Stop 1 – No Equal Rights For All

‘All people are equal before the law.’ This principle is stated in both Article 10 of the Federal Constitution and Article 3 of the German Basic Law. This concept of equality shapes how we think, but when we delve into our history, it becomes clear that these ideas are very modern. In the past, all people had a different legal status and were treated accordingly by the law – depending on their social standing, family background, nationality, gender, etc.

This system goes back a long way – there are even a few examples of it in the New Testament, which we’ll be discussing in the first part of this stop. After that, we’ll present one of the most important legal texts of the Middle Ages. You’ll soon understand why, at the time, it was so inconceivable to have equal rights for all.

1.1 - Injustice in the New Testament, or: Paul the Untouchable

If we take medieval legends as a benchmark, the Romans always killed Christians in the most brutal ways: they were fed to wild lions in an arena, crucified, stoned to death and more. However, these forms of execution were actually based on a sophisticated legal system, which the Roman judges observed. And this legal system really worked, as demonstrated by the case of Paul of Tarsus.

The apostle Paul is one of the historically documented figures from the New Testament. On his missionary journeys, which are recorded in both the Acts of the Apostles and his letters, he was imprisoned more than once. But he was almost never sentenced. Because, unlike his fellow Christians, Paul had what was probably the greatest privilege that someone could have in his time: Roman citizenship.

Roman citizenship was a privilege. Not all residents of the empire had it, not even all residents of Rome. Only citizens were allowed to vote or be elected – and by the way, there weren’t any female citizens. Citizenship was therefore a generous gift, occasionally bestowed by Roman politicians. This meant that the number of Roman citizens kept rising.
Roman citizenship also affected how someone was treated by the criminal justice system: citizens were entitled to a proper trial. Torturing Roman citizens was not allowed, and they could also appeal to the highest authority, the emperor, at any time. They were also granted immunity from local laws. Roman citizens could assert their citizenship anywhere across the Roman Empire.

There are several passages in the New Testament illustrating what Roman citizenship meant for Paul:
Philippi/Macedonia; Acts of the Apostles 16,35ff.
‘And when daylight came, the magistrates sent the lictors to say: “Release those men!” The jailer relayed this message to Paul: “The magistrates have sent an order for your release. Go now in peace!” But Paul said unto him: “They flogged us publicly without a trial, though we are Roman citizens, and threw us into prison. And now they want to send us away in secret? No! They must come and escort us out themselves.” The lictors delivered this messaged to the magistrates, who were terrified to hear that the prisoners were Roman citizens. And they came to appease the prisoners, escorted them out and asked them to leave the city.’

Jerusalem; Acts of the Apostles 22,25ff.
‘But when they tied him down to flog him, Paul said to the commander who was standing by: “Are you allowed to flog a Roman citizen without a trial?” When the commander heard that, he went to the chief centurion, relayed the message and said: “What are you doing? This man is a Roman citizen.” The centurion came to Paul and asked him: “Tell me; are you really a Roman citizen?” He answered: “Yes.” The chief centurion said: “I had to pay a fortune for my citizenship.” Paul said: “But I was born a Roman citizen.” Immediately, the men who had been about to question him let him go. And the chief centurion himself was afraid to think that he had bound a Roman citizen in chains.’

Caesarea; Acts of the Apostles 25,10ff.
‘Paul said: “I stand before the emperor’s court and that is where I must be tried. I have done the Jews no wrong, as you well know. If I really am guilty and have done something to deserve death, I will not refuse to die. But if the accusations brought against me are unfounded, nobody has the right to hand me over to these people. I appeal to the Emperor!” Then Festus conferred with his advisers and replied: “You have appealed to the Emperor; to the Emperor you will go.”’

According to sources from the 2nd century AD, Paul was executed in the end, and with a sword at that. At the time, this was considered an honourable way to die and is understood to be a privilege granted to Roman citizens. It may not sound like it to us, but if the alternative is being stoned to death, crucified or fed to lions...?

This excerpt from President Kennedy’s famous Berlin speech of 1963 illustrates just how long this view of Roman citizenship as a privilege endured. ‘Two thousand years ago the proudest boast was “civis Romanus sum”. Today, in the world of freedom, the proudest boast is “Ich bin ein Berliner”. All free men, wherever they may live, are citizens of Berlin, and, therefore, as a free man, I take pride in the words “Ich bin ein Berliner”.’

1.2 To Each Their Own Place and Law

Walter Koschorreck. Die Heidelberger Bilderhandschrift des Sachsenspiegels: Faksimile und Kommentar.

2 volumes. Facsimile published in Frankfurt in 1970, original edition from the early 13th century.

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You’ve probably seen the medieval social pyramid time and again in history books: there’s the Pope and the Emperor at the top, then the nobility and then, somewhere beneath that, the rest of the people. It wasn’t quite this simple, but it is essentially true that medieval society had a hierarchical structure. Everyone had their fixed place within a God-given order. The further down you were, the fewer rights you had.

Of course, there was a justice system based on customary law. These laws were compiled in the Sachsenspiegel (literally the ‘Saxon Mirror’), which we’re presenting here in facsimile. It is considered the most important codification of medieval law, documenting the customary law of Saxony in writing. It was compiled by administrator Eike von Repgow. The text addresses a wide variety of issues, ranging from feudal law and the election of kings, to inheritance, to family, criminal and procedural law.

The Sachsenspiegel was an important founding text. It therefore features in numerous manuscripts. Our version is called the ‘Heidelberger Sachsenspiegel’ because it is kept in Heidelberg. Like most copies, it is abundantly illustrated; after all, very few princes were able to read at the time this law was in force.

Nowadays, we may be horrified by the regulations stipulated in this text, in which legal rights are determined by social class. Nevertheless, the Sachsenspiegel was a step forward. With it, the law was written down, standardised and made accessible to more people. There are few legal texts that have been as widely circulated as this one, which is why some of its individual provisions are still observed today.

