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- Claudia Schöningh: "Kontrolliert die Justiz". Die
Vertrauenskrise der Weimarer Justiz im Spiegel der Gerichtsreportagen von
Weltbühne, Tagebuch und Vossischer Zeitung.
München: Fink 2000. 356 S.
Kart.
DM 68,-.
ISBN 3-7705-3471-9 .
To what extent was the confidence crisis of the German
justice system under
the Weimar Republic a product of the ravings of an overly critical left-wing
intelligentsia bent on revolution with little regard for the government and
the Constitution upon which it was founded? This, Claudia Schöningh
tells us, is the subject of her study of the courtroom reportage of the
radical leftist publications Die Weltbühne and Das
Tagebuch, and the liberal Vossische Zeitung. Marshalling
journalistic coverage of hundreds of court cases and debates, Schöningh
sets out to demonstrate that the Weimar judiciary was antidemocratic in
ideology and in deed throughout the period. The publicists of the three
journals sought to expose the anti-constitutional and atavistically
monarchical tendencies of the courts to defend the republic, she argues;
their critiques of the judiciary were intended as constructive suggestions
for juridical reform rather than nay-saying indictments of a corrupt system
they would eventually abandon.
Schöningh offers a well-organized and thorough survey of
the >confidence
crisis< as it was represented by leftist journalists. As watchdogs of social
and political injustice, leftist writers drew attention through their
reportage to trials and debates that many contemporaries would sooner have
ignored. A systematic investigation of their critiques of the criminal
justice system, from the most public of show-trials to the most obscure theft
prosecution at Moabit, certainly provides an important and unique perspective
from which to view the German judiciary at work. However, Schöningh asks
both too much and too little of Kurt Tucholsky, Carl von Ossietzky, Sling
(Paul Schlesinger), and the other leftist and republican writers. Throughout
her study, it is unclear whether what is being >reflected< is the
Vertrauenskrise, the political opinions of the publicists, or German
society as a whole.
Republican journalists confront
an intransigent
judiciary
Taking issue with those who argue that the crisis of German
jurisprudence was
the result of counterproductive left-wing criticisms, Schöningh argues
that the crisis of republican justice began with the birth of the Republic
itself and resulted from the entrenched conservatism and anti-republicanism
of an ossified monarchical judiciary. The conflict between parliamentary
democracy and autocratic jurisprudence began with the fatal decision of the
Coalition and the National Assembly to opt for administrative stability and
continuity by retaining the existing bureaucracy of the Imperial justice
system, its penal code, and the codes of procedure. From the moment the
Constitution was enacted, the German courts, and especially the
>Reichsgericht<, favored the forces of counter-revolution and persecuted
the political left, a fact Emil Julius Gumbel publicized repeatedly
throughout the period. Symptomatic of the contentious relationship between
the state and the judiciary was the fact that the >Preußische
Richterverein< did not pledge support for the Republic until 1926, and
this, Schöningh insists, was done as a matter of expedience rather than
conviction (S. 233).
Much of the reportage Schöningh discusses dealt with
political crimes,
but the power and influence of the courts did not stop there. Studies of the
Weimar courts have tended to focus on the political orientations of the
judiciary and their judgements in cases involving political or constitutional
issues. But as Schöningh points out, the conservatism of the German
courts (and of course the legal codes) affected all kinds of juridical
issues, from art to treason to sexual orientation. This was precisely why the
courtroom reportage focused on non-political cases between 1924 and 1931:
because journalists recognized the political consequences of the adjudication
of social and cultural matters. By exposing such injustices, the leftist
journalists hoped to reform the political culture of the Republic.
Schöningh presents a variety of reported cases to show how the long arm
of the anti-democratic and authoritarian law reached into all aspects of
social life.
The leftist critiques of the justice system were not merely
intended to
expose injustice, however, but to suggest constructive ways in which the
justice system could be reformed and the political culture of Germany made
more democratic, according to Schöningh. With regard to the problems of
the jury system that developed after the Emminger reforms (1924), the perjury
trials crisis, and criminal law reform, leftists voiced suggestions, some of
which were taken up in Parliament, but like so many initiatives they failed
to survive the political impasses of party politics. Despite the constant
barrage of criticisms, often aimed directly at individual judges and the
sentences they passed, members of the judiciary refused to engage their
critics, and thus the courtroom reportage remained a monologue rather than a
dialogue between the fourth estate and the third power.
