1 Law builds a structure that encourages a uniformity, which promotes efficiency and order. See A. M. Honoré, Making Law Bind 19 (1987) (discussing concentration of power in the state and its balance with democratic freedoms).Google Scholar

2 See Donadio, Rachel, Strife-Torn Greece Teeters Between Chaos and Calm, N.Y. Times, Dec. 11, 2008, at A22 (reporting on the violent protests following the shooting of a teenage boy). The incident bears more than a passing resemblance to the shooting of Benno Ohnesorg in 1967. See infra Section B(III).Google Scholar

3 See They Do Protest Too Much, Economist, Dec. 11, 2008 (describing the violence of the protests and the speed with which they spread); see also Anthee Carassava, Violent Protests Flare Again in Central Athens, N.Y. Times, Dec. 19, 2008 at A21 (“This month's demonstrations originally sought to protest the killing of the teenager, but have since taken on a political character.”).Google Scholar

4 Claus Offe, 1968 Thirty Years After: Four Hypotheses on the Historical Consequences of the Student Movement, 68 Thesis Eleven 82, 82 (2002).Google Scholar

5 Löwy, Michael, The Revolutionary Romanticism of May 1968, 68 Thesis Eleven 95, 95 (2002).Google Scholar

6 Id. Google Scholar

7 Id. at 97.Google Scholar

8 Id. at 97–98.Google Scholar

9 Offe, supra note 4, at 82–83.Google Scholar

10 Id. at 83.Google Scholar

11 Id. at 84.Google Scholar

12 Offe, supra note 4, at 84.Google Scholar

13 Peter Ginsborg, Luisa Passerini, Bo Strath & Wagner, Peter, 1968-2001: Measuring the Distance: Continuities and discontinuities in recent history, 68 Thesis Eleven 5, 8 (2002).Google Scholar

14 Id. at 6.Google Scholar

15 Offe, supra note 4, at 84 (“We think differently today than the normalcy of the two postwar decades because the movements of 1968 liberated all of us, including the generations born later, from the discursive power of those rules and codes.”).Google Scholar

16 See id. (“Without the work of destruction that the soixante-huitards performed at the cognitive frame of the postwar social order, there would today … be no insistence on participation and transparency, no feminist or environmentalist movements, no green parties, no liberating achievements for ethnic religious, and sexual minorities, and so on.”).Google Scholar

17 Id. at 87.Google Scholar

18 Devin O. Pendas, The Frankfurt Auschwitz Trial, 1963–65: Genocide, History and the Limits of the Law 1 (2006).Google Scholar

19 See id. Google Scholar

20 See id. at 14.Google Scholar

21 Id. at 14 (quoting Gotthard Jasper, Wiedergutmachung und Westintegration, in Westdeutschland, 1945–1955, at 183 (Herbst, Ludolf ed., Munich: R. Oldenbourg Verlag, 1986).Google Scholar

22 Id. at 15.Google Scholar

23 See Tony Judt, Postwar: A History of Europe Since 1945 391 (2005).Google Scholar

24 See Pendas, supra note 18, at 21.Google Scholar

25 See Wittmann, Rebecca Elizabeth, The Wheels of Justice Turn Slowly: The Pretrial Investigations of the Frankfurt Auschwitz Trial 1963–65, 35 Cent. Eur. Hist. 345, 345 (2002). See generally Verdict on Auschwitz: The Frankfurt Auschwitz Trial 1963–1965 (DEFA Film Library 2007) (documentary by Rolf Bickel and Dietrich Wagner on the Frankfurt Auschwitz Trial).Google Scholar

26 See Verdict on Auschwitz (DEFA Film Library 2007).Google Scholar

27 See id. Google Scholar

28 See id. Google Scholar

29 See id. Google Scholar

30 See id. Google Scholar

31 See Pendas, supra note 18, at 249–250 (“The Auschwitz Trial was about the past in relation to the present, it was about the history of politics and the politics of history.”).Google Scholar

