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“Das Recht ist kein Kreißsaal für die Gerechtigkeit”: Law, justice, and legal violence in the literature and politics of Juli Zeh

2023; Wiley; Volume: 96; Issue: 4 Linguagem: Inglês

10.1111/gequ.12400

1756-1183

Kylie Giblett,

Law and Political Science

Juli Zeh has been described as “eine Schriftstellerin, Juristin und Gegenwartsseziererin,” and it is rare that a discussion of her literary oeuvre does not also reference her legal work (Zeh, “Warum”). Literature, law, and a critical stance toward many developments in German contemporary politics are three strands that have wound their way through Zeh's fiction and non-fiction work. Her political activism was recently on display in her response to the regulation and management of the Covid-19 pandemic in Germany, which she criticized both in the public sphere (Soboczynski) and in her novel Über Menschen (2021). This critique of political responses to an urgent and unexpected situation is characteristic of Zeh, who had earlier criticized state responses to the threat of terrorism in both her non-fiction work, such as Angriff auf die Freiheit (2009), and in her literary publications, including Corpus Delicti (2009). In her criticism of state responses to these challenges, Zeh has been particularly concerned to highlight two factors: the privileging of security over freedom and the use of appeals to an Ausnahmezustand to justify the imposition of restrictions on individual freedom. However, despite the almost ubiquitous references to her legal training and current work as an honorary judge of the constitutional court in Brandenburg in scholarly discussions of both her literary writing and her political stance, the influence of jurisprudence on her literature, and the connection between this and her political interventions, is something of an underexplored field. Academic contributions in this area to date have tended to concentrate on Zeh's reflection on and critique of legal procedure, but there is more work to be done on the impact of legal philosophy on her literary work and the direct line that may be drawn between this and her public advocacy. Zeh's critique of political responses to urgent issues such as the pandemic or terrorism often involves at least an implicit critique of the law, in that what is being criticized is the state's use of legal regulation to respond to contemporary challenges. In the following discussion, I explore the development of two major legal themes in two of Zeh's most overtly legal novels, Corpus Delicti and Spieltrieb (2004), with a view to illuminating the way in which Zeh's fictional treatment of matters of legal philosophy sheds light on the jurisprudential factors underlying her political position on Germany's response to real-world crises such as terrorism and the pandemic. The first of these legal themes is the incongruity between law and justice. As the narrator-judge in Spieltrieb points out: “Das Recht ist kein Kreißsaal für die Gerechtigkeit und hat niemals behauptet, einer zu sein” (518). The second legal theme is the exposure of what both Walter Benjamin in his essay “Zur Kritik der Gewalt” (1921) and Jacques Derrida in his work of legal philosophy “Force of Law” (1990) have referred to as the foundational violence or force at the core of law's authority. Corpus Delicti is set in a dystopian dictatorship controlled by the Methode, a regime that both embodies and enforces a health-focused ideology. This scenario would at first blush seem to have little in common with Spieltrieb’s tale of sexually abusive games involving staff and students at a Gymnasium in Bonn. However, despite their differences, both novels foreground themes of law and justice. This is apparent in the framing of both novels as cases for judgment. Corpus Delicti is identified on its front cover not as “ein Roman” but as “ein Prozess,” and the insertion of the ultimate judgment against the protagonist Mia Holl before the commencement of the novel's plot line (9−10) identifies what follows as a type of extended judicial reasoning. Spieltrieb is similarly framed as a form of judgment, in this case, as a narrative of events put forward by the presiding judge to explain her judicially creative decision in the case of the students Ada and Alev and their teacher Smutek (7−10). Despite their significantly different backstories, the protagonists in both novels end up in courtrooms in which the judicial responses to their individual fact constellations raise far-reaching questions about the law/justice dichotomy and the baseless foundations of legal authority. The explorations of these legal issues in both novels are prompted by instances of judicial crisis that bring their respective legal systems to a breaking point. In Spieltrieb, the circumstances of the case raise serious questions about the identity of the abused and abuser and, consequently, about the possibility of achieving a just result within the bounds of the existing law. In Corpus Delicti, the challenge to the judicial system comes about due to its slavish reliance on DNA