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 authors do not fail to hint to the etymological particularity that the lacks a term which manifests the roots of the concept in the city: etymologically the terms citizen, citoyen, cittadino and ciudades evidently point to some kind of belonging to the city. In the German language the analogous term is Staatsbürger. Kant, for instance, made it clear that when he spoke of the Bürger, he meant the "citoyen, d.i. Staatsbürger, nicht Stadtbürger, bourgeois". Equally Wieland, to whom the first usage of the German term Staatsbürger is frequently attributed, at least three different expressions: Staatsbürgerschaft, Staatsangehörigkeit, and Volksangehörigkeit express different elements of a status which, at least in the anglo-american tradition, is covered by the single word citizenship.

If the political and juridical language uses certain distinctions it is safe to assume that they reflect significant material differences. The German triad Staatsbürgerschaft, Staatsangehörigkeit, and Volksangehörigkeit invokes 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 between the individual and the society rather than of active participation. Hence, when the German concept of citizenship is under scrutiny one should keep in mind that certain aspects of citizenship which are incorporated in a single concept in other countries may be disjoined in the German case and associated with separate terms and perhaps even different conceptions. However, despite this variety of terms D which a few years ago was supplemented by the new-fashioned term Staatszugehörigkeit for the class of second generation immigrants who were granted a conditional option for German citizenship D the central term for what is named citizenship, citoyenneté, cittadinanza etc. in other languages is Staatsbürgerschaft in German. Before Kant, who linked the Staatsbürger to the citoyen and to the French Revolution, this term did not play a significant political role in the German political and judidical reasoning. Until the French Revolution the Staatsbürger was not, as the term suggests, the Bürger of the state in the same sense as the civis had been the 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 the evolvement of Staatsbürgerschaft. The political thrust of subjecthood was not directed against the absolutist power of the state, but against the particularistic forms of estatist dependency. In the prerevolutionary 18th century Staatsbürgerschaft had the meaning of generalized state subjecthood. In the most prominent document of the enlightened German absolutism which survived the French Revolution, the Allgemeine Landrecht für die PreuŸischen Staaten (ALR) (The General Law of the Land for the Prussian States) of 1794 the term Staatsbürger was not used; obviously the term did not only include the anti-estatist individualistic meaning of equal subjecthood to the state D a meaning which was of course approved by the absolutist regime D but simultaneously 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 the Prussian societas civilis vel politica on its way to a bourgeois society and its dichotomy of state and society tried to reconcile the modern- egalitarian elements of the Prussian enlightened absolutism with its social conservatism. Thus, whenever a legal regulation pertains to the individuals in their quality as subjects of the state they are categorizeed as the inhabitants or the members of the state, sometimes as its subjects (Einwohner or Mitglieder des Staates, or Untertanen); in any case they were viewed as individuals who incarnate the basic elements of the state engendered society.

The egalitarian implications of this individualistic conception of society were expressed concisely in ¤ 22 to the Introduction of the ALR: "The laws of the state associate all its members, irrespective of their estatist distinctions or their differences of rank and gender". One might expect that this association of state members metamorphosed subjects into Bürger and gave way to an incipient variant of a nation of Staatsbürgern, i.e., a political association of equal citizens (citoyens, Staatsbürger) who had transcended the status of a corporation of passive subjects. But this was not the case. When the ALR assigned an entire chapter to the category of Bürger, it referred to the estatist order of the society within in which the Bürger formed one estate among others. Thus, the title of the relevant chapter reads 'On the estate of the burghers' (Vom Bürgerstande), and it defines this estate negatively as comprising all inhabitants of the state who according to their birth do not belong to either the nobility or the estate of the peasants. The burgher proper is the resident of a town who has been acquired membership of the municipal community. There are still other categories of persons classified under the title 'Vom Bürgerstande' like the 'exempted' (a kind of privileged subjects), or the burghers who have acquired a noble estate (Rittergut); they are of no interest for our analysis. What concerns us here is the general observation that at the turn of the 18th to the 19th century D despite the French Revolution and despite the quite influential writings of Kant D in the concept of citizenship was a mere philosophical idea. It had not yet acquired political or social reality. The status of the individuals vis-à-vis their political authority was embodied in the concept of subjecthood, whilst the idea of the citizen was hidden in the estatist conception of the burgher, i.e. a kind of corporatist-municipal membership.

The proviso "not yet" does not mean that the German concept of citizenship was a backward version of the French model and therefore destined to imitate the latter's development with a certain time lag. Apart from serious methodological objections which historians would raise against this hidden metaphysics of history Germany's development in the age of absolutism hardly suggests a history of the concept of citizenship following the French track. Germany's entry into modernity was essentially shaped by the traumatic experience of the Thirty Years War of 1618-1648 which determined the country's socioeconomic, cultural, and political development up to our days. While France rose to a compact and D gauged by the standards of the time D closed, homogeneous, territorially bound, centralized, and absolutist state power during the 17th century, Germany was the core component of the 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 the collapse of the Roman Empire (anno 476 A.C.) its universalist claim to embody civilized humankind was preserved by the Popes who regarded the Roman Empire as the precursor of the Christian Empire which included all Christian peoples and guaranteed a universal peace order. Originally the early fathers transferred the imperial power (translatio imperii) to the Franconians (through the solemn coronation of Emperor Charlemagne in 800 A.C.), but eventually - since the installation of Otto the Great in 962 - the imperial power rested with German dynasties until the downfall of the empire in 1806. The empire was regarded as the continuation of the Roman Empire, while the attribute 'holy' (Sacrum Imperium) was added in the 13th century in order to emphasize its sacred dignity vis-á-vis the Church. The other qualification D Holy Roman Empire of the German Nation D was added in the 15th century in order to designate the German parts of the transnational Empire; however, gradually this attribute came to record the claim of the Germans to the imperial authority. The basic idea of the Empire was its supranationality D it included territories and peoples from Germany, Italy, Bohemia, Burgundy D and, closely connected with this quality, its spiritual and institutional affiliation with the Roman Church whose secular sword it was supposed to be.

The memorability of the Holy Roman Empire of the German Nation for Germany follows from the particular role which it played in the development of the German nation-state. While the medieval political entities which were not part of the Empire D as for instance England, France, Spain, the United Provinces [later: the Netherlands], or the Swiss Confederation D underwent a process of transformation into modern statehood in the course of modernization, the Holy Roman Empire never became a state in the modern sense of this concept. The Westphalian Peace Treaty of 1648 which factually became the basic law of the empire did not change the basically premodern, i.e. estatist character of its constitution. Thus, the empire never acquired sovereign power, i.e., according to the criteria first developed by Bodin, supreme and undivided authority over a delineated territory and its inhabitants. The imperial power was embedded in a system of estatist bargainings (in which election capitulations played a pivotal role) in which the centrifugal interests of the particularistic imperial estates frustrate the numerous attempts to create basic elements of political unity. Hence the Empire never developed a centralized political authority, an imperial police force, administrative agencies, a standing army, or an established tax collection system. The imperial cameral tribunal which exercised jurisdiction over those immediate to the emperor was understaffed and unefficient, and the adjudication of a case frequently took decades. The imperial diet represented the immediate imperial estates and the oligarchies of the imperial cities, while the urban and the rural population and their issues had no place in the imperial institutions.

However, the imperial institutions and their estatist foundations formed only one level of the political and social order of Germany. The other one consisted in the territorial states which evolved within the imperial order. Paradoxically, it was the christian-universalist character of the empire which prevented it from overcoming the estatist particularism and pluralism, because it could not identify itself and its political order with a particular idea, interest, territory, or collectivity. This then allowed the most powerful estatist rulers, the electors who formed the college of electoral which in turn elected the emperor, to pursue their special interests without being checked by imperial authority and hence to develop an almost unrestrained particularism. The duralism between the essentially estatist empire and the territories of the imperial dynasts dated back to the 13th century. The latter became the source of state formation within the empire, because their geographical compactness facilitated the allocation of the resources and energies, in particular the accumulation and centralization of coercive means necessary for state formation. The most significant step towards the political autonomy of the territorial states was the Westphalian Treaty's recognition of the principle of territorial sovereignty which gave them unrestrained authority over the inhabitants of their territory and ultimately transformed them into their subjects. In other words, statehood D a political organization based upon a demarcated territory and the sovereign power over this territory and its population D evolved within and coexisted with the essentially estatist order of the empire. As a consequence, in the 17th and 18th centuries the Holy Roman Empire of the German Nation consisted of a motley social pluralism of sovereign territories and absolutist princes, landed and clerical nobility, imperial knights, provincial estates, knightly orders, free imperial cities, cities under the authority of a , ecclesiastical states and many other legal and social particularities. To draw this picture even more complex it must be added that not only the most powerful imperial estates had acquired the dual role of an imperial constituent and sovereign prince, but that some of them owned territories and were sovereign princes outside the empire. Thus, the elector of Brandenburg belonged to the college of electoral princes, whereas East and West did not belong to the empire; as a king of Prussia he owed no loyalty to the empire. The same applied to the Hapsburg dynasty (which from 1438 until the decline of the empire in 1806 held the imperial crown almost uninterruptedly); the Hapsburg emperors did not only own territories outside the empire (for instance Hungary) but were also regarded as the 'natural' leaders of the Catholic party in the empire ridden by confessional split. The most striking case, however, is certainly the dynasty of Hanover: during period of 1714 until 1837 the elector of Hanover was simultaneously the king of England, one of the leading European powers with political interests that hardly harmonized with those of the Empire.

The analysis of the institutional environment of citizenship must not ignore the role of the cities. Of course the medieval and early modern European 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. The number of cities in the Empire in the early modern time has been estimated at about 3000 to 4000, but these cities were geographically dispersed and considerably smaller than cities outside the empire (like London, Paris, Milan or Venice). Moreover, the Empire never developed a metropolitan area with a large capital which would be able to impose its economic, social and cultural forms of life upon the country and to penetrate it politically. The cities of the Empire had different legal statuses according to the degree of depencency from an overlord. Free cities were former bishop's cities which had emancipated themselves from their rule and now struggled for the recognition of their autonomy which was mostly jeopardized by the territorial princes who were the overlords of the territorial cities; these latter cities D the majority of the cities of the Empire - were merely urban versions of sovereign princes rule over their territories, although factually many of them enjoyed a much higher degree 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 18th century, although this did not, of course, mean increased autonomy. Imperial cities finally enjoyed imperial immediacy, that is, they had no territorial overlord. They payed taxes to the empire and were represented in the Reichstag, although the political, administrative and economic development of the territorial states during the 18th century left little room for an independent existence of imperial cities. At the end of the 18th century only a few cities such as Hamburg, Bremen or Frankfurt am Main retained their political autonomy, while most of the formerly imperial cities had to accept the hegemony of the prince of their surrounding territory.

To complete this sketch of the institutional set-up of the Empire in the early modern period of the Westphalian system it is necessary to give an account of the position of the Churches and their affiliations. This is a complicated issue which cannot be treated here in detail. Suffice it to say that both in the Catholic and the Protestant territories the respective Churches became closely associated with the sovereign states, which meant that in the Catholic territories the appointment of the bishops required the approbation of the sovereign prince of a monarch, whereas in the Protestant countries D be they Lutheran or Reformist D the Church was a state Church and the sovereign prince was qua sovereign the head of 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-political reality of Germany until the end of the 18th century. Evidently this was a far cry from the unitary rule of the French monarchy. If one takes into account the economic and sociocultural consequences of the Thirty Years War on the regions most affected by the war which later were to become the constituent parts of the German state, it comes as no surprise that stagnation, particularization, and cultural narrowness became characteristic of German life in the seventeenth and the eighteenth centuries. There was not, as in France, an overarching absolutist state power which dominated and embraced the manifold estatist distinctions of urban and rural life which created a broad variety of categories of individuals with particular duties, dependencies, privileges, exemtions, princely letters of protection and the like. Political, social and cultural parochialism was a characteristic trait of seventeenth- and eighteenth- century Germany. As one author puts it quite bluntly with respect to cultural life, "while Spain, the Netherlands, France, and England experienced a cultural flowering in the seventeenth century, Germany made an increasingly shabby impression in comparison". Moreover, the Westphalian settlement extended the Confession's cuius regio, eius religio (1555) to the various Protestant confessions and entailed a kind of religious cleansing to the effect that religious diversity was estsblished along territorial boundaries; this furthered both the cultural and political fragmentation of Germany and became the fundament of deep-reaching confessional cleavages which have subsided, but by no means completely disappeared in the last thirty years.

