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The attack on civil rights in West Germany

The atlack on civilrighlS in Wesl
Germany

Claudia van Braunmuhl
Introductory note
equated with ‘sympathy for terrorism’, protest
against the policy has not been silenced, but continues to grow. The various groups in West Germany
struggling to defend and recover basic democratic
rights have repeatedly appealed for support and
solidarity from other countries, noting the sensitivity of the West German authorities to the pressure
of international opinion. In response to these appeals,
the Bertrand Russell Peace Foundation has set up an
International Russell Tribunal on human rights in
West Germany, which is to conduct its hearings in
West Berlin this spring. Details of the Tribunal,
and of the campaign of support for it currently being
organised in this country, are given in the News
section of this issue. Readers may have seen the
recent press reports of the regret and distaste for
the Berufsverbote policy expressed by leading SPD
politicians such as Willy Brandt and Helmut
Schmidt, and of their desire to dismantle it.

(Contrary to a recent report in the Observer, however, there is no Sign of a let-up in the Berufsverbote and allied forms of repreSSion, even in the
SPD-governed states of the Federal Republic~ Such
reassurances contrast strangely with the denunciations in advance of the Russell Tribunal’s intended
investigations, recently issued by Willy Brandt, as
Chairman of the SPD, and by the F.ederal Minister
of the Interior, Werner Maihofer. According to
Herr Brandt, the Tribunal is an insult to the German
state and to the ruling Social Democrats; SPD
members have been instructed to boycott the
Tribunal. Herr Maihofer, in an official statement,
has alleged that the organisers of the Tribunal are
implicated with ‘sympathisers of terrorism’. This
follows the established pattern by which challenges
to the Berufsverbote are themselves held as
evidence of ‘enmity towards the Constitution’. As
Claudia von BraunmUhl’s postscript to her article
clearly demonstrates, the present political climate
in West Germany is indeed one of intensifying
McCarthyite persecution.

the term ‘Rechtsstaat’ in referring to the state
acquires an ironic and bitter flavour.

This ‘rule of law’, which is historically a device
West Germany is considered to be a liberal demofor the protection of the citizen and a constraint on
cratic state, holding a pOSition of considerable
the power of the state has become a means for proeconomic strength amongst the western powers.

tecting the state against the claims of its citizens.

While the latter point is hardly disputed, recent
developments have thrown much doubt on the liberal In West Germany, however, political repression
operates within a legal and judicial framework
democratic side of the country and its much
provided by a willing legislature and judiciary.

celebrated ‘rule of law’ (Rechtsstaat).

A good deal of information has appeared on recent The very ‘Rechtsstaat ‘ West Germany prides itself
on has become a means to eliminate any actual
developments in West Germany, the decline from
the short period of liberalization from 1969 to
content of a rule of law.

What distinguishes present-day political repreSSion
1971-2 and the rise of a strong state resorting to
in West Germany from the McCarthy era, with
political repression to an increasing extent. There
have also been reports on specific cases of political which it is often compared, and gives it a much more
repreSSion, specific abuses of administrative power, dangerous character, is that administrative action
is turned into law and sanctioned by the ruling of the
alarming trends within particular institutions, and
highest courts, petrifying these into legal instruso on. And, indeed, it is a long and sad tale.

ments at the disposal of a strong state. Possibly
However, little, far too little, is known about the
more important, any domestic opposition against
actual legal and judicial changes that have taken
place within the last few years. In the light of these political repreSSion finds itself deprived of legality
and risks criminalization or loss of work (Berufsdevelopments the habitual and euphemistic use of

Recent months have seen a heightening of public
concern in Britain and other West European
countries about the systematic erosion of civil
rights in the German Federal Republic. The
principal cause of this process of erosion is the
administrative practice known as Berufsverbote,
by which ‘radicals’ or ‘extremists’ whose ‘loyalty
to the Constitution’ is held in doubt by the authorities
are excluded from employment by the state. This
practice, instituted six years ago under the auspices·
of the then Federal Chancellor, Willy Brandt, has
received only sporadic coverage in the British press,
which has scarcely conveyed the enormity of the
repressive effects of the Berufsverbote. In such a
context, Helmut Schmidt’s election slogan, ‘Model!

Deutschland ” the ‘German Model’, takes on a new
and disturbing meaning for the citizens of other
Western states. It is now estimated that about 1. 3
million West Germans have so far been investigated
by the ‘Constitutional Protection Agency
(Verfassungsschutz), and that around 4,000 persons·
have been banned or dismissed from employment
in the state sector.

Radical Philosophy is happy to be able to publish
Claudia von Br aunmUhl ‘s study of the legal and
juridical decisions and principles by which the
Berufsverbote have been justified. The practice was
inaugurated at a concerted national level by the socalled ‘Decree on radicals’ issued by a conference
of state Prime Ministers held in January 1972.

