Reliance and denial in legal histories - PULP FICTIONS No.4

Karin Van Marle

Description

[F]or if legal history is written and taught merely to add further justification for currently accepted notions it becomes a mundane, sterile activity; but if it is used to reveal the alternative structures and ideas that are possible it can assist in breaking down the restrictive, artificial barriers which every legal system tends to develop.’ (D Visser ‘The legal historian as subversive’ in D Visser (ed) Essays on the history of law (1989) 19We cannot and need not abolish or reinvent legal history, but we can and have to reinvent our legal tradition as a way of observing and describing the law and the history of law. (AJ Van der Walt ‘Legal history, legal culture and transformation in a constitutionaldemocracy’ 2006 Fundamina 46)The University of Pretoria celebrated its 100th birthday during 2008. The year was marked by several celebratory events, amongst others the creation of a centenary rose, an attempt to have a centenary flame burning at the main entrance of the university and a centenary ball in the sports arena.Closer to the ideal and functions of the university there were also a prestige lecture series and a book fair displaying the latest theory, art and even children’s books to members of the university and the public. For legal scholars history at all levels — a history of ideas, social and political history, and also the history of law — lies at the heart of our teaching and research. We were lucky enough to catch A1 rated academic and holder of the South African Research Chair in Property at the University of Stellenbosch, André van der Walt, during a visit to the faculty for the annual property law conference to present some of his reflections on history and particularly legal history. Lize Kriel from the University of Pretoria’s Department of Historical and Heritage Studies acted as respondent.Van der Walt’s paper and Kriel’s response have been taken up in this edition of Pulp fictions. As always we hope that the thoughts expressed here will inspire and open more space and time for further reflection.About the Editor:Karin van Marle is a Professor at the Department of Legal History, Comparitive Law and Jurisprudence, at the Faculty of Law, University of Pretoria

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2009
• Nombre de lectures: 0
• Langue: English

Extrait

RELIANCE AND DENIAL IN LEGAL HISTORIES

2009

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‘Reliance and denial in legal histories’

[F]or if legal history is written and taught merely to add further justification for currently accepted notions it becomes a mundane, sterile activity; but if it is used to reveal the alternative structures and ideas that are possible it can assist in breaking down the restrictive, artificial barriers which every legal system tends to develop.’ (D Visser ‘The legal historian as subversive’ in D Visser (ed) Essays on the history of law(1989) 19

We cannot and need not abolish or reinvent legal history, but we can and have to reinvent our legal tradition as a way of observing and describing the law and the history of law. (AJ Van der Walt ‘Legal history, legal culture and transformation in a constitutional democracy’ 2006Fundamina46)

The University of Pretoria celebrated its 100th birthday during 2008. The year was marked by several celebratory events, amongst others the creation of a centenary rose, an attempt to have a centenary flame burning at the main entrance of the university and a centenary ball in the sports arena. Closer to the ideal and functions of the university there were also a prestige lecture series and a book fair displaying the latest theory, art and even children’s books to members of the university and the public.

For legal scholars history at all levels — a history of ideas, social and political history, and also the history of law — lies at the heart of our teaching and research. We were lucky enough to catch A1 rated academic and holder of the South African Research Chair in Property at the University of Stellenbosch, André van der Walt, during a visit to the faculty for the annual property law conference to present some of his reflections on history and particularly legal history. Lize Kriel from the University of Pretoria’s Department of Historical and Heritage Studies acted as respondent. Van der Walt’s paper and Kriel’s response have been taken up in this edition ofPulp fictions. As always we hope that the thoughts expressed here will inspire and open more space and time for further reflection. Karin van Marle(Editor) Department of Legal History, Comparative Law and Jurisprudence, Faculty of Law, University of Pretoria

