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The Basic Law of the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the
constitution A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...

constitution
of the
Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , coordinates = , largest_city = capital , languages_type = Official language , languages = German language, German , demonym = Germans, German , government_ ...

Federal Republic of Germany
. The West German Constitution was approved in
Bonn The Federal city The term federal city is a title for certain cities in Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , coordinates = , largest_city = capital , languages_type = Official langua ...

Bonn
on 8 May 1949 and came into effect on 23 May after having been approved by the occupying western
Allies of World War II The Allies of World War II were a group of countries that together opposed the during the (1939–1945). The Allies promoted the alliance as a means to defeat , the , and their allies. At the start of the war on 1 September 1939, the A ...
on 12 May. It was termed "Basic Law" (german: Grundgesetz) to indicate that it was a provisional piece of legislation pending the reunification of Germany. However, when the latter took place in 1990, the term was retained for the definitive constitution of reunified Germany. Its original field of application (german: Geltungsbereich)—that is, the states that were initially included in the
Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , coordinates = , largest_city = capital , languages_type = Official language , languages = German language, German , demonym = Germans, German , government_ ...
—consisted of the three Western Allies' zones of occupation, but at the insistence of the Western Allies, formally excluded
West Berlin West Berlin (german: Berlin (West) or ) was a political enclave An enclave is a territory (or a part of one) that is entirely surrounded by the territory of one other state. Enclaves may also exist within territorial waters. ''Enclave'' is ...
. In 1990, the Two Plus Four Agreement between the two parts of Germany and all four Allied Powers stipulated the implementation of a number of amendments. In the subsequent Unification Treaty of 1990, this amended Basic Law was adopted as the constitution of a united Germany. The German word ''Grundgesetz'' may be translated as either ''Basic Law'' or ''Fundamental Law''. The term "constitution" (Verfassung) was avoided as the drafters regarded the ''Grundgesetz'' as an interim arrangement for a provisional West German state, expecting that an eventual reunified Germany would adopt a proper constitution, enacted under the provisions of Article 146 of the Basic Law, which stipulates that such a constitution must be "freely adopted by the German people". Nevertheless, although the amended Basic Law was approved by all four Allied Powers in 1990 (who thereby relinquished their reserved
constitutional rights A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
), it was never submitted to a popular vote, neither in 1949 nor in 1990. In the preamble to the Basic Law, its adoption was declared as an action of the "German people", and Article 20 states "All state authority is derived from the people". These statements embody the constitutional principles that 'Germany' is identical with the German people, and that the German people act constitutionally as the primary institution of the German state. Where the Basic Law refers to the territory under the jurisdiction of this German state, it refers to it as the 'federal territory', so avoiding any inference of there being a constitutionally established 'German national territory'. The authors of the Basic Law sought to ensure that a potential dictator would never again be able to come to power in the country. Although some of the Basic Law is based on the
Weimar Republic's constitution
Weimar Republic's constitution
, the first article is a protection of the human dignity ("Menschenwürde") and human rights; they are core values protected by the Basic Law. The principles of democracy,
republicanism Republicanism is a political ideology An ideology () is a set of belief A belief is an Attitude (psychology), attitude that something is the case, or that some proposition about the world is truth, true. In epistemology, philosophers use ...
,
social responsibility Social responsibility is an ethics, ethical framework and suggests that an individual has an obligation to work and cooperate with other individuals and organizations for the benefit of the community that will inherit the world said individual le ...

social responsibility
,
federalism Federalism is a mixed or compound mode of government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''State Maga ...
and
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...
are key components of the Basic Law (Article 20). Articles 1 and 20 are protected by the so called eternity clause ("Ewigkeitsklausel") that prohibits any sort of change or removal of the principles laid down in these articles.


