‘Modern and Genuine Mediaevalism’: Guido Kisch’s Romance with the German Middle Ages—Mitchell B. Hart

Myra Seaman

March 19, 2014

Department of History, University of Florida, Gainesville, FL

Abstract

¶ 1 Leave a comment on paragraph 1 0 During the 1930s and 1940s the eminent historian of medieval German law, Guido Kisch, developed two distinct yet related interpretive strategies that allowed him to respond as a scholar and a Jew to the catastrophe that had consumed Europe. Kisch constructed a medieval Germany characterized by a love of justice and fairness, values derived in large part from the best within Christianity, and that manifested themselves in the positive treatment of Jews. His ideal medieval German jurist was Eike von Repgow, and his lawcode, the Sachsenspiegel, was the supreme expression of this medieval German love of justice. Kisch set this idealized vision of the medieval German and Jewish pasts against contemporary Nazi Germany. In so doing, he also demonstrated another scholarly ideal: unbiased objective scholarship despite personal and professional hardship and loss.

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¶ 2 Leave a comment on paragraph 2 0 ‘Day by day,’ the historian Guido Kisch wrote in 1943, ‘the march of fate teaches that the Jewish people collectively, in the totality of its millions, is subject to its destiny as an indivisible unity. No less clearly is it brought home to us that its struggle for existence is being decisively waged in the domain of the State and the Law.’ The Jews, he continued, do not need the present struggles to remind them of their collective fate, though recent developments have ‘made our hearing keener, our nerves more sensitive to all the currents that strike against the living ego of this people. The contemporary experiences also induce us to revert our eyes and to scan the remote and nearer past for the actual configurations and the legal solutions of the problems which touch the very life-nerve of the Jewish people’ (Kisch, 1943a, 396).

¶ 3 Leave a comment on paragraph 3 1 During the 1930s and 40s, Kisch devoted his scholarly efforts to scanning the medieval German and central European past and juxtaposing it to the present. He was impelled in part by his belief, as he declared repeatedly in his writings, that the discipline of the Wissenschaft des Judentums (Science of Judaism, or Jewish Studies) had been negligent when it came to the history and significance of Jewry law in Europe.[1] ‘Up to the present,’ he wrote, ‘[Jewry law] has almost completely escaped scholarly investigation, historical survey, juridical analysis, and sociological elucidation (Kisch, 1949, 11). Yet Jewry law was central to the unfolding of Jewish life in Europe. It ‘was the determining factor in the legal, economic, social, and, to some extent, cultural life of the Jews’ (Kisch, 1949, 15). Kisch was driven by more than the desire to address a lacuna that he had identified in the world of Jewish scholarship. He was also intent on reminding readers that life for Jews in Germany had not always been as it now was, that in fact if one examined the historical sources objectively one would see that in medieval Germany, at least until the fourteenth century, the Jew could expect true justice and even equality before the law. Moreover, Kisch sought to demonstrate through his own research and writing on the medieval German past the neutral, objective nature of Jewish scholarship in the midst of Nazism and then in the wake of the Holocaust. I argue here that a romanticized, even idealized picture of medieval German law and German society in relation to the Jews allowed Kisch to address these timely themes.

¶ 4 Leave a comment on paragraph 4 0 Kisch had a profound attachment to and faith in the law as such, and not only as a historian convinced of its centrality for our understanding of the past. What emerges from his writings is his firm belief in the deep connection between law, morality, and justice. This faith in the law and in the Rechtstaat as the ultimate guarantors of true civilization was fairly commonplace among German Jews. So, too, was the notion that the Nazis had violated and betrayed the German legal tradition and system, and not, as they claimed, built and expanded upon it. More unusual was Kisch’s idealization and romanticization of medieval German law, and his insistence on the fundamental discontinuity between the Nazi state and the medieval German and Christian Middle Ages when it came to the legal status and treatment of the Jews.

¶ 5 Leave a comment on paragraph 5 0 Born in Prague in 1889, educated there and then in Leipzig, Kisch taught law and political theory at the University of Königsberg, and then at Halle, until he was fired by the Nazis in 1933. He returned to Prague, and then emigrated to the United States in 1935, settling in New York. The image of the German Middle Ages and the place of the Jews within it that Kisch constructed in numerous essays and books between 1934 and 1949, was thus a product of his expert knowledge of the subject and his own experience as both a Jew and a central European. This essay is an examination of Kisch’s writings on the German Middle Ages produced in the 1930s and 40s, and an attempt to draw out or identify a particular interpretive strategy that allowed him to preserve and secure a counter-image to contemporary Germany, one characterized, in the first place, by what he saw as the genuine Christian and German love of justice—which extended to the Jew—and second, by a commitment to an unbiased, non-ideologically driven scholarship.

