Historical Background

The History and Background of the "Ban from Civil Service by Government Ruling" (Berufsverbot)

In order to understand the significance of the current resurrection of Vetting for 'Political Loyalty' it is useful to consider the decree of the minister-presidents of the German states (Länder) of January 28, 1972 in its historical context. It is part of an uninterrupted German tradition in which the state repressed all democratic and socially progressive initiatives.

At the time of the American and French revolutions, Germany was a patchwork of principalities under absolutist rule with a bureaucracy loyal only to the ruler. During the reign of Frederick the Great a supposedly independent civil service was introduced, which nevertheless was expected to be especially loyal and subservient to its ruler. After the defeat of Prussia by Napoleon, a strict caste system of professional civil servants was developed – a system not quite eradicated by the Allies after WWII – the career bureaucrats enjoying aristocratic (pre-democratic) perquisites, among others life long tenure. This powerful bureaucracy represented state rights not individual civil and political rights. Individual rights were granted at the will and behest of the state rather than inherent in persons as citizens, who in effect enjoyed liberties as long as they remained obedient and subservient citizens. The all-powerful bureaucracy was thus caught up in the tension between the autocratic state tradition and the democratic striving of the emerging bourgeoisie, political repression was prevalent and tolerance of progressive or deviant political opinions, negligible.

Nineteenth-century highlights of this anti-democratic tradition were: the "Carlsbad Decrees" of 1819 resulting in the persecution and removal of "subversive elements" in the universities and limits on freedom of the press; in 1837 several professors at the University of Göttingen were dismissed because they criticized violations of the Hannover constitution; persecution of democratically inclined civil servants after the failed bourgeois revolution of 1848/49; legal proceedings against communists in Cologne in 1852; all culminating in the law of October 19, 1878 "against the endeavors of the Social Democrats, which endanger the public safety". The "Socialist Law" was directed not only against progressive elements in public (state) service but affected ordinary workers and all socialist organizations, newspapers and labor unions as well. The bureaucracy was particularly stringent in its application of the law to and in its surveillance of teachers. Although the "Socialist Law" was not renewed after 1890, the anti-socialist policy in the civil service was strengthened through decisions of the very reactionary appellate courts, which removed SPD members from the university faculties in Prussia and from all local offices in Bavaria. During the Weimar Republic a law passed in 1922 requiring civil servants to uphold the Weimar constitution was applied almost exclusively against socialists and communists und right-wing terrorist attacks remained unpunished.

Almost immediately after taking power in January 1933, the Nazis passed the law of April 7, 1933 to "Re-establish the Professional Civil Service". This act, which gave the government the power to dismiss anyone from public office who was a member of a Marxist, communist or social democratic party or organization or was active in or should in the future, be active in their spirit, was amended and tightened in 1937: "A Civil Servant is required to uphold the National Socialist State unreservedly and at all times." After the military defeat of the Nazis, the Allies attempted to suppress and reform the severely incriminated career bureaucrats by introducing uniform employment laws, covering all workers and employees, including public servants. They were unsuccessful; professional civil servants continued, under the new "Basic Law", to enjoy - if in a somewhat modified form - pre-democratic perquisites, among others life long tenure. Indeed, the continuity of this anti-democratic tradition is most blatantly evident in the formulation of the current federal and state laws (Laws Governing Civil Service of 1953), which are almost word-for-word identical with the Nazi law: "Only such persons may be appointed to Civil Service positions, who can provide a guarantee that they uphold the 'free and democratic basic order' in the spirit of the Basic Law."

The lessons of Germany's recent history, namely the demand, after 1945, for a democratic land reform (re-distribution) and the break up of cartels as the basis for the establishment of a democratic state, was increasingly interpreted as "unconstitutional", although the Basic Law had provisions (articles 14 and 15) for the nationalization of the land and industry. In the 1950s and '60s Germany remilitarized and became hysterically anti-communist as a result of the 'Cold War' and its economic dependence on the USA. As the government ceased prosecuting former Nazi officials and incriminated doctors, lawyers, judges and police and military officers were re-integrated into official positions, a dramatic witch-hunt and defamation campaign was - once again and in a long and continuous historical tradition - opened against deviant and progressive political opinions.

The so-called "Edict against Radicals", which is the basis for the "Bans from Civil Service" was enacted in 1972 in order to keep politically active people out of the civil service and to intimidate like-minded persons. After loyalty checks on over 3 million persons, there were all in all there were 11,000 official "Ban" proceedings, which resulted in the rejection of 1,250 applicants (for civil service positions), some of which proceedings took over 20 years. After 1979 this instrument of repression has been only partially or sporadically applied. In spite of that, it is still embedded in the laws of many German States, for example in the "Civil Service Law of Baden-Württemberg".

This form of political intimidation is unique in Europe and has been condemned by many international civil liberties organizations as a clear violation of human rights. In 1995 the European Court of Human Rights decided accordingly in the case of an high school (Gymnasium) teacher affected by the "Ban". This decision established the precedent that the practice of "Banning from Civil Service by Government Ruling" in Germany was in violation of the Freedoms of Conscience and Assembly, which freedoms are guaranteed as Basic Rights in Articles 10 and 11 of the European Convention on Human rights.

For a complete survey of the origins and history of the 'Berufsverbote' through the 1980's, see Gerard Braunthal, "Political Loyalty and Public Service in West Germany," University of Massachusetts Press, 1990.