1 Reliance and denial in legal histories

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Introduction

AJ van der Walt South African Research Chair in Property Law*

2 In Bernard Schlink’s novelDas Wochenendeprotagonist Jörg spends a the weekend with his sister and a few old friends after unexpectedly being 3 pardoned and released from prison. Before his release, Jörg had served twenty years of a life sentence for his participation in abductions and murders committed by a terrorist group during the 1970s. Subtly intertwining

1 Paper for a Faculty Lecture, Faculty of Law, University of Pretoria, 3 November 2008, as part of the University of Pretoria’s centenary celebrations. The paper forms part of a research project on Property Law for the New South Africa, for which the National Research Foundation granted research funding (grant no FA2007032900003). The views in this article are those of the author and should not be ascribed to the DST, the NRF, the University of Pretoria, Stellenbosch University or any other institution. Thanks to Xolisa Nginase for valuable research assistance. Phephelaphi Dube did not provide active assistance for the writing of this paper but is involved in developing a research project on the 1968 student revolts. * Hosted by Stellenbosch University, sponsored by the Department of Science and Technology (DST) and administered by the National Research Foundation (NRF). 2 B SchlinkDas Wochenende(2008). 3 The character of Jörg and his unexpected pardon and release from prison is probably based on second-generation RAF member Christian Klar, who received six life sentences in 1982, among other things for his involvement in several murders, including that of Hanns Martin Schleyer in 1977. Klar applied for a pardon in 2007 but the application was dismissed by the German President. He will qualify for parole in 2009.

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4 the history of the infamous Baader-Meinhof terrorist gang of the 1970s, on which Jörg’s fictitious terrorist gang is clearly based, with the New York terrorist attacks of 11 September 2001, Schlink construes a searching and intriguing narrative about the motivation and justification for and the aftermath of serious political violence. 2008 marks the 40th anniversary of the 1968 revolts and Schlink’s novel offers a wonderful starting point for thinking about history and, above all, for thinking about historical celebrations. The history of a German terrorist gang might seem a strange place to start talking about the centenary celebrations of a South African university, but in fact I will argue that Schlink challenges us to reflect carefully about our own specific place in history and our history of institutional and revolutionary terrorism.

Upon his release, Jörg’s sister Christiane takes him back to the house she had bought with a friend — a grand old country manor set in a beautiful big park with a wood, bordering a stream, much like the houses once inhabited by the high-flying captains of industry like Hanns Martin Schleyer, who once were the principal kidnap and murder targets of terrorist groups like the RAF. In the novel, the once grand mansion that Christiane bought and where the celebratory weekend takes place is now sadly dilapidated, without central heating, electricity or running water, in much need of restoration (which Christiane and her friend cannot afford) and TLC. In this sad old country house, which is obviously a metaphor for ruined capitalism, Christiane wants to treat her brother to a relaxed, intimate weekend where they could celebrate his freedom, together with old friends, before he is reintegrated

4 The Baader-Meinhof gang was responsible for 34 deaths during the more or less ten years that they operated intensively, between 1970 and 1980. Although many further actions were undertaken in the name of the Baader-Meinhof gang orRote Armee Fraktionits self-announced retirement in 1998, the gang as such was until destroyed after the arrest and imprisonment in 1972 and the subsequent death in detention during the late 1970s of the first generation of RAF members. Ulrike Meinhof was found dead in her cell in Stammheim prison near Stuttgart on 9 May 1976, apparently having committed suicide. Following the successful freeing of the ‘Landshut’, the plane that was hijacked in the gang’s name during Lufthansa Flight 181 from Palma de Mallorca to Frankfurt on 13 October 1977 to force the German government to give in to demands of the RAF, Andreas Baader, Gudrun Enslin and Carl- Jan Raspe (also arrested in June 1972 and imprisoned in Stammheim) were found dead in their cells; the official verdict was once again suicide. Rudi Dutschke, never formally a member of the RAF but a leading intellectual and spokesman for the early student protests of 1967 and 1968, died in 1979 from injuries sustained when he was shot in the head in an assassination attempt on 11 April 1968.