These conditions determined the ambient factors of the evolvement of citizenship; they did not prevent it from emerging. They shaped its particular character. First of all, it is striking that the empire did not develop the status of imperial citizenship, contrary to its forerunner, the ancient Roman Empire which in the Constitutio Antoniana of Emperor Caracalla (A.D. 212) bestowed upon all free subjects of the Empire the status of civis Romanus. Evidently the estatist character of the Empire was an insurmountable obstacle to a legal status which could connect the inhabitants of the Empire on an equal footing. Instead, the term 'subject' became ever more common in the 18th century; obviously this was due to the growing significance of the territories. It was part of the process of state formation fostered by the Westphalian Treaty to transform the great variety of estatist statuses into the single status of subjecthood. In particular in the 18th century this transformation was welcomed by most authors of imperial and state law as a process of emancipation from estatist dependency. The society whose member each individual became by virtue of his and her birth was the state. Properly speaking the was a "statal society" (Staatsgesellschaft), which was tantamount to what many juristic and political authors of the17th and 18th centuries considered to be the civil society (bürgerliche Gesellschaft). Hobbes and Pufendorf, to quote only the most prominent authors, reasoned quite unabashedly about the 'citizen', while the ideal quality which they attributed to him, namely almost unconditional devotion to the state and obedience to the government, was of course the quality of a subject. Moreover, in the natural law reasoning of the 17th and 18th centuries the term subject in which the term citizen got almost completely lost was closely connected with the concept of man: the subject/citizen was man after the conclusion of the social contract and his entry into society. Both concepts reflected universal positions of the individual. By contrast, in Germany the term citizen had a different meaning. The citizen was the burgher, the inhabitant of the city. Citizenship was a local status which in the feudal world of the Middle Ages was universally understood as a status of freedom. A civis was an individual who lived within the boundaries of a civitas, which is a town confined by walls and consequently protected against external intruders. Hence, the civitas, - the city D was not only a physical area, but a symbolic space which the medieval jurist Johannes von Viterbo defined with a play upon the latin word civitas: he read ci-vi-tas as the three initial syllables of citra vim habitas, which reads: you live beyond violence. The city was the place of armed safety which was tantamount to liberty. Although the city was a physical place, the defining element was its character as a corporation of persons who were bound together through particular law, the ius inter cives, or ius civitatis, the ius civile (civil law), as opposed to the ius commune which applies to the whole Empire (and which until early modern times was synonymous with the Roman Law as delivered by the Corpus iuris Justinianum and its commentators, commonly named postglossarists).

Still, the cities D be they free, imperial, or territorial cities D did not break up the estatist character of the Empire. They were its integral part. The cities were the places of manufacture, trade, and administration and thus fulfilled essential functions within the medieval order. Their freedom consisted in the privilege to rule themselves, although this did of course not mean political autonomy or even sovereignty in the modern sense of the word; they remained subject either to the rule of the emperor or of their sovereign prince. But the emperor was far away, and due to their economic role they succeeded in obtaining a significant degree of autonomy towards their immediate lord. Their freedom was the corporate privilege of a particular estate, very much the same as the privileges of the other estates. But at the same time this privilege overstepped the particularism in that it created a distinct sphere of corporate freedom among the members of the corporation. Freedom as an estatist privilege took part in the social hierarchy of the medieval order; the cities of the Empire were social and physical spaces of freedom, but not of equal freedom. The medieval and early modern cities of the Empire were ruled by oligarchical patriciates, and not every resident qualified for the status of a civis. For instance, out of the population of 33000 in 18th-century Augsburg only 6000 enjoyed the status of citizenship. With respect to the medieval towns Max Weber had already observed the different tendencies toward status-levelling and simultaneously towards status differenciation within the city. The latter entailed a broad spectrum of individual statuses with different rights and duties in different areas, such as "distrettuali, citizens of allied cities, permanent and semi permanent residents", among the citizens "nobles, artisans, sottoposti, women, and new citizens", and among the new citizens "most were granted various exemptions and some limitations in their status of popolani and of full citizens". Generally speaking, in the 18th century most of the cities had lost their character as places of economic dynamism and entrepreneurial spirit; the prevailing guild system did not only entail economic stagnation, but contributed a lot to political ossification. This was still corroborated by the confessionalization of the public life which meant the exclusion of religious minorities from many social, economic, and cultural activities. On the average, the German cities of the Empire were more connected with the estatist structure of the late medieval society than the forerunners of what the natural law theorists had anticipated as the society of equals. Citizenship was a local and particularistic status which many authors of the 18th century rightly regarded as the embodiment of parochialism. This citizen was in reality a burgher who was hardly able to overstep the narrow boundaries of his local life.

Against this background the initiative towards modernization did not come from the cities, nor of course from the Empire, but from the sovereign princes of the territories. It is not by accident that Wieland, Kant and others were anxious to avoid the misunderstanding that when they envisioned the Bürger they did not mean the burgher, the local civis of the several towns and muncipalities, but the citoyen, i.e., the individual who was the member of the territorial state which in turn embodied the political association that reason itself dictated. In other words, in Germany the Staatsbürger was the citoyen, whilst the civis, the citizen was the burgher, the bourgeois. Likewise we can better understand the ambivalence of the Prussian ALR mentioned above with respect to the legal status of the inhabitants of the Prussian state. On the one hand sovereign statehood required the status of equal subjecthood for the 'members of the state' as they were frequently labeled, while on the other hand the Prussian state rested upon the loyalty, cooperation and resources of the essentially estatist society. Thus, we find ¤ 22 of the Introduction to the ALR which makes the claim that the 'members of the state' are associated through its laws, while the next section revokes this individualistic-egalitarian claim in that it makes the qualification that the personal qualities, rights and privileges of a person are subject to the local rules which apply to the person. Thus, the individual was simultaneously 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 is complemented by the status of citizenship. As Rousseau put it concisely, the individual is a subject in his and her status as a subject to the sovereign power, while he and she are citizens in their quality as constituent parts of the sovereign power. The latter is commonly called the nation, which therefore has become the key concept for the understanding of citizenship in several European countries. The equation citizenship = membership in the nation is widely accepted, but it does not answer 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 it was common practice to admit only male property-owners to this status, hence only they constituted the nation; obviously, this was only a small minority. The others are 'the people', the masses, the underclasses, i.e., inferior elements of the society who were below the standard of both citizenship and nation. Thus, the concept of nation is significant for the understanding of the character of social exclusion/ inclusion and domination prevalent in a country under study; it can be scrutinized with respect to the top/bottom cleavage.

But there is a second boundary between belongers and non-belongers which is defined in terms of nationhood which in its turn defines those who qualify for citizenship. This is the boundary which is drawn towards foreigners. There are several ways how alienage is perceived D spatial distance, religious difference, ethnic otherness and the like - but the most common cultural pattern and institutional device to define non-belongers is the concept of nation. Thus, in order to understand who is a citizen and who qualifies for citizenship, we have to study the respective concept of nation with respect to the distinction between belonger/familiarity and non-belonger/alienage, or between in and out.

Both aspects of nationhood merit our attention, although the latter is the one which has been more consequential and fateful for the Germans and their concept of nationhood. As we shall see before long, the tendency of social exclusion inherent in the concept of nationhood was much easier to overcome than the symbolic boundary between in and out. The main reason is the fact that nationhood does not only define the legal boundaries between foreigners and belongers, i.e., nationals/citizens, but symbolic boundaries which are viewed as indispensable for the sense of commonness among the members of a society which defines itself as a nation. Thus, the concept of citizenship as determined through the idea of nationhood touches upon much more than just the individual legal and political status of individuals D it is at the core of the collective identity of a nation.

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

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

As a matter of fact, the term 'German Nation' did not refer to the modern concept of the nation which evolved in the second half of the 18th century and which defines the nation as the collectivity of the inhabitants of a delineated territory tied together through common attributes like descent, institutions, language, history, or mere political will. The modern concept of the nation is inseparably connected with the concept of the people, while the German Nation invoked in the denomination of the Empire designated the imperial estates. The Empire was represented in the Imperial Diet by the Imperial Estates, among which the high nobility, in particular the seven electors who elected the Emperor, formed the most influential part, while the imperial cities were of inferior significance. The imperial estates incarnated the German nation. In the language of the Middle Ages the term 'nation' designated a collectivity of common descent and common language, but it referred to the superior elements of that collectivity, while the inferior components were the 'people'. Therefore the term 'citizen' designated the persons who represented the estates at the imperial diets, i.e., the electors, the secular and spiritual princes etc. As in the case of ancient Greece or in the modern democracies, the medieval Holy Empire the nation also consisted of citizens D but the status of citizenship was reserved for the nobility. In the estatist order of the Empire the 'people' played no role. They were not represented, simply because they were not an estate, let alone a superior constituent of the Empire. The higher estates incarnated the German nation, and consequently Martin Luther addressed his famous pamphlet of 1520 in which he called for a reform of the Church, 'To the christian nobility of the German nation' (An den christlichen Adel deutscher Nation).

The unity of the Holy Empire was not constituted by nationhood D the common German language and descent of the imperial estates D, but by the estatist interests and privileges of the high nobility. The very idea of nation was absorbed by the imperial estates. They embodied the German nation because the German high nobility made the claim to rule the Empire and to represent its Christian-universal character. Whereas other European countries like France, England and Spain began in the 13th century to associate the nation with the monarchy and its emerging ius territoriale (which in France in the 17th century became to be called the droit de souveraineté), this did not happen in the Empire. This is because the Empire was too large to transform itself into what we now call modern territorial rule. Thus the Empire could be a Christian-universal polity and at the same time represent the German nation, i.e., a particular community. This was its character until its dissolution in 1806, although in the meantime not only the Christian-universal idea had disintegrated and confessional fissures, religious wars and religious cleansing had taken its place, but also the concept of imperial rule through imperial estates had become obsolete in view of the emerging states based on territorial rule recognized in the Westphalian Peace Treaty (ius territorii et superioritatis). As mentioned above, besides the emergence of modern statehood in France, England, and Spain, a plurality of sovereign territories evolved within the Empire ruled by princes, kings, and electors who at the same time were estates of the Empire. Not surprisingly, they were not interested in the transformation of the Empire into a territorial state which necessarily would have been a German monarchy. Given the large size of the Empire and the underdeveloped means of communication and transportation in the medieval and early modern era, it is doubtful whether such a project could ever have become successful, even if the particularism of the imperial estates had been less strongly marked. Be that as it may, at the latest after the Westphalian Treaty of 1648, which quasi-constitutionally recognized the ius territorii et superioritatis, the Empire became what Pufendorf in his famous legal analysis De statu imperii Germanici of 1667 came to call an "irregulare aliquod corpus et monstro simile".

It is this dissociation of the from the process of state formation which pushed the German concept of nation into a particular direction. In the writings of many 18th century authors, both French and German, the concept of nation had acquired an anti-estatist, broader social meaning in that it included the people, which means: the emerging class of state and Church employees, tradesmen, entrepreneurs, craftsmen, artists and the like who now were identified with the nation. In France this social extension of the concept proceeded along with its connection with the political organization of the country. For instance, in the Encyclopaedia (1765) Diderot defined the nation as a multitude of people living in a country of a certain geographical extension which is defined through fixed borders and whose inhabitants are subject to a government, a definition which in 1789 obviously inspired Sieyès to his famous definition according to which the nation is the association of individuals who live together under common laws.

