The Search of the Law
„Human rights are born in the heads and hearts of human beings and won with their fists. We therefore owe the concept and reality of human rights to the resistance.“
The search for the law in the history of humanity has been long and full of deprivation. In the following we shall outline its major features. Our main goal is to trace the close entanglements between resistance and human rights without which it is impossible to understand the approach and objective of the Fritz Bauer Library. The works of Fritz Bauer are our constant guide in this.
In his last major essay Fritz Bauer discusses the search for the “true” and “rightful” law that we are all concerned with and which has often resembled, and still resembles, the confusion of wandering through a labyrinth. In his opinion the history of human rights has not progressed in a straight line but is a continuing search for law and justice with highs and lows, and is marked by resistance and disobedience. Against narrow interpretations in the history of ideas, Bauer spoke of a “struggle for the rights of humans”, emphasizing that human rights first have to be arduously wrested from the ruling powers. This struggle runs like a guiding thread through the history of humanity and is still as necessary as ever. Bauer saw resistance and human rightsalways as two sides of the same coin: no resistance without human rights and no human rights without resistance. When we follow this (historical and legal) interpretation, the horizon widens and human rights appear as the heritage of the whole of humanity because resistance has been practiced everywhere and at all times.
The History of Resistance as the Struggle for the Rights of Humanity
“Resistance is a natural right, an inborn right. (…)
It is the right to life that corresponds to the survival instinct.”
It would be wrong to assume that the right to life discussed by Bauer is confined to mere “vegetating.” Instead, it refers to the right to an existence in human dignity in the here and now, with everything this implies. Bauer saw the ethical foundations of such an existence in the Golden Rule, a concept found in the writings of Confucius (ca. 551–479 BCE), in Buddhism, in Hinduism, in Judaism, and much later in Christianity:
“Do unto others as you would have them do unto you.”
Yet the enormous importance of the Golden Rule in the history of human rights cannot conceal that it has occurred in societies which systematically flouted it and denied humane living conditions to the majority of the population. What would have been the point of positing a Golden Rule if everyone was already acting according to it?
This reveals a glaring contradiction between desire and reality, ideal and practice, and law and reality that runs right through the history of humanity and still exists in the 21st century. This contradiction causes “unrest” and provokes resistance against inhumane conditions. As Arthur Kaufmann so aptly states, “The essence of the law is resistance against injustice.”
Resistance itself, the refusal to accept injustice, can appear in widely differing forms. First, as the active resistance of the “suffering creature” or as an emergency defense when the rights of others are at risk. Active resistance culminates in tyrannicide, which is expressly condoned not only by the Old Testament but also by Confucius’ most important successor, Mencius (ca. 370–290 BCE). Mencius (Meng Tzu) believed that “A ruler who contravenes the cardinal virtues of ren 仁 (humanity) and yi 義 (lawfulness) has forfeited the status of a ruler. It is therefore permitted (…) to kill him.”
In ancient Greece, tyrannicide was institutionally protected by the oath against tyrants (ca. 500 BCE) and the Tyranny Law of Ilion (ca. 275 BCE). It is true that tyrannicide is a borderline case of active resistance but Bauer argued that acknowledging it legitimated other forms of resistance that were not aimed at killing tyrants. For Bauer, the decisive criterion was that the resistance is an appropriate reaction to the legal violation and serves the struggle for human rights. In this situation it is not of primary importance whether the resistance is acting against individuals or a rogue state that tolerates injustice or perpetrates injustice itself. In Bauer’s view the slave rebellions in the Roman Empire fulfilled this criterion and can be cited as examples of active resistance. We can consequently regard the words of the famous gladiator and rebel leader Spartacus (who died in 71 BCE) as a resounding call for a dignified human existence: We should dedicate our life not to spectacles but only to freedom.
To be sure, resistance should not be reduced to active opposition, let alone tyrannicide – it can also be take a passive form. A prime example of this is the Greek philosopher Socrates (469–399 BCE) who was summoned one day to his local city hall with four other men and told to fetch a man who was destined to be killed. In his famous speech in his own defense Socrates described how he reacted to the task: (…) For the strong arm of that oppressive power did not frighten me into doing wrong; and when we came out of the rotunda the other four went to Salamis and fetched Leon, but I went quietly home. Socrates refused to be implicated in the dark deeds of tyranny. He rejected playing along, and practiced passive resistance. In so doing he followed the precepts of “good law,” which he valued more than the actual laws of the ruling powers. He could not reconcile being an accessory to murder with this supralegal law, and his counterposing of good law on the one hand with the government’s unlawful order on the other created a contradiction that necessitated an act of resistance. This is the basis of Fritz Bauer’s understanding of revolution: it meant putting an end to injustice and re-establishing the rule of law.
