As Europe commemorates the 100th anniversary of the outbreak of World War I this year, a re-assessment is taking place in Germany of what is called Europe’s Urkatastrophe, or “original catastrophe” – in other words, the one that led to all the others. In particular, influenced by books such as Christopher Clark’s Sleepwalkers (published in Germany in 2013) and Herfried Münkler’s Der große Krieg (also 2013) – both best sellers in Germany – many are rejecting the once widely held idea that the war was caused above all by German aggression. A poll in January showed that only 19 percent of Germans thought Germany was chiefly responsible for the outbreak of war. It seems to me that this is part of a broader trend in collective memory and national identity in Germany since around the Millennium that I have written about previously: Germans now think of themselves less as “perpetrators” and more as “victims”.
What is particularly interesting about the re-assessment in Germany of World War I and of national identity is the way that it informs, and is informed by, the euro crisis. Since the crisis began, there has been much debate in Europe of a re-emergence of the “German question” – that is, the problem of German power that played a critical role in European history between 1871 and 1945. While a few German historians such as Domink Geppert (whose recently published book, Ein Europa, das es nicht gibt, I am reviewing for the TLS) share the idea that there are echoes in the current crisis of the classical German question, most reject such parallels (some even see them as a pretext for extortion) and see 1914 simply as a vindication of the European Union and of Germany’s rejection of military force since 1945. But the re-assessment of the past may be strengthening a sense of German victimhood in the present. I get the sense that many Germans resent being unfairly blamed for the euro crisis – as they increasingly feel they once were for World War I.
Hmm. Interesting. My impression is that the vast majority of Germans has mostly no clue about who is responsible for ww1. You could argue that the poll is therefore all the more interesting, but you could also argue the opposite.
Also, isn’t it a false dichotomy only to distinguish between perpetrators and victims? I am hoping that Germany can act a bit more openly in pursuit of her own interests without creating fears over European power imbalances. If only because interests of European nation states are probably quite aligned anyway, in light of a declining importance of that continent in a global economy.
Oh, and regarding the euro, I am not really convinced that this was or is a project of European integration and unity. Europe would have been better off without the euro, and Germany as well.
The German Reichstag (Parliament) in 1923 set up a commission to look into the question of who was “guilty” of starting the Great War. They naively thought that if they could prove that Germany was not guilty the Allies would reduce the harsh conditions imposed by the Versailles Treaty. They commissioned Hermann Kantorowicz to do the research and write an authoritative judgment both as a lawyer and as a historian. Why did they choose HK? Well he was clearly a patriot who had volunteered for the army, he was known to be a democrat, and an excellent criminal law professor. He was becoming recognised abroad. They were sure he would pull the chestnuts out of the fire. He was to write a short “Gutachten” (memorandum).
He attacked the job with his usual thoroughness, read all the books about the prewar history, read all the official publications by Germany, Bavaria, Austria-Hungary, France, Britain, Russian and even Serbia. He checked the veracity of the documents. He particularly took note of the Kaiser’s very revealing exclamations written in longhand on all documents he read. These made it even clearer that the Kaiser had pushed the Austrians to force the Serbs to refuse the conditions which started the war.
Hermann Kantorowicz ended up by saying England was totally blameless. France and Russia were partly to blame for the tense situation but not guilty of causing the war. The guilty parties were exclusively the Austrian Kaiser and his two cabinets, supported of course by the General Staff. Guilty of conspiracy leading to the war was the German Kaiser, his government and the army chiefs. The Socialist Abgeordnete (MPs) could have said you see it was the old regime not us, we accept that our two states are guilty, but now that we are democratic it can never happen again. In the event they decided the judgment was unacceptable, HK must go back and try again. But the more he tried the more he found that the conclusion was totally justified: the fault for starting the war was attributable to Germany and Austria. By 1927 the commission decided once again to postpone publication, which had grown into a book 400 pages long. They suppressed all known copies. A fine way for a democracy to behave. HK complained that he had wasted six years on the research and as a result would probably not achieve his life’s research aims. But the Commission remained obdurate.
As he had been sworn to secrecy by the Commission he could not publish the work without breaking his word. But there were copies that survived. Surprise. He did one thing that was not subject to the veto: a historical book on the British character to show that the British would not have deliberately planned a war, they were too honourable and in any case believed in “muddling through” rather than logical tactics and strategic planning. The second half of “The Spirit of British Policy” (1927) demolishes the German propaganda promoted by German historians that Germany had to fight because it was “encircled” by the allies. That was a deliberately nurtured myth. The book was generally vilified in Germany, but elsewhere, particularly in Britain, seen as a real contribution to historical study. It was among the first books to be burnt by the Nazis.
At this point Hermann Kantorowicz began to doubt whether he really wanted to remain in German academic life. But the splendid Law Faculty in Kiel University elected him professor of Criminal Law in 1927. He would have liked to go at once, but the Prussian minister of Education was afraid of permitting the appointment of such a treasonable spirit to a key post. Stresemann, the famous Foreign minister, was asked and vetoed the appointment. The Kiel Faculty twice more refused to appoint any other to the post and the matter began to become a cause célèbre. Stresemann now changed his mind and said that the “Gutachten” was so ridiculous, so ugly, and so badly researched that no one would take any notice of it, but to prevent having a martyr on their hands Hermann Kantorowicz had better be allowed to go to Kiel.