32 See Judt, supra note 23, at 390–391.Google Scholar

33 See id. at 417 (“The youthful radical intelligentsia of the German Sixties accused the Bonn Republic of covering up the crimes of its founding generation.”).Google Scholar

34 See Pendas, supra note 18, at 2.Google Scholar

35 See id. Google Scholar

36 See id. Google Scholar

37 Id. at 250.Google Scholar

38 Id. at 252, 258–269.Google Scholar

39 Id. Google Scholar

40 Id. at 253.Google Scholar

41 Id. Google Scholar

42 Id. at 251.Google Scholar

43 Id. at 2.Google Scholar

44 See Wittmann, supra note 25, at 345–348.Google Scholar

45 See id. at 347 (describing three basic problems with the German penal code: first, the definition that made up the distinction between perpetrator and accomplice; second, the limitations of the murder law itself; third, the debate on the Statute of Limitations).Google Scholar

46 Pendas, supra note 18, at 300.Google Scholar

47 Id. at 287.Google Scholar

48 See Mark Kurlansky, 1968: The Year That Rocked the World 146 (2005).Google Scholar

49 Id. at 144–147.Google Scholar

50 Id. at 143–157.Google Scholar

51 Ingo Müller, Hitler's Justice: The Courts of the Third Reich 202 (1987).Google Scholar

52 Id. at 203.Google Scholar

53 For instance, Gunther Shultz, who participated in Race Law decisions during the war, was later named the presiding judge of a board in Hamburg to hear the cases of war victims claiming damages. In some cases the courts were also responsible for hearing the grievances of the relatives of those they had executed. See id. at 202–211.Google Scholar

54 Id. at 213.Google Scholar

55 See id. at 219 (“[L]egal positivism, with its demand that judges be strictly bound to the law, had been the unchallenged doctrine of the authoritarian state under the Kaiser.”).Google Scholar

56 Id. at 219–220.Google Scholar

57 Id. at 221.Google Scholar

58 The prevalence of the doctrine of positivism in post-war Germany was most readily acknowledged by those who should have been held responsible for the crimes they had committed during the Nazi era. In effect, the perpetrators simply claimed to have been following the letter of the law and that it was this training and a strict adherence to the letter of the law that allowed the war-time atrocities to take place. Personal responsibility was not contemplated. Id. at 219–221.Google Scholar

59 Id. at 223.Google Scholar

60 Id. at 224.Google Scholar

61 Muller writes that a clear example of the persistence of the old conservative order can be taken from the relationship between the sexes and the legal status afforded to women after the war. See id. at 224 (“The essence of a woman is determined by nature. Motherhood is her fate, her life work; every historical development must come to a stop when confronted with this unalterable biological fact.”).Google Scholar

62 Müller, supra note 51, at 227.Google Scholar

63 Id. at 232.Google Scholar

64 Id. at 232–234.Google Scholar

65 Id. at 243.Google Scholar

66 Id. at 248–256.Google Scholar

67 Id. at 243–246.Google Scholar

68 Id. at 255.Google Scholar

69 Id. at 246.Google Scholar

70 In one instance, a man convicted of killing 26,000 people argued that his three-year prison sentence was disproportionately cruel. The court cut the sentence to nine months. Id. at 257.Google Scholar

71 Id. at 257.Google Scholar

72 Id. at 262.Google Scholar

73 Id. at 269.Google Scholar

74 Id. at 283.Google Scholar

75 Id. at 283.Google Scholar

76 Kurlansky, supra note 48, at 146.Google Scholar

77 Id. at 148.Google Scholar

78 Id. Google Scholar

79 Binder, David, Trial of Student Opens in Berlin, N.Y. Times, Dec. 16, 1967.Google Scholar

80 Kurlansky, supra note 48, at 148.Google Scholar

81 Mohr, Reinhard, Ein Skandal, der die Republik veränderte, Der Spiegel, Feb. 4, 2008, available at http://www.spiegel.de/kultur/literatur/0,1518532502,00.html.Google Scholar

