Who Governs in Deep Crises?

The Case of Germany

in Democratic Theory
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  • 1 Social Science Research Centre Berlin (WZB) and Humbolt University Berlin, Germany wolfgang.merkel@wzb.edu

Abstract

The Berlin Republic of today is neither Weimar (1918–1932) nor Bonn (1949–1990). It is by all standards the best democracy ever on German soil. Nevertheless, during the COVID-19 crisis there was a shift from democracy as a mode of governance to what the controversial legal theorist Carl Schmitt (1922) affirmingly described as a “state of exception”; a state that is desired and approved by the people (through opinion polls). It was the hour of the executive. The parliament disempowered itself. There was very little, if any, contestation or deliberation during the first eight weeks of the COVID-19 crisis. This article reflects on the implications of this mode of governance on institutions and actors of democracy in Germany, and offers a way of assessing the wellbeing of democracies in times of deep crisis.

As of the beginning of May 2020, Germany seems to be emerging from the COVID-19 crisis in a healthier state than most of its neighboring states or even Western countries in general. It should be noted, however, that cross-national statistics are not very reliable. Some have branded the COVID-19 a once-in-a-century pandemic; John P. A. Joannides (2020), a world famous professor of medicine, epidemiology, and biomedical data science, spoke of “a once-in-a-century evidence fiasco.” Even if one subscribes to Joannides’ critique, it becomes clear by the most basic data, i.e., the number of deaths, that Germany is far removed from the public health catastrophes in the UK, US, Spain, or Italy. Nonetheless, it is unclear whether this is due to coincidence, luck, careful data sampling, and/or smart strategic action by the federal and state governments.1 This question will only be answerable once we have more reliable data on the places of origin, hotspots, and infection routes in this country. What can be clearly stated at this point, however, is how the COVID-19 crisis affected democracy in this country. More specifically, how democratic the executive actions in Germany have really been and what negative impacts the mode of governing the COVID-19 crisis has had—and will have—on democracy, economy, and society. What is needed is a multi-sectoral set of indicators to be able to measure the overall performances of the governments cross-nationally. This article will focus on the impact of COVID-19 on democracy in Germany.

The History of the State of Exception in Germany's Basic Law

When the Basic Law was ratified by the Parliamentary Council in May 1949, it did not contain any provisions on the state of emergency. This was a result of the abuses of Article 48, Paragraph 2 of the Weimar Constitution as well as the veto of the Allies after 1945. Article 48, Paragraph 2 granted the Reich President of the Weimar Republic (1918–1933) the authority to enact “law-substituting emergency decrees.” Under Reich President Hindenburg (1925–1934), these emergency decrees led to the infamous presidential cabinets, the break with parliamentarism, and the “transfer of power” (Lepsius 1978) to Adolf Hitler. The point here is not to construct false analogies. The Berlin Republic of 2020 is certainly not like the Weimar one of 1932. Berlin is neither Weimar nor Bonn (1949–1990). Yet the finely balanced horizontal (legislative, executive, judicial) and vertical (federalism) separation of powers and political linkages in the Federal Republic of Germany become easier to understand once we appreciate the constitutional founders’ concern with not giving too much power to the federal executive. The field of transformation research refers to this distribution of power as the “tyrant complex.”

In the 1950s and 60s, there were recurring debates among constitutionalists on how to integrate emergency laws into the Basic Law. Interestingly, in the protracted parliamentary struggles over the “Emergency Laws” of 1968, two contrasting positions on constitutional theory were adopted by the two main parties of the time: the Christian Democratic Union (CDU) and its Minister of the Interior Gerhard Schröder2 (the namesake of the “Schröder draft” of 1956) argued in Schmittian fashion that the state of emergency is “the hour of the executive.” On the other side, the legal spokespersons of the Social Democratic Party (SPD), such as the later Constitutional Court judge Martin Hirsch, maintained in the emergency debate of 1968 that a crisis situation has to be “the hour of the parliament.”

