First Draft

(August 1998)

The German Concept of Citizenship

Ulrich Preuss

I. Citizen and Burgher D Staatsbürger and Stadtbürger

Whenever the German concept of citizenship is under study, the authorsdo not fail to hint to the etymological particularity that the Germanlanguage lacks a term which manifests the roots of the concept in thecity: etymologically the terms citizen, citoyen, cittadino and ciudadesevidently point to some kind of belonging to the city. In the Germanlanguage the analogous term is Staatsbürger. Kant, for instance, made itclear that when he spoke of the Bürger, he meant the "citoyen, d.i.Staatsbürger, nicht Stadtbürger, bourgeois". Equally Wieland, to whomthe first usage of the German term Staatsbürger is frequently attributed,at least three different expressions: Staatsbürgerschaft,Staatsangehörigkeit, and Volksangehörigkeit express different elementsof a status which, at least in the anglo-american tradition, is covered bythe single word citizenship.

If the political and juridical language uses certain distinctions it is safe toassume that they reflect significant material differences. The Germantriad Staatsbürgerschaft, Staatsangehörigkeit, and Volksangehörigkeitinvokes the concepts of the 'state' and of the 'people' (Staat and Volk)and combines them with the term 'belonging' (Zugehörigkeit,Angehörigkeit), thus suggesting an affiliation of passive inclusion betweenthe individual and the society rather than of active participation. Hence,when the German concept of citizenship is under scrutiny one should keepin mind that certain aspects of citizenship which are incorporated in asingle concept in other countries may be disjoined in the German case andassociated with separate terms and perhaps even different conceptions.However, despite this variety of terms D which a few years ago wassupplemented by the new-fashioned term Staatszugehörigkeit for theclass of second generation immigrants who were granted a conditionaloption for German citizenship D the central term for what is namedcitizenship, citoyenneté, cittadinanza etc. in other languages isStaatsbürgerschaft in German. Before Kant, who linked the Staatsbürgerto the citoyen and to the French Revolution, this term did not play asignificant political role in the German political and judidical reasoning.

Until the French Revolution the Staatsbürger was not, as the termsuggests, the Bürger of the state in the same sense as the civis had beenthe Bürger of the towns and cities, but the state subject.Staatsbürgerschaft and subjecthood to the state were not incompatible.As we shall see, subjecthood became the necessary precondition for theevolvement of Staatsbürgerschaft. The political thrust of subjecthoodwas not directed against the absolutist power of the state, but againstthe particularistic forms of estatist dependency. In the prerevolutionary18th century Staatsbürgerschaft had the meaning of generalized statesubjecthood. In the most prominent document of the enlightened Germanabsolutism which survived the French Revolution, the AllgemeineLandrecht für die PreuŸischen Staaten (ALR) (The General Law of theLand for the Prussian States) of 1794 the term Staatsbürger was notused; obviously the term did not only include the anti-estatistindividualistic meaning of equal subjecthood to the state D a meaningwhich was of course approved by the absolutist regime D butsimultaneously the claim to some kind of active participation, which,equally a matter of course, was an extremely unwelcome dimension. Thus,the ALR which one may well regard as a kind of constitution of thePrussian societas civilis vel politica on its way to a bourgeois society andits dichotomy of state and society tried to reconcile the modern-egalitarian elements of the Prussian enlightened absolutism with its socialconservatism. Thus, whenever a legal regulation pertains to the individualsin their quality as subjects of the state they are categorizeed as theinhabitants or the members of the state, sometimes as its subjects(Einwohner or Mitglieder des Staates, or Untertanen); in any case theywere viewed as individuals who incarnate the basic elements of the stateengendered society.

The egalitarian implications of this individualistic conception of societywere expressed concisely in ¤ 22 to the Introduction of the ALR: "Thelaws of the state associate all its members, irrespective of their estatistdistinctions or their differences of rank and gender". One might expectthat this association of state members metamorphosed subjects intoBürger and gave way to an incipient variant of a nation of Staatsbürgern,i.e., a political association of equal citizens (citoyens, Staatsbürger) whohad transcended the status of a corporation of passive subjects. But thiswas not the case. When the ALR assigned an entire chapter to thecategory of Bürger, it referred to the estatist order of the society withinin which the Bürger formed one estate among others. Thus, the title ofthe relevant chapter reads 'On the estate of the burghers' (VomBürgerstande), and it defines this estate negatively as comprising all

inhabitants of the state who according to their birth do not belong toeither the nobility or the estate of the peasants. The burgher proper isthe resident of a town who has been acquired membership of themunicipal community. There are still other categories of persons classifiedunder the title 'Vom Bürgerstande' like the 'exempted' (a kind ofprivileged subjects), or the burghers who have acquired a noble estate(Rittergut); they are of no interest for our analysis. What concerns ushere is the general observation that at the turn of the 18th to the 19thcentury D despite the French Revolution and despite the quite influentialwritings of Kant D in Germany the concept of citizenship was a merephilosophical idea. It had not yet acquired political or social reality. Thestatus of the individuals vis-à-vis their political authority was embodied inthe concept of subjecthood, whilst the idea of the citizen was hidden inthe estatist conception of the burgher, i.e. a kind of corporatist-municipalmembership.

The proviso "not yet" does not mean that the German concept ofcitizenship was a backward version of the French model and thereforedestined to imitate the latter's development with a certain time lag. Apartfrom serious methodological objections which historians would raiseagainst this hidden metaphysics of history Germany's development in theage of absolutism hardly suggests a history of the concept of citizenshipfollowing the French track. Germany's entry into modernity wasessentially shaped by the traumatic experience of the Thirty Years War of1618-1648 which determined the country's socioeconomic, cultural, andpolitical development up to our days. While France rose to a compact andD gauged by the standards of the time D closed, homogeneous,territorially bound, centralized, and absolutist state power during the17th century, Germany was the core component of the Holy RomanEmpire of the German Nation.

II. The Holy Roman Empire of the German Nation

The name of this political entity was as strange as its structure. After thecollapse of the Roman Empire (anno 476 A.C.) its universalist claim toembody civilized humankind was preserved by the Popes who regardedthe Roman Empire as the precursor of the Christian Empire which includedall Christian peoples and guaranteed a universal peace order. Originally theearly fathers transferred the imperial power (translatio imperii) to theFranconians (through the solemn coronation of Emperor Charlemagne in800 A.C.), but eventually - since the installation of Otto the Great in 962- the imperial power rested with German dynasties until the downfall ofthe empire in 1806. The empire was regarded as the continuation of the

Roman Empire, while the attribute 'holy' (Sacrum Imperium) was added inthe 13th century in order to emphasize its sacred dignity vis-á-vis theChurch. The other qualification D Holy Roman Empire of the GermanNation D was added in the 15th century in order to designate the Germanparts of the transnational Empire; however, gradually this attribute cameto record the claim of the Germans to the imperial authority. The basicidea of the Empire was its supranationality D it included territories andpeoples from Germany, Italy, Bohemia, Burgundy D and, closely connectedwith this quality, its spiritual and institutional affiliation with the RomanChurch whose secular sword it was supposed to be.

The memorability of the Holy Roman Empire of the German Nation forGermany follows from the particular role which it played in thedevelopment of the German nation-state. While the medieval politicalentities which were not part of the Empire D as for instance England,France, Spain, the United Provinces [later: the Netherlands], or the SwissConfederation D underwent a process of transformation into modernstatehood in the course of modernization, the Holy Roman Empire neverbecame a state in the modern sense of this concept. The WestphalianPeace Treaty of 1648 which factually became the basic law of the empiredid not change the basically premodern, i.e. estatist character of itsconstitution. Thus, the empire never acquired sovereign power, i.e.,according to the criteria first developed by Bodin, supreme and undividedauthority over a delineated territory and its inhabitants. The imperialpower was embedded in a system of estatist bargainings (in whichelection capitulations played a pivotal role) in which the centrifugalinterests of the particularistic imperial estates frustrate the numerousattempts to create basic elements of political unity. Hence the Empirenever developed a centralized political authority, an imperial police force,administrative agencies, a standing army, or an established tax collectionsystem. The imperial cameral tribunal which exercised jurisdiction overthose immediate to the emperor was understaffed and unefficient, andthe adjudication of a case frequently took decades. The imperial dietrepresented the immediate imperial estates and the oligarchies of theimperial cities, while the urban and the rural population and their issueshad no place in the imperial institutions.

However, the imperial institutions and their estatist foundations formedonly one level of the political and social order of Germany. The other oneconsisted in the territorial states which evolved within the imperial order.Paradoxically, it was the christian-universalist character of the empirewhich prevented it from overcoming the estatist particularism andpluralism, because it could not identify itself and its political order with a

particular idea, interest, territory, or collectivity. This then allowed themost powerful estatist rulers, the electors who formed the college ofelectoral princes which in turn elected the emperor, to pursue theirspecial interests without being checked by imperial authority and henceto develop an almost unrestrained particularism. The duralism betweenthe essentially estatist empire and the territories of the imperial dynastsdated back to the 13th century. The latter became the source of stateformation within the empire, because their geographical compactnessfacilitated the allocation of the resources and energies, in particular theaccumulation and centralization of coercive means necessary for stateformation. The most significant step towards the political autonomy ofthe territorial states was the Westphalian Treaty's recognition of theprinciple of territorial sovereignty which gave them unrestrained authorityover the inhabitants of their territory and ultimately transformed theminto their subjects. In other words, statehood D a political organizationbased upon a demarcated territory and the sovereign power over thisterritory and its population D evolved within and coexisted with theessentially estatist order of the empire. As a consequence, in the 17thand 18th centuries the Holy Roman Empire of the German Nationconsisted of a motley social pluralism of sovereign territories andabsolutist princes, landed and clerical nobility, imperial knights, provincialestates, knightly orders, free imperial cities, cities under the authority ofa prince, ecclesiastical states and many other legal and socialparticularities. To draw this picture even more complex it must be addedthat not only the most powerful imperial estates had acquired the dualrole of an imperial constituent and sovereign prince, but that some ofthem owned territories and were sovereign princes outside the empire.Thus, the elector of Brandenburg belonged to the college of electoralprinces, whereas East and West Prussia did not belong to the empire; as aking of Prussia he owed no loyalty to the empire. The same applied to theHapsburg dynasty (which from 1438 until the decline of the empire in1806 held the imperial crown almost uninterruptedly); the Hapsburgemperors did not only own territories outside the empire (for instanceHungary) but were also regarded as the 'natural' leaders of the Catholicparty in the empire ridden by confessional split. The most striking case,however, is certainly the dynasty of Hanover: during period of 1714 until1837 the elector of Hanover was simultaneously the king of England, oneof the leading European powers with political interests that hardlyharmonized with those of the Empire.

The analysis of the institutional environment of citizenship must notignore the role of the cities. Of course the medieval and early modernEuropean society was an agrarian society, and in the German parts of the

Empire hardly more than 20 per cent of the population lived in cities. Thenumber of cities in the Empire in the early modern time has beenestimated at about 3000 to 4000, but these cities were geographicallydispersed and considerably smaller than cities outside the empire (likeLondon, Paris, Milan or Venice). Moreover, the Empire never developed ametropolitan area with a large capital which would be able to impose itseconomic, social and cultural forms of life upon the country and topenetrate it politically. The cities of the Empire had different legalstatuses according to the degree of depencency from an overlord. Freecities were former bishop's cities which had emancipated themselves fromtheir rule and now struggled for the recognition of their autonomy whichwas mostly jeopardized by the territorial princes who were the overlordsof the territorial cities; these latter cities D the majority of the cities ofthe Empire - were merely urban versions of sovereign princes rule overtheir territories, although factually many of them enjoyed a much higherdegree of autonomy than the rural settlements and their inhabitants.Among the territorial cities the many princely capitals like Weimar,Dresden or Potsdam gained particular political importance during the 18thcentury, although this did not, of course, mean increased autonomy.Imperial cities finally enjoyed imperial immediacy, that is, they had noterritorial overlord. They payed taxes to the empire and were representedin the Reichstag, although the political, administrative and economicdevelopment of the territorial states during the 18th century left littleroom for an independent existence of imperial cities. At the end of the18th century only a few cities such as Hamburg, Bremen or Frankfurt amMain retained their political autonomy, while most of the formerly imperialcities had to accept the hegemony of the prince of their surroundingterritory.

To complete this sketch of the institutional set-up of the Empire in theearly modern period of the Westphalian system it is necessary to give anaccount of the position of the Churches and their affiliations. This is acomplicated issue which cannot be treated here in detail. Suffice it to saythat both in the Catholic and the Protestant territories the respectiveChurches became closely associated with the sovereign states, whichmeant that in the Catholic territories the appointment of the bishopsrequired the approbation of the sovereign prince of a monarch, whereas inthe Protestant countries D be they Lutheran or Reformist D the Churchwas a state Church and the sovereign prince was qua sovereign the headof the Church, its bishop.

On the whole, this complex interplay of imperial estates, territorial princes(and their internal regional and local estatist orders), the diverse

categories of cities, and religious denominations formed the socio-politicalreality of Germany until the end of the 18th century. Evidently this was afar cry from the unitary rule of the French monarchy. If one takes intoaccount the economic and sociocultural consequences of the Thirty YearsWar on the regions most affected by the war which later were to becomethe constituent parts of the German state, it comes as no surprise thatstagnation, particularization, and cultural narrowness becamecharacteristic of German life in the seventeenth and the eighteenthcenturies. There was not, as in France, an overarching absolutist statepower which dominated and embraced the manifold estatist distinctionsof urban and rural life which created a broad variety of categories ofindividuals with particular duties, dependencies, privileges, exemtions,princely letters of protection and the like. Political, social and culturalparochialism was a characteristic trait of seventeenth- and eighteenth-century Germany. As one author puts it quite bluntly with respect tocultural life, "while Spain, the Netherlands, France, and Englandexperienced a cultural flowering in the seventeenth century, Germanymade an increasingly shabby impression in comparison". Moreover, theWestphalian settlement extended the Augsburg Confession's cuius regio,eius religio (1555) to the various Protestant confessions and entailed akind of religious cleansing to the effect that religious diversity wasestsblished along territorial boundaries; this furthered both the culturaland political fragmentation of Germany and became the fundament ofdeep-reaching confessional cleavages which have subsided, but by nomeans completely disappeared in the last thirty years.

