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The Unethical Aesthetic? A Commentary on the Gurlitt Case

Bundesarchiv Bild
Prior to its opening, Hitler, Gerdy Troost, Adolf Ziegler and Joseph Goebbels visit the House of (German) Art, 5 May 1937

This article is a response to Anna Blair’s essay ‘The Politics of Hidden Images’.

“It is self-evident that nothing concerning art is self-evident any more, neither its inner workings nor its relation to the whole, not even its right to exist.”
– Adorno, Aesthetic Theory

‘Gurlitt’ has already become a scenario word for one of the most notorious cases of art history after World War II. It concerns the inherited collection of 1,406 art works stored for over thirty years in an apartment in the district of Schwabing, formerly student, now wealthy university and museum quarter in Munich. The ‘Gurlitt case’, as Anna Blair traces in her article in this magazine, is a prism for a nexus of hitherto not unrelated but rarely ever so intertwined (art) historical, moral, political, and economic conundrums. Throughout this commentary, I wish to attend to the interlocking of these aspects, casting an anthropological glance at the German cultural historical background to and implications of this case. Key to my discussion is the relation between aesthetic experience and ethical judgement.

In their seminal collection Art and Morality (2003), philosophers Bermúdez and Gardner rightly point out that almost across the disciplinary spectrum, philosophers have been interested in understanding the nature of judgement and reasoning. It is no surprise then that philosophers attending to artworks have addressed the nature of aesthetic judgement. Aesthetics, after all, has long been regarded as the study of or rules for the judgement of beauty.

Since the philosophically posited causality between ‘being good’ and ‘looking good’ had arguably escaped sustained and critical scrutiny until Adorno and others proposed that a study of moral and aesthetic principles also requires an analysis of their potential negation (cf. Geuss 1999 and Geuss 2005), moral judgement and aesthetic judgement have a long (analytical) affair. Yet, much like the study of morality, the analysis of aesthetic judgement frequently and historically relied on the distinction between two opposing ideas: some believed that it was useful and possible to devise a set of universal standards for the judgement and study of morality (or aesthetic judgement for that matter), while others suggested that such a compilation would in itself form just another form of morality or aesthetic ideology and we should instead be looking for an analysis of the particular features and qualities of the subject or object under study. How can we relate these reflections to the historically charged artworks that one cannot untangle from their legal shadow?

I suspect that the wisest choice rests somewhere amidst the many shades of grey. The study of ethics and aesthetics may appear neat and sterile when considered on the walls of a white cube or in philosophical debates, but, as usual, it gets messier when you attend to the imponderabilia of human interaction (cf. Putnam 2002 and Rorty 2004, also Laidlaw 2013) In dealing with the complex scenario of “degenerate art” and legal authority, one is bound to attend to the tricky intersection of ethical and aesthetic judgement.

Law and morality
Arguably, the Gurlitt case is intricately tied to Germany’s exceptionally complicated role in manipulating social, ethical and also aesthetic systems in the first half of the twentieth century, particularly during the period of the Third Reich (1933-1945). The National Socialist politics of Gleichschaltung, literally meaning ‘making equal’ describes a system of totalitarian coordination of all aspects of society. The goal of these processes, embodied among other things in a series of laws (Gleichschaltungsgesetze), was the ‘forcible-coordination’ (Richard J. Evans) of private and public thought and behaviour. It culminated in the 1935 Nuremberg Rally when the NSDAP became the de facto state party and its doctrines law.

These laws and their application put an end to the lively German intellectual public sphere of the Weimar Republic, which throbbed with political and social activism. German Gleichschaltung intertwined law, justice, and violence in a peculiar way. Walter Benjamin offered a suitable analogy in his ‘Critique of Violence’: “a cause, however effective, becomes violent, in the precise sense of the word, only when it bears on moral issues. The sphere of these issues is defined by the concepts of law and justice.” Benjamin suggests that the relation between power, law, violence, and morality is particularly resilient in a fascist state because the acts of law-making and law-preservation are both mapped onto each other. However, not just fascism conjoins legislated power and violence. As Derrida’s Force of Law rightly states, law always already implies “in itself, a priori, in the analytic structure of its concept, the possibility of being ‘enforced’, applied by force”. For Derrida, his description of the a priori link between force and law is summed up in Pascal’s dictum “justice without force is impotent, force without justice is tyranny”. While Benjamin and Derrida have ventured into the territory of art and power elsewhere, their reflections on law and Gewalt have set up an interesting pathway into the Gurlitt scenario and the questions it raises.

