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The Imperfect Union

The Imperfect Union: Constitutional Structures of German Unification

Copyright Date: 1997
Pages: 496
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    The Imperfect Union
    Book Description:

    In the mid-summer of 1989 the German Democratic Republic-- known as the GDR or East Germany--was an autocratic state led by an entrenched Communist Party. A loyal member of the Warsaw Pact, it was a counterpart of the Federal Republic of Germany (West Germany), which it confronted with a mixture of hostility and grudging accommodation across the divide created by the Cold War. Over the following year and a half, dramatic changes occurred in the political system of East Germany and culminated in the GDR's "accession" to the Federal Republic itself. Yet the end of Germany's division evoked its own new and very bitter constitutional problems.The Imperfect Uniondiscusses these issues and shows that they are at the core of a great event of political, economic, and social history.

    Part I analyzes the constitutional history of eastern Germany from 1945 through the constitutional changes of 1989-1990 and beyond to the constitutions of the re-created east German states. Part II analyzes the Unification Treaty and the numerous problems arising from it: the fate of expropriated property on unification; the unification of the disparate eastern and western abortion regimes; the transformation of East German institutions, such as the civil service, the universities, and the judiciary; prosecution of former GDR leaders and officials; the "rehabilitation" and compensation of GDR victims; and the issues raised by the fateful legacy of the files of the East German secret police. Part III examines the external aspects of unification.

    eISBN: 978-1-4008-2216-4
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-2)
  4. CHAPTER 1 Introduction
    (pp. 3-6)

    In the midsummer of 1989 the German Democratic Republic—known as the GDR or East Germany—was an autocratic state led by an entrenched Communist Party, a loyal member of the Warsaw Pact and, in many ways, a haughty counterpart of the Federal Republic of Germany (West Germany), which it confronted with a mixture of hostility and grudging accommodation across the divide created by the Cold War. Over the following year and a half, a dramatic process of change transformed the political system of East Germany and culminated in the GDR’s “accession” to the Federal Republic itself. At the same...


    • CHAPTER 2 The Background of German Unification
      (pp. 9-14)

      Unification is one of the great themes of modern German history. Unlike England and France—which had formed unified nation-states in the Middle Ages—Germany came into the nineteenth century as a variegated collection of kingdoms, duchies, city-states, and other principalities, loosely held together in the political league of the Holy Roman Empire. The empire was dissolved in 1806 at Napoleon’s order and, following the Congress of Vienna and Napoleon’s final defeat in 1815, the “Germanic Confederation” arose in its place. Like the Holy Roman Empire, however, this was more in the nature of a treaty community (Staatenbund) than any...

    • CHAPTER 3 Political Revolution in the GDR, 1989–1990
      (pp. 15-21)

      From the beginning days of the Soviet Occupation Zone and the GDR, emigration to the western part of Germany had been a continuing problem for the eastern authorities. The pace of emigration often reflected economic conditions, diminishing during periods of prosperity in the GDR and increasing in times of economic difficulty, although political factors also played a role.

      In 1961, during a period of increased emigration, the East German government (with the agreement of the Warsaw Pact leaders) had closed the border of East Germany and built the wall separating East and West Berlin.¹ From that point on, travel to...

    • CHAPTER 4 Constitutional Reform in the GDR, 1989–1990: Historical Background and the Round Table Draft
      (pp. 22-34)

      The stirring political events of 1989–90 in East Germany were accompanied by a profusion of constitutional and other legal developments, including proposals for an entirely new constitutional document. These changes were played out against the background of the existing GDR Constitution which was amended beyond recognition—but not actually repealed—in the final months of the GDR. This final GDR Constitution was, in turn, the culmination of earlier constitutional developments in eastern Germany.

      Something like political life began to re-emerge in the east when the Soviet Union created five Länder or provincial governments in its occupation zone very shortly...

    • CHAPTER 5 Constitutional Reform in the GDR, 1989–1990: Amending the Constitution
      (pp. 35-46)

      The Round Table draft and related attempts to enact a wholly new constitution were not the only constitutional developments in the last year of the GDR. Indeed, beginning in early December 1989, the East German political system moved steadily away from the principles of the old Stalinist document through a series of constitutional amendments and related statutory provisions. Some of these measures were adopted in the Modrow period before the election of March 1990, and other provisions—more clearly directed toward unification—were enacted during the de Maizière regime.

      Even during the period when the eventual adoption of a new...

    • CHAPTER 6 Methods of Unification under the Basic Law
      (pp. 47-55)

      Although the original goal of many GDR reformers was to achieve democracy within an independent East Germany, calls for unification became more insistent—both in the Leipzig demonstrations and elsewhere—in the early months of 1990. Attention, therefore, began to turn to the question of how that goal could be achieved.

      There were several possible constitutional methods of unification, and the choice among these techniques would have important implications not only for the relations between the two parts of Germany, but also for the longer term nature of the united country. Indeed, this choice would determine whether a new constitution...