82 Kurlansky, supra note 48, at 146.Google Scholar

83 Boyne, Shawn, Law, Terrorism, and Social Movements: The Tension Between Politics and Security in Germany's Anti-Terrorism Legislation, 12 Cardozo J. Int'l & Comp. L. 41, 50 (2004).Google Scholar

84 Soukup, Uwe, Der Mann, der Benno Ohnesorg erschloss, Stern, Jan. 16, 2008, http://www.stern.de/politik/historie/604175.html.Google Scholar

85 Kurra's defense attorney was reportedly paid 60,000 DM. Id. Google Scholar

86 See Mohr, supra note 81.Google Scholar

87 See id. (“Wenn ich gezielt geschossen hätte, wie es mein Pflicht ware, wären mindestens 18 Mann tot gewesen.”).Google Scholar

88 Berlin Detective Cleared in Killing of a Student, N.Y. Times, Nov. 22, 1967, at pg. 37.Google Scholar

89 Student Defendant Scores Berlin Court., N.Y. Times, Dec. 16, 1967, at pg. 6.Google Scholar

90 Id. Google Scholar

91 Binder, supra note 79.Google Scholar

92 Boyne, supra note 83, at 50.Google Scholar

93 Id. Google Scholar

94 See Schoenbaum, The Spiegel Affair 11 (1968). For a more detailed account of press coverage of the events and aftermath, see Ronald F. Bunn, German Politics and the Spiegel Affair 81–91 (1968).Google Scholar

95 See Schoenbaum, supra note 94, at 27–28.Google Scholar

96 See Bunn, supra note 94, at xvii.Google Scholar

97 See Friedrich, Carl J., Rights, Liberties, Freedoms: A Reappraisal, 57 Am. Pol. Sci. Rev. 841, 847 (1963) (identifying the atypically sharp public response to the Spiegel Affair as an indicator of increasing constitutionalism in West Germany), and Frank Esser & Uwe Hartung, Nazis, Pollution, and No Sex: Political Scandals as a Reflection of Political Culture in Germany, 47 Am. Behavioral Scientist 1040, 1056 (2004) (linking the Spiegel Affair to the “emerging spirit of the 1960s.”).Google Scholar

98 Der Spiegel was founded by a young Allied soldier, Rudolph Augstein, in 1947. See Bunn, supra note 94, at 1. The publication's style was based largely on Time magazine, though with more of an edge. See Schoenbaum, supra note 94, at 28. For a more in depth discussion of the magazine's history, founding philosophies, and trademark approach, see Konstantin Richter, Der Spiegel's employee-owners gave their boss the boot. Now they must prove they can revive the venerable German magazine, Colum. Journalism Rev. (May/June 2008), available at http://www.cjr.org/feature/shop_stewards.php?page=1.Google Scholar

99 See Schoenbaum, supra note 94, at 27 (noting Spiegel's political leanings at the time, but also suggesting that many of its positions were not unique among German media sources).Google Scholar

100 See id. at 42–46 (characterizing Spiegel's initial reception of Strauss in 1956 as “not unfriendly,” but tracing the descent of their appraisal).Google Scholar

101 See Schoenbaum, supra note 94, at 45 (discussing how Der Spiegel continuously warned its readership of Strauss's flawed personal tendencies that could become entrenched government policy should his political ascent continue).Google Scholar

102 See Bunn, supra note 94, at 15.Google Scholar

103 Id. at 19.Google Scholar

104 Based on Spiegel reporting, a 1961 Bundestag investigation found that Strauss skirted blame for a Bundeswehr plane veering into East German airspace by falsifying the verdict of a military tribunal. See Schoenbaum, supra note 94, at 46. Strauss was also at the center of the Fibag Affair, which involved allegations that Strauss had improperly recommended a friend's company to contract with the Pentagon. This affair resulted in two inquiries by the Bundestag. Id. at 23–24. Strauss was eventually cleared of wrongdoing on October 25, 1962; the Spiegel raids and arrests began the next day. Id. at 25.Google Scholar