The depiction on the lower left provides a good example of how members of different social classes were treated unfairly by the Saxon customary law. A nobleman, identifiable as such by his shield, stops the non-noble man from taking an oath by grasping his ‘Schwurhand’, his swearing hand. This illustrates the following law: ‘If two men, one of whom is not born into the “Heerschildordnung” (the hierarchical order of noble society), have an equal claim to an asset and provide testimony to this, the testimony of the man who is of noble birth shall be favoured and that of the [other] shall be rejected.’

This illustration addresses the ‘oath of fealty’. It depicts the feudal lord with his hands over the clasped hands of his kneeling subject. A symbol of the fiefdom was also gladly handed over on this occasion. For example, in the lower register of the illustration, the priest receives a huge key. Women also play a role in this illustration, by the way – four times in fact: twice as a wife of a feudal lord, once as a wife of a feudal subject and once entirely alone as a female feudal lord.

Some German idioms still in use today can be traced back to the Sachsenspiegel. One example: The feudal lord told his serfs exactly which mill they had to use – for a fee, of course. And since everyone wanted to grind their grain at the same time after the harvest, a rule had to be issued to determine whose grain the miller should grind first: first come, first served. Or, as Germans say: who comes first, grinds first.

Stop 2: Who Administers Justice?

The question of justice isn’t just about how people are treated by the law, but also about who establishes these laws and ensures that they are obeyed. A bad-tempered God, a moody monarch or a parliament elected by the people?

In the next section, we’ll present two stories that emerged more than two millennia apart – King Oedipus from the 5th century AD and Michael Kohlhaas from 1808. These stories demonstrate just how greatly our understanding of justice has changed from ancient times to the modern era: from a world ruled by the will of God, to one in which people intervene of their own accord in order to uphold the law. In doing so, the stories also illustrate the dangers of two opposing systems.

2.1 Gods Instead of Courtrooms

Sophokles, Œdipe Roi. Tragédie de Sophocle.
Published by André Gonin in 1946 in Lausanne, translated by André Bonnard.  With illustrations by Hans Erni.

The story of Oedipus is well and truly tragic. By that, we mean that one of its characters experiences suffering no matter what they do, because their fate is already sealed. This struggle of the individual against an unalterable destiny is an element of Greek tragedy. In the case of Oedipus, the Gods predict – before he is even born – that he will murder his father and marry his mother. Whatever his parents or he himself do to avert this fate just perfidiously leads to it actually happening.

For instance, his parents, King Laius and Jocasta, abandon him as an infant so that he can never commit patricide and incest. But it is only because of his life with adoptive parents that he ends up committing those terrible deeds without recognising his biological parents. Whichever way you look at it, Oedipus can’t win. When the terrible truth comes to light, Jocasta takes her own life and Oedipus blinds himself.

Oedipus: guilty or innocent? It’s a fascinating question. Factually, he is guilty of several crimes. He kills his father Laius during a brawl at a crossroads and therefore commits patricide. Later, he solves the riddle of the Sphinx that guards the city of Thebes and, as a reward, receives the widowed Jocasta as a wife. By marrying her and fathering several children with her, he commits incest. In the world of the ancient Greeks, it was the deed alone that counted. Whether or not Oedipus had actually meant to do anything unlawful didn’t matter in the slightest.

Criminal law works differently nowadays. Intent is crucially important. If Oedipus had deliberately killed his father, we could call it murder. But without that intent, we would interpret this encounter with his father as self-defence or manslaughter – that’s a big difference. The same applies to his marriage to his mother: neither Oedipus nor Jocasta knows about their family relationship at the time of the ‘crime’. They therefore don’t commit any deliberate offence. If they were tried in accordance with modern law, they would be considered innocent and would probably be acquitted of any charge of incest.

The story of Oedipus also puts another of our modern concepts to the test: the idea that punishment is not transferable. There are two things in the story that may seem strange to us. Firstly, the idea of someone being punished for a crime that someone else has committed. Secondly, the fact that an entire city has to atone for the crimes of an individual.
 
For instance, the reason Oedipus is punished with such a cruel fate is to make up for a crime committed by Laius. And after Oedipus accidentally murders his father, the people of Thebes are punished with a plague, which doesn’t end until Oedipus atones for his crime with an act of self-punishment.

The Greek playwright Sophocles wrote a version of the Oedipus myth in the 5th century AD. The story is still very popular to this day and has been published in countless editions. The book presented here is a French translation of the tragedy, a limited edition published in 1946 in Lausanne. The 230 copies of this edition bear the original signatures of publisher André Gonin and artist Hans Erni and are printed on especially valuable, elaborately produced paper.

Another special feature of this art edition are the 14 illustrations by the multi-award-winning Swiss artist Hans Erni. With just a few strokes, he manages to capture the pain and tragedy of the characters and bring the story to life on the paper – as in the scene where Oedipus finds his mother hanging dead.

What walks on two legs in the morning, three in the afternoon and four in the evening? You’ve probably heard this riddle before, or one very similar to it. But did you know that it originally comes from the story of Oedipus? The riddle is told by the Sphinx, a dragon-like monster that lies in front of the city gates and eats anybody that can’t answer her questions. Only Oedipus is able to solve the Sphinx’s riddle correctly. The Sphinx, ashamed of herself, then throws herself to her death.

Perhaps the best-known legacy of the Oedipus myth in our cultural history is the ‘Oedipus complex’. This term, coined by Sigmund Freud at the beginning of the 20th century, has been very popular for a long time.

It refers to a theory, proposed by Freud, that male infants go through a phase in their development in which they experience sexual desire for their own mother and therefore a sense of potential rivalry with their father. This desire is not socially acceptable and is therefore repressed by the child. However, according to further interpretation of the complex, this desire could be a subconscious motivation for certain actions. In Sophocles’ tragedy, this would mean that Oedipus, due to a subconscious urge, wanted to commit incest with his mother and therefore had to get his father out of the way.