    • CHAPTER 7 The State Treaty: Currency and Economic Union
      (pp. 56-64)

      Even with the choice of article 23 for unification, it seemed clear that the amalgamation of two quite different social, economic, and legal systems could not be accomplished instantaneously. Instead, a process of rapprochement and accommodation was thought to be necessary in which the manifold problems could be faced and to some extent resolved. Because the most exigent problems in mid-1990 were the economic problems that threatened chaos in the GDR, the governing coalition in the west sought to come to grips with these issues. Accordingly, the first official step in the unification process was the signing on May 18,...

    • CHAPTER 8 The Final Months of the Volkskammer: Constitutional Problems of Accession and the First All-German Election
      (pp. 65-72)

      After the signing of the first State Treaty, the GDR Volkskammer entered a period of fevered legislative activity. On the one hand the Volkskammer frantically sought to remake the GDR state in preparation for a unification whose date seemed to be shifting ever nearer. On the other hand, the Volkskammer had to confront the constitutional and political problems raised by the process of unification itself. Finally, as the reality of unification approached, some groups in the Volkskammer attempted to preserve certain aspects of GDR law and society that seemed worth retaining—although in many cases they found that they were...

    • CHAPTER 9 Reconstitution of the Eastern Länder
      (pp. 73-100)

      Almost from the beginning of the East German revolution, it was clear that the former states of the GDR—which had been effectively abolished in 1952—would re-emerge as important factors of political life. During 1990, therefore, preparations were made for the reconstitution of the states, although they were not actually re-created until the moment of German unification. Since that point, the new states have had a rich constitutional development. Indeed, in many respects this development has overshadowed the rather modest constitutional changes of the Basic Law resulting from unification.

      When the GDR was founded in the Soviet occupation zone...


    • CHAPTER 10 The Unification Treaty and Amendment of the Basic Law
      (pp. 103-123)

      It had been clear from an early point that German unification would take place under article 23 GG, but it was only as the summer of 1990 approached that the West German leadership realized that unification might occur before year’s end—sooner than even the most sanguine westerners had previously imagined. Chancellor Kohl and his cabinet pushed for the earliest possible date, in part out of fear that President Gorbachev’s cooperative Soviet regime might topple at any moment. Accordingly, in early summer 1990 the government began to focus on the specific conditions under which unification should take place.

      Theoretically, it...

    • CHAPTER 11 The Fate of “Socialist Property”: Restitution, Compensation, and the Work of the Treuhand
      (pp. 124-153)

      One of the most difficult and potentially explosive problems of German unification arose from the millions of acres of property expropriated or placed under state administration under the Soviet occupation and the government of the GDR. The implications of this issue contributed significantly to social tensions and serious economic problems in the period following unification.

      In many of its aspects, the legal resolution of this central problem exemplified the systematic extension of western constitutional and legal concepts over the east implied by article 23 GG, as well as the correlative shifting of effective control over eastern concerns to the west....

    • CHAPTER 12 The Unification of Abortion Law
      (pp. 154-165)

      Along with problems of expropriated property, questions about the regulation of abortion evoked some of the most bitter and prolonged disputes in the process of unification. Indeed, the regulation of abortion was one of the few areas in which the GDR insisted to the very end that its own legal and social structures not be entirely abandoned in the Unification Treaty.

      From a historical perspective, the struggle over abortion was the continuation of a political debate that had played a prominent role in West Germany long before there was any possibility of unification. Indeed the contemporary dispute—in which the...

    • CHAPTER 13 The Transformation of Eastern Institutions: The Civil Service, the Universities, and the Justice System
      (pp. 166-193)

      The “accession” of the GDR to the Federal Republic raised fundamental questions about the future of the civil service in eastern Germany, as well as the related areas of education and the judiciary. The great differences between eastern and western practices in these areas perhaps suggested that western forms should simply be extended to the east, following the analogy of article 23. Yet in light of decades of debate about the traditional civil service in the west, along with sharply increasing dissatisfaction with the western universities, unification also seemed to afford an opportunity for extensive reform in the west as...

    • CHAPTER 14 Undoing the Past: Prosecution of GDR Leaders and Officials
      (pp. 194-215)

      The constitutional problems discussed in the preceding three chapters—those concerning property regulations, abortion, and the fate of the civil service—were subjects of sharp debate as the Unification Treaty was being negotiated. Although these issues continued to raise their share of new and unexpected developments, the relevant problems were generally well understood before the date of German unification. In contrast, some other issues of great difficulty and importance were less fully developed during the process of unification and came to the fore as widely debated constitutional and political problems after the merger of the two German states.

      Some of...

    • CHAPTER 15 Undoing the Past: “Rehabilitation” and Compensation
      (pp. 216-228)

      Over the forty-year history of the GDR many individuals suffered bitterly as a result of oppressive judicial decisions and other governmental acts. As a central characteristic of the judicial system, the Communist Party exercised a substantial degree of influence over the courts—particularly over the criminal courts—often ensuring that decisions were made according to certain political criteria. In many instances explicit political pressure was not necessary because the judges in effect knew what was expected of them.

      In addition, the East German Criminal Code contained numerous provisions that were employed to penalize broad forms of political activity and expression...

