The unconditional surrender of Germany and Allied assumption of full sovereign power raised the question of whether Germany had ceased to exist as a state. According to the old international concept of debellatio or subjugation, total defeat and the disintegration of all indigenous political institutions entitled the victor to assume full sovereignty and to annex the defeated nation. Although the Allied powers explicitly disavowed any intent to annex Germany, they acted in other respects as if the doctrine of subjugation was applicable. They recognised no principled limit on their authority, not even Hague Regulations governing the law of occupation, for those Regulations enjoined respect for existing laws, and the Allies obviously did not intend to respect the laws of the Third Reich. They assigned some parts of German territory to other states and eventually established two separate states on the bulk of German territory. It is not surprising that most German legal and political theorists reacted to this situation by asserting the continuity of a German state in the hope that this might give them some leverage vis-à-vis the occupying powers. After the effective division of Germany, it served as part of the basis for the desire for reunification.

Occupation, revelations about the crimes of the Third Reich, and division also inevitably raised questions about the nature of German identity. Reservations about the supposed deficient national self-consciousness of Germans surfaced in opinion polls. The politician Ernst Reuter asked: ‘Have we Germans really been a true nation?’