2.2 Vigilante Justice: Man Rises Above the Law

Heinrich von Kleist. Michael Kohlhaas: Erzählung.

Published in 1916 by Hans von Weber Verlag in Munich. With illustrations by Bruno Goldschmitt.

Let’s jump to the 16th century, when the true story of Hans Kohlhase took place. Kohlhase felt he had been cheated out of his rights and, in response, he laid half of Saxony to waste. So, what happened?

At the border between Brandenburg and Saxony, the horse merchant Kohlhase was stopped and had tolls and horses unlawfully taken from him. At that time, Germany was a patchwork quilt of small states with different laws. After having appealed to every possible legal authority to claim compensation for his losses, to no avail, Kohlhase took the matter into his own hands. He embarked on a personal quest for revenge against the lords that had cheated him, during which he reduced vast parts of Saxony to rubble. When his case eventually reached the highest authority, he finally received compensation for his lost horses – and was sentenced to death for his crimes.

Inspired by these events, German writer Heinrich von Kleist wrote his novella Michael Kohlhaas in 1808.

The story of Michael Kohlhaas was published again and again due to the political message it contained. We’ll therefore be presenting two different editions of the story. The first is a so-called ‘fine press’ book from 1916. Fine press books are produced in small quantities with special features for collectors. This copy, for example, is illustrated and hand-printed, with a marbled paper binding and genuine watermarks. There are only 600 copies of this edition.

The book was illustrated by German artist Bruno Goldschmitt. His illustrations correspond exactly with the scenes being described and are graphically embedded in the text. Here, we see Michael Kohlhaas meeting Martin Luther. Kohlhaas hopes that Luther will share his sense of justice. He is acting in accordance with the principle ‘fiat iustitia et pereat mundus’ (meaning: ‘let justice be done, though the world may perish!’). But Luther disagrees, saying that one injustice can never be rectified by another. He asserts that we should refrain from taking personal revenge and instead, trust in the justice of God.

Heinrich von Kleist. Michael Kohlhaas: Aus einer alten Chronik.

Herausgegeben vom Aufbau-Verlag im Jahr 1980, Berlin und Weimar (DDR). Mit Zeichnungen von Ernst Barlach.

The second edition was published in 1980 in the GDR and features illustrations by German sculptor, printmaker and writer Ernst Barlach. Unlike Goldschmitt’s illustrations, these don’t always match up with the text. This is due to the fascinating story behind this edition.

Barlach was first asked to illustrate a new edition of Michael Kohlhaas back in 1910. He produced over 50 charcoal illustrations for it, drawn in a sketchbook, but the project was never completed. You can see this in the drawings. They are often unfinished, imperfect. But that’s exactly what lends them their special character. It wasn’t until 1980 that the project was started up again and this edition was published.

Published in 1910 and 1916, both of these editions of Michael Kohlhaas are rooted in the same period, in the heyday of the communist movement before the outbreak of the First World War. For many intellectuals at the time, communism represented an appealing alternative to the empire, which was considered to be unjust. The story of an ordinary citizen who is practically forced to turn to violence, because neither the government nor the church want to help him, fit perfectly into this world view.

Finally, let’s return to our initial question. What can we say about law and justice in Kohlhaas’ story? On the one hand, we can say that the horse merchant violated both the secular laws of the time and the laws of God (by choosing revenge instead of forgiveness).

On the other hand, there is at least one theory that says Kohlhaas was well within his rights. The English philosopher John Locke spoke of a social contract, according to which citizens have a sort of unspoken agreement with the state. The citizens obey the laws and, in return, the state ensures that the laws are obeyed. As soon as one of these parties violates the contract, it is no longer valid. By failing to protect Kohlhaas’ property, the state breaches its duty, thereby releasing Kohlhaas from his obligation to obey the law – in theory, at least.

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Stop 3 - Secular and Canon Law

Have you ever heard the term ‘doctor of both laws’? It refers to a scholar that was trained in both worldly and church law. Because in the Holy Roman Empire of the German Nation, clergy and non-clergy were sentenced according to different laws. In addition, anyone with any higher and/or lower jurisdiction was essentially entitled to enact their own laws in their territory.

At this stop, we’ll illustrate the confusion of all the different laws, with the help of two books used by the lawyers of the early 18th century.

3.1 Secular Law

Johann Christoph Frölich von Frölichsburg. Commentarius in Kayser Carl deß Fünfften und deß H. Röm. Reichs Peinliche Hals-Gerichts-Ordnung.

4. Auflage, herausgegeben in Frankfurt / Leipzig, 1727.

For centuries, the criminal law enforced in the Holy Roman Empire of the German Nation was a wild combination of regional customary laws, legal texts from the Middle Ages, the personal preferences of territorial lords and Roman laws handed down from ancient times. The empire wasn’t just divided along political lines; in criminal procedure too, each territorial lord did what they thought was right – until 1532, when Charles V published a standardised criminal code for the first time, the Constitutio Criminalis Carolina, or in German, the ‘Peinliche Halsgerichtsordnung Kaiser Karls V.’

In modern high German, the word ‘peinlich’ means ‘embarrassing’ or ‘awkward’, but here, it is meant in its original sense. ‘Pein’ means ‘pain’, so the word ‘peinlich’ would be used to describe something that causes pain. This criminal code therefore covers all crimes judged by a high court, that is to say, all crimes that carried a corporal punishment.

Although the punishments stipulated in this code may seem inhumane to us, such as breaking on the wheel, boiling and mutilation, this piece of legislation was considered a major step forward by its contemporaries. From that point on, anyone who was brought before court for a serious crime would know the rules under which they would be punished.

