Commons and Constitution: historical and legal roots of the German socialization movement

It was a political earthquake when, in 2021, the initiative Deutsche Wohnen & Co Enteignen convinced a majority of the Berlin electorate in a referendum to transfer the holdings of large real estate companies into public ownership. Socialization and common property — demands from the history of the labor movement — were reborn into the present. But the movement did not take them from Marxist texts or a labor tradition; the source of inspiration was the German Constitution, the Basic Law of 1949.

Common property as a debate

The codification of "Gemeingut” (common property) and “Gemeinwirtschaft” (common economy or common enterprise) in the West German Constitution was a concession to past struggles of the workers’ movement. Its Article 15 stated: “Land, natural resources and means of production may, for the purpose of socialization, be transferred to public ownership (Gemeingut) or other forms of public enterprise (Gemeinwirtschaft).” Although such transfer never happened, the concept of “Gemeinwirtschaft” remained a point of reference for West German trade unions and social democracy. Trade unions owned non-profit enterprises in the sectors of housing, insurance and even a bank until the mid-1980s.

It was a success of Deutsche Wohnen & Co Enteignen to unearth all three concepts of Gemeingut, Gemeinwirtschaft and Socialization and re-introduce them into public debate. However, no real estate has been socialized thus far, and even economic research in Germany refuses to take a closer look into concepts such as commons. To this day, there is not a single professorship in Germany dedicated to commons, or Gemeinwirtschaft. The new socialization movement in the area of housing and its offshoots in the sectors of health and energy have not yet penetrated institutions. Social protests even before the Berlin referendum were able to achieve remunicipalization of water or energy supply in some German cities. But municipal utility providers do not add up to an economy of commons. Today, there is less public ownership in Germany than there was during Helmut Kohl’s chancellorship in the 1980s.

From practice to legal norm — and back again

The country’s debate on common property is not coherent: buzzwords such as land reform, solidarity economy and commons are linked by a critique of private property. However, a common political denominator and a historical narrative are missing. So far, this has hardly been necessary; the pragmatic relationship to history was rather liberating for the German socialization movement of recent years. Unlike anarchism or Marxism, it does not refer to historical ‘classics’ of the 19th century, whose validity must be proven for the present. And unlike Trotskyism or syndicalism, it does not follow historical concepts of social organization that are seamlessly transferred to the present.

The current socialization movement in Germany refers instead to Article 15 of the German Constitution, which permits the transfer of property into common ownership “for the purpose of socialization.” The legal reference has the advantage that claims might be derived from it. With a combination of Article 15 and the public referendum that most German states allow as a means of direct democracy, Deutsche Wohnen & Co Enteignen achieved a leverage effect that eclipsed the influence of academic or political debates on commons and common property. However, with its concentration on Article 15, the movement only took up a section of the long history of common property. That might be limiting on the long run.

When discussing how common property found its way into the German constitution, I would suggest a typology of five manifestations of common property: In the beginning, before capitalism, so to speak, there was common property as a social practice of communal land use – not only in Europe. With the destruction of the original commons, both a political program and a social utopia emerged. 500 years ago, the rebels of the German Peasants’ War of 1524 demanded the restoration of agrarian commons. In the same era, European colonialism was met with various forms of resistance, many of them defending communal use of land. Only with the defeat of such movements did the idea of an economy of commons become utopian. In the course of industrialization, utopia was pushed aside, and Marxism derived a historical critique of capitalism from traditional practice. If capitalism had a ‘before,’ then there would also be an ‘after.’ The socialist workers’ movement of the 19th century finally elevated common property to the status of a legal norm, which was enshrined in the Weimar Constitution in 1919 and in the Basic Law in 1949. However, the price of juridification was that the article was never realized. The present socialization movement in Germany wants to put the legal norm into practice. Common property as a utopia does not play a role for the new movement, but the details of the legal concepts enshrined in 1919 and 1949 do.

Common property and the public sector in West Germany

Several rulings of the Supreme Court of West Germany during the 1950s made clear that the market economy is not enshrined in the Constitution. Lawmakers have the freedom to transfer whole sectors out of the market into a Gemeinwirtschaft. It is important to say that the German legal term is not limited to state property. The term alludes, rather, to other forms, such as municipal or cooperative ownership. In West Germany, there was never a parliamentary majority for socialization. Nevertheless, regulations on public ownership of housing allowed a public housing sector to thrive in the Federal Republic – only in 1990 these regulations were abolished.

Article 15, however, was never forgotten. To this day, the metal workers union IG Metall strives in its statutes to transfer key industries into public ownership. A final attempt to realize this was made during the steel crisis of the 1980s, when employees wanted to prevent their jobs being lost by socializing the West German steel industry. At the same time, the West German environmental movement took up Article 15: In 1986, a referendum campaign against nuclear power plants was formed in the state of North Rhine-Westphalia. The citizens’ initiative, supported by the young Green Party, wanted to activate Article 15 by means of a referendum in order to socialize and then shut down the state’s nuclear facilities. It never came to a vote, however. The state government considered the request to be inadmissible, as nuclear law is federal law. The Constitutional Court of North Rhine-Westphalia confirmed this view in 1987.

The 1980s saw not only new beginnings, but, ultimately, the final crisis of the public sector in West Germany. Following a corruption scandal in the trade union-owned housing company “Neue Heimat” in 1982, the trade union confederation Deutscher Gewerkschaftsbund privatized its own companies. This made it easier for the newly elected, conservative government of Helmut Kohl to abolish the public housing sector—taking effect on December 31st, 1989—followed a year later by the liquidation of East German people’s property. Privatization instead of socialization shaped the Berlin Republic that was born of the German Reunification.

