(published on the IACL Blog (https://blog-iacl-aidc.org/70-years-of-the-german-basic-law/2019/9/24/editorial-70-years-of-the-german-basic-law-symposium) on 24 September 2019)
What is being celebrated and why?
On 23 May 2019 the German Basic Law turned 70. It entered into force on that day in 1949, after having been drafted for nine months by the ‘parliamentary council’ tasked with the elaboration of the constitution by the occupying forces and having been accepted by more than two thirds of the Länder assemblies.
It was a deliberate choice not to call it the ‘constitution’: the last provision of the Basic Law, article 146, provides that the term “constitution” be reserved for a document approved in freedom by the German people. This means that the Basic Law was intended to serve as a provisional constitution due to the separation of Germany that took place in 1949. The provisional text was however kept even after German reunification in 1990, but its scope was extended so that the Basic Law is now “valid for the whole German people”. Despite the name, it not only operates as a constitution, but it also ‘constituted’ the Federal Republic of Germany, that had been created with the entry into force of the Basic Law.
For seven decades the Basic Law has accompanied the democratic, social, political, economic and legal development of Germany. As the constitution of a successful country, it is rightly commended for its achievements. And in fact, this anniversary has been widely celebrated, in Germany and abroad.
The Basic Law definitely deserves such an attention, especially considering the degree of pressure that many constitutions currently face, including in consolidated democracies. For sure, the German Basic law has had and still has an extraordinary comparative significance, being looked at with interest by scholars and constitution-makers from all over the world. Some of its tools are widely imitated, such as the form of government and the model of judicial review; some deeply influence judicial adjudication and scholarly debate, in particular the dogmatic of fundamental rights and the relations with the European Union; others are just admired but hardly imitated, like the federal system and its key institution, the Bundesrat.
The Basic Law is a fascinating mixture of legal positivism and natural law. It is an extraordinary example of how law was used to overcome the injustice perpetrated by law during the Nazi time: the constitution is law, not a mere political programme, and has, therefore, to be entirely normative; but the foundations of each law is to be found in the human dignity provision (art. 1), which is the benchmark for the legitimacy of power. When power is illegitimate, its orders must be resisted (art. 20). Certain fundamental principles cannot be changed (art. 79.3), but at the same time the Basic Law has been amended 63 times, on average almost once a year: rigidity in the core is combined with flexibility (or rather: adaptability) of the more operational rules.
Over seven decades, the performance of the Basic Law has been exceptionally good. It has achieved all the main goals the fathers and mothers of the constitution wanted to produce: a stable government, a social liberal democracy, the highest protection of fundamental rights, a cohesive federal system and a sound economy. The country is now fully integrated into the community of nations and an important international player, especially in the European context. All this was not to be taken for granted when the constitution was drafted.
Is all that glitters gold?
This is all well and good. Legal instruments only work when people are proud of and interiorize them. The Basic Law has been the engine of democratic Germany, something the people could identify with in a positive way, after the dark days that annihilated the Weimar constitution. The Basic Law replaced the nationalistic pride with a constitutional patriotism, following the formula coined by Dolf Sternberger and made popular by Jürgen Habermas.
At the same time, the celebration of the Basic Law also invites us to look at its current and future challenges.
Overall, the degree of the celebration raises the question as to whether a successful constitution is such an exceptional event that needs to be celebrated to that extent. Is constitutionalism in such bad shape worldwide? Are liberal democratic, consolidated, normative constitutions – of which the Basic Law is the most glorious example – not so solid after all?
More specifically, is the Basic Law fit to ensure the ‘future readiness’ of German democracy? Is the ‘militant democracy’ on which it is grounded strong enough to preserve itself forever? Would the Basic Law be able to keep the values on which it is grounded, should enemies of such values get the majority in Parliament? Is there a legal response to such a challenge? What happens if the party system that has led Germany for seven decades, based on parties that are mandated by law to be responsible, gradually collapses? Is it just a matter of different political formulas or can the constitution do anything about that? Is the federal system capable of absorbing and responding to the territorial (including economic, social and cultural) conflicts, turning them into a culture of cooperation, as has been the case for the past seventy years? Is Germany able to keep the leading role in Europe, or are the conditions its Basic Law and its Federal Constitutional Court pose to the supranational integration going to split the continent?
This symposium is a collection of posts written by people that are leading scholars in their respective field. The posts explain the functioning of key areas of the German Basic Law and touch upon the main achievements of and the main challenges faced by, or likely to be faced by, the Basic Law in future. Michael Goldhammer’s post deals with the fundamental rights and their interpretation, telling a German and comparative success story but not shying away from the challenges, including in the European context; Nathalie Behnke’s post explains the political system and the form of government, showing how these two went hand in hand for seven decades allowing a consensual governance, not least thanks to the conflict-absorbtion capacity of the Bundesrat; Jens Woelk’s post explores the main tenants of German federalism as an integrated, executive system, whose pivotal institution is again the Bundesrat; Gregor Kirchhof’s post goes into the main mechanisms of the financial constitution, showing how the rules on money raising and distribution (“the precondition for state and freedom” as he rightly puts it) operate and ought to function in a complex federal system; Annegret Eppler’s post deals with the key and thorny issue of the relations between Germany and the European Union, explaining how the Basic Law has deeply shaped the development of supranational integration in the continent – not without spiky conflicts.
A lot of wisdom in a few pages. This is, by far, not the entire debate on the German Basic Law, but it provides useful information and some food for thought for a global audience. Happy reading.