These conditions determined the ambient factors of the evolvement ofcitizenship; they did not prevent it from emerging. They shaped itsparticular character. First of all, it is striking that the empire did notdevelop the status of imperial citizenship, contrary to its forerunner, theancient Roman Empire which in the Constitutio Antoniana of EmperorCaracalla (A.D. 212) bestowed upon all free subjects of the Empire thestatus of civis Romanus. Evidently the estatist character of the Empirewas an insurmountable obstacle to a legal status which could connect theinhabitants of the Empire on an equal footing. Instead, the term 'subject'became ever more common in the 18th century; obviously this was dueto the growing significance of the territories. It was part of the process ofstate formation fostered by the Westphalian Treaty to transform thegreat variety of estatist statuses into the single status of subjecthood. Inparticular in the 18th century this transformation was welcomed by mostauthors of imperial and state law as a process of emancipation fromestatist dependency. The society whose member each individual becameby virtue of his and her birth was the state. Properly speaking the was a

"statal society" (Staatsgesellschaft), which was tantamount to whatmany juristic and political authors of the17th and 18th centuriesconsidered to be the civil society (bürgerliche Gesellschaft). Hobbes andPufendorf, to quote only the most prominent authors, reasoned quiteunabashedly about the 'citizen', while the ideal quality which theyattributed to him, namely almost unconditional devotion to the state andobedience to the government, was of course the quality of a subject.Moreover, in the natural law reasoning of the 17th and 18th centuries theterm subject in which the term citizen got almost completely lost wasclosely connected with the concept of man: the subject/citizen was manafter the conclusion of the social contract and his entry into society. Bothconcepts reflected universal positions of the individual. By contrast, inGermany the term citizen had a different meaning. The citizen was theburgher, the inhabitant of the city. Citizenship was a local status which inthe feudal world of the Middle Ages was universally understood as astatus of freedom. A civis was an individual who lived within theboundaries of a civitas, which is a town confined by walls andconsequently protected against external intruders. Hence, the civitas, -the city D was not only a physical area, but a symbolic space which themedieval jurist Johannes von Viterbo defined with a play upon the latinword civitas: he read ci-vi-tas as the three initial syllables of citra vimhabitas, which reads: you live beyond violence. The city was the place ofarmed safety which was tantamount to liberty. Although the city was aphysical place, the defining element was its character as a corporation ofpersons who were bound together through particular law, the ius intercives, or ius civitatis, the ius civile (civil law), as opposed to the iuscommune which applies to the whole Empire (and which until early moderntimes was synonymous with the Roman Law as delivered by the Corpusiuris Justinianum and its commentators, commonly namedpostglossarists).

Still, the cities D be they free, imperial, or territorial cities D did not breakup the estatist character of the Empire. They were its integral part. Thecities were the places of manufacture, trade, and administration and thusfulfilled essential functions within the medieval order. Their freedomconsisted in the privilege to rule themselves, although this did of coursenot mean political autonomy or even sovereignty in the modern sense ofthe word; they remained subject either to the rule of the emperor or oftheir sovereign prince. But the emperor was far away, and due to theireconomic role they succeeded in obtaining a significant degree ofautonomy towards their immediate lord. Their freedom was the corporateprivilege of a particular estate, very much the same as the privileges ofthe other estates. But at the same time this privilege overstepped the

particularism in that it created a distinct sphere of corporate freedomamong the members of the corporation. Freedom as an estatist privilegetook part in the social hierarchy of the medieval order; the cities of theEmpire were social and physical spaces of freedom, but not of equalfreedom. The medieval and early modern cities of the Empire were ruledby oligarchical patriciates, and not every resident qualified for the statusof a civis. For instance, out of the population of 33000 in 18th-centuryAugsburg only 6000 enjoyed the status of citizenship. With respect tothe medieval towns Max Weber had already observed the differenttendencies toward status-levelling and simultaneously towards statusdifferenciation within the city. The latter entailed a broad spectrum ofindividual statuses with different rights and duties in different areas, suchas "distrettuali, citizens of allied cities, permanent and semi permanentresidents", among the citizens "nobles, artisans, sottoposti, women, andnew citizens", and among the new citizens "most were granted variousexemptions and some limitations in their status of popolani and of fullcitizens". Generally speaking, in the 18th century most of the cities hadlost their character as places of economic dynamism and entrepreneurialspirit; the prevailing guild system did not only entail economic stagnation,but contributed a lot to political ossification. This was still corroboratedby the confessionalization of the public life which meant the exclusion ofreligious minorities from many social, economic, and cultural activities. Onthe average, the German cities of the Empire were more connected withthe estatist structure of the late medieval society than the forerunners ofwhat the natural law theorists had anticipated as the society of equals.Citizenship was a local and particularistic status which many authors ofthe 18th century rightly regarded as the embodiment of parochialism.This citizen was in reality a burgher who was hardly able to overstep thenarrow boundaries of his local life.

Against this background the initiative towards modernization did notcome from the cities, nor of course from the Empire, but from thesovereign princes of the territories. It is not by accident that Wieland,Kant and others were anxious to avoid the misunderstanding that whenthey envisioned the Bürger they did not mean the burgher, the local civisof the several towns and muncipalities, but the citoyen, i.e., the individualwho was the member of the territorial state which in turn embodied thepolitical association that reason itself dictated. In other words, in Germanythe Staatsbürger was the citoyen, whilst the civis, the citizen was theburgher, the bourgeois. Likewise we can better understand theambivalence of the Prussian ALR mentioned above with respect to thelegal status of the inhabitants of the Prussian state. On the one handsovereign statehood required the status of equal subjecthood for the

'members of the state' as they were frequently labeled, while on theother hand the Prussian state rested upon the loyalty, cooperation andresources of the essentially estatist society. Thus, we find ¤ 22 of theIntroduction to the ALR which makes the claim that the 'members of thestate' are associated through its laws, while the next section revokes thisindividualistic-egalitarian claim in that it makes the qualification that thepersonal qualities, rights and privileges of a person are subject to thelocal rules which apply to the person. Thus, the individual wassimultaneously an equal state subject and an estatist dependent.

III. Citizenship and the German Nation

1. The concept of nation and its relevance for the idea of citizenship

Under the modern conditions of a polity constituted by equal citizens(Staatsbürgergesellschaft) the status of subjecthood persists, but it iscomplemented by the status of citizenship. As Rousseau put it concisely,the individual is a subject in his and her status as a subject to thesovereign power, while he and she are citizens in their quality asconstituent parts of the sovereign power. The latter is commonly calledthe nation, which therefore has become the key concept for theunderstanding of citizenship in several European countries. The equationcitizenship = membership in the nation is widely accepted, but it does notanswer the question of who is a member of who qualifies for membership.For instance, at the end of the 18th and on through the 19th century itwas common practice to admit only male property-owners to this status,hence only they constituted the nation; obviously, this was only a smallminority. The others are 'the people', the masses, the underclasses, i.e.,inferior elements of the society who were below the standard of bothcitizenship and nation. Thus, the concept of nation is significant for theunderstanding of the character of social exclusion/ inclusion anddomination prevalent in a country under study; it can be scrutinized withrespect to the top/bottom cleavage.

But there is a second boundary between belongers and non-belongerswhich is defined in terms of nationhood which in its turn defines thosewho qualify for citizenship. This is the boundary which is drawn towardsforeigners. There are several ways how alienage is perceived D spatialdistance, religious difference, ethnic otherness and the like - but the mostcommon cultural pattern and institutional device to define non-belongersis the concept of nation. Thus, in order to understand who is a citizen andwho qualifies for citizenship, we have to study the respective concept of

nation with respect to the distinction between belonger/familiarity andnon-belonger/alienage, or between in and out.

Both aspects of nationhood merit our attention, although the latter is theone which has been more consequential and fateful for the Germans andtheir concept of nationhood. As we shall see before long, the tendency ofsocial exclusion inherent in the concept of nationhood was much easier toovercome than the symbolic boundary between in and out. The mainreason is the fact that nationhood does not only define the legalboundaries between foreigners and belongers, i.e., nationals/citizens, butsymbolic boundaries which are viewed as indispensable for the sense ofcommonness among the members of a society which defines itself as anation. Thus, the concept of citizenship as determined through the ideaof nationhood touches upon much more than just the individual legal andpolitical status of individuals D it is at the core of the collective identity ofa nation.

2. The German nation, the Holy Empire, and the modern state

At a first glance the name Holy Empire of the German Nation suggeststhat it was the political incarnation of the German nation. At the sametime, however, it made the claim not only to Christian universalism, but towhat we would call multinationalism in that not only Germans, i.e. Germantribes like the Bavarians, Swabians, Thuringians, Saxonians, andFrankonians, but also non-German peoples like Italians, Burgunds, Slovenesand Czechs lived within its borders. How could the Empire be national andat the same time universalist and multinational?

As a matter of fact, the term 'German Nation' did not refer to the modernconcept of the nation which evolved in the second half of the 18thcentury and which defines the nation as the collectivity of the inhabitantsof a delineated territory tied together through common attributes likedescent, institutions, language, history, or mere political will. The modernconcept of the nation is inseparably connected with the concept of thepeople, while the German Nation invoked in the denomination of theEmpire designated the imperial estates. The Empire was represented inthe Imperial Diet by the Imperial Estates, among which the high nobility, inparticular the seven electors who elected the Emperor, formed the mostinfluential part, while the imperial cities were of inferior significance. Theimperial estates incarnated the German nation. In the language of theMiddle Ages the term 'nation' designated a collectivity of commondescent and common language, but it referred to the superior elementsof that collectivity, while the inferior components were the 'people'.

Therefore the term 'citizen' designated the persons who represented theestates at the imperial diets, i.e., the electors, the secular and spiritualprinces etc. As in the case of ancient Greece or in the moderndemocracies, the medieval Holy Empire the nation also consisted ofcitizens D but the status of citizenship was reserved for the nobility. Inthe estatist order of the Empire the 'people' played no role. They werenot represented, simply because they were not an estate, let alone asuperior constituent of the Empire. The higher estates incarnated theGerman nation, and consequently Martin Luther addressed his famouspamphlet of 1520 in which he called for a reform of the Church, 'To thechristian nobility of the German nation' (An den christlichen Adeldeutscher Nation).

The unity of the Holy Empire was not constituted by nationhood D thecommon German language and descent of the imperial estates D, but bythe estatist interests and privileges of the high nobility. The very idea ofnation was absorbed by the imperial estates. They embodied the Germannation because the German high nobility made the claim to rule theEmpire and to represent its Christian-universal character. Whereas otherEuropean countries like France, England and Spain began in the 13thcentury to associate the nation with the monarchy and its emerging iusterritoriale (which in France in the 17th century became to be called thedroit de souveraineté), this did not happen in the Empire. This is becausethe Empire was too large to transform itself into what we now call modernterritorial rule. Thus the Empire could be a Christian-universal polity and atthe same time represent the German nation, i.e., a particular community.This was its character until its dissolution in 1806, although in themeantime not only the Christian-universal idea had disintegrated andconfessional fissures, religious wars and religious cleansing had taken itsplace, but also the concept of imperial rule through imperial estates hadbecome obsolete in view of the emerging states based on territorial rulerecognized in the Westphalian Peace Treaty (ius territorii etsuperioritatis). As mentioned above, besides the emergence of modernstatehood in France, England, and Spain, a plurality of sovereignterritories evolved within the Empire ruled by princes, kings, and electorswho at the same time were estates of the Empire. Not surprisingly, theywere not interested in the transformation of the Empire into a territorialstate which necessarily would have been a German monarchy. Given thelarge size of the Empire and the underdeveloped means of communicationand transportation in the medieval and early modern era, it is doubtfulwhether such a project could ever have become successful, even if theparticularism of the imperial estates had been less strongly marked. Bethat as it may, at the latest after the Westphalian Treaty of 1648, which

quasi-constitutionally recognized the ius territorii et superioritatis, theEmpire became what Pufendorf in his famous legal analysis De statuimperii Germanici of 1667 came to call an "irregulare aliquod corpus etmonstro simile".

It is this dissociation of the German Empire from the process of stateformation which pushed the German concept of nation into a particulardirection. In the writings of many 18th century authors, both French andGerman, the concept of nation had acquired an anti-estatist, broadersocial meaning in that it included the people, which means: the emergingclass of state and Church employees, tradesmen, entrepreneurs,craftsmen, artists and the like who now were identified with the nation. InFrance this social extension of the concept proceeded along with itsconnection with the political organization of the country. For instance, inthe Encyclopaedia (1765) Diderot defined the nation as a multitude ofpeople living in a country of a certain geographical extension which isdefined through fixed borders and whose inhabitants are subject to agovernment, a definition which in 1789 obviously inspired Sieyès to hisfamous definition according to which the nation is the association ofindividuals who live together under common laws.

In the revolutionary age around 1800 the identification of a particularestate with the nation is challenged, and the concepts of 'nation' andcitizenship get politicized. Other social classes which in their turn identifythemselves with the whole of the society claim to be the nation, and nowthe concept of 'people' arises as a parallel, partly as a counter concept tothat of 'nation'. Paradoxically, it is the universalist character of theconcepts of nation and people D the claim to include all relevantindividuals D which renders them susceptible to becoming a semanticinstrument of political polarization: the part of the society which succeedsin identifying itself with the whole, to represent, or even to be the nationor the people, has gained a surplus of legitimation for its respectiveparticular demand.

