Germany 2023 – what we should keep in mind

 Unfortunately, the following text cannot give hope for better German politics in 2023. Considering the oath that all members of the government had to take when taking office – “I swear that I will devote my strength to the welfare of the German people, increase its benefits, avert harm from it, uphold and defend the Basic Law and the laws of the Federation, fulfil my duties conscientiously and do justice to everyone.” –, the German federal government in office since December 2021 is in many respects a total failure. This total failure does not only concern German foreign policy; also, in domestic policy, the increasingly authoritarian German state is alarming. Also, the just as authoritarian behaviour of German politicians and the leading political organisations in society – including the German media. Taking the comparison of democracies and autocracies seriously, Germany could no longer be considered a democracy. 

The authoritarian tendency of German rulers and the
German spirit of subservience

This is nothing new for Germany. The authoritarian tendencies of the country’s rulers are a common theme in German history, especially in times of political, economic and/or social crisis. Fifty-six years ago – on the occasion of the changes to the Basic Law planned by the German government through the Notstandsgesetze[Emergency Laws] – the book “Wohin treibt die Bundesrepublik?” (“The Future of Germany”, 1967, The University of Chicago Press), sensational at the time, by the German philosopher Karl Jaspers – by no means an extremist – was published.
    This book is still worth reading today, as in many respects one feels as if one has been transported to the present. To illustrate this, the heading of one chapter is quoted here: “From the oligarchy to a dictatorship”¹.
    A passage in the text reads:

“Centuries of authoritarian government have left us Germans with a residue of half-conscious attitudes which remain strong to this day. There is respect for the government as such, no matter what kind, no matter how established. There is the need to worship the state in its representative politicians, as substitutes for king and emperor. There is the subject’s awe of authority in all its forms, down to the lowliest clerk behind an office window; there is the readiness to obey blindly, the confidence that the government will do right. The subject thinks he need not bother his head about the government that looks after his welfare and his security in the world, the government that makes him proud to belong to a great nation entitled to make just and effective demands on other nations. For a subject there is an aura about de facto rulers. However foolish they may act, their jobs hallow them, so to speak, and they themselves feel hallowed. They may take outrageous liberties, may sacrifice the public interests to personal feuds, may carry on intrigues and show the meanness of their spirit in political speeches. They still remain objects of reverence. In short, the way we feel toward out government is often still the way a subject feels; it is not the democratic attitude of a free citizen. A subject grumbles, to be sure, when grumbling is safe and will have no consequences, but he obeys, shows respect, and eschews action.” (p. 22–23)

“Devaluation of the free spirit”

Another passage in Jaspers reads:

“Another harbinger of dictatorship is the incipient depreciation of the free mind. The question today is whether a crippling of education, of research, of intellectual life at large has already set in, whether initiative is declining all over. A man’s advancement nowadays depends not so much on his mental and moral qualifications as on his connections, on the most varied kinds of loyalties, and on specialized technical competence. We cry for personalities and do our best to hamper their emergence and effectiveness. Hence the debility, the sluggishness of a life whose vital energies will either go into mere toil or evaporate in a void of talk, of demands, of abuse, or tranquilization. Neither in the operation of our businesses nor in our passing, swiftly forgotten excitements is there a faith or an ethos. The resulting human masses are conditioned for a dictator; they are all but asking for him.”(p. 30–31)

At that time, however, the opposition to such developments was more solid, determined, and broad-based than it is today. This was not primarily the anti-authoritarian (student) movement of the time, which was itself authoritarian and also violent, but the citizenry as a whole: the CDU, which was the party of Federal Chancellor until 1969, was removed from government power, the SPD politician Willy Brandt became Federal Chancellor, and one of his main promises in his first government declaration was: “We want to risk more democracy.” – even though this was actually only implemented to a limited extent and Willy Brandt had to resign as early as 1974.

The new German “liberalism” behaves in a highly authoritarian manner

Today’s authoritarian German state – and this is what distinguishes it from its predecessors – is characterised by the fact that on the one hand it presents itself as highly libertarian, preaching and practicing a kind of liberalism that promotes and favours all social groups that are hostile to tradition. On the other hand, however, it acts harshly against all who are questioning this kind of liberalism. Not to mention the media and social pressure groups (today called non-governmental organisations or NGOs) that vociferously and influentially pursue social exclusion.
    Thus, the restrictions on civil liberties, especially freedom of expression, are increasing. Much has been said and written about this. The reference to the book by Hannes Hofbauer, published in 2022, “Zensur. Publikationsverbote im Spiegel der Geschichte. Vom kirchlichen Index zur YouTube-Löschung“, may suffice here (cf. also the book review in Current Concerns No. 14 of 5 July 2022). Since 24 February 2022 – after Hannes Hofbauer’s book was written – the restrictions on freedom of expression have further intensified.
    On 7 December 2022, MDR radio published the results of a survey of around 27,000 citizens of the eastern German states.² 48 % of those questioned said they were afraid to express their own opinions. This fear is particularly strong when expressing opinions in social media. Here it is 70 % who stated this. 78 % of the respondents said that one must be careful how one expresses oneself on certain topics in Germany. Finally: For 59 % of respondents, freedom of expression in Germany is in a bad way. Such survey results have a real background.