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into society. He needed human contact and support, she told herself; who better to provide that than his old friends, and where better than in her house?

The friends who attend the celebratory weekend organised by Christiane 5 were all involved in the early student protests of 1968, but their ways parted when Jörg and a few others opted for hardcore terrorist actions involving kidnapping, murder and violent attacks that threatened to (and indeed did) kill not only political opponents and state functionaries such as police and public prosecutors, but also innocent civilians and bystanders. As students, the others once shared Jörg’s political views and his protest against the false certainties of postwar German social democracy, but at some point towards 6 the end of the 1960s they shied away from radical protest and from violence and now they have all found a niche in the bourgeois society they once derided: A school teacher, a small-time industrialist and entrepreneur, a journalist, a lawyer and a woman bishop in a rural community church. Despite the parting of their ways and the fact that none of them ever visited Jörg in prison, they all come to spend the weekend with him and his sister, some out of loyalty, some out of nostalgia, some out of curiosity.

The novel centres on an extended discussion of the ethical issues surrounding the legitimacy, the purpose and the boundaries of and between critical thinking, political protest, civil disobedience and violent terrorist activities, including murdering political enemies and killing innocent bystanders. Jörg and his former friends and co-protesters had scarcely sat

5 The student protests in Berlin, Berkeley and Paris are usually associated with the year 1968, but the first protests in Berlin started in 1967, when the students of West Berlin protested against the official state reception of the Shah of Persia. When student Benno Ohnesorg was killed on 2 June 1967 by a bullet in the back of his head the protest movement escalated, triggering the more famous events, especially the bloody Easter revolt of 1968. See the special edition ofDie Zeit: Geschichte, June 2007, entitled ‘Die 68er-Revolte’. The DVD of the 1967 protests is entitled1967: Die revolte in film (2007). Other sources of enlightening video material areThe US vs John Lennon(2007);Berkeley in the Sixties(2007). 6 This aspect of the novel is also an echo of much-debated and highly publicised differences of opinion that resulted in and followed the forming of the radical RAF from the ranks of the student protesters of the late 1960s. Similar dissent and partings of the ways characterised the radicalisation of the Berkeley student protest movement after 1969, the split between the peacenik or hippie protest culture and militant protest movements such as the Black Panthers being the most obvious example. See T Sommer ‘Die vernunft blieb auf der strecke’ inDie Zeit: Geschichte, June 2007 42 - 43.

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down to their drinks on the first evening when the probing questions began: How could you resort to so much violence without becoming as evil as the state you protested against? How could you justify the four murders you were involved in? How was it to commit your first murder; and did it get easier after that? Did you really denounce violence, or was that just a ruse to get the pardon? These questions and the extended debates around them, amongst a group of people who were all once committed to critical thinking and political protest against what they saw as serious failings of the social democracy that was promised after the horrors of World War II, offer the backdrop for a gripping and thought-provoking analysis. The novel is well worth reading just for that, particularly in so far as Schlink cleverly ties 7 currently renewed debates about the mostly peaceful student protests of 1968 and the violence and terrorist activities that developed from it into the much more voluminous and agitated current global debates about the terrorist attacks of 2001, thereby deepening the critical thrust of his ethical analysis. The construction of a discursive continuum between criticism, action, protest and terrorism is particularly striking for South African readers, who are just now starting to get used to the idea that the escalating political protest and terrorism in South Africa during the period between 1960 and 1990 resulted in a peaceful democratic transition, and that we have to accept and rationalise the process by which convicted terrorists become national political leaders.