The Frenchmen lived in a bounded territory under a monarch, while theGermans lived in several territories under a plurality of princes, while thesingle king who existed, the Emperor, was not their ruler. Thus, in 18thcentury Germany the idea of a German nation emigrated into the sphereof culture. It cannot be overlooked that in certain segments of thepopulation a sense of imperial patriotism (Reichspatriotismus) developed,and on the other hand there was also a kind of 'national' identificationwith some of the German territories, mostly with Prussia and her much-admired King Frederick II, called the Great. Paradoxically, the imperial

patriotism which one would expect to include non-particularist, universalideas as originally embodied in the Holy Roman Empire of the GermanNation, was behind the times, because it celebrated estatist liberty in atime when the natural law idea of equality of man and the eventual realityof equal subjecthood under a sovereign state authority had already beendeveloped. On the other hand, the particular German sovereign territories,especially Prussia, were the modern powers with which the "new urbanorders" of the state functionaries and the educated could easily identifythemselves. But clearly even Prussia, the largest German territorial state,did not embody the German nation, let alone the fact that none of thesovereign princes including the Prussian king ever intended to establish aGerman nation-state. In his Essay on "The Constitution of Germany" (DieVerfassung Deutschlands) written between 1800 and 1802, the youngHegel analyzed the German predicament whose main structural difficultyhe found in the failure of the Germans to establish a homogeneous publicsphere of statehood as the necessary precondition of civil as opposed toestatist liberty (staatsbürgerliche vs. ständische Freiheit). In a slightlyironic overtone he blamed the Germans' "instinct to freedom" (Trieb zuFreiheit) which prevented them from becoming D like all other Europeanpeoples - a people prepared to subject itself to a common stateauthority. In his eyes, however, this "instinct to freedom" is nothing otherthan a propensity towards narrow-mindedness and particularism: "Theobstinacy of the German character could not be overcome so that thesingle parts would sacrifice their particularities to the society, would unitethemselves to a general principle and find their freedom in the commonsubjecthood to a supreme state authority".

Hegel's reference to "the obstinacy of the German character" could easilybe translated into the more benevolent "spirit of the German nation".Indeed, the idea that each nation is characterized by a particular spiritpermeated the reasoning of the 18th century. The 19th chapter ofMontesquieu's 'Spirit of Laws' of 1748 about the general spirit, the moresand the customs of a nation was frequently quoted as a brilliant exampleof the analysis of the spirit of nations. Likewise Voltaire's Essai sur lesmoers et l'esprit des nations of 1769 was an important and influentialmove towards a cultural understanding of the concept of nation. InGermany the educated classes which had arisen in the course of thedevelopment of the German territorial states, state and churchbureaucracies, their residential courts and towns, not least their newlyfounded universities, academies, and theaters, formed a 'national spirit'on the basis of the German language. Latin had been the language of theChurch, and French the language of the princely courts. Even Frederick II,not only a king but also a much-admired homme de lettres who was

celebrated by many Germans (including Goethe) after his many militarysuccesses wrote his essays in French language. Thus the growing, mostlystate-nurtured middle class developed their national feeling through theGerman language, an institution which overstepped the politicalboundaries of the states and was not compromised by therepresentatives of the obsolete order represented by the Empire.Incidentally, the peculiarity of language is the source of the term'deutsch', used for the first time in the 8th century and meaning thosewho did not use the latin language. 'Deutsch' and 'Deutschland' are termswhich originally designate a lingual community, while their political importemerged in the 16th century and acquired a polemical meaning againstthe ruling princes through the claim to embody one single collectivity, asopposed to the particularistic fragmentation and disunion of the empire.Thus the term 'deutsches Volk' (German people) has always been moremeaningful than just the neutral designation of a particular collectivity ina delineated territory; its symbolic importance amounts to what in Francethe concept of nation meant and means to the Frenchmen. It embodiesthe Germans' search for political unity and identity. Interestingly,important German encyclopedias of the 19th and the 20th centuries lackthe entry 'nation' and instead deal with this concept under the entry'Volk'

Johann Gottfried Herder (1744-1803) was the most influential among thephilosophers, poets, and intellectuals who fought for the development ofa German nation and a German national spirit through the advancement ofthe German culture, especially through German language and literature.Herder, Klopstock, Lessing, Schiller and others pursued the objective of aGerman national literature and a German national theatre which theyregarded as a kind of substitute for the missing German political nation.Schiller in particular was very much aware of this substitutive role ofculture for politics. "Germany? Where is it located? I do not know whereto find the country. Where the learned country begins, the political ends".And: "The language is the mirror of a nation, if we look into this mirror,then a great and excellent image of ourselves advances". This does notmean that they were cultural nationalists. On the contrary, their belief inthe spiritual character of the nation was inspired by humanitarian idealswhich regarded each nation as an equally valuable and dignified collectiveindividual which merited equal respect and recognition. Herder, forinstance, edited a collection of folk songs of different nations andcultures which were published under the title 'Voices of the peoples intheir songs' (Stimmen der Völker in Liedern), and published, amongothers, a study in the field of the philosophy of history entitled Philosophyof 'History for the Education of Mankind' 1774), or 'Letters for the

advancement of Humanity'. Although mainly interested in language andliterature, he did not ignore the necessity of enlightenment and autonomyfor the nation to flourish, and he even developed the idea that nations donot fight bloody wars against each other. Schiller, who was particularlysensitive to the intellectual parochialism in the German mostly pettystates, declared: "I write as a cosmopolitan, who does not serve anyprince", and: "Prematurely I lost my fatherland in order to exchange it forthe great world", or, even more explicit: "German Empire and Germannation are two different things. The majesty of the Germans never restedon the head of their princes....Even if the Empire perished, German dignitywould remain untouched. It is a moral quality, it resides in the culture andthe character of the nation which is independent of its political fates".However, others who wanted to be patriots deplored the widespread highesteem for cosmopolitism because they regarded it as an escapism fromthe absolutist reality which in fact did not require citizens and the virtuesof citizenship.

In a famous book entitled 'Cosmopolitanism and Nation-state'(Weltbürgertum und Nationalstaat) the German historian FriedrichMeinecke (1862-1954) drew the now widely used conceptual distinctionbetween culture-nation and state-nation (Kulturnation and Staatsnation)in order to explain differences of the developments of several nations.Culture nations are mainly based upon a commonly experiencedpossession of cultural goods, whereas state nations rest upon theunifying force of a common political history and constitution. Accordingto this distinction France is clearly a state nation, whilst Germany isapparently a culture nation. This model of explanation has becomecommon place, although at closer scrutiny it turns out to be insufficient.With respect to the comparison between the French and the Germanconcept of nation D the main field in which the distinction has been usedagain and again D it must not be overlooked that the French concept isunconceivable without the key element of the French language and therole of philosophy and poetry in which the Frenchmen have always takenmuch pride. The French civilization D a particular attitude of rationalitytowards the world D has always been regarded as the standard whichimmigrants have to fulfill in order to become members of the Frenchnation. On the other hand it is not confirmed by historical facts that theuse of the German language as such constitutes the German nationamong the speakers. True, the claim has been made by the said Germanintellectuals at the end of the 18th century D in the very specificsituation of the agony of the Holy Roman Empire of the German Nation;but it is equally true that German speaking communities outside thetraditional territorial boundaries of Germany (in Switzerland, Austria,

Romania, Belgium and several other European countries) did not form acomponent of the German nation. This claim may even be misused D andin fact has been misused D for imperialist extension of German statepower over other sovereign states.

Thus, the distinction may give rise to dangerous misunderstandings.However, the underlying criterion remains a valuable heuristic tool for abetter understanding of certain particularities. One distinctive feature ofGerman nationhood is the lack of an inherent connection of the idea ofthe German nation with a demarcated territory, and, as a consequence, itsco original alignment with statehood. As stated above, in Spain, England,and France, state formation was simultaneously the process of nationalclosure: those living permanently outside the boundaries of the state didnot belong to the nation. The state defined the nation. And yet, the statewas not the nation. The state is an organization of domination: it is theinstitutionalization of sovereign power over a demarcated territory andthe individuals who stay within the territory. The subjects of sovereignstate power need not necessarily share more than just common equalsubjecthood to the state; this is for instance the case when temporaryaliens and permanent native residents happen to dwell within the samestate. If there is any connection between them, it is mediated throughtheir vertical relationship to the state authority; common subjecthooddoes not create a horizontal link among the subjects. This, however, isthe defining characteristic of nationhood: the concept of nation points toa bond which ties a multitude of individuals together to the effect thatthey form a polity, i.e., a sphere of common affairs. Common subjecthoodto a sovereign power as such does not tie them together, while thecommon will to live together in a state and to be subjcet to its sovereignauthority does. Only in the latter case is the polity the embodiment of thenation because it is built upon horizontal bonds which tie the individualstogether. Now the distinction between culture nation and state nationrefers to the instance that in some cases the collective perception ofcommon cultural and spiritual properties D like language, religion, pastexperiences D among a multitude of individuals who live in contiguousterritories may create the desire to form a polity, in order give thecollectively felt sense of togetherness a political vessel. In this case DGermany is widely seen as an obvious example, but one could also think ofPoland in the era of its partition between 1795 and 1918 D the politicalorganization is viewed as a means for the preservation of the pre politicalnation which, as a cultural entity, is considered to exist prior to the polity.France is the most prominent example for the character of a nation as astate nation or of what later became called a political nation: the state isnot regarded as the vessel for a preexisting cultural community, but as

the necessary form of the nation. Nationhood prior to or outside ofstatehood is unconceivable, nation and nationhood are inherently politicalconcepts. Thus, despite a common language and strong feeling ofcommonness between the Frenchmen (in France) and the Quebecois inCanada it would be incompatible with the political concept of nation toview them as one nation.

3. German Nationhood and the 'constitutional question'

It lies beyond the purpose of this essay to elaborate on the conceptualrefinements of the idea of nation and nationhood. Let it suffice it to givean account of the distinctive elements of the German concept and itshistory, which seems necessary for the understanding of the Germanconcept of citizenship. One of these properties is the said incongruity ofGerman statehood and German nationhood rooted, as Hegel contended, inthe Germans' incapacity to transform the Empire into a nation-state. It isa matter of debate whether it was the Germans' proclivity to particularismor rather insurmountable objective obstacles which prevented thistransformation from happening. In any case the separation of the politicalfrom the cultural dimension of citizenship is a characteristic trait ofGerman citizenship which can be attributed to this historical feature. Asalready mentioned, there was no imperial citizenship until the dissolutionof the Empire because the Empire was built on estates and corporateentities, not on individuals. The legal status of individuals evolved in theframework of the territorial states. When the Empire finally collapsed theidea of a German nation had lost its last institutional expression, howeverweak and caricatured it appeared to the contemporaries. This did notmean the disappearance of the idea itself. What faded away at end of the18th century and ended with the formal dissolution of the Empire was theperception that the German nation was embodied in the high nobility. Aslong as the dualism of the Empire and the particularistic territories formedthe German constitution, the idea of nationhood was inseparablyconnected with the Empire and, consequently, with the nobility. Althoughan educated middle class had evolved around the territorial state'sbrueaucracy, the princely court, the state church and new culturalinstitutions, the emanating elements of state patriotism within the severalterritories - especially in Prussia which had risen from a geographicallymarginal and economically underdeveloped imperial territory to one of theGreat European Powers within two generations - could not overstep theirparticularistic boundaries simply because the idea of German nation wasoccupied, as it were, by the imperial estates. Thus, its development wasblocked in a twofold manner, namely through the universalism of theimperial idea and the social exclusivity of its estatist-aristocratic

character. Therefore dissolution of the Empire in 1806 paved the way fora modernization of the national idea. Concerning its social exclusivity, theFrench Revolution had already elevated the then inferior parts of thepopulation D the so-called third estate which in reality was a new socialclass D to the group which now identified itself with the nation. As Sieyèshad claimed in his pamphlet: "The third estate includes everything thatbelongs to the nation, and everything that does not belong to the thirdestate may not regard himself as belonging to the nation. What, then, isthe third estate? Everything...". This is the socio-economic meaning ofthe claim that the French nation is a nation of equal citizens D theconcept of nationhood had overcome its estatist-aristocratic exclusivityand become a social idea with which the newly emerging class of thebourgeoisie could identify. The French Revolution signified thedevelopment from the aristocratic nation to the civic nation (Adelsnationvs. Bürgernation). This transformation did not merely mean an exchangeof the social classes which embodied the nation. Nationhood in themodern sense of the civic nation implied three elements which wereabsent from the aristocratic nation of the Middle Age and the GermanEmpire, namely, first, statehood, i.e., the creation of a uniform status ofsubjecthood to the sovereign state power; second, the transformation ofthe estatist and corporatist social hierarchy and its static system ofinequality into a system of equal rights for all individuals which createsanother system of inequality, namely a pattern of socio-economicinequality; finally, an institutionalized system of individual freedom,including the negative freedom against state intervention in sphereswhich are defined as belonging exclusively to the individual's sphere, andthe active freedom to participate directly or indirectly, throughrepresentatives, in the government of the nation. The institutional meansthrough which these requirements are satisfied, through which, in otherwords, the nation comes into being is the constitution. The modern civicnation is based on what Hegel called the staatsbürgerliche Freiheit, i.e.,civil liberty under a unified public authority.

