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International Socialism, Autumn 1965


Reiner Diederich

The West German Emergency Laws


From International Socialism, No.22, Autumn 1965, pp.23-28.
Translated by Stephen Castles.
Transcribed & marked up by Einde O’Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL)

1. Introduction

On 16 June the West German Chancellor, Erhard, declared in the Bundestag: ‘The extra-parliamentary forces have won.’ He was referring to the protests from trade unions and intellectuals, which had pressured the Social Democratic Party (SPD) into refusing to agree to the Emergency Laws proposed by the Government. Three things about Erhard’s statement are of special interest:

  1. As extra-parliamentary forces he classifies only the trade unions and the non-party Left at the universities and in the mass media. He has never dared to deride the big business lobby or the Farmers’ Association, which have often advanced their interests by the open use of threats, in this way.
  2. The phrase ‘extra-parliamentary forces’ is characteristic of the denigratory tone of those who feel that they alone are selected to represent the people. In a democracy in which the parties are becoming increasingly oligarchic and closer to one another, the extra-parliamentary forces must be portrayed as dangerous, uncontrollable tendencies, and if possible be identified with foreign enemies. Thus Erhard said in the debate on 16 June:

‘I see with concern and sorrow that democratic forces in our state – certainly without wishing it – seem at first sight to stand in a phalanx with the propagandists of Pankow and Moscow.’ [1]

  1. The extra-parliamentary forces have not won, but merely achieved a delay, through the wish of the SPD not to lose its left-wing marginal voters (about four per cent) for the expected neck-and-neck race in September. They hurried to give assurances that they would cooperate enthusiastically in the Emergency Legislation after the election.

2. Schröder’s First Emergency Bill

The Federal Government has been trying since 1958 to provide the West German Constitution with provisions for an ‘hour of crisis’. These attempts must be seen in relation to the rearmament and integration into the Western Alliance which had then just taken place. They crystallised in a Bill which the then Home Minister, Schröder, prepared in 1960. It was here still clearly proposed that the state of emergency should be proclaimed by a simple majority in Parliament – i.e., practically by the Government. No distinction was made between possible causes: war, external tensions, revolutionary activity, strikes or natural disaster. The purpose of the Bill was stated quite clearly: to provide a legal means of destroying the organisations of the opposition, or at least taking away their most important weapon, the strike, in times of economic or political crisis. Schroder made statements to this effect, as two years later did his successor, Höcherl, the President of the Employers’ Association, various newspapers and the conservative constitutional lawyer, Michael Freund, who put it more clearly than anyone else:

‘Emergency Laws would be worthless if the perfectly legitimate struggle of interests were allowed to continue in times of emergency. The strike is the most dangerous emergency.’ [2]

The cynical, authoritarian attitude which was prevalent in Adenauer’s administration, and which shows itself in Schröder’s Bill, was also expressed by Strauss, then Defence Minister:

‘The question as to whether a situation of tension (in which the Emergency Laws could be applied), exists or not, must be decided by the political judgement or perhaps by the political sense of reality of those whose task it is to make this judgement.’ [3]

The Cuba crisis, for instance, would have made it possible for the Government to claim a ‘situation of tension’ and bring the special laws into effect. This would make possible limitations on the freedom of the press and opinion, the arrest of unreliable persons, prohibition of meetings, and forced labour in industries concerned with ‘vital provision for the population’ [4] or for armaments production. A first indication of what this would mean was provided by the police action against the news magazine Der Spiegel during the Cuba crisis. Der Spiegel was accused of treason. This action, however, turned out to have a boomerang effect, for public opinion was warned of the dangers of emergency legislation for the first time. Schröder’s Bill disappeared without further ado after being rejected by the SPD in Parliament. Without the votes of the Social Democrats it is impossible to get the two-thirds majority necessary for a change in the Constitution. In 1960, a majority of the Social Democrat members of parliament were still against any law which could give the executive dictatorial powers in ‘times of emergency’.

