Guilt About the Past

by Bernhard Schlink

  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.

  The law’s ability to be moulded into opposing functions to support the social task of remembering and forgetting is not merely instrumental. However the law is instrumentalised – it shows one of its true functions. Also, it brings the law into conflict with its opposing function. Coming to terms with both the national socialist and communist German past through law created legal conflicts concerning the statute of limitations and the prohibition against retroactive punishment. The time granted under the statute of limitations for prosecution and adjudication of national socialist and communist offences had run out or was about to run out, and, moreover, under the prohibition against retroactive punishment the defendants could only be prosecuted and sentenced if their acts had already been criminal offences at the time.

  When the statute of limitations threatened to run out in the sixties and seventies for national socialist offences, and in the nineties for communist ones, extending or suspending the not-yet-expired period of limitations averted the deadlines. Some German legal scholars expressed concern about making such changes in the law governing the statute of limitations. They argued that the prohibition against retroactive punishment would be violated. But the Federal Constitutional Court accepted the extension or suspension of the statutes of limitation that were to expire as in accordance with the constitution. Indeed, there is a lot to be said for punishable acts being defined in law before the deed so that the definition of the crime includes the elements of the offence and its punitive sanctions, but not the duration of the possibility of criminal prosecution. Citizens should feel secure and know which of their behaviours and omissions are punishable and how they will be punished, but they do not have the same need to know how long after the crime the administration of justice will still prosecute them. This also corresponds to the principle of guilt: a citizen does not bring guilt upon themself if they consider their behaviour not to be punishable and, in view of existing law, can believe so in good faith; but they are no less guilty solely because after a set date ensured by law their punishable behaviour will no longer be prosecuted.

  More problematic by far under the rule of law is the prosecution and adjudication of national socialist and communist offences that, without a doubt, would never have been prosecuted or punished in the Third Reich or in the GDR. The perpetrator assumed at the time that their behaviour was not punishable, and they could reasonably do so in view of then-existing law. In the Third Reich, when soldiers had murdered Jews without a command to do so and were called into account for their actions before the law, it was for failing to follow the military code and expressly not because of killing Jews; even though murder was, of course, punishable, for soldiers there was an exception and justification for killing Jews. In the GDR, when an attempted illegal border crossing was prevented by firing lethal shots it was justified by the border law of the time and was not only not punished, but praised and rewarded.

  The Federal Republic of Germany enshrined in its constitution the prohibition against retroactive punishment, in direct opposition to the statute of the International Military Tribunal in Nuremberg and Allied Forces’ Control Council Act Number 10 that expressly suspended it. But from early on, its courts built on a principle articulated by the German legal philosopher Gustav Radbruch in justifying the punishment of national socialist offences. The so-called Radbruch formula states that when statutory law stands in unbearable contradiction to justice, the law must yield and justice be fulfilled. The courts punished the killing of Jews and other offences in accordance with the criminal laws valid during the Third Reich, but by applying the Radbruch formula they stripped the laws of those justifications and exemptions that would have prevented the perpetrators from being punished during the Third Reich. Although the will and command of the Führer was the supreme law and even its sole source under the national socialist system, Hitler’s order to annihilate the Jews was, with Radbruch, seen as unable to overcome the essential core of the law,
that includes in accordance with the consensus of civilised human beings, the prohibition of genocide.

  In dealing with the laws of the GDR, the court decisions of the Federal Republic make a similar argument. Under the aegis of the Radbruch formula, the GDR’s legal justifications for fatal shootings at the Wall are ignored because they violate the commonly-held conviction of all people concerning the worth and dignity of human beings and they infringe upon the fundamental idea of humanity and justice. Aside from that, in their decisions the judges considering what the law in the GDR was at the time of the offence did not feel bound by how the law of the GDR was interpreted and applied. Instead, they interpreted the GDR laws as if they were the laws of a constitutional state respecting human rights and the principles of proportionality. Under this Federal Republican interpretation, the GDR’s border law could not be interpreted to justify fatal shootings at the Wall.

  The idea that GDR laws can be applied according to some later Federal Republican interpretation and are still GDR laws is an attempt to leave the natural law argument of the Radbruch formula behind – natural law is a dubious argument among modern lawyers. But to pit what should and ought to be valid against strict adherence to valid statutory law is true to the spirit of natural law. No reasonable concept of legal validity is yielded when a law’s validity at a certain time and place is content free – with the content being filled in in different ways by different later interpretations and applications. There is no way around it: what German courts did, and still do, in dealing with the Third Reich as well as the GDR is use natural law to relativise, to partly neutralise the prohibition against retroactive justice.

  When the prohibition against retroactive punishment is valid and enforced, a society can no longer fall back on the stark measures of criminal law statutes to exclude perpetrators from their midst. Instead, integration into the collective biography must be achieved through other means and the fact that exclusion through criminal law cannot be successful must also be integrated. How is this to be done, if a society neither can nor wants to? Or if the past is so horrible that it can only be integrated through the means of criminal law exclusion?

  The prohibition against retroactive punishment is guaranteed in nearly all constitutional law countries by their respective constitutions. Therefore, the legislature cannot suspend or alter it through regular legislation. But the legislature has the power to amend the constitution on this point. The relativisation of the prohibition against retroactive punishment achieved by case law at the cost of the integrity of the prohibition would have been attained without this price had an amendment to the constitution suspended the prohibition against retroactive punishment expressly for prosecuting national socialist or communist offences.