In France these three elements of the nation D statehood, individual legalequality, civil liberty D were completed in the revolution of 1789.Statehood had already been created by the French monarchy, legalequality (i.e., the abolition of the estates and all aristocratic privileges)and civil liberty (i.e., constitutional rights to negative freedom and toparticipate in the government of the nation) was accomplished by therevolution itself. In Germany all three elements remained problematicthrougout the 19th century and were finally settled not earlier than in1919 D this is one of the reasons why she has been called times andagain the "belated nation". As mentioned, statehood had developed in

Germany in the 17th and 18th centuries and even created two powers ofEuropean standing, namely Prussia and Austria. But none of them was andclaimed to be the German nation which was incorporated in the Empire.Not only did statehood in Germany fall short of organizing Germannationhood D which had been the role of statehood in France, England,and Spain for French, English, and Spanish nationhood, respectively D ,but state formation was even pushed forward against the existentembodiment of the German nation, namely the high imperial nobility. Thusstate formation and nation building parted company in Germany, and thisdid not only entail the Germans' emphasis on the cultural basis ofnationhood elaborated in the previous section. It had seriousconsequences with respect to the two other elements of nationhoodwhich point to the issue of constitutionalism. In France, to take thisobvious example, the appropriation of the nation through the third estateoccurred uno actu with the emancipation of the subjects of state powerto citizens: through the constitutional establishment of negative freedomand of the right to participate in the government the French nationconstituted itself as a civic nation. Equal national citizenship became thehallmark of the French concept of nationhood, and eequal nationalcitizenship became the symbol of the French concept of citizenship. Whenthe German 'third estate', i.e., the state-dependent educated middle classin the several German territories, struggled for their emancipation fromsubjecthood to citizenship, they did not by this at the same time strugglefor the creation of a German nation. To be sure, there were manifestsigns that the concept of nation was understood as a concept whichimplied Hegel's staatsbürgerliche Freiheit, in other words, which identifiedthe idea of nation primarily with the anti absolutist concepts ofconstitutionally guaranteed freedom, equality and political representation.Thus, during the Napoleonic occupation of Prussia (and France'shegemonic position in the Rhine Alliance which in 1808 included no lessthan 39 of the 43 German states) a pamphlet argued: "A constitution,through which the separation of powers and the rights of the people aresanctioned is what at the present state of the political development thevoice of the nations demands as an inalienable right...Only where there isa free constitution tis there a fatherland, there true patriotism canflourish...". Here patriotism and constitutionalism, that is: anti-absolutismconverged, and if we understand the term 'fatherland' as a synonym for'nation' we find a variant of what in our times became called'constitutional patriotism' which is based on the principle: ubi libertas, ibipatria.

In such a concept of nation, statehood becomes the embodiment of thepeople's freedom and self-determination D a civic nation D because the

territorial boundaries of the state define the multitude of its permanentinhabitants as a distinct collectivity capable of common aspirations,purposes, rights and duties. But in the world of German sovereign statesafter the expiration of the Empire it was hardly possible for thepopulations to develop such a sense of distinctiveness. There were morethan 40 sovereign states and dynastic families in Germany, and only twoD Prussia and Austria D had European standing in terms of size,population, and military power. It would have been ridiculous to expectthe about 30.000 inhabitants of, say the duchy Lauenburg, or the samenumber of inhabitants of the principality of Waldeck to conceive ofthemselves as the Lauenburg nation or the Waldeck nation, all the lesssince the people of their bordering states spoke the same language, readthe same books, and lived according the same customs and mores. Inthese petty states the territorial boundaries could not serve as thephysical boundaries of nationhood because the territory was not able tocreate and sustain the idea of collective distinctness. The pervasiveGerman particularism of the time period between the end of the HolyRoman Empire of the German Nation in 1806 and the foundation of theGerman Empire of 1871 was a major obstacle to the evolvement of aconcept of nation which identified the nation with a free and democraticpolity and dismissed the requirement of common cultural attributes. Hadthere been no more than two or three big states within the borders of theold Empire, the yearning for a German nation, embodied in an Empire(Reich) D which became a dominant element of 19th-century Germanhistory, might have been less powerful and less successful. Prussia, forinstance, was clearly able to develop a sense of nationhood which wasbased upon the ideas and ideals of a civic nation. The high bureaucratsand military men who reformed the Prussian state after its disastrousdefeat by the Napoleonic army pursued the goal of a civil society for thesake of a civic nation. They did not hesitate to speak of Prussia as a'nation', and consequently in their efforts to introduce a constitution forPrussia they reasoned that its ultimate goal was the participation of 'thenation' in the administration of the country. Finally in his famous promiseof a constitution of 1807 even the Prussian king stated that he wantedto "give the nation a properly established representation..." D howevermixed with estatist elements his idea of representation clearly was. Thepromise was broken, because the absolutist monarchs and princes of theGerman states suspected that the concept of representation amountedto the recognition of the principle of popular sovereignty. Thus, the ideaof a civic nation associated itself with the quest for a German Empire ontwo grounds: first, because the geographical narrowness and pettiness ofthe majority of the German states fostered their particularism, andsecond because the states were the strongholds of dynastic absolutism,

and even where in the years after 1815 constitutions were enacted, theywere "granted" by the prince and a far cry from popular sovereignty. Theidea of democratic constitutionalism and of nationhood wasantiparticularistic, the concept of a German nation acquired a certainambivalence: to be democratic did not only mean to be antiparticularist,but also to be in favour of a German Empire. The General GermanStudents' Association (Burschenschaft) founded in 1817 as an element ofthe anti-Napoleonic liberation struggle proclaimed the followingpostulates: "Not the will of the prince is the law of the people, rather, thelaw of the people shall be the will of the prince...Freedom and equality arethe highest goods to which we have to aspire. We shall never use theterm 'fatherland' for the petty country (Ländchen), in which we wereborn. Germany is our fatherland".

For the members of the educated class who struggled for the principles ofthe French Revolution through political reform in order to avoid aradicalization similar to the Jacobin degradation and terror it was difficultto define what it meant to be a citizen. They were subjects to the princeof their respective state which was a state in Germany, but hardly aGerman state, much less the German state; Germanhood was simply not acriterion of the defining qualities of the late absolutist states in Germanyin the first decades of the 19th century. Nor were there 'peoples ofGermany' which were sufficiently distinct as to make them conceive ofthemselves as political subjects who demanded self-determination andhence nationhood. During the course of the entire 19th century therenever arose the idea of a Germany consisting of a plurality of Germanpeoples or nations. There was the idea of a German people, vaguelydefined through the common German language, but this was merely acultural definition. In political terms the German people did not exist inreality, but in the imagination of the patriotic movement which until 1815was nourished by the anti-Napoleonic liberation struggle and amounted toa mass movement, while after the restoration of the dynastic Europeansystem in 1815 it remained a rather weak force. Paradoxically, theirpolitical idea of Germany and the German nation was the idea of the Reich(Empire). The paradox is a twofold one: first, it lies in the fact that theEmpire, in the 18th century clearly an old-fashioned estatist entity incomparison with the new rising stars of the sovereign territorial states,now became the symbol of the liberal and democratic forces against thelate absolutism of these very territorial states. As a matter of fact, thePaulskirchen Constitution of March 1849, the (never sanctioned draft ofthe) constitution for a liberal and democratic Germany created by therevolutionaries of 1848 called it 'The Constitution of the German Empire'(Die Verfassung des Deutschen Reiches), and the head of the state was

assigned the title 'Emperor of the Germans' (Kaiser der Deutschen). Thus,Emperor and Empire (Kaiser und Reich), two elements of Germanconstitutional history which were deeply rooted in the Middle Ages,became the institutional paragon of a German democratic nation-state.The second paradox is the idea to constitute the German nation-state asa German Reich, the idea of the Reich being defined as a political entitywhich includes a plurality of peoples and ethnic groups; the Reich, in otherwords, is the opposite of a nation-state. The reason for this strangecombination must be found in the fact that the Empire had for centuriesbeen the embodiment of Germany as a whole, overarching the territorial,political, and perhaps even the religious particularisms of her princes, andthe Emperor appeared to be the protector of the unity of Germany.Apparently the German early-nineteenth-century democrats did not worrythat these symbols of German political unity D Kaiser und Reich D werecreatures of an obsolete, pre-modern world. Of course, there was stillanother constitutional model of Germany as a whole available, namely themodel of Germany as a federation of states which would integrate thecentrifugal forces of the manifold particularisms to a kind of voluntaryGerman political association. Unfortunately, the idea of a Germanfederation was already 'occupied', as it were, by the sovereign monarchsand princes of the German states who erected the German Federation(Deutscher Bund) of sovereign princes D not of the peoples of theirstates D as a bulwark against the liberal and democratic movements inthe states which, strictly speaking, was an all-German both national anddemocratic movement. Thus, the national-democratic movement in thefirst half of the 19th century was encumbered with the inherentcontradiction to pursue the goal of modernization D the cresation of ademocratic nation D with a constitutional model in mind which wasdefinitively pre- and antimodern. It could easily be anticipated that atsome point in the history of Germany this inherent contradiction was tomanifest itself and to urge the Germans to make a decision about thecharacter of their polity: to be either primarily German and onlysecondarily democratic, or vice versa.

Here a reminder of the meaning of the concepts of empire andemperorship (Reich and Kaisertum) seems appropriate. Both conceptsplayed a significant role in the constitutional constructions of the 19thcentury. Not only the German revolutionaries of 1848 or Bismarck Dalbeit reluctantly D used the terms Reich and Kaiser for the designation ofthe polity which they aspired or established, respectively, and for itssupreme monarch. Napololeon Bonaparte proclaimed himself in 1804Emperor of the Frenchmen, and in the same year the Habsburg monarchFranz II., Emperor of the Holy Roman Empire of the German Nation,

declared himself Emperor of Austria. Although Bonaparte's emperorshipwas regarded by some contenmporaries as a restoration of the medievalcarolingan Empire which in 962 (the coronation of Otto I.) had beentransferred to the German nobility, this of course did not happen. A HolyRoman Empire of the French Nation D a replacement of a Frenchemperorship for the traditional German one D was not rising. The oldEmpire had been a unique political entity which combined feudal pluralism,christian universalism, multinational coexistence, and territorialparticularism held together in the emperordom which had the importantobligation to protect the weak imperial estates and small cities againstthe big particularist powers. The Empire was a genuinely European entitywhich D despite the holding of the emperorship by the Germans D did notmake the claim to embody one nation. In a way the Empire was a systemof internal balance of the political forces in the center of Europe and thusembodied a mode of stability through 'loose coupling'. From aconstitutional point of view this conglomerate did hardly display asystematic order, and in a deep heartfelt sigh the famous German 18th-century constitutional lawyer Johann Jacob Moser wrote: "Germany isgoverned in good Teutonic manner, in a manner that no conventionalterm or comparison with the method of government of other stateswould make understandable our way of government".

By contrast, Bonaparte's emperorship embodied the principle of unitariancentralist self-government of a homogeneous nation; it was theincarnation of modern caesarism. Even if we leave this personal elementof Bonaparte's emperorship aside, it was clearly a modern version whichassociated itself with the concept of the nation-state. It was not byaccident that the Habsburg Emperor declared himself Emperor of Austria,by doing so he connected the several Habsburg territories to ahomogeneous state under one sovereign command. In this quality he wasthe Emperor of a modern state, while his simultaneous emperorship of theHoly Empire D this simultaneity lasted from August 1804 until the end ofthe Holy Empire in August 1806 D was the symbol of a pre-modern, i.e.,pre-statal concept of political rule. However, it is not clear whether thepolitical forces who in the anti-Napoleonic liberation wars of 1812-1815and thereafter until the failed revolution of 1848 struggled for a GermanEmpire were fully aware of the opposing meanings and implications of thisconcept. The contradiction became manifest at the latest in the crisis ofthe (dynastic) German Alliance in the 1860's which eventually entailedthe foundation of the German Empire as a German nation-state whichunited Germany with the exclusion of Austria (kleindeutscherNationalstaat).

Before getting back to this development D which finally meant aseparation of the democratic and liberal demands from the nationalaspirations of the patriotic movement of the first half of the 19th centuryD it is necessary to point to a peculiarity of the German reasoning aboutnation and nationhood which may provide at least part of the explanationwhy the linkage of anti absolutist and anti-feudal liberal and democraticdemands with the political ideal of the Empire was not recognized asinherently contradictory. The reason can perhaps be found in anidentification of the medieval idea of universalism characteristic of theHoly Empire with the new ideal of universalism which had been generatedby the French Revolution. With respect to the events and the politicalpressures of the years 1812 to 1815 D the anti-Napoleonic liberationwars in Germany, Italy, and Spain D Friedrich Meinecke states in his bookon 'Cosmopolitanism and Nation-State' mentioned earlier that the"German spirit grasped the idea of the nation in a still highly universalistsentiment" to the effect, that the imperative requirement of nationalautonomy was smoothly complemented by the idea of a universalfederation. In particular the baron vom Stein (1757-1831), the mostexcellent and far-sighted Prussian statesman of that time (and the drivingforce behind the penetrating Prussian reforms of the years followingPrussia's disastrous defeat through the French army in 1806) wasconvinced that the process of German nation-building had to beembedded in an organically constructed community of Europe. From ourpresent point of view this idea looks remarkably modern, while in the viewof Meinecke, uttered at the beginning of this century, it appeared behindthe times, and therefore he labels Stein as someone who is "not yet therepresentative of a specifically modern concept of nation-state". Thisindecision emblematic of the German reasoning about the concept ofnation is not primarily due to changing historical perspectives, nor is it asign of lacking political clarity; rather, it reflects a specific combination ofuniversalism and particularism which is modern and antiquated at thesame time. It is modern in that the concept of the nation-state D aparticularist entity D is regarded as an element of an overarchingunversalist idea. This is what the French Revolution was essentially allabout: the modern nation is the embodiment of universally valid principlesof humankind; all men are born free and equal, therefore they can formparticular, i.e., exclusive, political communities and draw boundariesagainst each other. Since every human being qua human being has theright to constitute a political association with others the particularity ofeach nation rests upon the universlity of humankind. Each nation is, so tospeak, a particular expression of the human species. All nations built uponthe principle of freedom and equality of man are equally legitimate; theirindividuality is a particular articulation of a universal principle. This

relationship between universality and particularity was shared by Germanpatriots like Herder who regarded each people and its specific culture asone particular expression of humankind. Humanity, cosmopolitanism, andnationhood were not inconsistent. This was the perspective which manyso-called 'imperial patriots' (Reichspatrioten) took on the Holy Empire.Still, at the same time this perception of the relationship betweenuniversalism and particularism was obviously pre-modern and incompatiblewith the concept of nationhood developed by the French Revolution.According to this latter concept the nation embodied the power, theglory, and the collective identity of a people; and sovereign statehoodprovided the institutional means for this quest. Consequently the culturalhomogeneity of the people was the condition of its political existence as asovereign nation. In France, for instance, the means of sovereignstatehood D in particular the public school and the army D were used forthe cultural assimilation and homogenization of the people and theiractuality as a nation. Consequently, the individuals are not just subjectsof the state, but members of the nation, i.e., citizens. Citizenship in thisunderstanding of membership in the nation carries a sense of exclusivebelonging to a particular community which frequently will entail a self-aggrandizing feeling of identity. In any case nationhood in its combinationof statehood D this is the modern version of the concept of nation Dreleases the tendency to render citizenship an exclusive, identity-engendering and self-assertive status which is hostile to the idea ofmultiple affiliations. In the French Revolution this exclusive character wasfirst and foremost directed against the feudal hierarchy of estates,corporations, provinces, local dominions, guilds, and similar sub-nationalfragmentations; nation and nationhood drew primarily an internalboundary between 'belongers' and 'nonbelongers'. Citizenship meant thestatus of belonging to the civic nation as opposed to the estatist nationof the nobility. Thus, the external boundaries against foreigners were ofinferior significance in the first phase of the revolution. Still, the turn ofthe revolution towards aggressive xenophobia, although an unintendedconsequence of the originally cosmopolitan character of the revolution'sconcept of nation, was not merely accidental. Its logic of physical andlegal distinction which follows from its connection with statehood is proneto develop into a moral distinction vis-à-vis other nation states and theircitizens, to judge them according to moral criteria and finally todiscriminate them according to the existential opposition of friend andfoe.