In the revolutionary age around 1800 the identification of a particular estate with the nation is challenged, and the concepts of 'nation' and citizenship get politicized. Other social classes which in their turn identify themselves with the whole of the society claim to be the nation, and now the concept of 'people' arises as a parallel, partly as a counter concept to that of 'nation'. Paradoxically, it is the universalist character of the concepts of nation and people D the claim to include all relevant individuals D which renders them susceptible to becoming a semantic instrument of political polarization: the part of the society which succeeds in identifying itself with the whole, to represent, or even to be the nation or the people, has gained a surplus of legitimation for its respective particular demand.

The Frenchmen lived in a bounded territory under a monarch, while the Germans lived in several territories under a plurality of princes, while the single king who existed, the Emperor, was not their ruler. Thus, in 18th century Germany the idea of a German nation emigrated into the sphere of culture. It cannot be overlooked that in certain segments of the population a sense of imperial patriotism (Reichspatriotismus) developed, and on the other hand there was also a kind of 'national' identification with 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, universal ideas as originally embodied in the Holy Roman Empire of the German Nation, was behind the times, because it celebrated estatist liberty in a time when the natural law idea of equality of man and the eventual reality of equal subjecthood under a sovereign state authority had already been developed. On the other hand, the particular German sovereign territories, especially Prussia, were the modern powers with which the "new urban orders" of the state functionaries and the educated could easily identify themselves. But clearly even Prussia, the largest German territorial state, did not embody the German nation, let alone the fact that none of the sovereign princes including the Prussian king ever intended to establish a German nation-state. In his Essay on "The Constitution of Germany" (Die Verfassung Deutschlands) written between 1800 and 1802, the young Hegel analyzed the German predicament whose main structural difficulty he found in the failure of the Germans to establish a homogeneous public sphere of statehood as the necessary precondition of civil as opposed to estatist liberty (staatsbürgerliche vs. ständische Freiheit). In a slightly ironic overtone he blamed the Germans' "instinct to freedom" (Trieb zu Freiheit) which prevented them from becoming D like all other European peoples - a people prepared to subject itself to a common state authority. In his eyes, however, this "instinct to freedom" is nothing other than a propensity towards narrow-mindedness and particularism: "The obstinacy of the German character could not be overcome so that the single parts would sacrifice their particularities to the society, would unite themselves to a general principle and find their freedom in the common subjecthood to a supreme state authority".

Hegel's reference to "the obstinacy of the German character" could easily be translated into the more benevolent "spirit of the German nation". Indeed, the idea that each nation is characterized by a particular spirit permeated the reasoning of the 18th century. The 19th chapter of Montesquieu's 'Spirit of Laws' of 1748 about the general spirit, the mores and the customs of a nation was frequently quoted as a brilliant example of the analysis of the spirit of nations. Likewise Voltaire's Essai sur les moers et l'esprit des nations of 1769 was an important and influential move towards a cultural understanding of the concept of nation. In Germany the educated classes which had arisen in the course of the development of the German territorial states, state and church bureaucracies, their residential courts and towns, not least their newly founded universities, academies, and theaters, formed a 'national spirit' on the basis of the German language. Latin had been the language of the Church, 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 military successes wrote his essays in French language. Thus the growing, mostly state-nurtured middle class developed their national feeling through the German language, an institution which overstepped the political boundaries of the states and was not compromised by the representatives 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 those who did not use the latin language. 'Deutsch' and 'Deutschland' are terms which originally designate a lingual community, while their political import emerged in the 16th century and acquired a polemical meaning against the ruling princes through the claim to embody one single collectivity, as opposed to the particularistic fragmentation and disunion of the empire. Thus the term 'deutsches Volk' (German people) has always been more meaningful than just the neutral designation of a particular collectivity in a delineated territory; its symbolic importance amounts to what in France the concept of nation meant and means to the Frenchmen. It embodies the Germans' search for political unity and identity. Interestingly, important German encyclopedias of the 19th and the 20th centuries lack the entry 'nation' and instead deal with this concept under the entry 'Volk'

Johann Gottfried Herder (1744-1803) was the most influential among the philosophers, poets, and intellectuals who fought for the development of a German nation and a German national spirit through the advancement of the German culture, especially through German language and literature. Herder, Klopstock, Lessing, Schiller and others pursued the objective of a German national literature and a German national theatre which they regarded as a kind of substitute for the missing German political nation. Schiller in particular was very much aware of this substitutive role of culture for politics. "Germany? Where is it located? I do not know where to 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 not mean that they were cultural nationalists. On the contrary, their belief in the spiritual character of the nation was inspired by humanitarian ideals which regarded each nation as an equally valuable and dignified collective individual which merited equal respect and recognition. Herder, for instance, edited a collection of folk songs of different nations and cultures which were published under the title 'Voices of the peoples in their songs' (Stimmen der Völker in Liedern), and published, among others, a study in the field of the philosophy of history entitled Philosophy of 'History for the Education of Mankind' 1774), or 'Letters for the advancement of Humanity'. Although mainly interested in language and literature, he did not ignore the necessity of enlightenment and autonomy for the nation to flourish, and he even developed the idea that nations do not fight bloody wars against each other. Schiller, who was particularly sensitive to the intellectual parochialism in the German mostly petty states, declared: "I write as a cosmopolitan, who does not serve any prince", and: "Prematurely I lost my fatherland in order to exchange it for the great world", or, even more explicit: "German Empire and German nation are two different things. The majesty of the Germans never rested on the head of their princes....Even if the Empire perished, German dignity would remain untouched. It is a moral quality, it resides in the culture and the character of the nation which is independent of its political fates". However, others who wanted to be patriots deplored the widespread high esteem for cosmopolitism because they regarded it as an escapism from the absolutist reality which in fact did not require citizens and the virtues of citizenship.

In a famous book entitled 'Cosmopolitanism and Nation-state' (Weltbürgertum und Nationalstaat) the German historian Friedrich Meinecke (1862-1954) drew the now widely used conceptual distinction between 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 experienced possession of cultural goods, whereas state nations rest upon the unifying force of a common political history and constitution. According to this distinction France is clearly a state nation, whilst Germany is apparently a culture nation. This model of explanation has become common place, although at closer scrutiny it turns out to be insufficient. With respect to the comparison between the French and the German concept of nation D the main field in which the distinction has been used again and again D it must not be overlooked that the French concept is unconceivable without the key element of the French language and the role of philosophy and poetry in which the Frenchmen have always taken much pride. The French civilization D a particular attitude of rationality towards the world D has always been regarded as the standard which immigrants have to fulfill in order to become members of the French nation. On the other hand it is not confirmed by historical facts that the use of the German language as such constitutes the German nation among the speakers. True, the claim has been made by the said German intellectuals at the end of the 18th century D in the very specific situation of the agony of the Holy Roman Empire of the German Nation; but it is equally true that German speaking communities outside the traditional territorial boundaries of Germany (in , , Romania, Belgium and several other European countries) did not form a component of the German nation. This claim may even be misused D and in fact has been misused D for imperialist extension of German state power over other sovereign states.

Thus, the distinction may give rise to dangerous misunderstandings. However, the underlying criterion remains a valuable heuristic tool for a better understanding of certain particularities. One distinctive feature of German nationhood is the lack of an inherent connection of the idea of the German nation with a demarcated territory, and, as a consequence, its co original alignment with statehood. As stated above, in Spain, England, and France, state formation was simultaneously the process of national closure: those living permanently outside the boundaries of the state did not belong to the nation. The state defined the nation. And yet, the state was not the nation. The state is an organization of domination: it is the institutionalization of sovereign power over a demarcated territory and the individuals who stay within the territory. The subjects of sovereign state power need not necessarily share more than just common equal subjecthood to the state; this is for instance the case when temporary aliens and permanent native residents happen to dwell within the same state. If there is any connection between them, it is mediated through their vertical relationship to the state authority; common subjecthood does not create a horizontal link among the subjects. This, however, is the defining characteristic of nationhood: the concept of nation points to a bond which ties a multitude of individuals together to the effect that they form a polity, i.e., a sphere of common affairs. Common subjecthood to a sovereign power as such does not tie them together, while the common will to live together in a state and to be subjcet to its sovereign authority does. Only in the latter case is the polity the embodiment of the nation because it is built upon horizontal bonds which tie the individuals together. Now the distinction between culture nation and state nation refers to the instance that in some cases the collective perception of common cultural and spiritual properties D like language, religion, past experiences D among a multitude of individuals who live in contiguous territories may create the desire to form a polity, in order give the collectively felt sense of togetherness a political vessel. In this case D Germany is widely seen as an obvious example, but one could also think of Poland in the era of its partition between 1795 and 1918 D the political organization is viewed as a means for the preservation of the pre political nation 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 a state nation or of what later became called a political nation: the state is not regarded as the vessel for a preexisting cultural community, but as the necessary form of the nation. Nationhood prior to or outside of statehood is unconceivable, nation and nationhood are inherently political concepts. Thus, despite a common language and strong feeling of commonness between the Frenchmen (in France) and the Quebecois in Canada it would be incompatible with the political concept of nation to view them as one nation.

3. German Nationhood and the 'constitutional question'

It lies beyond the purpose of this essay to elaborate on the conceptual refinements of the idea of nation and nationhood. Let it suffice it to give an account of the distinctive elements of the German concept and its history, which seems necessary for the understanding of the German concept of citizenship. One of these properties is the said incongruity of German statehood and German nationhood rooted, as Hegel contended, in the Germans' incapacity to transform the Empire into a nation-state. It is a matter of debate whether it was the Germans' proclivity to particularism or rather insurmountable objective obstacles which prevented this transformation from happening. In any case the separation of the political from the cultural dimension of citizenship is a characteristic trait of German citizenship which can be attributed to this historical feature. As already mentioned, there was no imperial citizenship until the dissolution of the Empire because the Empire was built on estates and corporate entities, not on individuals. The legal status of individuals evolved in the framework of the territorial states. When the Empire finally collapsed the idea of a German nation had lost its last institutional expression, however weak and caricatured it appeared to the contemporaries. This did not mean the disappearance of the idea itself. What faded away at end of the 18th century and ended with the formal dissolution of the Empire was the perception that the German nation was embodied in the high nobility. As long as the dualism of the Empire and the particularistic territories formed the German constitution, the idea of nationhood was inseparably connected with the Empire and, consequently, with the nobility. Although an educated middle class had evolved around the territorial state's brueaucracy, the princely court, the state church and new cultural institutions, the emanating elements of state patriotism within the several territories - especially in Prussia which had risen from a geographically marginal and economically underdeveloped imperial territory to one of the Great European Powers within two generations - could not overstep their particularistic boundaries simply because the idea of German nation was occupied, as it were, by the imperial estates. Thus, its development was blocked in a twofold manner, namely through the universalism of the imperial idea and the social exclusivity of its estatist-aristocratic character. Therefore dissolution of the Empire in 1806 paved the way for a modernization of the national idea. Concerning its social exclusivity, the French Revolution had already elevated the then inferior parts of the population D the so-called third estate which in reality was a new social class D to the group which now identified itself with the nation. As Sieyès had claimed in his pamphlet: "The third estate includes everything that belongs to the nation, and everything that does not belong to the third estate may not regard himself as belonging to the nation. What, then, is the third estate? Everything...". This is the socio-economic meaning of the claim that the French nation is a nation of equal citizens D the concept of nationhood had overcome its estatist-aristocratic exclusivity and become a social idea with which the newly emerging class of the bourgeoisie could identify. The French Revolution signified the development from the aristocratic nation to the civic nation (Adelsnation vs. Bürgernation). This transformation did not merely mean an exchange of the social classes which embodied the nation. Nationhood in the modern sense of the civic nation implied three elements which were absent from the aristocratic nation of the Middle Age and the German Empire, namely, first, statehood, i.e., the creation of a uniform status of subjecthood to the sovereign state power; second, the transformation of the estatist and corporatist social hierarchy and its static system of inequality into a system of equal rights for all individuals which creates another system of inequality, namely a pattern of socio-economic inequality; finally, an institutionalized system of individual freedom, including the negative freedom against state intervention in spheres which are defined as belonging exclusively to the individual's sphere, and the active freedom to participate directly or indirectly, through representatives, in the government of the nation. The institutional means through which these requirements are satisfied, through which, in other words, the nation comes into being is the constitution. The modern civic nation 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 legal equality, civil liberty D were completed in the revolution of 1789. Statehood had already been created by the French monarchy, legal equality (i.e., the abolition of the estates and all aristocratic privileges) and civil liberty (i.e., constitutional rights to negative freedom and to participate in the government of the nation) was accomplished by the revolution itself. In Germany all three elements remained problematic througout the 19th century and were finally settled not earlier than in 1919 D this is one of the reasons why she has been called times and again the "belated nation". As mentioned, statehood had developed in Germany in the 17th and 18th centuries and even created two powers of European standing, namely Prussia and Austria. But none of them was and claimed to be the German nation which was incorporated in the Empire. Not only did statehood in Germany fall short of organizing German nationhood 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 existent embodiment of the German nation, namely the high imperial nobility. Thus state formation and nation building parted company in Germany, and this did not only entail the Germans' emphasis on the cultural basis of nationhood elaborated in the previous section. It had serious consequences with respect to the two other elements of nationhood which point to the issue of constitutionalism. In France, to take this obvious example, the appropriation of the nation through the third estate occurred uno actu with the emancipation of the subjects of state power to citizens: through the constitutional establishment of negative freedom and of the right to participate in the government the French nation constituted itself as a civic nation. Equal national citizenship became the hallmark of the French concept of nationhood, and eequal national citizenship became the symbol of the French concept of citizenship. When the German 'third estate', i.e., the state-dependent educated middle class in the several German territories, struggled for their emancipation from subjecthood to citizenship, they did not by this at the same time struggle for the creation of a German nation. To be sure, there were manifest signs that the concept of nation was understood as a concept which implied Hegel's staatsbürgerliche Freiheit, in other words, which identified the idea of nation primarily with the anti absolutist concepts of constitutionally guaranteed freedom, equality and political representation. Thus, during the Napoleonic occupation of Prussia (and France's hegemonic position in the Rhine Alliance which in 1808 included no less than 39 of the 43 German states) a pamphlet argued: "A constitution, through which the separation of powers and the rights of the people are sanctioned is what at the present state of the political development the voice of the nations demands as an inalienable right...Only where there is a free constitution tis there a fatherland, there true patriotism can flourish...". Here patriotism and constitutionalism, that is: anti-absolutism converged, 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, ibi patria.

