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Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983

Published online by Cambridge University Press:  04 March 2015

Michael L. Hughes
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Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

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Law and History Review , Volume 33 , Issue 2 , May 2015, pp. 411 - 434
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Copyright © the American Society for Legal History, Inc. 2015 

Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate.Footnote 1 Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.

I. Context

Recht has multiple overlapping meanings, and choices among those meanings had implications for understanding the Rechtsstaat and politics. Recht can mean “law” or “legal;” it can mean “right(s)” (civil or human); it can mean “justice.” Therefore, not surprisingly, the West Germans who appealed to Recht as Rechtsstaat in the antinuclear debate (and presumably elsewhere) were thinking about at least four different things. The Rechtsstaat was originally developed to provide a realm of freedom for individuals, and it can mean a state guaranteeing individual rights, and hence freedom. Closely related to that, it promised to create legal certainty for individuals, so that they could conduct their lives predictably and freely. It also could be seen as providing Recht as law, and thereby security and order. Finally, it could promise Recht as justice. Moreover, whereas West Germans debating nuclear power, Recht, and Rechtsstaat talked repeatedly about form and substance as binaries, the two are, in practice, intertwined. Therefore, individuals could, indeed had to, choose among various meanings of Recht and Rechtsstaat. Sometimes that appeared to be expediency, at other times, that appeared to be an attempt to articulate a sincerely held belief in terms that the individual and the society could understand.

Liberal thinkers developed the Rechtsstaat concept in the early nineteenth century, as a way to constrain the state's power to interfere in the individual's freedom. They promoted the Rechtsstaat to guarantee personal, religious, and political freedoms, equality before the law, (private) property, due process, and the judiciary's independence. Limiting the state's power to intervene in people's lives was a means to create for the individual a predictable sphere of free action. From the beginning, however, disagreement was rife about exactly how to structure a Rechtsstaat. And efforts to realize the Rechtsstaat in mid-nineteenth century Central Europe played out against sharp political conflicts over absolutism, constitutionalism, and democracy, as Germans debated what would constitute a legitimate basis for Recht, and hence the Rechtsstaat. In the late nineteenth century, German legal scholars generally came to define the Rechtsstaat as purely formal: the state was a Rechtsstaat, and it was legitimate, as long as laws were formally equal in their application to all citizens and were adjudicated fairly by a formally independent judiciary (including a system of administrative courts as a control on the bureaucracy). Jurists emphasized that this formalism ensured legal certainty, as a prerequisite to knowing the limits to one's freedom of action. Jurists also generally denied that judges could refer to any source of law beyond the statutes in ruling on cases, as only binding the judge to the statute could prevent a degree of arbitrariness from creeping in.Footnote 2

The demand that the Rechtsstaat be substantive rather than merely formal long predated the conflict over nuclear facilities. Already in the nineteenth century, and not just in Germany, many were arguing that the purely formal Rechtsstaat could not guarantee freedom and rights for the socially disadvantaged, or even for the mass of the population; therefore, law had to take account of social realities. Hence, during the Weimar Republic, some scholars called for a Rechtsstaat that went beyond mere formalism, to ensure actual freedom and material justice for all citizens. And the Weimar constitution listed, though it did not make binding, various social rights. Moreover, under that constitution, judges, usually conservative and mistrustful of parliamentary democracy, began to assert a right of judicial review and to appeal to the “general clauses” in the Civil Code, so that they could introduce their conceptions of substantive justice into judicial decisions. Conversely, socialist theoreticians moved toward the formalistic Rechtsstaat as a way to ensure that conservative judges would have to implement as written democratically promulgated laws. Even though the Nazis maintained the façade of a “national Rechtsstaat,” they fundamentally undermined it, creating what Germans would come to call an Unrechtsstaat with unequal laws, ex post facto laws, unrestrained judicial interpretation, and ideologically driven adjudication, in the name of substantive jurisprudence based on Nazi ideology. Nonetheless, the brutal and disastrous experience of Nazi rule only strengthened demands for substantive justice, because the Nazis had come to power and had implemented many of their abhorrent policies in formally legal ways.Footnote 3 Germans had struggled for a quarter century with form and substance, and both had contributed to outcomes that many of them found unacceptable or appalling.

Hence, the new Federal Republic of Germany sought to supplement the formal Rechtsstaat with more substantive protections for citizens. The Basic Law (West German constitution) included substantive basic rights that bound legislators, executive, and judges, to guarantee rechtsstaatliche (“rule-of-law-based”) freedoms for all citizens against a renewed, even formalistically correct, extremist attack. The Basic Law also declared the Federal Republic a social state, to establish the material and educational preconditions to enable all citizens actually to realize rechtsstaatliche freedoms. Jurist Gustav Radbruch had famously asserted in 1946, in reference to criminal cases involving atrocities under the Nazis, that judges should apply even an unjust statute, unless it so contradicted Justice as to create “erroneous law.” That is, only when a law was “intolerably unjust” must the judge not apply it. Radbruch was trying to preserve legal certainty and limit the arbitrariness that judicial discretion inevitably might introduce, while recognizing that laws could be fundamentally flawed (e.g., the Nüremberg Laws persecuting Jewish Germans) or grossly unjust in certain circumstances (e.g., when applied by Nazi kangaroo courts). Therefore, West German law came to embrace (not clearly defined) legal principles beyond statutory law, in pursuit of a Rechtsstaat that was more likely also to be a Gerechtigkeitsstaat (a state based on justice).Footnote 4

One can safely assume that the overwhelming majority of West German citizens who engaged with the nuclear issue in the 1970s and 1980s were unaware of the long, sophisticated debate among legal scholars about the nature of the Rechtsstaat. However, the kinds of concerns that developed in that debate foreshadowed and perhaps influenced the ways Germans thought about nuclear power and the struggle against it. The concepts of formal and substantive appeared repeatedly, explicitly and implicitly, on both sides of the debate about nuclear power. Echoes of Weimar concerns with the relationship between the Rechtsstaat and democracy, and perennial concerns about possible recurrences of the Nazi past also appeared. Rechtsstaat and Recht were central to the nuclear power debate, but the broad palette of conceptions of Rechtsstaat and Recht that were available produced a broad range of responses, driven by conviction and expediency.

When protests against nuclear facilities began in the 1970s, protesters faced a Herculean task. The nuclear power industry had, from the 1950s, recruited the German state as an active supporter of nuclear power. It secured from federal and Land (state) governments a favorable regulatory environment for smoothly securing building sites and permits. Initially, the industry grew slowly, but after the 1973 oil crisis, the Social Democratic Party/Free Democratic Party (left-of-center) federal government committed itself fully to nuclear power. Most Land governments, especially ones dominated by the Christian Democratic Union (CDU)/Christian Social Union (CSU) (right-of-center), enthusiastically supported that policy. Governments were tied into the nuclear power industry not only through concerns about electricity, jobs, and international competitiveness, but also through civil servants and ministers serving on electric utility boards of directors. West Germany ultimately built thirty-six nuclear plants.Footnote 5

The anti-nuclear-power movement started out as a small and politically marginal minority, but it developed quickly in the mid-1970s. German environmentalism began, slowly, in the nineteenth century, but a broader environmental movement blossomed in the early 1970s, as people became aware of the scope of pollution and of the limits to human exploitation of the environment. The movement included traditional, registered associations, but more characteristic were the informal Bürgerinitiativen (“citizen initiatives”) that proliferated in West Germany from the early 1970s, often around specific issues (e.g., a polluting factory, traffic noise, demands for a new park). An anti-nuclear-power movement developed among (generally middle- and upper-middle-class) citizens who felt threatened by the nuclear industry. It included citizens living near a proposed nuclear plant, and increasing numbers of environmentally concerned citizens in other towns and cities. Various left-wing groups sought to join the anti-nuclear-power movement. The “K-Gruppen” (communist splinter parties) had given up on the working class as hopelessly coopted into late capitalism with consumerist concessions; they hoped instead to recruit members of various new social movements, including environmentalists, as their mass base for revolution. Similarly, leftist Autonomen and Spontis (anarchists) participated in the antinuclear movement. The anti-nuclear-power movement drew support from increasing numbers of Germans. However, some Germans have continued to favor nuclear power into the twenty-first century, and the movement was always multifarious, with often sharp splits, especially over tactics.Footnote 6