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¶ 6 Leave a comment on paragraph 6 0 At times, it appears that Kisch believed in a marked continuity between medieval Germany and the Nazi state. In an article on Jewry law past and present, published in the Journal of Central European Affairs in 1943, he wrote that with the Nazis, ‘Jewry-law in concept and concrete reality, which seemed to be buried in the history of law, had suddenly come to life again and become bitter actuality.’ Already in its 1920 Party Platform, the National Socialists declared themselves in favor of a policy that would designate and regulate Jews as ‘aliens’ (Fremdengesetzgebung). According to Kisch, Nazi theory understood this legal designation as a resurrection of the ‘ancient basis of Germanic alien law,’ one that shaped the treatment of Jews throughout the Middle Ages and was, unfortunately, ‘abolished only by Roman law and emancipation.’ This attempt on the part of the incipient Nazi party to ground its ideas about the Jews as aliens in the medieval German past was, Kisch was quick to add, pure fantasy: ‘No such historical link or influence…is demonstrable’ (Kisch, 1943a, 412). Medieval Jewry-law was not based on German alien law. In any case, according to international law, modern alien law, governing foreigners, could not apply to German Jews, who of course were legal citizens of Germany. The National-Socialist understanding of alien law and the status of the Jews were based on a racial definition of citizenship, and the avowal that ‘No Jew can be a member of the Volk community’ (Kein Jude kann Volksgenosse sein) (Kisch, 1943a, 412–13).[2] This principle then was worked out legislatively between 1933 and 1935 through the non-Aryan laws aimed at excluding German Jewry from German society.

¶ 7 Leave a comment on paragraph 7 0 Thus, it would be a mistake, according to Kisch, to insult the Middle Ages, including the medieval Jewry laws, by comparing them to National-Socialist policy or suggesting that the racial laws were a return to the Dark Ages of medieval law and life. Kisch quotes Salo Baron, who remarked immediately after the passing of the Nuremberg laws in 1935: ‘A mere perusal of the basic privileges of medieval Jewry (enacted by Henry IV, Frederick I, Frederick II, etc.) and of the recent Nazi laws reveals the difference between a primarily positive and constructive and a purely negative type of legislation. In short, not emancipation versus medieval status, but emancipation versus an unprecedented, exceptional status has become the paramount issue’ (Kisch, 1943a, 414).[3]

¶ 8 Leave a comment on paragraph 8 2 By 1938, the Nazi goal of placing the party and its political aims above and beyond the legal system had been achieved. The Berlin Appellate Court ruled that it was permissible and necessary ‘to interpret the law to the disadvantage of the Jew.’ ‘It made no sense,’ Kisch wrote, ‘to make rulings or act in such a way as to suggest that the Jew enjoyed equal protection of the law.’ At this point, ‘[t]he stage of self-legalized lawlessness had been reached.’ The laws passed against the Jews ‘have merely a legalistic appearance, the external form of laws, but are contradictory to the fundamental concepts of traditional law. This is not even Jewry-law of the severest medieval type’(Kisch, 1943a, 417–18). Jews were outlaws, beyond the pale of the law.

¶ 9 Leave a comment on paragraph 9 1 In the end, the Nazi state was not a state of laws, according to Kisch. It was, using terminology from Ernest Fraenkel’s work The Dual State (which Kisch describes as ‘remarkable’), a ‘prerogative state’ rather than a ‘normative state.’ The Nazi state, as prerogative state, ‘exercises unlimited arbitrariness and practices violence (‘Massnahmen’—arbitrary measures) unchecked by any legal guarantees.’ By contrast, the normative state sets up and maintains stringent safeguarding of ‘the legal order as expressed in statutes, court decisions, and the activities of the administrative agencies’ (Kisch, 1943a, 415).

¶ 10 Leave a comment on paragraph 10 1 Medieval Germany, then, was for Kisch a prime example of a normative state. And if there is one figure who represents for Kisch the ideal of a medieval Christian Germany it is the jurist Eike von Repgow, whom Kisch calls the greatest German jurist of the Middle Ages. Eike was the author of the Sachsenspiegel, composed in the first half of the 1220s. The Sachsenspiegel was the first and, for Kisch, the greatest of the medieval German law books that set down the medieval Jewry laws. Kisch made the Sachsenspiegel the centerpiece of his 1949 magnum opus, The Jews in Medieval Germany: A Study of their Legal and Social Status, though he dealt with Eike and his lawcode in almost everything he wrote over the two decades under discussion here. The Jews in Medieval Germany was, inter alia, a sustained celebration of Eike and his juridical work, particularly his approach to the Jews and Jewry-law. Eike deals with the questions of Jewry-law ‘without bias, with calm sobriety, philosophic acumen, and a keen sense of justice’ (Kisch, 1949, 38) Throughout, Kisch contrasts Eike’s exemplary sensibility with those who followed him. For instance, Johann von Buch, the author of the Schwabenspiegel, a late fourteenth-century gloss on the Sachsenspiegel, was unduly influenced by canon law and its anti-Jewish regulations. Thus, while the Sachsenspiegel was ‘free from such influence,’ Johann von Buch’s attitude was ‘decidedly anti-Jewish. In his work no trace is found of Eike von Rupgow’s sense of justice, fairness, and objectivity in the attitude toward Jews and in the treatment of Jewry-law’ (Kisch, 1949, 40–41). One might argue that there were in fact two medieval Germanies for Kisch, the one represented by Eike and the other by Johann von Buch. The former began vanishing in the fourteenth century, and the rise of hostility and injustice aimed at the Jews was a sure sign of this.

