The following essay comments on the interview with Hans-Georg Maaßen[1] conducted by Moritz Schwarz and published in Junge Freiheit on August 14, 2020. An English translation of the interview appears here.
In the wake of the opening of the Berlin Wall and the collapse of the Soviet Union, it appeared that liberal democracy was on an inexorable victory march around the world. The Soviet satellite states threw off their Communist shackles, and the occupied Baltics regained their independence. Even Russia seemed briefly to be lurching toward modern governance structures, and the Central Asian states, the “stans,” claimed their own sovereignty (if only, often as not, to revert to indigenous forms of authoritarianism). The age of Latin American dictatorships belonged to the past, certainly in the southern cone and in Brazil, although not in Venezuela and Cuba. The last aftershocks of that democratic optimism informed the hope that toppling Saddam Hussein in Iraq would set off a similar democracy wave in the Middle East; no doubt the demonstration of the vulnerability of the dictator in Baghdad set the stage for the Arab Spring of 2011, another burst of hope.
That Arab Spring of hope gave way to a new winter in the Middle East and not only there. The wave of democracy has been followed by a wave of repression. Perhaps one should have paid more attention in 1989, which not only witnessed the November celebration in Berlin but also the bloody June in Beijing, where the democracy movement at Tiananmen was murdered by the Communist Party and its tanks. It was wrong to assume that the formal end of the Soviet Union meant the end of Communism altogether or that Communist agitation would cease to undermine free societies. That old mole continues to burrow.
Across the turn of the century, global democracy stood on the shaky grounds of a neoliberal program that wrongly banked on progress in China, and that miscalculation became especially painful after the financial crisis of 2008. Globalization and neoliberalism had not only failed to bring human rights to China; they also generated economic inequality and displacements in the countries of the developed world with attendant social and political disruptions. Freedom House and others have copiously documented how the wave of freedom is being rolled back.[2]
According to the liberal account of this transition, from democratic optimism to pessimism in the face of repression, the backsliding is elsewhere: in China and Russia of course, but in effect in any other country that is judged politically suspect, including Modi’s India, Bolsanaro’s Brazil, and Erdoğan’s Turkey. Within Europe, the tension is played out inside the EU when Poland and Hungary are pilloried for their alleged misbehavior. This interpretation of a creeping illiberalism lumps together widely heterogeneous political phenomena with a description so broad brush that it lacks much useful analytic specificity. In addition, it assumes that the rollback of freedom is primarily elsewhere, while the institutions of the West are still treated as the gold standard of rights (despite the rise of populist parties viewed as threats).
It is in any case true that basic individual rights are troublingly under attack in many countries, but it is therefore all the more important to recognize how they are also threatened in the heartlands of the Western liberal democracies themselves. Pointing out restrictions on freedom in the West by no means diminishes the urgency to decry repression, on a much larger scale, elsewhere, e.g., the “reeducation camps” in China or the assassinations in Russia. On the contrary, the credibility of any Western criticism directed at rights violations elsewhere depends on a willingness to confront repressive practices at home. We have to be frank about how the liberal democracies too have become incubators of illiberal tendencies.
This is why the interview with Hans-Georg Maaßen is important. There are secular trends in the United States as much as in Germany toward restrictions of liberty; in the United States we are familiar with this new repression in the form of “cancel culture” and the mandatory public displays of political allegiance to current protest movements, but also increasingly intrusive management of public discourse by the internet platforms. There are similar developments in Germany; even in their moments of anti-Americanism, Germans end up imitating Americans. However, Maaßen approaches a somewhat different matter that goes to the core of democratic legality, the assertion of the primacy of morality over law (which echoes a theme from Carl Schmitt’s The Tyranny of Values [Telos Press Publishing, 2018]).
