Permanent border controls are illegal under Schengen rules, which govern much of Europe. The system allows for temporary “exceptions” if countries justify them as a last resort. In practice, the European Commission has normalised granting these exemptions, and since they are time-limited, officials can insist Schengen is intact even as it is hollowed out.
Germany is among ten Schengen states maintaining such controls. Given its size, geography, and history with checkpoints, the EU’s largest member inflicts greater damage than most to one of the bloc’s defining principles. German leaders, however, appear not only unbothered but openly celebratory. The ruling Christian Democrats recently declared the “introduction of permanent border controls” as a triumph of “law and order.”
The contradiction is striking. If Schengen is the law, “permanent” controls cannot enforce it; they undermine it. These quasi-legal manoeuvres erode the very notion of rule of law. What is framed as temporary starts to look permanent, turning the exception into the norm.
A dangerous precedent
History shows how easily “states of exception” can corrode democratic systems. Carl Schmitt, the jurist who lent legal cover to the Nazis, argued that sovereignty lay precisely in the power to declare an exception. The Weimar constitution was rarely overthrown outright; it was suspended, redefined, or circumvented. This logic, that legality can be manipulated at will, echoes in today’s Europe.
Liberal democracies have long relied on exceptions: fiscal rules waived for military spending, or emergency powers expanded during crises. Schengen is now another example of how a framework supposedly universal becomes conditional and contingent.
Germany’s Staatsräson
The most far-reaching exception concerns Germany’s relationship with Israel. Branded Staatsräson, or “reason of state,” it is invoked to justify support for Israel regardless of legality or morality. Germany’s own Federal Agency for Civic Education describes Staatsräson as an absolutist principle that overrides democratic norms in the name of preserving state power.
Since Angela Merkel declared Israel’s security part of Germany’s Staatsräson in 2008, the principle has been used to legitimise restrictions on free expression, bans on cultural events, and police crackdowns on dissent. Court challenges sometimes reverse these measures, but the damage is already done — to individuals, to public trust, and to democratic institutions.
This dynamic also shapes the European Union. Germany, while invoking historical responsibility, has become a leading obstacle to EU action against Israel. In practice, its Staatsräson places it alongside states like Hungary when it comes to blocking consensus on foreign policy.
The risk of normalising exceptions
By treating the exception as routine, Germany is setting a precedent that corrodes both European and domestic law. Border controls framed as “temporary” but extended indefinitely weaken Schengen. Staatsräson, invoked as a moral duty, entrenches authoritarian tendencies at home and paralyses Europe abroad.
History suggests that once exceptions become the rule, law itself becomes optional. What is presented as order is in fact its unraveling.