Monday, February 8, 2016

The lawyer Goethe

Goethe Girl in Aruba
 I am in Aruba for the month of February, living in a small cottage discovered through Airbnb, which does not cost a fortune. The weather is uniformly sunny and windy (thus, hardly any mosquitoes). In leaving New York for a while, I can indulge in my desire to read and write — on the back porch is a table and chairs, where I take my morning tea and read —  without many distractions. Hardly anyone emails me now; it is as if, by leaving NYC, I have no existence. Some mornings I go out for stand up paddle boarding. (More pictures to come.)

I brought with me a folder of articles and clippings about Goethe that I had not previously had time to read. One of them is “Goethe as Lawyer and Statesman,” by Arthur Lenhoff  (Washington University Law Review 51, 2 [1951]). In recent years,  since the publication of the “amtliche Schriften,” there has been much scholarship on Goethe the Weimar administrator. Lenhoff’s article was published before the appearance of that edition, and thus he draws on a few older publications (e.g., J. Meisner, Goethe als Jurist, 1885) and on Goethe’s non-administrative writings: e.g., Poetry and Truth, Maxims and Reflections, the "Ephemerides" (the latter showing the large number of law books Goethe read, including those by Anton Schultingh, Christian Thomasisus, Samuel Stryk, and Augustin Leyser). Goethe’s legal career is not an area on which I have concentrated, but, although this is an old article, my understanding of Goethe was broadened, especially his relevance to what is now called the “public intellectual.” First to the law part.

Plaque at birthplace of Goethe's great-great-grandfather

My first surprise concerned the “legacy” of lawyers Goethe inherited, on his mother’s side. For instance, his maternal great-great-grandfather, Johann Wolfgang Textor (1638–1703), was a professor of law in Heidelberg, until the destruction of the town by the armies of Louis XIV in 1689, which led him to relocate to Frankfurt, where we became the corporation counsel of the city. This Textor, according to Lenhoff, was famous for his enormous memory, “a quality which certainly distinguishes men of genius.” He wrote a book on the then international law under the title Synopsis of the Law of Nations, which is actually still in print. His son Christian Heinrich Textor was also a lawyer, likewise the latter's son, Goethe’s grandfather, also named Johann Wolfgang, who graduated in 1715 with a Doctor Juris from the University of Altdorf. He later became the schultheiss in Frankfurt. And his son, the brother of Goethe’s mother, was also a lawyer.

Goethe's father, Johann Kaspar, did not hail from a family of lawyers.  His folks were the inn keepers.

Concerning Goethe’s practice as a lawyer on his return to Frankfurt from Strassburg, Lenhoff notes that of the twenty-eight cases he handled, he never argued a matrimonial or criminal case; the cases concerned business transactions or surrogate work. Lenhoff writes that “his pleadings and briefs were at times lacking in objectivity and [were] insulting in tone.” For those of us familiar with Goethe’s pre-Weimar days, the passion of these writings are characteristic of the subjectivity of Sturm and Drang writers. The aggressiveness of Goethe’s writing, however, is part and parcel of a lawyer who is serious about defending his clients. Lenhoff quotes from Sprüche in Prosa: Goethe wrote that, for both mathematics and eloquence, “form is the essential thing; the content is a matter of indifference. Whether mathematics computes pennies or guineas, whether eloquence defends what is right or what is wrong, is unessential.” Consider some of the more provocative and contentious legal cases of our day (e.g., O.J. Simpson), and see that Goethe is, for better or worse, part of this fraternity.