105 According to Der Spiegel, Strauss had a record of contempt for courts, legal majorities, and democracy itself that would become national policy should he achieve Chancellorship. See Schoenbaum, supra note 94, at 45. The paper went so far as to draw upon Nazi imagery to criticize Strauss's leadership philosophies and warn of the perils to befall Germany should Strauss's star continue to rise: “As little as Strauss wants an atomic war, so little does he presumably want to stamp out parliamentary democracy. But the means and methods he applies with an almost naïve self-confidence are more than the successor to Hitler's Reich can tolerate.” Id. at 46. In 1961 Strauss went so far as to bring suit against Spiegel to enjoin the magazine from repeating certain statements against Strauss. Bunn, supra note 94, at 15–17.Google Scholar

106 Richter, supra note 98. See also Bunn, supra note 94, at 13–57; and Schoenbaum, supra note 94, at 42–47.Google Scholar

107 Conditionally Prepared for Defense, Der Spiegel, October 10, 1962 (translated and reprinted in Bunn, supra note 94, at 186–216).Google Scholar

108 See id. The article was part of a larger political debate over whether Germany should build its military to the degree necessary to independently match Russia's (Strauss favored this approach, while Spiegel was adamantly opposed); for more detailed discussion of the politics of the debate, see Schoenbaum, supra note 94, at 49–59; see also Bunn, supra note 94, at 29–35.Google Scholar

109 BVerfGE 20, 162 1 BvR 586/62 (August 5, 1966), available at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=651 [hereinafter Spiegel Case].Google Scholar

110 Id. Google Scholar

111 See Schoenbaum, supra note 94, at 97–99.Google Scholar

112 Bunn, supra note 94, at xxi.Google Scholar

113 Id. at xviii.Google Scholar

114 Id. at 51–54.Google Scholar

115 Spiegel Case, supra note 109 (citing §§ 94, 98, 102, 104, 105, 168 of Germany's Rules of Criminal Procedure).Google Scholar

116 Bunn, supra note 94, at 54.Google Scholar

117 Id. at 95. For the amount of time each individual spent in jail, see id. at 94–95.Google Scholar

118 See id. at 37–57 (giving detailed accounts of the searches).Google Scholar

119 Id. at xviii.Google Scholar

120 Spiegel Case, supra note 109.Google Scholar

121 See Schoenbaum, supra note 94, at 146 (suggesting that at the time, German society was not prone to public unrest and the protests stemming from the Spiegel Affair could have been avoided with a small showing of government transparency).Google Scholar

122 Bunn, supra note 94, at 4.Google Scholar

123 Schoenbaum, supra note 94, at 35.Google Scholar

124 Bunn, supra note 94, at 59.Google Scholar

125 Id. Google Scholar

126 Id. at 61 (citing mid-November as the first open and serious wave of criticism from the teaching community).Google Scholar

127 Id. at 155–157.Google Scholar

128 For a more complete description of the complaints lodged by the academic community, see id. Google Scholar

129 Id. at 155–156 (quoting Der Spiegel, Nov. 28, 1962, at 39).Google Scholar

130 Id. at 61.Google Scholar

131 See Schoenbaum, supra note 94, at 11.Google Scholar

132 Bunn, supra note 94, at 163.Google Scholar

133 Schoenbaum, supra note 94, at 171.Google Scholar

134 Id. Google Scholar

135 See generally Gimbel, John, The “Spiegel Affair” in Perspective, 9 Midwest J. of Pol. Sci. 282, 284–86 (1965) (discussing in greater detail the sequence of events within the Adenaur administration following the Spiegel action). But see Konrad Kellen, Adenauer at 90, 44 Foreign Aff. 275, 283 (1966) (suggesting that even though Adenauer came down on the wrong side of the Spiegel Affair, his favor of order and restraint ultimately helped preserve German democracy during that time).CrossRefGoogle Scholar