The ‘Carolina’ was still determining the course of criminal proceedings two hundred years after it was published, as demonstrated by this commentary by Johann Christoph Frölich von Frölichsburg, which was published in 1709 and reprinted time and again. Our copy is a 4th edition from 1727. In it, Frölich explains how the ‘Carolina’ should be understood and applied. By doing so, he helped to further standardise the punishments, as many judges followed his recommendations.

Unlike today, there wasn’t a public prosecutor’s office. The roles of detective, prosecutor and judge were all played by one person. As circumstantial evidence was not allowed in court, anyone accused of a crime had to be convicted on the basis of witness accounts or a confession. If the accused was not willing to confess, they were tortured to get the confession.

The ‘Carolina’ therefore defined, in precise terms, how to conduct a trial as successfully as possible. It provided answers as to how long suspects could be detained for and how witnesses should be interrogated. In addition, it already drew a distinction between intent and negligence and acknowledged mitigating circumstances.

It also detailed members of society who should not be tortured. This list included children under 14 years, people lacking mental capacity, deaf and mute people, blind people and the elderly.

Back in 1495, a whole generation before the ‘Carolina’ was published, Maximilian I, Holy Roman Emperor, introduced a judicial institution called the ‘Reichskammergericht’ to repress private feuds. The Holy Roman Empire therefore had an official court, before which princes, cities and knights, but also citizens, could air their grievances. Although – as in the case of Hans Kohlhase – they didn’t always find justice there.

3.2 Canon Law

Corpus iuris canonici emendatum et notis illustratum.

Verlegt 1696 bei Emanuel und Johann Georg König in Basel.

Those belonging to the clergy – nuns and monks, bishops and pastors – were subject to a different law, canon law. It governed all aspects of church life. The chief legislator was the Pope.

Canon law was based on biblical scriptures and the teachings of the Church Fathers. This was complicated, as these often contradicted each other. From a multitude of statements, a set of rules had to be formed, i.e. a canon, hence the term ‘canon law’.

Ordinary citizens came into contact with ecclesiastical (church) courts too. In fact, this was always the case when it came to crimes that fell into one of the areas of law that the church had claimed for itself. These included matrimonial law but also questions of orthodoxy. If somebody had sinned in one of these areas, they had to explain themselves before an ecclesiastical court, but were then handed over to the civil justice system for punishment.

Canon law was collated in a book, the Corpus Iuris Canonici. This was more like a series of texts than a legal text in the modern sense. It was a collection of important church laws, most of which were from the Middle Ages. It also contained papal decretals, which modified these laws. By around 1580, the Corpus Iuris Canonici was more or less complete. It was reissued again and again. Our copy was published in 1696 in the city of Basel.

The Corpus Iuris Canonici posed a problem for all ambitious princes – which this map of the Holy Roman Empire from 1648 barely begins to reveal. Ecclesiastical territories (purple) were not subject to sovereign law but church law. Those who wanted to unify their territory strove to repress the influence of the Catholic Church – and of course, its laws.

This was probably the most important reason for the success of the Reformation. With his statements, Luther became an excellent instrument of anti-church movements. Many princes liked his descriptions of canon law as a ‘bowl of divine wrath’ and ‘poisoned law’, and not just in the 16th century. Even in the 19th century, during the struggle between Church and state, Luther was still being instrumentalised by opponents of church institutions.

The same historical context also gave rise to anti-church novels such as Victor Hugo’s The Hunchback of Notre-Dame. In this book, the author refers to a privilege that the Catholic Church had adopted from the temples of Ancient Greece: the right to sanctuary. I one scene, Quasimodo cuts Esmeralda from the gallows and carried her swiftly to the nearby cathedral, ‘holding up the young girl above his head and shouting with terrific voice Sanctuary! Sanctuary!’, thus saving her life.

Later versions of the Corpus Iuris Canonici were published with indices to make it easier to use. In this index, the decretals are sorted according to which pope they were passed by.

Stop 4: The Enlightenment and the Cry For Justice

In the 18th century, France was reigned by an absolute monarch and injustice was rampant. Not just between the king and his subjects, but also among the subjects themselves. Privileges were unequally distributed, so for example, farmers and citizens had to pay taxes, whereas the nobility and the church did not.

Thanks to the Enlightenment, an idea began to spread within the emerging middle class: the notion that another world might be possible. It was therefore citizens that fuelled the first phase of the French Revolution in 1789. They demanded the right to participate in a state that is fair and just.

This stop is all about what a ‘fair and just’ state should look like in the eyes of the Enlightenment philosophers. We’ll be discussing the philosopher Montesquieu, who developed theories on this subject that are still relevant to this day. The man after whom our second book is named is probably better known as a military commander than a lawmaker: Napoleon Bonaparte. He implemented the ideas of Enlightenment in his civil code, the Napoleonic Code.

4. 1 What a ‘Just’ State Should Look Like: In Theory

Charles de Secondat, Baron de Montesquieu. De l’esprit des loix : Ou du rapport que les loix doivent avoir avec la constitution de chaque gouvernement, les mœurs, le climat, la religion, le commerce, &c.

Published in 1749 in Amsterdam by Zacharie Chatelain.

The Age of Enlightenment gave rise to a whole host of radical new ideas that would visibly change Europe. Philosophers such as John Locke and Thomas Hobbes in England and Jean-Jacques Rousseau and Montesquieu in France proposed new theories about human rights and systems of governance.

Many of their ideas still form the basis for our political thinking to this day. For example, the idea that…

• all people are born free,
• all people are equal before the law,
• rulers are not invested with power by God, but by the people,
• the state should grant its citizens freedom of religion.

These ideals were written down in the Declaration of the Rights of Man and the Citizen and, on 26 August 1789, they were officially adopted by the French National Constituent Assembly.