Sine Germany decided against a new Constitution in 1990, Gemeingut, Gemeinwirtschaft and Socialization continued to exist as legal norms, but hardly as a practice and no longer as a political program. In the late forties, even the German Christian Democrats embraced “Gemeinwirtschaft,” but this reference had faded in the 1950s. By the end of the 1980s, also trade unions, social democracy and the large cooperatives dropped references to the concept of a common economy.

What constitutes socialization as a legal norm?

Only in 2018 did the initiative Deutsche Wohnen & Co Enteignen, a coalition built from various Berlin tenant groups, take up the almost-forgotten legal norms again. The initiative did not use common property as a utopia or religious idea like the peasant rebels of the 16th century, and initially not even as a political program like the labor movement of the 19th century. The emerging, modern socialization movement was interested in a legal claim that could be used to curb the power of landlords. The same pragmatic approach can be found in other campaigns of the more recent socialization movement—from the Hamburg Enteignet (“Hamburg expropriates”) initiative, which is seeking a similar referendum for the Hanseatic city, to the campaign RWE Enteignen (“Expropriating the private energy provider RWE”), which wants to extend socialization to the energy sector. In addition, there are demands for the socialization of clinics and healthcare facilities in Germany. With their strong reference to the law, these movements are not entirely free in their reinvention of common property. They interpret concepts that were laid down in the Weimar Constititon of 1919 and the Basic Law of 1949. But what constitutes socialization as a legal norm in these Constitutions? There are five characteristics.

Firstly, the form of the law itself: Socialization is to be enacted by a law. This points to its reformism as a second characteristic. Socialization under Article 15 is not a revolutionary process. One could even argue the opposite: In 1919, the new Weimar Constitution ended the German Revolution by transferring the demand of socialization from the legal vacuum after the fall of the Kaiser into orderly and hitherto inconsequential constitutional articles. Through its reformism, socialization was, thirdly, also politically marked as a social democratic and not a communist path. Some Christian Democrats joined this path when the constitutional compromise was updated, between 1948 and 1949. German Communists were also represented by two delegates in the Parliamentary Council of the Western zones that drafted the Basic Law, but they rejected the West German Constitution in the final vote on the grounds that it furthered the division of Germany. The Article 15 on socialization was thus, fourthly, a West German tradition. It was extended to Berlin and East Germany on October 3, 1990, when the Basic Law came into effect in the former GDR. Deutsche Wohnen & Co Enteignen achieved great popularity in West and East Berlin with a concept of common property that differed from the centrally administered economy of East Germany. Democratic administration was the fifth characteristic that distinguished socialization from nationalization or state socialism.

Deutsche Wohnen & Co Enteignen referred to this long history of Article 15 in order to utilize its potential for the present. It was no coincidence that its founding resolution in 2018 referred to the “genesis” of Article 15. In speeches to Social Democrats and in side blows to Christian Democrats, the initiative made reference to the advocacy of both parties for the public sector in the formative phase of the Basic Law. Even if a renaissance of the Gemeinwirtschaft in German social democracy is not to be expected, the framing was successful: socialization could not be labeled ‘extremist.’ Instead, the reference to the Constitution allowed a reinterpretation of the Basic Law as an unfinished social contract. When the first debates on the referendum in 2019 led to the realization that the Soziale Marktwirtschaft — a much-revered term for a social market economy that does not enjoy constitutional status, while socialization does—the Berlin socialization movement had achieved its first success.

A genuine renaissance of the public sector?

Its success so far has opened up thinking, but has not socialized housing. The referendum of 2021 was not enacted because it was legally a non-binding referendum, and amounted to an appeal to lawmakers. In addition, there was a gap between referendum and election results: The referendum got a majority of the electorate, but the Berlin state parliament was dominated by opponents of socialization. This was due to the fact that a majority of social democratic and green voters supported the referendum, but their candidates did not. In addition to this gap between direct and representative democracy, there are hardly any institutions exerting pressure for implementation of the referendum. All business associations reject socialization, and even many housing cooperatives have fought against it in the past; many of them see themselves as regular enterprises in a free market and oppose any regulation.

At the moment, the initiative is preparing a second referendum, drafting a socialization law that would be binding. The initiative achieved significant public polarization against the strong lobby associations of business and industry in 2021. However, for their coming efforts, the initiative can only rely on a crisis-ridden Left Party, the Berlin Tenants’ Association and parts of the trade unions behind it as institutional partners. Discussions with environmentalist organizations and NGO´s from the social and healthcare sector have been positive, but socialization has, so far, played a subordinate role in their day-to-day politics. The referendum was primarily backed by organizations representing the interests of employees. The service workers’ union ver.di was and is a particularly close ally, but not all trade unions joined the effort. There can, therefore, be no talk of a genuine renaissance of the common economy among trade unions; the concept plays no role in their daily struggles. Today, common property (still) lacks the class-based anchoring that it had in the classical labor movement. However, this is what is needed to turn legal norms into realities.

Ralf Hoffrogge is a Berlin-based historian active in the initiative Deutsche Wohnen & Co enteignen. His research focuses on labor history, social movements and industrial democracy.

This blog article is based on a longer German-language article from the journal „Arbeit-Bewegung-Geschichte“, see here.