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...without which no society can function.
At a time when governments are engaged in controversial activities beyond their borders, the issue of identity and the values a nation stands for has gained additional poignancy. In the United States, a much-discussed recent book by Harvard historian Samuel Huntington has drawn much attention to the issue; and in Australia, too, questions are being asked about the nature and role of the nation's identity.
The case of Germany can cast a particular light on the general issue, given the nation's turbulent history and widespread accusations of collective guilt or guilt of the vast majority. Like that of any nation, the national identity of Germany--the shared image of its collective self--has much to do with its shared history and its constitutional ground rules. What might be called "the German identity" is the experience of an inherent unity of an imaginary collective personality called "the German people".
What this means of course elicits subjective judgments and feelings. A survey, if it were conducted, would no doubt show that the replies differ between north and south, east and west; that they emphasise the importance of different factors, such as the shared language, symbols, culture, history, politics, government, law, philosophy, economy, industry--products made in Germany--sports and entertainment. Here we shall confine ourselves to the written Constitution and shared history, as far as that history can explain its exceptional features.
THE CONSTITUTION AS A CORNERSTONE OF IDENTITY
GERMAN HISTORY as a whole goes back over a thousand years. The German lands were united in the Holy Roman Empire of the German Nation after Charlemagne s empire was divided in the tenth century and until Emperor Franz of Austria surrendered the Imperial Crown altogether in 1806. Sixty-five years later, a new German emperor (Kaiser) was proclaimed and a new written Constitution laid down the construct of the state and the competencies of the various organs of that state. It remained in place for forty-seven years, until the monarchy went under in the traumatic defeat of the First World War. The first German Republic (Weimar), though identical in public and international law with the Reich, gave itself an entirely new Constitution. It elevated the parliament (Reichstag) to the highest authority, and a long segment of the Constitution dealt with basic rights.
The Third Reich never formally suspended the Weimar Constitution. Yet, figuratively speaking, no stone was left unturned. The radical reconstruction of the Constitution began with the "Decree to Protect People and State" of February 28, 1933; it suspended all politically relevant basic rights. Further steps were taken rapidly down the path to absolute power: by the summer of 1934, Hitler himself held the offices of President of the Reich, Chancellor, Supreme Legislator, Supreme Military Commander, Chief of Government and the head of the judiciary. All characteristics of a totalitarian state were now met: one political party, a media monopoly, a terrorist secret police, and a unitary worldview that was binding for all.
As a matter of course, the Basic Law of the Federal Republic of Germany (the new Constitution) negates all these constitutional principles of the Third Reich, point by point. The result was, however, not a reconstruction of the Weimar Constitution, but instead there were numerous fundamental innovations. Although the federal post-war Constitution drew in some respects on foreign models, it is far more than a derivative of other such documents. The Basic Law resonates with a tenor all of its own; it is unique among constitutions. Its peculiar approach is already evident from the preamble, which opens with the words: "Aware of its responsibility to God and humanity ... and thanks to its constitutive powers, the German people has given itself this Basic Law."
Admittedly, other similar documents also mention God--for example the Magna Carta of 1215 and the Federal Constitution of Switzerland, which starts almost as if it were a prayer: "In the name of God, the Almighty!" Yet, once sufficient due is paid to the transcendental, the fundamental construct of government is defined in sober terms.
The German Basic Law, by contrast, adds a solemn, quasi-sacral statement: "The dignity of man is untouchable. To respect and protect it is the obligation of all powers of government." Section 2 of Article 1 addresses one of the most important consequences of this obligation: "The German people therefore embraces inviolable and irrevocable human rights." Section 1 of Article 2 also deserves to be cited specifically, as it ties the law of morality, which it evokes, to the duty to respect and protect...
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