The East German Gap
The Basic Law and East Germany’s missing traces
Its 75th anniversary allows to conclude: The German Basic Law is a good constitution – with its strong protection of fundamental rights and the principles laid down in Articles 1 and 20, it also protects the interests of those who are not at the levers of power. We are proud that it reflects the lessons of German history. Support among the population is thus high. But there are no traces of East German history in the constitution.
Most of the East German population wanted it that way in 1990. Unification was to be achieved as quickly as possible with the German Democratic Republic (GDR) acceding to the Basic Law in accordance with the (old) Article 23. The freely elected People’s Chamber refused to deal with the draft constitution elaborated by the GDR Central Round Table. On the night of the 22nd to 23rd August 1990, it adopted the motion to join – put forward by the CDU/DA, DSU, FDP and SPD parliamentary groups – by an overwhelming majority. Over 80 % of East Germans supported this course of action. Although there were voices in the GDR civil rights movement, the SPD and The Greens (die Grünen) in favour of an all-new German constitution, the general view was: the Basic Law had proved its worth and a new constitution is not necessary.
As a result, discussions crucial to understanding the historical process and the significance of the Basic Law did not take place on a broad scale, but only in relevant intellectual and political circles.
The Unification Treaty only brought about minimal changes. The preamble (as well as Art. 146 of the Basic Law) stated that German unity was complete. Thus, the provisional nature of the Basic Law was abolished. The old Article 23 of the Basic Law was now also superfluous. Federal states with more than seven million inhabitants were given six votes in the Bundesrat, ensuring that the large federal states retained a blocking minority in amending the Constitution. And in the new German states (neue Bundesländer), laws could derogate from the Basic Law under certain conditions until the end of 1992, certain laws even until 1995.
A joint commission of the German Federal Parliament (Bundestag) and the Federal Council (Bundesrat) set up during the accession negotiations was to discuss possible further amendments to the Basic Law. Upon its proposal, the following amendments were adopted in 1994: the promotion by the state of the effective implementation of equal rights for men and women, the prohibition of discrimination against people with disabilities (both Article 3 Basic Law), the state objective of environmental protection (Art. 20a Basic Law), the possibility for the federal government to become active in the area of concurrent legislation if the objective is the “creation of equivalent living conditions” (Art. 72 Basic Law; previously it read “the preservation of the uniformity of living conditions in the territory of the Federal Republic”), as well as a deviation from the general regulation of state reorganisations for the planned merger of Berlin and Brandenburg (Art. 29, 118a Basic Law).
These and other modifications can hardly be considered a result of the existence of the second German state or of the peaceful revolution, even though protecting natural resources was a major concern of the civil rights movement in the GDR because of the environmental pollution in wide regions of it. Indeed, there were references to German unity as well, for example in downgrading the preservation of uniform to equal living conditions as a reason for federal action in the area of concurrent legislation. Different socio-economic conditions informed these changes. But they were not a lesson from history.
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The fact that the East German experience was not reflected in the Basic Law is all the more striking in view of the fact that other important constitutional amendments were adopted during this period, such as the insertion of an article referring to active membership in the European Union, the reform of asylum law and the privatisation of the federal railways and the federal postal service.
The arguably most important amendment to the Basic Law as a result of the Unification Treaty did not take place until 2006: Article 22 of the Basic Law was amended to state that Berlin is the capital of the Federal Republic of Germany. At the time, however, this was not (anymore) about German unity, but about the desire to support the financially strapped Berlin in its function as capital city with special allocations from the federal government. In the 1990s, by contrast, the question of the capital was a hot topic, and there was strong political opposition to moving the federal parliament and government to Berlin.
But what traces of East German history could have manifested in the Basic Law of the GDR? Brandenburg provides an answer, where the right to respect human dignity in dying and the prohibition of scientific experiments on humans (both Art. 8) as well as the recognition of the need to protect non-marital cohabitation (Art. 26) have been included in the state constitution. Tools of direct democracy were introduced at both state and municipal level. Recognized environmental associations were given the right to participate in administrative procedures affecting natural resources, and the state was obliged to ensure that no weapons of mass destruction were developed, manufactured or stored on its territory (both Art. 39 [9]). The country was also obliged to promote a broad distribution of property, in particular the accumulation of wealth by workers through participation in productive property (Art. 41) and to ensure the realization of the right to work through a policy of full employment and labor promotion (Art. 48). In addition, the government was to be obliged to work towards the abolition of Article 218, which criminalises abortion – a section later removed to appease the CDU.