In the eyes of most nuclear power opponents, the industry posed an extremely dangerous threat. Even opponents who did not associate it with the horrific nuclear bombings of Hiroshima and Nagasaki considered the risks from releases of radioactivity by a reactor, and especially from a nuclear accident, terrifying, not just for local residents but also for people who might be hundreds of kilometers downwind. And nuclear waste would have to be transported to some permanent resting place, potentially endangering people all along its route. Moreover, nuclear waste's long half-life meant a threat lasting more than 10,000 years. Many Germans considered it criminally irresponsible to bequeath such a risk to unborn generations. Many Germans were also convinced that governments could only protect nuclear plants and waste-disposal sites by draconian security measures that would ultimately subvert the constitution and establish a totalitarian Atomstaat (“nuclear state”).Footnote 7

II. Deploying Rechtsstaat and Recht

The Federal Republic's Rechtsstaat did provide nuclear power opponents with opportunities to promote their interests, at least formally. And nuclear power proponents argued that that was sufficient.Footnote 8

Under the nuclear power legislation, citizens concerned about proposed facilities could secure some access to documents and to public hearings, but opponents of nuclear power complained that those rights proved illusory in practice. Citizens could see relevant documents in government offices, but were not permitted to acquire copies of, or could only acquire copies of a sharply limited number of pages from, the complex and voluminous materials for each nuclear facility planning request. Moreover, opponents argued that a government-sponsored public forum in July 1974 on a proposed nuclear power site in Wyhl was typical: the chair, a government official, arbitrarily chose who could speak, favored supporters of the proposed reactor, and interrupted opponents whom he did permit to speak.Footnote 9

Because citizens could challenge building permits in the administrative courts, nuclear power proponents and some opponents insisted that the Rechtsstaat provided more than adequate rights to opponents. Appeals, however, could only address, formalistically, whether the authorities had properly followed procedures set out in the (arguably pro-industry) nuclear power legislation. Some opponents argued that the appeals were pointless because the government was only going through the motions, with no intention of actually canceling any facility. As one commentator in a Lutheran journal complained, nuclear plant building permit proceedings were “merely formal Rechtsstaat proceedings that give the objections no real chance.” Others dismissed appeals to the courts as pointless, because governments often strove to get construction started and then insisted that the courts could not possibly stop construction, given the investment of time and money already incurred. Many anti-nuclear-power protesters argued that the procedures were so stacked in favor of the nuclear power industry as to be inherently unjust, so that they had every right to refuse to accept formally correct but unfavorable court decisions. Some anti-nuclear-power protesters would presumably have been willing to accept unfavorable decisions if they had thought that the procedures were fair; therefore, their objection was that the Rechtsstaat, even if interpreted formalistically, had to rest on laws that in fact provided equal access to the concerns of all (pace Radbruch et al.). Nonetheless, many of those opponents embraced the formal Rechtsstaat when a court ruled that a particular nuclear plant should not be built or that no plants should be built until the nuclear waste disposal problem had been solved.Footnote 10

Many opponents argued that the risks that nuclear power posed to life and health were so high that even fair court procedures allowing nuclear power plant construction would be unacceptable. Therefore, they appealed instead to a substantive conception of the Rechtsstaat to justify opposing nuclear power and resorting to assertive political tactics. In opposing nuclear power plants, Freimut Duve (Social Democratic Party [SPD] member of the Federal Parliament) argued that “the Rechtsstaat is not democracy!” that it much predated democracy, that under Nazism many judges did only what the law prescribed, and that the Nazi state had often used formal statutes to justify persecution. He was implicitly seeking a more substantive, less rule-bound, approach to the issue, and calling on the Nazi experience as justification. Publisher and political commentator Marion Gräfin Dönhoff, although uncomfortable with civil disobedience against nuclear power sites, argued that the Rechtsstaat “can also be implemented to death by turning paragraphs and decrees into absolutes.” As one environmentalist complained, the problem with government nuclear policy was that one decides “strictly according to the order of the Rechtsstaat,” while ignoring substantive realities. Civil disobedience was then, he wrote, justified to secure substantively a morally just outcome that could not be secured formalistically. Opponents of nuclear power particularly emphasized the Basic Law's substantive guarantee of “bodily integrity,” which nuclear radiation clearly threatened, and asked how a current government or legislature could legitimately take a decision that would impose an irreversible risk to that integrity, not only on living Germans but on generations yet unborn. Citizens concerned about nuclear power were echoing the decision of Basic Law drafters to write substantive rights into the document.Footnote 11

More often, opponents of nuclear power appealed more generally to a substantive rather than a formalistic approach to problems, including nuclear power. For example, TV commentator Gerhard Bott said of the decision to accelerate construction of a nuclear power plant: “In legal-formal terms that is correct, there's nothing to object to. However, I find that there's a way to carry out laws wholly formalistically, an arrogance of power that overlooks that democracy lives from mediation and not from steamrollering.” In a letter to the editor, Paul Wirz wrote, “Legality is not an end in itself and is not the highest of all values.” He also pointed out to Christian Democratic politicians that in driving the money changers from the temple, Jesus “undoubtedly acted illegally.” Hanno Kühnert complained that, in the face of the threat of nuclear power to citizens’ lives and health, “What use is formal order if it brings no substantive contention about the correct solution?” Such citizens were not explicitly appealing to the Rechtsstaat, but were seeking to ground state actions in some higher principles of justice than positive law.Footnote 12

Arguing in similar terms were Lutheran pastors, who could draw on a long debate about resistance to injustice within Christianity and Lutheranism. A group of antinuclear protesters occupied the Lutheran St. Petri Church in Hamburg while demanding asylum for a convicted protester. Approximately eighty Lutheran pastors expressed support for the occupation (which continued even after the convicted protester had decamped for the Netherlands to seek political asylum). Church officials censured ten pastors accused of having joined the church occupation or of having, when asked, refused to urge the occupiers to end it. In their defense, the pastors argued that those opposing the occupation were obsessing about the “artificial image of so-called legality,” about the “formal,” about “Recht instead of grace.” “Legalism,” they wrote, “hinders the Holy Spirit.” They argued that the violence being done to God's creation and the danger to human life from nuclear power were so great that infringements of the penal code and of church law were legitimate. They favored the spirit over the letter of the law. They were certainly arguing as Lutherans about an issue that went back to Paul's Epistle to the Romans versus the Acts of the Apostles, but they were also doing so as West German citizens in response to a political issue, and by appealing to a notion of Recht superior to the positive law.Footnote 13

Many opponents of nuclear power argued that the plants and their waste were so dangerous, in an era of terrorism, that the only way the state could adequately protect them would be to suspend constitutional rights, creating a totalitarian Atomstaat. This argument was made in the abstract by Robert Jungk in a book of that name, and repeated by many others. However, people living near proposed nuclear facility sites protested that the Atomstaat had already arrived in their neighborhood with massive police presence, surveillance, and harassment. For example, farmers bringing in hay from their fields were stopped, interrogated, and even arrested. And police illegally bugged the apartment of a physicist who opposed nuclear plants. The Rechtsstaat and individual rights, nuclear power opponents argued, were at risk.Footnote 14

Some Germans, however, appealed to the Rechtsstaat not to oppose nuclear power, but because they found demonstrations distasteful and sought a restoration of order. Most West Germans had, by 1975, accepted demonstrations as a legitimate element in democratic decision making, although some still preferred a more “orderly” structure of public affairs. However, the occasional violence at anti-nuclear-power demonstrations elicited explicit references to the Rechtsstaat from nuclear power proponents. For example, Gerhard Knuth wrote in the Kieler Nachrichten that “our rechtsstaatliche structure” is threatened because lawbreaking at demonstrations “violate(s) the principles of order.” CDU leader Helmut Kohl warned of a “Rechtsstaat in crisis,” as he denounced the violence that had accompanied some anti-nuclear- power demonstrations. Minister-President Gerhard Stoltenberg of Schleswig-Holstein (CDU) feared that the occasionally violent demonstrations were contributing to a “debilitation of the moral and rechtsstaatlichen values” in the Federal Republic.Footnote 15