Fundamental rights

Fundamental rights (german: Grundrechte) are guaranteed in Germany by the Federal Constitution and in some state constitutions. In the Basic Law, most fundamental rights are guaranteed in the first section of the same name (Articles 1 to 19). They are subjective public rights with the constitutional rank which bind all institutions and functions of the state. In cases where a federal or state law or public ordinance is alleged to be in violation of these fundamental rights, the Basic Law provides the
constitutional complaint The constitutional complaint (''Verfassungsbeschwerde'') is a remedy found in Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , coordinates = , largest_city = capital , languages_type = Official lang ...
with an appeal to the
Federal Constitutional Court The Federal Constitutional Court (german: Bundesverfassungsgericht; abbreviated: ') is the supreme constitutional court for the Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , ...
(Article 93 paragraph 1 No. 4a). These fundamental rights cannot be removed from the constitution, and no constitutional amendment may 'affect their essence'. Where an article establishing a fundamental right has been amended—as for example where Article 3 was extended to ban discrimination on grounds of disability—these subsequent amendments will not be protected from removal. According to this regulation the Federal Constitutional Court can be called not only because of a violation of fundamental rights, but also by violation "of the rights set out in Article 20 paragraph 4 and Articles 33, 38, 101, 103 and 104". Hence, these rights are called the rights identical to fundamental rights.


Extensions of the field of application by Article 23

Like the Weimar Constitution from 1919, the 1949 Basic Law was explicitly
irredentist Irredentism is a political and popular movement whose members claim (usually on behalf of their nation A nation is a community of people formed on the basis of a common language, history, ethnicity, or a common culture, and, in many cases, a sha ...
, maintaining that there remained separated parts of 'Germany as a whole' in the form of German peoples living outside the territory under the control of the Federal Republic of 1949, with whom the Federal Republic was constitutionally bound to pursue reunification, and in respect of whom mechanisms were provided by which such other parts of Germany might subsequently declare their accession to the Basic Law. Since initially the Basic Law did not apply for all of Germany, its legal provisions were only valid in its field of application (german: link=no, Geltungsbereich des Grundgesetzes für die Bundesrepublik Deutschland). This legal term was frequently used in West German legislation when West German laws did not apply to the entirety of German territory, as was usually the case. Article 23 of the Basic Law provided other ''
de jure In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legally ...
'' German states, initially not included in the field of application of the Basic Law, with the right to declare their accession (''Beitritt'') at a later date. Therefore, although the Basic Law was considered provisional, it allowed more parts of Germany to join its field of application. On one side, it gave the Federal Republic of Germany—composed as it was in 1949—no right to negotiate, reject or deny another German state's declaration of its accession to the FRG, subject to the FRG's recognising that state ''de jure'' and being satisfied that the declaration of accession resulted from the free self-determination of its people; while on the other side an acceding state would have to accept the Basic Law and all laws so far legislated under the institutions of the FRG as they were. As the Federal Republic could not itself declare the accession of another part of Germany under Article 23, this provision could not be applied as an instrument of
annexation Annexation (Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Republic, ...
, nor could accession under Article 23 be achieved by international treaty with third party states, although the Federal Constitutional Court recognised that a future declared accession could be framed ''de facto'' as a compact between the Federal Republic and the acceding state. It remained unclear whether accession under Article 23 could be achieved by a part of Germany whose government was not recognised ''de jure'' by the Federal Republic, and if so how; but in practice this situation did not arise. Article 23, altered after 1990, originally read as follows: Whereas the West German state had gained restricted sovereignty in May 1955, the Sarrois rejected in a referendum (1955) the transformation of their protectorate into an independent state within the emerging
European Economic Community The European Economic Community (EEC) was a regional organization and Turkey Turkey ( tr, Türkiye ), officially the Republic of Turkey, is a country straddling Southeastern Europe and Western Asia. It shares borders with Greece ...