To what extent did the Nazi forced coordination complement its aesthetic base? As Wittgenstein’s writings on the matter already criticised: what was the relation of their essentialist ethics to the subjection of a free aesthetic discourse? Asked differently, what is the relationship between planned aesthetic programmes and the limitation of ethical choice? For the anthropologist Clifford Geertz, who has analysed different forms of totalitarian behavior and ideology, sacrificial political ceremonialism is not a pompous addition to its grandeur. It constitutes it. In a similar albeit not analogous manner, it has been argued that Hitler’s theatrical performances had helped him arouse the cult that established his party’s aesthetic programme and ethical paternalism.

In 1930s Germany, the Gleichschaltung laws and the social-political system that legitimated and executed them was grounded on an imbrication of fascist bioethical doctrines, legal technocracy, and an ethics of purity and aesthetic judgment. Whether or not this system was ‘uniquely German’ and exceptional was debated by German intellectuals in the 1980s in what became known as the Historikerstreit (historian’s quarrel), but this debate is ongoing. The dilemma addressed by the quarrel was, primarily, the unparalleled scale of violent ethnical cleansing and mass extermination of the Holocaust and whether it could be compared to other genocidal instances in (European) history – or whether an emphasis on its uniqueness would disable a comparative analysis of its causes. Obviously, this debate addressed wider issues of totalitarianism and society, violence and mass psychology, and so on. Adorno and Arendt, but also Baumann and Butler variously analysed the complementarity of technocracy and violence to understand the ‘banality of evil’ of Nazi bureaucracy.

Obviously, speaking ‘banality’ does not deny or bypass the evident fact that eruptions of brutality such as the series of pogroms surrounding the 1938 Reichskristallnacht existed. Instead, it was Arendt’s response to the sheer calculation and to understand the mathematics of historical manipulation and the logic of mass-murder. As Judith Butler put it,
there were at least two challenges to legal judgment that [Arendt] underscored, and then another to moral philosophy more generally. The first problem is that of legal intention. Did the courts have to prove that Eichmann intended to commit genocide in order to be convicted of the crime? … Arendt wondered whether a new kind of historical subject had become possible with National Socialism, one in which humans implemented policy, but no longer had “intentions” in any usual sense. To have “intentions” in her view was to think reflectively about one’s own action as a political being, whose own life and thinking is bound up with the life and thinking of others. So, in this first instance, she feared that what had become “banal” was non-thinking itself. This fact was not banal at all, but unprecedented, shocking, and wrong.
Butler’s summary refers to a strand of thought that conjoins arguments by the Frankfurt School with MacIntyre’s description of modern virtues. Drawing on metaphors developed by Max Weber, Max Horkheimer argues in The Eclipse of Reason that “[t]he individual once conceived of reason exclusively as an instrument of the self. Now he experiences the reverse of this self-deification. The machine has dropped the driver; it is racing blindly into space”. Instrumental rationality, so he wrote elsewhere, describes reasoning that places operational ends above the virtue of a reflected means; subjects become tools, roles and the Nazi bureaucrat its embodied executioner.

This description also applies to the Nazi art world. Scandalising or singling out the Gurlitt scenario as a ‘unique’ case doesn’t help us understand the causes and mechanism behind it. On the one hand, it is understandable and important to highlight the foregrounded meticulous legal analysis taking place with regard “degenerate art” and, therefore, to suggest attending to the aesthetic qualities or the lacunae in the history of art that the found artworks might cover up or question. Since a particular fascist logic and reasoning singled out certain aesthetic strands and judged objects within them on ethic and moral terms, there is no “pure aesthetic quality” to which one can refer back. Aesthetic quality, in this instance, necessarily directs you to the ethico-political mechanisms that created it.

In The Inhumanities, David Dennis describes the Nazis’ large-scale manipulation and mobilisation of “European literature, philosophy, painting, sculpture, and music in support of its ideological ends.” He shows how culture became a central propaganda tool both for national and socialist self-fashioning and against any group or cultural current not along official party lines. The conception of the Third Reich as the apex of Western civilization was propagated in a way that manipulated and rewrote art histories, personal biographies, and institutional aesthetics to echo the state’s authoritarian and militaristic anti-semitism and discriminating doctrines. Analysing the official NSDAP newspaper, Der Völkische Beobachter, Dennis explores how great German figures such as Luther, Goethe, Wagner and Nietzsche, but also Socrates, Michelangelo and Beethoven were interpreted to fit the state aesthetic rhetoric. As I outlined in the aforegoing paragraph, this aesthetical subjection to an instrumentalist ethics applies equally to the regime’s willing intellectual and artistic collaborators.