  Rather than the courts, the legislature would have been answerable for the question of retro-active punishment – with all the political debate and publicity that constitution-amending legislation enjoys. It would have also rightly deserved this discussion and publicity; whether past events should be retroactively punished and thereby excluded or if they should be integrated in another way into the collective biography is one of the critical questions of coming to terms with the past.

  There are several grounds for why the leading cases in the Federal Republic answered the question on their own rather than leaving it to the legislative process. For one thing, the crimes of the Third Reich were so heinous that there appeared to be only one possible answer to the question of retroactive punishment; it seemed legally superfluous that this question first be referred to parliament instead of immediately answered by the courts that had to determine the final result concerning retroactive punishment anyway. Second, the old theory of comparative totalitarianism equating national socialism and communism may have played a role in judging the communist past with the same legal tools as the national socialist past. But much more relevant was the simple circumstance that once the GDR offences came up, the criminal law provision against retroactive punishment had already been relativised. The courts were not particularly interested in comparing equal, similar or differing totalitarian political systems and their equal, similar or differing qualities as countries without adequate justice. They needed to consider discrete acts and they found the old jurisprudence on national socialist offences could be applied to GDR offences with some minor adjustments despite the criminal law provision against retroactive punishment. So apply it they did.

  Therefore, constitutional debates, discussions and decisions about using constitutional law to come to terms with the national socialist and communist past through retroactive punishment did not take place. The law could not make its most profound contribution in coming to terms with the past. With the constitutional law guarantee against retroactive punishment, the constitution stands as the level at which the question of coming to terms with the past through retroactive punishment is to be asked and answered, as a political question of vital importance, to be answered in a political debate with political publicity to reach political clarification. Surely, it was a lost opportunity for the Federal Republic of Germany that the question was not asked and answered in that manner in coming to terms with the past.

  The law’s most profound contribution in coming to terms with the past is not what society decides to construct as its past and to integrate into its biography, but how the decisions take place. Somehow the law plays an important role whatever society decides; it supports forgetting in repressive cultures and remembering in cultures of remembrance. But its real work is providing forms and procedures in which decisions about construction and integration are made. It allows for condemning perpetrators not through revolutionary fury and revenge but only through trials, it accepts trials not as irregular revolutionary tribunals but only as regular court cases, it demands that courts decide their cases not through a usurpation of power, but with respect for the law and the decisions of the legislature, it requires decisions of the legislature not with a simple majority but with a qualified constitutional majority once the constitution is at stake, decisions with the corresponding political discussions, publicity and elucidation. In coming to terms with the past, the law’s specific contributions are the forms and procedures it provides. They are its contributions to coming to terms with the past and to political culture in general.

  Forgiveness and Reconciliation

  When I was a child my day ended with a prayer. Before my mother gave me a goodnight kiss, she watched over me as I thanked God for the good things that had happened to me during the day, as I confessed my failings and promised to improve, as I talked about what I had planned for the next day, as I asked for His guidance, and as I prayed for His mercy on those I knew to be sick or in distress. On the nights there weren’t too many offerings of thanks, confessions, reports, and requests, I closed the prayer with an ‘Our Father’.

  One evening I asked God to forgive me for hurting my brother or one of my sisters. After the prayer my mother wanted to know if I had asked for forgiveness from the brother or sister themselves. No, I had not done that. She replied that then I had no right to ask God for forgiveness and that God does not grant forgiveness as long as we have not sought it from those we have injured. We can ask God for forgiveness, she continued, only after our attempt has failed because the other person is too hurt, stubborn or self-righteous to forgive, or if they are dead and can no longer forgive. It sounded to me as if God did not even have the right to forgive as long as the person injured had not exercised their right either to grant or withhold forgiveness.

  That is not what my religious mother would have meant, but she certainly believed that the grace of God consists of removing the burden of guilt by forgiving it when we cannot attain forgiveness from those whom we have hurt. For that we need God; that is what He is there for. Or, those who do not believe might point out, mockingly or enviously, that is why those who believe in God invented Him.

  I think that my mother was right. I
f a person does not believe in a forgiving God, then they have to live with their guilt when they can no longer obtain forgiveness from the person they injured. No one can step in as a replacement for the victim to offer forgiveness; forgiveness granted by someone other than the victim is presumptuous. In seeking forgiveness, there is the possibility of advocacy or intercession, but not of stepping in as a replacement. Asking for forgiveness requires the perpetrator to acknowledge that they committed the act that harmed the victim, to affirm their own guilt, and to also recognise the right of the victim to grant or to deny forgiveness – to lift the burden of guilt from the perpetrator or to leave them carrying it. No one can achieve that in the victim’s stead.

  But often there are more involved than the perpetrator, the victim, and perhaps God. Friends and relatives suffer as well under the effects of the crime, in addition to the actual victim. The trauma suffered by parents can be passed down to children and even grandchildren – as can the guilt.

  If an act affects not just the victim, but also the victim’s partner, parents, and children, then these affected persons, while not capable of offering forgiveness for what the perpetrator did to the victim, can either grant or withhold forgiveness when the perpetrator seeks it for the suffering they themselves have endured. If the subsequent generation is partially mired in the perpetrator’s guilt and partially entangled in the victim’s fate, then there is a certain correspondence between the trauma experienced by the victim’s children and the burden of guilt carried by the perpetrators’ children. The children bound in their parents’ fate as victims and those entangled in their parent’s guilt as perpetrators belong to the same generation and are connected by the same crime. But the perpetrator’s children cannot ask for forgiveness for this crime, and neither can the victim’s children grant it. They are not each other’s victims or perpetrators.