These two positions on constitutional theory separated the CDU/CSU (Christian Social Union) from the SPD in the first postwar decades. To summarize: while the SPD presented itself as the guardian of the parliament, the Union advocated for the dominant position of the government during a crisis. Today, this difference has disappeared. CDU/CSU and SPD, governing together in a “grand coalition” since 2013, are hardly exhibiting any differences in their understanding of democracy during the COVID-19 crisis. Crisis management has been and remains, both de facto and de jure, the hour of the executive. Eva Högl, the deputy leader of the SPD parliamentary group, has even declared that basic rights have been “curtailed beyond recognition,” but that this is sadly “necessary”: a problematic statement for a progressive party. The SPD of 2020 has adopted the 1950s CDU's understanding of democracy, with no recognizable difference left. This is the de-parliamentarized understanding of democracy by a party that, under the chancellorship of Willy Brandt (1969–1974), made significant contributions to the democratization of democracy in the Federal Republic of Germany.

The Self-disempowerment of the Parliament

On March 15, 2020, the Federal Minister of the Interior ordered, contrary to the EU treaties, the closure of the borders with the five neighboring countries: Austria, Switzerland, France, Luxembourg, and Denmark. A day later, the federal government, together with the prime ministers of the federal states, enacted a far-reaching shutdown of public life. Basic rights enshrined in the constitution, such as the freedom of assembly, travel, religion, and exercise of one's job, were limited or suspended. This was the deepest of encroachments on the basic rights of the citizens by the executive since 1949. Initially, all this happened under the auspices of old legislation on protection against infectious diseases: a rather trivial law in relation to the basic rights that it sweepingly restricted. The old infection protection l aw was, however, insufficient for the wide-ranging authority assumed by the federal government and the state executives. The government (CDU/CSU and SPD), with the support of the Greens and the Free Democrats (FDP), fast-tracked the reworked “Law on the protection of the population in an epidemic situation of a national scale” through parliament on March 25, 2020. The Left Party (Die Linke) and the right-wing populist “Alternative for Germany” (AfD) did not object and, instead, abstained in the vote. The law grants the Ministry of Health and the government far-reaching powers in case of an epidemic “of a national scale.” Only at the very last minute was a provision scrapped allowing the government itself to declare and then administer this state of emergency. In the modified version, however, a simple majority in parliament is sufficient for declaring an emergency. The parliament rushed to subordinate itself to the government and degrade itself to a secondary institution in relation to the executive. The parliament simply gave up its control function vis-à-vis the government: instead of serving as a place for debate, deliberation, and dispute, the parliament has fallen to the status of a rubber-stamping institution. In Germany, the state of exception has become “the hour of the executive.” This poses the more fundamental democratic question: who is the de facto sovereign and who should the de jure sovereign be in a democratic system?

Who is the Sovereign?

The temporary suspension of basic rights and the question of whether the new law is proportionate was not subject to open and controversial debate in parliament. Although the four parties of the opposition are a heterogeneous bunch, from the explicitly left-wing Die Linke to the right-wing AfD as well as the Greens and the (neo-)liberal FDP in between, there was no controversial discussion during the first six weeks of the shutdown. There might not be a legal problem with this, but a democracy without alternative policies—one in which the opposition stops being a check on the government—means that democratic pluralism is shortchanged. In normal times, this would not be acceptable for a democracy. Is this harmful for a democratic order based on the rule of law in emergency situations as well? Is the sovereign really the one who decides on the state of exception as the controversial legal theorist Carl Schmitt put it in his Political Theology (1922)?