Demanding that citizens meet the standards of prescribed moral judgments robs them of the liberties guaranteed by law, in particular freedom of opinion. Maaßen focuses therefore on cases where individuals hold views contrary to Tocqueville’s “tyrannical majority” or what Ibsen referred to as the “compact majority,” a phrase that Adorno cited against what he recognized as enormous pressures toward conformism in general. In contemporary Germany, however, Maaßen identifies a very specific narrowing of acceptable political opinion and therefore a proscription on articulating divergent opinions in public. Is there still freedom of speech in contemporary Germany?
Maaßen is not alone in his claims. Journalist-turned-novelist Birk Meinhardt has documented the political barriers that critical journalists in Germany face when they try to raise controversial topics. He writes of an extensive “repression of doubt,” and he sees elements of East German opinion management reappearing in unified Germany, which is sometimes only a “simulacrum of democracy” and the Bundestag only “a version of the People’s Chamber,” the pseudo-legislature of the GDR (communist East Germany).[3] Those claims of a reversion to GDR conditions go far beyond what Maaßen asserts in the interview, where he insists on the ongoing democratic character of the current German state. Yet if political life in Chancellor Merkel’s Germany has in fact inherited even just some of the flavor of the East German Communist past, then Maaßen is not wrong in declaring that there is something “totalitarian” in what is going on in what has been dubbed the “Berlin Republic.”
Objective data from public opinion polls support Maaßen and Meinhardt in their claims of a repressive political culture. Renate Koch of the Allensbach Institute reported on a study concerning free speech in Germany, writing in the Frankfurter Allgemeine in 2019: “The population views freedom of opinion as one of the most important guarantees of the German constitution. According to a majority, Germany safeguards the right to freedom of expression, more or less—but with certain restrictions. First, the public distinguishes clearly between expressions of opinion in public and in private, and second, a significant majority regards the guaranteed right to freedom of opinion as contingent on the topic at stake. Nearly two-thirds are convinced that one has to ‘be very careful concerning the topics one addresses’ because there are many unwritten laws concerning which opinions are acceptable and permissible.”[4]
Yet “unwritten laws” are not really laws at all, and they certainly do not have the democratic legitimacy that adheres to a law promulgated by a duly elected government. Hence Maaßen’s double-decker argument: the primacy of morality not only restricts freedom of speech because individuals necessarily fear informal sanctions for the expression of nonconforming positions; it also subverts the constitutional promise of that freedom and therefore the legitimacy of the rule of law in general. Every act of de facto censorship imposed by language police both harms the individual speaker, robbed of the right to express opinions, and damages the institutions of the legal order by undermining the constitution and the wider liberal democratic principles inherent in it.
But is not Germany a model democracy that has learned painful lessons from its past? And is it not held up by the American press as an example that others, including the United States, should emulate? According to the Allensbach research, 71% of Germans believe they have to be careful if and when they speak in public on the refugee topic. In other words, they feel that they have to hold their tongue on the primary domestic political issue since Merkel’s decision to open the borders in September 2015: that is surely a “structural transformation of the public sphere,” to use philosopher Jürgen Habermas’s famous term. It is worrisome for the character of German democracy if more than two-thirds of the citizens believe that they can only participate in public debate with restrictions. For if the electorate cannot discuss a topic freely, what is the democratic legitimacy of decisions taken by the government?
Furthermore, Allensbach documents an enormous gap between public and private speech: “In general, the public sphere is associated with much less freedom of opinion than the private sphere. In the view of 59%, they can speak freely among friends and acquaintances, but only 18% see a comparable freedom in public. . . . The judgment that Germany does too much for refugees is regarded as risky in public by 61% but in private only by 31%.” This public/private distinction reproduces the “niche society” phenomenon of the GDR, the retreat into the private sphere, in order to flee the total politicization of public life. Yet it also resonates with deeper, much older, pre-democratic traditions in Germany, the escape into cultural interiority as a flight from public life.
