schiller talking about Lycurgus and Solon (ie, ancient Greece) and Goethe, clearly reminding their readers of the previous heights of their civilization, the starker to contrast it with its present lows.

In the second leaflet, they begin to inform the Germans of what they had seen on the eastern front, so that none might later say (as many would) that they “didn’t know”:

… the fact that, since the conquest of Poland, three-hundred-thousand Jews have been murdered in a bestial way. Here we see the most dreadful crime against the dignity of man, a crime that compares to no other in the entire history of mankind…

… Nobody can pretend he was not guilty. Everyone is guilty, guilty, guilty! But it is not yet too late to wipe this ugliest monstrosity of a government off the face of the earth, in order not to become even more guilty….

.. the only and highest duty, indeed the holiest duty, of each German is to eradicate these [Nazi] beasts….

They then quoted Laozi and closed with an exhortation to copy the flyer as many times as possible and to distribute it (in effect, demanding martyrdom from each reader).

In the third leaflet, they exhort:

… The foremost concern of every German must not be the military victory over Bolshevism but the defeat of the National Socialists ….

before describing how people should resist:

… Sabotage of the military-industrial complex; sabotage in all Nazi gatherings, rallies, festivities, organizations…. Sabotage of all scientific pursuits to further the war, whether in universities, laboratories, research institutes … Sabotage of all Fascist cultural events…. Sabotage of all the arts that serve National Socialism. Sabotage of all writings and newspapers in league with National Socialism….

They ended by quoting Aristotle on the subject of tyranny and again exhorted readers to copy and distribute.

Sophie Scholl

From the fourth leaflet:

… Every word that comes out of Hitler’s mouth is a lie. When he says peace he means war, when he says the name of the almighty he means the power of evil, the fallen angel, Satan. His mouth is the stinking throat of hell…

They also assured readers that they took addresses randomly from phone books and did not write them down anywhere, then ended with:

… We will not be silent, we are your bad conscience; the White Rose will not leave you alone! Please copy and spread.

In the fifth leaflet:

… Are we to be a people forever hated and outcast by the world? No! Therefore resist these Nazi subhumans! Prove with your deeds that you think different!

They end with an amazingly prescient vision of post-war Germany and Europe, predicting a federalist Germany, a unified and peaceful Europe, and freedoms of association, speech and press.

In early 1943, after the German army was wiped out at Stalingrad, they produced their sixth and final leaflet, with their biggest print run yet–about 3,000 copies. They again mailed it all over Germany.

… Freedom and Honor! For ten years, Hitler and his thugs have twisted, raped, perverted these two beautiful German words…. They have shown what freedom and honor mean to them by destroying, throughout the past ten years, all material and spiritual freedom, all morality in the German people….

This time they went further. For three nights, they stealthily went out and painted the walls of the university quarter: “Down with Hitler!” “Freedom!”

Then Hans and Sophie (whom Hans had tried to keep out of the group in order to protect her but who had become passionately involved) decided to carry stacks of leaflets into the university to distribute them while lectures were in progress. This was reckless and the other members did not know about it.

Hans and Sophie stuffed a big suitcase full of leaflets, took it to the university and put stacks on window sills and in front of lecture halls. Just as the bell rang and students were about to spill out, they threw a big pile from the very top of a staircase into the light-filled atrium (where they are immortalized today, see left). A janitor saw them and alerted the Gestapo.

The guillotine

Four days later, Hans, Sophie and Christoph were “tried”. Hans and Sophie asked that Christoph be spared because he was married. The request was denied. On the same day the guillotine fell on their young necks.

Hans was 24 years old; Christoph 23; Sophie 21.

Their houses were searched and letters and addresses discovered. Soon after, Alexander Schmorell and Willi Graf, as well as their professor, Kurt Huber, were also caught and beheaded. Alexander and Willi were 25; Professor Huber almost 50.

Just before Hans was brought to the guillotine, he yelled out of his cell, echoing through the walls of the prison:

Long live freedom!


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