People v. State

fairly undermining public confidence in the administration of justice

The Price of Honesty

March 01, 2013 By: John Kindley Category: Uncategorized

From my post yesterday quoting Ernst Jünger’s Eumeswil (1977):

It is not only the fit who survive, but also the honest. The fact that these two survivals do not coincide in time goes back once more to Genesis, to the separation of the Tree of Life from the Tree of Knowledge.

Needless to say, when praying, the anarch neither requests nor thanks. Nor does he seek a magical force in prayer. How many ardent prayers have not been heard? As a historian, I linger in the cells of the condemned; as an anarch, I would like to offer them posthumous solace; and I know that the guilty need this even more than the innocent.

I was in the dungeon with Boethius and in the temple with Marie
Antoinette when her hair turned white. I was there when the mob was howling outside and the father put on his prayer thongs. The child groped for his hand. But neither the father nor the child was heard.

From an account by Stuart Hood, the first English translator of Jünger’s Auf den Marmorklippen (On the Marble Cliffs) (1939), of his conversation as a British officer in Germany with Jünger following the collapse of the Third Reich in 1945:

Of Jünger I knew that he had been much wounded, much decorated, as a very young officer in the 1914-18 war and had written of his experiences in a book published in English as Storm of Steel. It was, I seemed to remember, a description of war as the ultimate experience, an example of the military mysticism on which Fascism had drawn. Knew too that he had written a work called Der Arbeiter (The Worker), which I believed to be an approving account of the totalitarian society and of the concept of ‘total mobilization.’ . . .

One of the expectations many people had had was that when the Nazi regime collapsed literary works would emerge which had been hidden away under the dictatorship – the results of the ‘inner emigration.’ It was an expectation that was not fulfilled. It was all the more surprising to find in [Marmorklippen] what was clearly a coded but easily decipherable picture of a tyranny that had marked resemblances to the Nazi state. It had, I noticed, been published in 1939. This seemed to me to be a literary act of considerable courage. . . .

We spoke about his political past. He had, he said, at one time – long ago in the Twenties – thought that the National Socialists had something to offer Germany but he had been mistaken. He had therefore distanced himself from them. Such political honesty was rare at this time; the usual assertion was ‘Ich bin nie PG gewesen’ (I was never a Party member). Was Marmorklippen, I asked, to be thought of as an attack on Hitler and his dictatorship? No, he said, it was aimed at tyrants in general. But it had had a certain importance – thus when his son was in trouble with the authorities he had gone to see a high official to try to help the boy. During the interview a copy of the book lay on the desk between them. It was never referred to.

According to Wikipedia, Ernst Jr. was imprisoned in 1944

for engaging in “subversive discussions” in his Wilhelmshaven Naval Academy. Transferred to Penal Unit 999, he was killed near Carrara in occupied Italy on 29 November.

After the war, Jünger was initially under some suspicion for his nationalist past, and he was banned from publishing in Germany for four years by the British occupying forces because he refused to submit to the denazification procedures.

Jünger died in 1998 at the age of 102, but to this day his reputation has not outlived accusations of fascism. Compare this review today of a new book by Yvonne Sherratt titled Hitler’s Philosophers:

Dr Sherratt provides compelling studies of the philosophers who fled or died rather than play along with Hitler. . . . There was also Hannah Arendt, brilliant student and sometime mistress of Martin Heidegger, who managed to escape round-ups in an almost miraculous fashion. And it is Arendt who brings us back to the most puzzling and disturbing feature of this story.

Heidegger embraced Nazism with apparently complete enthusiasm. He was a genius: Dr Sherratt calls him “Hitler’s Superman” but asks the question whether Hitler could possibly, with his “pernicious” and ignorant views attract to his cause someone so gifted. The answer was yes, and it was Heidegger. She recounts how in 1929 Heidegger had complained about the “Jewification” of his university — the word he uses is Verjudung, one that peppers the pages of Mein Kampf.

On May 1, 1933, three months after Hitler came to power, Heidegger had joined the Nazi party in a blaze of publicity at the University of Freiburg, where he was professor and celebrated for his work in metaphysics. He had taken the precaution beforehand of disembarrassing himself of Arendt who, being Jewish, was not an ideal bedfellow. Heidegger made a speech protesting his devotion to National Socialism, and described the urgency of the need to Nazify Germany’s universities. His reward was to be made rector of Freiburg, with an inauguration ceremony that he underwent in Nazi uniform and whose programme had the words of the Horst Wessel Lied printed on its back page. He then proceeded to remove all non-Aryans from the university. With the philosopher’s approval, Brownshirts toured the campus and conducted military exercises there. Heidegger was such a disaster in his new post that even his loyalty to the party and the Führer could not preserve him in it for more than a year.