These statements, which were considered radical at the time, were based on the main work of philosopher Montesquieu, or to use his full name, Charles de Secondat, Baron de la Brède et de Montesquieu. He therefore clearly came from a noble and therefore privileged family himself. Montesquieu was an advocate of constitutional monarchy, a widely held political stance at the beginning of the Revolution.

His main work The Spirit of Laws (= De l’esprit des loix) criticised the absolutist regime in France. It is one of the most influential works of political philosophy. It details the three forms of government, monarchy, republic and despotism, and attempts to determine the factors that cause governments to fail or succeed.

The most important idea that Montesquieu left for posterity is that of ‘separation of powers’ as a constitutional principle. Here’s what Montesquieu wrote about it: ‘Again, there is no liberty, if the judiciary power be not separated from the legislative and executive powers.’ His idea was first formalised in 1787 with the principle of ‘checks and balances’ in the Constitution of the United States.

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In his chapters, Montesquieu draws a distinction between ‘Des Loix de la Nature’ and ‘Des Loix positives’: natural law and positive law. This distinction gained a great deal of significance in the Age of Enlightenment.

Montesquieu defines natural law as the rights to which, in his opinion, all people are equally entitled. His natural rights were the forerunners of the human rights we know today, such as the right to freedom and bodily integrity.

Positive law, on the other hand, he defines as man-made law. Unlike natural law, positive law is not bound to any sense of reason or morality, but rather enforces the interests of the lawmaker.

A book like The Spirit of Laws couldn’t be printed in France. Every book due to be published in the country was reviewed in advance by the king’s censorship board. That’s why this book was published in Amsterdam, where books were also subject to censorship, but were banned for different reasons.

Despite – or maybe even because of – the ban in France, the book spread across Europe. It was considered very sophisticated to refer to Montesquieu. As the translator of the German edition writes in the foreword, Montesquieu’s treatise is ‘a work that seems to have been written not for one nation, but for all cultured nations of the Earth’.

Indeed, there was a copy of this book in the English House of Commons; in addition, Catherine the Great claimed that her reforms in Russia were inspired by Montesquieu, while the King of Sardinia said that this book taught him the art of governance. Though of course, neither Catherine the Great nor the King of Sardinia changed the absolutist principles of their respective states.

4.2 An Enlightened Code of Law for Europe: The Napoleonic Code

Code Civil des Français, dans une seule série de numéro, conformément a la loi du 30 ventose an XII, comprenant 2281 articles.

Published in 1804 in Paris by Pierre and Firmin Didot.

During the Revolutionary Wars, one general from Corsica demonstrated particular military prowess: Napoleon Bonaparte. The army revered him for his successful campaigns. With their support, he staged a coup in November 1799 and subsequently became the head of the French Republic.

With his ‘Grande Armée’, he conquered large parts of Europe. For a brief time, he controlled Spain, Italy, Switzerland and vast areas of Germany and Poland. When the Napoleonic era ended with the Battle of Waterloo in 1815, many of his new ideas could no longer be reversed.

Napoleon’s codes of law had a lasting impact on Europe. The Code Civil, or the Napoleonic Code, the first civil code of law, incorporated the ideals of the French Revolution into the legal system. It is based on the equality of all citizens, the protection of private property and the separation of church and state.

The Napoleonic Code, which was published in 1804, was followed by four further codes: with the Code de procédure civile (code of civil procedure), the Code de commerce (commercial code), the Code d’instruction criminelle (code of criminal instruction) and finally the Code pénal (criminal code), a comprehensive code of law emerged.

The Napoleonic Code not only applied in France but in all territories annexed by France, meaning that it spread across wide parts of Europe, bringing with it the ideals of the French Revolution.

The first book of the Napoleonic Code, the civil code, was concerned with private law. It governed matters such as ownership of property, inheritance law and divorce. One crucial new development was that the Napoleonic Code no longer divided citizens into different social classes but treated them equally. With this step, Napoleon made one the three key words of the Revolution, equality, legally binding – but only for men.

Another accomplishment of the Revolution that became legally binding under Napoleon was the separation of church and state. Back in 1789, the Declaration of the Rights of the Man had already asserted that: ‘Nobody shall be prosecuted on the basis of their opinions, even those of a religious nature, as long as the expression of those opinions does not disturb the public order established by law.’ In practical terms, this meant that civil marriage, and with it divorce, was possible in France as of 20 September 1792.

Napoleon was proud of his achievements as a lawmaker. He reportedly said the following about it: ‘My true glory is not that I have won forty battles […]. What will always remain is my Code Civil.’

In fact, his code became established in all the territories ruled by France. In 1806, it was introduced in the Kingdom of Italy, where Napoleon himself had been crowned king the previous year. For this purpose, the code had to be translated into Italian and supplemented with commentaries by leading lawyers. You can see one of these commentaries at this stop of our journey.

In Switzerland, the Napoleonic Code applied in Geneva and Bernese Jura, which were both annexed by France. In Germany, it was adopted by the annexed territories on the left bank of the Rhine as well as the states of the newly established Confederation of the Rhine.

But even countries that had never been directly ruled by Napoleon responded to his new ideas in their own legal codes. For example, our German translation is from 1826, meaning it was published long after the Napoleonic era. Translations like this formed the basis for the numerous legal codes that emerged in the 19th century and whose laws live on in the civil codes of Germany and Switzerland.

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Stop 5: Guilt and Punishment

If you break the law, you get punished. This simple principle is as old as the idea of law itself. But how should criminals be punished and what is the punishment intended to achieve? There have been – and still are – many different ideas about this.

‘A life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a stripe for a stripe’ – this is one principle of biblical law. It formed the basis for the idea that a society fulfilled the will of God by punishing a criminal suitably for their crimes. In those days, a ‘suitable’ punishment meant a physical punishment. The notion of ‘rewarding’ a criminal by locking him in a prison, where he would no longer have to worry about his physical welfare, while decent, law-abiding people went hungry, wouldn’t even have occurred to a judge in the early modern period.