Nuclear power proponents who worried about order also often appealed to rechtsstaatliche values without explicitly naming the Rechtsstaat. Heinz Vielain expressed a widespread fear that the failure to successfully prosecute violence at demonstrations threatened to transform the consciousness of law and right by accustoming Germans to Unrecht (the opposite of law and right). CDU Minister Wilfried Hasselmann warned that the whole population's “feeling for law” would be eroded if a small minority got away with massive lawbreaking by illegally occupying the site of a proposed nuclear power plant. A repeated concern was the survival of the “Rechtsordnung (‘legal order’).” As Josef Augstein asserted of a demonstration at Brokdorf, “The storming of the site was not directed against the construction of the nuclear-power plant, but rather against the stability and the legal order of our state.”Footnote 16

The maintenance of order has not historically been a major concern in jurists' discussions of the Rechtsstaat. The widespread connection being made here reflected a broader concern with “security and order” in West Germany in the face of post-1960s cultural transformations, more protests in the streets, small but violent militant groups, and tiny but vicious terrorist cells. It also reflected memories of Nazi street violence leading to the collapse of the democratic Weimar Republic. The Rechtsstaat then seemed to become, for many Germans, about law and order rather than about rights or justice, and it was politically convenient for some to associate peaceful demonstrators with violent movements, past and present.Footnote 17

For all their concern with “order,” nuclear power proponents were strikingly indifferent to recurring incidents of police brutality at anti-nuclear-power demonstrations. Violence by a small minority of demonstrators precipitated some such incidents, but repeatedly, police officers gratuitously, sometimes viciously, assaulted peaceful demonstrators. Germans originally developed the Rechtsstaat to protect the individual against arbitrary attacks by state agents, so that police brutality would seem to demand a vociferous response by self-professed supporters of the Rechtsstaat. The SPD leader in Schleswig-Holstein, Günther Jansen, did seek to bring charges against the state's (CDU-led) Interior Ministry and police officers when police dropped tear gas from helicopters on him and other purely peaceful anti-nuclear-power demonstrators, including children, as they voluntarily left a demonstration site. He specifically characterized these police actions as “a flagrant violation of Rechtsstaatlichkeit and the basic rights of the citizen.” (He did not, however, actually pursue charges.) Other nuclear protesters denounced such police brutality, at numerous demonstrations, as an offense against Recht. And antinuclear protesters complained bitterly that “in the history of [West Germany] there was NO CASE in which a police officer was punished for physically harming [a citizen] while ‘on duty.’”Footnote 18

In discussing demonstrations and police brutality, many Germans were concerned with Recht as Rechtsordnung (“legal order”). Although CDU and especially CSU politicians frequently praised the police and the Rechtsstaat, they never expressed concern about the implications of police brutality for Rechtsstaatlichkeit. They simply ignored—or denied—the indisputable evidence of widespread, unprovoked police brutality, and focused instead on the occasional violence by a small and unrepresentative number of demonstrators. What then pervaded their comments was a fear, an apparently often desperate fear, that the “Chaoten (‘chaotics’)” could introduce chaos and sweep away any social control, leaving citizens (and their rights) unprotected. For these Germans, justice was rooted in order(liness). They could argue that order was a prerequisite for freedom (and did so in other contexts), but in this context, they placed having the police ensure “order” above freedom of expression.Footnote 19

Some commentators noted that the police and prosecutors, rather than consistently applying the law, as the formalistic Rechtsstaat would mandate, made choices about when and against whom to enforce the law. One commentator contrasted two same-day demonstrations in Hamburg: a blockade of the headquarters of the electric power company, which was building a nuclear power plant, and a peaceful anti-nuclear-power demonstration downtown. At the former, which involved trespassing on private property and, arguably, Nötigung (“coercion,” a crime under German law), there were no arrests or police brutality; at the latter, police brutally attacked and arrested peaceful youthful demonstrators. The commentator argued that the difference lay in the police knowledge of who was who: the blockaders were pastors and other middle-class, often middle-aged, individuals, whereas the peaceful demonstrators were “nameless” youths who could be identified with communist radicals. At an early site occupation at Wyhl, the police arrested long-haired and bearded protesters (whom they assumed were students) and actually refused to arrest local residents; therefore, the authorities could claim that only outside agitators were involved. Moreover, the government of Baden-Württemberg ultimately agreed not to prosecute those arrested at a subsequent site occupation at Wyhl, who had clearly broken the trespassing and arguably the coercion laws, because the protesters had been successful in shifting public opinion to their side and because they were primarily local (historically conservative) farmers, not urban “radicals.” The nuclear power companies and the politicians emphasized the companies' inalienable property rights, but police regularly trespassed on and damaged the private property of individuals who owned land near a nuclear plant site. When the courts banned a demonstration near Brokdorf, nuclear power opponents chose to demonstrate anyway, and when tens of thousands of demonstrators appeared, illegally, the police chose not to risk violence by trying to enforce the ban; therefore choosing not to follow the law. The police were charged by law to act according to the principle of proportionality in their actions; they had, one commentator wrote, “learned bloodily” to apply that principle more liberally in dealing with demonstrators by not arresting everyone they saw committing an offense, by not strictly enforcing the law.Footnote 20

In these cases the authorities themselves chose to ignore the letter of the law in pursuit of other, substantive outcomes. The legal principle of proportionality in police actions certainly seems reasonable, but it built into the law a substantive, as opposed to formal, element. Beyond that, police and politicians were quite conscious of who was who, despite the rechtsstaatliche principle of equality under the law. And most of the distinctions drawn were invidious, based on the social status or (perceived) politics of the objects of the law's attention. And one conservative commentator (worried about consistency) wondered, “what remains of our Rechtsstaat” when heads of government stood idly by while more than 50,000 demonstrators ignored a legally imposed ban on a demonstration.Footnote 21

Nineteenth century liberals developed the Rechtsstaat to defend a sphere of private rights for individuals against overweening, authoritarian governments, but in the twentieth century, social democrats, liberals, and conservatives could all deploy the Rechtsstaat to defend representative democracy against a populist antinomianism. The concern with the Rechtsstaat and democracy certainly had roots in 1920s battles to get conservative judges to take seriously democratically promulgated legislation with which the jurists disagreed. It also developed amid memories of the Nazi seizure of power from the democratic Weimar Republic. That seizure may have been formally legal, but it rested on systematic, violent lawbreaking by Nazi storm troopers and communists (an uncivil disobedience?). The concern developed also against the background of ongoing radical attacks on German constitutional democracy that had culminated in the 1970s in a small but terrifying terrorist movement. Dissatisfied with the outcome of formally democratic elections, the terrorists claimed that only through violence could they secure the substance of their just demands. Many Germans had lived through the Weimar Republic's collapse and the Nazi seizure of power, and many others had learned of it. Fear that it might happen again is not surprising. The left-wing terrorists of the 1970s were very different from the Nazis, in ideology and tactics, and the anti-nuclear-power movement was utterly different. However, the civil disobedience, occasional violence, and occasional rejections of representative democracy that accompanied antinuclear protests seemed to many a threatening recurrence of Weimar era developments. Fears for West German democracy proved exaggerated, but were influential.Footnote 22

Some West Germans, then, emphasized that the Rechtsstaat as formal adjudication was a precondition for democracy. One could only have a democratic system if the laws that were democratically promulgated were implemented and enforced, and it was the Rechtsstaat that did so. Hans Matthöffer (SPD), federal minister for research and technology, stated, “Of course I am of the opinion that the Rechtsstaat, after the conclusion of democratic formation of the political will and a rechtsstaatliche decision, must also dispose of sufficient instruments to carry it out.” Constitutional Court Justice Ernst Benda (CDU) asserted, “Whoever puts in question the monopoly on the exercise of force of the Rechtsstaat does democracy a gross disservice. This monopoly on force is the guarantor of peace …” Jürgen Schmude (SPD), former federal minister of justice, was concerned that vital decisions in a Rechtsstaat could be decided merely “in a merely formally democratic way.” He nonetheless rejected calls for civil disobedience based on conscience, because then one would have, in effect, a dictatorship of whoever claimed to be acting from conscience. He clearly feared that some on the (far) right could deploy claims of conscience to undermine democracy in Germany once again. He was not alone in such fears. Perhaps not surprisingly, it was not environmentalists or nuclear power industry officials who expressed concern with democracy and the Rechtsstaat, but rather jurists and SPD politicians, who either might well know of 1920s debates or might well want the courts to implement their political actions,.Footnote 23