¶ 11 Leave a comment on paragraph 11 0 In a 1939 article Kisch had presented Eike as the epitome of the ideal medieval Christian, one for whom the love of the law and justice and the love of God were ‘identical.’ The Sachsenspiegel, in turn, was the embodiment of the ‘marvelous synthesis’ of the Christian religion and law (Kisch, 1939, 38–39). Eike’s sense of justice, fairness, and especially objectivity, which Kisch saw at work throughout the Sachsenspiegel, were not matters of celebration only in relation to those medieval German legal commentators who followed him. More pointedly, Eike was a model of German scholarship when juxtaposed to modern antisemitic and Nazi legal scholars. For instance, Kisch takes the legal historian Hans Christoph Hirsch to task for minimizing or even denying the full influence of the Bible on Eike and the Sachsenspiegel (Hirsch, 1936). Hirsch does grant a connection in the great medieval lawcode between God, law, and justice, but he sees these notions as ‘merely the expression of a “childlike, religious, idealistic conception of the essence of law;” they are “primitive views of ancient times that operate in the subconscious”’ (Kisch, 1939, 46).

¶ 12 Leave a comment on paragraph 12 2 Hirsch is incapable of granting the profound spiritual/religious grounding of the Sachsenspiegel because ‘he reinterprets Eike’s entire ideology in terms of the modern National Socialist system of values.’ He has replaced God with the Volk, and a German judge therefore pronounces judgment ‘in the name of the German people,’ as the ‘representative of the German people.’ According to Hirsch, ‘law and language stem from the blood of human beings.’ Law is a product of feeling, rooted in a particular place and people. It is a reflection of national-racial identity. ‘The law of the Sachsenspiegel,’ in Hirsch’s view, ‘is therefore strongly linked with the blood. It is born of the blood of the Eastphalians’ (Kisch, 1939, 46). What Hirsch has done, according to Kisch, is exaggerate the modern German national component and downplay the medieval Christian ethical force in law. The Christian ethical concerns that were central to the medieval sensibility are relegated to insignificance, portrayed as the ‘remains of a childlike-religious primitivism.’

¶ 13 Leave a comment on paragraph 13 0 Kisch, on the other hand, celebrates medieval Christian ethical concerns and sees these embodied in Eike. ‘The figure of the religious person and the keen, honest thinker Eike von Repgow stands before our eyes far too upright and simple in stature and lack of complexity’ (Kisch, 1939, 49). God’s truth is Eike’s truth, Kisch argues at one point: God created all human beings in his image; Christ died the same death for all; and the poor are as near to God as the rich. ‘Eike consciously places at the head of Sachsenspiegel iii 42 these three biblical thoughts from Genesis v, 1 (i, 27), I John ii, 2 and Proverbs xxii, 2: the divine likeness of man, Christ’s death to redeem all, equality of man before God.’ Kisch then adds: ‘Equality of man before God must lead to equality of man before the law’ (Kisch, 1939, 49–50).

¶ 14 Leave a comment on paragraph 14 0 Appearing in the late 1930s, five or six years after Hitler’s assumption of power and the Nazi unmaking, or remaking, of the Rechtstaat, it seems unlikely that Kisch’s celebration of Eike’s absolute commitment to equality before God and law could be read without the contemporary German context in mind. My point is not the obvious one that historians live and work in a particular place and time and this necessarily affects the shape their work takes. Rather, it is what I hope is the more interesting point that we can see Kisch developing an intellectual and methodological strategy that would allow a Jewish scholar to condemn present-day Germany in a scholarly forum without obviating the commitment to objectivity and neutrality. Eike serves as a counter-example to contemporary German scholars whose ideological and political commitments distorted their intellectual judgment. By contrast, Eike ‘proceeds with all the thoroughness, conscientiousness, care, and knowledge at his disposal’ when he comes, for instance, to demonstrate his position on slavery and the Bible (Kisch, 1939, 50). Moreover, Kisch celebrates here and elsewhere medieval Christianity, which he presents as the essential foundation of true justice.