In such a concept of nation, statehood becomes the embodiment of the people's freedom and self-determination D a civic nation D because the territorial boundaries of the state define the multitude of its permanent inhabitants as a distinct collectivity capable of common aspirations, purposes, rights and duties. But in the world of German sovereign states after the expiration of the Empire it was hardly possible for the populations to develop such a sense of distinctiveness. There were more than 40 sovereign states and dynastic families in Germany, and only two D Prussia and Austria D had European standing in terms of size, population, and military power. It would have been ridiculous to expect the about 30.000 inhabitants of, say the duchy Lauenburg, or the same number of inhabitants of the principality of Waldeck to conceive of themselves as the Lauenburg nation or the Waldeck nation, all the less since the people of their bordering states spoke the same language, read the same books, and lived according the same customs and mores. In these petty states the territorial boundaries could not serve as the physical boundaries of nationhood because the territory was not able to create and sustain the idea of collective distinctness. The pervasive German particularism of the time period between the end of the Holy Roman Empire of the German Nation in 1806 and the foundation of the German Empire of 1871 was a major obstacle to the evolvement of a concept of nation which identified the nation with a free and democratic polity and dismissed the requirement of common cultural attributes. Had there been no more than two or three big states within the borders of the old Empire, the yearning for a German nation, embodied in an Empire (Reich) D which became a dominant element of 19th-century German history, might have been less powerful and less successful. Prussia, for instance, was clearly able to develop a sense of nationhood which was based upon the ideas and ideals of a civic nation. The high bureaucrats and military men who reformed the Prussian state after its disastrous defeat by the Napoleonic army pursued the goal of a civil society for the sake of a civic nation. They did not hesitate to speak of Prussia as a 'nation', and consequently in their efforts to introduce a constitution for Prussia they reasoned that its ultimate goal was the participation of 'the nation' in the administration of the country. Finally in his famous promise of a constitution of 1807 even the Prussian king stated that he wanted to "give the nation a properly established representation..." D however mixed with estatist elements his idea of representation clearly was. The promise was broken, because the absolutist monarchs and princes of the German states suspected that the concept of representation amounted to the recognition of the principle of popular sovereignty. Thus, the idea of a civic nation associated itself with the quest for a German Empire on two grounds: first, because the geographical narrowness and pettiness of the majority of the German states fostered their particularism, and second because the states were the strongholds of dynastic absolutism, and even where in the years after 1815 constitutions were enacted, they were "granted" by the prince and a far cry from popular sovereignty. The idea of democratic constitutionalism and of nationhood was antiparticularistic, the concept of a German nation acquired a certain ambivalence: to be democratic did not only mean to be antiparticularist, but also to be in favour of a German Empire. The General German Students' Association (Burschenschaft) founded in 1817 as an element of the anti-Napoleonic liberation struggle proclaimed the following postulates: "Not the will of the prince is the law of the people, rather, the law of the people shall be the will of the prince...Freedom and equality are the highest goods to which we have to aspire. We shall never use the term 'fatherland' for the petty country (Ländchen), in which we were born. Germany is our fatherland".

For the members of the educated class who struggled for the principles of the French Revolution through political reform in order to avoid a radicalization similar to the Jacobin degradation and terror it was difficult to define what it meant to be a citizen. They were subjects to the prince of their respective state which was a state in Germany, but hardly a German state, much less the German state; Germanhood was simply not a criterion of the defining qualities of the late absolutist states in Germany in the first decades of the 19th century. Nor were there 'peoples of Germany' which were sufficiently distinct as to make them conceive of themselves as political subjects who demanded self-determination and hence nationhood. During the course of the entire 19th century there never arose the idea of a Germany consisting of a plurality of German peoples or nations. There was the idea of a German people, vaguely defined through the common German language, but this was merely a cultural definition. In political terms the German people did not exist in reality, but in the imagination of the patriotic movement which until 1815 was nourished by the anti-Napoleonic liberation struggle and amounted to a mass movement, while after the restoration of the dynastic European system in 1815 it remained a rather weak force. Paradoxically, their political 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 the Empire, in the 18th century clearly an old-fashioned estatist entity in comparison with the new rising stars of the sovereign territorial states, now became the symbol of the liberal and democratic forces against the late absolutism of these very territorial states. As a matter of fact, the Paulskirchen Constitution of March 1849, the (never sanctioned draft of the) constitution for a liberal and democratic Germany created by the revolutionaries 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 German constitutional 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 as a German Reich, the idea of the Reich being defined as a political entity which includes a plurality of peoples and ethnic groups; the Reich, in other words, is the opposite of a nation-state. The reason for this strange combination must be found in the fact that the Empire had for centuries been the embodiment of Germany as a whole, overarching the territorial, political, and perhaps even the religious particularisms of her princes, and the Emperor appeared to be the protector of the unity of Germany. Apparently the German early-nineteenth-century democrats did not worry that these symbols of German political unity D Kaiser und Reich D were creatures of an obsolete, pre-modern world. Of course, there was still another constitutional model of Germany as a whole available, namely the model of Germany as a federation of states which would integrate the centrifugal forces of the manifold particularisms to a kind of voluntary German political association. Unfortunately, the idea of a German federation was already 'occupied', as it were, by the sovereign monarchs and princes of the German states who erected the German Federation (Deutscher Bund) of sovereign princes D not of the peoples of their states D as a bulwark against the liberal and democratic movements in the states which, strictly speaking, was an all-German both national and democratic movement. Thus, the national-democratic movement in the first half of the 19th century was encumbered with the inherent contradiction to pursue the goal of modernization D the cresation of a democratic nation D with a constitutional model in mind which was definitively pre- and antimodern. It could easily be anticipated that at some point in the this inherent contradiction was to manifest itself and to urge the Germans to make a decision about the character of their polity: to be either primarily German and only secondarily democratic, or vice versa.

Here a reminder of the meaning of the concepts of empire and emperorship (Reich and Kaisertum) seems appropriate. Both concepts played a significant role in the constitutional constructions of the 19th century. Not only the German revolutionaries of 1848 or Bismarck D albeit reluctantly D used the terms Reich and Kaiser for the designation of the polity which they aspired or established, respectively, and for its supreme monarch. Napololeon Bonaparte proclaimed himself in 1804 Emperor of the Frenchmen, and in the same year the Habsburg monarch Franz II., Emperor of the Holy Roman Empire of the German Nation, declared himself Emperor of Austria. Although Bonaparte's emperorship was regarded by some contenmporaries as a restoration of the medieval carolingan Empire which in 962 (the coronation of Otto I.) had been transferred to the German nobility, this of course did not happen. A Holy Roman Empire of the French Nation D a replacement of a French emperorship for the traditional German one D was not rising. The old Empire had been a unique political entity which combined feudal pluralism, christian universalism, multinational coexistence, and territorial particularism held together in the emperordom which had the important obligation to protect the weak imperial estates and small cities against the big particularist powers. The Empire was a genuinely European entity which D despite the holding of the emperorship by the Germans D did not make the claim to embody one nation. In a way the Empire was a system of internal balance of the political forces in the center of Europe and thus embodied a mode of stability through 'loose coupling'. From a constitutional point of view this conglomerate did hardly display a systematic order, and in a deep heartfelt sigh the famous German 18th- century constitutional lawyer Johann Jacob Moser wrote: "Germany is governed in good Teutonic manner, in a manner that no conventional term or comparison with the method of government of other states would make understandable our way of government".