Liberals and conservatives further complained that the refusal of a minority of West German citizens to accept the decisions of democratically elected governments also threatened the position of the weak in society. Civil disobedience, they pointed out, put an assertive individual's will above the collective decision of the population through its elected representatives. However, only the rule of law could protect the weak from the strong, so that civil disobedience meant ultimately Faustrecht (the law of the jungle). As Marion Gräfin Dönhoff, who sympathized with the anti-nuclear-power demonstrators, warned, “If everyone can take the law into his own hands, then soon only the brutal will have the right and will push through with the right of the powerful, and the weak will then be left by the wayside.” The CDU/CSU parliamentary party emphasized that “In the free Rechtsstaat the laws also protect the minorities, as majorities and politics are subordinated to the law.” Nuclear power opponents simply ignored these widely promoted and substantive arguments, except for Theodor Ebert's anodyne but unsubstantiated comment that he thought the legal order could relatively easily come to terms with civil disobedience.Footnote 24

Notably here, some of those most active in the anti-nuclear-power movement did reject representative democracy. Certainly the tiny minority of communists hoped to use the new social movements as a base for introducing communism. More influential in the anti-nuclear-power movement, however, were other West Germans (not members of communist movements) who wanted to establish a democracy based on direct citizen participation and consensus decision making. They thought that representative democracy could allow either the powerful to triumph by keeping the mass of voters in ignorance or a majority to impose unacceptable risk on a minority. When they occupied a nuclear facility site or a church, they sought to model their democratic ideal by rejecting voting and majority rule, which some characterized as a “dictate,” in favor of exhaustive (and exhausting) discussions leading to consensus and, one would hope, no minorities.Footnote 25

Although these views on direct democracy predominated among the tiny minorities who occupied sites and churches, the available evidence does not suggest that any significant portion of the broader antinuclear movement found such attempts at “lived utopia” convincing or even attractive. On one level, what these proponents of direct democracy wanted to do was to eliminate all rules entirely, and hence the rule of law and the Rechtsstaat, replacing them with social consensus. They clearly believed that this would ensure the substantive justice that formalistic legal systems could not. Certainly the Greens sought to develop a more participatory democracy, through more limited mechanisms such as rotation of office and the imperative mandate. However, in the context of seeking more direct influence within the existing political system, those Greens who emphasized securing political influence won out over those who favored a stronger commitment to direct democratic modes of action and organization. Therefore, despite vigorous modeling by some anti-nuclear-power activists of an alternative democracy, Germans ended by reaffirming representative democracy, majority rule, and the Rechtsstaat in West Germany and, after 1989, in a united Germany.Footnote 26

One of the most striking aspects of the anti-nuclear-power movement was its deep-seated concern with “criminalization.” The movement was committed to civil disobedience, including breaking the law, a position made easier because it could be cast as “resistance” on the model of anti-Nazi resisters and as a moral improvement on the quiescence of most Germans under the Third Reich. However, the movement vociferously rejected efforts by policy makers and politicians to define antinuclear lawbreakers as “criminals.” And whereas Gandhi and Martin Luther King, Jr. and their South Asian and American adherents accepted punishment as a central element in civil disobedience, a recognition of the legitimacy of the prevailing legal order, most German supporters of civil disobedience refused to accept that they might be punished for breaking the law.Footnote 27

From the perspective of those who rejected civil disobedience, if one chose to break the law, one was a criminal, by definition. Rupert Scholz wrote, “For whoever engages in punishable law-breaking acts criminally; and if the judiciary and the police call them to account, they do not ‘criminalize’ them but rather protect state and society from their criminality.” Helmut Kohl declared, in reference to an illegal anti-nuclear-power demonstration at Brokdorf, “In our democracy the citizen must again hold the feeling that criminal behavior will not pay through opportunistic maneuvering, but rather will be punished irrespective of person and motive.” One commentator rejected efforts to characterize civil disobedience as “political courage of one's convictions,” seeing it rather as “the symptom of a criminal militancy.”Footnote 28

In rejecting accusations that they were criminals, those engaged in civil disobedience sometimes argued that their infractions were not crimes but merely Ordnungswidrigkeiten (“violations”). As a spokesman for the Bundesverband Buergerinitiativen Umweltschutz (BBU, the major environmentalist alliance) said, “Whoever participates in a banned demonstration and behaves peacefully commits at most a violation.” Implicitly, the illegal act, which in formal terms one should forbear to commit, was of no legal consequence, because its illegality paled in comparison with the importance of the larger issue. Protesters were then justified in acting illegally, and could get the publicity impact of breaking the law for a cause without facing any meaningful punishment.Footnote 29

More typically, supporters of antinuclear activism argued that the protesters' goals/motives meant that their acts of civil disobedience did not qualify as crimes. For example, the Lutheran bishop of Hannover, who was also at the time chair of the Lutheran Church National Council, opposed any criminalization of those who had illegally occupied a planned nuclear waste disposal site, because their concerns needed to be taken seriously (their intentions were good) and because no one, he asserted, could imply they had any desire for Krawall (“rioting”) or readiness for crime. Particularly important here for most protesters was their firm commitment to “nonviolence,” which many clearly saw as removing them from the category of criminal. Some argued that because the nuclear power industry and the government acted, if not illegally, at least illegitimately, by taking crucial decisions without adequate citizen input, citizens could not be criminalized for occupying building sites, in contravention of property laws, to secure their legitimate voice. Many argued that the criminals were not those engaged in civil disobedience, but those who built the life-endangering nuclear power facilities. Wolfgang Hain argued in the periodical Graswurzel Revolution (Grassroots Revolution), “If there is an appropriate valuation of the motive for the demonstrations [a blockade to prevent construction vehicles from getting to a proposed nuclear-plant site], it can only come to an acquittal.” He further argued, “In this trial it is not about coercion and damage to property [the charges], but about the threat to the livelihood of the farmers through the Gorlebener [nuclear] facilities, and they have the right to defend themselves against this threat.” Wolfgang Huber dismissed the norm of reducing the legitimacy of a judicial decision to correct process; he argued that if a state decision led to great risk to future generations, then civil disobedience would be justified and it would be “indefensible” to criminalize it. Substance trumped form here. The end, saving Germany from the dangers of nuclear power, justified the means; therefore, the means could not really be criminal.Footnote 30

However, allowing assessment of motives, in pursuit of substantive justice, could prove a two-edged sword. Maria Braig was charged with coercion for participating in a blockade at Brokdorf. The judge, she wrote, was smarmily paternalistic but initially expressed sympathy with her anti-nuclear-power motives and implied that he would impose a suspended sentence. He allowed her to make a statement to the court about her motives. In it, she compared truck drivers at the nuclear plant site and prosecutors and judges at trials of anti-nuclear-power demonstrators to those in the Third Reich who just did their duty in implementing that regime's evil policies. She went on to discuss nonviolence and the right to civil disobedience, and called for replacing representative democracy with a society “free of rule,” one in which a majority could not oppress a minority. The judge, she reported, grew grimmer through her talk; he then imposed a harsher sentence than the prosecutor had requested, denouncing her for her “perverted notion of our existing ‘democracy.’”Footnote 31

Maria Braig could not know whether the judge was really sympathetic to her antinuclear views or whether he would actually have imposed a lighter sentence, yet he explicitly chose to assess her motives in ruling on her case. But in imposing a higher sentence, he ignored the anti-nuclear-power motives with which he at least apparently sympathized, because he found her broader legal and political motives so threatening to the constitutional order that they deserved harsher punishment. For her, this was proof that “liberal judges” were rigid “formalistic jurists” who only “do their duty” to defend the current system. Nonetheless, he had, to all appearances, done just what she had requested, made his decision on the basis of substance not formal legality. Unfortunately for her, his assessment of what was in her case most at risk—West Germany's (representative) democratic system—turned out to differ from hers. Therefore, even though the issue is often cast as formal versus substantive justice, arguing for substantive justice does not guarantee the desired substantive outcome, because it means leaving to the judge's discretion what substantively is (most) at issue as well as what then constitutes a just outcome. It is exactly this kind of outcome that had helped drive the nineteenth century proponents of a formalistic Rechtsstaat.