The justice system as political culture
In vindicating the leftist journalists, Schöningh seeks
to demonstrate
that the German justice system was one of the primary factors in the
dissolution of the Republic. This study, she claims, is actually a study in
German political culture, in which the justice system was a significant
institution. As the third branch of democratic government (>dritte Gewalt
<) which adjudicated morality, criminality, as well as political behavior,
the courts had an institutional power which extended into almost all aspects
of social life. Schöningh defines political culture as the
"subjektive Dimensionen von Politik", the "sozialpsychische
>Ambiente< des jeweiligen Herrschaftsystems," or "das
Verhältnis zwischen Staat und Bürgern, ihrem traditionellen wie
aktuellen politischen Bewußtsein und ihre politische [sic] Beteiligung
in einer bestimmten Zeit" (S. 17). According to her definition,
political culture has to do with the legitimacy attributed to the existing
order by the government and the governed, as well as the political concepts
and behavior within the existing institutions of government, including the
justice system. At issue is not whether or not a particular system is
accepted, according to Schöningh, but rather "welche
Identifikationsmuster dieser Bejahung oder Ablehnung zugrundeliegen, vor
allem, woraus sie resultieren" (S. 18). Seen from the perspective of the
German courts and the left-wing reporting, German political culture was
anti-democratic and conservative.
According to Schöningh, courtroom reportage is both a
>factor< and an
>indicator< of political culture: it both reflects the social and political
circumstances in which it was produced, and it helps to shape the political
culture on which it comments. Schöningh uses the exposés and reporting
as transparent >indicators< of political culture, as if they >reflected<
accurately a kind of truth accessible only to the leftist writers.
"Gerichtsprozesse und ihre zeitgenössische Beurteilung sind Spiegel
und Ausdruck von Wirklichkeit," she asserts, "die in ihnen
erkennbaren Strukturen politischer Kultur [sind] vielleicht signifikanter als
statistisch erfaßte Wählerbewegungen" (S. 255). Indeed, she
chooses the three publications because their radical-democratic and
left-liberal writers had "ein ausgeprägtes Gespür für die
politische Kultur des Landes und die ihr immanenten Wechselwirkungen"
(S. 19). She concludes, "Nicht nur die Berichte über die
großen politischen Prozeße gegen die Feinde der Republik haben
den Mangel an politischer Kultur und demokratischen Verhaltensdispositionen
vor Augen geführt; unzählige kleinere, auch unpolitische Fälle
zeigten, daß er das gesamte gesellschaftliche Leben erfaßte und
nachhaltig beeinträchtigte"(S. 338 f.).
If taken as an indication of Weimar political culture, the
sum of all of the
cases collected from the three publications would certainly seem to indicate,
as Schöningh suggests, that democracy stood little chance of survival
under the sway of the mighty judiciary. But Schöningh is uncritical of
her journalists and their reportage. Unlike István Deák's
less thorough discussion of the Weltbühne's campaign against
the justice system 1, Schöningh's does
not adequately account for the impact of the publicists' political agenda on
the form and content of the reportage. As Deák pointed out over thirty years
ago, leftist journalism only exposed instances of injustice; the instances in
which judges and lawyers made humane decisions were omitted without comment
from the pages of their publications. This is not to say that Schöningh
is wholly credulous of her journalists. She chides Tucholsky and his
colleagues, for example, for not recognizing the true danger of Hitler in the
1931 trial against three Reichswehr-officers accused of high treason.
(At the trial, judges gave Hitler an uninterrupted two-hour platform for his
propaganda.) On the whole, however, Schöningh tends to overlook the
political ideology of the radical left in its critiques of the intransigent
corruption of the political right.