In a democracy, it is not the executive, that is, the government, that is sovereign, but the people. Through free general elections, the people as the first-order sovereign transfers its sovereignty to the parliament. This transfer is temporally limited, typically to one legislative term. In this manner, the parliament emerges as a temporary, second-order sovereign. In parliamentary democracies, unlike presidential systems, the parliament then elects the government. It is only here that the executive as the third-order sovereign comes into play. The parliament, however, is by no means only there to elect the executive; rather, it is the highest lawmaker. In addition, it is tasked with serving as a check on the executive, even when the government has a majority in parliament. Moreover, the parliament as the second-order sovereign is an arena for debate and deliberation. In a democracy, therefore, the parliament is the site of deliberation, while the government is the actor of decision. In the COVID-19 crisis, the parliament has neither been an arena of deliberation nor an effective control organ vis-à-vis the executive. Up to May 2020, this has been largely supported by the citizens. Here lies perhaps the biggest dilemma for democracy: the demos has been interested above all in the government's output, measured in terms of actions; whether participatory input or legislative control functions got the short end of the stick becomes a secondary question at best. The problem here is that this output-centered constellation could easily serve as a blueprint for the next crises to come.

In the COVID-19 crisis, another actor took the center stage: science, especially virologists and epidemiologists. Almost unabashedly, science assumed the role of a fourth-order semi-sovereign. The sovereign is the one who has the knowledge. Because parliament and government have little expertise on questions of health and medicine, they are highly dependent on the counsel of medical experts—a significant difference in the management of the current crisis, and the economic or migration crises in the EU; the centrality of “evidence-based policymaking,” as the technocratic political and administration scientists call it. During the first two months of the COVID-19 crisis, the country has been governed in emergency mode by the third- and fourth-order sovereigns.

The Compliance of the Demos

The first-order sovereign, that is, the citizens, has not been unsettled by this co-government by science. On the contrary, the citizens have shown a great deal of willingness to comply vis-à-vis the government and the media stars of the virology scene. The reasonable and, so far, successful (measured in terms of the numbers of deaths from COVID-19) policy decisions of the government have certainly contributed to this. The oft-shown gruesome pictures from the clinics of Bergamo and the corpse refrigerator trucks at the back entrances of the hospitals of New York also did their part. Scenarios in France, Italy, Spain, and New York were to be avoided in Germany.

There is also a third factor. German epidemiologists’ model-based calculations suggested for worse-case or even normal-case scenarios a bleak picture. The talk was not of thousands, but of tens of thousands or even a hundred thousand possible deaths. The overburdening of intensive care units and the looming threat of triage decisions had to be avoided at all costs. However correct or faulty the epidemiological projections might be or might have been, who among the responsible political decision-making elites or compliant citizens could take on the responsibility of consigning tens of thousands of people to their deaths? This posed a moral constraint that prevented political discussion on alternative solutions.

The TV images, the epidemiological model calculations, and the moral constraint evoked by both go a long way in explaining the conformism of parliament as well as the self-silencing of the opposition in both politics and society. From a democratic perspective, this is problematic. In times in which the government has assumed so much power, the control function of the opposition, the parliament, the judiciary, and the civil society is more important than in normal times. It is not least the control of power that distinguishes democracies from autocracies. In the debates on the 1968 emergency legislation, the Social Democrats stood up for this parliamentary control function with good arguments. Today, however, the SPD has adapted to the crisis Zeitgeist. There are no longer any differences with the CDU/CSU conservatives when it comes to the understanding of democracy. The humanitarian goal to save lives became politically moralized and served implicitly and explicitly as a mode to silence opposition and voicing alternative positions.

The conformity of the media, the intellectuals, and the citizens during the crisis has laid bare a phenomenon that has caused much harm in German history. In the Federal Republic of Germany, that subservient obedience had almost disappeared for decades. In the COVID-19 crisis, however, we have experienced the rebirth of the decisive strongman leader. The democratic paradox of the crisis is the following: the deeper the encroachments on the basic rights of the citizens and the more severe the contact-ban measures imposed among the citizens, the greater the consent of those whose basic rights are being taken away and whose contacts are being banned. Bavaria's vocal and de facto restrictively governing premier Markus Söder has turned into a success story of political leadership. Armin Laschet, the premier of North Rhine Westphalia who has opted for a looser crisis policy, has failed to make headway in opinion polls. The uncritical acceptance of restrictions on basic rights and existential economic losses exhibits subtle features of the “authoritarian personality” as described by Erich Fromm and later Theodor W. Adorno et al. (1950) for Germany, the US, and beyond. For at least two months, it has been the demos itself that succumbed to the transformation from subject to object, from active citizen to dedicated addressee of domineering executive decisions. Supposed physical security has trumped individual rights and liberties.

