NATIONAL LAW UNIVERSITY

JODHPUR

SUBJECT: COMPARATIVE CONSTITUTIONAL LAW

DEEPEST LAYERS OF GERMAN CONSTITUTION

SUBMITTED TO:
Prof. I.P. Massey

Utkarsh Singh (1045)

National Law University,

Jodhpur

SUBMITTED BY:

U.G. 7th Semester

B.A.LLB (Hons) Jodhpur

Submission Date : 23rd, SEPTEMBER, 2015.

TABLE

OF

CONTENTS

Table of Contents.............................................................................................................................

Acknowledgement...........................................................................................................................

Introduction......................................................................................................................................

Basic Principles of the German Constitution...................................................................................

Deepest Layers of German Constitution..........................................................................................

Conclusion.....................................................................................................................................

Bibliography..................................................................................................................................

Page | 2

ACKNOWLEDGEMENT
This project could never have been possible without co-operation from all sides.
Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.
Secondly, I take this opportunity to express my gratitude to the Dean of Faculty of Law of
NLU, our subject teacher Prof. I.P.Massey. He has constantly helped and guided us in the
compilation of this project.
Thirdly, I would also like to thank the entire library staff for providing me with the various
sources of information that we utilized during the course of my project ,thereby, helping us to
complete this endeavour of mine successfully.

Page | 3

INTRODUCTION
The current version of the Basic Law of 23 May 1949 is the Constitution of the Federal
Republic of Germany.
The Basic Law was adopted in 1949, initially as a provisional framework for the basic
organization of the state until German reunification. The name Basic Law was intended to
express its provisional nature and that it was not to hinder reunification1. But from the very
beginning, the Basic Law has always contained all the features of a constitution and has
functioned effectively as one for more than 65 years2.
In its earlier version, the Basic Law provided for two options in the event of German
reunification: either accession of other parts of Germany to the territory in which the Basic
Law applies under Article 23 of the Basic Law (old version), or the adoption of a new
constitution by the German people under Article 146 of the Basic Law (old version)3. In the
Unification Treaty of 31 August 1990, the governments of the Federal Republic of Germany
and the German Democratic Republic agreed to restore German unity on the basis of Article
234. The parliaments of both German states approved this decision with two-thirds majorities.
The preamble to the Basic Law, which was amended after the Unification Treaty, states
that "Germans ... have achieved the unity and freedom of Germany in free self-

1 Gordon A Craig, Democratic progress and Shadows of the Past, available at

http://www.ghi-dc.org/publications/ghipubs/op/op01.pdf.
2 Ibid.
3 Thomas Schimitz, Principle of Rule of Law in German Constitutional Law, available
at http://www.thomas-schmitz-hanoi.vn/Downloads/Schmitz_Rechtsstaatsprinzip-en.pdf.
4 Ibid.
Page | 4

determination. This Basic Law thus applies to the entire German people5." Article 146 of the
Basic Law (new version) also makes clear that the Basic Law applies to the entire German
people6.
The Federal Republic of Germany adopted the constitution which is based upon democracy,
freedom and the rule of Law. Basic Law reflects the painful experience of the Nazi Regime
and the lesson taught by the decline of the Weimar Republic. Germany overcame the most
terrible dictatorship when it started to formulate a new democratic constitution. The Basic
Law opens with a catalogue of human rights, crowned by the principle of human dignity. The
acknowledgement of human rights as the fundamental element of German constitutional
system is a response to the disdain of human dignity during the period of 1933 19457. For
this reason all imaginable guarantees and remedies were inserted into the Basic Law to
prevent the repetition of the rupture of civilization as it occurred during the period of national
socialism8.
It was the firm consensus of all political forces active in the constitutional assembly to
prevent another failure of representative democracy in Germany and to establish effective
safeguards against dictatorship and the disregard for human rights. The constitution should
therefore be the paramount law of the land and claim priority over any government act9.

5 Ibid.
6 Mario Peuker, Equality and Anti-discrimination approaches in Germany, available at
http://www.efms.uni-bamberg.de/pdf/Anti-discrimination_in_Germany.pdf.

7 Available at http://www.kas.de/wf/en/33.22235/.
8 Supra at 6.
9 Jutta Limbach, How a Constitution can safeguard democracy: The German
Experience, available at https://www.law.hku.hk/ccpl/Docs/JuttaLimbach.pdf.
Page | 5

The German Constitution after more than 65 years of application and in spite of 59
amendments, including the reunification of West and East Germany, remains a central point
of reference in International Constitutional Law. 10Lessons learned from the period of Nazi
rule led to a number of peculiarities much discussed in comparative studies: the figurehead
presidency, the eternal guarantee of human dignity and democracy, and the complete lack of
direct democratic elements on the federal level11. Reaching back to prior constitutional
traditions are the principles for the professional civil service and the rules regarding the
relationship between state and church. Other provisions are singular results of political
controversies: the rule about legitimate resistance, the individual right to conscientious
objection, and Parliament's indirect participation in the Government's European Union
activity12. Due to the position and jurisdiction of the Constitutional Court, the supremacy of
the constitution is an all-pervading element in German law: by the basic right to every kind
of activity, by the comprehensive individual complaint procedure, by the duty of the
Constitutional Court to deal with every complaint, and by the indirect control over
institutional settings achieved through claims based on basic rights13.