LikeDer Vorleser before it,Das Wochenende speaks directly and powerfully to the South African reader because of the analogies in our respective breaks with an immoral past. The later novel is interesting because of Schlink’s focus on political and ethical issues surrounding the 1968 revolts instead of the Nazi regime, but the analogies still hold and his narrative should also inspire South Africans to reflect upon the purpose, legitimacy and limits of critical thinking, social and political action, revolt and violence. More particularly, South Africans should associate with his probing discussion of the ethics of blame and forgiveness in a post- 8 revolutionary constitutional democracy. Every South African is aware of and

7 Apparently mostly in Germany, where there is a veritable flood of new books, articles and film material about 1968. Similar material that could indicate a parallel debate elsewhere seems to be scarcer, although I have to admit that I do not keep a close eye on French materials. A notable exception is T WellsThe war within: America’s battle over Vietnam(1994, 2005). 8 Among the many recent publications on this topic RG TeitelTransitional justice (2000) stands out for the originality and theoretical productivity of her analysis.

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has an opinion about the question whether the convicted revolutionary anti- apartheid terrorist of the 1960s and 1970s, like Nelson Mandela, should receive amnesty or a pardon and be able to hold high office in the post- apartheid democratic order. Whether there should have been a blanket amnesty for freedom fighters and for soldiers and police officers of the apartheid regime, whether they should denounce violence and apologise for their violent actions and the harm and suffering they caused before amnesty is granted and other similar questions are still important enough to find space 9 in South African public debates and media. This theme is analysed and discussed in many of the new sources emerging in the German media, and Schlink’s novel is no exception. I want to explore other avenues, though.

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Histories of reliance and denial

My main interest in the Schlink novel lies elsewhere, at least for the moment. What struck me about the celebratory weekend at the dilapidated country manor is the way in which the characters deal with the historical dilemma of renunciation and justification by construing histories that accommodate and legitimise their memories of a shared past and their divergent reactions to 10 the political and ethical dilemmas that split them up. On the basis of Schlink’s novel I would argue that the debate that dominates the weekend reveals a politics of reliance and denial in the characters’ construction of their histories of protest and political action, but also in their personal experience of and reaction to these histories. My impression is that these histories of their shared past and the future they are anticipating are construed through interlocked strategies of reliance and denial.

An enlightening example is Christiane’s expectations about the weekend that she almost naively dedicates to a celebration of her brother’s return to

9 InDas Wochenendethe reader is left to speculate about Jörg’s position on violent political protest. Much is said in the weekend’s discussions about others who have made public apologies (probably resulting in his being pardoned and released) and declarations of intent to continue with protest actions on his behalf, but on his part one is simply left with nothing more than the impression that the ethical questions about political violence always have and still do trouble him. 10 There is a fairly serious South African and international literature about this issue already, but I do not enter into the existing debates because my focus is elsewhere. Some of the literature and debates can be accessed via S Nuttall & C Coetzee (eds) Negotiating the past: The making of memory in South Africa(1998); W le Roux & K van Marle (eds)Law, memory and the legacy of Apartheid: Ten years afterAZAPO v President of South Africa (2007).

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freedom. On the one hand, her planning for the weekend is construed around a history determined by reliance, shaped by her memories of the camaraderie and shared political ideals that once held the group together. In remembering the past she relies upon that history for the friendship and support her brother will no doubt need once he attempts to reintegrate with society. In this particular history of the protest movement, the memory of shared friendship, idealism and solidarity command centre stage. She relies on this particular construction of history as a crutch, a source of reassurance and stability, and therefore looks back at and celebrates its version of the past as the source of certainties that enable and secure the future. In this backward-looking construction of history the security of old friends and shared ideals provides a solid foundation for present and future. Christiane’s construction of history as reliance isn’t fanciful either; the old friends are eager to indulge in nostalgic memories about their shared experiences in the protest movement twenty years earlier and even the most critical former friend who asks the most probing questions, the small industrialist and entrepreneur Ulrich, is anxious to give Jörg a job and to help him back on his feet. Sharing in this history of the protest movement allows those who decided to turn away from increasingly violent political protest to hold on to the splinters and shards of idealism and righteousness that remain from their student days, without having to share the blame for the violence that followed. For sheer reassurance and security, this version of the history of 1968 is unbeatable because it ties in with the pleasant memories most of us associate with our youth.

