Who Governs in Deep Crises?

The Case of Germany

Wolfgang Merkel

Abstract: The Berlin Republic of today is neither Weimar (1918–1932) nor

Bonn (1949–1990). It is by all standards the best democracy ever on Ger-
man soil. Nevertheless, during the COVID-19 crisis there was a shift from
democracy as a mode of governance to what the controversial legal theorist
Carl Schmitt (1922) affirmingly described as a “state of exception”; a state
that is desired and approved by the people (through opinion polls). It was
the hour of the executive. The parliament disempowered itself. There was
very little, if any, contestation or deliberation during the first eight weeks of
the COVID-19 crisis. This article reflects on the implications of this mode of
governance on institutions and actors of democracy in Germany, and offers a
way of assessing the wellbeing of democracies in times of deep crisis.
Keywords: authoritarian personality, Coronavirus, COVID, critical citizen,
crisis of democracy, democratic sovereignty, state of exception

As of the beginning of May 2020, Germany seems to be emerging from

the COVID-19 crisis in a healthier state than most of its neighboring states
or even Western countries in general. It should be noted, however, that
cross-national statistics are not very reliable. Some have branded the
COVID-19 a once-in-a-century pandemic; John P. A. Joannides (2020), a
world famous professor of medicine, epidemiology, and biomedical data
science, spoke of “a once-in-a-century evidence fiasco.” Even if one sub-
scribes to Joannides’ critique, it becomes clear by the most basic data,
i.e., the number of deaths, that Germany is far removed from the pub-
lic health catastrophes in the UK, US, Spain, or Italy. Nonetheless, it is
unclear whether this is due to coincidence, luck, careful data sampling,
and/or smart strategic action by the federal and state governments.1 This
question will only be answerable once we have more reliable data on
the places of origin, hotspots, and infection routes in this country. What
can be clearly stated at this point, however, is how the COVID-19 crisis
affected democracy in this country. More specifically, how democratic
the executive actions in Germany have really been and what negative
impacts the mode of governing the COVID-19 crisis has had—and will

Democratic Theory Volume 7, Issue 2, Winter 2020: 1–11

doi: 10.3167/dt.2020.070202 ISSN 2332-8894 (Print), ISSN 2332-8908 (Online)
have—on democracy, economy, and society. What is needed is a multi-
sectoral set of indicators to be able to measure the overall performances
of the governments cross-nationally. This article will focus on the impact
of COVID-19 on democracy in Germany.

The History of the State of Exception in Germany’s Basic Law

When the Basic Law was ratified by the Parliamentary Council in May
1949, it did not contain any provisions on the state of emergency. This
was a result of the abuses of Article 48, Paragraph 2 of the Weimar Con-
stitution as well as the veto of the Allies after 1945. Article 48, Paragraph
2 granted the Reich President of the Weimar Republic (1918–1933) the
authority to enact “law-substituting emergency decrees.” Under Reich
President Hindenburg (1925–1934), these emergency decrees led to the
infamous presidential cabinets, the break with parliamentarism, and the
“transfer of power” (Lepsius 1978) to Adolf Hitler. The point here is not
to construct false analogies. The Berlin Republic of 2020 is certainly not
like the Weimar one of 1932. Berlin is neither Weimar nor Bonn (1949–
1990). Yet the finely balanced horizontal (legislative, executive, judicial)
and vertical (federalism) separation of powers and political linkages in
the Federal Republic of Germany become easier to understand once we
appreciate the constitutional founders’ concern with not giving too much
power to the federal executive. The field of transformation research re-
fers to this distribution of power as the “tyrant complex.”
In the 1950s and 60s, there were recurring debates among constitu-
tionalists on how to integrate emergency laws into the Basic Law. Inter-
estingly, in the protracted parliamentary struggles over the “Emergency
Laws” of 1968, two contrasting positions on constitutional theory were
adopted by the two main parties of the time: the Christian Democratic
Union (CDU) and its Minister of the Interior Gerhard Schröder2 (the name-
sake of the “Schröder draft” of 1956) argued in Schmittian fashion that
the state of emergency is “the hour of the executive.” On the other side,
the legal spokespersons of the Social Democratic Party (SPD), such as the
later Constitutional Court judge Martin Hirsch, maintained in the emer-
gency debate of 1968 that a crisis situation has to be “the hour of the
parliament.”
These two positions on constitutional theory separated the CDU/CSU
(Christian Social Union) from the SPD in the first postwar decades. To
summarize: while the SPD presented itself as the guardian of the parlia-
ment, the Union advocated for the dominant position of the government
during a crisis. Today, this difference has disappeared. CDU/CSU and SPD,