European Economic Community
. The
Saar Treaty The Saar Treaty, or Treaty of Luxembourg (German language, German: ''Vertrag von Luxemburg'', French language, French: ''accords de Luxembourg'') is an agreement between West Germany and France concerning the return of the Saar (protectorate), Saar ...
then opened the way for the government of the Saar Protectorate to declare its accession to the West German state under Article 23, including the new Saarland into the field of application of the Basic Law. The Saar held no separate referendum on its accession. With effect from 1 January 1957 the Federal Republic regarded itself as including almost all of Western Germany such that the only "other parts of Germany" to which Article 23 might be extended were now to the east, hence relinquishing all claims to those western parts of the former
German Reich ''German Reich'' (german: Deutsches Reich, ) was the constitutional name for the German nation state A nation state is a state in which a great majority shares the same culture Culture () is an umbrella term which encompasses the social b ...
that had been surrendered to France and Denmark. (cf. Little Reunification with the Saar). The towns of Elten, Selfkant, and Suderwick, which had been occupied and annexed by Netherlands in 1949, were reunited with the Federal Republic in 1963 by means of an international treaty without invoking Article 23. The Basic Law, in its original form, maintained the continuing existence of a larger Germany and German people, only parts of whom were currently organised within the Federal Republic. Nevertheless, the full extent of the implied wider German nation is nowhere defined in the Basic Law, although it was always clearly understood that the peoples of both East Germany and Berlin would be included. In its judgement of 1973, confirming the constitutional validity of the Basic Treaty between East Germany and West Germany, the Federal Constitutional Court justified the recognition of East Germany as a valid German state, on the basis that this would enable the GDR in the future to declare accession to the Basic Law under Article 23. But the Court then explicitly acknowledged that this limited ''de jure'' recognition of the GDR also implied acceptance of the constitutional power of the GDR in the interim to enter into international treaties on its own account, naming specifically the treaty with Poland which confirmed the transfer of the "
Eastern Territories
Eastern Territories
" to Polish sovereignty. The Communist regime in East Germany fell in 1990. Following free elections the parliament of the GDR (East Germany) declared the accession of the GDR according to Article 23 to the Federal Republic of Germany to come into effect on 3 October 1990, making unification an act unilaterally initiated by the last East German parliament. East Germany's "declaration of accession" (''Beitrittserklärung'') envisaged states within East Germany being included into the field of application of the Basic Law, but subject to the Basic Law first being amended in accordance with both the previously negotiated Unification Treaty between East and West Germany, and also the Two-Plus-Four Treaty, under which the Allied Powers had relinquished their residual German sovereignty. So, prior to the date of accession of East Germany to the Federal Republic of Germany, Article 23 was repealed, representing an explicit commitment under Two-Plus-Four Treaty that, following the unification of East Germany, West Germany and Berlin, no "other parts of Germany" remained in east or west to which the Berlin Republic might validly be extended. Rather than adopting a new constitution under Article 146 of the Basic Law, the ''
Bundestag The Bundestag (, "Federal diet (assembly), Diet") is the Germany, German Federalism, federal parliament. It is the only body that is directly elected by the German people on the federal level. It can be compared to a lower house similar to the ...

Bundestag
'' (Parliament of Germany) amended Article 146 and the Preamble of the Basic Law to state that German unification had now been fully achieved, while also adding a further clause 143(3) to entrench in the Basic Law the irreversibility of acts of expropriation undertaken by the Soviet occupying powers between 1945 and 1949. Hence when the GDR's nominal accession to the Federal Republic under Article 23 came into effect on 3 October 1990, Article 23 was no longer in place. Strictly therefore, German reunification was effected by the Unification Treaty between two sovereign states, the GDR and the Federal Republic, and not by the GDR's prior declaration of accession under Article 23, although the former Article 23 was agreed by both parties to the Treaty as setting the constitutional model by which unification would be achieved. As part of the process, East Germany, which had been a unitary state since 1952, was re-divided into its initial five partially self-governing states (''Bundesländer''), being granted equal status as the already existing Länder, with East and West Berlin reuniting into a new city-state (like
Bremen Bremen (, also ; Low German : : : : : , minority = (70,000) (30,000) (8,000) , familycolor = Indo-European , fam2 = Germanic Germanic may refer to: * Germanic peoples, an ethno-linguistic group identified by t ...
and
Hamburg en, Hamburgian(s) , timezone1 = Central (CET) , utc_offset1 = +1 , timezone1_DST = Central (CEST) , utc_offset1_DST = +2 , postal_code_type = Post ...

Hamburg
). After the changes of the Basic Law, mostly pertaining to the accession in 1990, additional major modifications were made in 1994 ("Verfassungsreform"), 2002 and 2006 (2006 = "Föderalismusreform").