By contrast, Bonaparte's emperorship embodied the principle of unitarian centralist self-government of a homogeneous nation; it was the incarnation of modern caesarism. Even if we leave this personal element of Bonaparte's emperorship aside, it was clearly a modern version which associated itself with the concept of the nation-state. It was not by accident that the Habsburg Emperor declared himself Emperor of Austria, by doing so he connected the several Habsburg territories to a homogeneous state under one sovereign command. In this quality he was the Emperor of a modern state, while his simultaneous emperorship of the Holy Empire D this simultaneity lasted from August 1804 until the end of the 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 the political forces who in the anti-Napoleonic liberation wars of 1812-1815 and thereafter until the failed revolution of 1848 struggled for a German Empire were fully aware of the opposing meanings and implications of this concept. The contradiction became manifest at the latest in the crisis of the (dynastic) German Alliance in the 1860's which eventually entailed the foundation of the German Empire as a German nation-state which united Germany with the exclusion of Austria (kleindeutscher Nationalstaat). Before getting back to this development D which finally meant a separation of the democratic and liberal demands from the national aspirations of the patriotic movement of the first half of the 19th century D it is necessary to point to a peculiarity of the German reasoning about nation and nationhood which may provide at least part of the explanation why the linkage of anti absolutist and anti-feudal liberal and democratic demands with the political ideal of the Empire was not recognized as inherently contradictory. The reason can perhaps be found in an identification of the medieval idea of universalism characteristic of the Holy Empire with the new ideal of universalism which had been generated by the French Revolution. With respect to the events and the political pressures of the years 1812 to 1815 D the anti-Napoleonic liberation wars in Germany, Italy, and Spain D Friedrich Meinecke states in his book on 'Cosmopolitanism and Nation-State' mentioned earlier that the "German spirit grasped the idea of the nation in a still highly universalist sentiment" to the effect, that the imperative requirement of national autonomy was smoothly complemented by the idea of a universal federation. In particular the baron vom Stein (1757-1831), the most excellent and far-sighted Prussian statesman of that time (and the driving force behind the penetrating Prussian reforms of the years following Prussia's disastrous defeat through the French army in 1806) was convinced that the process of German nation-building had to be embedded in an organically constructed community of Europe. From our present point of view this idea looks remarkably modern, while in the view of Meinecke, uttered at the beginning of this century, it appeared behind the times, and therefore he labels Stein as someone who is "not yet the representative of a specifically modern concept of nation-state". This indecision emblematic of the German reasoning about the concept of nation is not primarily due to changing historical perspectives, nor is it a sign of lacking political clarity; rather, it reflects a specific combination of universalism and particularism which is modern and antiquated at the same time. It is modern in that the concept of the nation-state D a particularist entity D is regarded as an element of an overarching unversalist idea. This is what the French Revolution was essentially all about: the modern nation is the embodiment of universally valid principles of humankind; all men are born free and equal, therefore they can form particular, i.e., exclusive, political communities and draw boundaries against each other. Since every human being qua human being has the right to constitute a political association with others the particularity of each nation rests upon the universlity of humankind. Each nation is, so to speak, a particular expression of the human species. All nations built upon the principle of freedom and equality of man are equally legitimate; their individuality is a particular articulation of a universal principle. This relationship between universality and particularity was shared by German patriots like Herder who regarded each people and its specific culture as one particular expression of humankind. Humanity, cosmopolitanism, and nationhood were not inconsistent. This was the perspective which many so-called 'imperial patriots' (Reichspatrioten) took on the Holy Empire. Still, at the same time this perception of the relationship between universalism and particularism was obviously pre-modern and incompatible with the concept of nationhood developed by the French Revolution. According to this latter concept the nation embodied the power, the glory, and the collective identity of a people; and sovereign statehood provided the institutional means for this quest. Consequently the cultural homogeneity of the people was the condition of its political existence as a sovereign nation. In France, for instance, the means of sovereign statehood D in particular the public school and the army D were used for the cultural assimilation and homogenization of the people and their actuality as a nation. Consequently, the individuals are not just subjects of the state, but members of the nation, i.e., citizens. Citizenship in this understanding of membership in the nation carries a sense of exclusive belonging to a particular community which frequently will entail a self- aggrandizing feeling of identity. In any case nationhood in its combination of statehood D this is the modern version of the concept of nation D releases the tendency to render citizenship an exclusive, identity- engendering and self-assertive status which is hostile to the idea of multiple affiliations. In the French Revolution this exclusive character was first and foremost directed against the feudal hierarchy of estates, corporations, provinces, local dominions, guilds, and similar sub-national fragmentations; nation and nationhood drew primarily an internal boundary between 'belongers' and 'nonbelongers'. Citizenship meant the status of belonging to the civic nation as opposed to the estatist nation of the nobility. Thus, the external boundaries against foreigners were of inferior significance in the first phase of the revolution. Still, the turn of the revolution towards aggressive xenophobia, although an unintended consequence of the originally cosmopolitan character of the revolution's concept of nation, was not merely accidental. Its logic of physical and legal distinction which follows from its connection with statehood is prone to develop into a moral distinction vis-à-vis other nation states and their citizens, to judge them according to moral criteria and finally to discriminate them according to the existential opposition of friend and foe.

Measured by this standard, the baron vom Stein's concept of a European nation-state's embeddedness in an embracing European community appeared quite close to the structure of the old Empire which lacked both clear-cut internal and external borders. In particular, the Empire was an estatist order, and its supranational constitution was founded in the supranational character of the Empire's high nobility. To imagine a political entity whose supranational quality was not based on its estatist constitution, but upon the modern principle of sovereign statehood verged on the fantastic and provides another piece of evidence of the extraordinary political ability of the baron. For it meant the abolition of the 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 its inherently supranational character. The individuals who belonged to this peculiar nation-state would be equal citizens; at the same time their affiliation would be non-exclusive and hence permit a simultaneous belonging of the same or of a different kind to another political entity. This would only be possible if the several entities to which an individual may belong are mutually open to each other, i.e., that they do not make claims to exclusive belonging, membership and eventual loyalty. It is questionable whether this construction, which seemingly requires the squaring of the circle, is more than a mere phantasm. Basically, this was the task which the German national movement in the first half of the 19th century was confronted with. There was one nation in terms of a cultural heritage (essentially the commonness of language, history, and literature), and there was a plurality of states none of which was able to embody the whole nation. To characterize the German situation at the beginning of the 19th century succinctly: There were states without German nationhood, and there was a German nation without a single and indivisible state in an era where the idea of the Holy Empire had become obsolete and the principle of democratic nation-statehood stood on top of the historical agenda. Thus the task of the national-democratic movement in Germany was to establish a German nation-state which combined the universalist elements of the Empire without falling victim to its estatist and pre-modern character, with the egalitarian elements of the civic nation without internalizing the exclusivist and self-assertive tendencies 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 the confines of what geographically was Germany were subjects of some forty independent states ruled by late absolutist monarchs and princes. At least the members of the educated middle class wanted to become German citizens, i.e., citizens of a state in the government of which they could participate through an assembly elected on the basis of civic equality and representing the German people. But the term German citizen was inconsistent. As long as the fragmented system of petty states and their absolutist rule persisted they could feel themselves as Germans and as members of a German nation which was a nation only in the prepolicical sense of a cultural nation. To struggle successfully for their emancipation from subjecthood in an absolutist regime to citizenship in a constitutional democracy would mean to be the citizen of a particular petty state, but to renounce it to form a polity which includes all Germans would have been tantamount to the renunciation of the German nation- state. Moreover, it was questionable whether the struggle for citizenship in the particular states could be successful without the linkage of the idea of political emancipation with the goal of national unification since the fragmentation of the civic movements was likely to weaken their potential for profound changes in their respective states.

Yet there was one state which appeared to be able to satisfy both requirements, namely to establish a civil society (Staatsbürgergesellschaft) and to embody the German nation: the former requirement was by and large satisfied through the reforms which Prussia started after its desastrous military defeat in 1806 and which aimed at the abolition of the estatist elements in all spheres of state and society. It included the liberation of the peasants from manorial depencency, the establishment of the institution of private and fully movable landed property, the abolition of the guild system in the towns and its replacement with elements of market freedom and economic competition, the introduction of municipal self-government, the reform of the fiscal system, of the bureaucracy, of the universities and the school system., and the building of a people's army with compulsory general equal military service for men. Finally, the apotheosis of this comprehensive reform which has frequently been called a 'revolution from above', consisted in the goal of a Prussian constitution with a representative assembly of the Prussian subjects. This latter project failed, but the very idea of a Prussian nation had been released by the reforms and could hardly have been revoked. Its result was not a Prussian citizen proper, since only the municipal reforms allowed limited forms of local self-goverment, while at the state level an equal staatsbürgerliche representation could not be accomplished against the reactionary dynastic forces which prevailed in Prussia and in the other German states after the success of the anti- Napoleonic liberation wars. The Prussian reforms were important steps towards the country's modernization which entailed the de-feudalization of both the peasants' and the urban population's status in the economic and social sphere; as mentioned above, in the political sphere the ALR of 1794 had already acknowledged their status as equal subjects. They created an incomplete civil society, that is, a society of free economic actors without the constitutional frame which granted them political representation as active citizens (Staatsbürger) . To put it in a pointed and somewhat exaggerated manner: the Prussian society after the reforms was a society of economically and culturally free, active and creative, but politically subaltern subjects. If we accept for a moment the familiar developmental model of T.H. Marshall we may say that the Prussian society after the reforms of 1807-1815 had reached the first stage characterized by the individuals' enjoyment of civil rights, but largely excluded from political, let alone social rights.

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

There are several reasons why this idea could not materialize in the first half of the century. One of them, and certainly not the least important one, was the D already at that time D international quality of the '' and the unequivocal objection of England, Russia, and France to the rise of a German nation-state. Obviously this embeddedness in a complex web of non German concerns is part of Germany's heritage of the universal, or one may also call it: supranational character of the Holy Roman Empire of the German Nation. But there was no less disinclination within the German states themselves. In Prussia the state elites D the leading cadres within the bureaucracy, the army, the Church, and the universities D had developed an entrenched national feeling which made most of them reluctant to see Prussia merged into a German nation-state. The reactionary turn of Prussian politics after 1815 corroborated this repulse against a German nation-state, because nothing less than the German nation-state was the programme of the liberal and democratic forces. Moreover, after the Polish partitions of 1772, 1793 and 1795 Prussia possessed several territories with a predominantly Polish population (East and West Prussia, Silesia) which rendered the idea of Prussia as the nucleus of a German nation-state less plausible. Furthermore, it is worth mentioning that also the smaller German states were against the German nation-state, because this amounted to the self- abdication of the dynastic families. Yet the main obstacle was the existence of another big German state D Austria D which could have equally claimed to become the heart of a German nation-state if the then leading political forces had been interested in such an option. In fact, they were not, mainly because Austria possessed much larger non-German territories than Prussia, all located in South-East Europe (Hungary, Galicia, Coratia, Slavonia, Dalmatia, Istria, Lombardia and Venetia). Since these parts of Austria would have to be excluded from integration into a German nation-state, Austria's consent to this project would have required the dissolution of the Habsburg Empire; of course, this was out of the question. But even if Austria had been involved, the problem ensued which of the two hegemonic German states should receive the emperorship and how the power dualism which was likely to arise between them would have to be checked and constructively utilized for the good of the state. In sum, after 1815 the path to a German nation state was blocked by all relevant European states including the German states themselves, be it that it would have disturbed the European balance of power, be it because this state was only imaginable as a democratic nation-state similar to the French nation-state created in the Great Revolution.

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

The , founded in 1815 as a Confederation of some forty German states, seemed to entail the solution of the 'German question' in that its loose confederal character permitted the membership of both Austria and Prussia, the two hegemonic German states which, apart from many other reasons, could hardly be imagined as components of a German nation-state with a central government. This latter model of nation statehood would have meant the assignment of sovereign power to a central government, and it would have required the sovereign German states to give up their sovereignty and to satisfy themselves with the role of constitutent parts of a federal state. The German Conferation seemed to provide the solution to the problem of how to create political unity D remember the French republic's claim to be 'une nation une et indivisible' D and at the same time to accept and to recognize a certain degree of particularity as a source of a distinct cultural and eventually political identity. As a matter of fact, the First Paris Peace Treaty of 1814 which prepared the Congress of Vienna stipulated the general objective with respect to Germany as a whole: "The states of Germany shall be independent and united through a federal bond". German national unity seemed only available at the expense of political fragmentation, democratic backwardness, and, last but not least of the more of less latent rivalry of the two hegemonic German states Austria and Prussia. The years between the restauration of the old feudal-absolutist order after the Vienna Congress in 1815 and the revolution of 1848 were very much marked by the attempts of the democratic movement to accomplish constitutionalism and national unity, assuming that these two goals were mutually reinforcing. A book titled 'Germany's Unity through National Representation' (Deutschlands Einheit durch Nationalrepräsentation) published in 1834 contains this program in a nutshell. It must be noted that during this time span (with the exception of Austria and Prussia) almost all German states were constitutionalized through so-called land-estatist constitutions (landständische Verfassungen) D a German constitutional peculiarity of the 19th century whose details I disregard here on grounds of space. Suffice it to characterize them as constitutions which were granted by the princes, confirmed their sovereign power and dynastic legitimacy, contained guarantees of individual civil rights, and a bicameral parliament, consisting of an estatist assembly and of a representative assembly elected according to electoral census and thus representing the propertied and educated classes. These representative assemblies had some limited rights to participate in the legislation without questioning the principle of monarchical sovereignty. In other words, in most German states the middle class, still very much dominated by the educated state-dependent service class, experienced a gradual liberation from their subjecthood to unrestrained absolutism and enjoyed certain freedoms which, however, were subject to the proviso of legal restrictions (habeas-corpus, freedoms of opinion and of the press, of religion, of property, trade, occupation, and, occasionally, of emigration). A major dificiency was the lack of civil equality which is an indispensable principle of the civil nation; the traditional privileges of noble birth, of property, and of the lawful confession persisted and prevented the development of a Staatsbürgergesellschaft. Some of these constitutions even used the term Staatsbürger which, as we know, at the latest since Kant designates the citioyen, that is, the status of participation in the government of the nation. This usage did not fulfill the promise which it deluded; but as an incomplete concept of citizenship it was a constant reminder of what kind of freedom D namely political freedom D the concept of citoyen/Staatsbürger could include under more favourable political conditions.