Famous scholars from Kiel:
Hermann Kantorowicz made groundbreaking contributions in the areas of legal theory, history of law and criminal law which are still of significance today. He was an important representative of the “Free Law Movement” (Freirechtsbewegung) and was committed like few other professors to the Weimar Republic.
Hermann Kantorowicz (1877 – 1940)
As early as 1906 Kantorowicz, under the pseudonym Gnaeus Flavius, published his essay “The Battle of Liberation for Legal Science” (Der Kampf um die Rechtswissenschaft), probably the most frequently cited legal essay in the first half of the 20th century. He pointed out the importance of “free law” in adjudication and criticised legal positivism, particularly its theory of the completeness of law. Kantorowicz opposed the legal-conceptual and positivist principle of law with the freedom of the lawyer in finding justice. This freedom is firstly a freedom from law. Since the law must be incomplete and the formal legal subsumption approach is often fruitless, the judge in order to find justice must free himself from them. His application of the law should be geared to what is called “free,” i.e. not state-decreed law. This includes such criteria as common law, prevailing practice, the type of matter involved, conscience, fairness, equity, or even a sense of justice. The judge should take into account the life and interests of the parties, he should also take account of psychological, sociological or economic aspects in reaching his judgment. There are consequently special demands made of the judge. Classifying Kantorowicz only as a proponent of the Free Law Movement would however be failing to do justice to his considerable legacy. He was also primarily an outstanding legal historian who, like few others, researched medieval law, primarily criminal law.
From 1923 to 1929 he was commissioned by the investigative committee of the Reichstag to work on a report on the question of guilt in the First World War. In doing so he reached the politically undesirable conclusion that the Central Powers were primarily responsible for the war. The political decision makers insisted on banning publication of this report, contrary to Kantorowicz’s express intention. It was not published until 1967.
Despite his excellent professional qualifications Kantorowicz’s political commitment also caused difficulties with his appointment to Kiel. When Gustav Radbruch left his Kiel chair in criminal law in the fall of 1926 he brought up the subject of Kantorowicz succeeding him. Both had studied jurisprudence in Berlin and since that time had been close friends. In addition to Radbruch the constitutional and administrative lawyer Walter Jellinek also argued forcefully in favour of Kantorowicz’s appointment. Some of the faculty members saw the danger that appointing Kantorowicz might lead to unrest in the (predominantly national conservative-minded) student body. Even Foreign Minister Gustav Stresemann was initially against appointing Kantorowicz because of the War Guilt Report. Despite these concerns the faculty put Kantorowicz at the top of its list of candidates to succeed Radbruch and stuck to this vote virtually unanimously.
Kantorowicz felt happy in Kiel, particularly in scientific terms. The faculty’s research interests after the First World War focused on legal philosophy and history of law. In the 1920’s colleagues like Werner Wedemeyer, Walter Schücking, Eberhard Schmidt and Gustav Radbruch also gave lectures on legal history topics. Kantorowicz held a chair in criminal law but also offered courses in medieval history of law and legal philosophy as well as courses on social science topics. “Act and Guilt”(Tat und Schuld) was his principal work on criminal law, in which he developed the idea that guilt, contrary to the prevailing view at that time, was not an act-based, but a perpetrator-based characteristic.
Kiel and Kiel University, however, were in those years a long way from being an “isle of the blessed.” The National Socialists’ takeover and his dismissal after only four years’ teaching in Kiel was something Kantorowicz learned of in 1933 in Florence. At the Faculty of Jurisprudence after the takeover nine of ten full professors were replaced by professors who were of the same political persuasion as the new rulers. It became the national socialist “shock troop faculty” which no longer held a place for academics such as Kantorowicz. Although he wanted to return to Kiel after the takeover his wife succeeded in dissuading him from that plan.
Through contacts he ended up at Columbia University in New York and in 1934 he accepted a chair in Cambridge. 1938 saw the publication of his “Studies in the Glossators of the Roman Law,” considered to be the most important publication on law in medieval times since Savigny’s “History of Roman Law in the Middle Ages.” Kantorowicz died in 1940 at the age of 62 in Cambridge.
His life story is instructive in that it provides an understanding of 20th century history, and not least the history of Christiana Albertina. His dismissal was a grave loss for Kiel but also for jurisprudence in Germany generally. Kantorowicz is one of the very few émigrés who also succeeded in making important scientific contributions abroad. He worked intensely hard to promote dialogue between continental European law and the Common Law. With his academic style full of “sparkling wit” and “indestructible cheerfulness”, which was (and still is) to be found more often in England and the USA than in Germany, he was more predestined than anyone else to build a bridge between both legal cultures.
At the Faculty of Jurisprudence this important scholar is remembered today not only by a lecture hall in the chair of legal philosophy, the Hermann-Kantorowicz room – his life and his work too are the subject of numerous courses in the “history and philosophy of law.”
Prof. Dr. Rudolf Meyer-Pritzl