2 Democratic Theory � Winter 2020

governing together in a “grand coalition” since 2013, are hardly exhib-
iting any differences in their understanding of democracy during the
COVID-19 crisis. Crisis management has been and remains, both de facto
and de jure, the hour of the executive. Eva Högl, the deputy leader of the
SPD parliamentary group, has even declared that basic rights have been
“curtailed beyond recognition,” but that this is sadly “necessary”: a prob-
lematic statement for a progressive party. The SPD of 2020 has adopted
the 1950s CDU’s understanding of democracy, with no recognizable dif-
ference left. This is the de-parliamentarized understanding of democracy
by a party that, under the chancellorship of Willy Brandt (1969–1974),
made significant contributions to the democratization of democracy in
the Federal Republic of Germany.

The Self-disempowerment of the Parliament

On March 15, 2020, the Federal Minister of the Interior ordered, contrary
to the EU treaties, the closure of the borders with the five neighboring
countries: Austria, Switzerland, France, Luxembourg, and Denmark. A
day later, the federal government, together with the prime ministers of
the federal states, enacted a far-reaching shutdown of public life. Basic
rights enshrined in the constitution, such as the freedom of assembly,
travel, religion, and exercise of one’s job, were limited or suspended. This
was the deepest of encroachments on the basic rights of the citizens by
the executive since 1949. Initially, all this happened under the auspices of
old legislation on protection against infectious diseases: a rather trivial
law in relation to the basic rights that it sweepingly restricted. The old
infection protection l aw was, however, insufficient for the wide-ranging
authority assumed by the federal government and the state executives.
The government (CDU/CSU and SPD), with the support of the Greens and
the Free Democrats (FDP), fast-tracked the reworked “Law on the pro-
tection of the population in an epidemic situation of a national scale”
through parliament on March 25, 2020. The Left Party (Die Linke) and
the right-wing populist “Alternative for Germany” (AfD) did not object
and, instead, abstained in the vote. The law grants the Ministry of Health
and the government far-reaching powers in case of an epidemic “of a
national scale.” Only at the very last minute was a provision scrapped
allowing the government itself to declare and then administer this state
of emergency. In the modified version, however, a simple majority in par-
liament is sufficient for declaring an emergency. The parliament rushed
to subordinate itself to the government and degrade itself to a secondary
institution in relation to the executive. The parliament simply gave up its

Merkel � Who Governs in Deep Crises? 3

control function vis-à-vis the government: instead of serving as a place for
debate, deliberation, and dispute, the parliament has fallen to the status
of a rubber-stamping institution. In Germany, the state of exception has
become “the hour of the executive.” This poses the more fundamental
democratic question: who is the de facto sovereign and who should the de
jure sovereign be in a democratic system?

Who is the Sovereign?

The temporary suspension of basic rights and the question of whether

the new law is proportionate was not subject to open and controversial
debate in parliament. Although the four parties of the opposition are
a heterogeneous bunch, from the explicitly left-wing Die Linke to the
right-wing AfD as well as the Greens and the (neo-)liberal FDP in between,
there was no controversial discussion during the first six weeks of the
shutdown. There might not be a legal problem with this, but a democracy
without alternative policies—one in which the opposition stops being
a check on the government—means that democratic pluralism is short-
changed. In normal times, this would not be acceptable for a democracy.
Is this harmful for a democratic order based on the rule of law in emer-
gency situations as well? Is the sovereign really the one who decides on
the state of exception as the controversial legal theorist Carl Schmitt put
it in his Political Theology (1922)?
In a democracy, it is not the executive, that is, the government, that
is sovereign, but the people. Through free general elections, the people
as the first-order sovereign transfers its sovereignty to the parliament.
This transfer is temporally limited, typically to one legislative term. In
this manner, the parliament emerges as a temporary, second-order sov-
ereign. In parliamentary democracies, unlike presidential systems, the
parliament then elects the government. It is only here that the executive
as the third-order sovereign comes into play. The parliament, however, is
by no means only there to elect the executive; rather, it is the highest law-
maker. In addition, it is tasked with serving as a check on the executive,
even when the government has a majority in parliament. Moreover, the
parliament as the second-order sovereign is an arena for debate and delib-
eration. In a democracy, therefore, the parliament is the site of delibera-
tion, while the government is the actor of decision. In the COVID-19 crisis,
the parliament has neither been an arena of deliberation nor an effective
control organ vis-à-vis the executive. Up to May 2020, this has been largely
supported by the citizens. Here lies perhaps the biggest dilemma for de-
mocracy: the demos has been interested above all in the government’s