Proponents and opponents of nuclear energy had pragmatic reasons for their emphasis on the formal or the substantive in defining criminality. The political and legal systems privileged the nuclear industry, so that demanding a formalistic interpretation of the Rechtsstaat benefited nuclear power proponents. And if the proponents could dismiss anyone who resorted to civil disobedience against nuclear power as a criminal, they could strengthen their case in the eyes of most citizens. Nuclear power opponents needed to argue that their substantive rights to protection from the enormous risks that nuclear power might entail, under the Constitution or some other suprastatutory principle, outweighed the formalistic provisions of democratic majority rule, the permit-granting process, the criminal code, and the Rechtsstaat.

Additionally, the two sides were to some degree operating with different conceptions of democracy. The opponents of civil disobedience tended to see democracy as a mechanism for generating legitimate leaders and legitimate decisions; that is, ones that could be accepted by at least the overwhelming majority of citizens. The substance of those decisions, they argued (in this case anyway), was less important, because no system could guarantee substantively correct outcomes. The best that one could hope to do was to establish a fair and transparent process. Moreover, many nuclear power proponents were also very focused on security and order, and the formalistic Rechtsstaat seemed the best guarantor of security and order. Among opponents of nuclear power, however, at least a minority hoped for a consensus democracy that would guarantee substantively correct and universally accepted outcomes (no minorities!), not the whims of often transient and ill-informed majorities or the rigid results of legalistic processes. They often promoted as a model for Germany the kind of consensus decision making, preferably with no votes, which they tried to establish when they occupied a nuclear facility site or a church. They believed that rechtsstaatliche and democratic formality, and rules and procedure more generally, needed to give way to substance, not just in the courts but in the democratic polity.Footnote 32

III. Conclusions

In debating nuclear power, West Germans repeatedly contrasted the formal and the substantive. The formal Rechtsstaat can and often does constrain arbitrariness and protect individuals; and people do want their rights protected. Moreover, democracy does require some mechanism to ensure that executive and judiciary do in fact implement democratic decisions. However, outcomes that are or seem formalistic frequently either offend people's sense of what is just or threaten deeply held views or vital interests. And in practice people often care (far) more about substance now, than about fairness and legal certainty in the long term.

Moreover, underlying the perceived form/substance dichotomy were crucial differences of opinion on the meaning(s) of Rechtsstaat and Recht, and in practice, a mix of varying conceptions of justice and nonlegal concerns drove their deployment, politically and even legally. Nuclear power opponents called for civil disobedience when the Rechtsstaat failed to produce antinuclear outcomes, because they saw pronuclear policies as life threatening and hence unjust, both inherently and in terms of the Basic Law's substantive guarantees of rights. However, they welcomed rechtsstaatliche court decisions against nuclear facilities. They saw themselves as paladins of democracy against the machinations of the powerful, but they refused to address concerns about a potentially serious risk that civil disobedience posed to democratic governance. Nuclear power proponents touted the formalistic Rechtsstaat to secure building permits and to constrain and delegitimize anti-nuclear-power demonstrators, as they issued dire warnings that chaotic demonstrations and civil disobedience threatened public order and constitutional governance. However, they looked the other way as police and political leaders chose which laws to enforce and which to ignore, and as some police officers brutally made a mockery of that Rechtsstaat.

One could chide Germans for hypocrisy, but Recht and Rechtsstaat have a complex history because of the inherent complexity of the issues Germans have sought to address with them. Therefore, it is perhaps more illuminating to recognize, first, that formalism (for all its virtues in at least sharply limiting administrative and judicial arbitrariness) cannot guarantee outcomes that citizens would recognize as just and, second, that Germans have never developed universally accepted conceptualizations of the Rechtsstaat and Recht. The varying and occasionally contradictory ways that West Germans deployed those concepts were sometimes expedient (ignoring police brutality, welcoming only court decisions that supported one's favored outcome) but often reflected specific conceptions of Recht and Rechtsstaat (expecting formalism to be based on fundamentally “fair” legislation/processes, maintaining order seen as a prerequisite for freedom, and protecting substantive rights guaranteed in the constitution such as bodily integrity and Rechtsstaat instead of Atomstaat). The Rechtsstaat is a vital element in German political culture. Nonetheless, it is also an abstraction encompassing varying conceptions of law, right, and justice: ones among which individuals must, in practice, choose, from conviction or expediency.

Footnotes

1. Compare Preuss, Ulrich, “Grundrechte und Verfahrensautonomie angesichts neuer Herausforderungen,” in Widerstandsrecht in der Demokratie Pro und Contra, ed. Meyer, Thomas, Miller, Susanne, and Strasser, Johano (Köln: L'80 Verlagsgesellschaft, 1984), 58; and Matz, Ulrich, ‟Über gesellschaftliche und politische Bedingungen des deutschen Terrorismus,” in Gewalt und Legitimität, ed. Schmidtchen, Gerhard, and Uehlinger, Hans-Martin, (Opladen: Westdeutscher Verlag, 1983), 66.

2. Kunig, Philip, Das Rechtsstaatsprinzip. Überlegungen zu seiner Bedeutung für das Verfassungsrecht der Bundesrepublik Deutschland (Tübingen: JCB Mohr, 1986), 4–5; Böckenförde, Ernst-Wolfgang, “Entstehung und Wandel des Rechtsstaatsbegriffs,” in Festschrift für Adolf Arndt, ed. Ehmke, Horst, Abendroth, Wolfgang, Arndt, Adolf, Schmid, Karl, and Scharoun, Hans (Frankfurt/M: Europäische Verlagsanstalt, 1969), 56, 58–60, 66; Krieger, Leonard, The German Idea of Freedom (Chicago: University of Chicago Press, 1957), 252–61, 356–58, 431; Karpen, Ulrich, Die geschichtliche Entwicklung des liberalen Rechtsstaates vom Vormärz bis zum Grundgesetz (Mainz: v. Hase & Koehler, 1985), 11, 15, 26–27, 78–80; Ledford, Kenneth F., ‟Formalizing the Rule of Law in Prussia. The Supreme Administrative Law Court, 1876–1914,” Central European History 37 (2004): 301–26; and Schmidt-Assmann, Eberhard, ‟Rechtsstaat,” in Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, ed. Isensee, Josef/Kirchhof, Paul (Heidelberg: C.F. Müller Juristischer Verlag, 1987), 988, 993.

3. Maus, Ingeborg, ‟Entwicklung und Funktionswandel der Theorie des bürgerlichen Rechtsstaats,” in Der bürgerliche Rechtsstaat, ed. Tohidipur, Mehdi (Frankfurt/M: Suhrkamp Verlag, 1978), 37–41, 46; Scheuermann, William E., Between the Norm and the Exception. The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994), 43–55; Neumann, Franz, ‟Rechtsstaat, the Division of Powers and Socialism,” in Social Democracy and the Rule of Law, ed. Tribe, Keith, transl. Tanner, Leena, and Tribe, Keith (London: Allen & Unwin, 1987), 72; Neumann, Franz, The Rule of Law. Political Theory and Legal System in Modern Society (Leamington Spa: Berg, 1986), xxi, 32–33, 273–75; Stolleis, Michael (transl. Dunlap, Thomas), The Law under the Swastika. Studies on Legal History in Nazi Germany, (Chicago: University of Chicago Press, 1998), 2, 7–8, 15, 146–49.