BASIC PRINCIPLES

OF THE

GERMAN CONSTITUTION

The basic principles of the constitution - such as democracy, the rule of law, the principle of
the social state, federalism, respect of human dignity - may not be altered at all; not even by a
constitutional amendment. The aim was to prevent the enemies of democracy from
overturning it using its own instruments - like the majority rule.
1. According to art. 1 (1) human dignity is the unalterable foundation of the constitutional
order. The confession to the inviolability of human dignity and personality was and is a
10 Supra at 1.
11 Ibid.
12 Axel Tchentser, The Basic Law 2012, available at http://ssrn.com/abstract=1501131.
13 Ibid.
Page | 6

response to the perversion of law in the Third Reich and the mass murder in the shadow
of this injustice. Therefore the state is not only obliged to respect, but also to protect
human dignity14.
2. Crowned by the principle of human dignity, the fundamental rights have legally binding
force. It is stated in the first article of the Basic Law, that the following basic rights shall
bind the legislature, the executive and the judiciary as directly enforceable law. This
means that all public officials and institutions have to respect and secure human rights15.
3. Moreover, the binding effect of all human rights is expressly extended to the legislature
by art. 1 (3). Here we observe the Basic Law rejecting the assumption of the
constitutionalists of the Empire and to a large extent also of the Weimar Republic, that the
legislature was free to restrict fundamental rights as it pleased. According to art. 19 (2)
there is an ultimate limit to legislative measures: In no case may they touch the essential
content of a human right16.
4. The Parliamentary council which worked out the Basic Law established the classic
catalogue of liberal rights and added some new ones in the light of the experience made
under the Nazi dictatorship, such as freedom of broadcasting, freedom of art and the right
to life and physical integrity. But it decided not to follow the Weimarian experiment with
social rights. Instead, a general principal was included into the constitution according to
which Germany is recognized as being a social state17.
5. Finally, the Parliamentary Council established a special institution designed to enforce
the constitution against any other government authority. This institution is the Federal
Constitutional Court, which should be a safeguard against dictatorship and the disregard
for human rights. And you can observe in recent history that the experience of proceeding
14 Jurgen Hartmann, The Fundamental Pillars of Democracy, available at
http://www.young-germany.de/topic/live/settle-in-adjust/the-fundamental-pillars-ofdemocracy.
15 Ibid.
16 Ibid.
17 Ibid.
Page | 7

totalitarian regimes inspire the framers of constitutions not only to formulate a Bill of
Rights but also to establish a kind of constitutional court and judicial review. You will
find many examples in Eastern Europe as well as in Africa. The Basic Law established
this special court in order to grant protection against all infringements of constitutionally
guaranteed rights18.
The Federal Constitutional Court (FCC) is endowed with ample powers, among them the
power of judicial review. As mentioned above: In the German system all constitutional
organs have to respect and enforce human rights. But only the FCC decides on the
interpretation and application of the federal constitution with final binding force19. Should
another court consider a law unconstitutional and therefore wish not to apply it, it must first
obtain the decision of the Federal Constitutional Court. The FCC is not a court of appeal
which examines the decisions of the ordinary courts for any error of fact or law. Its exclusive
responsibility is to decide questions of constitutional law and to interpret the Basic Law. The
FCC enjoys the last word on the meaning of the Basic Law, and its word is Law.20

DEEPEST LAYERS

OF

GERMAN CONSTITUTION

In the Federal Republic of Germany a transformation from a servant mentality to a culture of

citizenship has taken place. It is a truism that the constitutional document by itself cannot
establish loyalty towards the democratic system. It much rather symbolizes the multi-layered
forces of integration. The characteristic advantages of the Basic Law had to reveal and prove
themselves in daily political life in order to spur acceptance. Certainly one cannot deny that
the "Wirtschaftswunder", or economic miracle of the 1950s, carried much of the Germans'
exhilaration surrounding the liberal democracy21. Nevertheless, without the success of the
anchoring of the interaction of political and judicial institutions within the Basic Law, this
stable legal frame, which allows for free and at the same time socially responsible trade and
18 Ibid.
19 Available at http://germanlawarchive.iuscomp.org/.
20 Supra at 6.
Page | 8