4 Democratic Theory � Winter 2020

output, measured in terms of actions; whether participatory input or
legislative control functions got the short end of the stick becomes a sec-
ondary question at best. The problem here is that this output-centered
constellation could easily serve as a blueprint for the next crises to come.
In the COVID-19 crisis, another actor took the center stage: science,
especially virologists and epidemiologists. Almost unabashedly, science
assumed the role of a fourth-order semi-sovereign. The sovereign is the
one who has the knowledge. Because parliament and government have
little expertise on questions of health and medicine, they are highly de-
pendent on the counsel of medical experts—a significant difference in
the management of the current crisis, and the economic or migration
crises in the EU; the centrality of “evidence-based policymaking,” as the
technocratic political and administration scientists call it. During the
first two months of the COVID-19 crisis, the country has been governed in
emergency mode by the third- and fourth-order sovereigns.

The Compliance of the Demos

The first-order sovereign, that is, the citizens, has not been unsettled by
this co-government by science. On the contrary, the citizens have shown
a great deal of willingness to comply vis-à-vis the government and the
media stars of the virology scene. The reasonable and, so far, success-
ful (measured in terms of the numbers of deaths from COVID-19) policy
decisions of the government have certainly contributed to this. The oft-
shown gruesome pictures from the clinics of Bergamo and the corpse
refrigerator trucks at the back entrances of the hospitals of New York also
did their part. Scenarios in France, Italy, Spain, and New York were to be
avoided in Germany.
There is also a third factor. German epidemiologists’ model-based cal-
culations suggested for worse-case or even normal-case scenarios a bleak
picture. The talk was not of thousands, but of tens of thousands or even
a hundred thousand possible deaths. The overburdening of intensive care
units and the looming threat of triage decisions had to be avoided at all
costs. However correct or faulty the epidemiological projections might be
or might have been, who among the responsible political decision-mak-
ing elites or compliant citizens could take on the responsibility of con-
signing tens of thousands of people to their deaths? This posed a moral
constraint that prevented political discussion on alternative solutions.
The TV images, the epidemiological model calculations, and the
moral constraint evoked by both go a long way in explaining the con-
formism of parliament as well as the self-silencing of the opposition in

Merkel � Who Governs in Deep Crises? 5

both politics and society. From a democratic perspective, this is problem-
atic. In times in which the government has assumed so much power, the
control function of the opposition, the parliament, the judiciary, and the
civil society is more important than in normal times. It is not least the
control of power that distinguishes democracies from autocracies. In the
debates on the 1968 emergency legislation, the Social Democrats stood
up for this parliamentary control function with good arguments. Today,
however, the SPD has adapted to the crisis Zeitgeist. There are no longer
any differences with the CDU/CSU conservatives when it comes to the
understanding of democracy. The humanitarian goal to save lives became
politically moralized and served implicitly and explicitly as a mode to
silence opposition and voicing alternative positions.
The conformity of the media, the intellectuals, and the citizens dur-
ing the crisis has laid bare a phenomenon that has caused much harm
in German history. In the Federal Republic of Germany, that subservient
obedience had almost disappeared for decades. In the COVID-19 crisis,
however, we have experienced the rebirth of the decisive strongman
leader. The democratic paradox of the crisis is the following: the deeper
the encroachments on the basic rights of the citizens and the more se-
vere the contact-ban measures imposed among the citizens, the greater
the consent of those whose basic rights are being taken away and whose
contacts are being banned. Bavaria’s vocal and de facto restrictively gov-
erning premier Markus Söder has turned into a success story of political
leadership. Armin Laschet, the premier of North Rhine Westphalia who
has opted for a looser crisis policy, has failed to make headway in opin-
ion polls. The uncritical acceptance of restrictions on basic rights and
existential economic losses exhibits subtle features of the “authoritarian
personality” as described by Erich Fromm and later Theodor W. Adorno et
al. (1950) for Germany, the US, and beyond. For at least two months, it has
been the demos itself that succumbed to the transformation from sub-
ject to object, from active citizen to dedicated addressee of domineering
executive decisions. Supposed physical security has trumped individual
rights and liberties.
The only democratic opposition party that has come out critically
against the federal government’s abandonment of basic values—namely,
the FDP—has actually been punished for it by the voters according to
opinion polls. The majority of the citizens apparently did not view the
criticism and opposition as legitimate in times of crisis and emergency;
they wanted decisions, not partisan bickering. The decisionism of Carl
Schmitt is, even today, more strongly rooted in German society even in
normal times than the liberalism of freedoms and life chances as advo-
cated by Ralf Dahrendorf (1980).