Measured by this standard, the baron vom Stein's concept of a Europeannation-state's embeddedness in an embracing European communityappeared quite close to the structure of the old Empire which lacked both

clear-cut internal and external borders. In particular, the Empire was anestatist order, and its supranational constitution was founded in thesupranational character of the Empire's high nobility. To imagine a politicalentity whose supranational quality was not based on its estatistconstitution, but upon the modern principle of sovereign statehoodverged on the fantastic and provides another piece of evidence of theextraordinary political ability of the baron. For it meant the abolition ofthe internal boundaries characteristic of the estatist order of the Empire(and, incidentally, also of the feudal-absolutist ancien régime in France)without transforming them into external borders and thus abandoning itsinherently supranational character. The individuals who belonged to thispeculiar nation-state would be equal citizens; at the same time theiraffiliation would be non-exclusive and hence permit a simultaneousbelonging of the same or of a different kind to another political entity.This would only be possible if the several entities to which an individualmay belong are mutually open to each other, i.e., that they do not makeclaims to exclusive belonging, membership and eventual loyalty. It isquestionable whether this construction, which seemingly requires thesquaring of the circle, is more than a mere phantasm. Basically, this wasthe task which the German national movement in the first half of the 19thcentury was confronted with. There was one nation in terms of a culturalheritage (essentially the commonness of language, history, andliterature), and there was a plurality of states none of which was able toembody the whole nation. To characterize the German situation at thebeginning of the 19th century succinctly: There were states withoutGerman nationhood, and there was a German nation without a single andindivisible state in an era where the idea of the Holy Empire had becomeobsolete and the principle of democratic nation-statehood stood on topof the historical agenda. Thus the task of the national-democraticmovement in Germany was to establish a German nation-state whichcombined the universalist elements of the Empire without falling victim toits estatist and pre-modern character, with the egalitarian elements of thecivic nation without internalizing the exclusivist and self-assertivetendencies inherent in the concept of the homogeneous nation-state.

4. Statehood and Nationhood: Empire, Nation-state, or Federation?

At the beginning of the 19th century the people who lived within theconfines of what geographically was Germany were subjects of some fortyindependent states ruled by late absolutist monarchs and princes. Atleast the members of the educated middle class wanted to becomeGerman citizens, i.e., citizens of a state in the government of which theycould participate through an assembly elected on the basis of civic

equality and representing the German people. But the term Germancitizen was inconsistent. As long as the fragmented system of pettystates and their absolutist rule persisted they could feel themselves asGermans and as members of a German nation which was a nation only inthe prepolicical sense of a cultural nation. To struggle successfully fortheir emancipation from subjecthood in an absolutist regime to citizenshipin a constitutional democracy would mean to be the citizen of a particularpetty state, but to renounce it to form a polity which includes all Germanswould have been tantamount to the renunciation of the German nation-state. Moreover, it was questionable whether the struggle for citizenshipin the particular states could be successful without the linkage of the ideaof political emancipation with the goal of national unification since thefragmentation of the civic movements was likely to weaken their potentialfor profound changes in their respective states.

Yet there was one state which appeared to be able to satisfy bothrequirements, namely to establish a civil society(Staatsbürgergesellschaft) and to embody the German nation: the formerrequirement was by and large satisfied through the reforms which Prussiastarted after its desastrous military defeat in 1806 and which aimed atthe abolition of the estatist elements in all spheres of state and society.It included the liberation of the peasants from manorial depencency, theestablishment of the institution of private and fully movable landedproperty, the abolition of the guild system in the towns and itsreplacement with elements of market freedom and economic competition,the introduction of municipal self-government, the reform of the fiscalsystem, of the bureaucracy, of the universities and the school system.,and the building of a people's army with compulsory general equal militaryservice for men. Finally, the apotheosis of this comprehensive reformwhich has frequently been called a 'revolution from above', consisted inthe goal of a Prussian constitution with a representative assembly of thePrussian subjects. This latter project failed, but the very idea of a Prussiannation had been released by the reforms and could hardly have beenrevoked. Its result was not a Prussian citizen proper, since only themunicipal reforms allowed limited forms of local self-goverment, while atthe state level an equal staatsbürgerliche representation could not beaccomplished against the reactionary dynastic forces which prevailed inPrussia and in the other German states after the success of the anti-Napoleonic liberation wars. The Prussian reforms were important stepstowards the country's modernization which entailed the de-feudalizationof both the peasants' and the urban population's status in the economicand social sphere; as mentioned above, in the political sphere the ALR of1794 had already acknowledged their status as equal subjects. They

created an incomplete civil society, that is, a society of free economicactors without the constitutional frame which granted them politicalrepresentation as active citizens (Staatsbürger) . To put it in a pointedand somewhat exaggerated manner: the Prussian society after thereforms was a society of economically and culturally free, active andcreative, but politically subaltern subjects. If we accept for a moment thefamiliar developmental model of T.H. Marshall we may say that thePrussian society after the reforms of 1807-1815 had reached the firststage characterized by the individuals' enjoyment of civil rights, butlargely excluded from political, let alone social rights.

The second requirement for building a German nation-state on the basisof Prussia was Prussia's hegemonic position. In terms of its territory,population, military power, the development of the legal system, and thequality of its institutions of arts and sciences Prussia was the dominatingGerman state, and therefore it was an obvious and much-debated idea toestablish Prussia as the nucleus of a German nation-state.

There are several reasons why this idea could not materialize in the firsthalf of the century. One of them, and certainly not the least importantone, was the D already at that time D international quality of the 'Germanquestion' and the unequivocal objection of England, Russia, and France tothe rise of a German nation-state. Obviously this embeddedness in acomplex web of non German concerns is part of Germany's heritage ofthe universal, or one may also call it: supranational character of the HolyRoman Empire of the German Nation. But there was no less disinclinationwithin the German states themselves. In Prussia the state elites D theleading cadres within the bureaucracy, the army, the Church, and theuniversities D had developed an entrenched national feeling which mademost of them reluctant to see Prussia merged into a German nation-state.The reactionary turn of Prussian politics after 1815 corroborated thisrepulse against a German nation-state, because nothing less than theGerman nation-state was the programme of the liberal and democraticforces. Moreover, after the Polish partitions of 1772, 1793 and 1795Prussia possessed several territories with a predominantly Polishpopulation (East and West Prussia, Silesia) which rendered the idea ofPrussia as the nucleus of a German nation-state less plausible.Furthermore, it is worth mentioning that also the smaller German stateswere against the German nation-state, because this amounted to the self-abdication of the dynastic families. Yet the main obstacle was theexistence of another big German state D Austria D which could haveequally claimed to become the heart of a German nation-state if the thenleading political forces had been interested in such an option. In fact, they

were not, mainly because Austria possessed much larger non-Germanterritories than Prussia, all located in South-East Europe (Hungary, Galicia,Coratia, Slavonia, Dalmatia, Istria, Lombardia and Venetia). Since theseparts of Austria would have to be excluded from integration into aGerman nation-state, Austria's consent to this project would haverequired the dissolution of the Habsburg Empire; of course, this was outof the question. But even if Austria had been involved, the problemensued which of the two hegemonic German states should receive theemperorship and how the power dualism which was likely to arise betweenthem would have to be checked and constructively utilized for the goodof the state. In sum, after 1815 the path to a German nation state wasblocked by all relevant European states including the German statesthemselves, be it that it would have disturbed the European balance ofpower, be it because this state was only imaginable as a democraticnation-state similar to the French nation-state created in the GreatRevolution.

Thus, in the first half of the 19th century the struggle for citizenship inGermany was necessarily at the same time the struggle for nationalunification D very much the same as the French model, but under theburden of German history it was much more difficult to accomplishpolitical freedom and the unity of the nation in a co-original process.Given the stamina of the multitude of German absolutist states ademocratic breakthrough appeared only possible through the power ofnational unification. On the other hand, the kind of national unificationwhich in fact was available after the final defeat of Napoleon was theConfederation of the German princes D a separation of the democraticfrom the national aspiration which left its enduring imprint on the Germanconcept of citizenship.

The German Confederation, founded in 1815 as a Confederation of someforty German states, seemed to entail the solution of the 'Germanquestion' in that its loose confederal character permitted the membershipof both Austria and Prussia, the two hegemonic German states which,apart from many other reasons, could hardly be imagined as componentsof a German nation-state with a central government. This latter model ofnation statehood would have meant the assignment of sovereign powerto a central government, and it would have required the sovereignGerman states to give up their sovereignty and to satisfy themselves withthe role of constitutent parts of a federal state. The German Conferationseemed to provide the solution to the problem of how to create politicalunity D remember the French republic's claim to be 'une nation une etindivisible' D and at the same time to accept and to recognize a certain

degree of particularity as a source of a distinct cultural and eventuallypolitical identity. As a matter of fact, the First Paris Peace Treaty of 1814which prepared the Congress of Vienna stipulated the general objectivewith respect to Germany as a whole: "The states of Germany shall beindependent and united through a federal bond". German national unityseemed only available at the expense of political fragmentation,democratic backwardness, and, last but not least of the more of lesslatent rivalry of the two hegemonic German states Austria and Prussia.The years between the restauration of the old feudal-absolutist orderafter the Vienna Congress in 1815 and the revolution of 1848 were verymuch marked by the attempts of the democratic movement toaccomplish constitutionalism and national unity, assuming that these twogoals were mutually reinforcing. A book titled 'Germany's Unity throughNational Representation' (Deutschlands Einheit durchNationalrepräsentation) published in 1834 contains this program in anutshell. It must be noted that during this time span (with the exceptionof Austria and Prussia) almost all German states were constitutionalizedthrough so-called land-estatist constitutions (landständischeVerfassungen) D a German constitutional peculiarity of the 19th centurywhose details I disregard here on grounds of space. Suffice it tocharacterize them as constitutions which were granted by the princes,confirmed their sovereign power and dynastic legitimacy, containedguarantees of individual civil rights, and a bicameral parliament, consistingof an estatist assembly and of a representative assembly electedaccording to electoral census and thus representing the propertied andeducated classes. These representative assemblies had some limitedrights to participate in the legislation without questioning the principle ofmonarchical sovereignty. In other words, in most German states themiddle class, still very much dominated by the educated state-dependentservice class, experienced a gradual liberation from their subjecthood tounrestrained absolutism and enjoyed certain freedoms which, however,were subject to the proviso of legal restrictions (habeas-corpus, freedomsof opinion and of the press, of religion, of property, trade, occupation,and, occasionally, of emigration). A major dificiency was the lack of civilequality which is an indispensable principle of the civil nation; thetraditional privileges of noble birth, of property, and of the lawfulconfession persisted and prevented the development of aStaatsbürgergesellschaft. Some of these constitutions even used theterm Staatsbürger which, as we know, at the latest since Kant designatesthe citioyen, that is, the status of participation in the government of thenation. This usage did not fulfill the promise which it deluded; but as anincomplete concept of citizenship it was a constant reminder of what kindof freedom D namely political freedom D the concept of

citoyen/Staatsbürger could include under more favourable politicalconditions.

Likewise, this period of indecision generated the D again genuinelyGerman D concept of the Rechtsstaat. The Rechtsstaat is a concept ofrule of law without the element of parliamentary sovereignty, i.e., rule oflaw without democracy. The Rechtsstaat does not require that the law becreated by a democratically legitimated body; according to its rationalethe law is right, legitimate and binding if it satisfies the requirement of agiven political order for the creation of laws. Thus, the limitedcompetencies of the representative assemblies in the German states didnot prevent the Rechtsstaat from becoming the basic principle ofindividual freedom and security under these landständische constitutions.This democratic deficiency renders the Rechtsstaat somewhat apoliticaland passive, but at the same time it served as a quite efficient means ofrestraining monarchical or princely power and protecting the interests ofthe middle class in the German states.

