Near the end of Jenny Erpenbeck’s novel Kairos, winner of the International Booker Prize this week, a character embraces strange, new pleasures in her unified German homeland – travel and shoplifting – while asking bigger questions. “Wasn’t it agreed that a unified Germany would get a new constitution?” wonders Katharina as she strolls out of a DIY store with a stolen lawnmower. “Instead, the Basic Law of West Germany has extended its jurisdiction over the East. Was that fair?”
It is one of the many questions lingering as Germany marks the 75th anniversary of the Basic Law – das Grundgesetz – signed on May 23rd, 1949.
The original volume, weighing 1.4kg and bound in beige goat leather, was always more than just a legal document. This was both a passport back to respectability and a postnationalist methadone, replacing old needs and habits with a uniquely German tradition of constitutional patriotism.
It is worth remembering that the Basic Law was adopted in West Germany as the country – and the Continent – was freezing into two ideologically opposed cold war blocs. Its name and contents were a provisional, stopgap solution until, as article 146 states, “a constitution comes into force that has been freely adopted by the German people”.
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It took four decades for that moment to arrive, when the Berlin Wall fell in November 1989. But, in the realpolitik rush to unification the following October, another constitutional path was chosen through article 23: allowing for “other parts of Germany” to sign up to a lightly rewritten Basic Law.
For some, this institutionalised a two-speed Germany. Many former easterners like Jenny Erpenbeck take a more sober view of the Basic Law on what, for them, is its 34th anniversary.
A survey this week confirms this: 87 per cent of western-socialised Germans agree “that the Basic Law has proven itself”, while among eastern-socialised Germans, agreement drops to 68 per cent.
Much of modern Germany’s founding document is given over to housekeeping: a strictly decentralised and federal system, a two-chamber parliament and a symbolic head of state. But its landmark opening article – “human dignity is inviolable” – is both an elegant nod of mourning to the horrors of the Nazi past as well as a solemn vow for the future.
Recent shocks mean that one-time future is now. In this present, Germany is struggling to redefine itself – and its Basic Law.
The administration of Chancellor Olaf Scholz, with one year to go in office as the “traffic light coalition”, resembles a car crash of competing interests and unresolvable ideologies.
With a flatlining economy, compounded by tight fiscal reins, Germany’s only surges these days are for political extremists and violent attacks on mainstream politicians.
With particularly ironic timing, Germany’s Basic Law anniversary comes amid the country’s first-ever trials for high treason. A group of 27 people, ranging from aristocrats to astrologers, are accused of planning to overturn the democratic order and replace it with a military-backed monarchy.
With an eye on all these challenges, Scholz insisted this week that the Basic Law had provided “stable guard rails” and that Germany’s constitutional order had “the means to defend itself against its enemies”.
President Frank-Walter Steinmeier sounded a more ambivalent – even alarmed – tone.
The far-right Alternative für Deutschland (AfD), which makes no secret of its contempt for the democratic order, is polling in first place with about 30 per cent support in three eastern states that choose parliaments in September.
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“What we need is for democrats in this country to stand shoulder to shoulder,” said Steinmeier. He urged Germans to remember that – in facing down the AfD – they are “defending democracy itself”.
For many, this Basic Law anniversary comes as old certainties go out the window.
Under Scholz, Germany reacted quickly to the Russian invasion of February 2022 with taboo-shattering arms deliveries to Ukraine and a massive hike in defence spending at home. But this country – and even Scholz’s own party – remains in deep denial over why and how wishful thinking and economic-ecological gambles created a fatal dependency on Putin’s Russia.
In endless anniversary articles and speeches, few have referred to Germany’s Basic Law vow to be an “equal partner in a united Europe”.
It’s two years since Scholz used a Prague speech to call for “swift and pragmatic” EU reform. Few new ideas have followed as the chancellor struggles to match the European rhetorical elan of French president Emmanuel Macron, who arrives in Germany on Sunday evening for a two-day visit.
The chancellor could be forgiven given his preoccupation with something not even mentioned in the Basic Law: Israel.
In a 2008 Knesset speech, his predecessor Angela Merkel took bilateral relations to a new level. She described Germany’s historical responsibility for Nazi crimes against European Jews as “part of my country’s Staatsräson [reason of state]. This means that Israel’s security is never negotiable for me as German chancellor.”
Sixteen years on, Israel’s strategy in Gaza has pushed Merkel’s successor into a moral maze. After the October 7th Hamas attacks, Scholz repeated the Staatsräson term, insisting “there is only one place for Germany: at Israel’s side”. Seven months on, he is pursuing a policy of knowing and not knowing who he is dealing with in Jerusalem – and the corner into which this solidarity is pushing Germany.
Amid critics’ claims of double standards, they say Germany’s slippery “Staatsräson” doctrine has collided with its Basic Law’s assertion that human dignity is inviolable. Things came to a head this week amid discussion of a possible arrest warrant for Binyamin Netanyahu from the International Criminal Court.
Asked how it would react to any ICC warrant against Netanyahu – effectively a choice between Israel and international law – Germany made a discreet but significant shift: Steffen Hebestreit, spokesman for Scholz, said Germany would “naturally stick to the law”.
Similarly the foreign ministry, while critical of the “incorrect impression” of equivalence between the Israeli and Hamas leaders, emphasised its respect for the independence of the court in The Hague. That respect has a number: with an annual €20 million contribution, Germany is the second-largest backer of the ICC after Japan. Meanwhile, its military backing for Israel, second only to the US, saw Germany dragged before another Hague tribunal.
In a case brought by Nicaragua, Berlin lawyers convinced the UN International Court of Justice (ICJ) – in emergency preliminary proceedings, at least – that its arms supplies were not “facilitating genocide” in Gaza. The lawyers added how, amid growing frustration over Gaza aid blockades, Germany had reviewed and reduced significantly its Israel arms deliveries.
With the post-unification era well and truly over, this is an anxious anniversary for Germany and its Basic Law. There is even talk of a new constitution for these new times. For now the emotional debate – over what this country stands for and what it should want – may yet prove a decisive, Kairos moment of opportunity.
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