(Und.er the -West German Constitution, such a conference has no legislative powers.) The policy of
investigations and bannings inaugurated by this
administrative ‘decree’ was subsequently upheld as
constitutionally valid by the courts, which exercise
supreme authority in the interpretation and application of the 1949 Basic Law of the Federal Republic.

In spite of the immense wave of McCarthyite
intimidation and repreSSion unleashed by the
Berufsyerbote, with political dissent being officially

Political repression and legality

2

verbot) on perfectly legal groWlds. Apart from the
extended it into their internal organisational conduct.

obvious personal distress for the victim, this has
Thus they not only do not encourage any kind of
devastating consequences for the organisation of any oppOSition but continue state induced political rekind of protest. Not only do people feel threatened,
preSSion within the much Wider scope of their
intimidated and discouraged, but, faced with the
organisational reach. So the public sector can be
form of legality assumed by political repreSSion
seen as quite directly setting a pace which is
they tend to neglect the question of its legitimacy.

adopted by .the rest of society.

This is all the more so, as the conforming mass
media, themselves Wlder political pressure, will
hardly allow sensitive information to penetrate,
It was for the civil service that the Decree on
much less seriously raise the question of legitimacy. Radicals was originally issued, thereby providing
Furthermore, West Germany can still rely on its the a posteriori basis for an administrative practice
postwar image favourably contrasting with fascism, that hitherto had lacked legal basis and indeed had
and, despite some cold war ‘lapses’, passes as a
been ‘widely criticized for being in no way compatible
stable liberal-democracy. ‘Stability’ and ‘liberality’ with the constitution of the FRG. At the same time,
are taken here quite wrongly as synonymous.

the Special Branch (VerfassWlgsschutz) was
Compared with other West European cOWltries in
strengthened enormously in manpower and technical
socio-economic terms, West Germany is indeed an equipment, and in subsequent years was provided
economically strong and relatively stable country,
with the legal right to intervene as part of the
normal procedure into the filling of any vacancy in
increaSing in strength even to the extent of achiev ing regional hegemony – and making more and more the civil service, from secretary of state to
use of it. However, a closer analySiS of this stability cleaning personnel.

would easily reveal that the cost of this has been a
The state evaluates commitment to the constitution
drastic loss of liberalism and rule of law, a price
on the basis of material collected by the
which cannot but raise concern not only in the FRG
VerfassWlgsschutz. This is often collected in
dubious ways. Partly, however, the collecting of
but elsewhere in the Western world.

For obvious reasons, this concern will be of a less material is facilitated by the extensive amoWlt of
direct nature outside the FRG as it lacks information legislation, recently created, which is truly breathand immediate experience. It seems particularly
taking in its scope and surpasses anything the Third
necessary when addreSSing a non -German audience Reich had to offer.

to stress the ‘legal’ aspects of political repreSSion.

The state authorities have been known to call in
For reasons of space this article will be concerned doubt an individual’s commitment to the constitution
only with the civil service. The civil service was the on account of his or her attendance at a meeting of
immediate target of the ‘Decree on radicals’

the CommWlist Party, candidature for the
(Radikalenerlass) issued in January 1972 by the
CommWlist Party or one of the Maoist parties,
Conference of the Prime Ministers of the Federal
signature of a radical party campaign leaflet, distriStates (the Federal government lacking the power to bution of a leaflet amongst whose Signatories was a
issue such a decree itself). This decree bans all
radical party member, living or having lived in the
alleged radicals from the civil service and authorsame flat with ‘members of the new left’, activity in
ises the notorious practice of the ‘Berufsverbot’

a left student group, candidature for student
(professional ban). This should not be taken to imply parliament on a radical list, even one that at the
that political repression is limited to the sphere of time was the official student organisation of the SP»,
the civil service only. Nor should it diminish the
parking near to the CommWlist Party Office when a
importance of repression in the realm of private
meeting was being held, signing a petition against
employment, which is not considered here.