136 Gimbel, supra note 135, at 285.Google Scholar

137 Schoenbaum, supra note 94, at 171.Google Scholar

138 Id. at 170–72.Google Scholar

139 Id. at 116.Google Scholar

140 Schoenbaum, supra note 94, at 139.Google Scholar

141 Sebastian Fischer, Madame Tussauds Riles Bavaria, Spiegel Online (July 25, 2008), http://www.spiegel.de/international/germany/0,1518,568106,00.html.Google Scholar

142 Bunn, supra note 94, at 172.Google Scholar

143 Bunn, supra note 94, at xviii.Google Scholar

144 Schoenbaum, supra note 94, at 139–40.Google Scholar

145 Id. at 176.Google Scholar

146 See Section B(ll), supra. Google Scholar

147 Bunn, supra note 94, at 174–75.Google Scholar

148 See id. Google Scholar

149 Schoenbaum, supra note 94, at 228.Google Scholar

150 Bunn, supra note 94, at 175.Google Scholar

151 Id. Google Scholar

152 Spiegel Case, supra note 109.Google Scholar

153 Id. See also Schoenbaum, supra note 94, at 228.Google Scholar

154 See Esser, supra note 97, at 1052.Google Scholar

155 Spiegel Case, supra note 109.Google Scholar

156 Bunn, supra note 94, at xxi.Google Scholar

157 Id. Google Scholar

158 Schmidtke, Michael A., Cultural Revolution or Cultural Shock? Student Radicalism and 1968 in Germany, 16 S. Cent. Rev. 77, 79 (Winter, 1999 - Spring, 2000).Google Scholar

159 Fischer, supra note 141.Google Scholar

160 Id. Google Scholar

161 See Esser, supra note 97, at 1056.Google Scholar

162 Burns, Rob, West German Intellectuals and Ideology, 8 New German Critique 3, 17 (1976).Google Scholar

163 Grundgesetz (GG - Basic Law/Constitution) art. 79(2).Google Scholar

164 Recent Emergency Legislation in West Germany, 82 Harv. L. Rev. 1704, 1704 (1969).Google Scholar

165 Id. Google Scholar

166 Id. at 1704–1705.Google Scholar

167 Id. at 1710.Google Scholar

168 Id. at 1705.Google Scholar

169 Diederich, Reiner, The West German Emergency Laws, 22 Int'l Socialism 23, 24 (1965) (Stephen Castles trans.).Google Scholar

170 Id. at 1705.Google Scholar

171 See id. at 25 (explaining that the process of integration could clearly be seen in the first emergency law bill proposed by the West German Home Minister in 1960. The bill stated that a simple majority vote in Parliament should be able to trigger a state of emergency regardless of cause; no distinctions should be made between emergencies resulting from war, revolution, or natural disaster. The purpose of such an easily enacted emergency law was to provide a simple legal means through which the government could suppress all opposition and showcase itself as a legitimate sovereign nation.).Google Scholar

172 Id. at 27.Google Scholar

173 See Recent Emergency Legislation, supra note 164, at 1705 (quoting Karlheinz Rode, 19 Die Offentliche Verwaltung 117 (1966), who stated that almost no other legislative program since the founding of the Federal Republic had been argued against so vigorously by so many different political groups.).Google Scholar

174 N.Y. Times, June 17, 1965, at 9 col. 2. The Socialist Unity Party was steeped in Marxist/Leninist ideology and considered itself an advocate of worker's rights.Google Scholar