The only democratic opposition party that has come out critically against the federal government's abandonment of basic values—namely, the FDP—has actually been punished for it by the voters according to opinion polls. The majority of the citizens apparently did not view the criticism and opposition as legitimate in times of crisis and emergency; they wanted decisions, not partisan bickering. The decisionism of Carl Schmitt is, even today, more strongly rooted in German society even in normal times than the liberalism of freedoms and life chances as advocated by Ralf Dahrendorf (1980).

Who Gains? Parties and Party Competition

What does the COVID-19 crisis mean for the German party system? The opinion polls indicate a clear winner up to this point: the parties of the Union (CDU/CSU), which are the parties of government par excellence in Germany. The hour of the executive has struck to their favor. Will this last once the crisis subsides? Will it help the Union revive its status as a catch-all party (Volkspartei)? Here, doubts are warranted. The decline of the catch-all party is a secular development. For the individualized societies and post-industrial economic structures of the 21st century, the homogenizing format of a programmatically diffuse party no longer fits (Merkel 2018: 349). COVID-19 has interrupted the decline of the CDU/CSU as one of the last catch-all parties of Europe, but it will not alter the path of ultimately irreversible decline.

This holds all the more for the SPD. The former catch-all party SPD will not get back to what it once was. This holds for social-democratic parties in all of Europe. What is nonetheless remarkable is how little headway the SPD has been able to make in the crisis, even with Finance Minister Olaf Scholz and Labor and Social Affairs Minister Hubertus Heil as two calm and convincing personalities in charge of the main portfolios for absorbing the blow of the crisis and initiating the economic recovery. The voters are apparently showing a greater appreciation for bans rather than offers during the crisis. This might change once the phase of acute crisis is over and deeper distributive conflicts set in, turning the Finance and Labor and Social Affairs Ministries into central policymaking arenas.

The FDP was already mentioned. The Greens, who like to see themselves as the liberals of the 21st century, are currently losing support. This is arguably less a result of their support for the government than the fact that their main issue of “climate crisis” has fallen to the bottom of the political priorities list. The Greens remain a post-materialist party of high earners who can get by in times of political normalcy without material crises. After the COVID-19 crisis, climate change will return to the agenda and the ranks of Green voters and supporters will once again multiply. Die Linke, on the other hand, has disappeared from the news. They are nowhere in government outside Berlin and Thuringia. This leaves the AfD, the right-wing populists. The AfD, too, has seen its main issue of immigration slip away. This may well change with the subsiding of the crisis, while another issue will take on added importance for the right-wing populists: the question of Europe. The AfD will oppose financial “concessions” by Germany to the EU and the main crisis-hit countries Italy, Spain, and France. The wrong but popular argument is going to be that our national economic problems in Germany have to be sorted out first before we subsidize the “unreliable south.” In the worst-case scenario, the AfD would then emerge as a winner of the crisis in the medium term.

The Case of Germany in Comparison

Germany is often praised by international observers as a role model for coping successfully with the COVID-19 crisis. It seems to me too early to pursue a systematic data-driven comparative analysis. All international data are heavily biased by different sampling, testing, and reporting. Beyond the problematic data situation, however, we have theories from the fields of regime, transformation, and state intervention research at our disposal that provide some criteria and variables for evaluating the efficiency and legitimacy of state action (Merkel, Kollmorgen, Wagener 2019). These theories will be important for the analysis of measures taken against the pandemic. Here, I would like to name four variables that determine success or failure to reduce infections and death rates. The four can be classified according to the three sub-systems state, society, and health: regime type (democratic vs. autocratic), state capacity (high vs. low), state leadership (smart vs. not smart), and state learning from previous epidemics (open vs. closed). These are the four “state variables.” State action, however, depends on the society's willingness to comply. Here, we can roughly distinguish between individualist and collectivist societies. The third sub-system, namely the health system, can be subdivided into well-funded public (Germany, Nordic countries) and underfunded privatized and public (UK, Italy) systems.