industry, would not have been created. Despite the bad premonitions of the early years the
citizens of the Federal Republic gradually developed a satisfaction with democracy in the
ensuing years22. Along with the economic and political success-story of the Federal Republic
grew the acceptance of the democratic system and its principles. Towards the end of the
seventies, the pride in the own political order reached a level comparable to that of other
democracies. In contrast to the Weimar constitution the Basic Law has not only found
citizens concerned about their fundamental rights, but also loyal political actors and judges.23
1. The Supremacy of the Constitution:
With the introduction of this kind of constitutional jurisdiction the principle of the
supremacy of the constitution attains its practical point. This concept confers the highest
authority in a legal system on the constitution. Stating this principle does not imply
simply giving a rank-order of legal norms. The point is not solely a conflict of norms of
differing dignity. The principle of the supremacy of the constitution also concerns the
institutional structure of the organs of the State. The scope of the principle becomes clear
if we reformulate it: the supremacy of the constitution means the lower ranking of statute;
and this in turn implies the lower ranking of the legislator24.
The principle's practical consequence may most easily be seen from a concrete example:
In 1957 the Bundestag enacted a law reordering family law in accordance with the
constitutional requirement of sex equality25. This Equal Rights Act removed the husband's
21 Bernhard Schlink, The Constitutional Subject and its Identity, 33 Cardozo Law Rev.
1869 (2012).
22 Ibid.
23 Supra at 21.
24 Jurgen Hartmann, The Fundamental Pillars of Democracy, available at
http://www.young-germany.de/topic/live/settle-in-adjust/the-fundamental-pillars-ofdemocracy.
25 Ibid.
Page | 9

right of decision in matrimonial matters. The Act also followed the case law that parental
care and custody go to both father and mother. But for the case where the parents were
unable to agree, the father was to have the last word.26 Only this parental casting vote was
held suitable to safeguard family peace and marriage in its Christian, Occidental form27.
The Act had barely entered into force when four married mothers filed a constitutional
complaint with the Federal Constitutional Court. They asked for repeal of the law giving
fathers the last word on childrearing, because it infringed Art. 3 (3) Basic Law. This
article of the German constitution reads: "Men and women shall have equal rights". The
Federal Constitutional Court declared the paternal right of final decision null and void, a
year after the Act came into force. The Court was unable to see how far objective
biological or functional differences or the special nature of woman could justify the
paternal prerogative.28
The Federal Constitutional Court thus repealed a provision enacted by a majority of the
legislators elected by the people. The judges disregarded majority rule. Yet the judges are
neither elected by the people, nor owe them any responsibility. For they cannot be
removed through new elections, and thus cannot be called to account. Is this form of
judicial review not deeply undemocratic?29
The experience of totalitarian regimes in the last century led to a fundamental rethinking
of the problem of the limits to State power. This culminated in the image of a State order
that is both democratic and guarantees the individual's fundamental rights. This is the
principled answer to the accusation that judicial review is incompatible with the
democratic principle. Majority rule does not by itself constitute the essence of modern
democracy. Democracy means not just that State power derives from the people and that
politics is determined by their elected representatives. Also part of democracy are
26 Ibid.
27 Ibid.
28 Supra at 24.
29 Jutta Limbach, How a Constitution can safeguard democracy: The German
Experience, available at https://www.law.hku.hk/ccpl/Docs/JuttaLimbach.pdf.
Page | 10

particular fundamental values, to which all organs of State are committed. It is not only
the two dictatorships on German soil that have taught us that democracy cannot be upheld
without the validity of human rights. "Democracy is thus a delicate balance between
majority rule and particular fundamental values, such as human rights".30
2. Defenses against the Enemies of Democracy:
The failure of the Weimar Republic provided the historical knowledge-base for
orientation in the search for additional means of defense against the enemies of
democracy and destructive political minorities. The founders of our constitution found
one such means in the constructive vote of no confidence. Thereby the Bundestag, the
Federal Parliament, can only express its vote of no confidence against the Bundeskanzler,
the (Federal) Chancellor, if the majority of its members have elected a successor. (Art. 67
GG)31.
Furthermore, the Federal Constitutional Court can declare a political party
unconstitutional and dissolve it (Art. 21 Abs. 2 GG), impeach the Federal President (Art.
61 GG), and dismiss judges (Art. 98 Abs. 2 GG) if they are found to have intentionally
violated the Basic Law32. Up to this date no impeachment procedures have ever been
implemented against the Federal President or a judge. However the Federal
Constitutional Court in its early years declared two parties unconstitutional: in 1952 the
Sozialistische Reichspartei or Socialist Reich-party, a neo-nazi group, as well as the
Communist Party of Germany (KPD) in 1956.33
Only the Federal Constitutional Court can dissolve a political party deemed
unconstitutional. This requires that the political party in question, either by its goals or by
the behavior of its followers, is aimed at disturbing or removing the fundamental liberal