the close-down of a hospital, participation in the
Political censorship has been introduced through
movement against nuclear plants or dumping
groWlds, working in any organisation like a
legislation; the right of demonstration has been
severely curtailed (e. g. at present a law on
prisoners aid committee, neighbourhood organisa’passive armament’, i. e. banning the covering of
tion or community organisation in which members
one’s face to avoid special branch filming, is being of radical parties are working, visiting someone
prepared); the rights of defendants in political
who has been arrested for alleged sympathies with
cases, as well as those of their lawyers, have been anarchists, selling leftist pamphlets, criticiSing
curtailed to the point where legal defence becomes
the practice of Berufsverbot as Gesinnungsimpossible; the rights of foreigners, particularly
schttffelei (snooping into beliefs), being on the
students and workers, have been limited to a conmailing list of a left publishing house, signing a
siderable extent; the Wliversities have been coerced resolution against Berufsyerbote, sticking up posters
into special penal codes. (These are only a few
for a radical party, asking for information on and
examples.)
forms for a course run by the Communist Party,
The concentration of this article on the civil
protest against the pro-Vietnam War film ‘The
service is not arbitrary. Firstly, 15% of the work- Green Berets’, participation in anti-Vietnam
ing population is employed by the civil service,
demonstrations, parking your car near a demonstrawhich includes the education system .and social
tion, conscientious objection, donating money to any
services which are the main job orientation of
organisation in which there is a communist working,
visiting a political prisoner, informing the public by
politically aware, critical students, and are
particularly Wlder attack. Also with the commitleaflets and meetings of one’s own pending
Berufsyerbote (this is known as taking ‘undue refuge
ment to the socio-political status quo and the
traditional state orientation Of the Social Democratic in the public Y), contributing a picture to an exhibiParty and the trade unions, these bodies, rather
tion of political art organised by a group of artists
than opposing the Berufsverbot (the SPD indeed was supposedly close to the CP, being the wife of an
largely responsible for initiating it) have, to the
attorney of a person accused of anarchist affiliations,
extent of imitating its very phraSing, administrative being the wife of a teacher strUCk by the Berufsdecrees, procedures, laws and court sentences,
yerbote, having passed on in class the address of an-

Enemies of the Constitution

3

attorney defending an alleged anarchist (the subject
of the class was contemporary press reports on
political cases), inviting a political theatre group to
play in school, etc. (These ‘reasons’ are all taken
out of official correspondence.) Are these grounds
enough f’or one to be considered an ‘enemy of the
constitution’? Not necessarily all of these people
lost their jobs or did not get one. It is enough,
though, to ‘raise doubt about your allegiance to the
Constitution and your will to defend the liberal
democratic fWldamental order at any time’, to quote
the standard phrase in letters summoning the
individual to explain her/himself to his/her
superior and, of course, the mere knowledge of
the existence of such letters, of their possibility,
of the iceberg of screening of which they are the
tip, is enough to intimidate people, to create an
atmosphere of mutual distrust and fear, of ‘proving’

one’s Verfassungsfreundlichkeit (friendliness to the
constitution) by carefully avoiding any links with
those who are suspected of being ‘enemies of the
co~stitution’ (VerfassWlgsfeinde).

The details of the procedure resulting out of the
Decree on Radicals were left open in 1972 to be
filled in by the individual states. But so far the
majority of them have failed to do so. A
Constitutional Court decision of 1975 calls for
legal assistance and minutes, use only of material
that could stand up in legal action, no consideration
of student activities, no storing of information after
use. Not a single state meets all of these requirements. Some will allow for legal assistance and
minutes, others will not or will bypass the rules
for an interview altogether by declaring it to be an
informal get-together. Quite often the screening is
deliberately dragged on because of the weakness of
evidence against an applicant, while the institution
in question ‘Hill fill its vacancy with a more ‘suitable’ candidate, available at short notice since no
‘doubts’ have been cast upon him/her.

The administration shields itself against critical
interference from wtside by imposing silence on
the employing institution about the real reasons for
its delay in employment, or non-employment of an
individual, and equally imposing a ban on civil
servants coming out in defence of a present or
future colleague. All this beSides, of course, impos·
ing silence on the individual concerned; the state of
Hamburg even went as far as to declare it illegal
for any civil servant to publish any kind of information that has not already been made public. In 1973

4

the newly created offence of ‘undue refuge in the
public’ (Flucht in die Offentlichkeit), violation of
the ‘moderation’ that the civil servant is obliged to
exhibit, was sanctioned by the ruling of the highest
administrative appeal court and consequently is
now irrefutable on legal grounds.

The legitimation of the bannings
The essence of the concept of rule of law which
the West German state proudly claims for itself
lies in the fact that any state activity might be subject to scrutiny by the courts. The legal recourse
of the citizen ends where the highest courts have
ruled. It is for this reason, amongst others, that
supreme court rulings are of the utmost importance.

In the rest of this article, therefore, four decisive
judicial rulings on the practice of Berufsverbote
will be reported and briefly discussed.

(A) Ruling of the Highest Administrative Court of
Berlin (because of the special status of Berlin this
is the highest appeal court for citizens of West
Berlin) (December 1974).

Case: Sybille Plogstedt, member of the 4th
International, contracts with the Free University
of Berlin for a one-year research project on
Eastern Europe. The political authorities refuse
to accept the validity of the contract and sue the
University for having entered it.

1 The court extends the special obligations of a
civil servant to anybody employed by the state ..

worker or Beamter (tenured official). It is on the
basis of this extended interpretation that it becomes,
possible to resort to the rigorous application of the
special status of Beamter even in the case of a oneyear research assistant. (A law to this effect was
passed only in 197’6, so the argument came as quite
a legal surprise at the time.)
2 Further justification is considered necessary.