Reminder of the importance of freedom of expression

However, the fundamental importance of freedom of expression for freedom as a whole, for the rule of law and for democracy should also be recalled here.
    Still important today is a passage from Immanuel Kant’s prize essay “Beantwortung der Frage: Was ist Aufklärung?” [Answering the question: What is enlightenment?] of 1784 – five years before the then violent French Revolution:

“A deliverance, from personal despotism, and interested and tyrannical oppression , may perhaps be obtained by a revolution , but never a true reform of the cast of mind; new prejudices will serve, just as well as the old, for leading strings to the thoughtless multitude. [To this] enlightening however nothing is required but liberty; and indeed, the most harmless of all that may be named liberty, to wit, that, to make a public use of one’s reason in every point.” (emphasis km)

Even at the beginning of his writing, Kant had defined “Enlightenment” in his well-known diction as follows:

“Enlightening is, Man’s quitting the nonage occasioned by himself. Nonage or minority is the inability of making use of one’s own understanding without the guidance of another.”

“To make public use of one’s reason in every point”

All those who, from the beginning of the 19^th century onwards, campaigned largely non-violently for a free democracy based on the rule of law in Germany, and also the draft constitutions and the constitutions of the Weimar Republic and the Federal Republic of Germany followed this view of “making public use of one’s reason in all matters”. The students at the Wartburg Festivalin 1817 demanded in their 31^st principle: “The right to express one’s opinion on public affairs in free speech and writing is an inalienable right of every citizen.” The Hambach Festivalin 1832, another landmark of the German freedom and democracy movement, also demanded freedom of the press and freedom of expression. And it was no different with the March demands of the revolutionaries of 1848. Article 4 of the Basic Rights of the German People, adopted on 21 December 1848, stated: “Every German has the right freely to express his opinion by word, writing, printing and pictorial representation.”
    In the 19^th century, those in power in Germany were not yet prepared to comply with these demands. It was not until the constitution of the Weimar Republic that freedom of expression gained legal force. “Every German has the right, within the limits of the general laws, to freely express his opinion by word, writing, print, picture or in any other way. No employment or occupation may prevent him from exercising this right, and no one may discriminate against him when he exercises this right.” This was the wording of Article 118 of the Constitution. The Basic Law of the Federal Republic of Germany of 1949 followed on from its predecessors. Its Article 5 stipulates: “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” Going beyond the predecessor formulations, however, this not only guaranteed freedom of expression, but also freedom of information – an extremely important addition; because forming an opinion without freedom of information is a double-edged sword. Those who are denied access to comprehensive information are much more susceptible to manipulation of all kinds.

“The fundamental right to freedom of expression of opinion
is one of the noblest human rights of all”

Since its fundamental ruling in 1958 in the Lüth case³, the German Federal Constitutional Court has repeatedly commented on the individual freedom of expression and its rulings have generally been in favour of this fundamental right. It has formulated sentences such as: “The fundamental right to freedom of expression is, as a direct expression of the human personality in society, one of the most noble human rights of all. Freedom of opinion is the very essence of a liberal democratic state order because it is what enables a constant intellectual debate, a battle of opinions, which is its lifeblood. In a certain sense, it is the basis of all freedom.” (BVerfGE 7, 198) But also: “An expression of opinion is every statement, every opinion, every opinion within the framework of an intellectual debate. The value, correctness or reasonableness of the expression is irrelevant.” (BVerfGE 61, 1)
    Freedom of expression also has its limits, and rightly so. Article 5 mentions the “provisions of general law”, the “legal provisions for the protection of minors” and the “right to personal honour”. However, anyone who thinks that because of the wording “provisions of general laws” the legislature can use simple laws to nullify at will the freedom of expression is mistaken. “General laws” are only “those that do not prohibit an opinion as such, that are not directed against the expression of an opinion as such, but rather serve to protect a legal interest that is to be protected without regard to a particular opinion, the protection of a community value that takes precedence over the exercise of freedom of opinion”4. What this means in concrete terms must be decided by the courts in each individual case. What is certain, however, is that this barrier must not be directed “against the expression of an opinion as such” – as is now practised in Germany when an expression of opinion is politically “disturbing” and is to be put on the index by the state as well as by the media and press groups as “conspiracy theory”, “Russian propaganda” or even “delegitimisation of the state relevant to constitutional protection”. – While the unlawful, hate and fear-inducing incitement of the people, which has become part of everyday life in the German media, has so far emerged unscathed. •

¹ Scientists such as Hans Herbert von Arnim and Karl Albrecht Schachtschneider made similar analyses a few decades later.
² https://www.mdr.de/nachrichten/deutschland/politik/umfrage-meinungsfreiheit-100.html  as of 7 December 2022
³ cf. Stamm, Katja. “The Federal Constitutional Court and Freedom of Expression”; in: Aus Politik und Zeitgeschichte 37-38/2001, page 16ff.; https://www.bpb.de/medien/26034/4U777R.pdf  
⁴ https://www.juracademy.de/grundrechte/kommunikationsgrundrechte-rechtfertigung-eingriff.html