Legal Entanglements. Law, Rights and the Battle for Legitimacy in Divided Germany, 1945–1989

Gehrig, Sebastian
New York 2021: Berghahn Books
Anzahl Seiten
XIII, 327 S.
$ 135.00
Rezensiert für H-Soz-Kult von
Maximilian Wagner, Berlin

In recent years, numerous books have been written about the German Democratic Republic (GDR) and its legal history. Most of these books were written by jurists and dealt exclusively with East Germany. Sebastian Gehrig’s 2021 book, Legal Entanglements, is different. After studying history at Göttingen and Cambridge, Gehrig attempted to write legal history “not merely from a comparative, but from an entangled perspective” (p. 266). As he argues throughout the book, the different legal frameworks of the two states “entangled the constitutional laws of postwar Germany and the rights of Germans in an ideological struggle over German sovereignty, law, and rights” (pp. 1f.), which in turn gave rise to a “legal Cold War” (p. 2) or “Cold War over law” (p. 17) between socialist legality and the Rechtsstaat (rule of law). In three parts, Gehrig explores this Cold War over law from the end of World War Two to the fall of the Berlin Wall. Part I focuses on the transition from the Second World War to the emerging Cold War, Part II examines how both German states took their ideological struggle to the international arena, Part III analyses the development of two separate legal universes.

For Gehrig, the battle for legitimacy began in 1945. While West German jurists hoped to salvage as much of pre-war Germany as possible, there was considerable disagreement in other respects. Using examples such as the debate on rearmament, the status of the Saarland and the infamous trial against the Communist Party, Gehrig vividly describes the West German struggle “to find a comprehensive strategy that accounted for the continuity between the German Reich”, while attempting to “account for Western political, economic and military integration, and combative legal positions against the GDR” (p. 46). In the 1950s, this strategy was finally founded not in Bonn, but in Karlsruhe. In two landmark rulings, the Federal Constitutional Court of the Federal Republic of Germany (FRG) firmly established the freiheitliche demokratische Grundordnung (liberal and democratic basic order) and the streitbare Demokratie (defensive democracy).

The reader thus learns a great deal – although much of it well-known – about the formation of a West German legal identity. Yet, Gehrig does not devote the same attention to the formative years of the GDR. In the alleged absence of a clear vision and due to a focus on West German developments, Gehrig argues, the development of a distinct East German legal system stagnated after 1949. Soviet influences are initially dismissed as the “adoption of [...] propaganda language” (p. 69). The later “turn to Soviet legal traditions” is brushed aside as “in no way straightforward” (p. 88). Gehrig writes little or nothing about the transformation of the East German justice system, the training of Volksrichter (people’s judges), the dismantling of the federal states and their administrative jurisdiction or the abolition of the Berufsbeamtentum (civil service). Similarly, very little is said about the state’s efforts to emancipate women, the Waldheim trials or the reaction of the GDR’s law faculties to the Hungarian uprising of 1956. As Gehrig himself highlights, between the establishing of the state and building the Berlin Wall (1961), East German legal politics “remained fixated on domestic struggles over the correct ideological interpretation of what socialist law, legality and rights actually meant” (p. 97). Yet, Gehrig does not specify of what these domestic struggles looked like and what socialist law, legality and rights actually meant. By the time of the building of the Berlin Wall the “primacy of ideology and party control over socialist legal norms” (pp. 91f.) had been consolidated to the extent that the GDR (and Gehrig) could finally move on from domestic struggles to international law.

As Gehrig shows, the GDR’s quest for international recognition was also a quarrel for the right interpretation of self-determination. While West German jurists linked self-determination to sovereign statehood in order to legitimize legal continuity, territorial expansion and the representing of Germany in the United Nations, GDR officials hopped on the “Third World bandwagon” (p. 111). Similarly to officials from many African, Arab and Asian states, they too argued “for independence from colonial rule through sovereignty, the guarantee of human rights through citizenship rights and the impact of international legal norms on nation-states” (p. 107). Hence, the GDR began to portray the FRG as an imperialist and revisionist construct intended to reassert Western dominance through economic exploitation (see p. 114). In this way, Gehrig aims to demonstrate how both Germanies related to one another. Whereas West German legal identity fundamentally depended on the communist threat, East German foreign policy drew heavily on anti-imperialist rights rhetoric.

