The following interview was conducted by Moritz Schwarz and appeared in Junge Freiheit, on August 14, 2020. Published with permission. Translated by Russell A. Berman, who has written a separate note here.
Dr. Maaßen, the Mayor of Tübingen, Boris Palmer,[1] has warned against a “world of prohibitions” in Germany, in which “moral condemnation” could follow the smallest mistake. This would “destroy liberal democracy.” Is he right?
Hans-Georg Maaßen:[2] I am a jurist, out of passion, and that’s why I am frightened to have to agree with him in part. I am deeply concerned that our legal state—the rule of law—is being more and more undermined by the rule of morality.
Bärbel Bohley’s[3] disappointed phrase is well known: “We wanted justice, but all we got is the rule of law.” Isn’t morality the better and ethically higher good?
Maaßen: No. It is true that the law only provides a moral minimum. Yet that is precisely the precondition of freedom.
So, freedom is the space that emerges when morality is minimized?
Maaßen: Yes: first because the law determines the limit that everyone accepts as a minimum. And beyond that limit, everyone can do what they want, without fearing punishment.
What are the consequences for a liberal society when the rule of morality undermines the rule of law?
Maaßen: It displaces the liberty. First because a moralistic system of prohibitions is imposed on the legal system, thereby restricting the guaranteed freedoms. And second because the border is no longer clearly defined, obscuring the difference between what is still “allowed” and what is already “forbidden.”
For example?
Maaßen: The term “moor” is itself fully harmless. In Berlin you have to explain to African guests for example why the name of “Moor Street” is a problem.[4] But as a result of the current discussion about racism, people avoid the term because they do not want to be labeled racists. The fear of saying something “wrong” leads to people becoming even more circumspect than morality demands. The spiral grows ever tighter.
But our liberty does not depend on the one word “moor.”
Maaßen: You asked for an example. Here’s another: the case of the restauranteur in Nordrhein Westfalen who recently hosted an AfD [Alternative for Germany, a new party on the right—trans.] group. Afterward she put a confessional apology video online in which she declared in tears that she had not known that the reservation was intended for AfD members.
If she did not know that, then this is not really an example of proleptic self-censorship.
Maaßen: Yes, it is, because if she had known it, she would have drawn the border tighter, out of fear of crossing it. And this public self-accusation, with a tearful plea for forgiveness—it is somehow totalitarian.
Doesn’t it trivialize matters to talk about totalitarianism, as long as it is only a matter of social rather than state repression?
Maaßen: No, because sometimes a public pillory is much worse than a fine or an arrest. The material consequences can be more significant, for example if your employer fires you or if you are independent or freelance and lose your clients. In addition, it’s worse when there are psychosocial consequences, such as becoming isolated from others, even if one doesn’t lose one’s job. Humans are of course social beings, which makes shunning a particularly harmful punishment—whether others engage in the avoidance voluntarily or out of fear of facing ostracism themselves. This treatment can be even more damaging than a legal penalty. I am speaking about this on the basis of my experience as a former chief of intelligence services. It is no accident that social isolation is a typical characteristic of totalitarian systems. It is not only very effective but also subtle—it is used especially when an appearance of freedom needs to be preserved.
But does not every society maintain additional, more restrictive moral laws above and beyond legal norms, supported by social sanctions?
Maaßen: We have to differentiate. Of course, every subsociety, such as a family, a club, or a firm, has its own social norms. But sanctions in the case of transgressions typically do not touch on basic rights. For example, if you are not invited to a birthday party because of some behavior or if friends distance themselves from you, you have no right to be invited, but you certainly have the right to find other friends. However, it is a different matter altogether if this occurs at the workplace, where it quickly becomes a matter of so-called “mobbing”—and employees have legal protections against that because ostracism on the job may impact one’s fundamental rights. Similarly, in society at large there are some traditional, unwritten soft social norms, such as greetings or how one dresses for particular circumstances. The sanctions against transgressing these norms are not so extensive as to limit the basic freedoms of the transgressor.
Those who argue for the exclusion of “insubordinate” citizens argue that this is simply the natural reaction of a democratic society—a reaction that the taboo breakers themselves have provoked and which they could end at any time by changing their behavior. Isn’t that right?
Maaßen: No, on the contrary, that is exactly the totalitarian aspect. As I said, in the context of a liberal rule of law, it is the law that defines the limits of permissible speech, which is grounded in our Basic Law as freedom of opinion. Therefore, expressions of opinion that respect this limit—which includes respecting the criminalization of rabble-rousing—must not be punished. That is what liberal democracy demands. Any parallel social right, pushed through by a group without democratic legitimation, amounts to a hollowing out of the freedom of opinion and therefore an attack on the Basic Law and the rule of law.