This is the period we’ll be focussing on for our first example, a report of a robbery in Berlin Palace and the thieves’ punishment. Our second example is from the 1930s, when people started to discuss whether a punishment should also give the perpetrator an opportunity for social rehabilitation.

5-1 ‘…broken on the wheel from the bottom up and taken from life to death.’

‘If, however, he has committed murder, he must die’. This statement isn’t from a medieval law book; it was written by the great Enlightenment philosopher Immanuel Kant. Like most proponents of the Enlightenment, he believed that abolishing the death penalty wasn’t an option when it came to murder and other capital crimes.

What was considered a ‘capital crime’ back then is fundamentally different from today, as exemplified by this detailed description of a trial in Berlin, which ended with two particularly brutal executions…

On 8 June 1718, Valentin Runck, the castellan of the city palace, and Daniel Stieff, the court locksmith, were taken to the execution site outside the city. There, in front of a blood-thirsty audience, they would be executed by ‘the wheel’, that is, by breaking their bones, and from the bottom upwards too. This was the worst form of the punishment. A merciful judge would sentence the criminal to be broken on the wheel from the head down, which resulted in a quicker death.

The two condemned men were neither mass murderers nor child molesters. They were petty thieves.

But they had made a big mistake – they hadn’t just stolen from anybody, but from the King of Prussia, of all people. This meant they were guilty of high treason, which, in the eyes of their contemporaries, was worse than murder or manslaughter. After all, in the 18th century, the king was still considered to be a ruler ‘by the Grace of God’. So, the thieves had not just sinned against the king, but also against God.

The castellan, a sort of royal custodian, had convinced the court locksmith to break into the cabinets of the royal coin collection. The two of them helped themselves from these cabinets again and again, until a jeweller, whom the locksmith had tried to pay using an ancient gold coin, set the whole criminal procedure in motion.

The king responded to this crime against the crown. Anybody who knew about the crime had to witness the punishment. This was a public demonstration of his royal power. And for all those who couldn’t come to Berlin to witness the execution in person, he had the trial and the punishment depicted in a book, which was illustrated with several copper engravings.

The trial files, upon which this publication was based, document the entire process in detail, including interrogation records and witness statements. These pages also contain detailed lists of the stolen pieces.

An execution was more than a way of taking someone’s life. It was a demonstration, during which a person’s actions were judged for everyone to see. That’s why we hear about the practice of posthumous execution, that is, the public execution of someone who is already dead. This image depicts the posthumous execution of a man convicted for high treason who is already in his coffin. He tried to escape the execution by suicide but was hanged anyway.

This same mindset is also behind the often-romanticised execution of Hans Hermann von Katte, who had tried to help his friend and the heir to the Prussian throne, Friedrich II, to escape. By assisting in this escape attempt, von Katte had committed treason. In the year of the escape, 1730, the crime of treason was punishable by the death penalty in all European countries.

It wasn’t until in 1786, over half a century later, that the Grand Duchy of Tuscany became the first European power to abolish the death penalty. The last civil execution in Switzerland took place in 1940.

5. 2 A Chance For Correction?

When someone is executed, they are deprived of the chance to change their life. A prison sentence is rather different. Around 1800, regulated imprisonment replaced corporal punishment as the standard punishment. By that time, society was already accustomed to locking away undesirable subjects in workhouses and jails or sending them to the colonies, where they were supposed to earn their keep through hard work and – in theory, at least – create added value for society. This was based on the idea that imprisonment as a punishment gives the offender a chance to become a better person.

In practice, this was difficult or even impossible. If somebody had been in prison once, they were socially ostracised and had little chance of finding a job or a place to live.

This is exemplified by the fate of the fictional petty criminal Willi Kufalt, depicted by writer Hans Fallada in his 1934 novel ‘Once a Jailbird’: Willi Kufalt is released from prison after five years. He wants to become an upstanding member of society but his past keeps catching up with him. When he is falsely suspected of wrongdoing by his employer because of his criminal history and subsequently loses his job, his fiancée leaves him and his painstakingly constructed existence falls apart. He can see no other option than to resort to crime once again, thereby ‘proving’ the truth of the expression alluded to in the title: Once a jailbird – always a jailbird…

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In this novel, Hans Fallada (1893-1947, actual name Rudolf Ditzen) described a social context that he knew only too well himself. His own life was marred by morphine and alcohol addiction and he too had repeatedly served time in prisons and psychiatric institutions. The character of Willi Kufalt has autobiographical elements.

Hans Fallada said the following about his novel:

‘I didn’t write this novel for the joy of adventure, nor as an authentic depiction of the real social ‘underworld’. I wrote this novel to demonstrate how the modern penal system and modern society force people who have erred once to keep committing new crimes. Their punishment renders them incapable of living a citizen’s working life, society does not want them to live this working life. The petty rogue Kufalt struggles on; even the hardest, most unpleasant work holds a golden glimmer of humanity… And yet, and yet, inescapably, against his will, without his will, he becomes what society wants him to become: a piece of excrement, an evil microbe that must be exterminated’

In the foreword of the first edition, published in 1934, Fallada tried to bypass the book ban imposed by the Nazis by relating the book’s criticism to the ‘old’ system of the Weimar Republic – but it didn’t work. Right after the fall of the Third Reich, the novel was reprinted with the foreword we see here. Due to their social critique, Fallada’s works were very popular in the GDR and were printed in this edition of the ‘Taschenbibliothek der Weltliteratur’ (‘pocket library of world literature’) with an enormous number of editions.

