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40/68 – Germany's 1968 and the Law
Published online by Cambridge University Press: 06 March 2019
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Democracy thrives in that narrow space that divides order from chaos; it is a balance between the order of law and government with the necessary disorder dissent and protest create. The year 2008 marked the 40th anniversary of 1968–when that balance momentarily appeared to shatter in West Germany. The young democracy was still defining itself, shaping its new identity while coming to terms with its past. In 1968 this new government of the old guard, obsessed with order, clashed with a new generation that saw many of the faults of Germany's Nazi past masquerading as democracy. But the new government was built upon the old authoritarian superstructure. The youth of the 60s eventually became the establishment, and now they are turning over power to a new generation. Although the torch has been passed from Clinton and Schroeder to Obama and Merkel, the legacy of the students of 1968 continues to echo through modern times. In December of 2008, the shooting of a teenage boy by Greek police ignited violent protests that rapidly spread across the country. Like the protests of 1968, the purpose of the protests in Greece was greater than the event that sparked it. The shooting tapped a deeper well of unrest. Like the protests of 1968, the goal of the protesters was unclear, but the passion was unmistakable.
- Type
- Developments
- Information
- German Law Journal , Volume 10 , Issue 3: Special issue - Germany's 1968 and the Law , 01 March 2009 , pp. 223 - 260
- Copyright
- Copyright © 2009 by German Law Journal GbR
References
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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
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224 Id. at 123 (emphasis added).Google Scholar
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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
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