However, reliance on a history of shared idealism and solidarity also forces Christiane to simultaneously deny or block out those other aspects of Jörg’s history that endanger his easy reintegration into civilian life, namely the history of violent abductions and killings in which he participated and the years that he spent in prison for it. Her history of reliance is simultaneously a history of denial, in which parts of her brother’s past are ignored, wiped out, at least for the moment, to give him space to take a deep breath and prepare himself for reintegration. This denial construes the past in a primarily forward-looking, utilitarian, pragmatic way: Life cannot go on unless we finally get over certain aspects of the past; progress will be impossible if we insist on dwelling on the negative fruitlessly. As Jörg himself says at more than one occasion during the weekend: Look, it is over, I have paid my dues to society, let us forget about it now, I don’t want to discuss it any further. Again, Christiane’s denial of the history of violence is immediately taken up by old friends who rally around Jörg indignantly when Ulrich starts asking probing questions about violence and murder: Surely this

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is not the time or the place for these questions? Can’t he see that Jörg needs a little respite from the past and from thoughts about his imprisonment to help him prepare for civilian life? And anyway, having not seen each other in years, must they spoil a lovely weekend together by judgmental and divisive political debates? Can’t they finally just get on with life and forget about the terrible things that happened more than twenty years ago?

All this denial, I will remind the reader, emerges from amongst a group originally brought and held together by shared critical views of social and political morality and now reassembled in a setting that screams out its signification of the projected aims of their once shared political protest, namely the ruin and destruction of the immoral, luxurious lifestyle of the capitalist exploiting class. Whether this was intended by Schlink I do not know, but reading this part of the novel left me with the distinct mental picture of a former group of student protesters from 1968 sitting in the ruined shell of Hanns Martin Schleyer’s one-time mansion, criticising their former student protester comrade for killing him. In this perspective the 11 paradox, not to say the hypocrisy, of the strategy of historical reliance and denial is revealed: Those who gladly snuggle into the warm memory of their non-violent political protests are happy to gather in the metaphorical ruins of the social and economic order they once wanted to destroy, dishing out blame for the supposedly greater violence of those who actually went ahead and killed the former housemaster. What was critical social theory and political action in 1968 has apparently degenerated by 2008 into a calculus of the relative justice of more or less violence. The possibility of sharing in the fuzzy, warm memory of youthful righteousness, political activism and solidarity is acquired through sacrifice, denial, of other memories; in this case the histories of blindly following through on political ideals by participating in violent crime and murder and the histories of quietly betraying those ideals by settling for suburban comfort and security.

None of these histories is more valid than the other, as Robert Gordon 12 pointed out, although he was also at pains to remind us of a basic CLS argument, namely that functionalism ‘obscure[s] the ways in which [...] seemingly inevitable social processes are actually manufactured by people who claim (and believe themselves) to be only passively adapting to such

11 Some old-school critical scholars would have raised the flag of false consciousness here, although I gather that CLS legal theory is now outdated and old-fashioned. See P Gabel ‘The phenomenology of rights-consciousness and the pact of the withdrawn selves’ (1984) 62Texas Law Review1563. 12 RW Gordon ‘Critical legal histories’ (1984) 36Stanford Law Review57 70-71.

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processes.’ In other words, we should hold on to the idea of multiple histories 13 rather than one grand narrative, as long as that does not seduce us into thinking that some historical narratives are privileged above others by their neutrality or passivity in the sense of allowing us to merely adapt to changing and irresistible social forces or circumstances without making any active input in the construction of social reality. The multiplicity of histories does not legitimate histories of passivity, neutrality or innocence; contingency 14 does not mean that anything goes.