¶ 15 Leave a comment on paragraph 15 0 Kisch’s celebration of Eike, and more generally Kisch’s approach to the Christian German middle ages, served as a demonstration of the sort of objective scholarly approach that Kisch repeatedly defended against the National Socialist approach. After all, here was a Jewish historian, in the 1930s and 40s, writing in the most glowing terms of a German and Christian past. What the Nazis were doing to the Jews in the present should not impede the Jewish scholar’s ability to look on the German past without bias and prejudice, without the lens of subjective, national-racial ideology. Kisch explicitly lambasted the National Socialist approach to scholarship repeatedly in his writings, joining a host of other Jewish and non-Jewish scholars who felt it necessary to respond to Nazism as academics, i.e., through the analytical tools of the humanities.

¶ 16 Leave a comment on paragraph 16 0 It may at first seem strange that during the 1930s and 40s scholars felt it necessary to respond to the scholarship being produced in Nazi Germany and elsewhere in Europe about Judaism and Jewish history (Steinweis, 2006; Weinreich, 1946). Surely the spurious quality of work coming out of the Institute for the Study of the Jewish Question (Institut zum Studium der Judenfrage) and the other academic centers created by the Nazi leadership was self-evident. Yet the books and articles produced by these institutions showed all the hallmarks of academic scholarship. As Max Weinreich noted in his 1946 study Hitler’s Professors, while there was no lack of vulgar and semi-literate writing about the Jews, the Nazis ‘also learned how to handle footnotes and quotations’ (Weinreich, 1946, 20). They published studies on the Jews that built on the existing scholarship in a range of academic disciplines: bio-racial science, anthropology, medicine, demography, history and others. Moreover, they made extensive use of Jewish scholarship in their own work, even as they explicitly denounced it as tendentious by definition (Hart, 2006). As a whole, these writings demonstrate the extent to which the apparatus of serious scholarship was part of the Nazi arsenal. As Michael Burleigh and Wolfgang Wippermann have noted, Nazi scientists, ‘and the card indexes, charts, diagrams, maps, books, articles, and statistics which they produced, were partly responsible for the clinically comprehensive and devastatingly effective manner in which the Nazi racial policies were carried out’ (Burleigh and Wippermann, 1996, 51–52).

¶ 17 Leave a comment on paragraph 17 0 Thus, Jewish scholars believed that the persuasive power of this Nazi scholarship was sufficient enough to merit a response. ‘People by no means anti-Jewish,’ the Jewish historian Bernard Weinryb wrote in 1941, ‘can easily be deceived by its pseudo-scientific air and can readily be induced to take as truth “facts” and theses stated with such disarming “objectivity”’ (Weinryb, 1941, 148). One mode of response was a straightforward engagement with Nazi scholarly studies of Jews, in which the multiplicity of errors of fact and interpretation are identified, and the readers’ attention is repeatedly called to the ideological impetus driving this misinterpretation (Meyer, 1938; Weinreich, 1946; Weinryb, 1941; Weinryb, 1945).

¶ 18 Leave a comment on paragraph 18 0 Kisch does this as well. Almost everything he wrote during the 1930s and 40s related to medieval Germany and the Jews contains an explicit denunciation of the antisemitic and National Socialist approach to scholarship. In some cases Kisch omits any overt systematic discussion of the National Socialist impetus to work devoted to Jewish history, other than to tell his readers that he will not be engaging with this issue (for example, Kisch, 1938). Kisch was critical not only of those scholars who had allowed National Socialist convictions to infuse and shape their work on the past, but also of scholars within the disciplines of the Wissenschaft des Judentums. ‘What we need,’ he wrote in 1934, ‘is a scientific and objective presentation of Jewish history which is free from contemporaneous influence, and aims to approach, as far as possible, the ideal of scientific objectivity. To be sure, this ideal can never be wholly attained; nevertheless, the desire for historical objectivity must be felt throughout the work.’ (Kisch, 1934b, 232). Kisch then quotes the German historian of the Reformation, Willy Andreas: ‘But this [historical objectivity] is possible only if the historian is rigorously just to all forces even those which are not sympathetic to his philosophical or religious point of view’ (Andreas, 1934, 3, cited in Kisch, 1934, 232). This, Kisch insisted, must become the watchword as well of Jewish scholarship, bemoaning the fact that this had been quite slow in developing.