As with economic development, there are no prima facie systematic differences in success between democratic and autocratic systems when it comes to confronting the pandemic. China (autocratic) appears to be successful, while the US (democratic) is a disaster; Singapore (authoritarian) is responding efficiently, as is South Korea (democratic). Italy's and Spain's responses to the crisis have failed to prevent high numbers of victims. Germany and Denmark have managed the crisis well thus far, albeit with different strategies concerning the lock out. All four countries are well-functioning democracies.

More important than the type of political regime is the degree of state capacity. State capacity, state will, state learning, and state action are important for success. The success of efficient state action is, however, dependent to a considerable extent on the society, which has to comply with the decisions of the state. The willingness to comply can be produced in different ways: with high levels of open repression in autocracies, with good arguments in democracies. Even in developed democracies, however, there are fundamental differences between societies. The individualized societies of the West are ideal-typically distinct from collectively oriented Confucian-influenced societies. There, the common good and the good of the family come before the individual. The societies of Singapore, South Korea, Taiwan, and Hong Kong follow this pattern. The West is more heterogeneous; the more common-good-oriented societies of Scandinavia exhibit higher levels of social cohesion than the hyper-individualized US. The higher the social cohesion, the better a country makes it through the crisis—ceteris paribus. The more the citizens follow their governments by reason the smaller the negative fallouts for democracy.

The third system, namely that of health provision, also does its part. A largely public and well-funded system like in Scandinavia and Germany allows for more comprehensive and egalitarian treatment capacities. Fewer infected people die and the virus does not discriminate along class lines. If the health system is strongly privatized and the public component woefully under-funded, as is the case in the US, UK, and Italy higher numbers of infected people die, especially the poor, many of whom are African-Americans. The health system in a democracy is an indicator for the humaneness of a society, which the crisis lays bare.

For comparative empirical Political Science research, it is thus possible to come up with hypothetical ideal-typical socio-political configurations for how well or poorly a country will fare in the pandemic. Low levels of state capacity, a fragmented and polarized political decision-making system, a hyper-individualized society, and an underfunded public health system come close to the ideal type of failure. The US comes very close to exhibiting this combination of factors. Germany, on the other hand has a rather solid state capacity, an effective administration, a functioning welfare state, and rather well financed health system. If we take the number of infected and dead people, Germany has performed comparatively successfully. With all cautiousness, Germany has only one sixth of the death toll in Italy, Spain, UK, and France, although it has a significantly larger population. But in the longer run the balance sheet of the crisis costs must include other indicators such as the increase of unemployment rate, bankruptcy of small enterprises, wage losses, the decline of GDP, and a potential increase of inequality. Moreover, political indicators that measure the quality of democracy also have to be taken into consideration.

Is Germany's Democracy at Risk?

The Berlin Republic is not Weimar or Bonn. It is certainly not the Hungary of Viktor Orbán. Overall, it is the best democracy that there has ever been on German soil (V-Dem 2020). Nonetheless, we cannot rule out longer-term habituation effects of temporary authoritarian rule among the citizens in the near future, given that we cannot rule out recurring pandemic infection waves or other deep crisis, such as climate change. Are we then going to see government by emergency measures yet again? Members of the government have already found a devastating term for this: “the new normality.” This means that the safeguarding of public health from pandemics could lead the government time and again to suspend basic rights and govern in emergency mode. And: why not govern the climate crisis in an emergency mode as well? The critical democratic citizen is in high demand in post-corona democracies.

Notes
1

Most of the measures concerning the shutdown and health services lay within the jurisdiction of the Länder. The role of the federal chancellor was more one of coordinating the prime ministers of the 16 Länder.