Just as the National Socialist government developed their own affirmative ethico-aesthetic stance, they also rejected and denounced. Following propaganda minister Joseph Goebbels’ “decree about the disappropriation of products of degenerate art” announced in late may 1938, some 21 000 works of art were confiscated. Originally envisaged as temporary confiscation, Goebbels noted in his personal diaries: “We also hope to make some money with this rubbish” (Weltkunst report, No. 82, January 2014). In 1938, the so-called “commission for the liquidation of the products of degenerate art” (Kommission zur Verwertung der Produkte entarteter Kunst) delegated four art dealers, among them Hildebrand Gurlitt, to sell of the artworks at a 5-25% commission.

Unsurprisingly, Hildebrand Gurlitt could find his prominent niche in this state-coordinated process of cultural reinterpretation, manipulation, and opportunistic patronage. He was far from being the sole, albeit a particularly self-concerned and proud mediator between auctioning houses and international art collectors. Thus, while the Gurlitt’s find was of an unanticipated scale, it would be dangerously misleading and ignorant to scandalise its ‘singularity’. While 300 galleries, private collections, and art dealers with registered companies were immediately closed in Berlin after 1933 as a consequence of the Gleichschaltung, several hundred continued to exist and broker. Asked how surprised he was about the Schwabing find, the expert and director of the in-house trust for provenance research in the Solingen Museum, Dr Rolf Jessewitsch, responded: “Not at all. Since, as all of us who study such topics, I knew that there are more collections with interesting material” (Interview, 3 December 2013, FAZ). Jessewitsch makes an important point that brings us back to the Historikerstreit: exceeding attention paid to the supposedly scandalous exceptionalism of this case risks ignoring the calculated and therefore repeatedly possible machinery behind the publicly conducted Nazi art trade.

The provenance researcher Willi Korte made a revealing find in the Düsseldorf city archives in late 2013: a correspondence between Gurlitt the Nazi Hans Wilhelm Hupp, director of the Düsseldorf Kunstmuseum from 1933 onwards, who was responsible for many sales of art deemed “degenerate”. Of particular interest for the matter at hand is a 1938 letter exchange between the two concerning the sale of a painting by the Norwegian Edward Munch, whose work greatly influenced German expressionism. Just a year before, the Munich art scene was very active in exhibiting and selling “degenerate art” – Anna Blair explores the significance of the 1937 exhibition. At the time, Hupp waited for approval of the mayor of Düsseldorf to sell the painting to a potential buyer from Norway – with the intention of buying some ‘German masterpieces’ from the revenue. Gurlitt served as an intermediary in this case. Reviewing his activities, he wrote: “I generally have the impression that the way in which I have been dealing in art for several years now has been excellently profitable – morally and economically.” His rhetoric revealed the entrepreneurial self-confidence and his privileged role with respect to the Nazi art market; how credible is such a man’s post-bellum oath that he was put under pressure and persecuted by the Nazis?

Artworks as relational prisms
The fresh turn to Germany’s role in international Provenienzforschung (provenance research) reveals much of the interplay between propaganda visibility and private concealment of collaboration. It is therefore an interesting and tale-telling decision of the newly installed Gurlitt case Taskforce led by Ingeborg Berggreen-Merkel to refer to the global lost-art database connecting research institutions all over the world. More than 400 pieces are already visible and embedded in the online database and provenance research coordination platform lostart.de As Berggreen-Merkel noted in an interview, “because the task force is constituted by about ten experts who are linked through a wide network of institutions and work predominantly online, their location is irrelevant – or, put differently, we can make use of their ability to be in the USA, Israel or France while working on the project collectively” (11 December 2013, SZ).

Seen as prisms to trace dubious Nazi art-trading mechanism, the question whether the engagement with Gurlitt’s hoarded artworks neglects the aesthetic value of individual pieces of art misses an important point: artworks are always already complex intersections of political, aesthetic, and ethical networks. They may be interpreted to affirm or to denounce a worldview, but they are never ‘outside’ either ethics or aesthetics. As philosopher Moulder-Eaton notes in Merit, Aesthetic, and Ethical (2001, OUP), a formalist understanding of artworks “ignore the roles that artworks play in the life of a community and, conversely, ignore the ways in which communities determine the very nature of what counts as artistic or aesthetic experiences that exist within them.” The intersection between a fascist aesthetic and a totalitarian ethics I discussed is also crucial to an analysis of the relationality and patronage of art worlds and art works today. As Luc Boltanski explained in a recent talk, “the building of an art collection is never an individual enterprise.” This process assumes the creation of a community of collectors, … whose interactions are based around the sharing of particular market, political, and above all aesthetic conventions.