4. Bund Bürgerinitiativen Umweltschutz, An unsere Mitbürger bei Polizei und Grenzschutz [ca. Oct. 1979], Archiv Grünes Gedächtnis, A Petra Kelly, 2884/1; Böckenförde, “Rechtsstaatsbegriffs,” 53–54, 56, 59–60, 66–69, 72–73; Karpen, geschichtliche Entwicklung, 21–22, 102–04, 108–11; Gosewinkel, Dieter, Adolf Arndt: die Wiederbegründung des Rechtsstaats aus dem Geist der Sozialdemokratie (1945–1961) (Bonn: Verlag JHW Dietz, 1991), 126, 501, 589–90, 593; Grimm, Dieter, ‟Reformalisierung des Rechtsstaats als Demokratiepostulat?” in Transnationalisierung der Volkssouveränität, ed. Eberl, Oliver and Maus, Ingeborg (Stuttgart: Steiner Verlag, 2011) 19, 26–29; and Radbruch, Gustav, ‟Gesetzliches Unrecht und übergesetzliches Recht,” in Gesamtausgabe, Vol. 3, ed. Kaufmann, Arthur (Heidelberger: Müller, 1990), 88–89.

5. Institut, Battelle (ed.), Bürgerinitiativen im Bereich von Kernkraftwerken (Bericht für das Bundesministerium für Forschung und Technologie, np: np, 1975), 49; Nelkin, Dorothy, and Pollak, Michael, The Atom Besieged. Extraparliamentary Dissent in France and Germany (Cambridge: MIT Press, 1981), 14–17, 21–23, 27–28, 32, 34, 44–48, 50–52, 57, 93–95, and passim; “Nuclear Power Plants in Germany,” European Nuclear Society http://www.euronuclear.org/info/encyclopedia/n/nuclear-power-plant-germany.htm (April 5, 2013); and Joppke, Christian, Mobilizing against Nuclear Energy. A Comparison of Germany and the US (Berkeley: University of California Press, 1993), 44–48.

6. Rohkrämer, Thomas, “Contemporary Environmentalism and Links with the German Past,” in The Cult of German Environmentalism. Anxieties, Visions, Realities, ed. Goodbody, Axel (NY: Berghahn Books, 2002), 51–53; Markham, William, Environmental Organizations in Modern Germany. Hardy Survivors in the 20th Century and Beyond (NY: Berghahn Books, 2011); passim; Dalton, Russell, The Green Rainbow. Environmental Groups in Western Europe (New Haven: Yale University Press, 1994), 65–73, 114–18; Andritzky, Walter/Wahl-Terlinden, Ulla, Mitwirkung von Bürgerinitiativen an der Umweltpolitik (Berlin: Erich Schmidt Verlag, 1978), 12, 117–18; Schüring, Michael, ‟West German Protestants and the Campaign against Nuclear Technology,” Central European History 45 (2012): 744–62; Lieber heute aktiv als morgen radioaktiv (Hamburg: Laika–Verlag, 2011), Vols. I–IV; and Nelkin/Pollak, Atom, 57; and Joppke, Mobilizing, 103–4.

7. Rolf Zündel, ‟Wenn die Parlamentarier schlafen” Die Zeit 48, November 19, 1976 http://www.zeit.de/1976/48/wenn-die-parlamentarier-schlafen (June 7, 2012); ‟Gorlebenaktionstage,” 28./29.10, Atom Express 11, December 1978; ‟Wehrt euch! Leistet Widerstand!” Atom Express 6 January/February 1978, 29; ‟Bürger verhindern Atomanlagen” (October 1976), Brokdorf Bewegung, Papiertiger Archiv, Berlin; ‟Brokdorf ist überall,” ibid.; Bürgerinitiative Umweltschutz Kinzigtal an Herrn Dr. Rudolf Eberle, June 14, 1974, Archiv der sozialen Demokratie, Bonn [hereafter, AsD], NL Bechert, #213; Weisker, Albrecht, “Powered by Emotion? Affektive Aspekte in der westdeutschen Kernenergiegeschichte zwischen Technikvertrauen und Apokalypseangst,” in Natur- und Umweltschutz nach 1945. Konzepte, Konflikte, Kompetenzen, ed. Brüggemeier, Franz-Josef/Engels, Jens Ivo (Frankfurt: Campus Verlag, 2005), 203–21; J.L., ‟Atomstaat—Polizeistaat. Der plötzliche Tod der Republik Wendland,” Atom Express 21, July/August 1980; Rudolf Augstein, ‟Atomstaat oder Rechtsstaat?” Der Spiegel 31:10 (February 28, 1977) http://www.spiegel.de/spiegel/print/d-40941939.html (May 16, 2012).

8. Rainer Nahrendorf, ‟Der Rechtsweg ist offen,” Handelsblatt (February 24, 1981), Archiv für Christlich-Demokratische Politik, Sankt Augustin [hereafter, ACD], Abteilung Pressedokumentation, Themen vom A-Z Demonstrationen vom 22.2.1981 bis 31.8.1981.

9. Dryzek, John, Green States and Social Movements (Oxford: Oxford University Press, 2003), 41; Nössler, Bernd, and de Witt, Margret, Wyhl. Kein Kraftwerk in Wyhl und sonst nirgends. Betroffene Bürger berichten (Freiburg: Inform-Verlag, 1976), 47–50; Battelle Institut (ed.), Bürgerinitiativen, 140, 147, 176–79, 185–88; “100 000 Unterschriften gegen Zwischenlager” taz October 13, 1980, Papiertiger Archiv, Berlin, Gorleben, Wendland Bewegung, -1982; Beer, Wolfgang, “Die Motive des Widerstandes gegen Atomkraftwerke und der Prozeß der Mobilisierung breiter Bevölkerungsschichten,” in Widerstand gegen Atomkraftwerke. Informationen für Atomkraftwerkgegner und solche, die es werden wollen, ed Buchholtz, Hans-Christoph, Mez, Lutz, and von Zabern, Thomas (Wuppertal: Peter Hammer Verlag, 1978), 107; Unterelbe, Bürgerinitiative Umweltschutz, Brokdorf: Der Bauplatz muß wieder zur Wiese werden! (Hamburg: Verlag Association, 1977), 72–73, 75–76, 79–82.

10. For quotation, Dr. Hans-Jürgen Benedict, ‟Vom Appell zum Widerstand,” Evangelische Kommentare (January 1977), in Hamburger Institut für Sozialforschung, SBe 732 AKW-Standortinitiativen, Box 2; faits accompli: Christian Schütze, “Kernkraft spaltet den Rechtsstaat,” Süddeutsche Zeitung 255 (November 3, 1976), Archiv Aktiv, Hamburg, Brokdorf, Zeitungsartikel October/November/December 1976/January/February 77; “Es gibt keine geschützten Gärten im Schatten der Todesindustrie, Walter Mossmann, Liedermacher ” Frankfurter Rundschau (October 26, 1979), Parlaments-Archiv, Berlin, Pressedokumentation [hereafter, PA Presse], 102-18/24, #6; refusal to accept court decisions: “100 000 Unterschriften gegen Zwischenlager” taz October 13, 1980, Papiertiger Archiv, Berlin, Gorleben, Wendland Bewegung, -1982; Margrit Gerste, ‟Emanzipierte Untertanen,” Die Zeit 19 (May 5, 1978) http://www.zeit.de/1978/19/emanzipierte-untertanen (June 12, 2012); ‟Die Frage heißt: Wie wollen wir künftig leben?” Vorwärts (November 25, 1976), AsD, Nachlass Matthöfer, #0149; acceptance of court decisions when positive: Michael Doelfs, ‟Bürgerinitiativen: Ein politisches Problem,” BZ (February 1, 1977), in Bundesarchiv Koblenz [hereafter BAK], B 342, #637; ‟Presseerklärung der Ausserordentlichen [!] Regionalkonferenz der BBU,” December 18, 1976, Papiertiger Archiv, Berlin, Brokdorf Bewegung, 76/77; Bürgeraktion Umweltschutz Rhein-Neckar, ‟Pressemitteilung,” January 15, 1975, AsD, NL Bechert #260; “Bürgerproteste—die vierte Gewalt” Der Spiegel 31:13 March 21, 1977 http://www.spiegel.de/spiegel/print/d-40941743.html (May 17, 2012). The CDU/CSU attacked the environmentalists for picking and choosing when to use or ignore rechtsstaatliche provisions: “Berliner Erklärung 1984,” Union in Deutschland (January 19, 1984), 1–2.