¶ 19 Leave a comment on paragraph 19 0 Obviously, Kisch had no intention of equating Jewish and Nazi scholarship, or of suggesting that the impediments to achieving some sort of objectivity were identical. In the case of the Wissenschaft des Judentums it was a matter of Jewish scholars catching up with normative scholarship, and integrating the newest scientific methods into their research and writing. There was nothing inherent within the world of Jewish scholarship that prevented scholars from striving towards objectivity. Nazi scholarship, on the other hand, had made subjectivity based on racial identity and nationalist goals a desideratum; objectivity, in fact, was denounced as antithetical to German values, identified by many as a negative Jewish impulse. The political or ideological impetus to scholarship was not only acknowledged by Nazi scholars, but demanded as healthy and normal. This was an intellectual turn that had already taken place in some circles during the Weimar Republic, but became normative with the Third Reich. The needs of the German Volk, nation, and race, it was now asserted, ought to be reflected in, and give impetus to, the nation’s scholars and scientists. The striving towards ‘objectivity’ or neutrality which had so preoccupied German scholars such as Max Weber and Ernst Troeltsch a generation before came to be associated with values inimical to the interests of the Volk and Nation (Proctor, 1991, especially ch. 7). Indeed, the very urge for ‘objectivity’ was now identified as a Jewish trait, and therefore supremely un-German. Wilhelm Grau, one of the leading Nazi historians, celebrated the ‘new scholarship’ inaugurated by Hitler’s rise to power, a scholarship not characterized by some ‘falsely understood or reasoned objectivity’ (‘falsch verstandene Objectivität’) (Hoffmann, 2000, 36).

¶ 20 Leave a comment on paragraph 20 0 It was this principled stand against objectivity, driven by Nazi ideology, that Kisch was most keen to combat and undermine. He did this through explicit denunciations that appeared in almost every one of the articles and books he published during the 1930s and 40s. However, his work also contains, as I have argued, an implicit rebuke of what he deemed the violation of the bedrock principles of legitimate scholarship.

¶ 21 Leave a comment on paragraph 21 0 In addition to denouncing explicitly the ideologically-driven work of contemporary Nazi Germany, Kisch constructed an alternative Germany that existed in the Middle Ages, and an alternative, ideal German scholar, Eike von Repgow. Both of these were characterized by what Kisch understood as the genuine Christian values of a love of God and justice, and fair treatment of the Jews. These were evident, for instance, when one looked at the history of the Jewish community in medieval Worms. Whoever is looking to the historian of law, he wrote, for proof of ‘the dark middle ages,’ for the retrogression and removal of Jewish rights on the Rhine, will be astounded at the centuries-long rights Jews enjoyed in Worms. Even the architecture—the structural similarities between the church and the synagogue—testifies to the ‘undeniable integration or interconnection (Verbundenheit) of Jewish life and spiritual/intellectual creation with their surroundings in Germany’ (Kisch, 1934a, 3).

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¶ 22 Leave a comment on paragraph 22 0 Kisch’s own work also served as an implicit rebuttal of what he and many others at the time called Nazi pseudoscience, proof that a Jew could produce serious even-handed scholarship about Germany and its Jews even as his own people were being persecuted and killed in Germany and throughout Europe. This strategy is evident, for example, in his 1942 article on the yellow badge in history (Kisch, 1942). Kisch titles the first section of his essay ‘Modern and Genuine Medievalism,’ wishing to draw a sharp distinction between the modern medievalism of the National Socialists and the genuine medievalism of the Middle Ages.

¶ 23 Leave a comment on paragraph 23 0 The former, Kisch argued, had appropriated so many of the ideas and policies of medieval antisemitism that one might be tempted to believe that in Nazism we merely see a return to ‘the darkest Middle Ages.’ Indeed, ‘[t]racing modern anti-Jewish measures—the prohibition against holding public office and employing non-Jewish servants, confinement to the ghetto, confiscation of personal property, expulsion from the native land, etc.—to their mediaeval roots and models would offer no difficulty.’ Nazism’s ‘only trait of originality’ has been its ability to transform these medieval measures into ‘sharper-edged modern tools.’ Kisch calls this ‘the modernization of mediaevalism,’ a process that ‘shows an unprecedented refinement in force and mercilessness, in disregard for the established principles of law and morals, in complete non-recognition of individual human dignity’ (Kisch, 1942, 5–6).

¶ 24 Leave a comment on paragraph 24 1 Nonetheless, while he appears to find continuity between the actual German past and its present, it is however the discontinuity that he stresses. He reminds readers that the medieval world must be judged on its own terms, ‘with a yardstick entirely different from that to be applied to twentieth century civilization.’ Once this is done, we can see clearly that the Jews in medieval Central Europe ‘enjoyed in normal times a comparatively favorable, lawful and, in certain respects, even privileged position, [and that] the regulations of the Third Reich in recent years reach a level almost unequalled in the history and morality in law.’ The revival of the yellow badge by the Nazis represents, then, ‘an exemplary instance for comparing genuine and modern mediaevalism in the sphere of Jewry legislation’ (Kisch, 1942, 6).

