German artist Ottmar Hörl's controversial Nazi-mocking gnomes
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Further muddying the issue is the fact that the Munich Institute has already published a scholarly edition of the diaries of Joseph Goebbels. Why ban a scholarly edition of Mein Kampf when the Nazi propaganda boss's diaries are available, asks Möller. In the hope that Bavaria might one day lift the ban, the Institute is preparing an edition of Hitler's book. Meanwhile, Germany's Central Council of Jews has said it backs the publication of an edition that would take a critical look at Nazism.
Thanks to the Internet, of course, anybody interested in reading Mein Kampf can just order a copy. And there are other ways of getting around the laws. When Broadway hit The Producers — in which two theatrical producers attempt to oversell financial stakes in a surefire flop about Nazi Germany — opened in Berlin earlier this year, it sidestepped the swastika ban by using stylized pretzels instead. For some Germans, the inventive solution — adhering to the law while winking at it — was further proof that attitudes to the past are changing.
Not so fast, says Florian Jessberger, professor of criminal law at Berlin's Humboldt University, who believes vehemently that the laws should stay. "The criminalization of the use of Nazi symbols ... is justified because of Germany's Nazi history and Germany's historic responsibility," he says. "Germany's criminal legislation has a special symbolic significance." Jessberger says the laws could even justifiably extend to Hitler-saluting gnomes. "You could argue the garden gnome doesn't endanger public peace ... because as a work of art it poses no concrete danger. However, under existing criminal law, the mere abstract danger of harming the state and public peace is sufficient to establish criminal responsibility."
Another argument for keeping the laws is that they serve as a sign of respect for Holocaust victims, allowing survivors in Germany to live their lives without having to confront Nazi symbols or reprints of Mein Kampf. Some Germans are also still uneasy about simply lifting the anti-Nazi laws and moving on — not just because of lingering guilt, but because of the resurgence of far-right groups and political parties. "We need to keep the current strict anti-Nazi laws to protect people and their basic rights," says Hajo Funke, professor of political science at Berlin's Free University. "Far-right violence is on the rise and we have to contain it."
Reformists, though, believe the laws don't fit into a modern system of criminal law and should be abolished. "Germany's anti-Nazi criminal laws are highly problematic, because they can't be justified rationally," says Tatjana Hörnle, professor of criminal law at Bochum University. "The prohibition of Nazi symbols protects a taboo of particular historical significance. But the task of criminal law should be to protect individuals from harm and not people's feelings or taboos."
Those who want change argue that more than 60 years after the Holocaust, Germany's democratic system is stable enough to deal with far-right extremism while also allowing people to display or study symbols of the Nazi era. Younger Germans and many from the old East Germany are less angst-ridden about their country's history. Artist Hörl, who's now receiving requests for his gnome from around the world, says he's glad his work has put the laws under the spotlight. "Germans need to move on from the past," he says. For a country so weighted down by its sense of historical guilt and responsibility, though, moving on is easier said than done.