Year XXXII,1990, Number 2 - Page 155



In a long article published in Die Zeit on 30th March 1990, Jürgen Habermas made certain comments on German reunification which serve as a starting point for a precise definition of the federalist position on the latest developments on this problem.
The crux of Habermas’s argument is his criticism of the line taken by Bonn (a line accepted by the East Berlin government elected on 18th March): namely, their policy of trying to achieve a speedy fusion of the two Germanies, a policy based on Article 23 of the Grundgesetz; and his support for the unification procedure provided for in Article 146. The application of the first article means that unification between the two Germanies will come about through the Länder of the East Germany (which are in the process of being reconstituted) joining on to the Federal Republic, whose constitution will thus extend to the other Germany. The application of the second article on the other hand means calling a constituent assembly of the peoples of the two Germanies: this assembly should draw up a new constitution which, once approved by the German people after “free deliberation”, would replace the present, provisional Grundgesetz.
Unification on the basis of Article 23, according to Habermas, is equivalent to annexation of the East Germany by the nationalism of the Deutschmark. Indeed, on the one hand, the citizens of the West Germany have a constitution which is not born of a directly-elected constituent assembly, but rather of an assembly representing the Länder (because a constituent assembly in the full sense of the word could only come about after national reunification), and they are not being consulted on national unification and on the constitution of a united Germany now, just as they were not consulted about joining the Saar to the West Germany in 1957, which took place under Article 23. On the other hand, the citizens of the East Germany are practically obliged to agree to unification by their disastrous economic situation and by the hope – fed by the promises of the Bonn government – of improving it quickly and substantially by being absorbed into wealthy West Germany. Consequently, national identity, which will be the basis of the new state, will not be a republican identity, founded on a free and conscious choice of liberty, democracy, the social state and peaceful co-operation among nations. Instead, it will be a national identity of the traditional type, based on an idea of the nation as essentially an ethnic, cultural and collective community, chosen by fate, instead of a free and meditated choice of emancipated citizens. Thus there would be no hope of breaking once and for all the continuity of a tradition that goes back to Bismarckian national unification and has always seen German national identity assert itself more or less strongly against the western liberal democratic tradition.
This method of achieving unification between the two Germanies risks producing very dangerous consequences. In the first place the confirmation of a non-republican national identity carries the risk of keeping alive the tendencies to authoritarianism and forced assimilation of ethnic minorities, which had their most extreme manifestation in Auschwitz. In the second place, the speed with which the unification of the two Germanies is being realized means it will happen before European unification, which ought to be the context within which German unity is achieved. In the third place, with the application of Article 23, the Grundgesetz becomes no less provisional in nature from a strictly legal point of view, and this will give rise to the suspicion that a definitive constitution would only be achieved with the extension of the Federal Republic beyond the Oder-Neisse line. The application of the procedure provided for in Article 146 would thus seem, on the basis of Habermas’s conclusions, the best way to guarantee three things: an effective free choice by the German people; the procedural priority of European unification over that of Germany (a German constituent assembly would be a lengthy process); and the closing of the question of the German national state boundaries.
What is most positively to be highlighted in this line of argument is the centrality of European unification. In fact Habermas has already for some years been maintaining the need to make the nation-state no longer the principal repository of collective identity, which, in the post-national era, should rather have a multidimensional character, thus encompassing supranational and infranational communities too.[1] The fact that from this fairly general thesis he now gives such a neat affirmation of the priority of European over German unification is a sign of the times. What this means is that the German intellectual left wing is beginning to take the federalist argument seriously, whereas previously they had on the whole treated it with indifference. Having said that, one cannot but raise certain unconvincing points in Habermas’s arguments which weaken his championing of European unity.