In her study, reportage as a >factor< is disengaged from the
wider leftist
(or left-liberal in the case of the Vossische Zeitung) politics
to which it wrote and even more so from the context of the liberal press.
While she seeks to broaden her definition of political culture, she does so
by narrowing her public sphere to include only a select group of
intellectuals and their publications. She depicts a hermetically sealed and
impotent democratic culture that is cut off from avenues of real political
power and which is unheeded by the wider public sphere. Her selection of the
Weltbühne, Tagebuch, and the Vossische
Zeitung make clear methodological sense, given their political
directions as well as their consistent publications of court reports and
reportage. But their wider role in the >confidence crisis< can only be
assessed by looking at other sources of republican support and judicial
criticism. Public interest in criminal cases and courtroom drama extended
well beyond the Weltbühne and its circle. It perhaps goes
without saying here that the circulation of these publications was relatively
limited (16,000 each for the first two at their peak in the early 1930s;
70,000 for the Vossische Zeitung in the mid-twenties). One might
have welcomed the inclusion of the liberal Berliner Tageblatt,
which had a daily circulation of around 150,000 in 1928, and for which
Gabriele Tergit offered her social commentary in the form of
>Gerichtsreportagen<. A consideration of more popular views of the
German justice system would have been possible through the liberal Ullstein
publications Berliner Morgenpost and the Berliner
Illustrirte Zeitung. The Weimar Republic had a variety of widely read
liberal, pro-republican publications whose approach to the German justice
system certainly warrants some kind of consideration if the object of the
study is Weimar political culture.
With regard to the sources she does use, Schöningh too
often brings
forward tantalizing material and leaves it to speak for itself. In her
discussion of criminal law reform debates, for example, she evokes a case
covered by Sling in which a spurned woman killed her former lover whose
social status was higher than her own. The court initially found the woman
guilty of premeditated murder (>Mord<), but on appeal a higher court
lowered the sentence to second-degree murder (>Totschlag<). In his
commentary on the case (and here it is not clear to which trial he refers),
Sling linked gender inequality with judicial injustice: ">Vergeltung!<
schreit die Männerseele – und wenn der Mund der Zeugen stumm bleiben
mußte, für sie sprach der verbündete, mit Schmissen bedeckte
Staatsanwalt und der alte Frankfurter Gerichtsrat Roth" (S. 206; Sling,
"Vergeltungsjustiz" in Vossische Zeitung v. 8.8.1926
[M]). Although Schöningh evokes Bernd Widdig and the politics of
masculinity to contextualize Sling's statement, the comment itself remains
unanalyzed. Sling clearly evokes the politics of masculinity in order to
reveal what he sees to be the larger evil, retributive justice. The example
is tantalizing, and one might wonder how the language of gender was used in
courtroom reportage in general. A more thorough engagement with the gendered
criticisms of the left would certainly have focused attention more pointedly
on the counter-discourse proposed by the reportage against the dominant
discourse of >Vergeltungstheorie< and the conservative Weimar justice
system.
Little engagement with the judiciary
There is also a conspicuous lack of engagement here with the
judiciary
itself, except for the frequent assertions of its bourgeois social status and
its intransigent political conservatism. Debates regarding legal theory and
juridical practice, differences between justices, especially in the High
Court, or any other consideration of the judiciary as a profession falls
outside the scope of the study due to the over-reliance on the three
left-wing publications. Schöningh does briefly mention the
>Republikanische Richterbund<, but only to point out its low membership
in relation to the >Reich<'s dominant (and conservative) professional
association, the >Deutsche Richterbund<. Even if the small number of the
republican judiciary warrants this dismissal, the rest of the judiciary
should not be viewed as an undifferentiated reactionary whole. As Peter C.
