Germany Year Zero: Which Rechtsstaat?

The start of the Cold War had a major impact on judgements about the Rechtsstaat principle, in both East and West Germany. In the West, the Parliamentary Council put it at the forefront of the Basic Law. However, its interpretation, as either a liberal or social rule of law, remained highly controversial until the moment the Federal Constitutional Court developed a coherent doctrine that opened the liberal reading of fundamental rights to the social dimension. In the East, a multi-party commission was charged by Soviet authorities to draft a constitutional compromise acceptable to all Germany’s occupied zones. They tried to accommodate the fundamental principles of Liberalism within a constitutional perspective open to Marxist-style social transformation. The constitutionalists involved, Karl Polak and Alfons Steiniger, argued that the whole of the German constitutional experience, and particularly the bitter consequences of 1848 and 1933, made a case against the Rechtsstaat principle. Thus, the draft, which will be adopted as the bogus constitution of the sole GDR, repudiated the separation of powers in favour of the legislative organized according to the Block-system principle.