To begin with, the Bonn government’s opting for a speedy fusion of the two Germanies derived, in my opinion, fundamentally from the actual situation and only secondarily from the power interests of Chancellor Kohl and his party. The most obvious and immediate aspect of this situation is the exodus to the West, and the economic collapse and growing ungovernability of the East Germany, which made it seem that joining the latter to the Federal Republic as fast as possible would be the quickest way out of what was fast becoming an intolerable position. But there is another aspect, less closely linked to the immediate economic situation, and yet of the greatest importance, which must be borne in mind in order to understand Bonn’s policy: the accumulated delay in the European unification process. If in 1985 the Treaty of European Union had been approved instead of the Single European Act, the problem of German unification would have been faced within the context of a European Federation which was well on the way to being completed, and thus in a situation in which federalist culture would have been stronger than nationalist. In the context of a multinational Federation, the option of having several German states under a European roof might have prevailed, for the same reasons for which in the Swiss Federation there are several German Cantons. It would undoubtedly have been a solution preferable to that of making West and East Germany into a single state, because applying the principle that state and cultural nation should coincide may legitimize a series of national claims, not only German, which would clearly be a destabilizing force.[2] Since however the creation of a federal European government was postponed, it was inevitable that when the problem of unification of the two Germanies suddenly became a burning issue, the nationalist view of things should prevail over the federalist viewpoint.
So, events led to the option of making a single German state. The best way to avoid this initial success leading to a complete and definitive victory for nationalism, is not now to delay German unification, but rather to speed up European unification, in other words to establish a close parallel between the two processes. If we succeed in setting German unification within the context of a European Federation, then the greatest consequence will be that of nipping any tendency to German domination in the bud. Aggressive German nationalism was in fact fuelled fundamentally not by the characteristic German anti-democratic traditions, but by the need to unify the European continent to help it face the problems posed by the growing interdependence of human activity on a continental and intercontinental scale.[3] From the beginning of this century reason has pointed to a European Federation as the only progressive response to this challenge, the only response which is able to reconcile unity at continental level with the independence of nations and the development of democracy, and to open the way to worldwide unification. And precisely because people did not want to listen to reason, the way was open to the reactionary alternative of hegemonistic unification pursued by the strongest country in Europe. This option, defeated in 1918 and 1945, is destined to present itself once more, albeit in different forms –the imperialism of the mark, rather than that of the armed divisions – unless, with the imperial order of opposing blocs breaking up, there is immediate action to create a federal European order. On the other hand, with a Germany united but forming part of a European Federation, not only would the push for German political domination become less, but also the objective possibility of carrying out such a policy, since the power of the German Federal government would be strictly and irreversibly limited, from above by the Federal European authority (the mark would be absorbed into the Ecu), and from below, by the regions. Moreover, the question of the German border would be definitively closed, and not only in name (for treaties can always become mere pieces of paper). It would be closed because in a European Federation, even if not yet fully developed, nationalistic politicking on problems of this nature would gradually become impossible. In any case, with the progressive enlarging of the European Federation towards Eastern Europe, country boundaries would have less and less importance and it would become possible for the federal authority to effectively defend all national minorities.
The correct line to take then is that of hastening European unification, which in fact is already receiving a strong impulse from the rapid development of German unification: this is also because German unification is supported by the vast majority of the German political class and public opinion, which has in part ceded to the claims of nationalism, but at the same time appears conscious of the grave dangers that lie ahead if the future of Europe is compromised. If we seriously intend to adopt parallel paths for European and German unification, the decisive objective is no longer the German but the European constituent assembly. This is necessary above all because to entrust the building of Europe exclusively to diplomatic negotiations would inevitably lead to intergovernmental results which would only accentuate the democratic deficit of the European Community. Similarly, the European constituent assembly is necessary for the very same reasons cited by Habermas as calling for a German constituent assembly. In order for the European state to found itself on an identity of republican citizens, Europeans must first be able to participate directly in its construction and express themselves freely and consciously on its constitution. A European constituent assembly is indispensable to such an aim: it is far more important than a German constituent assembly, since the latter operates at the level of national democracy, which is no longer adequate to cope with fundamental supranational problems. National democracy therefore has to be set within a supranational democratic framework.