Caldwell has demonstrated, the apparent anti-republicanism and monarchism of
the German judiciary had as much to do with the theoretical crisis which
constitutionalism presented to positivists as it did with the conservative
political orientation and social status of the judges themselves. In the
higher courts at least, theoretical debates both in favor of parliamentary
legislative autonomy and judicial review constituted a political culture in
which the voices of constitutionalism and representative democracy had an
active, if modest, voice 2. A
consideration of such esoteric debates might not have changed the
political implications of the verdicts in the multitudinous cases
Schöningh presents. Indeed, in the cases she (or rather, the leftist
publicists) brings forth, the decisions were indisputably conservative in
grounds and goals, and in many cases undermining of the republic. But without
at least a limited consideration of the theoretical problems facing Weimar
judges or the debates within the German legal profession, the judiciary
appears as a monolith rather than a profession. Such an approach prematurely
forecloses the political, perhaps even democratic, possibilities within the
Weimar justice system.
A lack of attention to the existence of a democratic
political culture
outside the courtroom or the three publications under examination is
particularly evident in her discussion of the debates over >Paragraph 218< of the >Reichsstrafgesetzbuch< (S. 209-218), the law that made
abortion a criminal offense punishable by up to five years penal servitude.
The leftist critique of the abortion law was ideologically based on a social
critique of >class justice< that persecuted working-class women for their
desperate actions. While the Left implicitly embraced biologistic notions of
national health and thus condoned abortion as a form of eugenics against the
biological diminution of the >Volkskörper<, the reportage tended to
focus on individual cases which highlighted the social status of the accused.
Schöningh gives no sense, however, of why this particular tact taken by
the publicists was particularly important to the struggle for abortion
reform. Although Schöningh briefly mentions that there was a reform
movement, she gives no indication of the role of the three publications
within that movement, or their impact thereon. Instead, Schöningh offers
examples of the reporting of debates and cases as evidence of the social and
economic injustice the journalists sought to expose. The debates surrounding
abortion law reform have already been examined by scholars, as has the social
and economic status of women in the Weimar Republic 3. If the political culture of the justice
system is the object of her analysis, certainly a fuller discussion of the
reform movement would be required. As a discussion of the social and economic
status of women vis-à-vis the courts, her material offers us little
that is new.
The "crisis of classical modernity"
Criticisms of Schöningh's inattention to the wider
possibilities of
republican political culture would perhaps be unwarranted if she intended for
her study only to focus on the judiciary itself and not on its relationship
to the leftist and their critiques. But it is often hard to tell exactly what
the main goal of this book is. Like many scholars dealing with sources rich
in narrative content, Schöningh is fascinated with the many different
kinds of stories they can tell, not just about the justice system, but also
about social injustice, economic dislocations, artistic freedom,
homosexuality, and any number of issues. There is a
tendency on Schöningh's part to ask too much of her sources, so that
they are not only providing evidence of the crisis of jurisprudence, but also
the "crisis of classical modernity" 4
in general. She writes that "Gerichtsberichte werfen aber nicht nur
ein Licht auf die Justiz eines Landes. Dies hätte die Beschäftigung
mit der juristischen Fachpresse schneller, vielleicht besser leisten
können." Rather, she chose the court reporting "weil sie [die
Gerichtsbericherstattung: SE] ein Spiegel der Zeit ist, in dem die Justiz
zwar eine Hauptrolle einnimmt, das politische und soziale Umfeld aber ebenso
eine große Bedeutung gewinnt" (S. 337). Unfortunately, when taken
as a >reflection of the times<, the court reporting loses its analytical
specificity.
The reportage Schöningh brings forth does offer a
wide-ranging view of
Weimar society and the intricate inter-workings of state power, but
Schöningh too often concedes her authorial voice to those of her
journalists. Much of her discussion of the adjudication of political crimes
will be familiar to those who have encountered Emil Julius Gumbel or any
study of Weimar politics. When Schöningh turns her attention to the
>Unpolitisches<, her material is much more provocative, if under-analyzed.