Drafting process

Between February and June 1948, the London Six-Power Conference of the three western occupying powers (US, United Kingdom, France) and the three Western neighbours of Germany (Netherlands, Belgium, Luxembourg) was debating the political future of the three western occupation zones of Germany. The negotiations ended with the conclusion that a democratic and federal West German state was to be established. As an immediate consequence of the London 6-Power Conference, the representatives of the three western occupation powers on 1 July 1948, convoked the ''Ministerpräsidenten'' ( ministers-president) of the West German ''Länder'' in Frankfurt-am-Main and committed to them the so-called Frankfurt Documents (''Frankfurter Dokumente''). These papers—amongst other points—summoned the Ministerpräsidenten to arrange a constitutional assembly, that should work out a democratic and federal constitution for a West German state. According to Frankfurt Document No 1, the constitution should specify a central power of German government, but nevertheless respect the administration of the ''Länder'' and it should contain provisions and guarantees of individual freedom and individual rights of the German people in respect to their government. With the specific request of a federal structure of a future German state the Western Powers followed German constitutional tradition since the foundation of the Reich in 1871. The ''Ministerpräsidenten'' were reluctant to fulfill what was expected from them, as they anticipated that the formal foundation of a West German state would mean a permanent disruption of German unity. A few days later they convened a conference of their own on Rittersturz ridge near
Koblenz Koblenz (), spelled Coblenz before 1926, is a Germany, German city on the banks of the Rhine and of the Moselle, a multi-nation tributary. Koblenz was established as a Roman Empire, Roman military post by Nero Claudius Drusus, Drusus around 8 ...

Koblenz
. They decided that any of the Frankfurt requirements should only be implemented in a formally provisional way. So the constitutional assembly was to be called
Parlamentarischer Rat The ''Parlamentarischer Rat'' ( German for "Parliamentary Council") was the West German constituent assembly in Bonn The Federal city of Bonn ( lat, Bonna) is a city on the banks of the Rhine in the German state of North Rhine-Westphalia, w ...
(lit. parliamentary council) and the constitution given the name of ''Basic Law'' instead of calling it a "constitution". By these provisions they made clear, that any West German state was not a definite state for the German people, and that future German
self-determination The right of a people A people is any plurality of person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an ...
and the reunification of Germany was still on their agenda. The ''Ministerpräsidenten'' prevailed and the Western Powers gave in concerning this highly symbolic question. The draft was prepared at the preliminary Herrenchiemsee convention (10–23 August 1948) on the Herreninsel in the
Chiemsee Chiemsee () is a freshwater lake in Bavaria Bavaria (; German language, German and Bavarian language, Bavarian: ''Bayern'' ), officially the Free State of Bavaria (German and Bavarian: ''Freistaat Bayern''; ), is a Landlocked country, landlock ...

Chiemsee
, a lake in southeastern
Bavaria Bavaria (; German German(s) may refer to: Common uses * of or related to Germany * Germans, Germanic ethnic group, citizens of Germany or people of German ancestry * For citizens of Germany, see also German nationality law * German language ...

Bavaria
. The delegates at the Convention were appointed by the leaders of the newly formed (or newly reconstituted)
''Länder''
''Länder''
(states). On 1 September 1948 the Parlamentarischer Rat assembled and began working on the exact wording of the Basic Law. The 65 members of the Parlamentarischer Rat were elected by the Parliaments of the German ''Länder'' with one deputy representing about 750,000 people. After being passed by the
Parliamentary Council The Parliamentary Council was a constitutional authority in Sri Lanka Sri Lanka (, ; si, ශ්‍රී ලංකා, Śrī Laṅkā, translit-std=ISO; ta, இலங்கை, Ilaṅkai, translit-std=ISO), formerly known as Ceylon, and o ...
assembled at the Museum Koenig in Bonn on 8 May 1949—the Museum was the only intact building in Bonn large enough to house the assembly—and after being approved by the occupying powers on 12 May 1949, it was ratified by the parliaments of all the
Trizonal
Trizonal
''Länder'' with the exception of
Bavaria Bavaria (; German German(s) may refer to: Common uses * of or related to Germany * Germans, Germanic ethnic group, citizens of Germany or people of German ancestry * For citizens of Germany, see also German nationality law * German language ...

Bavaria
. The
Landtag of Bavaria The Landtag A Landtag (State Diet) is a representative assembly (parliament In modern politics and history, a parliament is a legislature, legislative body of government. Generally, a modern parliament has three functions: Repres ...

Landtag of Bavaria
rejected the Basic Law mainly because it was seen as not granting sufficient powers to the individual ''Länder'', but at the same time decided that it would still come into force in Bavaria if two-thirds of the other Länder ratified it. On 23 May 1949, in a solemn session of the Parliamentary Council, the German Basic Law was signed and promulgated. The time of ''legal nonentity'' ended, as the new West German state, the Federal Republic of Germany, came into being, although still under Western occupation.


