In the 1920s, ‘Eldorado’ was much more easily reachable than myths and legends had suggested for centuries. Marlene Dietrich had found her way there. So had Ernst Röhm.¹ Situated neither in the thick, feverish jungle along the Amazon nor on some remote, dizzying plateau of the Andes, its location was no less suited to induce head-spinning and stagger. Established not far from the bustling station of Nollendorfplatz (where since 1989 a plaque has commemorated the homosexual victims of National Socialism), and not far from the opulence and decadence of the KaDeWe, the ‘Eldorado’ at the heart of Weimar Germany’s capital used to be as famous as its South American name patron – if not more so.

This ‘Eldorado’ was not just an ordinary nightclub, with which, at that time, Berlin was bursting at the seams. It happened to be the most high-profile and most controversial venue for homosexual patrons, catering to both queer visitors and curious spectators, and attracting celebrities such as painters, authors, journalists, and, occasionally, even an illustrious movie star.² The venue itself developed into one of the most liberal spaces for the capital’s homosexual community; cross-dressing and drag – back then referred to as transvestism – became the distinguishing mark of its shows and performances. Even prostitution, especially by and for gay men, was to some extent tolerated on the premises. Most striking, however, is neither the freedom nor the excess of the location (again, 1920s Berlin was notorious for both), but rather the fact that these very features were either expressly prohibited or within a grey area of legal uncertainty under the Weimar Republic’s Criminal Code.

While Section 175 criminalized sexual acts between males as “unnatural carnal connections”, specifically banning sexual intercourse only, Section 183 focused on “publicly giving offence through an act of indecency” – under which any sexually related conduct that contravened “good morals” could be subsumed. Additionally, it allowed for a broader potential interpretation in cases of prostitution, whenever the simple prohibition of “common prostitution” contained in Section 361(6) until its repeal in 1927 proved insufficient. Finally, Section 180 outlawed “assisting immorality”, which aside from direct procuration included assisting or providing opportunity for the act itself, rendering owners of venues such as the ‘Eldorado’ potentially liable for even tolerating prostitution on their premises.³

This risk, however, often proved to be on paper only. Social reality in the metropolis differed vastly from the legally prescribed one, not only directly contradicting the still prevalent Wilhelmine notion of “that which must not, cannot be” (as poet Christian Morgenstern so pointedly phrased) in German post-imperial society, but also leaving an essential element of the legal system’s positivism behind – its efficacy. The Weimar Republic’s almost uninterrupted series of crises in its formative years, especially the political instability, hyperinflation, appalling living conditions of the lower classes, and surge in violent crimes made governing densely populated spaces increasingly difficult, while a thinned-out police force found itself unable to enforce laws of lesser priority in the metropolis and other large cities. Additionally, a significant number of government officials, members of parliament, and even politically appointed chiefs of police favoured liberalisation and decriminalisation of actions that violated no legal goods, merely transgressing what was considered the boundaries of “good morals”. These progressive views found ardent defenders within the government, including Gustav Radbruch, during his service as Minister of Justice from 1921 to 1923, and were furthered by political campaigns and social advocacy.⁴ In particular, the Institute for Sexual Sciences, the Scientific-Humanitarian Committee, and the World League for Sexual Reform founded by the physician and sexologist Magnus Hirschfeld⁵ as well as the League for Human Rights established by publisher Friedrich Radszuweit⁶ significantly influenced a slow, emerging process of normalisation of sexual minorities.