Sling's campaign against the escalation in perjury trials, we find, was based
not only on a critique of a vindictive judiciary strengthened by the Emminger
Reforms; publicists also saw behind the flood of prosecutions a repressive
sexual morality on which most of the cases were based. (One 1928
Tagebuch article counted 25 of 31 perjury cases involving sexual
affairs [S. 223].) In many such cases, the individual accused of perjury had
lied under oath to deny an illicit sexual affair that had been denounced to
the courts by a third party. When the accused denied the relationship under
oath, and then was found to be lying, a prosecution for perjury ensued. The
perjury trials thus not only laid bare fundamental problems with judicial
practice; they also exposed a culture of denunciation that was developing in
Weimar society and the antiquated sexual morality which the courts as well as
individuals used to persecute fellow citizens. One Tagebuch
courtroom report summed this up nicely:
[…] Eheleute, die einst Kameraden waren, die Tochter,
die zur Spionin
am Vater wird, ein Strafgesetzbuch mit diesem Meineidsparagraphen, ein
Staatsanwalt mit diesem verächtlichen Mute zur Verfolgung und
Geschworene und Richter mit diesen barbarischen Herzen, die eines Mannes
Leben durch eine Zuchthausstrafe zerstören, weil er einmal mit einer
Frau Arm in Arm gegangen ist und dies vor Gericht sträflich verschwiegen
hat. Man braucht vom heutigen Deutschland nicht mehr zu wissen". (S.
225; Tagebuch der Zeit, Tagebuch 1924, S. 1055)
The perjury trials and consequent controversy do indeed
provide an
interesting perspective from which to view Weimar society, and Schöningh
recognizes the multiple implications of the juridical phenomenon. Even here,
however, her analysis of the trials and the debates surrounding them is
disappointing. She allows the reportage to speak for itself rather than
drawing out the full implications of a justice system that relies so heavily
on the willing participation of countless citizens ready to denounce one
another on petty pretexts. She offers the Tagebuch quotation in
particular without commentary, as evidence of the juridical crisis rather
than as evidence of the leftist perception of the denunciations and trials.
Concluding Remarks
Schöningh's examination of crisis of the Weimar justice
system is a
carefully documented and assembled account of the anti-constitutionalism and
anti-republicanism of the German judiciary as reported by the
Weltbühne, the Tagebuch, and the Vossische
Zeitung from the birth of the Republic to its demise. In case after
case covered in the reportage, from high treason trials to banal manslaughter
prosecutions, the decisions of the courts revealed an intractable political,
moral, and social conservatism which time and again undermined the
constitutional integrity of the Republic and the nascent democratic public
culture. Schöningh shows that the journalists were not merely hurling
petulant and idle criticisms at the German judiciary, but were rather
identifying serious problems in the Republic's justice system, and at times
offering constructive suggestions for the improvement of the justice system.
The evidence presented here certainly seems to support the argument that the
German judiciary played no small role in the demise of Germany's first
Republic. However, Schöningh should have been more circumspect in her
use of courtroom reportage, which serves as both subject and source in her
analysis. Schöningh seeks to show that their diagnosis of the justice
system was right by relying largely on the reportage itself. Further, without
a systematic consideration of the German Left itself, or the possibility of a
plurality of political and philosophical dispositions within the judiciary,
Schöningh's conclusions about a >lack< of republican political culture
in Weimar are at best tentative.
Sace Elder
Department of History
University of Illinois, Urbana-Champaign
309 Gregory Hall, MC-466
810 S. Wright Street
Urbana, Illinois 61801
USA
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Anmerkungen
1 István Deák: Weimar Germany's Left-Wing
Intellectuals. A
Political History of the Weltbühne and its Circle. Berkeley and Los
Angeles. University of California Press 1968, S. 122-134. zurück
2 Peter C. Caldwell: Popular Sovereignty and
the Crisis of
German Constitutional Law. The Theory and Practice of Weimar
Constitutionalism. Durham and London: Duke University 1997. zurück
3 Atina Grossmann: Reforming Sex. The German
Movement for
Birth Control and Abortion Reform. Oxford: University of Oxford Press 1995.
Schöningh herself cites Karen Hagemann: Frauenalltag und
Männerpolitik. Alltagsleben und gesellschaftliches Handeln von
Arbeiterfrauen in der Weimarer Republik. Bonn: Dietz 1990. zurück
4 Schöningh draws heavily on Detlev Peukert:
Die Weimarer Republik. Krisenjahre der Neuzeit. Frankfurt/M.: Suhrkamp
1987. zurück
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