Although the detailed content of “good law” was not yet spelled out in Cicero’s times, in the works of Cicero (106–43 BCE) it had already assumed a universal character: “Who could rightly call ‘human’ someone who desires no bond of shared law, no link of human nature with his fellow-citizens or indeed the whole human race?”  The path from the law Socrates referred to, and which underpins Cicero’s words, led onward to two significant early 13th-century milestones in the struggle for human rights: the Magna Carta and the Sachsenspiegel, the most important law book of the Holy Roman Empire. The Sachsenspiegel states, “A man should also oppose his king when the latter commits an injustice and should actually help to resist him in every way, even if he is his relative and feudal lord.” 
“Where there is much light, the shadow is deep,” Goethe wrote. The dark side of the Sachsenspiegel was unarguably that only men were granted the privilege of invoking the law. Women were excluded per se. Similarly, the Magna Carta declared: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way (…) except by (…) the law of the land.”  The emphasis here is on the “free man,” meaning not all men but exclusively the wealthy, the members of the aristocracy. The Magna Carta was of no use to anyone else. It left the majority of the population to live as vassals, exposed to the violence and despotism of the ruling powers.
Centuries would pass until equal (formal) rights were achieved for all human beings without exception. The peasant uprisings that took place from the 14th to the 18th centuries represented a crucial step in this direction. Basically the peasants directed their active and passive resistance against the aristocracy and clergy who became rich at the peasants’ cost and prevented them leading a humane existence. The peasant leader Thomas Müntzer (1489–1525), known as the “theologian of the revolution,” described this sorry state of affairs clearly: “(…) the foundations of profiteering, theft and robbery are our lords and princes; (they) take every creature as their property: the fishes in the water, the birds in the air, the plants on the earth all have to belong to them (Isaiah 5) (…) If I say that, I must be rebellious – so what, I am!”  Thomas Müntzer’s accusation shows that the struggle for human rights was, and still is, not “only” a struggle for the right of political participation but also for (existential) economic rights.
This was also expressed in the Twelve Articles of 1525 of the Upper Swabian peasants, whose demands included that meadows and fields that had been illegally appropriated by the ruling lords should return to common property. This period also saw the resistance of the Dominican friar Bartolomé de Las Casas (ca. 1484–1566), who sharply criticized the wars of extermination conducted by the Spanish conquistadors in Latin America and referred in an essay to the Reglas de los Derechos Humanos (the Principles of Human Rights).
The Stony Road to our Modern-Day Human Rights
While Bartolomé de Las Casas was a pioneering critical intellectual, it was England, not Spain, that became the home of oppositional rights. The hard-won Magna Carta had achieved the basis for this, and with the Petition of Rights (1628) and the Habeas Corpus Act (1679) the emerging conception of human and civil rights – whose contours were already clearly visible in the Levellers movement – gradually migrated toward North America. There, the American Revolution against the British colonial rule resulted in the American Declaration of Independence of 1776. This declaration, which introduced a “revolution of rights”, demonstrates the close connection between human rights and resistance. It begins by stating: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  And furthermore: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it (…).” 
In other words, what was revolutionary about the Declaration of Independence is not least that it established the right to revolution. The French Revolution began shortly afterward, sweeping away feudal rule and culminating in the Declaration of the Rights of Man and of the Citizen. It contains the key passage: “The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”  Yet the great achievements of these two declarations should not blind us to their deficiencies and failures. The French civil rights campaigner Olympe de Gouges (1748–1793) criticized the patriarchal character of the French declaration and protested by composing The Declaration of the Rights of Woman and of the Female Citizen, in which she unambiguously stated:
“Woman is born free and remains equal to man in rights.” 
A further deficiency was pointed out by Toussaint Louverture (1743–1803), who played a key role in the Haitian revolution and who is credited with having demanded universal human rights for slaves and Black people. The occasionally vehement reactions against the demands of Olympe de Gouges and Toussaint Louverture show that equality between all human beings was actually seen as equality for white, “rational” European men.