The court reasons that, even though SP will not be
lecturing but only doing research for which the
court agrees she is highly qualified, she will still
move within Wliversity territory, will communicate
and might in that way exert influence. This in itself
is conSidered to be unacceptable. Article 5 of the
Constitution is quite explicit on freedom of research.

In reaffirming that article the court at the same
time denies interference into the right of free
research by asserting that it is not because of the
expected results of her research activities, but of
her possibilities of contact, that SP’s presence in

the university is undesirable. ‘As she is actively and passively eligible for elections, she might try,
furthermore, to misuse the institutions of the
university for her political goals. ‘ (Note: only
political parties that conform to the socio-political
status quo use the ways and means of parliamentary
democracy, others misuse them.)
3 The court continues: ‘Particularly in the light
of political, social and economic crisis, the coming
about of which can never be discounted, the demand
for loyalty to the Constitution on the part of employees in the public sector is essential. ‘ This, indeed,
comes close to declaring an emergency law status
in anticipation of crisis for those employed in the
public sector. It is calling for a definite degree of
loyalty which is far beyond and quite apart from
that which is constitutionally obligatory and will be
determined by just how much crisis -threatened
those in power consider themselves to be. In other
words, it comes close to suspending liberal rights
for members of the public sector, i. e. teachers,
professors, social workers, etc and submits them
to th.e immediate discretionary power of the state.

l

,

Inner commitment

I ment of political subordination that very constitu-

tional liberal guarantee that the experience of
fascism had prompted.

(B) Ruling of the Highest Federal Administrative
Court (February 1975)
Case: the teacher Anne Lehnhardt is debarred
from her job for being a member of the Communist
Party.

Here we will find all the above mentioned arguments reaffirmed on a federal level.

1 Reversal of the burden of proof
2 Inner commitment. ‘A neutral, distanced
attitude without positive inner commitment’ will
not do. A teacher, e. g. ‘would at least unconsciously run the danger of influencing students in a way
which might not be compatible with the liberal
democratic fundamental order’.

3 The unrefutable prognosis
4 The dichotomy between a constitutional political
party and its ‘unconstitutional goalf)’. Indeed, the
court does not even bother to give evidence for
these. Arguing on the basis of Special Branch
‘knowledge’, it just states that the CP is a
successor organisation to the old CP, banned in
the height of the Cold War in 1956 and furthermore,
that the teacher AL joined the CP ‘although she
knew that the present federal government as well as
its predecessors made it clear that the CP pursues
unconstitutional goals’.

4 The civil servant and, in the extended interpretation, any employee in the civil serVice, is not only
obliged to adhere to the Constitution as anybody else
is, but he/she in addition is subject to the ‘obligation of political allegance’ (politische Treuepflicht).

The relation Of. state to civil. servant is .s~pposed to
be one of allegiance on the Side of the CIVIl servant
.

and of trust on the side of the state and is quite
(C) Ruling of the Federal Constitutional Court
distinct from any other employment relationship.

(final instance of appeal) (May 1975)
Trust implies a prognosis concerning the future
Case: a law student is not accepted for his profesconduct of the applicant. It can be open to doobt.

sional training on account of his belonging to the soTherefore, reasons the court, these doubts have to called ‘red cells’, organisations of the student
be dispersed by the applicant. Doubts will perSist,
movement of the late 1960s.

if his/her ‘total conduct’ does not show ‘friendliness
1 The ruling starts out with a most remarkable
towards the constitution’, a definite ‘inner commit- survey of the history of the public service ever
ment to defend the constitutional order at any time’ since the age of absolute monarchy, demanding ‘the
(a new term referring to the socio-political ~
obligation for political allegiance’ (politische
quO which has come to replace reference to the
. Treuepflicht) to any type of state. ‘The state relies
Constitution per §.£). A prognosis of future disloyalty on a body of civil servants with inner commitment
cannot be refuted on the basis of present evidence.

to the constitutional order. If the civil service canIt is, however, argues the court, quite clearly for
not be relied upon, society and the state will be lost
the applicant to provide sufficient evidence against
in critical situations.’ ‘The state cannot relinquish
doubts rather than for the state to provide suffiCient the endorsem81t by the civil servant of the state evidence for having them. The matter therefore
in spite of its imperfections – and the prevailing
stands a good chance of being decided a priori as
constitutional order as it stands today.’ (my
soon as ‘doubts’ arise.

emphasis – CvB) ‘The state must be able to rely
5 According to the Constitution, a political party upon the civil servant being willing to accept rescan only be declared unconstitutional by a
ponsibility for the state and feeling at home (sich zu
Constitutional Court ruling. However, the court
Hause ftihlen) in that state, which he is supposed to
opens up a difference between a political party being serve, now and at any time and not only after
quite constitutional and therefore legal, and its
wished-for changes have been brought about through
simultaneously pursuing ‘unconstitutional goals’, in corresponding changes in the Constitution.’ The
in view of which its members or adherents have
perfectly legal but unrealized possibilities of the
to be barred from employment.

