When we went into Covid lockdown in 2019 I began writing letters from my new home in Germany and it’s been a while since I wrote my last one.
By writing these letters I hoped to understand Germany better and my home country the United Kingdom.
This letter was spurred by a plaque I spotted on a regular walk, and which got me thinking about the nation state, citizenship, and the Germany constitution in relation to the United Kingdom’s lack of one.
I hope I got it right… January 27, 2022.
Göttingen features many buildings which are adorned with plaques celebrating notable citizens who once lived, studied, or worked here. A sizeable number being Nobel prize winners nine of whom are buried within the city including Max Planck. Theology, physics, mathematics, and philosophy are disciplines often mentioned as are writers such as Samuel Coleridge Taylor who visited from the United Kingdom.
The plaque that got me thinking is dedicated to Gottlieb Planck (1824/1910) who was a Göttingen jurist who advocated a liberal, and progressive German nation. He was at the core of the discussions of many legal and constitutional issues and in 1859 he and others formed the Deutscher Nationalverein (German National Committee). This group demanded the election of a national parliament and with hindsight their call to accept a Prussian dominated unified Germany, was misjudged – they had hoped to influence it into being less autocratic.
In 1874 and Germany having been founded in 1871 Planck contributed at the first Bürgerliches Gesetzbuch (BVB – Civil Code) which was followed by the second BVB in 1890. The BVB set out what being a citizen of a nation legally meant such as rights and responsibilities of the individual. The Civil Code came into being in 1900 and remains to this day an important element of German law.
Not a Göttinger but a near namesake was Carl Gottleibe Svarez (1746-1798), a jurist who advised Prussian Kaiser Frederick II (`The Great´- 1712/1786) on matters of law. His work ´The Corpus iuris Fridericianum´ bridged Roman and Natural Law into a civil procedural legal framework which shaped Prussian society long term.
Interestingly the Kaiser overlooked much meaningful mention of legal restraint or oversight of monarchs.
The tension between entitlement in society and achieving equality is ever present then and now. This is illustrated when Ernest Augustus became King of Hannover in 1837 and immediately refused to recognise the constitution which had been torturously negotiated during the reign of King William IV of Great Britain and Hanover. (Queen Victoria took the crown of Britain but only males could become monarchs of Hannover)
At that time there was no one German Nation instead the German speaking Kingdoms and states, were members of a confederation. In Göttingen seven university professors wrote a protestation against the new Kaiser’s intention and this was subsequently widely published including outside of the Hanoverian Kingdom. The Göttingen Seven, which included the Brothers Grimm (yes, Grimm Fairy Stories) all lost their posts and were expelled from the realm, their actions are seen as a steppingstone in the fight for political reform.
The German speaking states at the turn of the 19th century were awash with reformist sentiment spurred on by philosophers such as Thomas Paine (1737/1809) who´s most famous work was the Rights of Man (1791). Paine had a great influence on both the United States Revolutionary war against the British Empire (1776), and the French Revolution of 1789/1799.
In 1848 unrest against autocratic rule swept Europe especially within the German Confederation and a common call was for a united German with a liberal democratic constitution. The revolution was quelled by the ruling royal, aristocratic houses, and their allies just as they did during the German Peasant Revolt of 1524/ 1525.
Both the present German flag and national anthem were symbols of the 1848 Revolution signalling a call for a united, and reformist country. ´Deutschland Uber Ales´ stated the belief that a united Germany should be above the autocratic states that made up the area at that time.
In 1871 Otto Von Bismarck forced the establishment of the German nation ruled by the Prussian King Wilhelm 1st in a manner and substance that was an antithesis of the spirit of 1848.
Up to World War Two, Germany had only seen fourteen years of democracy free of an autocratic monarch when after the First World War the Kaiser left for exile and a republic was declared. The Weimar Republic came into being in 1919 lasting until 1933, and it echoed much of the sentiment of the 1848 Revolution including the adoption of the same flag and anthem.