As one modern-day commentator writes, “…in other words, what was generally called ‘humanity’ was confined to the interests, categories, classes, tribes, races, civilizations and cultures under consideration.” This blatant contradiction can probably best be summed up by the words of the writer and resistance fighter George Orwell: “All men are equal but some are more equal than others.” It is consequently hardly surprising that in the course of the “long” 19th century the proclaimed human rights were increasingly undermined, alienated and instrumentalized until they were swamped by colonialism, nationalism and racism, and vanished into obscurity. Even the workers’ movement, which had grown stronger and had officially declared support for the struggle for human rights, was unable to halt the negative trend. The gap between what actually was and what should be, between reality and good law, became ever wider. The Nazis knew only too well how to fill the void with their inhuman policies, which aimed at dehumanizing everyone who did not conform to their racialist ideology. In the end, the few people who summoned the courage to resist Nazi barbarism – such as the democratic socialist Fritz Bauer, who was actively involved in the Reichsbanner Schwarz-Rot-Gold, the organization for protection of the Weimar Republic, and who emigrated to Denmark in 1936 after being interned in a concentration camp – could not prevent the mass murder of millions of people organized on an industrial scale.
Following the liberation of Germany from the unlawful Nazi regime, in the late 1940s the newly established United Nations came to the groundbreaking conclusion that the non-recognition and contempt of human rights should be seen as decisive preconditions for atrocities. The search for the law was intensified and finally resulted in the 1948 Universal Declaration of Human Rights, which unconditionally recognized the innate dignity and equal inalienable rights of all members of the community. This subsequently became the basis of many human rights declarations and helped to win worldwide acceptance for the idea of human rights. The UN declaration, like the American and French declarations, incorporates the idea of resistance in its preamble, stating that human rights must be protected by the rule of law “(…) if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression (…).”
The search for the law appears like a beacon not only in the formulation and adoption of the Universal Declaration of Human Rights, but also in the Nuremberg Trials of the same period that brought some of the major criminals of the Nazi regime to justice for their crimes against humanity. In fact, dealing with injustice is an essential part of the search for the law. Fritz Bauer was well aware of this connection and was concerned with making a contribution to the process of coming to terms with the past. For him, this meant “(…) to sit in final judgment over ourselves, in final judgment over the dangerous factors in our history and, last but not least, over everything that was inhumane here, which will lead at the same time to an avowal of true human values in the past and the present.”
This was precisely the mission of the “euthanasia” trials of Nazi doctors and the Auschwitz Trial, as well as the Remer Trial in which Attorney General Fritz Bauer succeeded in rehabilitating the men who planned the attempted assassination of Hitler on July 20, 1944.
The Struggle for Human Rights is still Necessary
The fact is, however, that critical examination of past injustice and adoption of the Universal Declaration of Human Rights does not resolve the contradiction between what exists and what should be. “Anyone who studies human rights theoretically or practically will hardly avoid the disappointment of discovering that human rights are often not implemented in reality or are massively violated.”
The genocide in Ruanda, the Srebrenica massacre and the deaths of migrants in the Mediterranean are sad examples of this – not to mention the millions of starving and exploited people who are still denied an existence in human dignity today. It is clear, looking at the picture of worldwide injustice, that resistance in the sense meant by Fritz Bauer, with the goal of attaining domestic and foreign human rights, is as necessary and imperative as ever. Resistance means not only something that existed in earlier times or is only a topical issue for other people, but something that affects us all here and now.
“We cannot make heaven out of earth but each of us can do something so that it does not become hell.”
The search for the law is by no means over and the struggle for human rights must go on.
Author: Stefan Schuster (MA, Pedagogue)
Fig. 1: Fritz Bauer, ©Unknown author /Political Archive, Friedrich Ebert Stiftung – Fig. 2: Sachsenspiegel, ©(public domain) – Fig. 3: Declaration of Independence, ©(public domain) – Fig. 4: Eleanor Rossevelt, Allgemeine Erklärung der Menschenrechte, ©Unknown author / Public domain.
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Walter, Tasia Tamara (2019). Der Staat als Sicherheitsgarant? Sicherheitsverständnisse, Sicherheitserwartungen und Sicherheitsverheißungen des Staates im Umgang mit neuen terroristischen Bedrohungslagen des 21. Jahrhunderts. Baden-Baden: Tectum Verlag.
Wojak, Irmtrud (2016). Fritz Bauer. 1903–1968. Eine Biographie. Munich: BUXUS EDITION. English edition: Fritz Bauer. A Biography, trans. Blauhut, Adam and Margolis, Karen. Munich: BUXUS Edition 2018.
 Cf. Bauer 1966, pp. 11 and 14. For the important distinction between “struggle” and “war,” see Bloch 1972.
 Bauer 2018, p. 446.
 Cf. Nguéma 1990, p. 301.
 Cf. Bauer 1965, p. 300.