Constitution, everything the prevailing constitutional
6 Possibly the most important element in the
order leaves to be deSired, are discarded. The
ruling: Article 33 of the Constitution is quite explicit socio-political status quo in the interpretation of the
on the exclusion of religious and political criteria
present government claims constitutional dignity for access to the public service. ‘Every German has and gets it by the Highest Constitutional Court’s
equal access to the public sector according to his
!.!lliY. appeal judgement on civil rights.

suitability, competence and professional perform2 The court underlines, again, that perfectly
ance. Nobody should be disadvantaged for his
correct and efficient job fulfillment will not be
affiliation to a denomination or political conviction.’ enough, but that the ‘total conduct’ of the person in
Past jurisdiction (a ruling to this effect was passed question is under scrutiny and has to be taken as
only in 1973) upheld this constitutional provision.

grounds for making employment decisions.

Now the court reasons that allegiance to the
3 The court introduces the notion of ‘moderation’

‘constitutional order’ is an inherent part of the
as part of the ‘total conduct’ of the civil servant.

notion of suitability, thereby turning into an instru4 N ot surprisin~ly, the reversal of the meaning of

Compulsory allegiance

5

~

‘suitability clause’ (Art. 33) is upheld and reaffirmed
5 The court states that although the state holds a
monopoly of employment in vast areas, no claim to
a right of employment can be made, linking that
statement to the already developed and elaborately
reaffirmed idea of ‘doubt’ and ‘prognosis’.

6 Finally, the very Constitutional Court that by
the Constitution is the only institution which can
. declare a political party to be unconstitutional
scarcely attempts to justify the legitimacy of the
administratively created and judicially upheld
distinction between a constitutional party and a
political party pursuing unconstitutional goals.

‘The fact that the decision on the unconstitutionality
of a political party, reserved to the Constitutional
Court, as yet has not been passed, does not prevent
the conviction that this political party pursues unconstitutional goals being gained and sustained.’

Ironically enough, the Constitutional Court, at the
same time as denying a law student the right to
enter his professional training on the grounds of his
student movement affiliations, stresses two points
.in the May 1975 ruling.

(a) that student activities should not be part of the
evaluation of the ‘total conduct’ of a person, because
of their temporary nature and their transient influence on a person’s personality
(b) that the state may not withhold from a person
the chance to finish his/her education, including
profeSSional training, wherever the state holds the
monopoly in that area.

It is futile to retrace the twisted arguments the
Constitutional Court finds to state these rights and
simultaneously deny them. Enough to state that
again fundamental rights have been infringed upon
with the highest possible legal sanction.

this: ‘Science as such can never violate the liberal
democratic fundamental order, even if it might lead
to a prognosis on future social developments. The
room for freedom, however, protected in Article 5,
paragraph 3, of the Constitution, ends, where
scientific knowledge is transferred into political
reality and political activity is called for. The
borderline between scientific theory and political
goals is to be drawn, where knowledge generated in
contemplation is turned into a framework of reasons
foor political activity. Scientists in disciplines concer~ed with politics, as is the case here, may move
within the framework of Art. 5. 3 when dealing with
current political questions objectively (sachlich)
and with careful consideration of the pro and ~.

As soon as such a scientist touches on the political
activity of the listener or the reader – irrespective
of whether in or outside of regular teaching – or his
remarks touch upon political propaganda, the sphere
of freedom guaranteed in Art. 5.3 is overstepped.’

Social sciences are kept within the confines of total
abstractness – or within the confines of the sociopolitical status quo as defined by those in power.

Every single paragraph of the rulings referred to
would deserve an analysis in itself. The specific
historical continuity of an authoritarian st~te, the
corresponding structure and particular definition
of the public sector, the re -emergence of notions
and phrases first coined under fascism (politische
Treuepflicht: the duty of loyalty), the totalitarian
erosion of the liberal bourgeois separation of private
conviction and public conduct (inner commitment)
(see Carl Schmitt, prime authority on law in the
Third Reich, in his ‘Leviathan ‘), the easy dismissal
of fundamental civil rights guaranteed in the
Constitution, the voluntary ‘Gleichschaltung’

(co-ordination) of political organisations and courts
and state act~on, and so on. A more detailed
analysis would be needed of the specific historical
reasons for the rise of political repression and its
(D) Ruling of the Highest Administrative Court of
function in the socio-economic process. Also, a
Berlin (June 1976)
more comprehensive account of the extent of
Case: Wolfgang Levefre, theoretically influential
political repreSSion in different social spheres, the
different forms it takes and the kind of resistance
within the student movement, contracts with the
Free University for the position of an assistant;
it meets, would be highly desirable. However,
again the Land of Berlin does not accept the contract. neither of these can be achieved within the scope of
The court can by now take recourse to quite a lot
this article, which in itself does not aim at more
of ‘favourable’ precedents. It proceeds, however,
than giving a bit of information and hopefully enone step further, a step most decisive for the social larging the watchful, potentially active interest in
sciences:

contemporary and future developments in West
As already mentioned, Article 5 of the Constitution Germany.

guarantees the freedom of teaching and research.