30 Ibid.
31 Edward Andread, Jacques Maritain and The Basic Law 1949, 13 Emory Int'l L.
Rev. 1 1999.
32 Ibid.
33 Ibid.
Page | 11

democratic order of the Federal Republic of Germany or threatens the existence of the
Federal Republic itself.34
3. Resistance ready Democracy:
For the Federal Constitutional Court, turning away from political indifference and
totalitarian rule as intended by the Basic Law, has been and still is one of the guiding
principles of its administration of justice35. Prominent examples of this are provided by
the aforementioned decisions from the court's early years, in which it declared
unconstitutional the Socialist Reich-party and the Communist Party of Germany36. The
Court coined the term "streitbare Demokratie" or self-assertive democracy, to emphasize
the constitutional elements drawn upon in these rulings. The idea of the self-assertive
democracy is considered to be the reply to the failure of the Weimar Republic and the
perversion of the law in national socialism37. It is widely cited, not only by political
scientists, as being part of the political culture of the Federal Republic today.
In the KPD-ruling there is talk of a liberal democracy which has an obligation to defend
and secure human dignity. Some of the advantages of the Basic Law which the Court
considers to be characterizing are: the commitment to absolute values, the strong
emphasis on the "third" power, the judiciary, and "the striving to subjugate in an
unusually broad manner the proceedings in the political domain and actions of political
organs to the control of independent courts and to thereby realize the postulates of the
constitutional state procedurally"38. At the same time the Federal Constitutional Court
underscores as a fundamental requirement of the liberal democracy that only the constant
intellectual discourse between contending social interests and political ideas as well as
34 Supra at 29.
35 Supra at 31.
36 Ibid.
37 Ibid.
38 Arthur Lenhoff, The German Constitution with comparative glances at the French
and Italian Constitution, 24 Tul. L. Rev. 1 1949-1950.
Page | 12

the political parties representing them can be the correct path to the formation of public
will; that only the constant mutual control and critique provides the best guarantee for "a
(relatively) appropriate political line as a result and the equalization between the
operative political forces within the state.39"
The bar of the guarantee of freedom within the party-ban justifies the Basic Law's
attempt to find a synthesis of the principle of tolerance towards all political views and the
commitment to certain inalienable fundamental values of the public order40. The material
understanding of the Basic Law starting to take shape here, subsequently finds its impact
on the interpretation of the fundamental freedoms, be it the freedoms of opinion, the arts,
or the press.41 The catalogue of fundamental rights is not only seen as a system of
entitlements, but also as an objective value system which emanates onto all domains of
the law and obligates all public powers42. Democracy, in this sense of the word, does not
exacerbate itself in the rule of the people. It is -as mentioned before- a delicate balance
between the rule of the majority and certain fundamental values such as human rights43.
4. Flexibility:
The procedure for amending the Basic Law is given in Article 79. Article 79 (1) first
sentence states that the Basic Law "may be amended only by a law expressly amending
or supplementing its text.44" Such a law requires approval by two-thirds of the members
39 Ibid.
40 Gordon A Craig, Democratic progress and Shadows of the Past, available at
http://www.ghi-dc.org/publications/ghipubs/op/op01.pdf.
41 Supra at 1.
42 Ibid.
43 Ibid.
44 Christoph Enders, "A right to have rights the German Constitutional Concept of
Human Dignity", NUJS law review, January 2, 2015.
Page | 13

of the Bundestag and two-thirds of the members of the Bundesrat (Article 79 (2) Basic
Law). However, no basic principles of the Constitution may be altered using this
procedure. Article 79 (3) prohibits any amendments to the Basic Law affecting the
division of the Federation into Lnder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 (the inviolability of human
dignity, human rights and the constitutional principles such as democracy, the separation
of powers and the basic elements of the welfare state and the rule of law)45.
5. Judiciary:
The fundamental legal provisions underlying court practice and adjudication in the
Federal Republic of Germany can be found in Articles 92 and 93 of the Basic Law. The
structure of the court system follows the federal principle with courts at the federal and at
state levels46.
A special position is held by the Federal Constitutional Court, which, as an organ of the
constitution, is the highest German court and an independent court of the Federal
Republic47. It rules exclusively on constitutional issues. The Federal Constitutional Court
is complemented by constitutional courts in the federal states48.
Besides the constitutional courts, there are the following major categories of jurisdiction:
There is ordinary jurisdiction which falls into civil and criminal jurisdiction with local,
regional and higher regional courts (Amtsgerichte, Landgerichte, Oberlandesgerichte) at
the state level and the Bundesgerichtsh of (Federal Court of Justice - BGH) as the highest