 Kaufmann 1991, p. 6.
 “Resistance encompasses all forms of violent and nonviolent, of active and passive behavior …” (Bauer 2018d, p. 985). Moreover, Fritz Bauer distinguished between “total resistance” to a state that had suspended human rights, and “partial resistance” to a state that had “merely” restricted or violated human rights (cf. Fröhlich 2006, p. 373).
 Bauer 1965, p. 301.
 Cited in Müller 2001, p. 128. English translation adapted from: https://plato.stanford.edu/entries/mencius/
 Bauer (2018e) states, “Everyone is entitled, but is, of course, not obliged to active resistance against crimes such as tyrannicide, for example.” (p. 1369). In this context he wrote, in relation to the unjust Nazi state, “Everyone was legally entitled, in the interests of urgent defense and protection of the endangered Jews etc. … to kill Hitler, Himmler, Heydrich, Kaltenbrunner, Müller, Eichmann and the lesser henchmen in the hierarchy of the ‘Final solution to the Jewish question,’ for example.” (Bauer 2018c, p. 885).
 Cf. Bauer 2018d, p. 985.
 Cited in Behringer 2012, p. 64. KM: Finde keine passende englische Version für Spartakus-Zitat. Daher selber übersetzt.
 Cited in Bauer 2018e, p. 1364f. English translation adapted from Benjamin Jowett, Plato’s Apology: https://chs.harvard.edu/CHS/article/display/5304
 In contrast to active resistance, Bauer (2018e) saw passive resistance towards rogue laws, orders and acts of a state as the duty of every individual (cf. p. 1369).
 This interpretation of the law, which Fritz Bauer shared, diametrically contradicts the positivist legal imperative “the law is the law.” See also the discussion by Radbruch 1972 in his article Gesetzliches Unrecht und übergesetzliches Recht.
 More precisely, according to Bauer (2018d): “But since human rights have no statistical content for all time, the struggle for them encompasses not only the restoration of an earlier, lost status, it can also relate to new territory that has to be conquered.” (p. 982).
 Cited in Bauer 2018d, p. 977. English translation Marcus Tullius Cicero, Cicero: On the Commonwealth and on the Laws, trans. James E. G. Zetzel, Cambridge: Cambridge University Press 1999, p. 48.
 Cited in Bauer 2018a, p. 671.
 Goethe 1984, p. 24. English translation from Götz von Berlichingen: https://oll.libertyfund.org/titles/goethe-goethes-works-vol-3-goetz-von-berlichingen-iphigenia-in-tauris-tarquato-tasso-etc
 Magna Carta 1215, clause (39) https://www.bl.uk/learning/timeline/item95692.html
 Cf. Nguéma 1990, p. 301.
 Bloch 1985.
 Münzer, cited from Hohnsbein 2010, p. 24.
 The philosopher Ernst Bloch (1986) hit the nail on the head when he wrote, “There can be no true installation of human rights without an end to exploitation, no true end to exploitation without the installation of human rights.” Ernst Bloch, Natural Law and Human Dignity, MIT Press 1986, p. xxix.
 Ottmann (2006) states that “The Levellers demanded extension of voting rights and, after the Spanish Late Scholastics, they were the first to develop the theories of land rights and human rights.” (p. 324). The argument of Thomas Rainborough in the famous Putney Debates of 1647 are a good example of the Levellers’ position. He spoke out against slavery and enclosures and staunchly advocated the rights of the most impoverished (cf. Linebaugh and Rediker 2008, p. 116ff.).
 Referring to Berman, Brunkhorst (2012a) argues that all great revolutions are “revolutions in rights” (cf. p. 99).
 Cited in Bauer 1965, p. 148.
 Cited in Walter 2019, p. 72. English original https://avalon.law.yale.edu/18th_century/rightsof.asp clause 2.
 Cited from Blättler 2012, p. 67. English translation https://www.olympedegouges.eu/rights_of_women.php
 Cf. Nguéma 1990, p. 301.
 Cf. Orwell 2013, p. 97.
 Hobsbawm 2017.
 Bauer 2018 f., p. 905.
 Cf. Wojak 2016, p. 230ff., 298ff. and 342ff. and Fröhlich 2006, p. 31ff. and 283ff.
 Degener 2009, p. 161.
 Cf. Kaufmann 1972, p. X.
 Bauer 2018, p. 456.
Quote: Stefan Schuster, “History of Human Rights. The Search for the Law,” URL: https://www.fritz-bauer-forum.de/en/menschenrecht/history-of-human-rights/