¶ 25 Leave a comment on paragraph 25 0 Kisch’s strategy throughout is to minimize the historical differences between Jews and Christians and to suggest that modern scholars have exaggerated such differences because they are projecting their own modern ideological prejudices back into and onto the ‘genuine Middle Ages.’ While we might imagine that the yellow badge was an unusual or even unique thing, an unprecedented use of dress or fashion to mark Jews as different and inferior, it was in fact the case that the 1215 law introduced by the Fourth Lateran Council was not the first appearance of distinctive Jewish dress and appearance. Recall, Kisch writes, that Jews themselves use dress and appearance to mark themselves off as different: the biblical laws of sha’atnetz (the prohibition against wearing clothing made out of a mix of wool and linen), the fringes with a blue thread on garments, the rules regarding hair and beard—that were followed by Jews in the Middle Ages (and observant Jews until today). And into the seventeenth century, at least, we have evidence of rabbinical authorities ruling on the dress and appearance of Jewish men and women, the latter dealing with sumptuary laws. The differences adopted by Jews in appearance ‘carried no connotation of any diminution in their legal rights or even social standing’ (Kisch, 1942, 6, 10).

¶ 26 Leave a comment on paragraph 26 1 Moreover, it was a mistake to imagine that Jews alone were identified by differences in dress. Such differences applied not only to Jews but to every social class or estate: ‘“Everyone’s position, from beggar to king, is easily recognizable from his clothing,” or as the medieval German saying has it: “junkherren und knehte, gekleidet nâch ir rehte [sic].’” Pictorial evidence comes from the Sachsenspiegel, which shows repeatedly Jews attired in their own garb, along with Franks and Saxons, ‘each type clearly recognizable from costume…No pejorative connotation for the Jews is implied in these pictorial representations’ (Kisch, 1942, 10–11).

¶ 27 Leave a comment on paragraph 27 0 At a certain point Kisch breaks off his analysis of the yellow badge to discuss ‘the Jewish nose,’ which has played ‘a considerable role in recent pseudo-scientific discussion and anti-Semitic propaganda. Is there indeed satisfactory evidence, from pictorial sources, to prove the racist assertion that the so-called “Jewish nose” was clearly recognized as a distinct sign of racial differentiation as early as the Middle Ages?’ Wilhelm Grau made this argument in his book on antisemitism, based on one fifteenth-century woodcut. A Jewish author, Joseph Reidel, unintentionally lent support to Grau’s thesis when he wrote that ‘from the very beginning of European art in the early Christian centuries a ridiculous type was created to represent the Jew’ (Kisch, 1942, 11–12).

¶ 28 Leave a comment on paragraph 28 0 Kisch rejects these arguments, and ‘the Jewish nose’ becomes part of Kisch’s broader argument regarding the non-existence of a systematic antisemitism, including a racialized antisemitism, in Germany before the late fourteenth or early fifteenth century. He grants the existence of anti-Jewish caricatures and their negative impact, particularly after the appearance of the printing press and the mass production and dissemination of propaganda. However, this has nothing to do ‘with the legitimate pictorial representations of Jews which are preserved and can be studied in hundreds of illuminated manuscripts of the Middle Ages’ (Kisch, 1942, 12–13). In these the Jews are represented as different, but not inferior. They are not undignified or debased by the non-Jewish artists representing them.[4] ‘In an intensive study extending over more than thirty years of continental illuminated manuscripts of the Middle Ages, the present writer was unable to discover “Jewish noses” prior to the second half of the fifteenth century. While the Nazi assertion, transparent in its propagandistic aim, can be dismissed without detailed refutation, the Jewish author’s [i.e., Reidel’s] erroneous theory will be thoroughly disproved elsewhere by this writer. The Jew as a despised and decrepit member of an inferior race is by no means the prevailing conception in medieval art’ (Kisch, 1942, 13).

¶ 29 Leave a comment on paragraph 29 0 When he then returns to the yellow badge, Kisch finds something quite similar. Again, he does not deny that at some point in the later Middle Ages the badge and much else in the legal and social status of the Jew deteriorated. However, he insists that when contextualized, we can understand the badge and see that in fact the Jews were not the only ones to be marked off in such a way. The badge must be seen in the context of medieval criminal law, in the more general context in which criminal offenders were publicly shamed as part of their punishment by being forced to wear or carry distinctive items of clothing or objects. This makes sense given the belief that Jews were indeed criminals, having killed Christ. Thus, ‘the yellow sign should mark them off in the same way that other offenders were punished.’ Kisch then finds punishments intended for offending Christians that prove his point: desecrators of the Host were to be punished ‘by wearing a large picture of the Host painted in yellow color on both breast and back’ of the garment; ‘in Augsburg persons guilty of heresy had to wear a yellow cross on the front and back of their garments;’ a debtor in fifteenth-century Tyrol had to wear a yellow disk on his clothing ‘until the debt be paid in full. False witnesses, sorcerers, prostitutes and others were stigmatized analogously.’ And prostitutes and concubines were obliged to wear yellow (Kisch, 1942, 25–27).

