Unconstitutional state

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National Socialist Germany : The Prussian Minister of Justice Hanns Kerrl inspecting the gallows with the paragraph sign hanging on it in the camp for legal trainees in Jüterbog . To his left, the camp manager, Chief Public Prosecutor Christian Spieler and his deputy, SA-Sturmführer Heesch (August 1933)

Unjust state is a disparagingly used term for a state that is not a constitutional state . It is a political catchphrase with which the regimes of both Germany during the time of National Socialism and the GDR are identified. Equating both systems through the concept of the unjust state is controversial among both politicians and lawyers. The debate has found its way into the legal discourse, which particularly endeavors to define the term.

Origin of the term

The term is attributed to the Prussian Catholic Peter Reichensperger (1810-1892). With the concept of the injustice state , Reichensperger wanted to suggest that Prussia would become one if it curtailed the rights of its Catholic subjects. At the 24th session of the Second Chamber of the Prussian Landtag on February 12, 1853, MP Reichensperger said: “I think the rule of law consists in the fact that the authorities are entrusted with the sword to frighten the wicked and to protect those who are in their Are right, exercise their right; In my opinion, however, one would have to call an injustice state the one who wanted to protect the troublemakers and threaten those who are in their rights. "

Conceptual content

Gustav Radbruch (SPD), Reich Minister of Justice during the Weimar Republic , applied the term to the Nazi regime in 1946 in his epoch-making essay legal injustice and supra-legal law , in which he coined Radbruch's formula : To “the return of such an injustice state “To prevent, material justice must take precedence over positive law if this is unbearably unjust or if it deliberately denies the equality of all people . In succession to Radbruch, the term injustice state was then used for a long time to denote National Socialist Germany.

In Horst Sendler's view , it is characteristic of an injustice state that it lacks the aim of realizing the law and, by and large, achieving it. Individual legal and constitutional violations have not yet made a state an unjust state, as these sometimes also occur in constitutional states. Also, a state should not be called an “unjust state” if it does not correspond to the model of the classic civil constitutional state and in particular does not correspond to the federal German constitutional state. On the other hand, the term “unjust state” does not exclude the fact that there are also areas in such a state in which the rule of law prevails and justice is exercised. Gerd Roellecke , on the other hand, considers it crucial that an injustice state does not presuppose the equality of all people. In contrast to historical "non-legal states", according to the state of historical development, illegal states could also be constitutional states.

Use in legal texts

In its 1953 ruling in the Remer trial , the court agreed with the arguments of the Attorney General Fritz Bauer that " Hitler's state was not a constitutional state, but an injustice state" and that resistance to resistance was justified as self-defense .

“The criminal chamber is of the opinion that the National Socialist state was not a constitutional state, but an injustice state that did not serve the well-being of the German people. The question of the constitutionality of the Nazi state does not need to be dealt with in more detail here. Everything that the German people had to endure, beginning with the fire in the Reichstag on July 30, 1934 and November 9, 1938, was blatant injustice, which had to be eliminated. It's hard, bitter and hard for a German court to have to pronounce something like that. "

- Judgment of the Braunschweig Regional Court in March 1952

Bauer defined the concept of the injustice state narrowly: He doubted that fascist Italy should be included in it, since no “enemy” had been defined there that should be systematically “eradicated”. In his opinion, these conditions were only fulfilled by the Nazi regime and the Stalinist Soviet Union .

The term “unjust state” was also used in a proclamation by Federal President Heinrich Lübke from 1963, in which June 17th was declared a national day of remembrance. In a modified form as "injustice regime", the term is used in Art. 17 sentence 2 Unification Treaty - in the formulation " SED - injustice regime" - as well as in the law on suspending the statute of limitations for SED injustice acts of March 26, 1993 and in Art. 315a of the Introductory Act to the Criminal Code (EGStGB), where the "SED unjust regime" is mentioned. In the formulation " National Socialist injustice regime", the term in § 1 of the law for the repeal of National Socialist injustice judgments in the criminal justice system is also used. In Thuringia June 17 is the day of remembrance for the victims of the SED injustice .

The terms “unjust state” and “unjust system” are also often used in the academic discussion of constitutional law - particularly in relation to the GDR . The term “unjust state” was first applied to the “ Third Reich ” in 1979 in a legal publication.

In the jurisprudence of German courts , both the “Third Reich” and the GDR were described as an injustice state. Another example from the jurisprudence is Myanmar , which was characterized as an injustice state in a judgment of the Karlsruhe Administrative Court in 2008 "in view of the decades-long dictatorship of the military junta".