Heidegger endorsed the corruption of the German legal system under the Nazis. He also supported censorship. He maintained his devotion to Hitler until 1945, which ensured he would retain his chair and continue to have his books published.

With the fall of the Third Reich, so began Heidegger’s attempts to exculpate himself. He was outraged that there was a suggestion that he should be subject to denazification hearings, “singled out for punishment and defamation before the eyes of the whole city — indeed the whole world”. Despite the zeal with which he had supported the Nazi party and its doctrines, Heidegger was classed merely as a fellow traveller, given emeritus status, and allowed to continue to teach.

That, though, was only the beginning of his good luck. His rehabilitation continued, and was managed not least by his former lover, Hannah Arendt. She argued the case for Heidegger around the world. She celebrated and promoted his genius. Heidegger had fallen in 1934 from the rectorship at Freiburg not least because his nationalism was considered to be too “romantic”, and not of the Darwinian/Nietzschean variety favoured by the Nazis. He claimed to have found Mein Kampf, in parts, repugnant. What seems to have motivated Arendt in taking up the cudgels in favour of her former lover and teacher was not so much that she believed any of his excuses, but that the flame of their former relationship was rekindled when she met him again after her exile.

Whatever her motivation, the results were sobering. Heidegger died in 1976 with his reputation as intact as it could possibly be. Dr Sherratt describes him as being now the “star” of continental philosophy. The Jewish thinkers such as Arendt, Benjamin and Adorno, whom Nazis like Heidegger drove out of the country, are more peripheral. We like to pride ourselves on having finally disgraced and marginalised Nazism. Perhaps we should not be so sure.

See also, because this blog used to at least sometimes be about the practice of law, this post by Scott Greenfield:

The players in our system all have the potential to cause criminal defendants much grief. From the cops, who can lie and manufacture evidence, to the prosecutors whose discretion can be colored by how much they hate us or want to make us look like chumps, to the judges who decide critical motions or, if it comes to it, the length of time our clients are guests of the government, we have far more people, and far more powerful people, to deal with than any civil lawyer can imagine. And they’re all easily angered. And they tend to get miffed pretty easily. And they tend to take it out on us in ways we can never prove.

. . .

Here’s the 411: Blawgers who take a stand on anything real open themselves up to retaliation. We make ourselves targets. We take risks. Huge risks. And sometimes, we get spanked hard for what we do.

More than once, while I’m sitting on a hard bench waiting for my case to be called, will a clerk come from behind and whisper in my ear that the judge didn’t appreciate what I wrote last week.  More than once has a prosecutor greeted me with a sly smile and “I saw your blog the other day,” just to let me know that he can’t wait to take me down a few pegs.

Readers have no clue the risk blawgers take with every post.

Not all “blawgers,” mind you. I see the criminal defense lawyers on twitter whose bio says they’re blawgers, though I’ve never read them. I sometimes stop by to see what they write, and cringe at the insipid blurb from the paper with nothing remotely approaching thought or insight. Just words murdered without purpose, exactly as their marketer told them to do. They take no risk. They take no stand. They serve no purpose.

But those of us who try to write something that provokes thought and challenges the powerful take risks every day. Sometimes I think I’m nuts, putting things online that will almost certainly anger someone who I will someday have to stand before. I ask myself, “what am I thinking, taking the risk of stating an opinion publicly that will come back to bite me in the ass?”

. . .

Criminal defense blawgers make choices too, and the ones who stand for something have made the decision to do what they can to make our system better for everyone, even if we face personal consequences for what we write. Kris Kristofferson wrote “freedom is just another word for nothing left to lose.” We’ve got everything to lose, yet we stand up anyway. And we do it for freedom.



1 Comments to “The Price of Honesty”

  1. davidly says:

    Hey John. Yeah, that was me over at Popehat. I get around virtually, but resist commenting as much as I can, sticking to reading, as would have been the case here, except I thought I’d use this format to reply to your comment over there.


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