6 Democratic Theory � Winter 2020

Who Gains? Parties and Party Competition

What does the COVID-19 crisis mean for the German party system? The
opinion polls indicate a clear winner up to this point: the parties of the
Union (CDU/CSU), which are the parties of government par excellence in
Germany. The hour of the executive has struck to their favor. Will this
last once the crisis subsides? Will it help the Union revive its status as a
catch-all party (Volkspartei)? Here, doubts are warranted. The decline of
the catch-all party is a secular development. For the individualized so-
cieties and post-industrial economic structures of the 21st century, the
homogenizing format of a programmatically diffuse party no longer fits
(Merkel 2018: 349). COVID-19 has interrupted the decline of the CDU/CSU
as one of the last catch-all parties of Europe, but it will not alter the path
of ultimately irreversible decline.
This holds all the more for the SPD. The former catch-all party SPD
will not get back to what it once was. This holds for social-democratic
parties in all of Europe. What is nonetheless remarkable is how little
headway the SPD has been able to make in the crisis, even with Finance
Minister Olaf Scholz and Labor and Social Affairs Minister Hubertus Heil
as two calm and convincing personalities in charge of the main portfolios
for absorbing the blow of the crisis and initiating the economic recovery.
The voters are apparently showing a greater appreciation for bans rather
than offers during the crisis. This might change once the phase of acute
crisis is over and deeper distributive conflicts set in, turning the Finance
and Labor and Social Affairs Ministries into central policymaking arenas.
The FDP was already mentioned. The Greens, who like to see them-
selves as the liberals of the 21st century, are currently losing support.
This is arguably less a result of their support for the government than
the fact that their main issue of “climate crisis” has fallen to the bottom
of the political priorities list. The Greens remain a post-materialist party
of high earners who can get by in times of political normalcy without
material crises. After the COVID-19 crisis, climate change will return
to the agenda and the ranks of Green voters and supporters will once
again multiply. Die Linke, on the other hand, has disappeared from the
news. They are nowhere in government outside Berlin and Thuringia.
This leaves the AfD, the right-wing populists. The AfD, too, has seen
its main issue of immigration slip away. This may well change with
the subsiding of the crisis, while another issue will take on added im-
portance for the right-wing populists: the question of Europe. The AfD
will oppose financial “concessions” by Germany to the EU and the main
crisis-hit countries Italy, Spain, and France. The wrong but popular ar-
gument is going to be that our national economic problems in Germany

Merkel � Who Governs in Deep Crises? 7

have to be sorted out first before we subsidize the “unreliable south.” In
the worst-case scenario, the AfD would then emerge as a winner of the
crisis in the medium term.

The Case of Germany in Comparison

Germany is often praised by international observers as a role model for cop-

ing successfully with the COVID-19 crisis. It seems to me too early to pursue
a systematic data-driven comparative analysis. All international data are
heavily biased by different sampling, testing, and reporting. Beyond the
problematic data situation, however, we have theories from the fields of re-
gime, transformation, and state intervention research at our disposal that
provide some criteria and variables for evaluating the efficiency and legit-
imacy of state action (Merkel, Kollmorgen, Wagener 2019). These theories
will be important for the analysis of measures taken against the pandemic.
Here, I would like to name four variables that determine success or failure
to reduce infections and death rates. The four can be classified according
to the three sub-systems state, society, and health: regime type (democratic
vs. autocratic), state capacity (high vs. low), state leadership (smart vs. not
smart), and state learning from previous epidemics (open vs. closed). These
are the four “state variables.” State action, however, depends on the so-
ciety’s willingness to comply. Here, we can roughly distinguish between
individualist and collectivist societies. The third sub-system, namely the
health system, can be subdivided into well-funded public (Germany, Nordic
countries) and underfunded privatized and public (UK, Italy) systems.
As with economic development, there are no prima facie systematic
differences in success between democratic and autocratic systems when
it comes to confronting the pandemic. China (autocratic) appears to be
successful, while the US (democratic) is a disaster; Singapore (authoritar-
ian) is responding efficiently, as is South Korea (democratic). Italy’s and
Spain’s responses to the crisis have failed to prevent high numbers of
victims. Germany and Denmark have managed the crisis well thus far,
albeit with different strategies concerning the lock out. All four countries
are well-functioning democracies.
More important than the type of political regime is the degree of state
capacity. State capacity, state will, state learning, and state action are im-
portant for success. The success of efficient state action is, however, de-
pendent to a considerable extent on the society, which has to comply with
the decisions of the state. The willingness to comply can be produced in
different ways: with high levels of open repression in autocracies, with
good arguments in democracies. Even in developed democracies, however,

