Three lawyers, one decade, one Germany still learning what its own constitution meant.
Horst Mahler, Otto Schily, Hans-Christian Ströbele — all three pulled into the student unrest of the late 1960s, all three lawyers, all three convinced the new Federal Republic’s freedoms were worth defending. Then their paths split so completely that reading them side by side feels like reading three different centuries. Mahler went underground, co-founded the Red Army Faction, and ended his life a convicted Holocaust denier. Ströbele stayed a defence lawyer for the radical left, then became one of the Green Party’s most stubborn parliamentary consciences. Schily defended RAF members too — Mahler in the first trial, then Gudrun Ensslin at Stammheim, alongside Ströbele, who defended Baader — before crossing all the way to the other side of the table, as the Interior Minister who built out Germany’s surveillance apparatus after 2001.
In 1967, before any of that had happened yet, Schily said something worth sitting with — a line I came across this morning in a Ferdinand von Schirach story: “Wir müssen gegenüber der Macht das Argument des Rechts ins Feld führen.” We must bring the argument of law into the field against power.
It was said by a young lawyer, representing a country whose liberal constitutional order was itself barely eighteen years old. The idea that law could stand as a genuine check on power — not a formality power tolerates when convenient — was still being tested, still being fought for in courtrooms and streets at once.
Fifty-plus years on, the sentence hasn’t aged out. It’s aged into something more uncomfortable: we still reach for it, and power still, with some regularity, finds it doesn’t have to listen.
Law that exists on paper and law that constrains actual power are not the same thing. A constitution is a promise, not a mechanism — the mechanism is whatever forces the promise to be kept. Courts. A free press willing to spend the resources tracing where power moved and why. Elections that can actually remove people. International bodies with teeth, on the rare occasions they have any. Civil servants and soldiers who refuse an order. None of it works on its own. All of it fails, sometimes, even working together.
So what does “the people” do when power acts against the law, or against their will, or both — when the argument of law is made and power simply doesn’t answer it?
History’s answer is never one thing. It’s the slow accumulation of several: litigation that keeps losing until, one day, it doesn’t. Journalism that makes the cost of an abuse public even when it can’t yet be punished. Protest, which rarely changes a law by itself but changes what a government can do without being watched doing it. Civil disobedience, which asks people to accept a legal penalty in order to make an illegitimate exercise of power visible — a tactic that only works because the disobedient still believe, at bottom, in the system they’re embarrassing. Elections, blunt and slow, but still the mechanism that has ended more abuses of power than any other in modern history. And sometimes, simply: refusal. The soldier who won’t fire. The clerk who won’t process the paperwork. The lawyer who takes the case nobody wants to touch.
Mahler concluded that the system was beyond saving and set out to destroy it — and destroyed himself in the process, ending up defending the very authoritarianism he’d once fought. Ströbele and Schily both concluded, in their very different ways, that the system was worth working inside, even when it disappointed them — one by staying an irritant to power for forty years, the other by becoming power and then, from what his critics would argue, forgetting the sentence he’d once said.
Maybe that’s the actual answer, unsatisfying as it is: the argument of law only holds if enough people keep making it, term after term, court after court, generation after generation — and if enough of them refuse to become the thing they once argued against.