Arthur C. Danto once suggested that for us to see something as art requires an art world that defines it as such: a set of ideas for which Ernst Gombrich is a notable precursor. The argument applies equally to the economic as to the moral and the art historical elements of an art world. I would even suggest it nearly always applies to each and all – and more aspects. A more recent debate to which the Gurlitt case speaks is the complex case of ‘relational aesthetics’. The French curator and art historian Nicolas Bourriaud argued in his key text Esthétique Rélationnel (1997) that the theoretical paradigm of the art world since the 1990s has been “the realm of human interactions and its social context, rather than the assertion of a private symbolic space”. The intersubjective encounters of relational art are thus negotiated collectively and not consumed privately and individually. One of Bourriaud’s reference artists Tiravanija suggested, “[m]y work is like the light in the fridge. … [i]t only works when there are people there to open the fridge door. Without people, it’s not art—it’s something else—stuff in a room.”

Since WWII the art market has grown from 500,000 collectors to 450 million “art consumers” today, most of which can be reached via modern online auctioning technologies and sales within minutes from all over the world: in 2012, global online art market transactions accounted for 81% of the total sales. While it is increasingly difficult to determine the boundaries of such an art world, many traceable traditions exist whose attitudes and understandings of aesthetic practices and values we have to study in order to understand the full intersection of the aesthetic and the ethical, the experience and the reflection of the meaning of an artwork. In the Gurlitt instance, any comment on its significance for 20th and 21st century engagements with art therefore needs to take into account the interplay between legality, righteousness and the context of art production and trade. In an economy that treats artworks largely as commodities, and as such with an ambivalent political and moral status, what is their legal status? How do the private and the public intersect (or overlap) in art?

Right and Righteousness: Lex Gurlitt and the Filbinger Affair
Gurlitt already represents an aesthetic, a moral and a legal quagmire. The question is: could it really have been otherwise? My allusions to the Eichmann trial were not overshadowed, but bore the seeds for a much later albeit no less tale-telling case: the Filbinger affair. Hans Filbinger, prime minister of Baden-Württemberg from 1966-1978 was a conservative politician, whose involvement in juridical decisions under the National Socialist regime and continuation in occupied Germany became paradigmatic for failed German denazification. Filbinger was an avid NSDAP-member, voluntary soldier, and served as military judge between 1943 and 1944 in at least 169 cases, among them four death sentences, which he ‘forgot’ or denied later in his life. The case didn’t become public until several authors and journalists, among them Rolf Hochhuth, publicly denounced and demanded an investigation of his activities as a National Socialist. Although Filbinger later corrected the following sentence published in the SPIEGEL in 1978, it stands in for a key aspect of the Gurlitt case: “What was justice [Recht] then, cannot be injustice [Unrecht] today.” Filbinger therein articulated an unwillingness to recognise the shift from one legal system to another – and the legal/moral statements it legitimises.

Following confiscation of Gurlitt’s art works, primarily one question occupied legal specialists and the German state: is there a law that would oblige Gurlitt to hand out the pieces of contested provenance? At the heart of this query are the German statutes of limitation (Verjährung). According to German law, the state’s right to confiscate his pieces, even if they had been stolen or bought under now unrighteous circumstances, is limited to thirty years. Should this be the case, Gurlitt could not be obliged to hand out his artworks. The Bavarian ministry of justice suggested differently. In a communiqué to the Frankfurter Allgemeine Zeitung, it stated: “The German state is currently verifying if a mala fide buyer of artworks dispossessed by the injust NS-regime can rightfully avoid prosecution by referring to the statute of limitation.” While this statement encompasses the possibility that Gurlitt had prior knowledge of the provenance of the pieces he acquired, owned, and stored –the righteousness of his prosecution is still not clear. This exposes a dilemma and, according to the Jewish World Congress, a German faux-pas in their handling of Nazi art dealings. Should the crime not be punishable anymore under German law, the Bavarian minister of justice Winfried Bausback suggested, the German state should consider introducing a lex Gurlitt. This rule would exclude looted art (Raubkunst) from the statute of limitation, and even apply retrospectively to cases already decided.

According to §985 of the German civil law code, the proprietor (Eigentümer) of a piece can rightfully demand back an artwork from a male-fide possessor (bösgläubiger Besitzer) if he can prove that he had been dispossessed of the piece by an injust National Socialist measure (nationalsozialistische Unrechtsmaßnahme) and is unable to claim it back according to the public right of refund (öffentliches Rückerstattungsrecht). Such was the decision of the Federal Court of Justice in 2012 with respect to the placard-collection Sachs, in male-fide possession of the German Historical Museum.