8 Democratic Theory � Winter 2020

there are fundamental differences between societies. The individualized
societies of the West are ideal-typically distinct from collectively oriented
Confucian-influenced societies. There, the common good and the good of
the family come before the individual. The societies of Singapore, South
Korea, Taiwan, and Hong Kong follow this pattern. The West is more het-
erogeneous; the more common-good-oriented societies of Scandinavia
exhibit higher levels of social cohesion than the hyper-individualized US.
The higher the social cohesion, the better a country makes it through the
crisis—ceteris paribus. The more the citizens follow their governments by
reason the smaller the negative fallouts for democracy.
The third system, namely that of health provision, also does its part.
A largely public and well-funded system like in Scandinavia and Germany
allows for more comprehensive and egalitarian treatment capacities.
Fewer infected people die and the virus does not discriminate along class
lines. If the health system is strongly privatized and the public compo-
nent woefully under-funded, as is the case in the US, UK, and Italy higher
numbers of infected people die, especially the poor, many of whom are
African-Americans. The health system in a democracy is an indicator for
the humaneness of a society, which the crisis lays bare.
For comparative empirical Political Science research, it is thus possible
to come up with hypothetical ideal-typical socio-political configurations
for how well or poorly a country will fare in the pandemic. Low levels
of state capacity, a fragmented and polarized political decision-making
system, a hyper-individualized society, and an underfunded public health
system come close to the ideal type of failure. The US comes very close to
exhibiting this combination of factors. Germany, on the other hand has a
rather solid state capacity, an effective administration, a functioning wel-
fare state, and rather well financed health system. If we take the number of
infected and dead people, Germany has performed comparatively success-
fully. With all cautiousness, Germany has only one sixth of the death toll
in Italy, Spain, UK, and France, although it has a significantly larger popula-
tion. But in the longer run the balance sheet of the crisis costs must include
other indicators such as the increase of unemployment rate, bankruptcy of
small enterprises, wage losses, the decline of GDP, and a potential increase
of inequality. Moreover, political indicators that measure the quality of de-
mocracy also have to be taken into consideration.

Is Germany’s Democracy at Risk?

The Berlin Republic is not Weimar or Bonn. It is certainly not the

Hungary of Viktor Orbán. Overall, it is the best democracy that there

Merkel � Who Governs in Deep Crises? 9

has ever been on German soil (V-Dem 2020). Nonetheless, we cannot
rule out longer-term habituation effects of temporary authoritarian
rule among the citizens in the near future, given that we cannot rule
out recurring pandemic infection waves or other deep crisis, such as
climate change. Are we then going to see government by emergency
measures yet again? Members of the government have already found
a devastating term for this: “the new normality.” This means that the
safeguarding of public health from pandemics could lead the govern-
ment time and again to suspend basic rights and govern in emergency
mode. And: why not govern the climate crisis in an emergency mode as
well? The critical democratic citizen is in high demand in post-corona
democracies.

Prof. Dr. Wolfgang Merkel is Director Emeritus at the Social Science Research
Centre Berlin (WZB) and Professor Emeritus of Political Science at the Humboldt
University Berlin. He is a member of a number of key bodies, including the pres-
tigious Berlin-Brandenburg Academy of Sciences and Humanities. E-mail: wolf-
gang.merkel@wzb.eu

NoTES
1. Most of the measures concerning the shutdown and health services lay
within the jurisdiction of the Länder. The role of the federal chancellor was
more one of coordinating the prime ministers of the 16 Länder.
2. The CDU Minister Gerhard Schröder is not the same person as the later SPD-
chancellor (1998–2005) of the same name.

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Merkel � Who Governs in Deep Crises? 11