(June 1977)
The court establishes the following reasoning on
beginning of May, legal action was taken against the
student union which published the article in its
journal; five weeks after publication, .the stu?ent
Postscript – November 1977
union’s office and a bookshop were ralded, wlthout
warrant by seventeen policemen armed with
Recent events make it seem imperative to extend
the above report, again without much of an in-depth , machin: guns. (At the same time, various articles
in neo-fascist papers openly approving the murder
analysis, and also without the by now ob~igatory
of the ‘Judensau’ “(Jewish pig) Buback escaped public
assurance of one’s distance from terrorlsts and
terrorism. Is it necessary to distance oneself from prosecution if not public attention, and have until
now remain~d unchallenged.) While ‘suitable’

what one never stood for?

After the murder of Siegfried Buback, the Federal extracts from the Mescalero article, most notoriously the now famous introductory quote, are cited
general state attorney, in April 1977, a student at
time
and time again as ‘proof’ of its ‘glorification
Gtfttingen wrote an article under the pseudonym
of violence’ the authorities are busy repressing
of ‘Mescalero’, describing how, on hearing the
attempts to ‘republish the whole of the article, thus
news,. he could not and did not want to conceal a
giving the repression of anti-terrorism the .guise of
certain furtive jubilation. He then went on to exaanti-terrorist
repression. Other student unlons
mine this immediate crude impulse in a long disreprinted
the article have found themwhich
have
cussion which eventually led him to a clear and
extensively grounded rejection of terrorism. At the selves either prosecuted or threatened with

Social science:

the limits of freedom

‘Mental terrorism’

6

~

prosecution. Eventually, in June, forty-eight
professors, in view of the ‘event’ into which the
article had been made and the way in which this was
being used, republished the Mescalero article in
conjunction with an article against terrorism by
Rosa Luxembourg. The 48 were threatened with
disciplinary proceedings (the only way to get rid of
a tenured professor); in the state of Niedersachsen,
the Minister of Culture forced eleven professors to
Sign a special declaration of distance from violence
and active allegiance to the state, worded in the
most submissive and humiliating manner.

The whole ‘affair’ has been accompanied (i. e.

actually made) by a most unprecedented outGry from
politiCians, and an alarmingly, voluntarily synchronised press campaign against ‘sympathisers’ with
terrorism, whose ‘breeding ground’ is located in
literature and the critical social sciences. The
standard argument and charge: these people understand, i. e. justify, i. e. are for terrorism. (A
·principle which is in no way applied to the highly
disturbing current wave of publications and films on
Hitler, Goebbels, etc.) Attempting to comprehend
the possibility and actuality of terrorism is strictly
identified with support for terrorists. Further
questioning into the social and political conditions
for such actions and into the repressive use that is
being made of them is simply disregarded and can
be persecuted as ‘mental-terrorist attacks on the
state’. In other words, any attempt on the left or
liberal side of the political spectrum to resist
terrorism, to theoretically and practically oppose
it by an investigation of its conditions of possibility,
is publicly twisted into support for terrorism.

Peter Bruckner, professor of social psychology at
Hannover, published an analysis of the Mescalero
article and the articles and political statements
commenting on it. He was suspended from his post,
and shortly afterwards banned from entering the
university grounds.

people were simply expecting us to do something
spectacular. The night Schleyer was found, the
solemn words in Bonn were: ‘this is the hour of the
search’. The subsequent days were therefore days
of denunciation, intimidation, fear, self-righteousness; citizens -of Stuttgart fought fiercely against
Baader, Raspe and Ensslin being buried in their
cemetery; ‘scatter the ashes down the drain’, or
worse, was suggested. The police became weary
of following up useless, malicious tip-offs – but,
in the debate on terrorism in parliament: ‘The
population is firmly supporting us, a new spirit of
loyalty is sweeping the country, let us preserve it
for the surely hard times, politically and economically, ahead.’ New legislation is introduced: even
further curtailment of the rights of lawyers, of the
right to demonstrate, further legal facilities for
arrest without evidence – the suspicion of the
administration is suffiCient; re-arrest of released
prisoners on the grounds of suspected potential
political danger; centralised police forces; and so
on. The CDU calls for a new law of national emergency, modelled explicitly on the notorious paragraph 48 of the Weimar Republic, which releases
government from any control by Parliament or the
rule of law. Reference to the Constitution is
dropped, the ~ becomes the central focus.

