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Rule of Law: Country Studies - Germany

Rankings in Freedom in the World 2010: 1 Political Rights, 1 Civil Liberties (Free)


Germany has experienced one of the greatest political shifts of any country between dictatorship and democracy, between civilization and barbarism, and between the rule of law and lawlessness. After becoming a modern state in 1871, Germany ascended to become Europe's great economic power, but its aggressive policies led it to a disastrous defeat in World War I. After a period of unstable democracy, the country fell under the iron grip of Nazism from 1933 to 1945. Adolf Hitler's Third Reich, which set out for world domination, was finally defeated by the Western Allies and the Soviet Union in World War II, and the country was soon divided into West and East. From a condition of absolute defeat, West Germany emerged from Allied control and became solidly democratic, a bulwark of the NATO alliance, and an economic world leader.

By contrast, the Soviet Union imposed a harsh Communist dictatorship on East Germany, symbolized by the Berlin Wall that it built to keep people from escaping to the West. East German citizens began to mobilize against the Communist regime in 1989, assisted by their newly granted ability to leave the country. On October 3, 1990, East and West Germany were reunified as the Federal Republic of Germany, adopting a single constitution and democratic system. Despite the economic burden of unification with the significantly poorer East, in 2006, Germany was the third-largest economy in the world, with a total gross domestic product (GDP) of $2.906 trillion. Moreover, Germany ranks high on other levels of socioeconomic well-being. In 2006, Germany ranked 20th for gross national income (GNI) per capita ($36,620), and 28th for GNI measured by purchasing power parity (PPP), which takes into account factors such as inflation ($31,280).


Early History

Although Germany did not become a unified modern state until 1871, its regions and principalities played a central role in Europe from its earliest history. Germanic tribes, including the Angles, Saxons, Jutes, and Vandals, initially migrated from the Black Sea region around 500 BC to the Jutland peninsula on the Baltic Sea, and then to other parts of the Baltic Sea coast. Beginning in the first century BC, tribes migrated west to England and south to contemporary France, Germany, and Poland. After enduring centuries of attack and eventually conquest by Roman legions crossing the Rhine River, Germanic tribes repelled Rome's imperial army. In 410 AD, the Visigoths, under the leader Alaric, sacked Rome itself. Before and since that time, Germanic tribes heavily influenced the history and development of much of Western and Central Europe, including Germany itself, as well as Austria, the Baltics, Denmark, France, the Low Countries, Italy, Switzerland, and Poland.

The Code of Euric

During the fifth century, Euric, the king of the Visigoths, wrote and codified the oral tradition of Germanic laws into a constitution called the Code of Euric, which included a system for choosing successor kings through a grand council of electors, namely leaders representing the many Germanic regions. This system was adopted by the expanding Frankish empire and was continued after the establishment of the Holy Roman Empire (see below) as a means of choosing successors. It is also noteworthy for influencing the development of European parliamentary systems and even the U.S. Congress.

The Holy Roman Empire

Under Charlemagne's rule (768–814), the Frankish Empire became the dominant Germanic tribe, expanding its control north to Saxony, east to present-day Austria, and south to Lombardy. As a result of the Franks' loyalty to the pope, Charlemagne was given the title of Holy Roman Emperor by Pope Leo III in 800 and thus was considered the inheritor of the authority of the ancient Roman Empire. After the death of Charlemagne's son Louis I, the empire was divided among Charlemagne's grandsons. The territories became the East Frankish Kingdom, covering territory that is now Germany and Austria, the West Frankish Kingdom, which later became France, and the Middle Kingdom, which became the center for the continuation of the Holy Roman Empire as a loose confederation of Germanic and Italian lands and principates. From the mid-1400s, it was called the Holy Roman Empire of the German Nation. The height of the empire's influence was during the Crusades, when different military orders such as the Teutonic Knights arose in response to papal calls to restore Jerusalem and the Holy Land to Christendom. After their defeat in the Crusades, the Teutonic Knights conquered Prussia and then expanded east under papal orders as far as Estonia (see Country Study of Estonia). The Holy Roman Empire faded over time in the wake of the religious wars (see below) and finally ended in 1806, when Napoleon forced the abdication of the last emperor, King Francis II.

The Protestant Reformation

In 1517, a German monk named Martin Luther posted a document called the Ninety-five Theses at the gate of the castle church in Wittenberg, Germany. This act of protest against the selling of indulgences (forgiveness for sins) by Catholic priests is considered to be the start of the Protestant Reformation, which launched the continentwide development of alternative Christian churches and sects whose beliefs and practices rejected the authority of the popes. The political division that was created—the Germanic principates and kingdoms divided into a mainly Protestant (Lutheran) north and mostly Catholic south—led to the bloody Thirty Years' War (1618–48), which ultimately involved all the major European powers. The fighting, however, was concentrated on German lands and caused an estimated four million deaths out of a population of 10 million. The war ended with the signing of the Treaty of Westphalia in 1648, which established the principle of freedom of religion within and between European states for the first time.