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Stop 6: Popular Culture Then and Now: The Fascination With Personal Revenge

In the simplest sense of the word, revenge is when one person wrongs another, who then wrongs the first person in order to restore justice. In a legal sense, revenge could be described as an archaic, pre-legal instrument of justice that was replaced by criminal law over the course of history. The punishment of crimes was no longer the responsibility of the individual, but the state. The severity of punishments was regulated in precise terms and stipulated in paragraphs. However, it seems that even the best legal systems in the world can never be completely fair, meaning that personal revenge has never been fully eradicated outside the courtroom.

Imagine that your 16-year-old daughter is run over by a drunk driver. The driver is required to give up his driving licence and charged with involuntary manslaughter, for which he is sentenced to three years in prison. Do you consider that sentence to be just? Three years for your daughter’s life? This example demonstrates the difficult relationship between crime and punishment, which can never be absolute, as it often involves a very subjective component. After all, human suffering is not quantifiable and, in most cases, is not relieved by a court sentence.

Perhaps these blind spots in the system are the reason behind our enduring fascination with personal revenge. This is exactly what our final stop is all about. Although revenge is by no means a modern concept, it is still extremely popular in modern pop culture. We’ll be taking a look at the emergence of the modern revenge plot, from the serial novels printed in newspapers in the 19th century, all the way to Quentin Tarantino’s 21st-century films, from The Count of Monte Cristo to Kill Bill.

6.1 Revenge Is a Lucrative Business

Alexandre Dumas. Der Graf von Monte Christo.

Published 2019 by dtv. First German edition from 1846.

The term ‘pop culture’ generally refers to the large-scale production and consumption of cultural goods, such as newspapers, films or CDs. It emerged at the beginning of the 20th century, when it suddenly became technically possible to mass-produce many of these things.

However, this development actually began in the 19th century, when print media became cheaper and newspaper publishers saw the potential of a huge market. Instead of publishing novels in full, they began publishing them in parts, with each new issue featuring the next instalment of the story.

The serial novel therefore had the specific function of binding customers to the publication in the long term. This close link between art and capitalism is another typical feature of pop culture.

Alexandre Dumas’ The Count of Monte Cristo was one of these serial novels. Even back then, publishers were already using ‘cliffhangers’, i.e. ending individual instalments at a particularly suspenseful point with the note ‘La suite à…’ (‘to be continued’), to urge the reader to buy the next issue. They would even take a break, lasting several weeks, right before the turn of the year, so that their customers would renew their subscriptions for the following year.

Dumas’ novel tells the story of the young sailor Edmond Dantès. He’s in the prime of his life – he’s just been promoted to captain and is happily in love with the beautiful Mercedes – when he is wrongfully sentenced to 14 years in prison, the result of a scheme cooked up by his rivals. Years later, he manages to escape. He gains a new fortune, thanks to a secret treasure bequeathed to him by a fellow prisoner, adopts a new name – the Count of Monte Cristo – and begins his long and arduous quest for revenge against his former rivals. Many people have to die before he finally learns to forgive.

Dumas’ novel is set in a period in which France was marked by political unrest and many transitions of power. The lines of conflict between Bonapartists and Royalists, the two major political camps of the time, are reflected in the text. One generation of characters represents the old guard of the Bonapartists who, in the book, are linked with honestly earned money, idealism and sincerity. These characters are juxtaposed with the new guard, the Royalists, who are opportunists and careerists that only make money in morally dubious ways. The Count of Monte Cristo therefore not only addresses personal injustices, but also the political circumstances of its time.

Dumas was inspired by real events and places, such as the Château d’If, a fortress off the coast of Marseilles that was used as a prison for a time, and the island of Monte Cristo. In the novel, Edmond Dantès escapes from the Chateau with the help of a fellow prisoner, who also reveals to him the secret location of treasure hidden on the island of Monte Cristo, which Dantès then successfully unearths. If this plot sounds somehow familiar, it’s probably no coincidence. Films and series such as The Shawshank Redemption and Prison Break have adopted this idea and made it popular beyond the context of the novel.

After suffering a great injustice, the character of Edmond Dantès returns to society with a fake name and a new guise, seeking justice. This story has served as a template for many superhero stories. Just think of Peter Parker; after his beloved Uncle Ben is killed at the hands of a criminal, he becomes Spiderman, intent on hunting down criminals from then on.

Now, revenge is not – or not always, at least – to be equated with justice, even if that’s what the avenging hero would like to believe. Often, the act of revenge isn’t even equivalent to the original injustice – as directed by the ‘eye for an eye, tooth for a tooth’ solution. Instead, the revenge mission tends to gather momentum that ends up affecting innocent people, for instance, when it is aimed at family members of the actual culprits. In Monte Cristo too, wives, daughters and sons are killed, despite having nothing to do with the original betrayal of Dantès.

So, what is it about this story of a mysterious count that fascinates readers to the extent that it has been a best-seller practically since it was first published? Perhaps it is the fact that it meets two fundamental needs at the same time. First of all, Dumas’ work is teeming with intrigue, forbidden affairs and human evil, which gratifies readers’ cravings for sensationalist stories. But it also satisfies a deep-seated desire for justice; a longing for the bad guys to get the punishment they deserve at the end.

In order to fund his extravagant lifestyle, Alexandre Dumas had to write countless novels. To do this, he hired an assistant: Auguste Maquet was responsible for the main plot points, while Dumas, a playwright, preferred to write dialogue. A good business model.

This wasn’t the only method used to boost profits. The same material was cleverly used for multiple formats. As soon as enough pages of a story had appeared in the newspaper, they were published again as a book. Following the success of Monte Cristo in print, Dumas turned it into a play. The 20th century brought more adaptations, in the form of musicals, comic books, TV series and countless films. According to estimates, there has been a new film adaptation of the story every 18 months since 1920. The Count of Monte Cristo was therefore perhaps the first successful revenge epic to hit cinemas – but it certainly wasn’t the last.

6.2 ‘I will have vengeance!’: Revenge on the Big Screen

Sweeney Todd – The Demon Barber of Fleet Street. Directed by Tim Burton, 2007.