Use in the discussion about the GDR

Historical-political discussion

The concept of the unjust state plays a role in the historical-political discussion about the evaluation of the German Democratic Republic up to the turn of 1989/90 . On March 26, 1996, Federal President Roman Herzog told the Enquête Commission overcoming the consequences of the SED dictatorship in the process of German unification over the GDR: “It was an injustice state.” Chancellor Angela Merkel made the same point in 2009 . The historian Ilko-Sascha Kowalczuk also advocates the thesis that the GDR was an injustice state. He justifies this with the lack of an administrative jurisdiction and separation of powers : The judiciary has never been independent of the political guidelines of the state and the party. The GDR Criminal Code was aware of numerous political criminal offenses, such as anti-subversive agitation , defamation of the state, rioting, etc., which led to a large number of political prisoners . The majority of them simply wanted to leave the country or were criminalized for passing on unwanted literature such as George Orwell's 1984 :

"Injustice was structurally and politically conditioned, law always remained arbitrary."

Others, on the other hand, especially politicians from the Left Party , oppose the characterization of the GDR as an injustice state, for example the politician Gesine Lötzsch on the grounds that the term "injustice state" is a propagandistic battle term that should brand. Lothar de Maizière , the last Prime Minister of the GDR and member of the CDU (GDR) , describes the term “unjust state” as unfortunate, since the term implies that everything that happened there in the name of the law was wrong. Political scientist Gesine Schwan also rejects the generalized application of the term “unjust state” to the GDR. The GDR was not a constitutional state , but its one-sided description as an unjust state placed the work and life of all former GDR citizens under general moral suspicion . Reinhard Höppner asserted that the GDR was more than an injustice state. It was also an attempt to "shape a fairer society". Failure "does not necessarily discredit those who were looking for a more just society on this path."

In the coalition talks on the formation of the new state government in Thuringia in 2014, the recognition of the designation “unjust state” became a requirement of the factions of Bündnis 90 / Die Grünen and the SPD in order to form a government coalition with the Left. In order to nevertheless enable the formation of a government, a compromise was reached in which the GDR was described as “an unjust state as a consequence”. The federal chairwoman Katja Kipping stated that she found “the formulation that the Thuringians found in the exploratory talks to be completely correct”. Gregor Gysi , chairman of the party's parliamentary group in the German Bundestag , later opposed the designation. In the election campaign for the Thuringian state elections in 2019, the Prime Ministers Bodo Ramelow (Thuringia) and Manuela Schwesig (Mecklenburg-Western Pomerania) spoke again on the term and told the newspapers of the Funke media group : "The GDR was clearly not a constitutional state." The term sounds like this, " as if all of life was wrong. But we need more respect for East German life's achievements. ” Werner Schulz emphasized in this context that the injustice in the GDR was not perpetrated by individual perpetrators, but was organized and served the rule of the SED.

The Brandenburg attorney general Erardo Cristoforo Rautenberg denies that the term unjust state, as defined by Fritz Bauer in the 1950s, should be applied to the GDR. Bodo Ramelow criticized this in a similar way. For him, the term “unjust state” is “directly and exclusively associated with the time of Nazi rule and the courageous Attorney General Fritz Bauer and his use of the legal term 'unjust state” in the Auschwitz trials. "

The sociologist Karl-Adolf Otto , referring to an expert opinion of the Scientific Service of the Bundestag, stated that there is no scientifically tenable definition of the term injustice state neither in jurisprudence nor in the social sciences and humanities; it does not exist at all in international law . The GDR could not be denied a will to create a just state and legal order ; it was a dictatorship , but not an unjust state.

Legal discourse

The extent to which the GDR can be described as an injustice state is also disputed among lawyers . Horst Sendler is of the opinion that the GDR was "essentially an injustice state" because the laws were "only set pieces" that could "be pushed aside if necessary" when they were "passed on to the government [...] or other decision-making bodies “Didn't fit; the GDR had said “drastically and casually” “whistled about the law”. On the other hand, Ingo Müller believes that the unjust state per se does not exist any more than a state that has once and for all earned the honorary title of “constitutional state”, so that the individual acts of injustice that have taken place must be assessed individually. Volkmar Schöneburg advocates carefully analyzing the legal norms in the Nazi state as well as in the GDR and not simply replacing them with the category "unjust state". Equating the GDR and the Nazi regime with the concept of the injustice state is also wrong, since this would lead to the danger of playing down Nazi rule that reached completely different dimensions of injustice.