The SPD’s legal expert, Adolf Arndt wrote:

‘The Federal Republic resembles a Polaris submarine in its legal and technical weapons for the protection of the Constitution, whereas in comparison, the Weimar Republic resembled a police constable.’ [5]

In fact the Constitution does not lack ample provisions to protect the Federal Republic from attack ‘from below’ or ‘from outside’. Parties or organisations which threaten the ‘basic democratic order’ can be dissolved, and freedom of opinion can be limited when it contradicts the Constitution. In practice this meant that the Communist Party was forbidden as an enemy of the Constitution, but no action was ever taken against the re-storationist, anti-democratic tendencies which had outspoken supporters in the Cabinet under Adenauer. In 1951, acting in the climate produced by the Korean War, Parliament passed far-reaching and general laws on political offences, in whose meshes harmless visitors to East Germany have since been snared, together with minor officials of the Communist Party and journalists who strayed into the secret areas of government. With the addition to the Constitution in 1956 of articles concerning a declaration of a state of war and the supreme command of the armed forces, no one could seriously claim that the arguments that there was a gap in the Constitution or that West German sovereignty was incomplete were any longer a valid justification for additional emergency laws. Despite this the defenders of the proposed laws continue to take refuge in these arguments.

3. The ‘Gap in the Constitution’ Argument

It was the intention of all parties concerned in drafting the West German Constitution that it should not only reject the Nazi regime but also avoid the ‘sins of Weimar’. These included the wide powers of the President and the famous Article 48 of the Constitution which allowed him to make emergency orders without parliamentary control ‘when public safety and order in the German Reich were seriously disturbed or threatened’. This law was not used to disarm Hitler’s SA and SS in the last years of the Weimar Republic, but it was used to drive the social-democratic government of Prussia from office. With an order ‘for the protection of the people and the State’ which Hindenburg had merely to sign, Hitler provided himself with the first legal camouflage for the Nazi reign of terror, even before the Enabling Act. It is therefore more than a euphemism when the Federal Government quotes Article 48, together with emergency laws in other countries, as good examples of the legal protection of democracy. This Article proved precisely the opposite: that any clause giving dictatorial powers provides the temptation to use them when the interests of those in power demand it.

‘The emergency order powers contributed to extinguishing the rule of law and constitution in the consciousness of the people to such a degree that it was easy for Hitler to change the authoritarian presidential regime into the totalitarian “Führer” state.’ [6]

The makers of the Constitution knew this from their own experience, which was why they expressly decided not to have any ‘Article 48’, and made provision only for the possibility of Parliament being temporarily unable to fulfil its functions.

Today the Federal Government asserts that this decision was made ‘under the protective presence of the Allies’ (Schröder). The Constitution is regarded as an illegitimate child of the occupation which has to be changed to suit German conditions. Because political and social reality has diverged from the Constitution, it must be legitimised by changing the Constitution. Influential groups in the Christian Democratic Party are trying not only to introduce an ‘Article 48’ but also to reintroduce the death penalty and censorship. [7] The opponents of the Emergency Laws aim to preserve the liberal state intended by the makers of the Constitution. The Government is trying to put an end, once and for all, to possibilities that West Germany might develop democratically, using the excuse that it is necessary to fill a ‘gap’ in the Constitution. Characteristically, the ‘gap’ was not discovered until the Cold War in central Europe, formerly the best guarantee of a Christian Democratic electoral victory, began to recede.

As the chances for a reduction in tension and disengagement from Russia and America have apparently grown, the civilian population has been increasingly prepared psychologically for an emergency. It began with appeals to lay in food reserves and build air-raid shelters. The civil defence organisations, which since the Second World War have been symbolised by the ridiculous and useless fire-broom, were resurrected. A number of ‘simple Emergency Laws’ which did not require a two-thirds majority have since been passed by Parliament. According to these any citizen of the Federal Republic can be forced to serve in Civil Defence. They also govern the ‘protective buildings’ for atomic war (which experts describe as useless) as well as the requisition of private vehicles. Already the Government has secret orders prepared for a state of emergency. The development of a complete system for mobilising the individual is apparent, and this is to be perfected by the change in the Constitution (the Emergency Law in its narrower sense). Did the ‘fathers of the Constitution’ want this? Certainly not. They intended to build a democratic state. The gap which they left was the militarised, bureaucratic welfare state. Carlo Schmid (a prominent Social Democrat MP) pointed out correctly at that time that it is precisely in a dangerous situation that basic rights most need protection, and that they should never be relaxed in time of danger. In 1949 the prevailing viewpoint was that the difference between the rules forming the basis of the Constitution and those characteristic of an authoritarian state was that in a democratic state basic rights would be valued and protected above everything else. This means that they would be given special protection in a situation which endangered them. [8] The Federal Government tries to justify the Emergency Laws from a directly opposite standpoint:

‘Provisions of the Constitution which are made for normal times can show themselves to be dangerous restrictions in times of emergency. In normal times it is important to protect the individual from overbearing state powers and to preserve the variety of the tribes (!) and regions from too much uniformity, but in exceptional situations the opposite may be necessary – to increase and consolidate state power.’ [9]

The argument that the Constitution of the Federal Republic is incomplete and must therefore be enlarged can be disproved in various ways:

  1. The provisions made in the Constitution for a state of war, which is, of course, called a state of siege, or for internal unrest, are sufficient.
  2. These provisions are in any case not the decisive factor for they would be replaced by the rights which the Allies still hold on German territory in an emergency.
  3. They are insufficient, but they are unimportant because the Government would probably be taken over by an all-party coalition in case of war or crisis. This argument is supported by the example of England in the Second World War. One could take the following somewhat ironic line: The SPD supported Germany’s first imperialist war, at a time when the Party considered itself Marxist and revolutionary. Why should it not be even more ready to make peace with the ruling party today, when it considers itself part of the establishment? Can there be any real doubt as to the attitude of the SPD or the trade unions in an emergency? Or is this mistrust only a front to hide other aims?

When the trade unions declare themselves prepared to protect democracy with a political strike if necessary, and a minister states that the Emergency Laws are designed to counter such a strike, then it is not merely a case of two different conceptions of democracy. It becomes dear, then, that the Emergency Laws are meant for peacetime. Their mere existence is to frighten the opposition. Useless in an atomic war, they would make a legal coup d’etat possible should the power of the oligarchy and bureaucracy be threatened by internal threat.

4. The ‘Incomplete Sovereignty’ Argument

After the United States had been forced to give up its policy of the ‘liberation’ of Eastern Europe and the ‘roll-back’, West Germany came into increasing conflict with its NATO partners. At the same time it became economically and militarily so strong that it started trying to remove the last restrictions of the occupation – i.e. the renunciation of atomic weapons and Allied rights in a state of emergency. As its means the Government exploited the nationalist feelings which it itself had revived. How, they asked, can a nation be truly sovereign if it cannot make the vital decisions affecting its defence and the state of emergency? This appeal to national honour sounds strange only to those who remember that the same government had previously been in favour of the unconditional integration of West Germany into a European or Atlantic ‘community’. On 26 May 1952, West Germany, England, France and the USA agreed to a treaty limiting the rights of the occupying forces. This gave the Allies the right to proclaim a state of emergency if the safety of their troops were endangered by an attack on the Federal Republic or by internal disturbances. This passage was newly worded in 1954:

‘The rights hitherto held or exercised by the three powers with regard to the protection of the forces stationed in the Federal Republic ... cease to exist, as soon as the German authorities responsible receive the corresponding powers through German legislation, ... including the ability to counter serious disturbance to public safety and order.’ [10]

The Government uses this today as proof of the necessity of a comprehensive set of Emergency Laws to replace the Allied reservation clauses, despite the fact that as late as 1955 official commentators stated that these clauses applied only to the ‘external emergency’ (war or threat of war), and in no way laid down the content of corresponding German laws. [11] What is pretended to mean the establishment of the full sovereignty of the Federal Republic would in fact mean the unlimited sovereignty of the Executive. It is even argued that the Allied rights could be transferred en bloc to the Federal Government on day X, or that the Government would be forced to call upon emergency powers ‘above existing law’ if the Constitution is not extended and changed beforehand. The secret service affairs of 1962 and 1963 show that the Government has already worked with the Western Powers ‘somewhat outside the law’ (Home Minister Höcherl). Subordinate officers of the secret service had been tapping telephones and opening letters for years, with American or British permission. Censorship of letters and telephones is, however, a right that the Allies wish to keep even after corresponding German legislation, so that the argument that the Allied special rights must finally be replaced looks very weak. This argument too can be disproved in several ways:

  1. The Allied reservations have been made meaningless since the change in the Constitution in 1956, which governs the ‘state of siege’. It is merely necessary to inform the partners in the Atlantic Alliance of this.
  2. The Allied rights would not be replaced by the suggested Emergency Law; for instance the right to tap telephones, or the right of the American commanders to take all measures which seem necessary to them in case of war, would continue to exist.
  3. The Allied reservations are not as dangerous as the projected German Emergency Law. Incomplete sovereignty is outweighed by the fact that the democratic structure of the West German state would remain intact. This and similar arguments make it possible for the opponents of the Emergency Law to be reproached with lack of national dignity or lack of trust in parliamentary institutions.

In the debate on 16 June, the parliamentary chairman of the SPD, Erler, exclaimed, ‘We cannot run away from our responsibility.’

‘Erler attacked the opponents of the emergency legislation almost more than the government parties in his speech. He said that it was a sign of poverty to say that one had more trust in Allied officers than in the German Parliament: “Laws do not create the state of emergency.” A fire brigade is not set up to spread the blaze, but to put it out. If people should die of cold and hunger because insufficient provision had been made, Parliament and the Government would be blamed, rather than a number of writers who thought this provision harmful, and who, being elected by no one, were responsible to no one. Speaking about the trade unions, he replied to heckling from CDU members of Parliament, “Help me to convince the unions, instead of heckling me for doing just this”.’ [12]

The SPD agreed to the demagogy of the Government to try and avoid being affected by it – in vain, of course.

5. Höcherl’s Bill and the Position of the SPD

Schröder’s successor brought a new draft before Parliament after a pause of three years. Its first reading took place in 1963. The scene had changed. The SPD no longer rejected an Emergency Law in principle; instead they formulated objections to certain points and suggested changes. They had in the meantime thrown ‘the outdated class struggle’ as well as their own ideas on foreign policy overboard in the Bad Godesberger Programme. They declared their faith in NATO, national defence and the reunification of Germany according to Western ideas. Unity with the CDU on all ‘vital national questions’ was to make the Social Democrats respectable and fit to govern the country. At the Party Congress in Cologne (1962) seven points for an emergency law were laid down [13]: the state of emergency must be clearly defined; there must be a distinction between external, internal and threatening danger. It must not be declared by mere simple majority or by the government. Freedom of opinion and coalition, the right to strike and the right to bring executive decisions before the Constitutional Court must not be suspended, etc. Höcherl’s Bill appeared to give way to some of these demands. The ‘internal emergency’ and the ‘threat of attack’ remained as problematic as before. The latter would, according to the Government’s statement, exist ‘if, according to information services or other secret sources considered on existing experience to be reliable, an armed attack seems imminent or at least seriously expected, without there necessarily being any generally obvious international tension’. [14] Thus a few shots on the frontier with East Germany, combined with manipulated secret service reports, could lead to a state of emergency. Where it is considered that any delay would cause danger, an emergency could be proclaimed by the Persident with the agreement of the Chancellor. The Government would have emergency powers ‘when the situation requires immediate action’. ‘Article 48’ appears everywhere as the final result, though somewhat hidden by apparent safeguards. In the case of the ‘internal emergency’ there is not even provision for its proclamation. It is so vaguely defined that it could for example be used against strikes or political movements which receive propaganda support from East Germany. The Bundeswehr (West German Army) could also be used as an internal police force in certain situations.

The Social Democratic members of parliament rejected the suggestions of the Government with regard to the internal emergency, but were otherwise prepared to cooperate. The Bill was given over to the Legal Committee of the Bundestag and discussed there for two years in camera. Then in May of this year, the SPD Parliamentary Party Chairman, Erler, suggested inter-party consultations, in which the CDU showed a surprising readiness to compromise, even renouncing the expression ‘state of emergency’. The second and third readings of the Bill came nearer, and the Government parties were obviously in a hurry to finish with it before the end of the legislative period. The SPD did not offer any resistance at the outset because they were speculating on a coalition with the CDU after the election and did not want to get pushed into the role of saying no to everything. The SPD had not taken account of their members and the trade unions. As the protests and demonstrations mounted, the only course left to them was a surprising reversal of policy and an appeal to public opinion. They justified this with the arguments that a few points had not been settled in the secret inter-party talks, and that ‘our politically emancipated people’ must participate in the discussion. As they had previously not held this participation to be necessary and had come half way towards meeting the CDU in secret horse-trading, they gave their opponents the easy argument that they were irresponsible and unfit to govern, that they had given way to ‘pressure from the mob’. Chancellor Erhard said in the somewhat tumultuous debate on 16 June,

‘The SPD has prevented the making of timely provisions for an emergency. I ask the SPD whether they are willing to take this responsibility and how they propose to do so.’