V for Vendetta. Directed by James McTeigue, 2006.

Kill Bill – Volume 1. Directed by Quentin Tarantino, 2003.

This trend of marketing content on as many channels as possible has become increasingly prevalent over the years. Nowadays, for example, there are entire film franchises such as Star Wars, which produce films, series, action figures, fan merchandise, books and more. The fact that the same story has already been told in other forms of media doesn’t seem to bother anyone. It’s less about novelty value than about successful adaptation. All three of the films we’ll be presenting to demonstrate the various facets of revenge plots have historical predecessors.

In Tim Burton’s Sweeney Todd, the innocent barber Benjamin Barker is wrongfully thrown in jail and, after his release, he takes his revenge on the judge who abused and killed his wife. In V for Vendetta, a freedom fighter seeks revenge against a totalitarian state that has abused its power in order to commit serious human rights violations and conduct illegal experiments on its citizens. And in Quentin Tarantino’s cult film Kill Bill, the heroine Beatrix Kiddo seeks retribution for her own attempted murder. After narrowly surviving this attempt on her life, she embarks on a deadly mission to slaughter her ex-husband and everyone else involved, one by one.

All of the films presented at this stop contain excessive and graphic depictions of violence. In Tarantino films, blood just gushes out of people as they’re slashed open – and Kill Bill is no exception. The barber in Sweeney Todd has a truly macabre hobby; he turns murder victims unceremoniously through his meat grinder, bakes them in pies and sells them in the bakery next door.

If we adopt Sigmund Freud’s approach, we could speculate that in today’s highly controlled, regulated and video-monitored world, we are seeking an outlet for our archaic fantasies of violence. Art and entertainment have always provided a space where audiences can vicariously experience those emotions and fantasies.

At the same time, films create a safe distance from these violent acts. For example, Sweeney Todd achieves this through historical distance, as well as its exaggerated style and musical numbers.

Revenge is never a response to a twist of fate; it is always a response to the deliberate actions of other people. You can’t take revenge on nature, but you can on a person. This is exactly what Sweeney Todd sings about: ‘Because in all of the whole human race / Mrs. Lovett, there are two kinds of men and only two / There’s the one staying put in his proper place / and the one with his foot in the other one’s face. . . I will have vengeance.’ Judge Turpin, who wilfully abuses his power for selfish purposes, is ‘the one with his foot in the other one’s face’. And for that, he must pay.

By the way, the story of Sweeney Todd was first published around the exact same time as Dumas’ The Count of Monte Cristo, and in a serial format too. Here’s an illustration that accompanied the story, which in 1846-7 was still published under the title The String of Pearls. It was sold as a ‘penny dreadful’, a type of cheap, sensational novel that was very popular in England at the time.

There are also a number of parallels between the plots of Sweeney Todd and The Count of Monte Cristo. In both stories, the adversary covets the hero’s wife and, with the help of a corrupt justice system, wrongfully sends him to prison. Both heroes return from prison under the guise of new identities to seek revenge. Lastly, both protagonists come from humble backgrounds, meaning that the two stories also spotlight the struggle of an ordinary man against the more powerful members of society.

‘Vendetta’, a term borrowed from Italian, essentially means ‘blood revenge’ and refers in particular to retaliatory strikes against enemy family members in the context of a feud. Any reference to this in V for Vendetta is very loose, as the film’s story is about a political activist taking revenge on the state. As well as abusing practically all civil and human rights, the totalitarian regime has conducted cruel experiments on him and others. After barely surviving these experiments, our protagonist adopts the alias ‘V’ and sets out to exact his revenge by killing leading members of the regime and blowing up the houses of Parliament.

V for Vendetta is inspired by a true event in English history. On 5 November 1605, there was a plot led by Guy Fawkes that attempted to blow up the Protestant King James I, as well as the houses of Parliament. The ‘Gunpowder Plot’, as it became known, was intended to be a retaliatory strike in response to the oppression of the country’s Catholics. This assassination attempt was not successful, but it has become deeply embedded in English national identity. It is commemorated every 5 November with fireworks; some celebrate the triumph of the monarchy over anarchy, while others celebrate the underground resistance to the government.

Following the publication of the V for Vendetta graphic novels by Alan Moore and illustrator David Lloyd in the 1980s, V’s mask, which is supposed to be reminiscent of Guy Fawkes, became increasingly popular. But it is only recently, since the 2005 film version, that the Guy Fawkes mask has developed a life of its own and become a symbol for the struggle against repressive regimes in general. First, they were worn by the online activists of Anonymous, then by Occupy Wall Street protesters in 2011 and then, very recently, by the protesters in Hong Kong.

Quentin Tarantino and the theme of revenge are so closely entwined that you could probably create an entire exhibition dedicated purely to that. Revenge is a dominating theme in almost all of his films. And there’s a particular element that his revenge plots have in common:

In the story of the films, the oppressed minorities of real history get a chance to take their revenge on their oppressors. For example, we see Jewish people taking revenge on the Nazis in Inglorious Basterds, black slaves taking revenge on slave owners in Django Unchained and an abused woman taking revenge on men in Kill Bill.

Kill Bill’s heroine, Beatrix Kiddo, is shot by her husband and business partner while she is heavily pregnant. She loses her child and falls into a four-year coma, during which she is also raped. When she finally awakens from the coma, she can’t go to the police as she herself used to be an assassin and therefore operated outside the state legal system. Nevertheless, we as the audience consider her revenge to be just. The protagonist interprets her miraculous survival as a sign that God is on her side. This symbolism is extremely important, because otherwise she wouldn’t be any better than her ex-husband: she’d be a simple murderer.

Law, justice, revenge – and even forgiveness: however differently these concepts are interpreted, practised and judged, they are at the heart of every society made up of people. People who carry within them the capacity to do wrong. And who will have to live on with those whom they wronged.

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