The book’s second major theme, citizenship, also underpins this mutual entanglement. Until the late 1960s, the FRG maintained the goal of preserving German citizenship within the borders of 1937. It placed ethnicity at the center of its citizenship policy and used visa restrictions to prevent East German officials from attending international events. The GDR’s response was to make emigration (Republikflucht) a criminal act and to implement forced naturalization; it ceased to revoke the citizenship of (former) citizens and instead apprehended them upon entry into the Eastern Bloc. While the FRG understood citizenship as a natural right independent of the state, the GDR supplemented basic rights granted by the state with civil duties towards the state – first and foremost the duty to remain a political subject (see p. 148). Interestingly, both positions lost momentum in the course of the 1960s. The West German position lost its cogency under the growing pressure of decolonization movements. In order to gain international recognition, the GDR had to pledge support for human rights and international conventions. Gehrig skillfully manages to tell this story as a tale of double defeat: With the admission of the GDR to the United Nations in 1973, the West German blood-and-soil ideology came to nothing. Two years later, the signing of the Helsinki Accords marked the nearing end of the GDR.

Gehrig’s account of the following 15 years is not merely an afterthought. Instead, he emphasizes how the GDR’s recognition as a sovereign state reduced mutual dependency. Consequently, after 1973, both German states “worked to disentangle their legislation and moved to independent legal identities” (p. 252). In the East, international recognition gave way to two opposing tendencies. On the one hand, East German legal experts now “confidently engaged in the transnational socialist project of building an international counter-universe of law“ (p. 215). On the other hand, dissidents now utilized human rights language against the party-state. Ultimately, the ruling party’s attempt to domesticate this rhetoric through Socialist Constitutionalism or a Socialist Declaration of Human Rights (1985) failed. Socialist legality withered away at its (self-proclaimed) peak (see p. 235). In the West, the student movement and the German Autumn of 1977 reopened old questions: “Should [the law] be first and foremost a tool for social transformation or a harbinger of political stability?” (p. 244) For West German social democrats, the answer was clear. They understood law as an instrument to reduce social inequality. Their legal policy therefore aimed at equal rights for women, equal access to health, education and work, and ways to make the law understandable and accessible to the general population (see pp. 247f.). To conservatives, this was the epitome of socialism. Their proposed alternative: individual freedom, social peace and the rule of law. This late East-West comparison impressively shows how little the two states needed one another and how independently they developed in the end. It would have been interesting to see, however, how citizenship and sovereignty played out in the reunification negotiations, and how the contest between socialist legality and the rule of law led up to the later comparison of the West German Rechtsstaat and the alleged Unrechtsstaat (unlawful state) in the East. However, the book covers nearly 50 years and touches on so many topics in less than 300 pages that it is hard to fault Gehrig for this omission.

Gehrig’s book on the legal history of the Cold War is extensively researched and well-written. However, his trenchant observations cannot always be generalized, precisely because his analysis of international law and civil rights lacks a deeper connection to other areas of law and legal theory. Gehrig acknowledges that at first it was not the Rechtsstaat but natural law that West German jurists upheld against the communist threat. However, he does not explore this development further. In a similar vein, Gehrig’s account of socialist legality as legal theory (not as legal practice) remains rather shallow. How key figures such as Evgeny Pashukanis, Andrey Vyshinsky, Karl Polak, Hilde Benjamin or Hermann Klenner embedded socialist legality in Marxism and bourgeois legal theory, remains largely unclear. Arguably, these shortcomings may be the outcome of the book’s original approach. After all, Gehrig describes law mostly as an “integral part of […] two separated political cultures within the two German states in the midst of legal internationalization” (p. 252). Thus, his work is less about domestic ideology or legal theory than it is about international law and legal policy. This is particularly evident in his emphasis on how the GDR attempted to harness the rhetoric of anti-colonial movements and the attention Gehrig pays to sovereignty, citizenship and the right of self-determination – concepts that might have made a more fitting title than Law, Rights and the Battle of Legitimacy. Nonetheless, Gehrig’s book impressively shows that one does not have to be a German legal scholar to write a legal history of divided Germany. Although Gehrig lacks an appreciation for legal detail, he still succeeds in telling a captivating story of the legal Cold War that is both compelling and thought-provocative.

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