evidence, which results in a judicial error giving rise to revolutionary uproar in the Methode’s health dictatorship. In both Spieltrieb and Corpus Delicti, the legal systems are thrown into crisis by what is known in the law as a “hard case.” A hard case involves a complex or extreme set of facts that make it difficult to achieve justice in the individual circumstances without stretching the limits of the existing law and complicating the subsequent application of the legal precedent set by the hard case to more conventional fact constellations. It is a legal maxim that hard cases make bad law but that they are good for jurisprudence. The fault lines that hard cases expose in a legal system prompt consideration, not only of the requirements of justice in the individual case but also of broader questions about the aims, nature, and sources of law. In Spieltrieb and Corpus Delicti, the judicial crises induced by these “hard cases” uncover just such questions for contemplation by the reader. Questions about the ability of the written law to deliver justice are at least as old as Sophocles's Antigone and are squarely raised in both Corpus Delicti and Spieltrieb. Indeed, Spieltrieb begins with a quote from Cicero on the subject: “summum ius, summa iniuria” (“the greatest law is the greatest injustice,” 5). This incongruity of law and justice is often seen as arising from the dilemmas involved in applying the law (which is of necessity general) to the individual circumstances of a particular case. As the judge remarks in Spieltrieb: “Wie soll eine geschriebene Regel, für unendlich viele Fallkonstellationen gedacht, angesichts der Einmaligkeit eines Geschehens eine gerechte Aussage treffen?” (518). The facts of the particular case in Spieltrieb widen the gap between law and justice in a way that forces the judge to tread the well-worn path of judicial creativity and reach outside the letter of the law to achieve a just result (555). In Corpus Delicti the lack of congruence between law and justice is similarly exposed when the court refuses to acknowledge the fallibility of the scientific evidence on which its justice system is based. When the rigid, scientifically based laws of the Methode are shown to be manifestly unjust in application to the individual case of Mia Holl's brother Moritz, the resulting uproar shakes the whole legal and political system to its core. The regime responds to this challenge to its legitimacy not with creative judicial approaches or serious debate about the foundations of its legal system but with propaganda. Like many totalitarian systems before it, the Methode in Corpus Delicti claims that reports of its fallibility are “fake news,” characterizes the disruptor Mia Holl as a terrorist, and condemns her in a show trial designed to reassert the supremacy of the state. By exposing the incongruity of law and justice, the legal proceedings in Corpus Delicti and Spieltrieb debunk the idea that justice is the source of law. But if justice is not the law's ultimate “Kreißsaal,” then what is? In Zur Kritik der Gewalt, Benjamin identifies two types of violence that give law its authority: the violence that maintains the existing law (“die rechtserhaltende Gewalt”) and the violence that institutes the law in the first place (“die rechtsetzende Gewalt”) (39−40, 45). Derrida recognizes this distinction but thinks that there is a “differential contamination” between the two because each instance of “rechtserhaltende Gewalt” is a reiteration of the original “rechtsetzende Gewalt” (272). In the revolutionary instant, the law comes into being by means of a violence that is not yet but will become legal and legitimate. In other words, law itself at this point both is and is not (241−42, 269−70, 274). Both Spieltrieb and Corpus Delicti embody these ideas and point toward violence as both law's maintainer and its baseless foundation. The novels highlight the role of violence in maintaining the law (“die rechtserhaltende Gewalt”) by showing the rapid resort to actual violence when the law is threatened by moments of crisis. When the case of Mia Holl in Corpus Delicti reveals the injustice involved in the strict application of the law, the Methode reacts with an enforcement of its law by violence. In scenes reminiscent of Abu Ghraib, Mia is tortured as the Methode tries to secure a confession in order to confirm the validity of its regime and its legal system (237). When torture fails to produce the desired results, the regime demonstrates its power by granting Mia a pardon (263). Although this appears to be a magnanimous move, withholding violence by granting grace is in fact a verification of the force standing behind the law. Only the person who controls violence can be in a position to carry out an act of grace. In Corpus Delicti, this act of negative violence denies Mia the opportunity for martyrdom and maintains the power of the law she sought to overthrow. Violence is also a feature in the resolution of the legal dilemma in Spieltrieb when Smutek severely beats Alev in order to bring the cycle of abuse to an end (512−15). By allowing