¶ 30 Leave a comment on paragraph 30 0 It is worth noting here the way in which Kisch flattens out the various categories of criminality in order to emphasize the notion of the fairness and equality of medieval German law. The social or cultural impetus to criminal behavior is no different in his account than the theological. Kisch seems to be suggesting, for polemical purposes to be sure, that the crime of deicide and the crimes of prostitution, falling into debt, or Host desecration are the same in the eyes of the law because in each and every case the criminal is forced to wear distinct clothing. However, only the Jews are criminals ontologically while all the others are criminals contingently.[5] The Jews are criminals qua Jews. Intent on drawing as sharp a distinction as possible between medieval German and Christian justice and that of the Third Reich, Kisch ignores the similarity, if not the identity, of the medieval and Nazi definitions of the theological or ontological Jewish criminal.

¶ 31 Leave a comment on paragraph 31 0 Kisch ends his essay by charting the slow progress away from marking off the Jew through dress, and then the revival of this practice by the Nazis. ‘Once more the Jew-badge was revived, in the country of Schiller, Goethe, and Kant, and after little more than one hundred years had elapsed since full emancipation had been accorded the Jews.’ He repeats his earlier point that clearly the Nazis made a careful study of the practices and policies of the medieval Church and State. At the same time, he insists, it is ‘needless to point out that the situation was entirely different from that of the Middle Ages’ (Kisch, 1942, 30–31).

¶ 32 Leave a comment on paragraph 32 1 It is not at all clear what he meant by this. The Nazi reintroduction of the badge came after the emancipation and integration of the Jews into Germany, and thus represented a return to or revival of the oppressive policies of the Middle Ages that the Nazis had, according to Kisch, so carefully studied. Yet the entire thrust of Kisch’s work, in this article and elsewhere, was to distinguish between what he called a genuine and a modern medievalism. The former was a period characterized overall, though certainly not entirely, by what Kisch took to be the most important value or moral trait that a society could possess: the love of justice. Kisch did his best to reconstruct (or rather, construct) this ‘genuine medievalism’ in opposition to a modern medievalism practiced by National Socialist scholars. The latter approach assumed uncritically that racial identity and struggle, and especially the struggle between the so-called Aryans and Semites, were eternal realities and values, and it read this racial dynamic back into the German Middle Ages.

¶ 33 Leave a comment on paragraph 33 0 I have discerned two distinct yet related strategies developed by Kisch in his writings on Jews and medieval Germany that allowed him to respond as a scholar and a Jew to the catastrophe that had consumed Europe during the 1930s and 40s. In terms of content, Kisch constructed a medieval Germany characterized largely, though not wholly, by a love of justice and fairness, values derived in large part from the best within the Christian tradition, and that manifested themselves in the overall positive condition and treatment of Jews. The ideal medieval German jurist was Eike von Repgow, and his lawcode, the Sachsenspiegel, was the supreme expression of this medieval German love of justice. Kisch set this idealized vision or version of the medieval German and Jewish pasts against contemporary Nazi Germany.

¶ 34 Leave a comment on paragraph 34 0 Moreover, Kisch’s work itself testified to the possibility of objective unbiased scholarship. In the midst of personal and collective tragedy, Kisch was able to represent in his publications an alternative Germany to the one the world was now seeing, one in which the rule of law and the love of justice reigned, even for the Jews. His own Jewishness, and his expulsion first from Germany and then from Europe on account of the Nazis, did not prevent him, in his view, from objectively representing the ‘genuine’ medieval German past and writing about it largely in positive, at times rapturous, terms.

About the Author

¶ 35 Leave a comment on paragraph 35 0 Mitchell B. Hart is a professor of history and the Alexander Grass Chair of Jewish history at the University of Florida. His latest book is Jews and Race: Writings on Identity and Difference, 1880-1940 (Brandeis, 2011) (E-mail: hartm@ufl.edu).

Notes

¶ 36 Leave a comment on paragraph 36 0 1. By ‘Jewry law’ Kisch meant the legislation and judicial rulings issued by Christian institutions of power affecting Jewish life in Europe. This was to be distinguished from Jewish law or halachah, the body of legal principles and rulings derived from the Bible and Talmud, and which governed much, though not all, of internal Jewish life (e.g., marriage and divorce, dietary practices, etc.). Yet, as Kisch pointed out, even Jewish law was at times subject to the influence of Jewry law.