Having said this, it may be easier to understand that in this time period agradual change in the attitudes of the political elites of the educated andliberal-minded middle class towards the issues of national unity anddemocratic emancipation occurred. There was a growing awareness of thetension between the goal of national German unity in a more or lessunitarian state and the freedom which in particular in the south - westGerman states was guaranteed for the middle class (basically the core ofthe politically active population). From the mid-century on when theprocess of industrialization and urbanization began to change the socio-economic conditions in Germany and hence the character of the socialstratification of the population D remember that Marx and Engelspublished their 'Communist Manifest' already in 1848 D this tensionreflected the proximate class division between the emerging working classand the bourgeoisie which may have had a foreboding of the impendingclass struggle.

However this may have been, in any case the national movement split intotwo wings, the democratic and the liberal. The former struggled forpopular sovereignty and the accomplishment of national unity through apopular movement whose ultimate aim was the unitarian republic inventedin the French Revolution. The liberals, by contrast, rejected the idea ofpopular sovereignty and developed the idea of state sovereignty: thestate was conceived as a neutral entity which possessed supreme powerwhich had to be divided among several state organs, none of which, be ita parliament, be it a constituent assembly, or be it a prince, could claim.

The very idea of sovereignty was, as it were, constitutionally diffused.The liberals' concept of the national unity of Germany dismissed thedemocratic-unitarian republic; instead, they favoured the transformationof the German Confederacy D an alliance of sovereign German territories,if not of sovereign princes D into a German federal state and pinned theirhopes on the German princes rather than on the popular masses as thedriving force towards national unity. In the face of the obvious politicalweakness of the democratic movement in Germany the question ofwhether national unity was to be generated from below or from abovewas much less significant in practical political terms than the key issue ofthe 'German question', namely the question of the inclusion or exclusionof Austria in a German nation-state (groŸdeutsches vs. kleindeutschesPrinzip of the German nation-state, or: small-German vs. great-German). Itwas of course no question for the believers in dynastic sovereignty whorejected the idea of the nation-state as a synonym of democratic rule andfaught for the defense of the German Confederation as the embodimentof the feudal-absolutist claim to power. Thus, the problem of great-German or small-German could only arise within the national movementwhich agreed upon the desirability of a German nation-state.

The problem of the great-German solution to the German nationalquestion was twofold: first, it would require Austria to leave the non-German parts of its state outside the German nation-state and thuseventually dissolve it altogether. Second, even if this happened, thecoexistence of two big German states D Austria and Prussia D wouldmean a perpetuation of the conflicts and rivalries among them andultimately prevent the establishment of a strong and efficient centralGerman government. The problems of fragmentation and weakness thatGermany had suffered from since the Thirty Years War motivated thenational movement and its quest for a strong government. Consequently,the great-German version of the German nation-state could only bestrongly federal, because any attempt to integrate and homogenize thetwo hegemonic components into one unitary political entity was doomedto fail. Furthermore, it was truly German, in that it included the entirety ofGerman states, in contrast to the small-German variant , which set theobjective of an efficient central government over the goal of an all-encompassing German nation-state. They were ready to keep Austria andits German population out of the nation-state for the sake of a powerfulGerman state in the heart of Europe.

5. Options, implications, and consequences of the 'German question'

Consequently, among the four basic variables and their modificationswhich mattered D national popular sovereignty (= democratic withunitarian tendency) vs. state sovereignty (= liberal with moderate tostrong federal tendency), unity with or without Austria (groŸdeutsch vs.kleindeutsch) D the following combinations were possible: democratic-unitarian-klein-deutsch (not favoured by any relevant political force),democratic-unitarian-groŸdeutsch (the idea of a tiny minority of radicalswhose ideal was the French 'nation une et indivisible'), li-beral-moderately-federal-klein-deutsch (the preference for the predominantlyNorth German liberal center), liberal-moderately-federal groŸdeutsch (thepreference for the predominantly South German liberal center), and theliberal-strongly-federal-groŸdeutsch (favoured by the ad herents ofstrong particularism, such as strongly feeling Protestant Prussians andCatholic Bavarians). Note that any kleindeutsch-federal constiution hadthe implication of a strong he-gemony of Prussia which would encompassabout 60% of both the territory and the popula-tion of such a Germannation-state. Even anti-Prussians (from the South German states) wereready to make allowance for this undesired consequence if only a strongcentral gov-ernment was provided. On the other hand the groŸdeutsch-unitarian federalism was prone to perpetuate the Austrian Prussiandualism and to undermine the goal of a strong central nation-stategovernment.

Exclusion of Austria (kleindeutsch) Inclusion of Austria (groŸdeutsch)

(1) (2)

national popular

sovereignty ----- Extreme left, 'radicals': Unitary state with

strong central government

-------------------------------------------------------------------------------------------- --------------------

(3) (4)

national state Liberal center: unitarian a) Liberal center: unitarianfederalism

sovereignty federalism

b) Conservative federalists: Federal

nation-state with strong particularistic

tendencies, close to confederation

(Staatenbund)

The Imperial Constitution of 1849 (Paulskirchenverfassung) created bythe Frankfurt National Assemby which claimed the pouvoir constituant fora German nation-state aimed at the establishment of the German nation-state of the type a) in field (4), but this required Austria's constitutionalseparation from its non-German territories which was plainly rejected byits government. Hence, factually this first attempt of creating a Germannation state from below amounted to the kleindeutsch-federal (field 3)version with the hegemonic role of Prussia and, paradoxically, theproposition of a hereditary Emperor elected by the National Assembly. Aconstitutional innovation unprecedented in German history was thecreation of the status of German imperial citizenship (deutschesReichsbürgerrecht). Its significance did not rest upon its relevance for thedistinction nationals/foreigners, which is important for the state'sexternal relationship to other states, but for the distinctionsubject/citizen. The status of German imperial citizenship was associatedwith an elaborate bill of rights which set a standard for the constitutionsand the legal orders of the particular states and thus served as thefoundation of a national civil society (Staatsbürgergesellschaft). In fact,the 'German people' was not defined in ethnic terms D for instance, asthe entirety of Germans, or as the Germans living within the boundaries ofthe German Empire D but in terms of their belonging to one of theconstituent states of the empire. In some of them D notably in parts ofAustria and of Prussia D lived considerable numbers of ethnic non-Germans. They were German citizens; what made them citizens of theGerman nation-state was the enjoyment of the fundamental rightsguaranteed and protected by the government of this nation-state. At thesame time the diverse non-German ethnic groups were granted collectiverights which secured the equal right of their languages in the essentialpublic institutions located in the areas of their settlement.

Obviously this project of the revolution of 1848 failed; the next attempt,this time successful, was the Bismarck Reich: a strongly unitarian federalkleindeutsch nation-state from above, constituted by the princes of theGerman states with the exclusion of Austria. Although some elements of

the failed constitution of 1849 (Paulskirchenverfassung) were adopted bythe Imperial Constitution of 1871 D in particular the general and equalmale suffrage for the Imperial Parliament (Reichstag) D the Germannation-state was based upon the separation of the democratic from thenational elements of the German national movement of the 19th century.It satisfied the political goals of the national-liberal bourgeoisie, while italienated the left liberal, the democratic, and the catholic parts of thepopulation, and the working class whose political organizations hadbecome a major force in Germany. Moreover, it excluded the Germansliving in Austria from the German nation-state, while, on the other hand, itincluded considerable non German nationalities (Frenchmen in Alsace-Lorraine, Poles in the Prussian provinces of Posen, West Prussia andSilesia, Danes in Schleswig). The constitution lacked a federal bill of rights,and consequently the status of a German imperial citizen was dismissed infavour of the principle that the subjects of the component states residingin a state of which he was not a subject should have the right to enjoy allrights of this state under the same conditions as the subjects of thatstate; the status, a predecessor of today's Article 8b ECT, guaranteedthe right not to be discriminated on the ground of one's nationality in oneof the constituent states of the empire, but it did not imply the idea thatequal national citizenship should be the basis of the first German nation-state. Thus, originally the German Empire was neither an ethnic Germannation (Volksnation), nor a civic nation (Staatsbürgernation), but a 'statenation' (Staatsnation). As a kleindeutsch nation-state Prussia was thehegemonic component, and this seemed for many non-Germans to be asafe protection against an ethnification of the nation. In particular manyPoles had accepted their integration in the German nation-state becausetheir status was mediated through their membership in the Prussian state,and Prussia was credited with a supranational, state centered tradition ofan almost Kantian universalist political ethics. In 1850, for instance, thePrussian government declared that it refused to spread Germannationhood. As we know, this changed already in the 1860's and entaileda politics of nationalization in the sense of rigid 'Germanization' after thefoundation of the Reich. The attributes 'German' and 'German Empire' lostits traditional humanitarian and cosmopolitan connotation dating back tothe 18th-century German cultural patriotism and acquired the characterof an aggressive ethnic-nationalist power state (Machtstaat).

Not surprisingly, those groups of the nation-state's subjects excludedfrom the nation struggled for its completion, and no less surprising is theobservation that the different groups had quite different ideas aboutwhat constituted a complete nation-state. Interestingly, the emergingsocialist movement, which was one of the two 'Imperial enemies'

(Reichsfeinde) excluded from the nation D the other one being theCatholic Church D in its turn made the claim for the working class toembody the nation, thus applying the theory of the class struggle to theconcept of nation. For instance, August Bebel, one of the great foundingfigures of the Social Democratic Party, declared: "Unfortunately, there arein Germany as in all modern civilized countries two nations, one nation ofthe exploiters and oppressors, and one nation of the exploited andoppressed". When a German worker would have defined his status interms of nationhood in the Bismarck Empire, he would certainly notidentified himself as a German citizen - although, as mentioned earlier, heenjoyed the equal right to vote for the Imperial Parliament (if he was over25 years old and did not live on welfare) D but as a worker in Germany. (Ifhe happened to be a Marxist, he may have believed in the statement ofMarx and Engels in the Communist Manifesto of 1848 according to which"the worker has no fatherland"). Hence, the foundation of the Germanempire as the German nation-state was not really a satisfaction of thewidespread quest for a political organization of the German people. Thefoundation from above and the separation of the national from thedemocratic element demanded its price D the continuation of the strugglefor a 'genuine' German nation-state.

Leaving all details aside, we may distinguish the two mutually exclusiveversions which were to determine the fate of the German nation-state:one universalist notion which its proponents regarded as theaccomplishment of the ideals of the French revolution, and aparticularistic variant that made a völkisch turn in the interpretation ofGerman nationhood and foreshadowed important elements of the right-totalitarian movements of the 20th century. The former include thesocialist and left-liberal political forces which struggled for the democraticrepublic which they regarded, in line with the ideals of the revolution of1848, as the true embodiment of the nation state. The latter D thenationalist forces D aimed at a nation-state in the sense of an ethnicallyhomogeneous German state. For them the German nation-state had to bethe political organization of Germandom (Deutschtum) the definition ofwhich oscillated between ethno-cultural and biological-racist connotations.Their basic convictions were xenophobic and antisemitic. The formerreached their goal not earlier than in 1919, after a lost war and anotherrevolution; as we know, this German nation-state lasted only until 1933,when the Nazis established the 'Greater German Empire' (GroŸdeutschesReich) and realized the goals of the nationalist movement, namely theracist definition of Germanhood. (Incidentally, the eventual destruction ofthe German nation-state as a consequence of the Nazi regime did notoccur by accident. If the criterion for belonger/non-belonger is biological

descent, the nation-state can no longer be the appropriate politicalorganization for this group, because the inherent logic of expulsion or, inits most perverse variant, of extermination of the non-belongers negatesthe very foundation of the nation-state, namely membership in a polity asa non tribal form of collective life).

After World War II, or more precisely, after 1949 D the Germans foundthemselves in a situation which had some similarities with the one whichtheir forefathers had experienced before 1871: there existed two Germanstates D the Federal Republic of Germany and the German DemocraticRepublic D both of which claimed to embody the better elements ofGerman nationhood, and neither of which considered itself as thecomplete German nation-state. Again, as during most of the 19thcentury, 'Germany as a whole' was the object of international concern andregulation. This time it existed only in the international treaties in whichthe victorious allies of the war reserved their right to determine thepolitical fate of Germany and to supervise the exercise of its sovereignty.Again there was a difference between the status of a 'German' and thatof the citizen of a German state. Things were still complicated throughthe refusal of the Federal Republic of Germany to recognize the newlycreated international borders between Germany (in its borders of 1937)and Poland; that could easily be misunderstood as the Federal Republic'sclaim to reestablish the borders of the German Empire at the expense ofPoland. These irregularities and uncertainties were finally abolished in1990 when the two German states united and the ensueing state D theresult of the accession of the German Democratic Republic to the FederalRepublic, so that constitutionally the 'new' Germany is identical with theFederal Republic, which in turn regarded itself as identical with the GermanEmpire in its borders of 1937 D avowed in international treaties that ithad become a complete nation-state with respect both to its territorialextension and to its population. Hence, as of 1990 the 'German question'which had troubled Europe ever since the dissolution of the Holy Empireseems to have found its 'natural' solution: the German nation-state whichincludes all Germans who can legitimately claim to live in one polity. Thissituation amounts to the achievement of a German civic nation(Staatsbürgernation) in the sense of the French tradition; the nation-state is the political organization of citizens who live in a delineatedterritory and whose claims to self-determination are defined throughthese state boundaries. In other words, the fact that there are German-speaking people in other parts of the world is no reason to consider theGerman nation-state as incomplete. Consequently, the fact that ethnicnon-Germans live permanently and legally within the territorial boundariesof the German nation-state must not be an obstacle to their inclusion in

the citizenry of that state. This conclusion, however, has not yet beenfully and wholeheartedly drawn since a considerable number of permanentlegal residents of non-German origin are denied the status of Germancitizenship. I shall come back to this problem in the next section.