    • CHAPTER 16 Confronting the Past: The Stasi Files
      (pp. 229-244)

      Behind many important issues of German unification loomed the gigantic and mysterious specter of the enormous files of information amassed over four decades by the GDR Ministry for State Security—the Stasi. With a headquarters complex covering many square blocks in Berlin, and numerous branches throughout the country, the Stasi had approximately 100,000 full-time employees out of a total population of approximately 16 million.¹ In addition, the Stasi enlisted hundreds of thousands of “unofficial collaborators” (inoffzielle Mitarbeiteror IMs) drawn in secret from the population of the GDR.²

      This elaborate system of surveillance permeated the society of the GDR. Indeed,...


    • CHAPTER 17 The European Context of Unification and the Reserved Rights of the World War II Allies
      (pp. 247-256)

      For many of those deeply involved in the internal events of 1989–90, German unification may have seemed to be a particularly German affair, depending primarily on actions taken by the governments and the people of the Federal Republic and the GDR. Yet in reality the political conditions of unification required the participation of many nations and, even in the strictest legal sense, the merger of east and west did not depend upon actions taken under German law alone.

      In general, Germany’s European neighbors had a strong interest in the process of German unification—both as a result of historical...

    • CHAPTER 18 The Oder-Neiße Line and the Map of Central Europe
      (pp. 257-261)

      A number of additional issues affecting the status of Germany in international law were intimately related to the question of Allied reserved rights and to the underlying constitutional theory of unification. Of these, perhaps the most sensitive was the bitterly debated subject of the western border of Poland, the so-called Oder-Neiße line. This issue arose from the history of the last days of World War II, although it had an even more remote background.

      During the Weimar period, the map of central Europe looked significantly different than it did after World War II. In addition to the territory that later...

    • CHAPTER 19 NATO and the Pact System
      (pp. 262-267)

      The international status of Germany was affected not only by events occurring before the establishment of the two German states, but also by international treaties entered into by those states. Indeed, to a significant extent the international role of the two German states was characterized by their membership in two different, and opposing, military and political alliances.

      As part of its task of establishing the Federal Republic as an “equal member of a united Europe,”¹ the Basic Law contemplated that the Federal Republic might not only become part of a European political or economic community, but could also join an...

    • CHAPTER 20 The Two Plus Four Treaty and the Legal Status of Germany
      (pp. 268-276)

      The principal open questions relating to the status of Germany in international law were largely resolved in the Treaty on the Final Settlement with Respect to Germany, signed by the four World War II Allies and the two German states on September 12, 1990, at the conclusion of the Two Plus Four discussions.¹ In these negotiations, the principal parties were the Federal Republic on one side and the Soviet Union on the other—although the United States, through its strong support of unification, was also an important participant.² The government of the GDR, in this as in other negotiations, was...

    • CHAPTER 21 Sequels and Consequences of the Two Plus Four Treaty: Germany and the Structure of Central Europe
      (pp. 277-285)

      The Two Plus Four Treaty recognized that the final European settlement would not be brought to a close by the terms of that treaty alone. Rather, the negotiators contemplated that unified Germany would also enter into important agreements with Poland and the Soviet Union—accords that would complete the task of the Two Plus Four agreement in revising the political structure created at Yalta and Potsdam and establishing agreed borders and stable relations. Similarly, Germany also entered into treaties with other eastern European countries, particularly Czechoslovakia, a nation that had suffered grievously from the aggressions of the Nazi regime. Although...

    • CHAPTER 22 United Germany and the Western Security System: The Future Role of German Armed Forces
      (pp. 286-296)

      A central premise of German unification, both inside and outside the Federal Republic, was that the unified country would remain imbedded in NATO and the western security system. Even though it had now become a “sovereign” nation, the Federal Republic would continue to adapt its military stance to the joint decision making of the western alliance, under the predominant influence of the United States. Through this limitation, the increased strength of Germany would be made palatable to its neighbors, and any external dangers of internal nationalist excess would also be restrained.

      Yet this foreign policy structure, first supported by Adenauer...

    • CHAPTER 23 The Unification of Germany and the Unification of Europe: European Community and European Union
      (pp. 297-310)

      For the purpose of “embedding” or dissolving German sovereignty in European structures, the most important institution was not NATO—as important as the alliance may have been—but rather the economic and political organization of the European Community or European Union. Indeed, much of Germany’s future in Europe, as well as much of the future of European unification, lies within this institution. Accordingly, the decisions of the Union play an increasingly crucial role in German law, and the German constitution itself—both in its text and its interpretative doctrine—has come to recognize the special role of the European institutions....

    • CHAPTER 24 Conclusion
      (pp. 311-316)

      The constitutional problems of German unification, which began to assume tangible form in late 1989, have occupied the attentions and energies of participants and observers for more than five years and will probably continue to do so for years to come. Yet at this point, in the autumn of 1995, many of the constitutional issues have been resolved in principle, and it is possible to review these extraordinary developments with some degree of perspective.

      The problems that seemed most pressing at the outset—in late 1989 and early 1990—concerned the transformation of the constitutional system of the GDR into...

  8. NOTES
    (pp. 317-464)
    (pp. 465-466)
    (pp. 467-468)
    (pp. 469-474)
  12. INDEX
    (pp. 475-482)