The homosexual movement’s new approach towards sexual emancipation went hand in hand with other endeavours for objectivity in Weimar society. In contrast to the optimistic, romanticising spirit of Expressionism, an emerging art style strived to truthfully portray harsh realities, focusing on marginalised groups and ‘forbidden’ bodies within the proletariat and other precarious classes. Exposing social conditions such as political corruption, trauma, and decay, and mocking outdated conventions and self-perceptions of the bourgeoisie, clergy, and military, artists showed a reality that stripped away any phantom pains of imperial grandeur and might. Incompatible with Wilhelmine aesthetics predominant only a few years prior, political artists like Käthe Kollwitz addressed women’s rights, abortions, and starvation, while painters such as Otto Dix and George Grosz now presented grotesque, excessive images of post-war urbanisation: gutters, filled with maimed veterans of the Great War, begging in their full uniforms – only recently the symbol of imperial might and state authority – next to prostitutes, criminals, and lewd figures in venues similar to the ‘Eldorado’. This relentless, often cynical gaze, quite in accordance with the Zeitgeist, earned the name of New Objectivity.

Under the described societal conditions, at least two (unequal) objectivities inevitably collided: the objectivity as prescribed by law found itself challenged – and at times seemingly overtaken – by the objectivity as presented by reality. The dimension of the concrete conflict at hand ventures beyond the pure duality of “what is” and “what ought to be”, as the relationship of legal rule and legal application transgresses the realm of clearly distinct categories. If one is to apply this famous distinction by Hans Kelsen, at first glance, the validity of a norm remains “what ought to be” even if its application can be noticed to turn rare or at least selective. However, Kelsen explicitly recognizes that a certain level of efficacy is required for a norm to remain valid, therefore admitting “what is” as a condition for the continued validity of “what ought to be”, leaving a suspension quite uneasy to resolve.⁷ Which precise influences are to be recognized on “what is”, and to which extent? If applied directly (and perhaps somewhat bluntly), it turns issues of fragile societal balance into numerical proportionality.

Which objectivity prevails in general if a significant number of officials tasked with its enforcement consider a norm obsolete and strive for its repeal, contributing to an overall sense that this exact norm “ought not to be” enforced? Similarly, is the same objectivity prevailing everywhere at once, both geographically and administratively? Finally, to what extent must a norm be applied selectively to lose its validity through custom? To render the issue more visual, using the time-appropriate example of Section 175 combined with the grotesqueness of a New Objectivity painting, what percentage of homosexual acts between males must remain unpunished for Section 175 to be factually stripped of its normative force? Certainly, the provocative phrasing should not distract from the issue at hand: The normative position of the ‘forbidden’ body between positive illegality through the legal order and socially constituted legality through its factual presence – a body that is not just existing, not merely being present and presented in visual culture, not just actively participating in public life, but at times finds itself deliberately being protected by the power enforcing the legal order – cannot be determined by a pure theory of law.

An elegant, yet not undisputed solution (amongst others, by Kelsen himself) is offered by Kelsen’s academic teacher and fellow positivist, Georg Jellinek, who, in contrast to Kelsen, aims to bridge the gap between “what is” and “what ought to be” by recognizing the social and moral force behind the legal system: the normative force of the factual.⁸ Jellinek recognizes not only violence (or any form of coercion) as a driving force behind the compliance with norms by the populace subjected to them, but explicitly names “general social customs, the specific rules of etiquette governing particular social classes and professions, church organisations, the press and literature” as having a stronger impact on both the individual and the public. Furthermore, normative power is developed and sedimented through repetition, becoming physiologically and psychologically simpler to comply with the more the law-abiding behaviour is repeated. The normativity of the factual within legal systems hence stems from habit, leading to “the origin of the binding force of customary law coinciding entirely with the binding force of ceremony or fashion”, ultimately rooting normativity in social relations and mental patterns.

If one is to follow this solution, the interdependence of factuality, visibility, and normativity may appear able to overcome the collision of different objectivities, at least in theory: the “forbidden” body simply and factually exists, and as it exists, it becomes part of a reality then depicted in the culture of the era. The more visuality it receives, the more frequent society is confronted with what it considers out of the norm. The more normalisation is thus achieved, the more advocacy is done on its behalf, and the more social acceptance the “forbidden” body may eventually receive. The less its positive illegality is sanctioned, the more socially constituted legality the “forbidden” body may develop. With every supposed transgression tolerated by those enforcing the norm, the understanding of said norms eventually, gradually – painfully so – begins to shift, as do societal beliefs, reinforcing the process. In theory, this may develop into a perfect, self-sustaining and self-accelerating mechanism. In practice, however, two obvious questions require a response: Whose visibility is desired, and who decides on the desirability?