The data also corroborate Maaßen’s claim that the primacy of morality in the form of “political correctness” (according to Allensbach, 41% of Germans see it as having gone too far) is robbing people of their freedom of speech, and therefore undermines the constitutional order. However, another aspect of this tension between ethics and law is relevant. Positive law provides, according to Maaßen, the minimal regulation of civil society. Nonetheless, individuals retain the freedom to choose to obey a higher law—but they should not face bullying or political compulsion to do so. There is certainly a relevant dimension of higher morality, but it is not the role of the state to mandate that individuals act according to it. Instead, at most, the state provides the stable preconditions for individual choice: as ethical actors, we have the ability or even an obligation to do more than “just follow orders,” the self-exculpatory position of the war criminals at Nuremberg, but through moral acts freely chosen, not repressively imposed.
A morally grounded act against positive law is only a last resort, not to be taken casually, and only in the face of dire circumstances and the threat of tyranny. Hence Thomas Jefferson’s cautionary language in the Declaration of Independence, warning against too low a threshold for revolution:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Jefferson understands human nature: People will put up with a lot, and in the interest of an orderly society with “the forms to which they are accustomed,” this behavioral inertia is preferable to some mercurial instability. However, when despotism goes too far, there is a popular mandate to rebel in order to regain liberty, which is a human right. If one takes that democratic narrative as a frame, today’s Germany becomes an interesting case: the West Germans had democracy imposed on them through their defeat in 1945, while the East Germans, or many of them, took a risk to oppose a despotic regime in 1989, not knowing if they would face the same state violence Communists had just used in June in China or that the GDR itself had wielded again and again at home. These two different relationships to democratic origins likely inform different political cultures, East and West, including different attitudes toward restrictions on political speech and toward by fiat decisions by the chancellor.
Maaßen’s identification of the problem of compulsory morality as a threat to the democratic rule of law in fact points toward an even more troubling dynamic. By subverting democratic legitimacy, the primacy of values paves the way to genuine political tyranny, not only to moral tyranny. This extrapolation may seem counterintuitive, for one might assume that values-driven activists act only out of the best of intentions, whether their morality is utilitarian, pursuing the greatest good, or deontological in upholding irrevocable principles. Yet one can also doubt the ulterior motivations of the moralists, who may be neither Millian nor Kantian but instead Nietzschean, vigorously pursuing a will to power. They project a narrative of guilt onto others in order to shame their humiliated audience and then to discipline it to build support for political aspirations, whether those of the activists themselves or the political parties from which they intend to benefit. Victimization accounts are not primarily intended to heal those who genuinely suffer but rather to endow those who appropriate them with greater leverage in the competition for power. When we judge the tyrannical moralists among us, we should not think of them as good-hearted saints but as iterations of Dostoevsky’s Grand Inquisitor. Power is the goal; morality is the tool; guilt is the narrative.
Such hypermoralism in the service of the conquest of political power is playing out in the United States with the current protest movement, including the street-level violence, serving as a mobilization effort in the presidential campaign. Maaßen writes in the somewhat different context of Germany. It is witnessing the end of the anti-totalitarian consensus that defined the Federal Republic since its founding, the symmetrical rejection of Nazism and Communism, and with them the extremists of right and left. In contrast, in recent years, the political landscape and the cultural discussion at large has largely abandoned the critique of Communism; die Linke, the party of the left, heir to the rulers of the GDR, may well participate in the next coalition government after the 2021 election, as it already participates in regional governments. As Communism becomes acceptable—despite the experience of East Germany—the strategy of moral tyranny makes sure that symmetrical openings to the right are prohibited. The legacy of the Merkel era may well be an ironclad unanimity in building a wall against the right, a “popular front” politics, instead of a principled defense of liberal democracy, against the extremism of right and left. In Maaßen’s words, “it is somehow totalitarian.”
1. Hans-Georg Maaßen (born 1962) served as president of Germany’s Office for the Protection of the Constitution, der Verfassungsschutz, 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.
2. Freedom House, “Countries and Territories.”
3. Birk Meinhardt, Wie ich meine Zeitung verlor: Ein Jahrebuch (Berlin: Das neue Berlin, 2020), pp. 53, 91.
4. Renate Köcher, “Grenzen der Freiheit,” Frankfurter Allgemeine Zeitung, May 23, 2019.