Prussia and the Rise of the First German Empire

Over the next century, the Protestant Brandenburg-Prussia monarchy began to eclipse the Catholic Hapsburgs in power, expanding its economic influence and territory and joining Russia in the partitions of Poland in 1793, thus gaining Poland's western territories. But Prussia was noteworthy for its policy of "enlightened absolutism," illustrated by its policy of religious tolerance and bureaucratic and civil service reforms.

Otto von Bismarck, the "Iron Chancellor"

Yet Napoleon's defeat of Prussia and other German states in 1806 at the Battle of Jena reversed what had been Prussia's steadily growing power in Central Europe. After Napoleon's ultimate defeat at Waterloo in 1815, the 39 German states decided to establish a loose confederation under Austrian leadership as part of the Congress of Vienna. Following the anticonservative revolutions that occurred in several European states in 1848, King Frederick William IV of Prussia (which rose quickly to become the dominant German state) undermined the confederation and rejected a draft constitution. After King William IV's incapacitation from illness, his brother, William I, became king in 1861. He appointed Otto von Bismarck as his prime minister in 1862 and put together his own confederation of 22 northern states under Prussian leadership. In 1871, after a successful war against France, Bismarck proclaimed the establishment of the First German Empire and became chancellor. Germany's ascent as a modern nation-state was propelled by rapid industrialization and a high level of militarization. Yet this period also saw the development of democratic political parties, trade unions, and a liberal press.

Prussia was noteworthy for its policy of "enlightened absolutism," illustrated by its policy of religious tolerance and bureaucratic and civil service reforms.
World War I and the Weimar Republic

Germany's economic power and its aggressive stance in foreign policy brought it into conflict with other European states and ultimately led to World War I. After four exhausting years of fighting on two fronts, Germany surrendered in 1918. The end of the war led to the establishment of Germany's first democratic constitution and democratic government, led by the Social Democratic Party. The new democratic government was soon undermined by a polarized Reichstag (the lower legislative house) that was frequently caught in gridlock, and a series of Communist rebellions. The social democratic government was further weakened by its signing of the Treaty of Versailles in June 1919, which was a harsh peace treaty that required Germany to cede disputed territories, deindustrialize and demilitarize in key economic areas, and pay large reparations.

Germany's postwar period of democratic government, known as the Weimar Republic, was marked by high political and economic instability, numerous failed putsches, hyperinflation, temporary occupation by France, and economic depression that began in the early 1930s and left millions unemployed.

The Rise of Hitler and the Third Reich

In the midst of this political and economic discontent, elections for the Reichstag in 1932 gave two antidemocratic parties a substantial number of seats: the National Socialists (Nazis) and the Communists. The Nazis, who promised to reverse the national humiliation of Versailles, held the largest number of seats by 1932, and in 1933, President Paul von Hindenburg asked Hitler to become chancellor and form a government.

Soon after Hitler became chancellor, and a week before Reichstag elections scheduled for March 1933, a fire destroyed the Reichstag building, which provided the pretext for Hitler to establish a dictatorship. He immediately arrested leading members of the Communist Party, claiming that they were responsible for the fire. Hitler then gained Hindenburg's approval to institute emergency measures under Article 48 of the constitution, a provision previously used to put down insurrections. Finally, in March 1933, Hitler's Enabling Act was passed by the Reichstag, which allowed Hitler to govern without parliamentary approval. Although the support of two-thirds of the Reichstag was required for the act's passage, Communists and some Social Democrats were not permitted to vote.

Hitler dramatically and rapidly consolidated his power by combining the offices of president and chancellor, banning opposition parties, carrying out purges of the civil service, judiciary, and security forces, and establishing the Nazi-controlled force, the SS (Schutzstaffel). Directly after Hitler's assumption of power, it is estimated that 11,000 opposition party members, trade unionists, and others were arrested and either killed or sent to concentration camps. These early purges, however, constituted a small first step in what became an unparalleled campaign of oppression and mass murder. As Hitler remilitarized Germany and reoccupied demilitarized territories, the Allied powers, especially Great Britain, adopted a policy of appeasement. This led Hitler to order the reoccupation of the Sudetenland, which had been ceded to Czechoslovakia as part of the Treaty of Versailles, and then to annex Austria in 1938. These acts were just precursors to Hitler's grand design of world conquest (in alliance with Fascist Italy and Japan) and racial purification.

