Transitions to Constitutional Democracies: The German Democratic Republic

• Published date: 01 January 2006
• DOI: 10.1177/0002716205282408
• Date: 01 January 2006
• Subject Matter: Articles

10.1177/0002716205282408THE ANNALS OF THE AMERICAN ACADEMYTRANSITIONS TO CONSTITUTIONAL DEMOCRACIES January603

All law reform must look for local precedents to build on.

Does this claim also apply to formerly totalitarian states?

Building on her research on East German legal history,

the author asks whether there might be some generally

applicable reasons explaining why in the German Dem-

ocratic Republic the first tender shoots of a rule of law

appeared before the collapse of socialism. She finds an

inverse relationship between political and legal faith: as

one declines, the other rises, and vice versa. The waning

of utopian hopes tends to be compensated for by an

increased interest in law and rights and by the growing

professionalism of a disenchanted legal class. The author

believes that not only is the “prerogative state” a constant

threat to the “normative state,” but that, vice versa, the

practice of legality, even the legality of totalitarian state,

can threaten and undermine the effectiveness of

autocratic rule.

Keywords: GDR; socialism; capitalism; rule of law;

trial courts; law reform

To the former German Democratic Republic

(GDR), the rule of law came literally over-

night: on Reunification Day, October 3, 1990.

To researchers who speculate about the condi-

tions under which the respect for law and demo-

cratic rule might spread around the globe, this

singular event is not particularly helpful. No

other country currently struggling to cast off the

legacies of autocracy and lawlessness is in the

same position as the former GDR, which could

adopt a sister country’s legal system in one fell

140 ANNALS, AAPSS, 603, January 2006

Inga Markovits teaches comparative law and family law

at the University of Texas at Austin, where she holds the

Friends of Jamail Regents’ Chair in Law. She is particu-

larly interested in East European law and legal history

and has done most of her fieldwork and her writing on

East German law both before and after the collapse of

socialism. Her Imperfect Justice (Oxford University

Press, 1995) traces the changeover from socialist to capi-

talist law in the course of Germany’s reunification.

Markovits is currently completing a local history of the

rise and fall of socialist law in one East German town,

based on the extensive records of the town’s trial court

and on interviews with judges, lawyers, and laypeople

who were involved with or affected by its work.

DOI: 10.1177/0002716205282408

Transitions to

Constitutional

Democracies:

The German

Democratic

Republic

By

INGA MARKOVITS