The fledgling democracy of the Weimar republic was undone by a combined force of aristocrats, industrialists, nationalists, and the military who opened the door for Adolf Hitler because his was the junior extreme right-wing party in the Berlin parliament and they thought they would have him in their pocket. The Hitler enablers had hoped to push back against democratic reformism fearing a 1917 Russian type revolution happening in Germany. Despite being in the minority Hitler and the Nazi´s took full advantage of the opportunity handed to them to remove any democratic safeguards within the Weimar Constitution.
Post-World War Two a new German Constitution was written for the western zones of Occupation, and it became law in the previous Soviet Zone with the demise of East Germany as a nation in 1990.
At the heart of German Constitution to my mind is that the constitution is sovereign and a two thirds vote majority in parliament is required to make changes. To support the written constitution both at a national and at state level (Germany consists of sixteen federal states) independent constitutional courts rule upon matters such as whether laws are just and within the letter or spirit of the written word. The current Covid 19 Pandemic has seen cases bought against mandates such as in Lower Saxony (where I live) when recently a state law to prevent unvaccinated adults to enter shops was shot down. Throughout the Covid pandemic anti vaccination and Covid deniers have won at times against mandates, although the courts in most cases have ruled that National, State and regional laws including enforcing the wearing of masks and social distancing requirements as being rightly constitutional because the legislators argued successfully that they have a legal duty of care of maintaining good public health and the mandates were proportionate in nature.
Not Covid related is one recent case bought by Göttingen students who successfully argued in 2021 that the then Government of Angela Merkel had introduced a Climate Change law that was not feasible to implement, and they demanded one that was. The court ruled the government’s actions as non-constitutional.
The Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz), role is to investigate anti-constitutional acts and to put it very politely it became complacent regarding right-wing politically motivated violence instead showing a seemingly greater vigour toward investigating left or counterculture groups. Appointed in 2012 Hans-Georg Maaßen became the head of this important office and he continued the seeming mindset of ignoring right wing violence despite many muderous outrages. His comments suggesting doubt about whether right wing gangs had hunted foreigners in Chemnitz in 2018 saw him eventually forced to retire.
Maaßen later stood as a Christian Democratic Union candidate in the 2021 national election hoping to attract right wing votes from the Alternative For Germany Party. There was disquiet within the CDU and members said that his candidature and his views muddied any clear differences between the centre right CDU and the right wing AFD Party. (He lost)
No UK Constitution
In my home country there is no written United Kingdom wide constitution and what legally enforceable checks and balances that might exist are based on historical events, case law or precedent to a huge degree, and it is ultimately the Westminster Parliament which is sovereign.
The Magna Carta is often cited as central to United Kingdom jurisprudence, but although the ´Great Charter of Freedoms´ was ratified in 1215 by King John it lasted just one year before it was rewritten to allay the sensitivities of the Barons having been annulled by Pope Innocent III. A further constitutional discussion was had at the ´Putney Debates´ of 1647 where members of the parliamentary alliances sought theoretical and political common ground during the English Civil War against King Charles 1. Radicals such as the Levellers who advocated universal suffrage were eventually side lined by Oliver Cromwell and other Parliamentary leaders, who wanted little to do with emancipation and wanted the end of Royal absolute rule, but not necessarily equal rights for all.
Since then, the UK has seen often bitterly won reforms such as the fight for ´Votes for Women´ at the turn of the 20th century, but tellingly to this day the upper house of Parliament remains one drawn up through patronage alone.
Codes of Conduct
I´m not saying that politicians and government of Germany and UK are worse or better compared to each other but what is clear to me is that oversight of them is stated in the constitution in Germany whilst in the UK you hear a lot about voluntary codes of conduct.
The first past the electoral post system in the UK means that the vote may not necessarily reflect how the country feels or thinks as a whole but may give one party absolute control. In Germany, the proportional electoral system usually means a coalitions needs to be established to form a government.