Of course, these articles carry ideological baggage. In 1991/92, the SPD-led state government had an interest in countering the conservative-liberal majority in the German Federal Parliament. But also Saxony’s state constitution, negotiated under a CDU-led government, contains remnants of East German history: The state recognises as state objective the right of every person to a dignified existence, in particular to work, appropriate housing, an adequate livelihood, social security and education (Art. 7), promotes preventive health protection for children and adolescents as well as facilities for their care (Art. 9), defines the protection of the environment as state obligation and an obligation of everyone in the country (Art. 10), sets out principles in the case of deprivation of liberty, does not require marriage for support (and relief) of families and extends it to the care of those in need, i.e. not only children (Art. 22). All of this signals “the striving for justice, the peaceful coexistence of people and the preservation of an environment worth living in”, according to Rösler, president of the state parliament.
The various versions of East German state constitutions reflected the desire for social equality, and enshrining tools of direct democracy was seen as a commitment to the peaceful revolution of 1989. In contrast, the Basic Law, despite its welfare state principle, is perceived by many as neither a social constitution nor a constitution that gives people a direct say.
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East German politicians often emphasize that the state constitutions have a great power to create a sense of identity precisely because they refer to their own history. The Basic Law does not have this power because East Germans hardly see any traces of their own actions and history in it. They adopted it voluntarily in 1990 and overwhelmingly support it but their approval is based on acceptance of its functionality rather than on emotion. Moreover, even general approval can entail different ideas about what the provisions mean and what constitutes democracy. East Germans are more likely to believe that the Basic Law’s promise of equality is not being realized (as evidenced by their under-representation in almost all areas) and that parties have much more influence than the Basic Law suggests. Many would like to have the opportunity to influence federal policy directly, in addition to voting in representative bodies and participating in parties.
The Basic Law is a good constitution, but the anniversary leaves plenty of food for an all-German thought on its principles and content, history and practice.
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The Week on Verfassungsblog
The German Constitution celebrated its 75th anniversary this week. But what exactly are we celebrating when we celebrate the Constitution? CHRISTOPH MÖLLERS argues: The German Grundgesetz is not based on a “shared foundation of values.” Rather, it was created by politicians to enable politics. If we want to preserve the “values” of the Constitution, we must primarily protect society’s ability to engage in democratic politics.
On May 20, 2024, the Chief Prosecutor of the International Criminal Court (ICC) announced that he had requested several arrest warrants against members of Hamas and the Israeli government. STEFANIE BOCK explains the details of these requests, why they are politically explosive, and what the next steps are.
Student protests against the Gaza war are also increasing in Germany. As in the United States, students often set up protest camps to draw attention to their cause. In some cities, these protest camps were quickly cleared, while in other cities, authorities initially responded with issuing conditions. NOAH ZIMMERMANN explains how the authorities’ actions can be assessed under assembly law and whether universities themselves can also take action against protests.
The freedom of assembly and the relationship between police law and assembly law are also central to a contribution by BENJAMIN RUSTEBERG who critically discusses a recent ruling by the Federal Administrative Court.
Last week, the Federal Constitutional Court ruled that the chief of police in North Rhine-Westphalia can not be a political civil servant. TRISTAN WISSGOTT highlights some methodological issues of the decision and criticises the flawed doctrine of state neutrality the Court perpetuates with it. ARMIN STEINBACH responds and defends the Second Senate’s decision against criticism. Civil – or rather administrative courage – is the guiding principle of the civil servants of the Republic, not political conformity.
The fact that the French Rassemblement National is breaking with the AfD, which has now also been excluded from the ID group in the European Parliament, comes as little surprise in light of LÉONIE DE JONGE’s analysis of far-right parties in Europe. She shows that despite ideological similarities, cooperation is hampered by many differences.