45 Ibid.
46 Roberts, Geoffrey K. (2000). German politics today. Manchester University Press.
p. 39. ISBN 0-7190-4961-X.
47 Ibid.
48 Ibid.
Page | 14

court49. Furthermore, there is administrative, fiscal, labor and social jurisdiction with
courts at regional, higher regional, and federal levels50. The regional and higher regional
courts are, at the same time, courts of appeal of their respective states51. There is a Joint
Panel of the Highest Federal Courts which acts as a supreme body of jurisdiction across
all court levels and jurisdictions and decides on issues of divergent adjudication by other
courts52. Its authority is, however, largely restricted and cannot be compared to that of a
Supreme Court in other countries (as, for example, in the United States). Courts are
divided into panels and divisions based on areas of law. Each case is assigned a case
number that reflects the type of court, level of appeal, and subdivision53. The case number
and date are of great importance in citing and finding cases. When a court decision is
published, it is preceded by a summary, comparable to headnotes, authored by judges,
press departments with the courts, or the editorial board of the publishing journal. As a
rule, the names of the parties involved are not mentioned54.

49 Mario Peuker, Equality and Anti-discrimination approaches in Germany, available

at http://www.efms.uni-bamberg.de/pdf/Anti-discrimination_in_Germany.pdf.
50 Mario Peuker, Equality and Anti-discrimination approaches in Germany, available
at http://www.efms.uni-bamberg.de/pdf/Anti-discrimination_in_Germany.pdf.
51 Ibid.
52 Supra at 44.
53 Supra at 44.
54 Supra at 49.
Page | 15

Court decisions by the highest courts are most completely recorded in print format in
various quasi-official reporters put together by the judges of the respective courts55. They
are published in the large legal publishing houses, unfortunately with much delay56.
6. Federal System:
Germany has a federal system of government built on democratic principles, which is
made up of 16 Laender (federal states)57. It is a member state of the European Union, the
association of a number of European states. Under the Constitution of the Federal
Republic of Germany, which is known as the Basic Law (Grundgesetz) and lies at the
foundation of all other legislation, the highest legislative bodies are the Bundestag and
the Bundesrat as the two chambers of parliament58. The Federal Constitutional Court is
the highest body of the judiciary, and the Federal President and the Federal Government
are the highest bodies of the state executive59. This structure is mirrored at the level of
theLaender with state parliaments, the state constitutional courts, and state governors and
governments60.
German law is governed by the federal nature of the Federal Republic of Germany and is
thus not dissimilar to legal systems such as the ones in the United States or Australia61.
However, in contrast to these jurisdictions, the federal principle is not confined to
55 Ibid.
56 Ibid.
57 Russell Miller, Germanys Basic Law and the use of Force, 17 INDIANA JOURNAL OF
GLOBAL LEGAL STUDIES 197 (2010).

58 Ibid.
59 Ibid.
60 Ibid.
Page | 16

national borders, i.e. the relations among the individual Laender and their relations
towards the Federation62. It extends to, and is crucially influenced by, Germanys
membership of the European Union, which by now affords an extensive body of
legislation that is binding on its individual member states directly or needs to be
implemented in national law. There are basic treaties, regulations and directives. Bilateral
and multilateral agreements between EU member states are now mostly replaced by EU
treaties63.
7. The Rule of Law:
The united Federal Republic of Germany (commonly referred to as Germany) is
governed by its constitution, the Basic Law, which was adopted on May 23, 1949.
Although American influence is illustrated in its well-defined federal system and
separation of powers, the political and legal system reflects Germany's own history, most
importantly the barbarism of Nazi rule64.
Unlike the Weimar Republic, where human rights were considered only "state objectives"
and where presidential authority could override respect for human rights (as in the
Reichstag Fire Decree), Germany, in its Basic Law, firmly roots all state institutions in
the protection of human rights65. Article 79, which outlines how the constitution can be
amended, makes human rights inviolable without exception, thereby preventing any
temporary or emergency suspension of rights66.

61 Supra at 57.
62 Supra at 57.
63 Ibid.
64 Available at http://news.nd.edu/news/11779-human-dignity-and-freedom-rights/.
65 Ibid.
Page | 17

As early as 1949, separation of powers was established in the former West Germany
through a federal system of states (Laut;nder) and the decentralization of authority. With
reunification, Germany now consists of 16 states; five states from the former East were
added to the West's 11 states67. In addition, to avoid the previous dangers of centralized
authority, the president was given largely ceremonial duties with only basic checks on
legislative powers, such as to call elections in the event of a vote of no confidence by the
legislature68. To compensate, the Bundesrat (the upper legislative house that directly
represents the states) has greater powers in the adoption of legislation. An independent
judiciary is headed by a Federal Court of Justice (Bundesgerichtshof) with the power of
judicial review to ensure enforcement of the Basic Law. Germany is also an integral
member of the European Union (EU), as well as the UN system, and is a party to the
European Convention on Human Rights, to all UN conventions on human rights, and to
International Labor Organization conventions (ILO) on worker rights69.