Where it gets important is that the will for the protection of democracy and the constitution must be strong in the psyche. In Germany this can be seen by an agreement by political parties not to join with the right wing ADF in any political arrangement. This is because it is how Adolf Hitler got his toe in the door by being accepted into coalitions that he then consumed. One incident stands out when after state elections in Thuringia 2020 the ADF did not vote for their own candidate as premier in the state parliament but rather the candidate of the Federal Democratic Party (liberals) and who was subsequently elected. Although there may not have been a formal arrangement the ´winner´ did shake the hand of the ADF leader and this led to a major row where the CDU, Der Linke (The Left), SPD and the Greens protested and eventually with the resignation of the state FDP leader, the vote was rerun.
The UK system of oversight of government relies largely upon adhering to rules that can be vague in nature, obscure, without transparency, and often it is the law courts who are asked to make judgements in a case-by-case manner. Such as when private citizen Gina Miller successfully acted in 2016 to give parliament a vote upon Brexit rather than the government’s intention of there being a vote by the Cabinet of ministers chaired by the Prime Minister alone. This led to the judges being politicised and called ´enemies of the people´ harking back to German Nazi propaganda of the 1930s.
A major restraint that even the UK must take heed of is that it is a signature of the European Court of Human Rights and the United Nations Declaration of Human Rights, both of which the UK played a huge role in framing. But there are elements in the current UK Government who wish to amend or leave these written and codified rights just as they did the European Union.
The current Prime Minister and government of the UK has been censured many, many times by the Speaker of the Parliament for not being straight with Parliament and by watchdogs because of their conduct, but any potential sanctions are often at the Prime Ministers bequest leading to few restraints being placed upon them. In Germany, the Chancellor must not only deal with his/her party members, the Bundestag (Parliament) but also coalition partners, the opposition, the independently minded Federal States, the Constitutional Courts at National and State level, and all thus amount to an array of well-established tripwires that can temper ambitions of power. In the UK although recourse to the Supreme Court can affect matters, it is how many votes you can muster in Parliament that decides whether safeguards can ultimately be activated or enforced.
One final check or balance is the role in Germany of the President who is obliged to act on behalf of the constitution whilst in the UK the Royal Sovereign who I long believed was a safeguard is only a figure head and can offer little support to the checks and balances that a government may require.
The German system is loaded against a dominant one-party state, and on the down side it does mean that German politics requires compromise to be able to work, and this can mean delays or deep frustration as joint platforms are thrashed out.
John Dalberg-Acton, 1st Baron Acton (1834/1902) wrote “Power tends to corrupt, and absolute power corrupts absolutely” and William Pitt the Elder, Earl of Chatham and British Prime Minister from 1766 to 1778 said: “Unlimited power is apt to corrupt the minds of those who possess it”.
The obvious difference between Germany and the UK is that one system is weighted to prevent a political party or its leader to hold too much power or patronage. The other rests on the good conduct and good intent of government to not abuse their elevated position.
Any constitution is only as strong as the commitment there is to protect it and a blanket ignoring or acceptance of bad actors is a fundamental key to realising what is a failing state. In Germany laws that are judged as unconstitutional cannot be enforced
Although it is the UK electorate that ultimately decides via the ballot box, the UK´s first past the post electoral system can lead to governments being elected with a minority or slim vote or mandate but nonetheless might hold a large majority in parliament, this in addition to an unwritten constitution requires a sense of ´good government´ by a Prime Minister (or president) and his/her political party – if that comes short, then hold on tight! It´s what dictatorships are built upon.
The first electric telegraph signal was sent by Carl Friedrich Gauss and Wilhem Weber in Göttingen
Karl Heinrich Ulrichs was a German lawyer, jurist, journalist and a pioneer of gay rights
Samuel Taylor Coleridge is a poet who founded the English Romantic Movement with William Wordsworth and enrolled at the Göttingen University being a follower of Kant