Beforehand, we should become aware of an ironic twist of the history ofthe manifold attempts to generate a German nation-state. Earlier I stateddeliberately that the German unification of 1990 seems to have entailed acongruity of German nationhood and German nation-statehood. As weknow, the states that since 1945 had the responsibility for 'Germany as awhole' and therefore had the final say about the if and the how of thereestablishment of one single German nation-state were quite cautiouswhen after the collapse of the Berlin wall in November 1989 thepossibility of German unification emerged. In particular France, which hadthe most diverse, both glorious and painful memories of an unsettledGerman question in the heart of Europe insisted on the strengthening ofGermany's integration in the supranational structure of Europe. To put itin a pointed manner, the price for the reestablishment of a completeGerman nation-state was this very state's willingness to renounceconsiderable parts of its sovereignty and, moreover, to give up one keyelement of what constituted its identity, namely its national currency. Itmay be a mere temporal coincidence that the amendment of the ECTreaty through the Maastricht Treaty of February 1992 followed ratherquickly the unification of the two German states. Viewed form a historicalperspective it appears conclusive that Union citizenship was introduced asa new supranational personal status after Germany had reappeared on theEuropean stage as a complete nation-state. For the citizens of most othermember states Union citizenship may not mean too much since theirnational citizenship was rarely thrown into question. For the Germans,who hardly ever could define themselves as German citizens D notprimarily as 'Germans', nor primarily as subjects/citizens of one of severalGerman states, nor as the member of the German working class D Unioncitizenship may offer a legal and political status which allows them to be a'good citizen' without being forced to adopt a national identity which hasbeen problematic since at least the end of the 18th century.

IV. The rules concerning German nationality (Staatsangehörigkeit)

Given the centuries-long uncertainty about German nationhood it comesas no surprise that the rules defining boundary between ins and outs Dthose who belong to the nation and the foreigners D reflect this very

incertitude. Here, too, the separation of nationhood from statehood raisesthe question of whether it is the state or the nation which provides thedefining criterion. The answer is provided by the rules according to whicha person becomes the member of a particular state, a status which in theanglo-american context is called 'nationality'; in the German legal systemthe term for this status is Staatsangehörigkeit.

1. The significance of nationality (Staatsangehörigkeit) for modernstatehood

To begin with, the concept of nationality refers to two different socialand legal contexts. The first is its significance for the sphere ofinternational relations and the international law. Within this framework thestatus of 'nationality' generates the link between the individual and theinternational law in that the conjoining of an individual to a particularstate entails the exclusive jurisdiction of that state over the individualand, consequently, the legal obligations of all other states to respect thehome state's jurisdiction as an expression of its sovereignty. Thus, in thisframework nationality is primarily the states' instrument of mutualdemarcation of spheres of sovereign competency with regard to theirrespective populations. The rights and benefits which flow from thisstatus for the nationals themselves are by and large limited to their rightsto diplomatic and consular protection and to residence within the homestate's territory.

Historically, the legal definition of Staatsangehörigkeit in Germany is aresult of its territorial and constitutional disunion and division into amultitude of particularistic states. Beginning in the 18th century andthroughout the 19th century Germany experienced an unprecedentedincrease of mass poverty and mass migration, which was due in great partto a trans-border movement; today we would call it transnational povertymigration. The necessity of coping with the problem of mass pauperism,which amounted to the recognition of the state's responsibility for dealingwith this problem, ultimately required a device that allowed the states toassign the migrating paupers to the responsible state. This was all themore so since the traditional responsibility of the local communities forthe destitute homeless and vagabonds no longer worked in the era ofgrowing social and geographical mobility.

This functional aspect of belonging to a particular state in a world of apluriversum of states which have to demarcate their spheres evolvesgradually to the political perception according to which the multitude of astate's 'belongers' are viewed as constituent elements of the people that

form the state (Staatsvolk). They are no longer perceived as atomizedelements of a mere multitude of individuals, but, rather, as components ofa collectivity whose members must share some basic properties so thatthe state can generate political unity out of a rambling crowd. If thishappens, Staatsangehörigkeit becomes a constitutive element ofstatehood.

This leads to the second of the two dimensions of nationality justmentioned. In fact, the domestic role of nationality (Staatsangehörigkeit)has been more important than its function to delimitate spheres ofsovereignty in the inter state relations because it was an essential part ofthe process of internal consolidation of the state. The consolidation ofstatehood was primarily directed against estatist intermediary forces likepatrimonial estates, vassalships, corporations, towns, guilds and the likeall of which claimed special liberties, privileges, exemtions and immunitiesand thus were major obstacles to the formation of a unitary,homogeneous and centrally controlled dominion. In this estatist order theindividual was typically subject to several lords who frequently madecompeting claims to the obedience of the individual. This was, amongothers, a consequence of the estatist order according to which theindividual was a mere appurtenance of the soil; his social and legal statuswas determined by their physical adhesion to a particular place. Thedefeat of the estatist orders through the state required the emancipationof the individual from the several estatist obligations to feudal lords andthe establishment of one single duty of obedience only and exclusively tothe ruler who unified and consolidated the hitherto split and dissociatedlanded estates into one homogeneous territory. When in Germany themonarchs and princes struggled for the accomplishment of a unitarystatus of subjecthood and gradually developed the concept ofLandesangehörigkeit, the predecessor of Staatsangehörigkeit, the reasonwas not to draw external boundaries towards other states, but towardsinternal estatist forces which contested their immediate and exclusivejurisdiction over its inhabitants.

Equal and general subjecthood of all residents of the stateÕs territoryunder its immediate, equal, homogeneous and effective power was thusthe ultimate goal and an inherent rationale of absolutist state rule.Consequently, for the absolutist state physical residence on its territorywas the essential attribute of defining a legal relationship to theindividuals, and consequently it did not matter whether they were aliensor not. If there was a necessity to establish a legal status which embodiedthe individualÕs belonging to the state, then it resulted from titles andprerogatives of particularistic sub-state entities which mediated the

relation of their members to the state and hence weakened its claim tosovereign power. This required the de-particularization of the law and thetransformation of the plurality of local legal relationships into one singlelaw of the land, as it happened in Prussia with the ALR in 1794. In thisincipient phase of nation state building legal homogenization referred tothe sphere of civil law. This was very similar in France and Austria D thetwo other great European states with an absolutist tradition D where theproject to unify and to homogenize the splintered clutter of legalregulations into one homogeneous legal body was realized in therespective civil codes and amounted to the establishment of a singlestatus of belonging to the state (Staatsangehörigkeit).

After the triumph of the state and its homogenizing and equalizing powerover the particularistic forces of the estatist society the original antiparticularistic political connotations of subjecthood lost its bearing. Asstated earlier with respect to the Prussian ALR, the sovereign state hadsuccessfully established its exclusive domination over its territory and itsresidents, and this is the point of departure for a new developmental steptowards a situation where mere physical affiliation to the territory is notenough for the viability of the state. Territoriality is essential for thestate. It defines the boundaries and the object of state power D thespace which has to be defended against external threats and whichacutely demarcates the physical limits of the sphere in which state powerand the law are applied, and of the persons who are both objects of itspower and its resource persons. We can assume that the sharp physicaldemarcation of political power and its historically unprecedentedefficiency are mutually reinforcing each other, and this in turn explains thesuperiority of the modern state over all preceding political orders.Statehood includes, as Max Weber put it, "coercion through jeopardy anddestruction of life and freedom of movement applying to outsiders as tothe members themselves. The individual is expected ultimately to facedeath in the group interest" which, as Weber continues, "gives to thepolitical community its particular pathos and raises its enduring emotionalfoundations". Only political, not economic or other merely instrumentallyrational communities can legitimately demand the lives of their members.

This is why membership in the political community requires a deeper,more existential and emotional kind of commonness than commonresidence within the boundaries of a given territory and the uniformity ofthe law and the legal status of the subjects; common subjecthood underthe sovereign power of the state does not constitute the kind ofcommunity which is able to bear the justification for the potentialsacrifice of the individual's life. One may put it in a less dramatic manner

and state that the basic coherence of a society which provides itsmembers' willingness to assume duties of human solidarity vis-à-vis theirfellow creatures requires bonds of commonness among themselves whichare more specific and tighter than the commonness of subjection under acentralized sovereign power. This community is the nation. Howeverbroad it may be defined D in the political sense of the French model or inthe ethno-cultural terms of the German tradition D , it is conceptually notidentical with the multitude of individuals who reside within the territorialboundaries of the state. The principles of territoriality and of personalitydo not produce the same order of an individual's belonging. Mereterritoriality, combined with absolute sovereign power of the ruler over itsresidents who are a kind of state-appurtenance, is not able to mobilizethe forces and the capacity of cooperation and productivity among thesubjects which are required for the maintenance of the resourceful stateapparatus.

Paradoxically, an absolutist state which satisfies itself to rule the crowd ofresidents of its territory is prone to undermine the preconditions of itsown existence. Its urge to control its subjects is doomed to suffocateboth the freedom and autonomy of the individuals and their willingnessand their capacity to voluntary and spontaneous cooperation whichproduces the societal surplus that is necessary for the maintenance ofthe state's apparatus of control. This is why there is an inherent tendencyin the structure of the absolutist state to develop into a constitutionalstate, i.e., to transform its subjects from mere appurtenances of itsterritory into a collective body. In a first step they may not form morethan a body of passive denizens who enjoy an equal law and a certaindegree of civil rights without any right to participate in the rule of thecountry; one could call this a 'passive nation'. This is what the Frenchconstitution of 1791 created when it distinguished betweenFrenchman/'French citizen' and 'active citizen'. Although the mereFrenchmen were excluded from the participation in the rule of the countryand consequently did not constitute the nation, i.e., the active citizenry,they still formed a body of particular individuals who were different fromthe multitude of mere residents.

In the German legal language the status of Staatsangehörigkeit is called astand-by status (Bereitschaftsstatus); this means that it is open formanifold and diverse rights and duties which can be attached to it. Makinguse of this term one could say that the Staatsangehörige, the national orpassive citizen is a citizen in the status of latency; it is a transitory statusto the complete status of full citizenship. It is not by accident that theefforts to define the state's nationals evolved simultaneously with the

struggle for the establishment of the nation-state: in France in1789/1791, in Austria and Germany at the beginning of the 19th centuryin the aftermath of the anti-Napoleonic wars. In other words, statehoodimplies an interest of the state in the quality of its subjects, not only interms of their economic productivity and military proficiency, but in termsof their 'spirit' to cooperate and to be loyal to the ruler. This, then,creates the need for coherence of the multitude of the subjects which isnot safeguarded by physical residence as such. The boundaries betweenthe 'belongers' and the 'non-belongers' to the state have to be drawnaccording to the symbolic boundaries of the community which constitutesthe state. It is conceivable that these boundaries are more or lessidentical with the physical boundaries of the territory; this would mean: allpermanent residents of the territory of the state constitute the body ofbelongers who form the human resource of the state. But even then thestate subjects would be more than just a crowd of inhabitants of aterritory. As the 'passive nation' with the latent status of citizenship theyare a kind of reservoir for the nation-state. Hence the criteria whichdefine the boundaries between the belongers and the non belongers aresignificant indicators of the character of the nation which the dominantpolitical forces have in mind and project for their country.

2. The rules for German Staatsangehörigkeit

When we speak of German Staatsangehörigkeit in the 19th century untilthe foundation of the German Empire in 1871, we must bear in mind thatthere was no single German state, but a multitude of some forty Germanstates each of which established rules about its belongers. But only a fewof them D in particular Prussia and Austria D did this with the intent tocreate a homogeneous body of subjects, the 'passive nation' as theembryonic version of the nation destined to become the energizer ofmere statehood. Thus, these numerous rules of the particularistic statesare of no interest for this study. On the other hand, the particularism ofthese states prevented the German Confederation (a sort ofconstitutional representation of 'Germany' between 1815 and 1866)from developing a status of confederal nationality (Bundesangehörigkeit),i.e., a status of immediate constitutional relationship of the subjects ofthe particular states to the Confederation. Note that already the HolyEmpire had lacked an imperial status of immediate belonging for the massof the subjects of the German states; there were only imperial estates.The reason for the failure to establish a 'German' nationality D to whichessentially the status of German Confederation Angehörigkeit would have

amounted D was exactly this consequence which was anticipated inparticular by Austria and some South German states. They were strictlyopposed to the idea of a general German status of nationality("allgemeines deutsches Bürgerrecht") because it somehow presupposedGermany as a whole.

Still, it is interesting to learn that, despite an unequivocal rejection of anykind of association of the status of a national (Staatsangehöriger) withthe concept of a German nation, everywhere the principle of descent (iussanguinis) prevailed as a source of acquiring the nationality of a particularstate. This was complemented through the principles of naturalization, ofsquatting (tacit toleration of residence or self-employed business for atime period of at least ten years), marriage and territory (ius soli) forthose born within the territory by stateless and homeless parents.Actually, the priority of the principle of descent was a modernachievement since it dismissed the estatist principle that the status ofthe individual is determined by the status of the land on which he or sheis born. According to the ius sanguinis the individual is no longer a mereappendage to the land; rather, the relationship to the ruler is one ofpersonal loyalty and obedience, just as much as the ruler's duty toprotection. The individual's bonds with his "fatherland" is conceived ascreated through an immediate social relationship, while the accidentalbirth on the territory of a state is not considered to entail such a socialbond. This means, that nationality is no longer a status of mere passivesubjecthood, but the legal embodiment of a relationship in which thebelonging to a particular state is constitutive of a particular, henceexclusive community. Since in many of the German states there existedalready some limited rights to vote and the duty to render military servicethe need to distinguish between those who were merely physicalmembers of the state and those who had a more intense relationship totheir 'homeland' or 'fatherland' generated the choice for the tribalcomunity (Stammesgemeinschaft) as the basic community whosemembers were supposed to be trustworthy per se. For some states likePrussia, whose territories consisted of several separate fractions more orless accidentally accumulated in the course of dynastic politics, located inpartly distant geographical regions and charactrerized by diverse culturaltraditions and religious confessions, the unity of the state could hardly besecured by the unity of the territory and its personal appurtenances. Theunity of the state had to be generated through bondages among thesubjects of the state, and here common descent D dubious as this alwaysis D appeared to be the most obvious principle. Note that etymologicallythe German word 'Stamm' is a syllable of the German word for descent(Abstammung), and it appears equally noteworthy that when the

preamble of the Weimar constitution D certainly one of the most modernconstitutions of the 20th century worldD invokes the principle of popularsovereignty and the constituent power of the German people it phrases:"The German people, united in its tribes..." ('Das deutsche Volk, einig inseinen Stämmen...').

