The Situation of the Armed Forces in a Constitutional Democracy

• Author: Professor Dr. Klaus Obermayer
• Pages: 02

1. INTRODUCTION

Every State is obliged to take necessary precautions for the security of its population. Apparently the hope that one day man will be able to overcome his conflicts peacefully is a dream, which probably will not be realized in this age. As long 8s international organizations cannot assure the peace of the world effectively, only the armed farces of single nations or of greater defense or. ganizations can insure the safety of human communities.

Under these circumstances even constitutional democracies cannot renounce the maintenance of an armed farce. The effectiveness of the military is guaranteed, of course, only by a iystem in which order and obedience are the essential principles of behavior. The recruiting of troops raises many problems in a democracy which is based on the will of the majority and which confirms the inalienable rights of the individual.

The general problem of the situation of the armed forces in a constitutional democracy will be studied herein on the basis of the example of the Bundeswehr. The German situation may well have its own special aspects for the discussion of the relation between State and military power. Severtheless it sheds light on those fundamental problems which arise in all constitutional democracies as soon and as long as they have a defense force.

The particular topical importance of our theme for the Federal Republic of Germany is to be found in the fact that it has not yet been possible to develop an image of the Bundeswehr which is clearly seen and accepted by all citizens. The notion af a "necessary evil" is widespread outside the Bundesxehr. This opinion may be quite understandable in view of the perversion of military principles in a dark period of German history. but it is no

'The opinions and conel~sionb pesented herein are thase of the author and do not neeeraardy represent the views of The Judpe Advocate Gen-eral's School or B ~ V other povernmental agenry.-"Full Professor. Law School Unireriity of Erhngen-huernbere: Dean of the Law School, 1964-1966; Prochancellor ai the Unlverslty, 1861-1965.Emvarsity of Mumch. 1916-1948: Graduate Doctor of Lar, 1'356.

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proper basis far the fulfillment of a task which has the purpose of protecting the liws of individuals and of the whole community against extreme threats.

Within the Bundeswehr we can recognize some persistent ar-tempts to farm a commonly shared image and to announce it as general17 valid. Ho~verer, there are conflicting tendencies-rather superficially cailed either conservative or progressive-which hare not yet found a synthesis. Sometimes the discards are covered up br a cornpromme in the formulation while in the matter itself no solution has been found.

The fallowing observations cannot be more than frapments. Certainly I cannot offer any pat answwr8 for mastering all the complicated issues concerned. But I will try to make clear that there must be followed a certain ~ a y of legal, moral, and human thinking to solve the problem As our topic is connected Inextricably with the particular material and spiritual situation of oui present life, it cannot be evaluated merelr from the standpoint of Ian When we consider it, we must place I t against the enarmously changing and fluctuating backgiound of the realities of life in the present twentieth century. The nature of the matter dealt with urges the consideration of nonjuridical reflections as well, for theie IS a sphere of existence transcending law in which fundamental personal decisions are required. The last and most serious legal questions may prove to be questions of conscience.

In part 11, I should like to enlarge on the unique sittiation in which the Bundeswehi finds Itself, in the context of both national and world policiea In part 111, I will develop a concept of legal theory vhich I shall call "constitutional images" derived not an& from the language of the constitiition but also from its spirit, and I will discuss the meaning and the function of such Images. Pait IT will offer specifically an outline of the constitutional image of the Bundeseehr. Finally. part Y will take up two ex-tremely controveisla1 ideas-those af rradirion and of fatherland

I1 SATIOSAL ASD WORLD POLICY

All questionr connected n-ith the defense of the Federal Re-

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pation zones haie set up after having suffered ti total defeat

CONSTITUTIONAL DEMOCRACY

brought about by a criminal regime. According to the new understanding of law and constitution, it seemed necessary to provide the Bundeswehr with a legal structure which was to differ completely from that of the armed forces of earlier German history. The lack of legal safety in the army of the monarchical era is expressed perfectlr in a formulation stated in 1901 by Gerhard Anschuetz, a famous German teacher of constitutional law in the first decades of this century: according to him, all instructions af military authorities were not legal rules but "simply orders which take effect and exhaust themselves within the large state institution called army." After the establishment af the Weimar Republic, German military policy did not abandon its secret connection with monarchical principles to which it owed its origin and derelopment.' The Reichswehr became a state within the State largely removed from democratic control. The extreme antidemocratic and antilegal manipulations to which the Wehrmacht was exposed under National-Socialism are so well known that they need not be mentioned here. 2. The divided Germoti~presents a major problem of conscience

io the soldier who has the task of defending the Federal Republic of Germany. Like a11 citizens of free Germany he is haunted by the vexatious question, whether and at what time the Germans behind the iron curtain \%-ill regain their right of self-determination. 3. The association of the Bundesiuehr with MAT0 involves

problems which touch upon the full scope of military planning. They require a solution af many different tasks regarding the development of materiel, munitions and equipment, training and leadership, supply and defense-technology. 4. The atomic age must be mastered manually, rationally and spiritually. Atomic weapons, infra-red waves, radar, directional beams and computers are some of the concepts which indicate the break-through of man into a new period af his existence and thereby affect defense-policy, as well as tactics and strategy. The increasing technical standards lead to an increasing specialization of military personnel and require a new cooperative atyle of work and leadership even in the military sphere itself. 6. The territorial eondttions of o m strategtc situation cannot

be compared with those af earlier times. The expression, "the hattle for space"--as an antithesis to a battle foi lines-expresses primarily a strategic principle. But in...