Provenance research, in this instance, addresses the state’s role in assuming legal and moral patronage over questions of ownership and occupancy. While many similar debates have been waged with respect to gender, violence and corporeality, sovereignty and nationhood, or territorial claims, the Gurlitt case concerns not just legal patronage, but also the temporality and historicity of right and righteousness, and their embodiment in the prisms of artworks. To speak of artworks as relational prisms also means understanding the complexity of their patronage (a term that encompasses the legal conflict around ownership and occupancy). Concerning the Gurlitt find, the Bavarian prosecution disclosed that it was of “utmost importance to identify artworks dispossessed by National Socialist measures in order to clarify the questions of legal patronage that are connected to these pieces and to allow their former owners to administer their rights.” Yet to determine this provenance (which, by implication and in dialogue with the statutes of limitation), the Bavarian prosecution relies on the expertise of a specialist Taskforce. It consists of ten experts, among them two representatives of the Jewish Claims Conference. Their task, however, is not just to determine provenance – it is to decide what is right and what is righteous in 21st century art worlds and one of its most complex contexts: Germany.

Legacies and Symbols
On 18 December 2013, German public figures celebrated the 100th anniversary of Willy Brandt’s birth. The late German chancellor and Social-Democratic icon was far from a unanimously accepted public leader. When he returned from his self-imposed exile in Norway under the new name by which he has become known today, his position with regard to German quotidian life was decidedly critical: how could it be possible that so many Germans continued to hold public positions after the Third Reich, how could Germans live with the ethical burden of the Holocaust? His politics have been summarised by the formula “reform in the interior, counteragression outwards”. His arguably spontaneous, albeit symbolic genuflection in front of the Warsaw Ghetto Heroes Monument was one in a series of symbolic and legal gestures that recognised the new German borders and, more importantly for the issue at hand, the German war guilt (Kriegsschuld).

Why do I mention Brandt? Because the Gurlitt case is an extraordinarily spectacular example of the complex resilience of historical, moral, economic, and political connotations embodied in art works – and the German state and public’s reactions to them are therefore all the more under scrutiny. Among the many significant reasons for the German public and the German state’s intense engagement with the case, one stands out: the belief that professional technocratic legal expertise can provide moral guidance and patronage for a pars pro toto art historical coup. Although, indeed, one could also mention the Kulturstaat/Kulturinfarkt debate about the role of the state in supporting the arts: if politics is the struggle over political representation, then political aesthetics is that battle over the image of society, Rancière would suggest. Yet what Brandt did in Warsaw was not just that: he had already signed the Polish-West German bilateral agreement to recognise the new Polish borders. The significance of his gesture was transformed into a German national symbol because it was a humble gesture of guilt – a guilt Brandt felt, like many Germans, on behalf of a grander national identification. I am curious how art curators, not politicians or an expert task force, engage with the national symbolism of a “degenerate art” exhibition in 2014.

Gurlitt could become a national scenario word for the sickeningly petty opportunism of German art dealers during the Third Reich. It could also become an embarrassing reference for the distanced technocracy through which the German state seeks to address what is at heart a moral dilemma. If anything, I propose that we attend to the hermeneutic quality of yet another case of German Vergangenheitsbewältigung. Yet in doing so, I don’t suggest yet another case of shoulder-shrugging, but a recognition of eye-openingly dense imbrication of art, law, and politics – and of the necessity for an interdisciplinary and comparative understanding of aesthetics and ethics.


Jonas L. Tinius (PhD Cantab) is a post-doctoral research fellow at the Centre for Anthropological Research on Museums and Heritage (CARMAH), co-funded by the Alexander von Humboldt Foundation and based at the Department of European Ethnology, Humboldt-Universität zu Berlin, Germany. He studied British and American Studies as well as social and cultural anthropology at the Universities of Münster (Germany) and Cambridge (UK). He completed his PhD on German theatre and political self-cultivation under the supervision of Prof James Laidlaw at the Division of Social Anthropology, King’s College, University of Cambridge (2012-2016). His current post-doctoral research explores how Berlin-based curators, contemporary artists, and art institutions engage with notions of alterity and otherness through critical curatorial strategies to reflect on German and European heritage and identities. He is editor of Anthropology, Theatre, and Development: The Transformative Potential of Performance (Palgrave, 2015, with Dr Alex Flynn, Durham) and convener of the Anthropology and the Arts Network within the European Association of Social Anthropologists (with Prof Roger Sansi, Barcelona). More information: www.jonastinius.com