An issue had been found for the election.

6. The Position of the Trade Unions and the Right to Strike

The German Trade Union Federation (DGB) had declared their opposition to any form of emergency laws right from the beginning. The Metal Workers’ Union threatened in 1960 to call a strike should the law (then Schröder’s Bill) be passed. The Chemical Workers and Transport unions took a similar position, while the particularly reformist Building Workers quickly came into line behind the SPD. In 1962, a vote was taken on the matter at the DGB Congress in Hanover. The Metal Workers’ resolution was passed, though this too was a compromise, in that it made no threat of a strike but merely appealed to the consciences of the members of the Bundestag. The Chairman of the Metal Workers, Otto Brenner, described their position as follows:

‘In other words, the limit for us comes where the threat to our democratic rights and freedoms takes on a real form.’ [15]

The trade unions wish to defend themselves with all the means at their disposal against any misuse of the Emergency Laws. Their only hope of doing this successfully is to reject any cooperation in drafting the laws. Tactical reasons alone are sufficient to make them leave it to the SPD to improve the laws, should their passing seem inevitable. How good, then, are the ‘improvements’ achieved by the SPD, and so much praised by Willy Brandt? [16] Is the right to strike and carry out wage negotiations in a state of emergency really protected? The SPD has managed to get the other parties to agree that the sentence, ‘Labour conflicts are not a disturbance of the basic, free, democratic order’ should be incorporated in the Constitution. This is, however, contradicted by the planned limitation of the Article which guarantees the freedom of the employee to choose his place of work. This reads: ‘For defence purposes, compulsion to do civilian work in addition to military service is possible.’ A strike could therefore be broken by making the workers of the firm involved do forced labour ‘for defence purposes’. Again, the Home Minister himself, showed that this is no mere speculation. When a member of the Free Democratic Party suggested that it was necessary to be able to suspend the right to strike in case of war, Hocherl said: ‘What’s the point of saying that specifically? We would simply introduce forced labour!’ [17] The purpose of the concessions in terminology are supposed to hide the anti-union tendencies of the Emergency Laws. The ‘Civilian Service Law’, long since prepared by the Government, would make up all that had been lost by the protective clause on labour conflicts.

7. Extra-Parliamentary Action

In December 1964, 1,200 university lecturers and professors, writers, clergymen and lawyers signed a declaration by the Humanist Union against the Emergency Laws. This was the climax of a series of resolutions, published without success in recent years. As it became clear that the SPD and the CDU were prepared to reach agreement and push the Laws through before the elections, 200 professors appealed to the trade unions to resist, under the slogan, ‘All emergency laws mean the death of democracy.’ 2,000 young people and students demonstrated in Frankfurt in April. At the end of May, the political students’ organisations called a Congress in Bonn with ‘Democracy faced with Emergency’ as its theme. [18] It followed the pattern of the American .teach-ins: legal experts and political scientists analysed the proposed laws in papers and discussion. This Congress and other protest meetings were almost completely ignored by the press. This was surprising, as the journalists’ and newspaper publishers’ association had on several occasions expressed its opposition to the limitation of the freedom of the press planned for a state of emergency. The hesitant attitude of the press was due to their lack of information, and a prevailing resentment against the trade-union movement. The numerous local protest meetings of students and trade unionists would have remained isolated and ineffective, due to lack of publicity, if the Executive of the DGB had not brought pressure to bear directly on the parliamentary SPD. Left-wing groups are at present trying to explain the consequences of the Laws to the public, using leaflets quoting official documents, and showing clearly the results for the individual.