66 Donald Kommerce, The Constitutional Jurisprudence of the Federal republic of

Jurisprudence. Available at https://books.google.de/books?
id=sHZfkgxtoZQC&pg=PA30&lpg=PA30&dq=principles+behind+basic+law+of+germa
ny&source=bl&ots=BoV53AMxg4&sig=g2p9UVTC3747ui1rC6GCyKkXq34&hl=en&s
a=X&sqi=2&ved=0CDEQ6AEwA2oVChMIodPI_8ScyAIVBjsUCh3YBwUj#v=onepag
e&q=principles%20behind%20basic%20law%20of%20germany&f=false.
67 Ibid.
68 Ibid.
69 Ibid.
Page | 18

Much of Germany's civil and criminal law remains rooted in Roman tradition70. The
constitution ensures basic due process rights, similar to those in the U.S. Constitution. A
rise in left-wing extremist violence in the 1960s and 1970s challenged Germany's
commitment to rule of law principles when the government adopted several special
measures allowing exceptions to due process rights, such as the use of listening devices.
Over time, however, these cases indicated the limited extent to which German society
was willing to bend the rules on which its democratic consensus rests. These violent
groups gained little adherence and ultimately dissolved71.
The acceptance of the Basic Law and the general laws of the Federal Republic by East
Germany reflected the general rejection by easterners (Ossis) of the Soviet-imposed
Communist system72. In terms of the rule of law, the Soviet-style system had no
independent judiciary (judges were dependent on party superiors), due process, or other
characteristics of the rule of law. As noted above, hundreds of thousands of people were
forced to spy for the police, usually on their family members and neighbors. The film The
Lives of Others, winner of the Oscars' foreign film award for 2007, shows how the police
had elaborate machinery to spy on anyone they wished to73.
The Nuremberg trials and the International Military Tribunal for the Far East (Tokyo war
crimes trial) established the principle of international accountability for crimes against
humanity74. These trials also set the foundation for the acknowledgment of the crimes of
70 Rita Exter, Martina Kammer, Legal research in Germany at the crossroads of
Traditional and Electronic Media, available at
http://www.llrx.com/features/germanlaw.htm.
71 Ibid.
72 Axel Tchentser, The Basic Law 2012, available at http://ssrn.com/abstract=1501131.
73 Supra at 12.
74 Ibid.
Page | 19

the Nazis, the complicity of German society, and Germany's responsibility for the Third
Reich, including the need for reparations to victims. As a result of its experience,
Germany bans the advocacy of Nazism, the display of Nazi insignia or paraphernalia, and
the denial of Nazi crimes, most importantly the Holocaust75. While such restrictions are
challenged as counterproductive and overly restrictive by free speech advocates, they are
considered an essential part of the postwar political consensus to never again allow
totalitarianism to take hold.
8. The Electoral System:
The German electoral system makes it very difficult for any one party to form a
government on its own. This has only happened once in 56 years. An alliance of parties is
the general rule.76 So that the voters know which partner the party they voted for is
considering governing with, the parties mostly issue coalition statements before
embarking on the election campaign. By voting for a particular party citizens thus express
on the one hand a preference for a specific party alliance, and on the other determine the
balance of power between the desired future partners in government77.
9. The Bundestag:
The Bundestag is the elected representation of the German people. Technically speaking
half the 598 seats in the Bundestag are allocated by means of the parties state lists (the
second vote) and the other half by the direct election of candidates in the 299
constituencies (the first vote)78. This division changes nothing with regard to the key role
75 Ibid.
76 Available at Axel Tchentser, The Basic Law 2012, available at
http://ssrn.com/abstract=1501131..

77 Ibid.
78 Jutta Limbach, How a Constitution can safeguard democracy: The German
Experience, available at https://www.law.hku.hk/ccpl/Docs/JuttaLimbach.pdf.
Page | 20

of the parties in the electoral system. Only those candidates who belong to a party have
any chance of success. The party to whom members of the Bundestag belong is meant to
reflect the distribution of votes. In order to prevent complications in the formation of
majorities by the presence of small and very small parties a five-percent threshold is
designed to stop their being represented in the Bundestag79.
The Bundestag is the German parliament. Its elected representatives are organized in
parliamentary parties and select a President from among them. It is the function of the
Bundestag to elect the Federal Chancellor and keep him in office through support for his
policies. The members of parliament can relieve the Chancellor of his duties by denying
him their confidence, as do other parliaments80. Nor does it make any great difference that
in Germany the Chancellor is elected, whereas in Great Britain and other parliamentary
democracies he is appointed by the head of state81. In other parliamentary democracies, a
party leader who can rely on a parliamentary majority is always appointed head of
government82.
The second major function of the elected representatives in the Bundestag is to pass
legislation. Since 1949 over 10,000 bills have been introduced to Parliament and more
than 6,600 laws enacted83. These were predominantly amendments to existing acts. Here,
again, the Bundestag is similar to parliaments in other parliamentary democracies in that
it for the most part enacts bills proposed by the Federal Government. The Bundestag
79 Ibid.
80 Gunlicks, Arthur B. (2003). The Lnder and German federalism. Manchester
University Press. p. 146. ISBN 978-0-7190-6533-0.
81 Ibid.
82 Ibid.
83 Johnson, Edward Elwyn, International law aspects of the German reunification
alternative answers to the German question.
Page | 21