Whatever seems necessary and effective for
strengthening the security of the state should be
considered arid put into execution. The one sentence
most often repeated in the debate: ‘We must make
use of the favourableness of the hour.’

The favourableness of the hour. The new spirit of
‘togetherness’. What is most alarming, apart from
the notorious administrative practice of familiarising people with the non-respectance of basic civil
rights and rendering suspect those who claim them
(a lawyer is prosecuted for comparing the police
who raid his flat at 5 am with no warrant, no uniforms, but guns, to ‘a band of rockers ‘), what is
most alarming in addition to this is just the ‘spirit’

e our 0
e seare
which the public authorities take such pains to
Meanwhile, Schleyer, the President of the German foster.

Employers Association, is kidnapped and held
hostage for the release of eleven imprisoned Red
The Mescalero affair is a horrifying example of
Army Faction members; the German government
equating debate and attempts at comprehension with
adopts a hard line; an aeroplane full of tourists is
hijacked, apparently by Arab terrorists in conjunc- approval of the subject-matter in question, and
doing so with the repressive means of the state
tion with the Red Army Faction; the plane is
apparatus. Social sciences, as well as the media,
liberated by a special German anti-terrorist squad
are manoeuvred into hailing the immediate socioat Mogadishu in Somalia; the leaders of the Red
political status quo. The academy, the so-called
Army Faction die under as yet totally obscure
circumstances which call for public debate on the
‘breeding ground’ of terrorism, is charged with
trying to understand that which all ‘decent human
supposition of their suicide (in which the voicing of
beings’ simply do not understand but rather close
doubts is again already identified with taking the
side of the terrorists: the father of Gudrun Ensslin, ranks against, that which is declared to stand outa liberal Protestant priest, is prosecuted for -the
side the laws of human society. Consequently, the
public utterance of his doubts); Schleyer is found
language employed moves in the dimension of pathokilled; an unprecedented wave of raids immediately logy, madness, monsters, eradication. The vocabbegins, with machine-gun carrying police all over
ulary is taken from the realm not of human beings
the streets, loudspeaker-cars urge the population
but of beasts, beasts to be dealt with in a strictly
to report anything unusual or suspicious
repressive way. Die Welt comments on the 48
(communes are given special mention), thousands
professors’ publication: ‘inferiors want to fraternof people are checked and entered in police files,
ise with inferiors’. Quite logically, the equation of
terrorism with any kin<t of critical opinion and the
an unknown number of raids are carried out on
flats and houses (long prepared, as the government attempt, in allegedly fighting the former, to eliminpress secretary proudly proclaims), once again
ate the latter, calls for further repreSSion, and
with no warrants, 'immediate danger' being the
expansion of the repressive forces. After all, cne
'reason', or, as the less diplomatic policemen will can never be sure when and where those who have
been silenced might raise their ugly heads again.

say not without pride, because ‘we don’t need any’.

The result: no success in matters of terrorism •
‘Positive’ feelings are highly commended. Dozens
of critical films, plays and lectures are cancelled,
.But, says thepress secretary, we did not expect
any, this was necessary to show the flag, the
continued on p45
7

Th h

f th

h

The new togetherness

BOOKS RECEIVED
E Balibar, On the Dictatorship of the Proletariat,
London, NLB, 1977, £6.50hc
L C Becker, Property Rights, London, RKP,
£4.95 hc
R Blackburn (ed.), Revolution and Class Struggle,
London, Fontana/Collins, 1977, £1. 95 pb
S C Brown (ed.) Reason and Re11ion. Ithaca and
London, Cornell UP, 1977, £1 • 25 hc/£4. 50 pb
M Canovan, The Political Thought of Hannah
Arendt, London, Methuen, 1977, £ 1. 95 pb
E C obb, The ECOIO~ of Imagination in Childhood,
London, RKP, 19 ,£5.75 hc
R Coward and J Ellis, Lan!O~e and Materialism,
London, MP, 19’77, £4.

c/£ 2. 25 pb
A Cutler, B Hindess, P Q Hirst, A Hussain,
Marx’s Capital and Ca~taliSm Today ~ London,
RKP, 1977, £6.50hc/ 3.25pb
M Foucault, Discipline and Punish, London, Allen
Lane, 1977, £7. 50 hc
G P F rants ov , PhilOSOthY and SOCiology, Moscow,
Progress, 1977, £4. 0 hc
·L Goldmann, Lukacs and Heidegger, London, RKP,
1977, £3.50 pb
L Goldmann, Towards a SOCiOl1t of the Novel.

pb
London, Tavistock, 1977, £ 2.

