REMEMBRANCE IN TIME - Index of

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2.1. Basic concept of the GDR
Remembrance in Time
The theoretical foundation of the legal system of the German Democratic Republic is
the Marxism-Leninism. [4] Its doctrine of the socialistic concept of law interpreted the
law as „an instrument for the realization of the policy of the Marxist-Leninist party,
which is not besides and least of all above politics. Thus in this concept politics took
precedence over the law. [5] In the Marxism-Leninism concept of a state, the law was
merely of instrumental nature, while the leadership role was with the party. This
interpretation of law was affirmed in the context of the Babelsberg-conference in 1958,
which took place to clarify the meaning of fundamental legal principles in the German
Democratic Republic. [6]
Insofar the focus lay on the system which constituted the surrounding of the people.
This is also reflected in the view of the design of human rights. The concept of
“inalienable and inevitable human rights” was alien to the concept of law of the German
Democratic Republic. Law was not derived from the people, but rather from the
respective necessities of the state, which already arose from article 19 of the Constitution.
According to this article the fundamental rights catalogue did not rely on human rights
being predetermined laws to the state, but merely guaranteed the people socialistic
legality and legal certainty.
After initial denial the idea of basic rights as subjective rights prevailed even in the
legal theory of the Marxism- Leninism. Notwithstanding no concrete claims of the citizen
against the state could be derived from them. The Reason which was consulted for that
was the “Dogma of the harmony of interests” [7] after which the main objectives of the
society, the objectives of the state and the objectives of law are correspondent to the main
interests and objectives of the each individual. [8] The western understanding of
fundamental rights as defense rights against the state was totally alien to the Marxism-
Leninism. Even though corresponding to article 2 II of the Constitution the human being
represented the center of the socialistic society, the fundamental rights should not be an
instrument to broaden ones single freedoms within state and society but rather to
demonstrate the prosperity of social relations and clarify the role or the individual as
social being.
2.2. Basic concept of the FRG
In contrast the Grundgesetz, based on the classic western concept of human rights, tried
to influence the system thru the people by putting emphasis on the people. This already
derived out of article 1 by which human dignity was proclaimed indefeasible. Human
rights were according to that “the basis of each human community, peace and justice in
the world.” Paragraph 2 of the article supplemented the legal commitment of the basic
rights – particularly with regard to the state.
Nevertheless the importance of this article for the state and its concept of law arose not
only reflected by its central position at the beginning of the Grundgesetz but also by the
special safeguard of the unchangeable fundamental principle (Ewigkeitsklausel) of article
79 paragraph 3 GG, by which was secured that article 1 and its inherent could in general
not be changed by Constitutional amendment. [9]