But is that really happening here or are you just claiming it? So far you have given no example—except the moor—to show that your analysis describes our reality.
Maaßen: It is indisputable that all not-left positions are being systematically marginalized. It is being called for openly. For example, there was the television journalist who told me I sounded like a “right-wing populist” when I said that the right to asylum does not apply to someone arriving from a safe third state. But that is exactly the formulation of Article 16A of the Basic Law—so now even quotations from the Basic Law are being stigmatized as “right-wing populist.” The exclusion of opinions that accord with the law is inconsistent with democratic debate. The very nature of democratic debate is precisely the fundamental equality of all opinions—with the exception of extremists, but one even has to listen to them.
How so?
Maaßen: I am referring to the misunderstanding that we somehow have a right to be protected from extremist positions. This is not the case because of the primacy of the freedom of opinion that also protects extremist positions, up to a point.
To what point?
Maaßen: It is permissible to express certain extremist positions both on the left and on the right. For example, on the left one can call for economic expropriations or on the right advocate ending the right to asylum. Freedom of opinion applies for these opinions too, as long as one does not break a law. What is wrong is when people with non-extreme opinions are excluded from democratic debate according to the slogan: “We don’t talk with people like that.” The replacement of law by morality means that the democratic principle of the equality of opinions gives way to the undemocratic principle that “false” opinions have no right to participate. That is exactly the defining characteristic of totalitarianism, when debate is replaced by dogma and only “right thinking” people are allowed to participate.
So we are no longer a liberal society but already totalitarian?
Maaßen: No, that is a misunderstanding. I am talking about debate, not our democracy in general. Of course, debate is an important element of democracy, but they are not identical. So the fact that it is developing totalitarian features—as troubling as that is—in no way means that we are living in totalitarianism and that democracy has been dismantled. Fortunately, we are far from that!
What can be done against these developments?
Maaßen: Despite all this, we still do have a democracy, and there are numerous possibilities to resist these developments. I do my part, as is known, by participating in the Values Union.[5] It is true that we have faced some startlingly illiberal treatment inside the CDU—for example, when some of our friends in the party publicly call us a “cancerous growth.” Or when the media—rather than critically questioning government policies—shield it from criticism by discrediting critics and defaming them.
If there is something totalitarian going on in our society, shouldn’t the Domestic Intelligence Service (a federal agency comparable to the intelligence branch of FBI—trans.) sound the alarm?
Maaßen: Not at all, especially because “totalitarian” is not an issue for the Domestic Intelligence Service. Its criterion is “extremism,” i.e., the question as to whether there is an intentional effort to overthrow the constitutional order. Furthermore, it is supposed to monitor people and groups who pursue that goal of overthrowing the state, but not to oversee “tendencies” in the society.
But these tendencies do not just appear out of nothing; they are carried out by people and groups. For example, when the CSU [Christian Social Union] declares the AfD to be made of up of “enemies of Bavaria,” or when government funds flow to the partially terrorist Antifa, or when the federal government, the media, and public institutions officially finance the “fight against the right.”
Maaßen: Or when an organization like the Amadeu-Antonio Foundation[6] gains a voice in politics—which I regard as a kind of organ failure of politics. Nonetheless, the Constitutional Police is not charged with carrying out surveillance of the government, parties, or our media. Fixing those problems is a duty of society, i.e., the public, parties, media, institutions, etc. But so far they are not doing this sufficiently, which brings us back to the beginning of our problem.
How did it come to this?
Maaßen: In my view because rational debate, resting on convincing arguments, documentable facts, and the same rules applied to everyone, has been replaced by an irrational debate grounded only in narratives. That leads to situations that even, as in the Sarrazin[7] case, someone who supports his positions using the data of the Federal Statistics Bureau and the results of scholarly experts—that is, using standard measures, he has proven his case—but he cannot overcome the leftist narrative and ends up characterized as a “populist.” Or we see this now in the accusation of “structural racism” or “racist violence” with regard to the police. None of this is proven, but some politicians and much of the media treat it as if it had been proven long ago. They cleverly never even ask whether the accusations are legitimate, and therefore no one ever has to demonstrate their validity. The narrative wins.
So this situation has resulted from a failure of the moderates who have surrendered to left-wing narratives rather than engaging in rational debate, with arguments, facts, and parity—how can this be overcome?
Maaßen: Well, the attack is coming from the left. Let’s not forget that. If one can accuse the moderates of something, it is that they did not recognize this soon enough. By now, there are no longer genuine conservatives in the media and the institutions. We don’t have the power to demand another debate. There is little more to do than to retreat into private and professional life.