At this point it would appear legitimate to conclude that the ideal solution would be parallelism between the European constituent assembly and the German one provided for in Article 146. In reality such a conclusion is not convincing for the very concrete reason that a German constituent assembly would end up delaying, or at least complicating, the procedure for the European constituent assembly. First of all the German political class would be so involved in the process of setting up the German assembly that they would have no time to devote to that for the European process. In the second place, the implementation of a new German constitution would pose the problem of a renegotiation of the new country’s adhering to the Treaties agreed by the West Germany, and thus also of those of the Community. It therefore seems preferable, taking into consideration the need to speed up the process of European unification, to follow the procedure outlined in Article 23.
It should further be emphasized that it would be juridically possible to combine the methods indicated by Articles 23 and 146 without introducing factors delaying European unification, and at the same time permitting the citizens of the two Germanies to state their opinion on German unification.[4] In fact, once the East German Länder had joined the Federal Republic on the basis of Article 23, the Federal Parliament elected by the two Germanies could declare that the Grundgesetz was the definitive constitution of Germany. In this way, Article 146 would be eliminated by a revision of the constitution, and the legal possibility of the provisional nature of the West Germany casting doubt on the validity of the Treaties (for example, those recognizing the East German borders) signed by it would also be decreased. The decision of the Federal Parliament could then be subjected to ratification by the electorate by means of a referendum, which, while not expressly provided for in the Grundgesetz as a means of revising the constitution, is not excluded either. This would also be desirable on the other hand to eliminate the anomaly of a constitution which was not directly voted for by the citizens of Germany.
In this connection, one final conclusive observation may be made. If it were to be decided that a national referendum should put the final seal of approval on German unification, why not decide to simultaneously hold a referendum on European unity? Depending on how far advanced the constituent stage of European political unity was, it could be either a ratification referendum of the European Constitution or a referendum proposing constituent mandate to the European Parliament, analogous to the referendum held in Italy on 18th June 1989. Apart from this aspect, the legal motivation for this request for simultaneous German and European referenda should be based on the claim in the preamble to the Grundgesetz, which indicates German unity and the unity of a peaceful Europe as the two fundamental commitments of the German people. The fundamental motivation should, on the other hand, call attention to the fact that simultaneous referenda for German and European unity would in an act of great solemnity, and thus of great educational effect, visibly overcome the principle that the nation-state is necessarily the sole repository of collective identity. Why does Habermas not employ his great intellectual authority in support of such a design?
Sergio Pistone

[1]Cf. AA.VV., Historikerstreit, Munich, Piper, 1987.
[2]Cf. Sergio Pistone, “Many German States under a European Roof,” in The Federalist, XXXI (1989), n.3. Cf. also “The Revival of Nationalism,” ibid., XXXII (1990), n.1.
[3]The particular aggressivity of German nationalism is certainly also linked to the antidemocratic characteristics of the nation-state founded by Bismarck, which found significant ideological expression in the prevailing “naturalistic” conception of the nation, instead of a “voluntaristic” conception, such as that of Mazzini (cf. for this latter point Mario Albertini, Lo Stato nazionale, Milano, Giuffré, 1960). On the other hand, to be adequately understood these characteristics must be seen in relation to the central continental position of Prussia and then of Germany: a geostrategic position in the system of states which meant that the need for security took priority over liberalism and democracy. The explanatory validity of this interpretative line, traditionally associated with the German school of historians (cf. Ludwig Dehio, Gleichgewicht oder Hegemonie, Krefeld, Scherpe Verlag, and Deutschland und die Weltpolitik im 20. Jahrhundert, München, Oldenbourg, 1955), finds strong confirmation in the fact that it was substantially shared by an author who is diametrically opposed in ideology to this school: Engels. Cf. in particular Engels’ letter to Bloch of 21st September 1890, published in L. Althusser, Pour Marx, Paris, Maspéro, 1965.
[4]Cf. J.A. Frowein, “Rechtliche Probleme der Einigung Deutschlands”, in Europa Archiv, 1990, XXXXV, n. 7.

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