Hierarchy and Coordination. How the Law on Religion Tracks the Shift in German Problem-Solving Strategies 1871 – 1971

• Applicant: Dr. Dominik Rennert
• Subject Area: Public Law
• Term: from 2023 to 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 531232268

The book describes how Germany democratized from the early Empire to the early Federal Republic by means of a shift in the patterns of political conflict resolution: from hierarchical authoritarian modes stemming from Prussian absolutism to corporative coordinated patterns. It also investigates how this shift was received and worked through by the constitutional theory of the period. To this end, the book focusses among the three big conflicts of the time—the constitutional issue, the social issue, and the religious issue—on the religious issue, all while including comparisons to the other two areas, which developed in lockstep, and contrasting German with US democratization that followed patterns of pluralist competition. The book thus describes at a basic level the shape in which Germany’s democracy formed: Where the older hierarchical strategy opted for an authoritarian decision-making center that was isolated from society’s groups, and where pluralist competitive patterns look toward the competition between social groups to produce beneficial outcomes, the corporative coordinated strategy aims at a constant negotiated resolution of social conflicts through cooperation between social groups and the state and to this end coopts these social groups as partners into the public realm. What blocked the German transition for a long time was the fact that support for the respective patterns fell into different political camps. The national-protestant, liberal-conservative coalition which had ruled the Empire stubbornly insisted on authoritarian hierarchical concepts. In Weimar, social democrats and Political Catholicism failed to overcome the resistance of these old elites in their attempt to establish a democracy around their preferred cooperative patterns. In constitutional law it was most prominently Carl Schmitt who analyzed this failure, describing the new cooperative arenas—the coalition governments, the “social partnership” and the cooperative German law on religion with its treaty practice—as a “dissolution” of the hierarchical “state.” Only in the Federal Republic did the social and Christian democrats manage to establish their concepts in all three domains—the constitution of religion, federative cooperative democracy, and the social partnership. Around the same time, constitutional law, and notably Konrad Hesse, caught up with these shifts, capturing, describing, and legitimizing them. By 1970, this “Model Germany” had fully formed. It is a remarkable fact of history that this model, which had been so painful to reach, subsequently proved highly capable of dealing with new social conflicts. The book closes by tracking this ability to the present day, contrasting it with the derailing US experience.

• DFG Programme: Publication Grants