175 See Recent Emergency Legislation, supra note 164, at 1705.Google Scholar

176 See Diederich, supra note 169, at 23.Google Scholar

177 Id. Google Scholar

178 Id. Google Scholar

179 See Recent Emergency Legislation, supra note 153, at 1736.Google Scholar

180 Id. at 1714.Google Scholar

181 See id. at 1714–15 (citing Basic Law arts. 115(a)(1), 87(a)(4), 91(1)).Google Scholar

182 See id. at 1715–19 (explaining that the exercise of emergency law authority was hindered only by minimal statutory and constitutional provisions. Article 9(3) of the German Constitution stated that powers based upon emergency labor drafts could be used to hinder labor disputes or strikes. Outside of this provision, there was little language either in the Constitution or in the emergency law itself that protected the right of the people to peacefully demonstrate or collectively protest. This led some to feel that existing law provided little guarantee against the misuse of emergency authority and that the emergency law provisions would have a chilling effect upon lawful and unlawful activities of protest during normal times.).Google Scholar

183 Id. at 1720.Google Scholar

184 Id. at 1719.Google Scholar

185 Id. Google Scholar

186 Id. Google Scholar

187 Id. at 1720–1721.Google Scholar

188 Id. at 1720.Google Scholar

189 Id. at 1724.Google Scholar

190 Id. at 1736.Google Scholar

191 Id. Google Scholar

192 Id. Google Scholar

193 Id. at 1737.Google Scholar

194 Jurgen Habermas, The Movement in Germany: A Critical Analysis, in Toward a Rational Society: Student Protest, Science, and Politics 31, 39 (Jeremy J. Shapiro trans. 1970) (emphasis added).Google Scholar

195 Michael Lowy, The Revolutionary Romanticism of May 1968, 68 Thesis Eleven 95, 99 (2002). This was a play on one of the clever slogans coined by the French student movement: “be realist – demand the impossible!” See Claus Offe, 1968 Thirty Years After: Four Hypotheses on the Historical Consequences of the Student Movement, 68 Thesis Eleven 82, 83 (2002).Google Scholar

196 See Tony Judt, Postwar 392–395 (2005) (“In the first place, Europe was going to need many more universities … All over Europe there were vastly more students than ever before—and the quality of their academic experience was deteriorating fast. Everything was crowded—the libraries, the dormitories, the lecture halls, the refectories—and in distinctly poor condition (even, indeed especially, if it was new).”). See also G. Kloss, University Reform in West Germany, 6 Minerva 323 (1968). Describing the tension that resulted from the “staggering increase” in the number of students in the 1960s and the rigidly traditional and hierarchical character of German universities, Kloss noted that initial proposals to create many new faculty positions “did not basically question the stratification of university staff—the professor (Ordinarius) still continued to reign supreme …” Id. at 326, 329–330, 334. Kloss also confirmed the students’ disillusionment with the universities’ curriculum. Id. at 333. Ultimately, Kloss concluded that “in Germany [the student protest] movement has grown over many years and has gathered much of its impetus from gradual disillusionment with the academic establishment. It has reached such proportions only because of the conservative and authoritarian reactions of the university authorities to efforts to reform the traditional system which was revived in West Germany after the Second World War.” Id. at 342. Norbert Frei identified the “education crisis and the overdue reform of the universities,” along with the opposition to the war in Viet Nam, as the animating complaints of the student movement. Norbert Frei, 1968 – Jugendrevolte und globaler Protest 106 (2008) (author's translation).Google Scholar

197 Dutschke, Rudi, The Students and the Revolution (March 7, 1968), in The Global Revolutions of 1968 118, 121 (Suri, Jeremi ed., 2007) (“This society is characterized by the system of authoritarian institutions.”). Mark Kurlansky, 1968: The Year that Rocked the World 146 (2004) (“One of the central themes of the student movement was that Germany was a repressive society.”); Judt, supra note 23, at 409 (“But the accompanying Marxist rhetoric, while familiar enough, masked an essentially anarchist spirit whose immediate objective was the removal and humiliation of authority.”); Kloss, supra note 196, at 342 (“The protest is directed against authority in general, against the older generation, against government and parliament, against the ‘establishment’ of West German society and against the present Christian Democrat-Social Democrat coalition, …”).Google Scholar