The Federal Constitutional Court had always "followed a cautious and ultimately not precautionary decision-making strategy in relation to the GDR: they refused to regard the other German republic as 'the unjust state through and through' [...]."

In 2012, in the context of a judgment against a colonel from the Ministry for State Security, the Tiergarten District Court rejected his allegation that the GDR was not an injustice state. "Due to the current state of historical research and the final conviction of leading personalities of the former GDR, it is certain," the court said, "that the former GDR was a tyranny or arbitrary rule ."

Further use of the term

In February 2016, the CSU chairman criticized Horst Seehofer , the Merkel government not because of their legally covered it considers acting out in the refugee crisis and spoke of a "rule of injustice". This formulation led to widespread criticism because Seehofer brought the Federal Republic linguistically close to the unjust state of the Nazi dictatorship.

See also


Web links

Individual evidence

  1. a b c Ingo Müller, NJ 1992, pp. 281 ff., 282.
  2. Sendler, ZRP 1993, pp. 1 ff., 2.
  3. ^ Wilhelm Rettler: The criminal law protection of socialist property in the GDR (= legal contemporary history 3, 40). De Gruyter, Berlin / New York 2010, ISBN 978-3-11-024855-5 , pp. 183-184.
  4. ^ Matthias Heine: State criminals have feared this word since 1853. In: The world . October 7, 2014, accessed October 9, 2014 .
  5. ^ Gustav Radbruch: Legal injustice and supra-legal law . In: Süddeutsche Juristenteitung , 1946, pp. 105-108 (here the quote) ( PDF ( memento from January 29, 2016 in the Internet Archive ), accessed on November 15, 2014).
  6. See e.g. B. Editorial Critical Justice (Ed.): Der Unrechtsstaat. Law and Justice under National Socialism . European Publishing House, Frankfurt am Main 1979; Udo Reifner (Ed.): The law of the unjust state. Labor law and political science in fascism . Campus, Frankfurt am Main / New York 1981; Günter Neliba: Wilhelm Frick: The legalist of the unjust state . Schöningh, Paderborn 1992.
  7. a b Sendler, ZRP 1993, 1 ff., 4.
  8. Sendler, ZRP 1993, pp. 1 ff., 3.
  9. Sendler, NJ 1991, p. 379 ff., 380.
  10. Gerd Roellecke: Was the GDR an injustice state? FAZ.NET , June 15, 2009, accessed July 2, 2009 .
  11. Claudia Fröhlich: "Against the tabooing of disobedience". Fritz Bauer's concept of resistance and dealing with Nazi crimes , Campus, Frankfurt am Main / New York 2006, ISBN 978-3-593-37874-9 , pp. 99 and 118; Johannes Tuchel (Ed.): The forgotten resistance. On real history and the perception of the struggle against the Nazi dictatorship (= Dachau Symposia on Contemporary History; Vol. 5), Wallstein, Göttingen 2005, ISBN 978-3-892-44943-0 , p. 222 ff.
  12. See Irmtrud Wojak: Fritz Bauer 1903–1968. A biography , 2nd, through. Ed., CH Beck, Munich 2009, ISBN 978-3-406-58154-0 , p. 276 .
  13. a b Erardo Cristoforo Rautenberg : At home among enemies , in: Die Zeit , No. 47 of November 13, 2014, p. 17.
  14. BGBl. 1963 I p. 397
  15. 1. Statute of Limitations; Federal Law Gazette 1993 I p. 392 . The corresponding Second Act for the Calculation of Statute of Limitations under Criminal Law (Second Calculation Act), announced as Art. 1 of this Act, was repealed with November 30, 2007 by Art. 52 of the Second Act on the Adjustment of Federal Law within the remit of the Federal Ministry of Justice of November 23, 2007 ( BGBl. 2007 I p. 2614 ).
  16. § 2a of the Thuringian Celebration and Remembrance Day Act
  17. ^ Association of German Constitutional Law Teachers (ed.): The rule of law and the processing of the pre-constitutional past , reports and discussions at the conference of the Association of German Constitutional Law Teachers in Giessen from October 2nd to 5th, 1991, ISBN 3-11-013580- 9 . Various authors use the term “unjust state” on pages 16, 99, 114, 118, 135 f., 153 f., 156, 159.