How resilient is the civil service in the case that functionaries of an authoritarian populist party reach high administrative positions? On the one hand, civil servants have a duty to follow up, but on the other hand they bear full legal responsibility for their actions – and can thus find themselves in unpleasant situations, as ANDREAS NITSCHKE outlines in his article for the Thuringia Project.
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The Max Planck Institute for Comparative Public Law and International Law invites doctoral and postdoctoral researchers to apply as ‘engaged listeners’ for the Defund Meat Conference, taking place from 15-17 January 2025 in Heidelberg.
Engaged listeners are expected to participate actively in the discussions. Please apply via our online application system with a CV and letter of motivation (max. 500 words) by 15 July 2024. For more information, please visit the conference website.
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On 16 May, four Dutch parties presented a new governing agreement. The four parties PVV, VVD, NSC, and BBB will form one of the most right-wing governments in Dutch history. Under the Agreement, they proposed migration measures which would endanger the fundamental rights of migrants and people applying for international protection. ARON BOSMAN explains why this plan would put the Netherlands on a collision course with the EU as many of the measures are contrary to the provisions in the EU Migration Pact, which was adopted last week.
After years filled with unimaginably lawless legal and factual acts and hateful words tearing the Polish Constitution to shreds, rebuilding and keeping the rule of law is a difficult task. TOMASZ TADEUSZ KONCEWICZ offers some guidelines on how to go about it. First, one must determine the starting point of the route. Second, the route must be determined by fidelity to the Constitution. Finally, the avowed destination must be framed in clear terms as restoring the meaning and respect to the basic elements of the Polish legal order. He argues that the latter must become the new narrative of lawyers, politicians and citizens alike if we are to succeed.
Earlier this month, Italy updated its list of safe countries of origin which retains Nigeria’s inclusion. This is so despite the country of origin information sheet, provided for by the European Union Agency for Asylum, demonstrating that Nigeria is manifestly not safe. AGOSTINA PIRRELLO unpacks the flawed process for SCO determinations and how member states may (ab)use the EUAA’s role and expertise in it.
The KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR) has been the subject of intense debate on our blog for several weeks. However, less attention has been paid to the question of the impact of the judgment on currently pending climate change cases before the ECtHR. JANINE PRANTL sheds light on a case against Austria primarily challenging the shortcomings of the Austrian Climate Protection Act and argues that the ECtHR could soon grant individual standing in a climate mitigation case for the first time.
The US Congress has decided to ban TikTok. This means that there will now be two standards for regulating platforms in the US: a very liberal one for normal cases, and a strict one for so-called foreign adversaries. URS SAXER and ROMAN KOLLENBERG show the fundamental questions raised by the double standards.
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An anniversary article in our blog symposium “Outstanding Women of International, European and Constitutional Law” on the occasion of the 75th anniversary of the German Basic Law by VERENA KAHL and FRANZISKA BACHMANN portrays Elisabeth Selbert, one of the four “Mothers” of the Basic Law.
ITLOS and Climate Change: A New Blog Symposium with the Sabin Center
On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered a long-awaited Advisory Opinion on climate change and international law. This marks the first time that an international tribunal has issued an advisory opinion on State obligations regarding climate change mitigation. The Advisory Opinion addresses several key questions regarding the application of the United Nations Convention on the Law of the Sea (UNCLOS) in the context of climate change, including the interaction between UNCLOS and the global climate change regime, and the specific obligations of States to reduce climate-damaging greenhouse gas (GHG) emissions. There is much to explore in terms of both the content of the ITLOS advisory opinion and its potential implications for global, regional, and local efforts to combat climate change – reason enough to start a joint blog symposium with the Sabin Center for Climate Change Law. MAXIM BÖNNEMANN and KOREY SILVERMAN-ROATI kick off and explain what’s in the Advisory Opinion and why it matters. JACQUELINE PEEL shows how the ITLOS Advisory opinion delivers a holistic vision of climate-relevant international law.
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That’s all for this week. Take care and all the best,
the Verfassungsblog Editorial Team
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