The tension between the particularism of the several German states andthe alleged or claimed or real national character of the central Germanstate is a leitmotif of Germany's search for the appropriate criteria ofnationality. As mentioned, the revolution of 1848 failed, and hence failedthe attempt of the National Assembly of the Paulskirche to establish aGerman imperial citizenship (Reichsbürgerrecht) as a necessarycomplement to the declaration of a German nation-state; it was thestatus of a German. Yet, also the constitution of the National Assembly(Paulskirchenverfassung) referred to the constituent states of theenvisioned German nation-state for the answer to the question of whowas a German. The answer is very much like the one which Article 8paragraph 1 of the EC Treaty gives in its definition of a citizen of theUnion. The German forerunner stipulated that the German peopleconsisted of the nationals of the states which form the German Empire.Although, as mentioned earlier, this constitution was not enacted, it is animportant document about the German national-democratic movement'sconception of the German people and of the German nation. It is notablethat the status of German imperial citizenship (Reichsbürgerrecht) whichembodied the common status of all Germans and hence was theconstitutive element of a German nation was defined in terms of theindividual rights to freedom and equality which were enumerated in thefollowing bill of rights. By contrast, the definition of who is a German, inother words, who qualifies for imperial German citizenship = membershipin the nation is left to the particular states at least two of which D Austriaand Prussia D included considerable portions of non-German subjects. Inother words, according to the national-democratic (and largely justnational-liberal) movement of 1848, membership in the nation was notrestricted to ethnic Germans. However, an important qualification is inplace: since ¤¤ 2 and 3 of the constitution required the separation of thenon-German territories of Austria because their inclusion in the GermanEmpire would have undermined the idea of a German nation-state, thenon-ethnic character of the quality of a 'German' may not have muchpractical import. Still, given the Prussian tradition of a state ethos whichclearly rejected an ethnic-German definition of its subjects and nationals,the stipulation of the Paulskirche constitution remains significant.

The Empire of 1871 follows the pattern developed in the Paulskircheconstitution in that it renders nationality of the Empire dependent uponthe possession of the nationality in the member states. The 'national'dimension of what the constitution calls the common indigen(gemeinsames Indigenat) consists in the stipulation, that the subjects ofthe member states of the Empire are no longer foreigners in the states ofwhich they are not a subject D all subjects/inhabitants/nationals of themember states are now inlanders for each other. Still, there is a tendencytowards a distinct imperial status of nationality in that the duty toperform military service is a federal duty which is imposed only oninlander; thus, the central government is directly interested in the ruleswhich determine who qualifies for this duty, and thus a gradual process ofcentralization of the definition of nationality (Reichsangehörigkeit) occurs,culminating in the Nationality Act of 1870 (Staatsangehörigkeitsgesetz)which by and large standardizes the particularistic rules of the memberstates. In particular, the law confirms the principle of ius sanguinis as theprimary source of acquisition of federal nationality.

At a first glance the uniform rules about the acquisition of Germannationality (Reichsangehörigkeit) created by the federal law of 1870 didhardly more than just accomodate and equalize the many particularisticrules of the member states. This looks much like an effort of stateconsolidation, while the idea that the institution of Reichsangehörigkeit isa means for the evolvement of a German nation seems to be completelyabsent. The constitution leaves the impression that the Empire is aconfederation of sovereign princes and their states, while the Germanpeople as a nation is excluded. As a matter of fact, the Empire was afoundation from above, and it was the foundation of the German states,even if Prussia was clearly the hege-monic power. But this does not meanthat the character of the Empire as the German nation state which hadbeen the ardent desire of the relevant political forces in Germany sincethe end of the 18th century was neglected. Germanhood became an evermore important element of the definition of the belongers. It is beyondthe objectives of this essay to analyze the inherent problems of the firstGerman nation-state and its crises. I restrict myself to the observationthat the separation of the democratic elements from the national goalwhich occurred through the establishment of the German Empire as anation-state had serious consequences. The idea of German nationhoodbecame ever more affirmative and lured the liberal movement into anattitude of identification with the Empire and the manner in which it hadbeen accomplished, namely through the war against France waged by agovernment which represented the authoritarianism of the dynasticprinciple. This German nation-state was not only 'incomplete' in that it

was small-German and, moreover, included non-German minorities; it wasunfinished because it did not realize national democracy and on thataccount became vulnerable to ideological attitudes of the populationwhich found its primary source of identification and belonging not in freeinstitutions and universalist principles of social solidarity but in theparticularism of their Germanhood. If there was a sphere of autonomouscivil life, it was dominated by bourgeois and petty bourgeois veneration ofthe victorious war against France, of German virtues, German superiority,and German claims for recognition in the world which meant: Germanclaims for extra-European colonies. On the other hand, the growing labourmovement and its political institutions stuck to the universalist ideals ofthe French revolution and, being excluded from the mainstream political,social, and cultural societal life, developed its separate milieus andconceived of itself as of a particular nation. The same holds true for theother 'Reichsfeinde' ('enemies of the Empire'), the German catholics whoopposed the small-German and predominantly protestant character of theGerman nation-state and who in their turn were exposed to mistrust andmanifold aggressive actions of the Prussian government.

German nationalism became a pervasive ideology within the bourgeoismainstream society of the Empire, and both the Germans living outside itsborders and the non-Germans D predominantly the Poles D who were itscitizens became the target of political concern. Both categories wereassessed and legally categorized according to an ethnic-cultural definitionof belonging: to be a Reichsangehöriger meant to be a German, and to bea German did not mean to be a citizen of the German Empire, but to be anethnic German. As I shall expound below, the principle of ius sanguiniswhich prevailed in the nationality law of 1870 and which was continued inthe nationality law of 1913 (Reichs- und Staatsangehörigkeitsgesetz)does not necessarily entail an ethnic definition of belonging. But it can beused as an instrument of ethnification of belonging, and that is whathappened in the first German nation-state.

Obviously, this had to do with its incompleteness. Yet, the incongruity ofnationhood and state territory as such did not require the ethnification ofthe concept of the German nation and the German nation-state. Therewere other states in Europe which experienced this discrepancy, likeSwitzerland, Belgium, or Austria; none of them defined their nationhood inethnic terms. Even if one has to take into account that Germany as ageographically extended country in the heart of Europe may have hadanother conception of its national identity than small European states,this is no sufficient explication for the ethnic definition of its nationhood.Prussia was since the end of the 18th century a dominant European

power with a sense of national identity at least among its elites, and yet,Prussia resisted most persistently the separation of state and nationhoodwhich became more and more popular in other German states after theabortion of the revolution of 1848.

The main reason for the ethnification of German nationhood andconsequently of German citizenship is probably the congenital defect ofthe Empire, namely its establishment from above, that is, without theparticipation of significant parts of the population. The Empire did notinclude all classes of the population in the nation, although both thedemocratic principle and the intensifying class cleavages required anextension of the concept of nation to the working class. Just as much asuntil the French Revolution the nobility had identified itself with thenation, after the French Revolution the Third Estate, the new class of thebourgeoisie, the evolution of the bourgeois society justified the workingclass' claim to be included in the nation. The Empire was the nation-statewhich identified only certain elements of the society with the nation, i.e.,with those who are relevant and who count. It was sociologicallyexclusivist, while it claimed to include the whole nation. Whenever a partclaims to be or at least to represent the whole, it must develop anideology which bridges this gap between a particularist reality and auniversalist assertion. Even more important is the implication that thelatent consciousness of this gap must be permanently warded off, andthis entails a more or less manifest tendency towards aggressiveness,scapegoating and marking of enemies. The French bourgeoisie, whoclaimed to be the nation while it was the emerging hegemonic class withinthe whole of a society of several classes, developed the ideology that thenation could only be embodied in those members of the society whocreate the wealth of the society through their work and who are nobody'sdependents. Thus, both the nobility and the inferior classes were excludedfrom the nation. The terror of the revolution against their real and allegedenemies and the wars against the 'backward' European dynasties areexamples ot the latent aggressiveness of the revolutionary regime.Likewise, the bolshevists contended to represent the working class whichwas declared the creator the wealth of humankind was the universal classand thus had to be identified with mankind itself. The huge gap betweenthe claim to represent humankind and the real existence of the workingclass to be just one class in the society, and of the bolshevists to be justone political wing of the working class generated the ideology that onlythe vanguard of the universal class had access to the knowledge of thehistorical progress and its necessities which gave them the right tooppress and, if necessary, to exterminate the backward classes.

A similar social mechanism took effect in the German Empire of 1871: theminorities who seized power in the German Empire D the modern Germannation-state D and who were its pillars identified themselves with theGerman nation as a whole, while the real nation-state excludedconsiderable parts of the population from representation in its politicalinstitutions, let alone those groups who were excluded by the small-German solution of the German question although many of themconsidered themselves to be part of the German nation as well. Of course,the former groups D the socialist labour movement and the catholics Dcould not be denied the formal status of German nationals and citizens ofthe nation-state; this was also true for the Poles who lived within theboundaries of the empire, the so-called imperial Poles ('Reichspolen'). Thegap between the German Empire's claim to be the embodiment of theGerman nation and the exclusivist reality was bridged by a particularistmeaning of the concept of nation: according to this interpretation theGerman nation was a community which is embodied in the ethnicGermans; if on that account Germanhood is the essential quality of theGerman nation-state, the exclusion of non-Germans from membership or,if this is not possible, from full citizenship, is no violation of the moral andlegal requirements of the German nation-state. This turn to a definition ofnationhood in terms of a prepolitical identity D as an ethnic community Dhad serious consequences. It did not only justify the exclusion of certaingroups from representation in the institutions of the nation-state; evenmore importantly, it made it possible to declare the excluded groups, butalso minorities which challenged the legitimacy of the government, oreven mere competitors in the elites' struggle for power within the nation-state as 'non German' (undeutsch), i.e., as enemies of the nation who didnot and could not participate in the particular identity of what constitutedthe genuine German nation. Once the concept of nation had acquired aparticularist content, the groups which succeeded in identifyingthemselves with the nation, i.e., in occupying the power to defineauthoritatively what has to be recognized as 'national' and what has to beexcluded from national solidarity (and the nation-state's protection) onthe ground of its 'non-' or 'anti-national' character are the true power-holders of the country. This changes the structure of the political processsince the many groups and interests in the society have to prove their'national reliability' in the first place before they may be qualified to enterinto the business of normal politics and to pursue their interests incompetition with other social forces. The political process is biased infavour of the groups, classes and elites who can credibly claim toincarnate the nation, or at least to be closer to its spiritual essence thansocial groups whose members constitute an association of interests (likethe labour movement) or are linked together through a spiritual bond (like

the catholics). If the idea of the nation is no longer universalist and doesno longer imply the project of social cooperation of diverse social,religious, and ethnic groups, any social, religious, or ethnic groups whichmakes claim to the loyalty of its members appears as a competitor, oreven as a serious threat to the existence of the nation-state.

Thus, the identification of a particularistic community with a whole D theidentification of powerful ethnic German minorities with the Germannation D did not only entail a politics of citizenship which was moreinterested in ethnic homogeneity than in the accommodation ofheterogeneity. It implied a profound change in the character of thepolitical order of the nation-state as a constitutional state. Ultimately, theethnification of the idea of the German nation was prone to compromiseand to undermine the objective of a democracy structured by the rule oflaw.

The distortion of the concept of nation in the development of the GermanEmpire and the quest for ethno-cultural homogenization is surprising,since geographical, religous, and also socio-economic fragmentation was aconstant characteristic of German society ever since the Middle Ages.Moreover, since Prussia was the hegemonic component of the Empire andthis country had a record of a universalist state ethos, it is even moredifficult to understand this development. I do not mean to analyze thatstriking contrast in this essay. I restrict myself to the tentativeassumption that the necessity to suppress the tradition of diversity,heterogeneity, fragmentation, and sociological openness of Germansociety and hence the huge amount of authoritarian rule may have beenrequired by a politics of societal homogenization, both characteristic ofthe Wilhelmine Empire and of the so-called Third Reich.

Excursus: Ius sanguinis and ius soli

V. Germany's religious cleavages and their impact on her concept ofcitizenship

(to be completed)

VI. Citizenship and the German Social State

(to be completed)

VII. Conclusion

(to be completed)

First Draft

The German Concept of Citizenship

I. Citizen and Burgher D Staatsbürger and Stadtbürger

II. The Holy Roman Empire of the German Nation

III. Citizenship and the German Nation

1. The concept of nation and its relevance for the idea of citizenship

2. The German nation, the Holy Empire, and the modern state

3. German Nationhood and the 'constitutional question'

4. Statehood and Nationhood: Empire, Nation-state, or Federation?

5. Options, implications, and consequences of the 'German question'

IV. The rules concerning German nationality (Staatsangehörigkeit)

1. The significance of nationality (Staatsangehörigkeit) for modernstatehood

2. The rules for German Staatsangehörigkeit

Excursus: Ius sanguinis and ius soli

V. Germany's religious cleavages and their impact on her concept ofcitizenship

VI. Citizenship and the German Social State

VII. Conclusion