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40/68 – Germany's 1968 and the Law

Published online by Cambridge University Press:  06 March 2019

Washington & Lee University GLJ Seminar Fall 2008

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Democracy thrives in that narrow space that divides order from chaos; it is a balance between the order of law and government with the necessary disorder dissent and protest create. The year 2008 marked the 40th anniversary of 1968–when that balance momentarily appeared to shatter in West Germany. The young democracy was still defining itself, shaping its new identity while coming to terms with its past. In 1968 this new government of the old guard, obsessed with order, clashed with a new generation that saw many of the faults of Germany's Nazi past masquerading as democracy. But the new government was built upon the old authoritarian superstructure. The youth of the 60s eventually became the establishment, and now they are turning over power to a new generation. Although the torch has been passed from Clinton and Schroeder to Obama and Merkel, the legacy of the students of 1968 continues to echo through modern times. In December of 2008, the shooting of a teenage boy by Greek police ignited violent protests that rapidly spread across the country. Like the protests of 1968, the purpose of the protests in Greece was greater than the event that sparked it. The shooting tapped a deeper well of unrest. Like the protests of 1968, the goal of the protesters was unclear, but the passion was unmistakable.

Type
Developments
Information
German Law Journal , Volume 10 , Issue 3: Special issue - Germany's 1968 and the Law , 01 March 2009 , pp. 223 - 260
Copyright
Copyright © 2009 by German Law Journal GbR 

References

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206 Dutschke explained: “We within the Left-oriented student organizations could then explain to the rest of the students that these [university reform] suggestions of rationalization, these so-called ‘reforms’ can not be seen apart from the difficulties experienced by capital in finding new forms of returns … The talk of recruitment restrictions and a shortened period of study, so that studies can be more effective. But more effective for whom? Effective for you, for your individual development, your emancipation? For the emancipation and liberation of society? Or effective for the social emancipation of capital?” Dutschke, supra note 197, at 123–24. The solution to the seemingly irredeemable university establishment was the creation of “Gegenuniversitäten” or “oppositional universities.” See Frei, supra note 196, at 98 and 125.Google Scholar

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209 Habermas rejected the “sharp demarcation” between “‘revolution’ and ‘reform',” arguing instead that “[t]he only way I see to bring about conscious structural change in a social system organized in an authoritarian welfare state is radical reformism.” Habermas, supra note 194, at 49.Google Scholar

210 Kloss, supra note 196, at 323; Habermas, supra note 198, at 17 (“Despite an extensive rhetoric of reform, the only comprehensive conceptions for universities in a democratically constituted industrial society have been worked out by students … [Aiming] at the democratization of the university. Students experience the university from a sobering perspective—from below. They see how, under the changed conditions of mass education and large junior faculty, the perpetuated authority structures of the nineteenth century noticeably inhibit creative development and the rational planning of teaching and research. They understand that they are the prime victims of the absence of university reform. This is why they want to obtain the power of joint-decision in all self-governing bodies.”).Google Scholar

211 But see Kurlansky, supra note 48, at 147 (“One of the surface issues was academic freedom and control of the university. The fact that this often stated issue was not at the root of the conflict is shown by the place where the student movement was first articulated, developed most rapidly, and exploded most violently. Berlin's Free University was, as the name claimed, the most free university in Germany. It was created after the war, in 1948, and so was not mired in the often stultifying ways of old Germany. By charter a democratically elected student body voted with parliamentary procedure on the faculty's decisions.”); Habermas, supra note 198, at 20 (Describing Berlin's Free University as “differing from other West German universities” in that its “liberal” constitution extended extensive rights and powers to the students; that the student body was especially politicized through West German self-selection and East German immigration; and that there was a greater number of “politically conscious and liberal-minded professors.”).Google Scholar

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215 Kloss, supra note 196, at 342 (“The only concern of most of the professors, with a few notable exceptions, appeared to be the perpetuation of the existing system and the preservation of the ‘dignity of the university.'”).Google Scholar

216 Grundgesetz (GG - Basic Law/Constitution) art. 5(3) (F.R.G.). The right as articulated in Article 5(3) has roots in earlier German constitutions including the Prussian Constitution from December 5, 1848; the Frankfurt Paul's Church Constitution from March 28, 1949; the Prussian Constitution of 1950; and the Weimar Imperial Constitution from August 11, 1919. With only the addition of the word “Forschung” or “research,” the text of Article 5(3) is practically unchanged from Article 142 of the Weimar Constitution. Ingold Pernice, Artikel 5 III (Wissenschaft), in I Grundgesetz Kommentar 457, 458 para. nr. 1 (Drier, Horst ed., 1996).Google Scholar