however, which resides in the Reichstag building in Berlin, is less like the debating
parliament typified by British parliamentary culture and corresponds far more closely to
the US type of so-called working parliament84. The Bundestags expert parliamentary
committees discuss the bills introduced to Parliament in detail85.
The Bundestags expert Parliamentary Committees discuss the bills introduced to
Parliament in great detail86. Here, the activities of the Bundestag resemble to some extent
Congress in the USA, the prototype of a working parliament. The third major function of
the Bundestag is to keep a check on the governments work. It is the opposition that
fulfills the function of monitoring the work of government in a manner visible to the
general public87. A less evident, but no less effective form of control is carried out by the
members of parliament of the governing parties, who behind closed doors ask the
government representatives critical questions.
10. The Federal Chancellor and the Government:
The Federal Chancellor is the only member of the Federal Government to be elected88.
The constitution empowers him to personally choose his ministers, who head the most
important political authorities. Moreover it is the Chancellor who determines the number

84 Ibid.
85 Ibid.
86 Ibid.
87 Herbert, Georg. "Administrative Justice In EuropeReport for Germany". Association
of the Councils of State and Supreme Administrative Jurisdictions of the European
Union.
88 Available at http://www.bmi.bund.de/EN/Topics/Society-Constitution/ConstitutionalIssues/constitutional-issues_node.html.
Page | 22

of ministries and their responsibilities89. It is he who lays down the guidelines of

government policy. These outline the Chancellors right to stipulate binding government
activities. This authority gives the Federal Chancellor a whole array of instruments of
leadership that easily stands up to a comparison with the power of the President in a
presidential democracy90.
The Parliamentary Council, which in 1949 resolved the Basic Law, took as its role model
for the Federal Chancellor the position of the Prime Minister in Great Britain91. The
Prime Minister possesses exactly the same means of power as that of Chancellor, though
the latters power is actually far less than that of the British premier92. In the British
parliamentary system only one party is ever in power, because the first-past-the-post
system there favors the strongest party. As a rule, in the Bundestag no one party has a
clear majority. For this reason a coalition is normally necessary to be able to elect a
Chancellor93.
The election of the Chancellor is preceded by extensive negotiations between those
parties that plan to govern together94. These address specific topics such as how the
ministries are to be divided up between the parties, which ministries are to be maintained
and which newly created95. The strongest party in the alliance is accorded the right to
propose the Federal Chancellor. In addition the parties agree on the policies they intend to
89 Ibid.
90 Ibid.
91 Available at http://germanhistorydocs.ghi-dc.org/sub_document.cfm?
document_id=2858.
92 Ibid.
93 Supra at 76.
94 Supra at 91.
Page | 23

tackle in the next few years96. The results of these coalition negotiations are enshrined in
the coalition treaty. Only when these steps have been completed is the Chancellor
elected97. Negotiations between the government parties prepare the decisions taken by the
Federal Government and accompany them afterwards. Should there no longer be political
consensus between the parties before general elections for a new Bundestag are due,
removing the Chancellor from office becomes an alternative98. Should a constructive vote
of no confidence result in the current Chancellor indeed being removed from office, a
new Chancellor must be elected at the same time99. This repeal of parliamentary
confidence forces the parties represented in the Bundestag to form a new, functioning
government majority before they bring down the Chancellor100. There have only been two
previous attempts to bring down the Chancellor, only one of which succeeded, namely in
1982 when a vote of no confidence was passed against the Chancellor Helmut Schmidt
(SPD), who was replaced by Helmut Kohl (CDU)101.
However, at any time the Federal Chancellor himself can also propose a vote of no
confidence in the Bundestag to test whether he still enjoys the unlimited support of the
95 Ibid.
96 Ibid.
97 Ibid.
98 Jurgen Hartmann, The Fundamental Pillars of Democracy, available at
http://www.young-germany.de/topic/live/settle-in-adjust/the-fundamental-pillars-ofdemocracy.
99 Supra at 14.
100 Ibid.
101 Supra at 98.
Page | 24

