Bernhard Schlink
GUILT ABOUT THE PAST
Copyright © 2009 Bernhard Schlink
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First published in 2009 by University of Queensland Press
This edition published in 2010 by
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Library and Archives Canada Cataloging in Publication
Schlink, Bernhard
Guilt about the past / Bernhard Schlink.
eISBN 978-0-88784-269-6
1. Guilt — Social aspects. 2. Guilt and culture — Germany.
I. Title.
BJ1471.5.S36 2010 170 C2009-906502-9
Library of Congress Control Number: 2009940186
Jacket design: Bill Douglas on The Farm
We acknowledge for their financial support of our publishing program
the Canada Council for the Arts, the Ontario Arts Council, and the
Government of Canada through the Canada Book Fund.
Introduction
When we speak of guilt about the past, we are not thinking about individuals, or even organisations, but rather a guilt that infects the entire generation that lives through an era – and in a sense the era itself. Even after the era is past, it casts a long shadow over the present, infecting later generations with a sense of guilt, responsibility and self-questioning.
After the Third Reich, the burden of guilt about the past became a German experience and a topic of German cultural life and remains so today. Without relativising the national socialist past, it is true that the communist past is also a burden weighing on more than individual perpetrators and encompassing more than single acts. Even the student protests and terrorist attacks from the sixties to the eighties are sometimes regarded as the aberrations of an entire generation. That said, it is the experience and discussion of guilt about the Third Reich past that have infused the concept of collective guilt with its real meaning.
That the long shadow of past guilt is universal, and not just a German experience, goes without saying. But I’m not going to talk about the Americans and the Native Americans, the Belgians in the Congo, the British in India, or the French Foreign Legion. It’s not up to me to judge other people’s histories. Also, I’m just not able to discuss the shadow that past guilt casts upon the present in universal terms. Before attempting to think and talk about the universal experience of guilt, I would have to know much more about what other individuals have experienced and what their experiences meant in their native countries. I would never know enough – I have my hands full understanding the German experience.
The six essays presented here all have guilt about the past – Germans’ guilt about their past – as their theme. The first one addresses collective guilt. How did it come to pass that guilt was assigned not only to those specific and singular perpetrators, inciters, and their accomplices who made themselves guilty by their criminal deeds – but to an entire generation? The second essay concerns the question of how one lives with a guilt-laden past and how such guilt can be overcome. The third piece builds on the second to discuss the role of law in this process. The fourth essay is about forgiveness and reconciliation – who can forgive and how can reconciliation be achieved? The fifth essay is a page from the history about the student movement of the seventies and how its effects reached into the nineties.
Finally, I would like to approach a discussion of literature more directly. In the first five essays I’ll talk about it indirectly; I’ll discuss guilt about the past and, even though it’s a leitmotif in German literature and in my own fiction, I’ll discuss it not as a literary leitmotif, but rather as a theme of political and moral discourse. This reflects my education and training: I am a law professor and was for many years a judge, never a literary scholar or critic. I might also confess at the outset that I don’t reflect on my fiction writing in a theoretical way. I live with my plots and characters and play with them in my mind until I’m ready to write down the novel or story I have in my head. And since my characters think and feel within the parameters of my own thoughts and feelings, political, moral and philosophical themes enter into my fiction. But I haven’t developed an epistemology of writing, and don’t miss or feel the need to have one. In fact, the few reflections about literature and writing that I will try to offer in the last essay have only been triggered by the questions I have been asked and the criticism I have received long after the actual writing.
Collective Guilt?
Exploring the topic of collective guilt affords a view into the history of law. In ancient Germanic law, as in many other tribal law systems, when an injustice was committed it disturbed the peace between the individual perpetrator and the individual victim and, in addition, between the perpetrator’s clan and the victim’s clan. Thus, it was not just the perpetrator, but the perpetrator’s whole clan that was exposed to the revenge or the penalty exacted by the victim and their entire clan. The victim’s clan made the claim for atonement money, and the perpetrator’s clan was accountable for paying it. This collective responsibility, liability, and atonement operated through all levels of society and affected adults as well as children. If the victim of the wrongful act was a child, then the revenge sacrifice chosen was often not the actual perpetrator, but a child from his or her clan. As a reprisal for a crime committed against the community, the perpetrator along with his or her partner and children might be deprived of any sustenance. Beyond this, children were legally liable for some of their parent’s actions such as high treason and later also heresy. In the year 1320 in Nuremberg, a special law was recorded stating that persons constituting a danger to the public could be drowned in a sack together with their children. When families and clans were absent, and when the ties of families and clans became weaker, then the next highest-ranking collectives assumed responsibility, liability, and atonement; Germanic law recognised appropriate penal sanctions against guilds and municipalities.