217 In December 1968 students at the University of Frankfurt engaged in a series of strikes and repeatedly occupied university buildings. The protests were particularly aimed at the Sociology Department and the Institute for Social Research, the institutional home of the world renowned neo-Marxist critical theorist Theodore Adorno. Adorno followed Max Horkheimer as the Institute's Director and as the leading light of the Frankfurt School that so significantly informed the theoretical foundation of the student protest movement. Frei described the Institute as the “intellectual wellspring of the student movement.” Frei, supra note 196, at 93. See Martin Klimke, West Germany, in 1968 in Europe: A History of Protest and Activism, 1956–1977 97, 99 (Martin Klimke and Joachim Scharloth eds., 2008). Tony Judt concluded that “[t]he 1960s were the great age of Theory.” Judt, supra note 23, at 398. But Adorno and his protégé Jürgen Habermas would eventually break with the students, leading the students to level bitter, recriminating accusations of betrayal and intellectual bankruptcy against the once-revered professors. See Frei, supra note 196, at 88–98; Martin Beck Matustik, Jürgen Habermas – A Philosophical-Political Profile (2001). December 1968 ended with Adorno and Habermas offering no objection to the police retaking the Sociology Department from the students, a posture the students and a number of more assertive faculty brand as “Stalinist and Fascist” and “Goebels-like.” Martin Beck Matustik, Jurgen Habermas – A Philosophical-Political Profile 59 (2001). Facing another student occupation of the Institute for Social Research at the end of January 1969 Adorno summoned the police himself. Id. See Martin Klimke, West Germany, in 1968 in Europe: A History of Protest and Activism, 1956–1977 97, 104–105 (Klimke, Martin & Scharloth, Joachim eds., 2008).Google Scholar

218 University Reform Case, 35 BVerfGE 79, 111 (1973). See Pernice, supra note 216, at 474 para. nr. 32 (“Every prohibition on research or teaching, every attempt by the government to influence the conceptualization, method, collection of materials, evaluation and dissemination of the results of research, every effort to steer or control the content and character of teaching is to be regarded as an interference with scholarly freedom.”) (author's translation).Google Scholar

219 Id. at 112. Perhaps the Court tipped its hand on the broader question of its willingness to make a radical break with Germany's entrenched university tradition when it quoted Wilhelm von Humboldt in support of its claim that the chief aim of higher education is the discovery of the truth (“Research and teaching must remain unhindered in the search for truth, which is ‘something not yet fully discovered and not fully discoverable.'”). Kloss noted that Humboldt's principles were at the heart of the authoritarian, hierarchical and impractical university system against which the students were protesting. Kloss, supra note 196, at 331. See Pernice, supra note 216, at 458 para. nr. 1, 459 para. nr. 4.Google Scholar

220 University Reform Case, 35 BVerfGE 79, 113–114 (1973). See Pernice, supra note 216, at 465–66 para. nr. 18–19, 481 para. nr. 46.Google Scholar

221 Id. at 114.Google Scholar

222 Id. at 115. See Pernice, supra note 216, at 482 para. nr. 48.Google Scholar

223 Id. at 123. See Pernice, supra note 216, at 482 para. nr. 48–49.Google Scholar

224 Id. at 123 (emphasis added).Google Scholar

225 Id. at 124.Google Scholar

226 Id. at 124–125.Google Scholar

227 Id. at 125.Google Scholar

228 Id. Google Scholar

229 Id. Google Scholar

230 The Constitutional Court repeatedly has been called upon to address professors’ Article 5(3) challenges to reforms implemented as a result of the student protest movement's demands. In these other cases the students fared no better or worse than they did in the University Reform Case. They might be credited with a victory in the Hesse University Act Case. There the Constitutional Court upheld Hesse's law that required academics to take into consideration the “social consequences” of their research and required researchers to publically warn of the social consequences of their work if it raises “well-founded misgivings or reservations.” 47 BVerfGE 327 (1978). But in the Bremen Model Case the Constitutional Court reaffirmed the “special influence” professors are expected to have in the governance of universities, ultimately concluding that no Article 5(3) violation results if this professorial priority is secured by a voting majority. 55 BVerfGE 37 (1980).Google Scholar

231 University Reform Case, 35 BVerfGE 79, 125–126 (1973).Google Scholar

232 Id. at 126.Google Scholar

233 Id. (emphasis added).Google Scholar

234 Id. at 133.Google Scholar

235 University Reform Case, Dissenting Opinion of Justices Simon and Rupp-v. Brünneck, 35 BVerfGE 79, 147, 148 (1973).Google Scholar

236 William Horsley, Profile: Joschka Fischer's Three Lives, BBC News, Jan. 9, 2001, available at http://news.bbc.co.uk/1/hi/world/europe/1107628.stm.Google Scholar

237 Id. Google Scholar

238 Grant, Charles, Joschka Fischer, Time, Apr. 26, 2004, available at http://www.time.com/time/magazine/article/0,9171,994024,00.html?iid=chix-sphere.Google Scholar

239 Cohen, Roger, German Official Owns Up to ‘Wrong Done to Others', N.Y. Times, Jan. 5, 2001, available at http://query.nytimes.com/gst/fullpage.html?res=9405E6DA1F3BF936A35752C0A9679C8B63&scp=1&sq=German%200fficial%200wns%20up&st=cse.Google Scholar

240 Parker, George, Lunch with the FT: Daniel Cohn-Bendit, The Financial Times, Mar. 22, 2007, available at http://us.ft.com/ftgateway/superpage.ft?news_id=fto032220071610079358.Google Scholar

241 Id. Google Scholar

242 See Hoffman, Cara, Once revolutionary ‘Danny the Red’ delivers talk of reform, not revolt, Cornell Chronicle, Nov. 15, 2005, available at http://www.news.cornell.edu/stories/Nov05/cohn-bendit.talk.doc.html.Google Scholar

243 Interview by Antonia Schäfer with Daniel Cohn-Bendit, Jan. 23, 2008, available at http://www.cafebabel.com/eng/article/23621/daniel-cohn-bendit-stop-the-comparisons-with-1968.html.Google Scholar