Is the German Federal
Republic Legitimate?

By Mark Weber (,
Institute for Historical Review


In a recent essay Michael James contends that the Federal Republic of Germany (BRD) is illegal and illegitimate. Is he right?
This is a subject with which I have some familiarity. Over the years I've read quite a lot on German constitutional law and history. I've carefully studied the German Federal Republic's "Basic Law" (constitution), in both German and English. I'm also familiar with the argument presented by James, which updates arguments that have been made by Manfred Roeder and others over the years.
First of all, some of the key "facts" presented by James are just plain wrong. It is not true, for example, that in 1990 "Almost everyone in diplomatic circles around the world expected the re-emergent German Reich to take over where the BRD had left off." In fact, nearly every knowledgeable observer, including diplomats, anticipated precisely what did happen.
More to the point, the basic argument presented here by James is little more than self-indulgent sophistry. It reminds me of the argument made by people who refuse to pay US federal income tax on the grounds that the 16th amendment to the US constitution was not properly ratified. The argument that the German Federal Republic is illegitimate has about as much validity as the argument that the US Constitution is not valid because the convention that wrote it had no legal mandate to do so, and because the constitution improperly replaced the Articles of Confederation. One could just as validly argue that West Virginia courts and police have no authority because the state was illegally separated from the rest of Virginia in 1861 and improperly "admitted" to the Union in 1863.
The German Federal Republic is at least as legitimate as the regime established in the aftermath of the First World War. The constitution of Germany's "Weimar republic," promulgated in 1919, was recognized as legal by most Germans, including the National Socialists, in spite of the high-handed way that the republic was proclaimed in November 1918. Indeed, throughout the nearly twelve years of its existence, the National Socialist regime recognized the 1919 constitution as legally valid.
Since its establishment in 1949, more than half a century ago, the overwhelmingly majority of Germans have accepted the Federal Republic of Germany and its "Basic Law" as valid and legitimate. It is, of course, also recognized by all other governments around the world.
Legitimacy for a government or a regime is based less on legalistic formality than on acceptance by its own people, especially over time. On that basis, the Federal Republic of Germany is legal and legitimate. Those who embrace with hope seemingly clever but empty arguments such as those made by James will inevitably be disillusioned. And most Germans will understandably dismiss those who make such arguments as hopelessly out of touch with reality.




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