K Graham, J L Austin, Hassocks, Harves.ter,
1977, £ 8. 50 hc
B Hindess, Philosophy and Methodology in the
Social SCiences, Hassocks, Harvester, £ 9. 95 hc
R JaCoby, Social Amnesia. Hassocks, Harvester,
1977, £8.95 hc/£3. 50 pb
M Howarth-Williams, R D Laing: his work and its
relevance for SociologY, London, RKP, 1977,
£4.50 pb
L Laudan, Progress and its Problems, London,
RKP, 1977, £ 5.95 hc
D Lecourt, Proletarian Science? The case of
Lysenko, London, NLB, i 977, £ 5.75 hc
A Lemaire, Jacques Lacan, London, RKP, 1977,
£7.25 hc
C Maclean, The Wolf Children. London, Allen Lane,
1977, £4.95 hc
Marxist-Leninist Organisation of Britain, E!:.2m.

Revolution through Counter Revolution to the
consolidated rule of the national ca italist class
in China, M-L B, 977 amphlet
L Michail, The TJleory of Permanent Revolution:

A CritiqUe~ London, CPGB Trotskyism Study
Group, i 9 7, 50p
G H R Parkinson, Georg Lukacs? London, RKP,
1977, £ 4. 95 hc

ANALISIS: Cuadernos de Investigacion
No. 1 Enero-Marzo 1977
Rochabrun – Acerca del capitalismo en e1 Peru
Spalding – Clases sociales en los Andes peruanos
Portocarrero – El pensamiento politico de Haya
de la Torre
Itoh – La teoria de la crisis en Marx
Sulmont/Germana – N otas, debates, libros
C onfidencial: 1931 – Entrevista de Haya de la T orre
y el embajador norte-americano
Analisis, apart ad 0 11093, Correo Santa Beatriz,
Lima 1, Peru
Analisis resume el esfuerzo de un grupo de
profesores de diversas universidades animados
en le comun tarea de impulsar, debatir y publicar
10s avances de la investigacion cientifica en el pais.

G Pit~her, Berkeley, London, RKP, 1977, £ 7. 50 hc
D -H Ruben, Marxism and Materialism. Hassocks,
Harvester, 1977, £10.50 hc
L Spurling, Phenomenology and the social world,
London, RKP, i 977, £ 6. 95 hc
A Tolson, The Limits of Masculinity, London,
Tavistock, 1977, £ 1. 95 hc
M Wart of sky ” Feuerbach, London, Cambridge UP,
1977, £17.50 hc
A Weale, EqUalir: and Social Policy, London, RKP,
1977, £4.94hc £2.50pb
JOURNALS RECEIVED
Analisis: Cuadernos de Investigacion No.1, EneroMarzo i 977, Lima, Peru
Cine-Tracts, vol. 1, no. 2, Special issue:

‘Theoretical perspectives in cinema’

Das Argument. No.104, July-August 1977
No.105, September-October 1977
Economy and Society, Vol.6, No.4, Nov 1977
Ideology and ConSCiousness, No.2, September 1977
MERIP Reports. Nos. 58 ana 60, Middle East
Research and Information Project
New Left Review, No.l04, July-August 1977
No.105, Sept-October 1977
Philoso hY Tod1Ji’ Vol,21, nos.1-4
science or theeople, Vol.9, nos. 2, 3 and 4
Workin Pa ers: StUdies in the discourses of sex
subjectivity and power formerly’ orking papers
ID sex science and cUlture ‘) No. 3, August 1977

l

– this positiveness is all too familiar in German
history; so also is a state apparatus recruiting
continued
highly emotionalised, blind support for whatever it
as inappropriate to these troubled times and days.

does, and threatening with repressive means the
We concentrated far too much on basic rights
mere naming of conflicts and sources of conflict.

rather than on basic values, says the administrative The re-emergence of a strong state, dressed up in
(alas!) media chorus, making use of and preserving the theory that ‘only a strong state can be a liberal
the ‘favourableness of the hour’. Pleading the
state’ (such is the title of the declaration on terrorConstitution has become suspect, like pleading the
ism of the Protestant (!) church of West Germany),
Fifth Amendment. BrUckner is prosecuted not for
and the legitimacy recruited for the wholesale sublack of allegiance to the Constitution, but for
mission to the demands of that strong state,
alleged lack of allegiance and positive loyalty to the abdicating civil rights and liberal freedoms, which
state.

is precisely the aim of the daily progressing reThis positiveness that allows for nothing but the
pression: all this will have to be confronted by
administratively-prescribed results of thinking and opposition both from within W~st Germany and
feeling – the Mescalero affair started off an infrom outside, if West Germany and Western
credible, anxious rush to give public proof of
Europe do not want to be faced with an economically
positive and, where necessary, negative feelings
and politically strong state making abusive use of
both of these strengths.

of the most unambivalent, solid, unwavering kind
45

WEST OERMANY

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