SS-Schutzstaffel rounding up prisoners during WWII
The Cataclysm of World War II

After establishing a temporary alliance with Stalin under the 1939 Molotov-Ribbentrop Pact, Hitler launched the first act of World War II by invading Poland on September 1, 1939. This led the British and French governments to declare war on Germany on September 3 (at this point, Soviet forces occupied the eastern half of Poland). Quickly, Nazi forces occupied much of Western Europe and North Africa, and in June 1941, Hitler even violated his agreement with the Soviets by invading their territory (nearly reaching Moscow). The surrender of the Japanese on September 2, 1945, marked the end of the war, at which point Germany was fully defeated and occupied by both Allied and Soviet forces. The total number of lives lost was unprecedented in human history. Overall, it is estimated that between 35 million and 60 million soldiers and civilians were killed, including six million Jews who were killed in the Holocaust, which was the organized and systematic attempt to exterminate the Jewish people. Approximately three million others, including Roma, Slavs, the disabled, and homosexuals, were also killed by the Nazi regime and its supporters.

The Federal Republic of Germany (West Germany)

Following Germany's unconditional surrender, the Allied powers met at a conference in Potsdam, Germany, known as the Potsdam Conference (July–August 1945). At the meeting, the leaders of the Soviet Union, the United Kingdom, and the United States agreed to give Germany's eastern territories to Poland (whose own eastern territories were annexed to the Soviet Union) and discussed the Soviet Union's role, reparations, and the issue of Japan. They also established four occupied zones in Germany to be administered by the Americans, British, French, and Soviets, as previously arranged at the Yalta Conference in February 1945. The Soviet Union had occupied much of Eastern Europe and thus effectively extended its border to eastern Germany. The Soviet Union's blockade of the western zones of Berlin beginning in 1948 signaled its intentions to permanently occupy the eastern zone and all of Berlin. The Americans, British, and French eventually decided to create a separate state out of their three zones. The Federal Republic of Germany was established on May 23, 1949, with the adoption of the Basic Law. The Soviet Union established the German Democratic Republic (East Germany) on October 7, 1949.

Plenary hall in the German Federal Parliament building.

During the occupation, the Allies carried out a policy of denazification, rebuilt Germany's economy, and established democratic institutions. Organizations such as the American Federation of Labor were involved in helping their German counterparts rebuild. The most significant postwar German political leader was Konrad Adenauer, chairman of the Christian Democratic Union (CDU), which won the country's first elections in 1949 and formed the first federal government. Adenauer led CDU-dominated and coalition governments from 1949 to 1963 and is credited with achieving economic recovery, building a strong democratic consensus, establishing a balance between free-market and social-market policies, and pushing Germany toward a policy of European integration. In 1951, Germany, along with Belgium, France, Italy, Luxembourg, and the Netherlands, joined the European Coal and Steel Agreement, the precursor to the European Common Market, and on May 6, 1955, joined NATO, becoming its 15th member. Germany's economic recovery, initially aided by the Marshall Plan and the Western Allies' decision to support reindustrialization, led it to become a leading economic power—the third in the world in terms of GDP, behind only the United States and Japan in 2006. After World War II, the Federal Republic of Germany also underwent radical political changes, including the development of a general climate of political freedom, the presence of numerous democratic parties, stable changes in government coalitions (led by the CDU and Social Democratic Party, or SPD), an independent judiciary, a federal system marked by separation of powers and decentralization, and a complete repudiation of its Nazi past.

The German Democratic Republic (East Germany)

Postwar Germany offers a clear dichotomy in terms of governance and the rule of law. From the outset, the Soviet Union imposed its rule on the eastern occupied zone of Germany and incorporated it into its new system of satellite countries, which were brought together under the Warsaw Pact in 1955. The Warsaw Pact was a military alliance of the Soviet Union and several Central and Eastern European countries formed to rival the West's NATO. Early in the occupation, the prewar SPD was forced to merge into the Communist Party, renamed the Socialist Unity Party, or SED. Following the establishment of the German Democratic Republic (GDR) in 1949, a Soviet-style constitution was imposed, in which all power was concentrated in the SED.

The GDR was among the most closed and repressive of the Soviet bloc countries. Political opponents were quickly imprisoned, and all institutions were placed under the control of the secret police, the Stasi (Staatssicherheit). Following reunification, the government passed the Stasi Records Law, which stated that both citizens of the former East Germany as well as foreigners had the right to view their files. It is estimated that over one million people have already accessed their files; there were files on approximately six million East Germans, over a third of the population. By the end of the period of Communist rule, the Stasi had nearly 100,000 employees and as many as two million collaborators. From the West, the most obvious sign of the GDR's repressive system was its control on the freedom of movement. Even before the Berlin Wall was constructed in 1961, the regime shot at people who tried to cross the barbed-wire fence that ran the length of the country to get to the West. According to official estimates, 125 people were killed attempting to cross the wall, although unofficial estimates are as high as 1,200.