Likewise, this period of indecision generated the D again genuinely German D concept of the Rechtsstaat. The Rechtsstaat is a concept of rule of law without the element of parliamentary sovereignty, i.e., rule of law without democracy. The Rechtsstaat does not require that the law be created by a democratically legitimated body; according to its rationale the law is right, legitimate and binding if it satisfies the requirement of a given political order for the creation of laws. Thus, the limited competencies of the representative assemblies in the German states did not prevent the Rechtsstaat from becoming the basic principle of individual freedom and security under these landständische constitutions. This democratic deficiency renders the Rechtsstaat somewhat apolitical and passive, but at the same time it served as a quite efficient means of restraining monarchical or princely power and protecting the interests of the middle class in the German states.

Having said this, it may be easier to understand that in this time period a gradual change in the attitudes of the political elites of the educated and liberal-minded middle class towards the issues of national unity and democratic emancipation occurred. There was a growing awareness of the tension between the goal of national German unity in a more or less unitarian state and the freedom which in particular in the south - west German states was guaranteed for the middle class (basically the core of the politically active population). From the mid-century on when the process of industrialization and urbanization began to change the socio- economic conditions in Germany and hence the character of the social stratification of the population D remember that Marx and Engels published their 'Communist Manifest' already in 1848 D this tension reflected the proximate class division between the emerging working class and the bourgeoisie which may have had a foreboding of the impending class struggle.

However this may have been, in any case the national movement split into two wings, the democratic and the liberal. The former struggled for popular sovereignty and the accomplishment of national unity through a popular movement whose ultimate aim was the unitarian republic invented in the French Revolution. The liberals, by contrast, rejected the idea of popular sovereignty and developed the idea of state sovereignty: the state was conceived as a neutral entity which possessed supreme power which had to be divided among several state organs, none of which, be it a 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 the democratic-unitarian republic; instead, they favoured the transformation of the German Confederacy D an alliance of sovereign German territories, if not of sovereign princes D into a German federal state and pinned their hopes on the German princes rather than on the popular masses as the driving force towards national unity. In the face of the obvious political weakness of the democratic movement in Germany the question of whether national unity was to be generated from below or from above was much less significant in practical political terms than the key issue of the 'German question', namely the question of the inclusion or exclusion of Austria in a German nation-state (groŸdeutsches vs. kleindeutsches Prinzip of the German nation-state, or: small-German vs. great-German). It was of course no question for the believers in dynastic sovereignty who rejected the idea of the nation-state as a synonym of democratic rule and faught for the defense of the German Confederation as the embodiment of the feudal-absolutist claim to power. Thus, the problem of great- German or small-German could only arise within the national movement which agreed upon the desirability of a German nation-state.

The problem of the great-German solution to the German national question was twofold: first, it would require Austria to leave the non- German parts of its state outside the German nation-state and thus eventually dissolve it altogether. Second, even if this happened, the coexistence of two big German states D Austria and Prussia D would mean a perpetuation of the conflicts and rivalries among them and ultimately prevent the establishment of a strong and efficient central German government. The problems of fragmentation and weakness that Germany had suffered from since the Thirty Years War motivated the national movement and its quest for a strong government. Consequently, the great-German version of the German nation-state could only be strongly federal, because any attempt to integrate and homogenize the two hegemonic components into one unitary political entity was doomed to fail. Furthermore, it was truly German, in that it included the entirety of German states, in contrast to the small-German variant , which set the objective of an efficient central government over the goal of an all- encompassing German nation-state. They were ready to keep Austria and its German population out of the nation-state for the sake of a powerful German state in the heart of Europe.

5. Options, implications, and consequences of the 'German question' Consequently, among the four basic variables and their modifications which mattered D national popular sovereignty (= democratic with unitarian tendency) vs. state sovereignty (= liberal with moderate to strong 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 radicals whose ideal was the French 'nation une et indivisible'), li-beral- moderately-federal-klein-deutsch (the preference for the predominantly North German liberal center), liberal-moderately-federal groŸdeutsch (the preference for the predominantly South German liberal center), and the liberal-strongly-federal-groŸdeutsch (favoured by the ad herents of strong particularism, such as strongly feeling Protestant Prussians and Catholic Bavarians). Note that any kleindeutsch-federal constiution had the implication of a strong he-gemony of Prussia which would encompass about 60% of both the territory and the popula-tion of such a German nation-state. Even anti-Prussians (from the South German states) were ready to make allowance for this undesired consequence if only a strong central gov-ernment was provided. On the other hand the groŸdeutsch- unitarian federalism was prone to perpetuate the Austrian Prussian dualism and to undermine the goal of a strong central nation-state government.

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: unitarian federalism sovereignty federalism b) Conservative federalists: Federal nation-state with strong particularistic tendencies, close to confederation

(Staatenbund)

The Imperial Constitution of 1849 (Paulskirchenverfassung) created by the Frankfurt National Assemby which claimed the pouvoir constituant for a German nation-state aimed at the establishment of the German nation- state of the type a) in field (4), but this required Austria's constitutional separation from its non-German territories which was plainly rejected by its government. Hence, factually this first attempt of creating a German nation state from below amounted to the kleindeutsch-federal (field 3) version with the hegemonic role of Prussia and, paradoxically, the proposition of a hereditary Emperor elected by the National Assembly. A constitutional innovation unprecedented in German history was the creation of the status of German imperial citizenship (deutsches Reichsbürgerrecht). Its significance did not rest upon its relevance for the distinction nationals/foreigners, which is important for the state's external relationship to other states, but for the distinction subject/citizen. The status of German imperial citizenship was associated with an elaborate bill of rights which set a standard for the constitutions and the legal orders of the particular states and thus served as the foundation of a national civil society (Staatsbürgergesellschaft). In fact, the 'German people' was not defined in ethnic terms D for instance, as the entirety of Germans, or as the Germans living within the boundaries of the German Empire D but in terms of their belonging to one of the constituent states of the empire. In some of them D notably in parts of Austria and of Prussia D lived considerable numbers of ethnic non- Germans. They were German citizens; what made them citizens of the German nation-state was the enjoyment of the fundamental rights guaranteed and protected by the government of this nation-state. At the same time the diverse non-German ethnic groups were granted collective rights which secured the equal right of their languages in the essential public 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 federal kleindeutsch nation-state from above, constituted by the princes of the German states with the exclusion of Austria. Although some elements of the failed constitution of 1849 (Paulskirchenverfassung) were adopted by the Imperial Constitution of 1871 D in particular the general and equal male suffrage for the Imperial Parliament (Reichstag) D the German nation-state was based upon the separation of the democratic from the national elements of the German national movement of the 19th century. It satisfied the political goals of the national-liberal bourgeoisie, while it alienated the left liberal, the democratic, and the catholic parts of the population, and the working class whose political organizations had become a major force in Germany. Moreover, it excluded the Germans living in Austria from the German nation-state, while, on the other hand, it included considerable non German nationalities (Frenchmen in Alsace- Lorraine, Poles in the Prussian provinces of Posen, West Prussia and Silesia, Danes in Schleswig). The constitution lacked a federal bill of rights, and consequently the status of a German imperial citizen was dismissed in favour of the principle that the subjects of the component states residing in a state of which he was not a subject should have the right to enjoy all rights of this state under the same conditions as the subjects of that state; the status, a predecessor of today's Article 8b ECT, guaranteed the right not to be discriminated on the ground of one's nationality in one of the constituent states of the empire, but it did not imply the idea that equal national citizenship should be the basis of the first German nation- state. Thus, originally the German Empire was neither an ethnic German nation (Volksnation), nor a civic nation (Staatsbürgernation), but a 'state nation' (Staatsnation). As a kleindeutsch nation-state Prussia was the hegemonic component, and this seemed for many non-Germans to be a safe protection against an ethnification of the nation. In particular many Poles had accepted their integration in the German nation-state because their status was mediated through their membership in the Prussian state, and Prussia was credited with a supranational, state centered tradition of an almost Kantian universalist political ethics. In 1850, for instance, the Prussian government declared that it refused to spread German nationhood. As we know, this changed already in the 1860's and entailed a politics of nationalization in the sense of rigid 'Germanization' after the foundation of the Reich. The attributes 'German' and 'German Empire' lost its traditional humanitarian and cosmopolitan connotation dating back to the 18th-century German cultural patriotism and acquired the character of an aggressive ethnic-nationalist power state (Machtstaat).

Not surprisingly, those groups of the nation-state's subjects excluded from the nation struggled for its completion, and no less surprising is the observation that the different groups had quite different ideas about what constituted a complete nation-state. Interestingly, the emerging socialist movement, which was one of the two 'Imperial enemies' (Reichsfeinde) excluded from the nation D the other one being the Catholic Church D in its turn made the claim for the working class to embody the nation, thus applying the theory of the class struggle to the concept of nation. For instance, August Bebel, one of the great founding figures of the Social Democratic Party, declared: "Unfortunately, there are in Germany as in all modern civilized countries two nations, one nation of the exploiters and oppressors, and one nation of the exploited and oppressed". When a German worker would have defined his status in terms of nationhood in the Bismarck Empire, he would certainly not identified himself as a German citizen - although, as mentioned earlier, he enjoyed the equal right to vote for the Imperial Parliament (if he was over 25 years old and did not live on welfare) D but as a worker in Germany. (If he happened to be a Marxist, he may have believed in the statement of Marx and Engels in the Communist Manifesto of 1848 according to which "the worker has no fatherland"). Hence, the foundation of the German empire as the German nation-state was not really a satisfaction of the widespread quest for a political organization of the German people. The foundation from above and the separation of the national from the democratic element demanded its price D the continuation of the struggle for a 'genuine' German nation-state.

Leaving all details aside, we may distinguish the two mutually exclusive versions which were to determine the fate of the German nation-state: one universalist notion which its proponents regarded as the accomplishment of the ideals of the French revolution, and a particularistic variant that made a völkisch turn in the interpretation of German nationhood and foreshadowed important elements of the right- totalitarian movements of the 20th century. The former include the socialist and left-liberal political forces which struggled for the democratic republic which they regarded, in line with the ideals of the revolution of 1848, as the true embodiment of the nation state. The latter D the nationalist forces D aimed at a nation-state in the sense of an ethnically homogeneous German state. For them the German nation-state had to be the political organization of Germandom (Deutschtum) the definition of which oscillated between ethno-cultural and biological-racist connotations. Their basic convictions were xenophobic and antisemitic. The former reached their goal not earlier than in 1919, after a lost war and another revolution; as we know, this German nation-state lasted only until 1933, when the Nazis established the 'Greater German Empire' (GroŸdeutsches Reich) and realized the goals of the nationalist movement, namely the racist definition of Germanhood. (Incidentally, the eventual destruction of the German nation-state as a consequence of the Nazi regime did not occur by accident. If the criterion for belonger/non-belonger is biological descent, the nation-state can no longer be the appropriate political organization for this group, because the inherent logic of expulsion or, in its most perverse variant, of extermination of the non-belongers negates the very foundation of the nation-state, namely membership in a polity as a non tribal form of collective life).