Smutek to walk free, the legal system in Spieltrieb validates his administration of justice by violence. In addition to this exploration of the role of violence in maintaining the law, Corpus Delicti and Spieltrieb also point to the role of force as the foundation of the law (“die rechtsetzende Gewalt”). Both novels do this by posing alternatives to the current legal regime, which has the potential to give rise to a revolutionary moment and could, if accompanied by the necessary originating violence, become the law. In Spieltrieb, the alternative system is posed by Alev's game theory. Ada describes this game theory system as one in which the laws are constantly being negotiated and renegotiated by the players (557). Although Ada and Alev's attempt at establishing a revolutionary new legal system is unsuccessful because the existing law maintains its monopoly on violence, the presiding judge recognizes that any legal system can be overturned in the revolutionary moment and replaced by a new regime legitimated at its genesis by force: “Ein neues System räumt die Relikte des alten vom Tisch, zieht den Figuren das vertraute Brett unter den Füßen weg und ersetzt es durch ein neues Brett, auf dem andere Regeln gelten” (564). Similarly in Corpus Delicti, the existing regime of the Methode is challenged by an alternative legal and political framework embodied by the “Recht auf Krankheit” movement and by Mia's brother Moritz, who rejects the Methode’s privileging of health security over freedom with his provocative mantra: “Das Leben ist ein Angebot, das man auch ablehnen kann” (28). This alternative regime is strongly associated in the novel with religious imagery that is diametrically opposed to the corporeal world of the Methode. Moritz likes to describe as a “Kathedrale” the green space into which he escapes to indulge in what the Methode would see as unhealthy and subversive activities (60), and the Methode identifies people who think like Moritz as adherents of “ein reaktionärer Freiheitsglaube” (84). At the beginning of the novel, when her devotion to the ideology of the Methode is still unshaken, Mia rejects Moritz's appeal to the religious and everything it stands for (60−61). However, as her disillusionment with the Methode grows and she becomes the figurehead for social discontent, Mia herself becomes increasingly associated with religious imagery, when she is described as “ein Heiligenbild,” “eine Heilige,” “die Märtyrerin,” and “ein gekreuzigter Engel” (98, 190, 204). The scandal created by Mia's trial and the publication of her alternative manifesto (186−87) threatens to create a revolutionary moment by questioning the regime's legitimacy in a way that prompts the beginnings of a rebellious response in the Methode’s citizens (196). However, the revolution is crushed when the Methode successfully deploys “die Gesetze des Ausnahmezustands” (206), tearing away its own laws to expose the violence beneath them. The revolutionary instant arising from the alternative Mia and Moritz posed to the Methode does not succeed in engendering new law but remains a reminder of the ever-existing potential for force to provide the foundation of a new order. Like the crises that push law to its limits in both Corpus Delicti and Spieltrieb, real-world crises such as those posed by terrorism and the pandemic have generated strong governmental responses, such as border closures and restrictions on movement. These responses have been regulated by law. How might the analysis of Zeh's fictional treatment of jurisprudential issues inform our understanding of her stance in relation to Germany's legal and political actions in these times of crisis? By exploring the discrepancies between law and justice in her literature, Zeh makes us question the foundations on which our laws are based. This type of thinking informs her push for a careful consideration of the ramifications of making changes in the law. More importantly, her literary exposure of the violence at law's foundation helps us to understand the motivations for her political warnings against responding to a crisis with the declaration of an Ausnahmezustand and a privileging of security over freedom. It sheds light on the concern she expressed in an interview in Die Zeit that the German government's response to the pandemic used the force of law to impose restrictions and sanctions in a way that displayed a failure to trust the democratic system and risked desensitizing the public to further restrictions on freedom in the name of future Ausnahmezustände. As Zeh commented in the interview, “Wenn man von einem Ausnahmezustand ausgeht, bleibt für Wertediskussionen typischerweise keine Zeit. Sie werden sogar als unmoralisch empfunden” (Soboczynski). It is my hope that a deeper exploration of the influence of legal philosophy in Zeh's literary work will further illuminate the connections between her fiction and her ongoing public advocacy. Open access publishing facilitated by The University of Sydney, as part of the Wiley - The University of Sydney agreement via the Council of Australian University Librarians.