  18. See also the editorial team of Kritische Justiz (ed.): Der Unrechtsstaat , Frankfurt am Main 1979; U. Reifner (Ed.): The Law of the Unrechtsstaats , Frankfurt am Main / New York 1981.
  19. BVerfG , decision of December 7, 2004, Az .: 1 BvR 1804/03, BVerfGE 112, 93 ff., Rn. 4th
  20. BGH , ruling of November 21, 1994, Az .: AnwZ (B) 54/94 ( Official guideline : On the requirements for assuming a violation of the principles of the rule of law or humanity when participating in the GDR case law in political criminal matters. ) , NJ 1995, 332 f., Rn. 13.
  21. ^ VG Karlsruhe, judgment of December 16, 2008, Az .: A 11 K 1340/08 .
  22. a b cf. Thomas Claer, Was the GDR an injustice state? Why a differentiated view neither belittles the GDR nor violates the dignity of the victims , in: Justament , Berlin, October 2010 ( online ).
  23. Deutschland Archiv 29 (1996) 3, p. 501; Wording ( memento of June 11, 2009 in the Internet Archive ).
  24. Chancellor Merkel reckons with the GDR as an “unjust state”. Welt Online, May 9, 2009, accessed July 9, 2009 .
  25. Ilko-Sascha Kowalczuk: The 101 most important questions - GDR. CH Beck, Munich 2009 (=  Beck'sche Reihe , vol. 7020), p. 35 .
  26. Definition of the term “unjust state” in academic literature - brief information for the member of the Bundestag Gesine Lötzsch, WD of the German Bundestag, April 30, 2008.
  27. Last GDR Prime Minister: Lothar de Maizière does not want to call the GDR an injustice state , Spiegel Online from 23 August 2010.
  28. Gesine Schwan: Dictatorship: In the case of totalitarianism. Die Zeit , June 25, 2009, accessed on May 18, 2010 .
  29. "Defend me against one-eyedness" , Focus Online , August 29, 2013.
  30. ^ Die Linke, SPD, Bündnis 90 / Greens: coalition agreement between the parties DIE LINKE, SPD, BÜNDNIS 90 / DIE GRÜNEN for the 6th electoral period of the Thuringian state parliament. November 20, 2014, p. 2 , accessed on October 7, 2019 (final version of the content).
  31. Katja Kipping in conversation with Gerhard Schröder . In: Deutschlandfunk , October 5, 2014.
  32. ^ Possible coalition in Thuringia Gysi: GDR was not an injustice state . In: tagesschau.de , September 30, 2014. Archived from the original on September 30, 2014. 
  33. ^ A b East German heads of government: Schwesig and Ramelow do not want to call the GDR an "unjust state" . In: Spiegel Online . October 7, 2019 ( spiegel.de [accessed October 7, 2019]).
  34. a b Bodo Ramelow (Die Linke): Confession rituals , diary entry on personal website, October 18, 2019.
  35. Die Linke, trapped in the injustice state of the GDR , Die Welt, October 5, 2014.
  36. Karl-A. Otto: What is an “unjust state”? , in: Ossietzky , April 2011.
  37. Sendler, NJ 1991, p. 379 ff., 380.
  38. Volkmar Schöneburg: Law in the Nazi-Fascist and in the “Real Socialist” German State - Discontinuities and Continuities , NJ 1992, pp. 49 ff., 50.
  39. See Alexander Blankenagel , Verfassungsgerichtliche coping with the past , ZNR 1991, p. 80 with further references; Walter Leisner, The Land Reform Judgment of the Federal Constitutional Court, Consequences of War and Property Decision , NJW 1991, p. 1569 ff., Here p. 1573; see. also Kurt Kemper / Robert Lehner, Review of Final Judgments of the GDR , NJW 1991, p. 329 ff.
  40. Press release ( memento from September 22, 2014 in the Internet Archive ) of the Berlin-Hohenschönhausen Memorial from March 26, 2013.
  41. This is why Seehofer's statements are causing so much criticism , online edition of Münchner Merkur from February 10, 2016.
  42. ^ Nico Fried: In the injustice state. The CSU boss attacks Angela Merkel in a perfidious way , sueddeutsche.de , February 9, 2016; Seehofer and the Unjust State: Party friends keep their distance , Handelsblatt , February 10, 2016; Rainer Woratschka and Stephan Haselberger: “Rule of Injustice”. Seehofer: “What is being constructed here is adventurous” , tagesspiegel.de , February 10, 2016.