The League for Human Rights issued the following statement in their 1927 periodical regarding “Eldorado” and similar venues: “Respectable homosexuals protest vehemently against being identified with the sort of people who frequent these establishments. These establishments are attended by the so-called crème de la crème of society, who wish to gawp at the degenerate and depraved creatures – who, in most cases, have nothing to do with homosexuality – who run about there dressed as the opposite sex, that is, men in women’s clothes and women in men’s clothes, thereby bringing an entire class of people (the respectable transvestites) into disrepute.”⁹ Politics and conventions as much as shame and disgust appear to create divisive classes of “forbidden” bodies, rendering some inconspicuous, some worthy of the limelight, some provocative yet tolerable, and finally some beyond any acceptable condition. Coincidentally, few artworks famous today feature the actual gay or cross-dressing patrons of ‘Eldorado’ – Ernst Fritsch’s painting “Memories of Eldorado” shows heterosexual partners dancing, while Christian Schad’s portrait of the “Comte St-Genois d’Anneaucourt” very subtly includes the Berlin transvestite at the count’s side. Even Jeanne Mammen, known for depicting nightclubs and bars such as the ‘Eldorado’, limits her drawings to lesbian patrons. Only a single famous aquarelle by Dix – ‘Eldorado’ – portrays the venues’ patrons wearing drag, and even its existence appears miraculous. Only fragments of this bizarre, iridescent, inconsistent era survived – against all odds – the onslaught of SA thugs, confiscating and destroying an unknown number of paintings, drawings, photographs, and books in their frenzy to exterminate what they had branded as “degenerate”. Sexual minorities faced prosecution, deprivation of rights, violence, and ultimately murder. The progress achieved, the visibility established, the spaces created, all perished in 1933, almost returning the ‘Eldorado’ and its ‘forbidden’ bodies back to the realm of myths and legends. Almost.

Grigorij Tschernjawskyj is a Doctoral Researcher at Ghent University

1See Hans Peter Bleuel, Das saubere Reich: Theorie und Praxis des sittlichen Lebens im Dritten Reich (Scherz Verlag, 1972), 116–123.

2For an overview of queer culture in Berlin during the second half of the nineteenth and the first half of the twentieth century, see Wolfgang Theis and Andreas Sternweiler, “Alltag im Kaiserreich und in der Weimarer Republik”, in: Eldorado – Homosexuelle Frauen und Männer in Berlin 1850–1950. Geschichte, Alltag, Kultur (Fröhlich & Kaufmann, 1984), 48–73.

3For a translation of the mentioned sections from that period, see R. H. Gage and A. J. Waters, Imperial German Criminal Code, translated into English (W. E. Hortor & Co., 1917).

4For Gustav Radbruch’s undertaking to reform the Criminal Code, see Ulfrid Neumann, “Gustav Radbruchs Beitrag zur Strafrechtsreform”, Kritische Justiz 37 (4) 2004, 432–441.

5For a comprehensive study of Magnus Hirschfeld’s work, see Heike Bauer, The Hirschfeld Archives: Violence, Death, and Modern Queer Culture (Temple University Press, 2017).

6For an overview of the homosexual movement in Weimar Germany, see Manfred Baumgardt, “Das Institut für Sexualwissenschaft und die Homosexuellenbewegung in der Weimarer Republik”, in: Eldorado – Homosexuelle Frauen und Männer in Berlin 1850–1950. Geschichte, Alltag, Kultur (Fröhlich & Kaufmann, 1984), 31–43.

7See Hans Kelsen, Reine Rechtslehre, 2nd Edn. (Franz Deuticke, 1960), 346–397.

8See Georg Jellinek, Allgemeine Staatslehre, 3rd Edn. (Julius Springer, 1929), 332–379.

9See Theis and Sternweiler, 71.