11. Freimut Duve, “Wovon die Demokratie lebt,” Pardon (February 27, 1978), PA Presse, 102-18/24, 3; Marion Gräfin Dönhoff, ‟Der Rechtsstaat in Gefahr?” Die Zeit 11 (March 6,1981) http://www.zeit.de/1981/11/der-rechtsstaat-in-gefahr (June 14, 2012); H. M. Kraus an Gesundheitsausschuss des Deutschen Bundestages, September 29, 1972, AsD, Nachlass Ewald Gaul, 1/EGAE000002; ‟Wehrt Euch, leistet Widerstand!” Atom Express 6, January/February 1978, 29–30; “Allmut Plassmann, Briefe an die Süddeutsche Ztg,” Süddeutsche Zeitung 263 November 12, 1976, Archiv Aktiv, Hamburg, Brokdorf. Zeitungsartikel. October/November/December 1976//January/February 1977; the articles in Ziviler Ungehorsam im Rechtsstaat, ed. Glotz, Peter [SPD Bundesgeschäftsführer] (Frankfurt/M: edition Suhrkamp, 1983), esp. Jürgen Habermas, ‟Ziviler Ungehorsam—Testfall für den demokratischen Rechtsstaat,” 33–38; Küchenhoff, Erich, ‟Ziviler Ungehorsam als Rechtsinstitut,” Vorgänge 62/63 (1983): 140–60; Altner, Günter, ‟Der Konfliktfall Brokdorf-Norddeutschland,” in Atomenergie, Herausforderung an die Kirchen, ed. von Günter Richter, Mitarbeit (Neukirchen-Vluyn: Neukirchen Verlag, 1977), 112–13.

12. “Spaltet die Kernkraft den Rechtsstaat?” DFS, 15 November 1976, PA Presse, 102-18/24, 1; Paul Wirz, ‟Angriff gegen Bürgerinitiativen,” [letter to editor in] BZ (July 29, 1975), AsD, Nachlass Ewald Gaul, 1/EGAE000004; Hanno Kühnert, ‟…oder es bilden sich Antikörper,” Deutsches Allgemeines Sonntagsblatt 48 November 28, 1976, Archiv Aktiv Hamburg, Brokdorf. Zeitungsartikel. October/November/December 1976/January/February 77; Dr. Stäglich, Hamburg, ‟Offener Brief,” Die Bauernschaft (March 1977), BAK, B342, #637; Jan Stehn, ‟Die Brokdorf-Prozesse gehen weiter,” Graswurzel Revolution 68 (October 1982), 9.

13. Heckel, Johannes, “Widerstandsrecht gegen die Obrigkeit? Pflicht und Recht zum Widerstand bei Martin Luther,“ in Widerstandsrecht, ed. Kaufmann, Arthur (Darmstadt: Buchgesellschaft, 1972), 114–15; Eivind Berggrav, ‟Wenn der Kutscher trunken ist. Luther über die Pflicht zum Ungehorsam gegenüber der Obrigkeit,” in Widerstandsrecht, passim; and Die Besetzung von St. Petri (Stuttgart: Alektor Verlag, 1979), 44–46, 63–65, 68, 82, 129.

14. Jungk, Robert, Der Atomstaat (Graz: Verlag Atomic Kilroy, 1977); Augstein, “Atomstaat oder Rechtsstaat?”; Besetzung von St. Petri, 50, 76; ‟Rede von Walter Mossmann auf der Großdemonstration gegen die Atomenergie am 14.10.1979 in Bonn,” Archiv Grünes Gedächtnis, Petra Kelly, #2874; and ‟Eine Erklärung der Bäuerlichen Notgemeinschaft zu den Ansichten der CDU über die Bohrstellenbesetzung,” Atom Express 20, June 1980.

15. Hanno Kühnert, “Die Rechnung vor der Polizei” Die Zeit 49, November 27, 1981 http://www.zeit.de/1981/49/die-rechnung-von-der-polizei (June 15, 2012); Dieter Stäcker, ‟Mit dem Kreuz gegen Kernkraftwerke,” Frankfurter Rundschau December 12, 1976, PA-Presse 102, 18/24, 1; Gerhard Knuth, “Sind wir unregierbar?” Kieler Nachrichten (November 19, 1976), Archiv Aktiv, Hamburg, Brokdorf, Zeitungsartikel. October/November/December 1976/January/February 1977; Norbert Blüm, ‟Appell [an] alle gutwilligen Atomkraftgegner,” CDU/CSU Fraktion im Deutschen Bundestag February 25, 1981, ACD; Dr. Helmut Kohl, ‟Zu dem Verlauf der ungenehmigten Demonstration in Brokdorf …,” CDU/CSU Fraktion im Deutschen Bundestag Pressedienst March 3, 1981, PA Presse, 102–18/24, 9; and Dr. Gerhard Stoltenberg, zum Brokdorf Demonstrationsverbot, ZDF Magazin, February 25, 1981, PA Presse, 102-18/24, 8.

16. Heinz Vielain, ‟‘Der Mangel, Taten zu beweisen, gefährdet das Rechtsbewußtsein,’” Die Welt March 12, 1981, PA Presse, 102-18/24, 9; Minister Wilfried Hasselmann, ‟Es wurde höchste Zeit zur Räumung. Massierte Rechtsbrüche vor [!] Minderheiten nicht hinnehmen,” Deutschland Union Dienst 34:102 (June 4, 1980); Josef Augstein, ‟Die Demokratie gibt sich auf, wenn sie der Gewalt weicht,” Die Welt February 19, 1977, PA Presse, 102-18/24, 1; Elimar Schubbe, ‟Bürgerinitiativen vor dem Scheideweg,” Rheinischer Merkur (November 19, 1976), PA Presse, 102-18/24, 1; and Ulrich Karpen, “‘Ziviler Ungehorsam’ im demokratischen Rechtsstaat,” Juristenzeitung 39:6 (March 16, 1984): 256.

17. Franke, Manfred, ‟Extremismus und offene Gewalt. Anmerkungen zur Gefährdung und Selbstgefährdung des demokratischen Rechtsstaats,” in Extremismus im demokratischen Rechtsstaat, (Düsseldorf: Droste Verlag, 1978), 15–43 ed. idem; Strauss, Franz Josef, ‟Die Zeit der Entscheidung ist da,” Bayernkurier 43 (December 29, 1977), in Gegen den Terror. Texte/Dokumente, ed. Althammer, Walter, (Bonn: Bonn Aktuell, 1978), 23–26; Geissler, Heiner, ‟Terrorismus als geistige und politische Herausforderung,” in Der Weg in die Gewalt. Geistige und gesellschaftliche Ursachen des Terrorismus und seine Folgen,” (München: Günter Olzog Verlag, 1978), 15; Karl Dietrich Bracher, ‟Terrorismus und Totalitarianismus,” in Der Weg in die Gewalt , 201–3, 207–8, 213; Hanshew, Karrin, Terror and Democracy in West Germany (Cambridge: Cambridge University Press, 2012), passim; and Keischer, Helmut, ‟Der Rechtsstaat setzt sich zur Wehr,” in Terrorismus. Gewalt mit politischem Motiv ed. Schröder, Dieter (München: List Verlag, 1986), 77–87.

18. Helmut Simon, ‟Fragen der Verfassungspolitik,” in Ziviler Ungehorsam, 101–2; “SPD stellt Strafantrag gegen Landesregierung in Kiel,” Parlamentarisch-Politischer Pressedienst (November 15, 1976), 2–3; Hertle, Wolfgang, ‟Von Aktiven und Reservisten,” Gewaltfreie Aktion 41/42 (1979), 1; Hengesbach, Theo, Ziviler Ungehorsam und Demokratie. Überlegungen am Beispiel der Ökologie-Bewegung (Kassel-Bettenhausen: Weber-Zucht, 1979), 43; Sozialistischer Studentenbund, ‟Der Kampf gegen AKWs geht weiter!” Papiertigerarchiv, Berlin, Brokdorf Bewegung 76/77; Lepp, Claudia, ‟Helmut Gollwitzer als Dialogpartner der sozialen Bewegungen,” in Umbrüche. Der deutsche Protestantismus und die sozialen Bewegungen in den 1960er und 70er Jahren, ed. Hermle, Siegfried, and Lepp, Claudia (Göttingen: Vandenhoeck & Ruprecht, 2007), 234–35; and Hamburg, Bürgerinitiative Umweltschutz Unterelbe, Brokdorf 28.1.81 (Hamburg: Druckerei in St. Pauli, 1981), 57.

