Citation and precedent : conjunctions and disjunctions of German law and literature

290 Pages·2012·1.256 MB·English

by  Beebee, Thomas O

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Citation and
Precedent
Conjunctions and Disjunctions of
German Law and Literature
thomas o. Beebee
Continuum International Publishing Group
80 maiden Lane, New York, NY 10038
the tower Building, 11 York road, London se1 7NX
www.continuumbooks.com
© 2012 thomas o. Beebee
all rights reserved. No part of this book may be reproduced, stored
in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise, without the
permission of the publishers.
IsBN: 978-1-4411-5580-1
Library of Congress Cataloging-in-Publication Data
Beebee, thomas o.
Citation and precedent : conjunctions and disjunctions of German law
and literature / thomas o. Beebee.
p. cm.
Includes bibliographical references.
IsBN-13: 978-1-4411-1790-8 (alk. paper)
IsBN-10: 1-4411-1790-3 (alk. paper)
1. Law and literature–Germany. 2. German literature–19th century–
History and criticism–theory, etc. 3. German literature–20th
century–History and criticism–theory, etc. 4. Intertextuality. I. title.
Pt134.L3B44 2011
830.9’3554–dc23
2011023811
typeset by Fakenham Prepress solutions, Fakenham, Norfolk Nr21 8NN
Contents
Acknowledgments vii
1.1 Introduction: Citation and Precedent, Conjunction and
Disjunction 1
1.2 subsystem or Public sphere? 22
2.1 In search of the Invisible Precedent: Grimm writes to
savigny 44
2.2 Kant, Codification, and Goethe’s Elective Affinities 64
3.1 a recursive Process: Kafka’s Law – and ours 86
3.2 Citing the weimar Constitution 110
3.3 From schiller to Schund: Zensur and the Canonization of
Literature 138
3.4 German Literature Fights for its rights: a thick
Description of an Incident of weimar Literary Culture 162
4.1 Carl schmitt and/as Benito Cereno 191
4.2 Citation as second-order observation: Peter weiss’s
The Investigation 216
Conclusion 242
Works Cited 249
Index 267

acknowledgments
Numerous colleagues and other friends and neighbours contributed
to the making of this book, the contents and ideas of which go
back several decades. this study is dedicated to the memory of
roberta Kevelson, semiotician and legal scholar extraordinaire,
whose boundless energy, goodwill, sharp insights and hard work
created many meetings of the minds at various roundtables on Law
and semiotics, where I learned to live on coffee alone, and presented
preliminary versions of some of the work included here. the provo-
cations, suggestions and encouragement of participants at those
roundtables, most especially of william Pencak, Philip mosley, Peter
Goodrich and Bernard Jackson, are fondly remembered and greatly
appreciated.
some of the basic ideas of this book when it was at an advanced
stage were presented at the Law and Humanities Conference hosted
by the John Jay College of Criminal Justice in manhattan. I appre-
ciate andrew majeske’s tireless, professional and yet always cheerful
efforts in organizing that conference, and in shepherding the subse-
quent special issue of the journal Law and Literature into print, where
I took a few ideas of Luhmann for a test run.
thanks to sinkwan Cheng, Jay mootz, David Pan, william rasch
and Jessica silbey for their interest, suggestions and support on
numerous occasions and in a variety of contexts.
the resources of two German institutions were especially
important to the completion of this book. the holdings of the
max-Planck Institute for european Legal History (max-Planck
Institut für europäische rechtsgeschichte) were invaluable to my
research, and I express here my gratitude for the hospitality and
generosity of the directory and staff, and beyond that especially to
the Institute director michael stolleis and to Heinz mohnhaupt for
their generous sharing of scholarly ideas. another Frankfurt am
main institution that was of great help in my research was the Fritz
Bauer Institute, named in memory of the late attorney-general of
viii acknowledgments
the state of Hessen who was the driving force behind the Frankfurt
auschwitz trials, and dedicated to the investigation of the history
and impact of the Holocaust. my thanks here to the staff and direc-
torate of that archive, and especially to werner renz.
this study benefited greatly from the observations and sugges-
tions of a knowledgeable reader: andreas Gailus of the university
of michigan; I am grateful to him for making this a much better
book. thanks as well to Imke meyer for editing the New Directions
in German Studies book series in which this work appears, and for
welcoming me onto its list.
Finally, ariane audet and michael Diraimo were of great help in
the preparation of the manuscript for publication, and Haaris Naqvi,
acquisitions editor at Continuum Books, remained helpful, patient
and interested through the long process of review and rewriting.
Portions of Chapters 1.1 and 1.2 appeared in the article ‘Can Law
and Humanities survive systems theory?’, Law and Literature 22.2
(summer 2010), 244–68; portions of Chapter 3.1 appeared in the
essay ‘Kafka’s Law: a recursive Definition’ in the Kennesaw Review
2.1 (Fall 1989), 39–54; portions of Chapter 4.1 appeared in the essay
‘Carl schmitt and the myth of Benito Cereno’ in seminar 42.2 (may
2006), 114–35. Permission to reproduce material from these journals
is gratefully acknowledged.
1.1
Introduction: Citation and Precedent,
Conjunction and Disjunction
a sort of stain marks someone who leaves one field of study for
the other, as with a religious conversion.
[eine art von makel liegt auf dem, der von einer wissenschaft ab,
zu einer andern übertritt, wie bei einer religionsveränderung.]
Jacob Grimm, Letter to Friedrich Carl von savigny, 9 march
1807
But since history affords an idea of the fundamental citability of
its object, this object must present itself, in its ultimate form, as
a moment of humanity.
[Indem die Geschichte aber von der grundsätzlichen
Zitierbarkeit ihres Gegenstandes einen Begriff gibt, muss
derselbe in seiner höchsten Fassung sich als ein augenblick
der menschheit darbieten.]
walter Benjamin, Paralipomena to ‘on the Concept of History’
(emphasis added)
the conjunctions and disjunctions between German law and German
literature occur on at least two levels. one is seen in the personal and
apologetic farewell Jacob Grimm bids to his law teacher, Friedrich
Carl von savigny, as Grimm goes off to seek a paying position,
one that will allow him enough latitude to continue his studies in
literature and philology that will result in the famous Hausmärchen
(fairy tale) collection and in the great dictionary and grammar of
the German language. the other disjunction occurs on the imper-
sonal level of system – literature and law have trouble ‘talking’ to
each other, analogous to the way German and english languages
do. I invoke the ‘disjunction’ between German and english in