198 Jürgen Habermas, Student Protest in the Federal Republic, in Toward a Rational Society: Student Protest, Science, and Politics 13, 15 (Jeremy J. Shapiro trans., 1970).Google Scholar

199 Frei, supra note 196, at 81–82 (reporting on a student published brochure from 1964 describing Germany's “Brown Universities,” a reference to Hitler's thuggish brown-shirted paramilitaries.). Frei quoted Dutschke as declaring: “Unser Ziel ist die Organisierung der Permanenz der Gegenuniversität als Grundlage der Politisierung der Hochschulen!” Id. at 98.Google Scholar

200 Dutschke, supra note 197, at 122.Google Scholar

201 Kloss, supra note 196, at 330 and 332.Google Scholar

202 Id. at 331, 333, and 338–339; Judt, supra note 23, at 393 (“Haughty and unapproachable professors offered formal lectures to halls full of anonymous students who felt little pressure to complete their degrees by a deadline, and for whom being a student was as much a social rite of passage as a means to an education.”). Habermas agreed with the students that the conditions they found at the universities were discouraging, not the least due to “[t]he traditionally rigidified courses of study [that] are often unclearly defined and [linked with] examinations [that] are in many cases burdened with requirements that are antiquated and oriented to the mere reproduction of facts.” Habermas, supra note 198, at 16.Google Scholar

203 Kloss, supra note 196, at 331.Google Scholar

204 Id. at 331–332 (“Another fruit of the work of the Wissenschaftsrat was to force the Länder and the Federal Government to look afresh at the lamentable piecemeal fashion in which their higher education policy had been conducted … The Länder were reluctant to revise the [Land/Federal funding] agreement when the Federal Government proposed doing so in 1966. The agreement was not delayed by any financial aspect but by the states’ reservations about the Federal Government's intrusion into what they believed to be their sphere.”).Google Scholar

205 Frei, supra note 196, at 92 (“[H]ierzu fielen nicht erst auf dem Frankfurter Delegiertentreffen, sondern berits in der Diskussion über die seit 1961 zirkulierende Denkschrift ‘Hochschule in der Demokratie’ etliche jener Stichwort, die in den nächsten Jahren zu Lieblingsvokabeln der APO warden sollten: Gefordert wurde die ‘Demokratisierung’ der Universitäten im Sinne der Aufhebung aller ‘sachfremden Herrschaftspositionen und Abhängigkeitsverhältnisse', die Ermöglichung vom ‘Partizipation’ und die Überwindung ‘autoritärer Strukturen'.”). But see Habermas, supra note 194, at 45 (“From the very beginning of the movement emancipatory forces have been connected with regressive ones.”).Google Scholar

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

207 Herbert Marcuse, One-Dimensional Man (1964).Google Scholar

208 Herbert Marcuse, Eros and Civilization: A Philosophical Inquiry into Freud (1966).Google Scholar

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

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

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

212 University Reform Case, 35 BVerfGE 79, 109–110 (1973) [All English-language translations from the case are the author's.].Google Scholar

213 Habermas, supra note 194.Google Scholar

214 University Reform Case, 35 BVerfGE 79, 123 (1973).Google Scholar

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

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

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

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

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

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

221 Id. at 114.Google Scholar

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

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

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

225 Id. at 124.Google Scholar

226 Id. at 124–125.Google Scholar

227 Id. at 125.Google Scholar

228 Id. Google Scholar

229 Id. Google Scholar

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

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

232 Id. at 126.Google Scholar

233 Id. (emphasis added).Google Scholar

234 Id. at 133.Google Scholar

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

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

237 Id. Google Scholar

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

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

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

241 Id. Google Scholar

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

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