Germany’s Authoritarian Liberals Have Gone Berserk

Remember when you, a conservative-leaning, patriotic European, were ridiculed and laughed at for fearing that the game was being rigged, that the Left was coming after you, and that the days in which political institutions at least tried to simulate ideological neutrality were gone? Remember being portrayed by the press as a tin foil hat-wearing simpleton for fearing that Chat Control wasn’t actually—or, at least, not primarily—about destroying the horror of child sexual abuse, but, rather, about social, ideological, and therefore political control? Do you recall being painted as a silly conspiracy theorist for doubting that Marine Le Pen’s judicial prohibition from running for the presidency was really just the impartial courts doing their work? Well, the crumbling German government is tired of keeping up appearances: if it has its way, as in all likelihood it will, right-wing critics of the establishment will soon find it difficult to buy a house or any other form of real estate, for that matter. This will be done, they say, in the name of liberty and democracy.

Earlier this April, Germany’s Minister for Housing, Urban Development and Building Verena Hubertz presented a new “Bill on the Modernisation of Urban Planning and Regional Planning Legislation.” The legislation, naturally, makes no fuss about its eerier, more sinister contents. It is not overtly discriminatory. Institutionalised ideological discrimination, however, is exactly what it establishes. Carefully hidden under hundreds of pages of tedious legalese is a right, given to the country’s municipal authorities, of preferential acquisition of property in the process of being bought by what are essentially new ‘enemies of the people.’ If a citizen is deemed likely to “support such activities” as those “directed against the free democratic basic order,” the municipality will now be able to exert a right to buy the property for itself. By citizens engaging in subversive acts against the “democratic basic order”, naturally, Mrs. Hubertz—a Social Democrat—means supporters of Alternative für Deutschland, the patriotic, pro-sovereignty, and anti-immigration party that is now the leader of the opposition.

The Bolsheviks of the past would have looked with admiration to the originality of the new Chekists. Indeed, the new legislation is a hymn to state arbitrariness. It makes a laughingstock of the rule of law. It doesn’t just create a de facto apartheid of the mind, where full, unrestricted citizenship is recognised only to those who think the right things, with everyone else being the subject of a different law. What this remarkable new view of the law reminds us of is the concept of Feindstrafrecht, or Enemy Criminal Law. Developed in 1985 by the eminent German jurist Günther Jakobs, Feindstrafrecht argues that some categories of anti-social individuals—that is, persons deemed as enemies of the state or society—should not enjoy the constitutional and penal guarantees enjoyed by everyone else. Instead of deploying Jakobs’ concept against genuine enemies of Germany—dangerous criminals, terrorists, and the like—the government now wishes to weaponise it against the political opposition. That they are now doing it so openly is remarkable and highly concerning—they are, indeed, crossing a Rubicon. 

What is even more stunning is how loosely and arbitrarily this deeply unjust legal weapon is to be used. If the iniquitous legislation is passed by the Bundestag, it will enable local governments to use the new powers without judicial condemnation. All it would take is for a municipality to ask Germany’s domestic intelligence service, the Verfassungsschutz, or the Federal Office for the Protection of the Constitution, if a citizen is understood to be engaged in such “activities.” 

Worse still, these are explicitly specified not to have to be illegal: 

Anti-constitutional activities are characterised by active, though not necessarily militant, aggressive or illegal, measures aimed at achieving their objectives. They must be objectively capable of having political consequences in the short or long term.

Essentially, thus, perfectly legal acts of political opposition to the establishment can lead an individual to suffer real, painful measures of state coercion. If the reader is a committed, enthusiastic supporter of the German establishment and regards such tactics justified, he might take a moment to consider how he would react if this wasn’t being discussed in Merz’s Germany, but, say, in Putin’s Russia. Would he agree to such instruments then?

In their terror at the unstoppable rise of the AfD, Germany’s old parties are breaking every rule, written or unwritten, of common sense and democratic coexistence. But, as Talleyrand once said of Napoleon’s kidnapping and killing of the poor Duke of Enghien, Berlin’s anti-democratic campaign is worse than a crime—it is a mistake.