After World War II, or more precisely, after 1949 D the Germans found themselves in a situation which had some similarities with the one which their forefathers had experienced before 1871: there existed two German states D the Federal Republic of Germany and the German Democratic Republic D both of which claimed to embody the better elements of German nationhood, and neither of which considered itself as the complete German nation-state. Again, as during most of the 19th century, 'Germany as a whole' was the object of international concern and regulation. This time it existed only in the international treaties in which the victorious allies of the war reserved their right to determine the political fate of Germany and to supervise the exercise of its sovereignty. Again there was a difference between the status of a 'German' and that of the citizen of a German state. Things were still complicated through the refusal of the Federal Republic of Germany to recognize the newly created international borders between Germany (in its borders of 1937) and Poland; that could easily be misunderstood as the Federal Republic's claim to reestablish the borders of the German Empire at the expense of Poland. These irregularities and uncertainties were finally abolished in 1990 when the two German states united and the ensueing state D the result of the accession of the German Democratic Republic to the Federal Republic, so that constitutionally the 'new' Germany is identical with the Federal Republic, which in turn regarded itself as identical with the German Empire in its borders of 1937 D avowed in international treaties that it had become a complete nation-state with respect both to its territorial extension and to its population. Hence, as of 1990 the 'German question' which had troubled Europe ever since the dissolution of the Holy Empire seems to have found its 'natural' solution: the German nation-state which includes all Germans who can legitimately claim to live in one polity. This situation 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 delineated territory and whose claims to self-determination are defined through these state boundaries. In other words, the fact that there are German- speaking people in other parts of the world is no reason to consider the German nation-state as incomplete. Consequently, the fact that ethnic non-Germans live permanently and legally within the territorial boundaries of the German nation-state must not be an obstacle to their inclusion in the citizenry of that state. This conclusion, however, has not yet been fully and wholeheartedly drawn since a considerable number of permanent legal residents of non-German origin are denied the status of German citizenship. I shall come back to this problem in the next section.

Beforehand, we should become aware of an ironic twist of the history of the manifold attempts to generate a German nation-state. Earlier I stated deliberately that the German unification of 1990 seems to have entailed a congruity of German nationhood and German nation-statehood. As we know, the states that since 1945 had the responsibility for 'Germany as a whole' and therefore had the final say about the if and the how of the reestablishment of one single German nation-state were quite cautious when after the collapse of the Berlin wall in November 1989 the possibility of German unification emerged. In particular France, which had the most diverse, both glorious and painful memories of an unsettled German question in the heart of Europe insisted on the strengthening of Germany's integration in the supranational structure of Europe. To put it in a pointed manner, the price for the reestablishment of a complete German nation-state was this very state's willingness to renounce considerable parts of its sovereignty and, moreover, to give up one key element of what constituted its identity, namely its national currency. It may be a mere temporal coincidence that the amendment of the EC Treaty through the Maastricht Treaty of February 1992 followed rather quickly the unification of the two German states. Viewed form a historical perspective it appears conclusive that Union citizenship was introduced as a new supranational personal status after Germany had reappeared on the European stage as a complete nation-state. For the citizens of most other member states Union citizenship may not mean too much since their national citizenship was rarely thrown into question. For the Germans, who hardly ever could define themselves as German citizens D not primarily as 'Germans', nor primarily as subjects/citizens of one of several German states, nor as the member of the German working class D Union citizenship may offer a legal and political status which allows them to be a 'good citizen' without being forced to adopt a national identity which has been 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 comes as no surprise that the rules defining boundary between ins and outs D those who belong to the nation and the foreigners D reflect this very incertitude. Here, too, the separation of nationhood from statehood raises the question of whether it is the state or the nation which provides the defining criterion. The answer is provided by the rules according to which a person becomes the member of a particular state, a status which in the anglo-american context is called 'nationality'; in the German legal system the term for this status is Staatsangehörigkeit.

1. The significance of nationality (Staatsangehörigkeit) for modern statehood

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

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

This functional aspect of belonging to a particular state in a world of a pluriversum of states which have to demarcate their spheres evolves gradually to the political perception according to which the multitude of a state's 'belongers' are viewed as constituent elements of the people that form the state (Staatsvolk). They are no longer perceived as atomized elements of a mere multitude of individuals, but, rather, as components of a collectivity whose members must share some basic properties so that the state can generate political unity out of a rambling crowd. If this happens, Staatsangehörigkeit becomes a constitutive element of statehood.

This leads to the second of the two dimensions of nationality just mentioned. In fact, the domestic role of nationality (Staatsangehörigkeit) has been more important than its function to delimitate spheres of sovereignty in the inter state relations because it was an essential part of the process of internal consolidation of the state. The consolidation of statehood was primarily directed against estatist intermediary forces like patrimonial estates, vassalships, corporations, towns, guilds and the like all of which claimed special liberties, privileges, exemtions and immunities and thus were major obstacles to the formation of a unitary, homogeneous and centrally controlled dominion. In this estatist order the individual was typically subject to several lords who frequently made competing claims to the obedience of the individual. This was, among others, a consequence of the estatist order according to which the individual was a mere appurtenance of the soil; his social and legal status was determined by their physical adhesion to a particular place. The defeat of the estatist orders through the state required the emancipation of the individual from the several estatist obligations to feudal lords and the establishment of one single duty of obedience only and exclusively to the ruler who unified and consolidated the hitherto split and dissociated landed estates into one homogeneous territory. When in Germany the monarchs and princes struggled for the accomplishment of a unitary status of subjecthood and gradually developed the concept of Landesangehörigkeit, the predecessor of Staatsangehörigkeit, the reason was not to draw external boundaries towards other states, but towards internal estatist forces which contested their immediate and exclusive jurisdiction over its inhabitants.

Equal and general subjecthood of all residents of the stateÕs territory under its immediate, equal, homogeneous and effective power was thus the ultimate goal and an inherent rationale of absolutist state rule. Consequently, for the absolutist state physical residence on its territory was the essential attribute of defining a legal relationship to the individuals, and consequently it did not matter whether they were aliens or not. If there was a necessity to establish a legal status which embodied the individualÕs belonging to the state, then it resulted from titles and prerogatives of particularistic sub-state entities which mediated the relation of their members to the state and hence weakened its claim to sovereign power. This required the de-particularization of the law and the transformation of the plurality of local legal relationships into one single law of the land, as it happened in Prussia with the ALR in 1794. In this incipient phase of nation state building legal homogenization referred to the sphere of civil law. This was very similar in France and Austria D the two other great European states with an absolutist tradition D where the project to unify and to homogenize the splintered clutter of legal regulations into one homogeneous legal body was realized in the respective civil codes and amounted to the establishment of a single status of belonging to the state (Staatsangehörigkeit).

After the triumph of the state and its homogenizing and equalizing power over the particularistic forces of the estatist society the original anti particularistic political connotations of subjecthood lost its bearing. As stated earlier with respect to the Prussian ALR, the sovereign state had successfully established its exclusive domination over its territory and its residents, and this is the point of departure for a new developmental step towards a situation where mere physical affiliation to the territory is not enough for the viability of the state. Territoriality is essential for the state. It defines the boundaries and the object of state power D the space which has to be defended against external threats and which acutely demarcates the physical limits of the sphere in which state power and the law are applied, and of the persons who are both objects of its power and its resource persons. We can assume that the sharp physical demarcation of political power and its historically unprecedented efficiency are mutually reinforcing each other, and this in turn explains the superiority of the modern state over all preceding political orders. Statehood includes, as Max Weber put it, "coercion through jeopardy and destruction of life and freedom of movement applying to outsiders as to the members themselves. The individual is expected ultimately to face death in the group interest" which, as Weber continues, "gives to the political community its particular pathos and raises its enduring emotional foundations". Only political, not economic or other merely instrumentally rational 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 common residence within the boundaries of a given territory and the uniformity of the law and the legal status of the subjects; common subjecthood under the sovereign power of the state does not constitute the kind of community which is able to bear the justification for the potential sacrifice 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 its members' willingness to assume duties of human solidarity vis-à-vis their fellow creatures requires bonds of commonness among themselves which are more specific and tighter than the commonness of subjection under a centralized sovereign power. This community is the nation. However broad it may be defined D in the political sense of the French model or in the ethno-cultural terms of the German tradition D , it is conceptually not identical with the multitude of individuals who reside within the territorial boundaries of the state. The principles of territoriality and of personality do not produce the same order of an individual's belonging. Mere territoriality, combined with absolute sovereign power of the ruler over its residents who are a kind of state-appurtenance, is not able to mobilize the forces and the capacity of cooperation and productivity among the subjects which are required for the maintenance of the resourceful state apparatus.

Paradoxically, an absolutist state which satisfies itself to rule the crowd of residents of its territory is prone to undermine the preconditions of its own existence. Its urge to control its subjects is doomed to suffocate both the freedom and autonomy of the individuals and their willingness and their capacity to voluntary and spontaneous cooperation which produces the societal surplus that is necessary for the maintenance of the state's apparatus of control. This is why there is an inherent tendency in the structure of the absolutist state to develop into a constitutional state, i.e., to transform its subjects from mere appurtenances of its territory into a collective body. In a first step they may not form more than a body of passive denizens who enjoy an equal law and a certain degree of civil rights without any right to participate in the rule of the country; one could call this a 'passive nation'. This is what the French constitution of 1791 created when it distinguished between Frenchman/'French citizen' and 'active citizen'. Although the mere Frenchmen were excluded from the participation in the rule of the country and consequently did not constitute the nation, i.e., the active citizenry, they still formed a body of particular individuals who were different from the multitude of mere residents.

In the German legal language the status of Staatsangehörigkeit is called a stand-by status (Bereitschaftsstatus); this means that it is open for manifold and diverse rights and duties which can be attached to it. Making use of this term one could say that the Staatsangehörige, the national or passive citizen is a citizen in the status of latency; it is a transitory status to the complete status of full citizenship. It is not by accident that the efforts to define the state's nationals evolved simultaneously with the struggle for the establishment of the nation-state: in France in 1789/1791, in Austria and Germany at the beginning of the 19th century in the aftermath of the anti-Napoleonic wars. In other words, statehood implies an interest of the state in the quality of its subjects, not only in terms of their economic productivity and military proficiency, but in terms of 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 is not safeguarded by physical residence as such. The boundaries between the 'belongers' and the 'non-belongers' to the state have to be drawn according to the symbolic boundaries of the community which constitutes the state. It is conceivable that these boundaries are more or less identical with the physical boundaries of the territory; this would mean: all permanent residents of the territory of the state constitute the body of belongers who form the human resource of the state. But even then the state subjects would be more than just a crowd of inhabitants of a territory. As the 'passive nation' with the latent status of citizenship they are a kind of reservoir for the nation-state. Hence the criteria which define the boundaries between the belongers and the non belongers are significant indicators of the character of the nation which the dominant political 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 until the foundation of the German Empire in 1871, we must bear in mind that there was no single German state, but a multitude of some forty German states each of which established rules about its belongers. But only a few of them D in particular Prussia and Austria D did this with the intent to create a homogeneous body of subjects, the 'passive nation' as the embryonic version of the nation destined to become the energizer of mere statehood. Thus, these numerous rules of the particularistic states are of no interest for this study. On the other hand, the particularism of these states prevented the German Confederation (a sort of constitutional 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 of the particular states to the Confederation. Note that already the Holy Empire had lacked an imperial status of immediate belonging for the mass of the subjects of the German states; there were only imperial estates. The reason for the failure to establish a 'German' nationality D to which essentially the status of German Confederation Angehörigkeit would have amounted D was exactly this consequence which was anticipated in particular by Austria and some South German states. They were strictly opposed to the idea of a general German status of nationality ("allgemeines deutsches Bürgerrecht") because it somehow presupposed Germany as a whole.