2

The CDU Minister Gerhard Schröder is not the same person as the later SPD-chancellor (1998–2005) of the same name.

References

  • Adorno, Theodor, Else Frenkel-Brunswik, Daniel Levinson, and Nevitt Sanford. 1950. The Authoritarian Personality. New York: Harper and Row.

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  • Dahrendorf, Ralf. 1980. Life Chances: Approaches to Social and Political Theory. Chicago: University of Chicago Press.

  • Ioannidis, J. P. A. 2020. Fiasco in the making? As the coronavirus pandemic takes hold, we are making decisions without reliable data. In: STAT, 17 March. Online verfügbar: https://www.statnews.com/2020/03/17/a-fiasco-in-the-making-as-the-coronavirus-pandemic-takes-hold-we-are-making-decisions-without-reliable-data/

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  • Lepsius, Rainer M. 1978. From fragmented party democracy to government by emergency decree and national socialist takeover: Germany. in: J. Linz/A. Stepan (Hrsg.): The Breakdown of Democratic Regimes: Europe. Baltimore: The Johns Hopkins University Press. S.3479.

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  • Merkel, Wolfgang. 2018. “Conclusion: Is the Crisis of Democracy an Invention?” In Democracy and Crisis, ed. Wolfgang Merkel, and Sascha Kneip, 349367. Wiesbaden: Springer.

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    • Search Google Scholar
    • Export Citation
  • Merkel, Wolfgang, Raj Kollmorgen, and Hans-Jürgen Wagener, eds. 2019. Handbook of Political, Social, and Economic Transformation. Oxford: Oxford University Press.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Schmitt, Carl. (1922) 1985. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press.

  • V-Dem 2020 (Varieties of Democracy Project). https://www.v-dem.net/en/publications/democracy-reports/

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Contributor Notes

Prof. Dr. Wolfgang Merkel is Director Emeritus at the Social Science Research Centre Berlin (WZB) and Professor Emeritus of Political Science at the Humboldt University Berlin. He is a member of a number of key bodies, including the prestigious Berlin-Brandenburg Academy of Sciences and Humanities. E-mail: wolfgang.merkel@wzb.eu

Democratic Theory

An Interdisciplinary Journal

  • Adorno, Theodor, Else Frenkel-Brunswik, Daniel Levinson, and Nevitt Sanford. 1950. The Authoritarian Personality. New York: Harper and Row.

    • Search Google Scholar
    • Export Citation
  • Dahrendorf, Ralf. 1980. Life Chances: Approaches to Social and Political Theory. Chicago: University of Chicago Press.

  • Ioannidis, J. P. A. 2020. Fiasco in the making? As the coronavirus pandemic takes hold, we are making decisions without reliable data. In: STAT, 17 March. Online verfügbar: https://www.statnews.com/2020/03/17/a-fiasco-in-the-making-as-the-coronavirus-pandemic-takes-hold-we-are-making-decisions-without-reliable-data/

    • Search Google Scholar
    • Export Citation
  • Lepsius, Rainer M. 1978. From fragmented party democracy to government by emergency decree and national socialist takeover: Germany. in: J. Linz/A. Stepan (Hrsg.): The Breakdown of Democratic Regimes: Europe. Baltimore: The Johns Hopkins University Press. S.3479.

    • Search Google Scholar
    • Export Citation
  • Merkel, Wolfgang. 2018. “Conclusion: Is the Crisis of Democracy an Invention?” In Democracy and Crisis, ed. Wolfgang Merkel, and Sascha Kneip, 349367. Wiesbaden: Springer.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Merkel, Wolfgang, Raj Kollmorgen, and Hans-Jürgen Wagener, eds. 2019. Handbook of Political, Social, and Economic Transformation. Oxford: Oxford University Press.

    • Crossref
    • Search Google Scholar
    • Export Citation
  • Schmitt, Carl. (1922) 1985. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press.

  • V-Dem 2020 (Varieties of Democracy Project). https://www.v-dem.net/en/publications/democracy-reports/

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