The Union [the CDU-CSU], FDP [liberal party], and the SPD [Social Democratic Party] have traditionally been the guardians of liberal democracy and ought to be leading the fight—but they are not. Have they failed?
Maaßen: The FDP hardly exists anymore. The SPD has been surrendering to far-left positions for decades and has to struggle to distinguish itself from them. And the Union has been drifting left for at least 15 years, and it has been accelerating.
That almost sounds like an excuse. But shouldn’t we accuse these “guardians” of turning into “willing executioners”?
Maaßen: The political parties do not play the exclusively decisive role. As I said, it’s a matter of institutions across society that have willingly fallen in line, including the churches. Even if they wanted to, the parties could not change this by themselves. What we are experiencing is the result of a chronic development that has been underway for decades. And to be fully clear, thanks to it socialists have gradually become able to dominate the interpretation of political events and control the political discourse. By now they decide who is permissible and with which themes. It is a classical socialist strategy, as history teaches, just as it was used in the GDR. It is a matter of a long-term process of erosion that cannot be repaired with a single political act, as some may wish. Instead it will require a fundamental democratic healing process and some long democratic patience.
1. Boris Palmer (born 1972), Mayor of the City of Tübingen, is a member of the Green Party, in which he occupies a relatively conservative position, especially on the topic of immigration, as evidenced by the title of his 2017 book, We Can’t Help Everyone. He has also proposed giving greater importance to revitalization of the economy rather than continued lockdown in the face of the pandemic.
2. Hans-Georg Maaßen (born 1962) served as President of Germany’s Office for the Protection of the Constitution, der Verfassungsschutz (in the text rendered as Domestic Intelligence Service), from 2012 to 2018. His comments doubting a widely shared account of violence associated with anti-immigrant demonstrators generated controversy and his eventual dismissal. Maaßen has presented the episode as an effort by the left-wing of the SPD to generate a political crisis within the governing coalition of SPD and CDU/CSU.
3. Bärbel Bohley (1945–2010) was an artist and human rights activist in GDR and played a leading role in the opposition to the Communist regime. Her statement here gave expression to disappointment with the experience of the unification, its economic consequences, and the emerging political structures in unified Germany. The interviewer uses it to highlight the binary of justice and law.
4. Mohrenstraße, or Moor Street, is a street in central Berlin. The name derives from the late seventeenth or early eighteenth century and may refer to African residents. Interestingly Karl Marx lived at number 17 in 1837–38 when he studied in Berlin (a plaque to that effect put up by Social Democrats in 1929 was removed by the Nazis in 1933), and to add to the historical irony, Marx’s friends in London would refer to him as “the moor,” while he gave his daughter the nickname “Hottentot” (Francis Wheen, Karl Marx [London: Fourth Estate, 2001], p. 152). Anti-racist and postcolonial activists have viewed the street name as demeaning and have agitated against it. In August 2020 the city officially renamed the street Anton-Wilhelm-Arno-Straße, after the first African to receive a doctorate in Germany (Wittenberg, 1734), who went on to teach at universities of Jena and Halle but left Germany to return to Africa, today’s Ghana, in 1747. There has been a related controversy over the renaming of the adjacent subway station. See “Mohrenstrasse: Berlin Farce over Renaming of ‘Racist’ Station,” BBC News, July 9, 2020.
5. The Values Union, or Werteunion, is an association, made up primarily of members of the CDU or the CSU, advocating conservative positions, to a large extent on the basis of the perceived abandonment of a principled conservatism by the Union parties.
6. The Amadeu-Antonio-Foundation, established in 1998, describes itself as opposing “right-wing extremism, racism, and anti-Semitism.” It is named after an Angolan laborer in East Germany who was attacked and murdered in 1990, presumably by a racist group. The foundation is led by Anetta Kahane, born 1954 in East Berlin to Communist parents; she began working for the State Security Service (Stasi) in 1974, allegedly reporting on friends and oppositional figures. Her background has become controversial because her foundation has received funding from the Interior Ministry to contribute to public political education, including the monitoring of speech on the internet. Conservative groups, notably the Junge Union, the youth affiliate of the CDU, have protested against engaging a former Stasi informant for the surveillance of free speech.
7. Thilo Sarrazin (born 1945), former Senator for Finance in Berlin and member of the Executive Board of the Bundesbank, presented a critical account of immigration policies in his 2010 book Deutschland schafft sich ab (Germany abolishes itself), which was attacked for alleged racism and xenophobia, although Sarrazin also found prominent defenders. He was a member of the SPD since 1973, but he was expelled for his views in 2020.