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Reliance and denial in South African law

I do not intend to dwell on the question of political pardons and amnesty for justified political violence. Instead, I want to draw the line of reliance and denial in the construction of histories from Schlink’s novel through to the current South African project of social and legal transformation, and then from there to the question of historical celebration. The transformation of 15 South African law, on the scale we face in post-apartheid South Africa, 16 involves historical dilemmas very similar to those faced by Jörg’s friends in Das Wochenende. How can we rely on the perceived positives in our construction of the past, as a foundation for security, without making it impossible to move forward and away from the evils that made us denounce the past in the first place? In other words, now that the obvious malignant growths of apartheid legislation have been removed from our legal system, we might perhaps acknowledge (not all of us do) that we still need to rid ourselves of the less obvious cancerous spores that remain deep inside the

13 Gordon’s text is of course primarily about multiple histories. The central South African text on this topic remains P de Vos ‘A bridge too far? History as context in the interpretation of the South African Constitution’ (2001) 17South African Journal on Human Rights1. 14 The classic text here is JW Singer ‘The player and the cards: Nihilism and legal theory’ (1984) 94Yale Law Journal1. 15 I am not going to make the moral or the political case for transformation of the law here; I will just assume that both the moral and the political cases have been made and accepted by the majority in the shape of the Constitution and the reform legislation that has been promulgated and policies that have been implemented in terms of it since 1994. See further chap 1 of AJ van der WaltProperty in the margins (forthcoming 2009) (Margins). 16 Encarta English Dictionary (available at encarta.msn.com/dictionary_ 1861707391/u_k_.html, accessed 21 Oct 2008): ‘Dilemma: 1. situation with unsatisfactory choices; a situation in which somebody must choose one of two or more unsatisfactory alternatives.’

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tissue of uncodified common law principles and institutions and pre-1994 legislation and precedent – the question is, how do we identify and remove these spores of evil if we cannot see them? What about the danger of 17 removing healthy tissue unnecessarily out of exaggerated caution? Shouldn’t we simply accept that whatever remains after the abolition of apartheid laws has been rendered harmless by subsequent reconstruction of the body under a new health regime and then get on with whatever we have to do in future, or is that naively embracing a Trojan horse? Do we forever have to fret about the possibility that some evil legacy of apartheid might hide away somewhere in the depths of our legal culture, or should we finally just get over ourselves and get on with it?

South African lawyers, and especially private law specialists, will recognise the problem and the main stances immediately. On the one hand, many of us accept that we have to move away from apartheid and its legacy decisively, not only in the sense of formulating and promoting new social and political agendas, but also in the much more problematic sense of actually changing the law, for the sake of justice. Those who accept this conclusion also accept that we were wrong in leaving apartheid to the politicians and that we cannot again leave reconstruction to them; we have to get involved and actually change the law. Or is Marx now also outdated and old-fashioned? However, having perhaps at least agreed on the destination of a transformed society, we immediately start bickering about the best route, just like a bunch ofbekveldersplanning their annual camping holiday at the seaside. Of course, in politics the stakes are much higher. One common thread is that many of us would want to change only as much as is really necessary, arguing (on the supposed authority of some vaguely remembered historical figure such as Paul Kruger) that we should retain what is good from the past and build the future on it. Out of a deep psychological need for security we want to retain something we are familiar with and that we can rely on when meeting the challenges of the present and the uncertainties of the future and therefore, although we might be ready to accept remarkably large and radical changes, we resist transformation that would destroy all our memories of the past. Consequently, one of our most pivotal reactions to the prospect of large-scale change and transformation is to look back, much as Christiane did when she planned her weekend, to construe a history that

17 Again, I am not specifically making the case here that the common law has been affected deeply by its apartheid history; that case has been made elsewhere and I simply rely on those sources. See AJ van der WaltConstitutional property law(2005) chap 7 (Property); Van der WaltMargins(n 16 above) chap 1 for references.