For the third time there exists in the Federal Republic what could be described as a spontaneous movement against the policy of the government. The first such movement was against rearmament and the second against nuclear armament for the Bundeswehr. They were both supported at the outset by the SPD and the trade unions, but later dropped when the SPD moved over to support of government policy. Since the SPD decided to present itself as a pragmatic, classless party, discussion within the party has disappeared. In the same way as the Party previously began attacking the campaign against nuclear weapons, with which they had identified themselves shortly before, they have now turned against the opponents of the Emergency Laws. This cannot be explained merely by the wish to take part at last in the government of the country, but is connected with the general authoritarian trend in West Germany, which of course has economic and political roots. There is one important difference between the struggle against the Emergency Laws and the two earlier movements. Neutralism or pacifism are political or moral ideas which are not connected with the direct interests of the individual. The Emergency Laws have a direct effect on the rights and interests of the working class. The trade unions are conscious that they have something to lose this time.



1. Der Spiegel, 23 June 1965.

2. Quoted by Jürgen Seifert, Gefahr in Verzuge, Frankfurt/Main, 1963, p.6. Michael Freund reinterpreted the prophet of the general strike, Sorel, for the purposes of the ‘conservative revolution’, during the time of the Weimar Republic.

3. Quoted in neue kritik 13, 1962, p.13.

4. Home Minister Hocherl said in Hamburg on 3 March 1962: ‘If, however, a strike should slip out of the hands of the unions (!) and endanger the population’s vital provisions, then state measures against this should be regarded as a service to the population.’ Quoted in Seifert, Op. cit., p 32.

5. Ibid., p.22.

6. Ibid., p.18.

7. Cf. the recent campaign to ‘clean up’ the cinema screen and to subject art to the ‘general moral order’.

8. Abendroth et al., Der total Notsstandsstaat, Frankfurt/Main, 1965, p.15.

9. Seifert, Op. cit., p.30.

10. Quoted in Abendroth et al, Op. cit., p 38.

11. A high civil servant wrote in the Government Bulletin: ‘Only such provisions as already exist in other NATO countries in exposed positions are expected from the German legislature by the Allies.’ (Quoted in Abendroth et al., Op. cit., p.40) The projected Emergency Laws can, however, only be compared with those in semi-fascist countries like Portugal.

12. Frankfurter Allgemeine Zeitung, 17/18 June 1965.

13. With regard to the atmosphere at this Congress, Wolfgang Abendroth wrote in neue kritik 12, 1962, p.17: ‘The only opposition worth mentioning was to the proposal of the parliamentary group to cooperate in the changing of the Constitution by the addition of an emergency article.’

14. Seifert, Op. cit., p.44.

15. Ibid., p 40.

16. The Social Democrat candidate for Chancellor tried in an article in the magazine Stern to eradicate the impression that the SPD had fallen between two stools: ‘The SPD’s no to the government’s proposals was a yes to the protection of the rights of the citizens ...’ (11 July 1965).

17. Quoted in neue kritik 28, 1965, p.5.

18. The Report of the Congress may be obtained from the Verlag neue kritik, 6 Frankfurt/Main, Kurfürstenstrasse 8.


Of the 10 or 11 ‘simple Emergency Laws’, 6 have to date been passed, some of them against the votes of the SPD. These laws include:

  1. The state control of production and distribution during a state of emergency. Even in peacetime such methods can be used to secure readiness for defence;
  2. The setting up of a para-military Civil Defence Corps, with about 200,000 members with one year’s training;
  3. A Civil Defence Service with about 180,000 members, who are to be trained in first aid and fire-fighting (the old, war-time civil defence);
  4. Every family will be obliged to lay in stores of food and gas masks. Refuge rooms will be compulsory in all new buildings.

All these preparations would soon turn out to be useless in an atomic war – even the Minister of Defence has indirectly admitted this. One can therefore only conclude that the Federal Government is preparing for a limited, and if possible, preventive war in central Europe. The Emergency Laws are not only instruments of the class struggle from above, but also have dangerous aspects with regard to foreign policy. West Germany is, after all, the only European country which makes claims to other territory. Even if a Social Democrat government wanted to, they would have difficulty in repealing the Emergency Laws which have already been passed, or in holding out long against the proposed change in the Constitution. The result of the Bundestag election this Autumn could, however, decide in whose interests the laws would be used.

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