¶ 37 Leave a comment on paragraph 37 0 2. Article 4 of the National-Socialist Party Platform.

¶ 38 Leave a comment on paragraph 38 0 3. Kisch does not provide a citation or note about where Baron wrote or said this.

¶ 39 Leave a comment on paragraph 39 0 4.  For a more recent analysis of these issues see (Lipton, 1999).

¶ 40 Leave a comment on paragraph 40 0 5. I owe this insight to Hannah Johnson.

• ¶ 41 Leave a comment on paragraph 41 0
• [1] By ‘Jewry law’ Kisch meant the legislation and judicial rulings issued by Christian institutions of power affecting Jewish life in Europe. This was to be distinguished from Jewish law or halachah, the body of legal principles and rulings derived from the Bible and Talmud, and which governed much, though not all, of internal Jewish life (e.g., marriage and divorce, dietary practices, etc.). Yet, as Kisch pointed out, even Jewish law was at times subject to the influence of Jewry law.
• [2] Article 4 of the National-Socialist Party Platform.
• [3] Kisch does not provide a citation or note about where Baron wrote or said this.
• [4] For a more recent analysis of these issues see (Lipton, 1999).
• [5] I owe this insight to Hannah Johnson.

References

¶ 42 Leave a comment on paragraph 42 0 Andreas, W. 1934. Deutschland vor der Reformation, eine Zeitenwende. 2nd ed. Stuttgart, Germany: Deutsche Verlags-Anstalt.

¶ 43 Leave a comment on paragraph 43 0 Burleigh, M, and Wolfgang Wippermann. 1996. The Racial State: Germany 1933-1945. Cambridge, UK: Cambridge University Press.

¶ 44 Leave a comment on paragraph 44 0 Hart, Mitchell B. 2006. Let the Numbers Speak!: On the Exploitation of Jewish Social Science by Nazi Scholars. Simon Dubmow Institute Yearbook 5: 281–99.

¶ 45 Leave a comment on paragraph 45 0 Hirsch, H.C. 1936. Der Sachsenspiegel. Berlin, Germany: Walter de Gruyter.

¶ 46 Leave a comment on paragraph 46 0 Hoffmann, C. 2000. Wissenschaft des Judentums in der Weimarer Republik und im ‘Dritten Reich.’ In Wissenschaft vom Judentum: Annäherungen nach dem Holocaust, ed. M. Brenner and S. Rohrbacher, 25–41. Göttingen, Germany: Vandenhoeck and Ruprecht.

¶ 47 Leave a comment on paragraph 47 0 Kisch, Guido. 1934a. Die Rechtstellung der Wormer Juden im Mittelalter. Halle a.d. Saale, Germany.

¶ 48 Leave a comment on paragraph 48 0 Kisch, Guido. 1934b. Research in Medieval Legal History of the Jews. Proceedings of the American Academy for Jewish Research 6: 229–76.

¶ 49 Leave a comment on paragraph 49 0 Kisch, Guido. 1939. Biblical Spirit in Mediaeval German Law. Speculum 14 (1): 38–55.

¶ 50 Leave a comment on paragraph 50 0 Kisch, Guido. 1942. The Yellow Badge in History.” Historia 4 (2): 89–146.

¶ 51 Leave a comment on paragraph 51 0 Kisch, Guido. 1943. Jewry-Law in Central Europe – Past and Present. Journal of Central European Affairs 2 (4): 396–422.

¶ 52 Leave a comment on paragraph 52 0 Kisch, Guido. 1949. The Jews in Medieval Germany: A Study of Their Legal and Social Status. Chicago, IL: University of Chicago Press.

¶ 53 Leave a comment on paragraph 53 0 Meyer, I. 1938. History into Propaganda: How Nazi ‘Scholars’ Are Rewriting Jewish History. The Menorah Journal 26 (1): 51–74.

¶ 54 Leave a comment on paragraph 54 0 Proctor, Robert. 1991. Value-Free Science? Purity and Power in Modern Knowledge. Cambridge, MA: Harvard University Press.

¶ 55 Leave a comment on paragraph 55 0 Steinweis, Alan. 2006. Studying the Jew: Scholarly Antisemitism in Nazi Germany. Cambridge, MA: Harvard University Press.

¶ 56 Leave a comment on paragraph 56 0 Weinreich, M. 1946. Hitler’s Professors. New York: YIVO.

¶ 57 Leave a comment on paragraph 57 0 Weinryb, B. 1941. Jewish History Nazified. Contemporary Jewish Record 4 (2): 148–67.

¶ 58 Leave a comment on paragraph 58 0 Weinryb, B. 1945. “Nazification of Jewish Learning.” Jewish Review 3 (1): 25–54.