Starting in the late Middle Ages the concept of collective responsibility, liability, and atonement lessened in significance. But even into the nineteenth century, when the notion had long since disappeared, there was discussion in Germany as to whether associations could be found guilty and were punishable for the acts of their members. And if I have informed myself correctly, Anglo-Saxon legal systems still recognise the imposition of fines against associations. Current international law prohibits collective punishments. It does allow, however, so-called reprisals to be taken against collectives that may contain elements characteristic of retaliation. A treatise of international law makes the subtle distinction that although the individual victim of the reprisal is being punished for a deed for which he or she is not guilty, this punishment is merely a reprisal vis-à-vis the collective. Of course, the victim will not feel the subtle distinction between a reprisal and a punishment.
Th
ere are a number of reasons for the diminished importance and eventual disappearance of the concept of collective responsibility, liability, and atonement. Today collective responsibility for an act is rarely included under the notion of guilt. Once guilt is defined as individual and subjective, based on fault, knowledge, and intent, strict liability, based only on causation and the result of the harm, becomes difficult to understand and defend, even if it is the same person who caused the result and is held strictly liable. To find a collective guilty and to hold it liable for something caused by a single person becomes even more difficult to understand and defend. The concept of individual and subjective guilt, or simply the guilt principle as the foundation of liability, has become dominant over a long development. In the first millennium, Christian theology developed a notion of sin that focused on individual intent and individual reform. In the early second millennium, Germany began to adopt Roman law in which the individual provides the conceptual and structural framework for judgment. Finally, the individualism and subjectivism of the Enlightenment left no room for collective judgment. Against this historical backdrop, the concept of guilt in connection with collective responsibility, liability, and atonement can be recognised, if at all, only as an irrational conceptualisation of guilt. In a modern German legal treatise referencing Carl Jung, collective guilt is understood as a psychological phenomenon where guilt spreads itself from the perpetrators over the broader human and even physical landscape into the surrounding areas, seizing houses, villages, and woods where the crimes took place; it is as irrational as it is primal.
And yet, the development that gave rise to our current concept of individual guilt was fostered not only by the adoption of Christian theology, the reception of Roman law, and the growth and flowering of the Enlightenment rationality over superstition and irrationality. The disappearance of tribal liability or liability based on clan affiliation coincided with the dissolution of the tribe and clan system, which together with the decline of rural populations due to feudalisation allowed many to become, as was said in colloquial German, ‘too low for the feud and too poor for the penance’. The increase of territorial rule and the monopolisation of the use of force by regional lords required that vengeful feuds had to be repressed. Whereas the individual had once been a legal entity not of his or her own accord, but only as he or she was recognised and protected by a tribe, clan, guild, or municipality, society transformed itself economically as well as politically, so that the individual now became the fundamental legal entity.
It was and is not irrational to have tribes, clans, and other communities that grant legal recognition and protection as entities that are thus capable of liability. The rationale for collective responsibility, liability, and atonement becomes apparent when we look at how old Germanic law approached the release from liability. The perpetrator’s clan would be released from liability if they broke with the perpetrator, if they expelled him or her, or if they handed him or her over to the victim’s clan. Not the least reason for this was that the perpetrator contributed to the clan’s economic wellbeing. The clan was sustained by the labour and the performance of its members and ought not be able to continue to profit from the perpetrator’s work. If abandoned to members of the victim’s clan, this clan then had the discretion to either put the perpetrator to death or to make him or her their slave. In later times public authorities took over this role; instead of being delivered to the victim’s clan, the perpetrator was handed over to the public authorities. Public authorities also punished the guilds and municipalities if they did not of their own accord punish, expel, or deliver a perpetrator up for punishment.
The idea behind these ways of achieving a waiver of liability is clear: the collective incurs liability for the perpetrator’s misconduct in as far as solidarity and economic community with the perpetrator are maintained in reaping the profits from their labours, aiding them after the fact, and obstructing their just punishment. To punish a community because it did not administer justice itself by punishing the perpetrator or did not hand them over for punishment presupposes the existence of a public authority that hardly existed in early Germanic law and can be recognised in any real sense only during the course of the Middle Ages. But releasing the perpetrator’s clan from liability through dissociation, expulsion, or ostracism of the perpetrator is an old idea, and the thought that collective liability has its foundation in freely chosen solidarity is discernable therein. This idea is something other than strict liability in opposition to liability through fault. It is not the idea of responsibility for someone else’s crime, but of responsibility for one’s own solidarity with the criminal.