Aruban lizard

Lenhoff discusses some of the legal problems that engaged Goethe throughout his life. One of these was the legal relation between state and religion. The Reformation introduced “confessions,” as well as the role of the state in adjudicating these. The state chose the country's religion; not the citizens. Although Goethe would abandon the idea of a civic religion (as per Rousseau), he continued to wrestle with the connection between education and religion in producing good citizens. Lenhoff draws here on Wilhelm Meister’s Travels, which he considers “one of the great repositories of Goethe’s socio-political ideas, particularly in the parts called ‘Lenardo’s Diary.’” Goethe's enormous experience in public administration can be seen in the passages about cotton manufacture and the textile industry and the competition faced by artisans from mechanization. In that novel, the solution was for workers to emigrate, but, as we know, that was only a temporary solution; today it is the jobs that emigrate.

Another area was criminal law, which, ultimately, is about who has the right to punish. For Goethe, the state was the only entity that was the legitimate source of violence. Thus, even in his 1771 dissertation in Strassburg, he wrote that “Capital punishment should not be abolished.” Later, in the Maxims and Reflections, he remarked:

“If one could abolish death, we certainly would not object to it; but it will be difficult to abolish death sentences. If society renounces its power of execution, people will immediately take the law in their own hands, blood revenge (vendetta) will rap at the door.”

“The emergence of written law” and the problems of its interpretation are a third area. Goethe wrote (quoted by Meissner) that “Statutes should be formulated so as to be terse in words and rich in reason.” Even in The Sorrows of Young Werther, one sees a dislike for hairsplitting; or, as Faust says to Wagner: “Und wenn’s Euch Ernst ist was zu sagen,/ Ist's notig, Worten nachzujagen?”

Lenhoff attributes to Goethe an understanding of the “enormous significance of historical evolution in the realm of legal science.” Which is not surprising in “the man who apprehended by intuition the laws of heredity and evolution in the realm of the physical world.” Lenhoff goes so far as to to say that Goethe was a predecessor of the “historical school of jurisprudence,” which conceives of law as a historical product. Thus, society must “infer the necessity for [law’s] alteration and change along with the changing needs of the ages.” The later formulation of this concept can be see in the work of Frederick Karl von Savigny, who “draws heavily on Goethe" in his System of Modern Roman Law (1840), even quoting verses from Faust (“Es erben sich Gesetz und Rechte, / Wie eine ew’ge Krankeit fort”) to illustrate  the “deadening effect inherent in the cult of precedent … or the principle of stare decisis.”

And now to the second observation I take from this article. Even in his own lifetime, Goethe was criticized for his "politics," especially in the years after the "restoration." There are two things to note about this criticism. First, his critics clearly believed that poets were “legislators” (as per Shelley in “A Defense of Poetry”). If the role of criticism from the Renaissance to the 18th century was to shape standards of literary taste, since the 19th century it has become very encompassing.

America's "foremost public intellectual"?
I am reminded of the full-page ads in The New York Times and other newspapers in support or opposition to some public issue, with the signers listed by their academic department, as if professors, even one of English or chemistry, had more standing than an ordinary citizen on the issue. Or how about movie stars appearing before Congress to testify?

Second, unlike most “public intellectuals” today or in the past two centuries, Goethe actually had played role in political and legal administration, and it may have been that experience that made him hesitant about formulating a  “political philosophy,” unlike contemporary opinion makers.

Lenhoff mentions that Goethe, like his great-great-grandfather, was a proponent of “positive law” and thus rejected “the natural law movement.” (In his Synopsis, the latter also gave a summary of arguments pro and con on why natural law does not condemn polygamy.) This rejection was the influence of the writings of Justus Möser, whose book Patriotic Fantasies convinced Goethe that, although a constitution may rely on the past, it cannot be an obstacle for “movements and changes in things that cannot be hindered.”  Goethe also “loved the idea of building up a free, self-governing body politic from below,” no doubt the influence of Möser’s “fantasies” about small social units, linked by unselfish devotion, forming the basis for a good society. America in the 1820s, when Wilhelm Meister's Travels appeared, seemed a possible location for such a community. In the real world, his “government experience” probably restrained Goethe from writing an explicit political treatise. His vision of "good government" was embodied in his literary works.

Picture credit: Diomedia; The Atlantic

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