governing parties102. Should the Chancellor lose the vote this indicates that parts of the
government majority are drifting away from the Chancellor, leaving the Federal President
to decide whether the Bundestag should be dissolved and a general election held103. The
Federal President can also request the parties represented in the Bundestag to try and
form a new government104.
In the history of the Federal Republic there has never been a genuine defeat in a vote of
no confidence. There have on three occasions been previously arranged defeats: The
elected representatives of the government parties or the ministers abstained in order to
bring down the government in 1972, 1982, and 2005105. This course of action was taken
in order to prematurely dissolve the Bundestag, which according to the constitution is
otherwise not possible. It can only be taken with the approval of the Federal President
and is legally not uncontroversial106.
11. Political Parties:
In contrast to Weimar, political parties are explicitly mentioned in the constitution, i.e.,
officially recognized as important participants in politics. Parties are obliged to adhere to
the democratic foundations of the German state. Parties found in violation of this
requirement may be abolished by the constitutional court. In the Weimar Republic, the
public image of political parties was clearly negative and they were often regarded as
vile. At the same time there was no obligation to adhere to democratic standards (in
102 Russell Miller, Germanys Basic Law and the use of Force, 17 INDIANA JOURNAL
OF GLOBAL LEGAL STUDIES 197 (2010).

103 Axel Tchentser, The Basic Law 2012, available at http://ssrn.com/abstract=1501131.

104 Ibid.
105 Supra at 6.
106 Ibid.
Page | 25

contrast, the Basic Law stipulates that parties' "... internal organisation must conform to
democratic principles", which precludes any party using the Fhrerprinzip, even
internally.)

CONCLUSION
As one reflects on the near complete physical, moral, and spiritual destruction of Germany
during the Nazi era, it should come as no surprise that the defeated nation looked beyond its
borders for political inspiration. Moreover, Germany had little choice in the matter. The
Allies set the basic parameters within which the new constitution was bound to conform. In
looking to the West, the Germans, either directly or indirectly, incorporated much of Western
thought.
The authors of the Basic Law sought to ensure that a potential dictator would never again
have the chance to come into power in the country. Although some of the Basic Law is based
on the Weimar republic constitution, the authors also ensured that human rights and human
dignity was made the central and core part of the Basic Law. The principles of
democracy, republicanism, social responsibility, and federalism are key components of the
Basic Law; these principles are constitutionally entrenched, and they cannot be removed or
repealed by the normal amendment process.
In the end, it can be said that German democracy and Basic law as the foundation of
democracy in Germany has emerged in the modern world as one of the champions of
democracy after the dismal Nazi rule.

Page | 26

BIBLIOGRAPHY
Axel Tchentser, The Basic Law 2012, available at http://ssrn.com/abstract=1501131.
2. Russell Miller, Germanys Basic Law and the use of Force, 17 INDIANA JOURNAL OF
1.

GLOBAL LEGAL STUDIES 197 (2010).

3. Jurgen Hartmann, The Fundamental Pillars of Democracy, available at

http://www.young-germany.de/topic/live/settle-in-adjust/the-fundamental-pillars-ofdemocracy.
4. Johnson, Edward Elwyn, International law aspects of the German reunification
5.

alternative answers to the German question.

Herbert, Georg. "Administrative Justice In EuropeReport for Germany". Association of

the Councils of State and Supreme Administrative Jurisdictions of the European Union.
6. Gunlicks, Arthur B. (2003). The Lnder and German federalism. Manchester University
Press. p. 146. ISBN 978-0-7190-6533-0.
7. Jutta Limbach, How a Constitution can safeguard democracy: The German
Experience, available at https://www.law.hku.hk/ccpl/Docs/JuttaLimbach.pdf.
8. Rita Exter, Martina Kammer, Legal research in Germany at the crossroads of
Traditional and Electronic Media, available at
http://www.llrx.com/features/germanlaw.htm.
9. Mario Peuker, Equality and Anti-discrimination approaches in Germany, available at
http://www.efms.uni-bamberg.de/pdf/Anti-discrimination_in_Germany.pdf.
10. Roberts, Geoffrey K. (2000). German politics today. Manchester University Press.
p. 39. ISBN 0-7190-4961-X.
11. Christoph Enders, "A right to have rights the German Constitutional Concept of Human
Dignity", NUJS law review, January 2, 2015.
12. Gordon A Craig, Democratic progress and Shadows of the Past, available at
http://www.ghi-dc.org/publications/ghipubs/op/op01.pdf.
13. Arthur Lenhoff, The German Constitution with comparative glances at the French and
Italian Constitution, 24 Tul. L. Rev. 1 1949-1950.
14. Edward Andread, Jacques Maritain and The Basic Law 1949, 13 Emory Int'l L. Rev. 1
1999.
15. Bernhard Schlink, The Constitutional Subject and its Identity, 33 Cardozo Law Rev.
1869 (2012).
16. Thomas Schimitz, Principle of Rule of Law in German Constitutional Law, available at
http://www.thomas-schmitz-hanoi.vn/Downloads/Schmitz_Rechtsstaatsprinzip-en.pdf.
Page | 27

17. Jutta Limbach, How a Constitution can safeguard democracy: The German
Experience, available at https://www.law.hku.hk/ccpl/Docs/JuttaLimbach.pdf.

Page | 28