The web of guilt that captures offences of this kind is high and wide. Beyond the perpetrators, every person who stands in solidarity with them and maintains solidarity after the fact becomes entangled. In a legal sense, today one can only be judged guilty if, according to existing law, maintaining or establishing solidarity amounts to criminal obstruction of justice, acting as an accessory after the fact, or receiving stolen goods. But the concept of guilt is not only associated with the standards of existing law, but also with norms of religion and morals, etiquette and custom as well as day-to-day communications and interactions. The unavailability of legal remedies does not exclude other norms from being identified and applied in other cases of maintaining solidarity with the perpetrator.
In my opinion, such norms exist. The maintenance and establishment of solidarity is a normative occurrence, supported and accompanied by normative expectations. By normative I mean expectations that are maintained despite factual disappointment and distinguished from factual expectations that are tested against reality and willingly modified when mistaken. Affirming one’s solidarity with another is a declaration that they should be regarded, respected, and treated as an equal. In fact, as anyone can see, the two are in separate situations and therefore the declaration can be regarded as factually incorrect. Nevertheless, the expectation that both should be regarded as equals is not given up but held onto against the facts; one who declares oneself in solidarity with another is insisting on this expectation – as does an outsider who takes the declaration seriously. The price for establishing and maintaining solidarity is of course that one is regarded and treated equally also when one would rather not be. As long as the ties of solidarity are not severed, all the behaviour of the one will also be credited to the other.
The norms that bring about this connection of responsibility are not of a particular moral code or etiquette. They are the rules that communications and interactions follow and function under. If maintaining and establishing solidarity is not creating a community of responsibility, of answering for actions and ultimately of bearing the accusations and consequences then there is no such thing as solidarity. How is it achieved? By belonging to a family, an association, an organisation or institution, and even to a people. Not that the ties could never be severed, that there could be no dissociation and expulsion. Still, as long as those options have not taken place, the solidarity exists as by default, if you will.
The assumption that membership to a people engenders solidarity is something Germans of my generation do not easily like to accept. Many of us tend to regard ourselves as world citizens of a global society, as free citizens in a free world, as Westerners or Europeans, rather than as Germans. But everyone with minimal awareness who travels knows that the world is not so cosmopolitan and international as one might like it to be. That wish is symptomatic of another wish to escape feelings of common responsibility and guilt assumed to exist through the solidarity of belonging to the same country of people.
I would like to posit these last thoughts with regard to the Third Reich. The crimes committed before 1945 did not include only perpetrators, inciters, and accessories to the crimes; there were also those who were fully capable of resistance and opposition but did nothing. After the
crimes had been committed it was possible to either maintain or withdraw solidarity from them. The perpetrators and those who were implicated in one way or another in the crimes could have either remained within the circle of solidarity or have been cast out if it. The legal historical perspective shows that the act of not renouncing, not judging and not repudiating carries its own guilt with it. And it is not a legal historical reminiscence. It is equally true today that one becomes entangled in another’s guilt if one maintains or establishes solidarity with that person. The principle is as follows: to not renounce the other includes one in that person’s guilt for past crimes, but so that a new sort of guilt is created. Those in the circle of solidarity who are themselves not guilty through actions of their own, bring about their own guilt when, in response to attendant accusations, they do not respond by dissociating themselves from those who are guilty. According to this principle it was possible for Germans, if not already guilty as perpetrators and participants prior to 1945, to be implicated in guilt thereafter for not having separated themselves from the perpetrators and participants though renunciation. That the Germans did not do so, or only did so haphazardly and half-heartedly and not as they were in a position to have done, is true without a doubt. They didn’t even do it when they, as the German protestant churches did, recognised collective guilt after the war; whilst acknowledging everyone’s guilt and seeking forgiveness for all, they neglected to renounce individual perpetrators and participants.
The webs of guilt have their own tragic nature, in the sense that dissociation, repudiation, and judgment could not be fully successful after 1945. For one, the numbers were huge; those who were involved in one way or another were just too many. And then there is the grim alternative between repudiation by ‘a night of long knives’ that would cut down both the guilty and innocent, and repudiation by the state governed by the rule of law through court rulings, case by case, that can only be insufficient in the face of organised crimes against humanity. There is no third choice. Even if the Germans had wanted to renounce the perpetrators and participants decisively and wholeheartedly, instead of haphazardly and half-heartedly, they would not have been spared the guilt: because renunciation would not have included all those who were guilty or because innocent people would have been implicated as well.