Following the opening of Hungary's border with Austria in August 1989, the efforts of thousands of East German citizens to leave through Hungary sparked massive protests in all of East Germany's major cities. This popular mobilization eventually led to the fall of the Berlin Wall on November 9, 1989, and the collapse of the regime soon thereafter. Following these dramatic events, negotiations between the two German governments for reunification proceeded quickly. On October 3, 1990, East Germany was formally incorporated into the Federal Republic of Germany. Full national democratic elections were held in Germany in December 1990 for the first time since 1933, but in contrast with 1933, these elections served to cement a united democratic Germany. At the same time, reflecting the destruction of the economy, eastern Germany still lags behind the western part of the country in all economic indicators despite the massive transfers of funds over the last 15 years.

The Rule of Law

The united Federal Republic of Germany (commonly referred to as Germany) is governed by its constitution, the Basic Law, which was adopted on May 23, 1949. Although American influence is illustrated in its well-defined federal system and separation of powers, the political and legal system reflects Germany's own history, most importantly the barbarism of Nazi rule.

Article 1 of the Basic Law states:

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Unlike the Weimar Republic, where human rights were considered only "state objectives" and where presidential authority could override respect for human rights (as in the Reichstag Fire Decree), Germany, in its Basic Law, firmly roots all state institutions in the protection of human rights. Article 79, which outlines how the constitution can be amended, makes human rights inviolable without exception, thereby preventing any temporary or emergency suspension of rights.

Germany, in its Basic Law, firmly roots all state institutions in the protection of human rights.

As early as 1949, separation of powers was established in the former West Germany through a federal system of states (Läaut;nder) and the decentralization of authority. With reunification, Germany now consists of 16 states; five states from the former East were added to the West's 11 states. In addition, to avoid the previous dangers of centralized authority, the president was given largely ceremonial duties with only basic checks on legislative powers, such as to call elections in the event of a vote of no confidence by the legislature. To compensate, the Bundesrat (the upper legislative house that directly represents the states) has greater powers in the adoption of legislation. An independent judiciary is headed by a Federal Court of Justice (Bundesgerichtshof) with the power of judicial review to ensure enforcement of the Basic Law. Germany is also an integral member of the European Union (EU), as well as the UN system, and is a party to the European Convention on Human Rights, to all UN conventions on human rights, and to International Labor Organization conventions (ILO) on worker rights.

Much of Germany's civil and criminal law remains rooted in Roman tradition. The constitution ensures basic due process rights, similar to those in the U.S. Constitution. A rise in left-wing extremist violence in the 1960s and 1970s challenged Germany's commitment to rule of law principles when the government adopted several special measures allowing exceptions to due process rights, such as the use of listening devices. Over time, however, these cases indicated the limited extent to which German society was willing to bend the rules on which its democratic consensus rests. These violent groups gained little adherence and ultimately dissolved.

The acceptance of the Basic Law and the general laws of the Federal Republic by East Germany reflected the general rejection by easterners (Ossis) of the Soviet-imposed Communist system. In terms of the rule of law, the Soviet-style system had no independent judiciary (judges were dependent on party superiors), due process, or other characteristics of the rule of law. As noted above, hundreds of thousands of people were forced to spy for the police, usually on their family members and neighbors. The film The Lives of Others, winner of the Oscars' foreign film award for 2007, shows how the police had elaborate machinery to spy on anyone they wished to.

The Nuremberg trials and the International Military Tribunal for the Far East (Tokyo war crimes trial) established the principle of international accountability for crimes against humanity. These trials also set the foundation for the acknowledgment of the crimes of the Nazis, the complicity of German society, and Germany's responsibility for the Third Reich, including the need for reparations to victims. As a result of its experience, Germany bans the advocacy of Nazism, the display of Nazi insignia or paraphernalia, and the denial of Nazi crimes, most importantly the Holocaust. While such restrictions are challenged as counterproductive and overly restrictive by free speech advocates, they are considered an essential part of the postwar political consensus to never again allow totalitarianism to take hold.


As noted at the beginning of this case study, Germany has experienced one of the most significant shifts between a political system in which the rule of law is supreme and one in which the rule of law is weak. The division between East and West Germany after World War II also offers a clear dichotomy between a society that is unfree and one that is free. Indeed, these dichotomies have been present in previous periods of German history, such as the Thirty Years' War and after 1871 when the country's aggressive policies led to World War I.