19. Compare here, for example, Hacke, Jens, Philosophie der Bürgerlichkeit. Die liberalkonservative Begründung der Bundesrepublik (Göttingen: Vandenhoeck & Ruprecht, 2008), 141, 162, 170, 172, and passim, as well as Günther Gillessen, “Intolerant gegen Gewalt,” Frankfurter Allgemeine Zeitung (April 13, 1973), P-A 061-25/1, 9.

20. Hertle, ‟Von Aktiven,” 2–3; Hengesbach, Ungehorsam, 42–43; Annemarie Sacherer, ‟Panik erfaßte unsere Herzen,” in Wyhl, 96; Roderich Reifenrath, “Immer diese Demos,” Frankfurter Rundschau (March 6, 1981), P-A Presse 102-18/24, #9; Joachim Wagner, ‟Die Polizei und der zivilen Ungehorsam,” Die Zeit 37 (February 6, 1981) http://www.zeit.de/1981/07/die-polizei-und-der-zivile-ungehorsam (June 13, 2012); for general clauses, see Rüthers, Bernd, Die unbegrenzte Auslegung (Tübingen: J.C.B. Mohr, 1968), passim; BUU, Brokdorf, 116; Die Redaktion, ‟Die verlogene Moral von Heuchlern…,” Atom Express 24, May 1981; and Günter Frankenberg, “Ziviler Ungehorsam und rechtsstaatliche Demokratie,” Juristenzeitung 39:6 (March 16, 1984), 271.

21. Paul Wilhelm Wenger, “Sind wir noch ein Rechtsstaat?” Rheinischer Merkur (March 6, 1981), P-A Presse, 102-18/24, #9.

22. For anxiety about attacks on constitutional democracy, see the essays in Weg in die Gewalt ; Althammer, Walter, ‟Der Rechtsstaat ist nicht wehrlos,” in Gegen den Terror. Texte/Dokumente, (Stuttgart: Bonn Aktuell, 1978), 7–21; compare also Hanshew, Terror and Democracy, 2–5, passim.

23. “Ein Problem der politischen Willensbildung,” Evangelischer Pressedienst 224 (November 18, 1976), 7, AsD, Nachlass Matthöfer #0149; Benda, Ernst, ‟Frieden und Verfassung,” Archiv für öffentliches Recht 109:1 (1984), 11; Jürgen Schmude, “Moral, Menschenrechte, Widerstandsrecht und die politischen Grundentscheidungen der Gegenwart,” in Widerstandsrecht, 65, 67–68, 72; compare Koonz, Claudia, The Nazi Conscience (Cambridge, MA: Belknap Press of Harvard University Press, 2003); ‟Berliner Erklärung 1984,” Union in Deutschland (January 19, 1984); and Grimm, “Reformalisierung,” passim.

24. Isensee, Josef, “Widerstand gegen den technischen Fortschritt. Rückbesinnung auf das Selbstverständliche des demokratischen Verfassungsstaates,” Die öffentliche Verwaltung 36:14 (July 1983): 571–72; Dönhoff, ‟Rechtsstaat in Gefahr?”; Scholz, Rupert, ‟Rechtsfrieden im Rechtsstaat,” Neue Juristischen Wochenschrift 36:14 (1983): 705; ‟Berliner Erklärung 1984,” Union in Deutschland (January 19, 1984), 4; “Diskussionsbeitrag zum Kolloquium der DGFK über Zivilen Ungehorsam von Prof. Dr. Theodor Ebert, Freie Universität Berlin,” Gewaltfreie Aktion 41/42 (1979): 31; compare Karpen, “‘Ziviler Ungehorsam,’” 257.

25. Ebert, Theodor, ‟Bürgerinitiativen und gewaltfreie Konfliktaustragung,” Gewaltfreie Aktion 26/27 (1975/76): 11; ‟Gorleben im Herbst,” Archiv Aktiv Hamburg, Gorleben, Bundesweite Zusammenarbeit von gewaltfreien Aktionsgruppe, 1976-; Sternstein, Wolfgang, ‟Blockade in Brokdorf,” Gewaltfreie Aktion 47/48 (1981): 50–51; Elisabeth, ‟Die Geige ist wichtig,” Graswurzel Revolution 54/5 (1981): 29; compare Guggenberger, Bernd, Bürgerinitiativen in der Parteidemokratie (Stuttgart: W. Kohlhammer Verlag, 1980), 65.

26. For quotation: ‟Für und Wider die Gewaltfreiheit,” Graswurzel Revolution 50 (October/November 1980): 22; Karpen, “‘Ziviler Ungehorsam,’” 254; Dryzek, Green States, 111–17, passim; Papadakis, Elim, The Green Movement in West Germany (New York: St. Martin's Press, 1984), 177–78; Scharf, Thomas, The German Greens: Challenging the Consensus (Oxford: Berg, 1994), 102–4; and Zeuner, Bodo, “Die Partei der Grünen. Zwischen Bewegung und Staat,” in Die Bundesrepublik in den achtziger Jahren. Innenpolitik Politische Kultur Aussenpolitik, ed. Süss, Werner (Opladen: Leske + Budrich, 1991), 64–65.

27. Hughes, Michael L., “Civil Disobedience in Transnational Perspective. American and West German Anti-Nuclear-Power Protesters, 1975–1982,” Historical Social Research 39:1 (2014): 236–53

28. Scholz, “Rechtsfrieden im Rechtsstaat,” 706; Dr. Helmut Kohl, ‟Verlauf der ungenehmigten Demonstration”; Jürgen C. Jagla, ‟Das Verbot von Brokdorf,” Bonner Rundschau (February 24, 1981), PA Presse, 102-18/24, 8.

29. ‟Nicht nur Streik,” Die Zeit, 12 (March 18, 1977) http://www.zeit.de/1977/12/nicht-nur-streik (June 11, 2012); “Nachgefragt,” Augsburger Allgemeine, February 26, 1981, PA Presse, 102-18/24, 8; and Heinz L. Steuber, ‟‘Eine Art Notwehr gegen geballte Macht,’” Stuttgarter Zeitung 27.2.81, PA Presse, 102–18/24, 8.

30. “Nicht die Polizei ist der Gegner der Bürgerinitiativen,” Frankfurter Rundschau June 16, 1980, PA Presse, 102-18/24, 7; ‟Kein Angst vor Prozessen” (1982), Archiv Aktiv Hamburg, Gorleben. Bundesweite Zusammenarbeit von gewaltfreien Aktionsgruppen, 1976-; ‟Wir werden das Dorf freiwillig räumen, wenn …,” Atom Express, 20, June 1980, 22; Wolfgang Hain, ‟Prozesse gegen ‘Notschrei der Landwirte,’” Graswurzel Revolution 45 (December 1979/January 1980): 16; Wolfgang Huber, ‟Die Grenzen des Staates und die Pflicht zum Ungehorsam,” in Ziviler Ungehorsam, 109–10, 117, 119, 123; Roderich Reifenrath, ‟Immer diese Demos,” Frankfurter Rundschau (March 6, 1961), PA Presse 102-18/24, 9.

31. Maria Braig, ‟Überzeugungstäter,” Graswurzel Revolution 70 (December 1982): 34.

32. Johann Georg Reissmüller, “Wie viele Feldschlachten noch?” Frankfurter Allgemeine Zeitung (March 2, 1981), ACD, Abteilung Pressedokumentation, Themen vom A-Z Demonstrationen vom 22.2.1981 bis 31.8.1981; Isensee, Josef, ‟Ziviler Ungehorsam. Zur Problematik des Widerstandsrechts in der Demokratie,” Trierer Beiträge 19 (1988): 58; Karpen, “Ziviler Ungehorsam,” 259; Besetzung von St. Petri, 28, 32; ‟Wie wollen wir uns organisieren,” Radikal May 80, Papiertiger Archiv, Berlin, Gorleben, Wendland, -1982; and Guggenberger, Bernd, Bürgerinitiativen in der Parteiendemokratie. Von der Ökologiebewegung zur Umweltpartei (Stuttgart: W. Kohlhammer Verlag, 1980), 64.