Still, it is interesting to learn that, despite an unequivocal rejection of any kind of association of the status of a national (Staatsangehöriger) with the concept of a German nation, everywhere the principle of descent (ius sanguinis) prevailed as a source of acquiring the nationality of a particular state. This was complemented through the principles of naturalization, of squatting (tacit toleration of residence or self-employed business for a time period of at least ten years), marriage and territory (ius soli) for those born within the territory by stateless and homeless parents. Actually, the priority of the principle of descent was a modern achievement since it dismissed the estatist principle that the status of the individual is determined by the status of the land on which he or she is born. According to the ius sanguinis the individual is no longer a mere appendage to the land; rather, the relationship to the ruler is one of personal loyalty and obedience, just as much as the ruler's duty to protection. The individual's bonds with his "fatherland" is conceived as created through an immediate social relationship, while the accidental birth on the territory of a state is not considered to entail such a social bond. This means, that nationality is no longer a status of mere passive subjecthood, but the legal embodiment of a relationship in which the belonging to a particular state is constitutive of a particular, hence exclusive community. Since in many of the German states there existed already some limited rights to vote and the duty to render military service the need to distinguish between those who were merely physical members of the state and those who had a more intense relationship to their 'homeland' or 'fatherland' generated the choice for the tribal comunity (Stammesgemeinschaft) as the basic community whose members were supposed to be trustworthy per se. For some states like Prussia, whose territories consisted of several separate fractions more or less accidentally accumulated in the course of dynastic politics, located in partly distant geographical regions and charactrerized by diverse cultural traditions and religious confessions, the unity of the state could hardly be secured by the unity of the territory and its personal appurtenances. The unity of the state had to be generated through bondages among the subjects of the state, and here common descent D dubious as this always is D appeared to be the most obvious principle. Note that etymologically the 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 modern constitutions of the 20th century worldD invokes the principle of popular sovereignty and the constituent power of the German people it phrases: "The German people, united in its tribes..." ('Das deutsche Volk, einig in seinen Stämmen...').

The tension between the particularism of the several German states and the alleged or claimed or real national character of the central German state is a leitmotif of Germany's search for the appropriate criteria of nationality. As mentioned, the revolution of 1848 failed, and hence failed the attempt of the National Assembly of the Paulskirche to establish a German imperial citizenship (Reichsbürgerrecht) as a necessary complement to the declaration of a German nation-state; it was the status of a German. Yet, also the constitution of the National Assembly (Paulskirchenverfassung) referred to the constituent states of the envisioned German nation-state for the answer to the question of who was a German. The answer is very much like the one which Article 8 paragraph 1 of the EC Treaty gives in its definition of a citizen of the Union. The German forerunner stipulated that the German people consisted of the nationals of the states which form the German Empire. Although, as mentioned earlier, this constitution was not enacted, it is an important document about the German national-democratic movement's conception of the German people and of the German nation. It is notable that the status of German imperial citizenship (Reichsbürgerrecht) which embodied the common status of all Germans and hence was the constitutive element of a German nation was defined in terms of the individual rights to freedom and equality which were enumerated in the following bill of rights. By contrast, the definition of who is a German, in other words, who qualifies for imperial German citizenship = membership in the nation is left to the particular states at least two of which D Austria and Prussia D included considerable portions of non-German subjects. In other words, according to the national-democratic (and largely just national-liberal) movement of 1848, membership in the nation was not restricted to ethnic Germans. However, an important qualification is in place: since ¤¤ 2 and 3 of the constitution required the separation of the non-German territories of Austria because their inclusion in the German Empire would have undermined the idea of a German nation-state, the non-ethnic character of the quality of a 'German' may not have much practical import. Still, given the Prussian tradition of a state ethos which clearly 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 Paulskirche constitution in that it renders nationality of the Empire dependent upon the 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 of the member states of the Empire are no longer foreigners in the states of which they are not a subject D all subjects/inhabitants/nationals of the member states are now inlanders for each other. Still, there is a tendency towards a distinct imperial status of nationality in that the duty to perform military service is a federal duty which is imposed only on inlander; thus, the central government is directly interested in the rules which determine who qualifies for this duty, and thus a gradual process of centralization 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 member states. In particular, the law confirms the principle of ius sanguinis as the primary source of acquisition of federal nationality.

At a first glance the uniform rules about the acquisition of German nationality (Reichsangehörigkeit) created by the federal law of 1870 did hardly more than just accomodate and equalize the many particularistic rules of the member states. This looks much like an effort of state consolidation, while the idea that the institution of Reichsangehörigkeit is a means for the evolvement of a German nation seems to be completely absent. The constitution leaves the impression that the Empire is a confederation of sovereign princes and their states, while the German people as a nation is excluded. As a matter of fact, the Empire was a foundation from above, and it was the foundation of the German states, even if Prussia was clearly the hege-monic power. But this does not mean that the character of the Empire as the German nation state which had been the ardent desire of the relevant political forces in Germany since the end of the 18th century was neglected. Germanhood became an ever more important element of the definition of the belongers. It is beyond the objectives of this essay to analyze the inherent problems of the first German nation-state and its crises. I restrict myself to the observation that the separation of the democratic elements from the national goal which occurred through the establishment of the German Empire as a nation-state had serious consequences. The idea of German nationhood became ever more affirmative and lured the liberal movement into an attitude of identification with the Empire and the manner in which it had been accomplished, namely through the war against France waged by a government which represented the authoritarianism of the dynastic principle. This German nation-state was not only 'incomplete' in that it was small-German and, moreover, included non-German minorities; it was unfinished because it did not realize national democracy and on that account became vulnerable to ideological attitudes of the population which found its primary source of identification and belonging not in free institutions and universalist principles of social solidarity but in the particularism of their Germanhood. If there was a sphere of autonomous civil life, it was dominated by bourgeois and petty bourgeois veneration of the victorious war against France, of German virtues, German superiority, and German claims for recognition in the world which meant: German claims for extra-European colonies. On the other hand, the growing labour movement and its political institutions stuck to the universalist ideals of the French revolution and, being excluded from the mainstream political, social, and cultural societal life, developed its separate milieus and conceived of itself as of a particular nation. The same holds true for the other 'Reichsfeinde' ('enemies of the Empire'), the German catholics who opposed the small-German and predominantly protestant character of the German nation-state and who in their turn were exposed to mistrust and manifold aggressive actions of the Prussian government.

German nationalism became a pervasive ideology within the bourgeois mainstream society of the Empire, and both the Germans living outside its borders and the non-Germans D predominantly the Poles D who were its citizens became the target of political concern. Both categories were assessed and legally categorized according to an ethnic-cultural definition of belonging: to be a Reichsangehöriger meant to be a German, and to be a German did not mean to be a citizen of the German Empire, but to be an ethnic German. As I shall expound below, the principle of ius sanguinis which prevailed in the nationality law of 1870 and which was continued in the nationality law of 1913 (Reichs- und Staatsangehörigkeitsgesetz) does not necessarily entail an ethnic definition of belonging. But it can be used as an instrument of ethnification of belonging, and that is what happened in the first German nation-state.

Obviously, this had to do with its incompleteness. Yet, the incongruity of nationhood and state territory as such did not require the ethnification of the concept of the German nation and the German nation-state. There were other states in Europe which experienced this discrepancy, like Switzerland, Belgium, or Austria; none of them defined their nationhood in ethnic terms. Even if one has to take into account that Germany as a geographically extended country in the heart of Europe may have had another 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 nationhood which became more and more popular in other German states after the abortion of the revolution of 1848.

The main reason for the ethnification of German nationhood and consequently of German citizenship is probably the congenital defect of the Empire, namely its establishment from above, that is, without the participation of significant parts of the population. The Empire did not include all classes of the population in the nation, although both the democratic principle and the intensifying class cleavages required an extension of the concept of nation to the working class. Just as much as until the French Revolution the nobility had identified itself with the nation, after the French Revolution the Third Estate, the new class of the bourgeoisie, the evolution of the bourgeois society justified the working class' claim to be included in the nation. The Empire was the nation-state which identified only certain elements of the society with the nation, i.e., with those who are relevant and who count. It was sociologically exclusivist, while it claimed to include the whole nation. Whenever a part claims to be or at least to represent the whole, it must develop an ideology which bridges this gap between a particularist reality and a universalist assertion. Even more important is the implication that the latent consciousness of this gap must be permanently warded off, and this entails a more or less manifest tendency towards aggressiveness, scapegoating and marking of enemies. The French bourgeoisie, who claimed to be the nation while it was the emerging hegemonic class within the whole of a society of several classes, developed the ideology that the nation could only be embodied in those members of the society who create the wealth of the society through their work and who are nobody's dependents. Thus, both the nobility and the inferior classes were excluded from the nation. The terror of the revolution against their real and alleged enemies and the wars against the 'backward' European dynasties are examples ot the latent aggressiveness of the revolutionary regime. Likewise, the bolshevists contended to represent the working class which was declared the creator the wealth of humankind was the universal class and thus had to be identified with mankind itself. The huge gap between the claim to represent humankind and the real existence of the working class to be just one class in the society, and of the bolshevists to be just one political wing of the working class generated the ideology that only the vanguard of the universal class had access to the knowledge of the historical progress and its necessities which gave them the right to oppress and, if necessary, to exterminate the backward classes. A similar social mechanism took effect in the German Empire of 1871: the minorities who seized power in the German Empire D the modern German nation-state D and who were its pillars identified themselves with the German nation as a whole, while the real nation-state excluded considerable parts of the population from representation in its political institutions, let alone those groups who were excluded by the small- German solution of the German question although many of them considered themselves to be part of the German nation as well. Of course, the former groups D the socialist labour movement and the catholics D could not be denied the formal status of German nationals and citizens of the nation-state; this was also true for the Poles who lived within the boundaries of the empire, the so-called imperial Poles ('Reichspolen'). The gap between the German Empire's claim to be the embodiment of the German nation and the exclusivist reality was bridged by a particularist meaning of the concept of nation: according to this interpretation the German nation was a community which is embodied in the ethnic Germans; if on that account Germanhood is the essential quality of the German nation-state, the exclusion of non-Germans from membership or, if this is not possible, from full citizenship, is no violation of the moral and legal requirements of the German nation-state. This turn to a definition of nationhood in terms of a prepolitical identity D as an ethnic community D had serious consequences. It did not only justify the exclusion of certain groups from representation in the institutions of the nation-state; even more importantly, it made it possible to declare the excluded groups, but also minorities which challenged the legitimacy of the government, or even mere competitors in the elites' struggle for power within the nation- state as 'non German' (undeutsch), i.e., as enemies of the nation who did not and could not participate in the particular identity of what constituted the genuine German nation. Once the concept of nation had acquired a particularist content, the groups which succeeded in identifying themselves with the nation, i.e., in occupying the power to define authoritatively what has to be recognized as 'national' and what has to be excluded from national solidarity (and the nation-state's protection) on the ground of its 'non-' or 'anti-national' character are the true power- holders of the country. This changes the structure of the political process since the many groups and interests in the society have to prove their 'national reliability' in the first place before they may be qualified to enter into the business of normal politics and to pursue their interests in competition with other social forces. The political process is biased in favour of the groups, classes and elites who can credibly claim to incarnate the nation, or at least to be closer to its spiritual essence than social groups whose members constitute an association of interests (like the labour movement) or are linked together through a spiritual bond (like the catholics). If the idea of the nation is no longer universalist and does no longer imply the project of social cooperation of diverse social, religious, and ethnic groups, any social, religious, or ethnic groups which makes claim to the loyalty of its members appears as a competitor, or even as a serious threat to the existence of the nation-state.

Thus, the identification of a particularistic community with a whole D the identification of powerful ethnic German minorities with the German nation D did not only entail a politics of citizenship which was more interested in ethnic homogeneity than in the accommodation of heterogeneity. It implied a profound change in the character of the political order of the nation-state as a constitutional state. Ultimately, the ethnification of the idea of the German nation was prone to compromise and to undermine the objective of a democracy structured by the rule of law.

The distortion of the concept of nation in the development of the German Empire and the quest for ethno-cultural homogenization is surprising, since geographical, religous, and also socio-economic fragmentation was a constant characteristic of German society ever since the Middle Ages. Moreover, since Prussia was the hegemonic component of the Empire and this country had a record of a universalist state ethos, it is even more difficult to understand this development. I do not mean to analyze that striking contrast in this essay. I restrict myself to the tentative assumption that the necessity to suppress the tradition of diversity, heterogeneity, fragmentation, and sociological openness of German society and hence the huge amount of authoritarian rule may have been required by a politics of societal homogenization, both characteristic of the 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 of citizenship

(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 modern statehood

2. The rules for German Staatsangehörigkeit

Excursus: Ius sanguinis and ius soli

V. Germany's religious cleavages and their impact on her concept of citizenship VI. Citizenship and the German Social State

VII. Conclusion