Important differences from the Weimar Constitution

Basic rights are fundamental to the Basic Law, in contrast to the
Weimar Constitution The Constitution of the German Reich (german: Die Verfassung des Deutschen Reichs), usually known as the Weimar Constitution (''Weimarer Verfassung''), was the constitution that governed Germany during the Weimar Republic era (1919–1933). The c ...

Weimar Constitution
, which listed them merely as "state objectives." Pursuant to the mandate to respect
human dignity Dignity is the Rights, right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Age of Enlightenment, Enlightenment-era concepts ...
, all state power is directly bound to guarantee these basic rights. Article 1 of the Basic Law, which establishes this principle that "human dignity is inviolable" and that human rights are directly applicable law, as well as the general principles of the state in Article 20, which guarantees democracy,
republicanism Republicanism is a political ideology An ideology () is a set of belief A belief is an Attitude (psychology), attitude that something is the case, or that some proposition about the world is truth, true. In epistemology, philosophers use ...
,
social responsibility Social responsibility is an ethics, ethical framework and suggests that an individual has an obligation to work and cooperate with other individuals and organizations for the benefit of the community that will inherit the world said individual le ...

social responsibility
and
federalism Federalism is a mixed or compound mode of government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''State Maga ...

federalism
, remain under the guarantee of perpetuity stated in Article 79 paragraph 3, i.e., the principles underlying these clauses cannot be removed even if the normal amendment process is followed. There were, in the original version, no emergency powers such as those used by the '' Reichspräsident'' in the
Reichstag Fire Decree 250px, '' Das Andere Deutschlands final issue, announcing its own prohibition (''Verbot'') by the police authorities on the basis of the Reichstag fire decree The Reichstag Fire Decree (german: Reichstagsbrandverordnung) is the common name of th ...
of 1933 to suspend basic rights and to remove communist members of the
Reichstag is a German word generally meaning parliament, more directly translated as ''Diet (assembly), Diet of the Realm'' or ''National diet'', or more loosely as ''Imperial Diet''. It may refer to: Buildings and places is the god specific German word ...
from power, an important step for
Hitler Adolf Hitler (; 20 April 188930 April 1945) was an Austrian-born German politician who was the dictator of Nazi Germany, Germany from 1933 to 1945. Adolf Hitler's rise to power, He rose to power as the leader of the Nazi Party, becoming Cha ...
's ''
Machtergreifung Adolf Hitler's rise to power began in Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin Berlin (; ) is the and by both area and population. Its 3,769,495 inhabitants, as of 31 December 2019 m ...
''. The suspension of human rights would also be illegal under Articles 20 and 79, as above. The right to resist is permitted against anyone seeking to abolish constitutional order, if other remedies were to fail under Article 20. The constitutional position of the federal government was strengthened, as the '' Bundespräsident'' has only a small fraction of the former power of the ''Reichspräsident'', and in particular, is no longer in Supreme Command of the armed forces. Indeed, the original text of the Basic Law of 1949 made no provision for federal armed forces; only in 1955 was the Basic Law amended with Article 87a to allow the creation of a German military for the Federal Republic. The government now depends only on the parliament; while the military, by contrast with their status in the Weimar Republic, are entirely under parliamentary authority. To remove the chancellor, the parliament has to engage in a
Constructive vote of no confidenceThe constructive vote of no confidence (german: konstruktives Misstrauensvotum, es, moción de censura constructiva) is a variation on the motion of no confidence A motion of no confidence, vote of no confidence, or no confidence motion, sometimes ...
(''Konstruktives Misstrauensvotum''), i.e. the election of a new chancellor. The new procedure was intended to provide more stability than under the Weimar Constitution, when extremists on the left and right would vote to remove a chancellor, without agreeing on a new one, creating a leadership vacuum. In addition it was possible for the parliament to remove individual ministers by a vote of distrust, while it now has to vote against the cabinet as a whole. Article 32 of the Basic Law allows the states to conduct foreign affairs with states with regards to matters falling within their purview, under supervision of the Federal Government. Article 24 states that the Federal Government may 'transfer sovereign powers to international institutions' and Article 25 states that 'general rules of
international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nation A nation is a community A community is a social unitThe term "level of anal ...
shall be an integral part of federal law'. The latter article was included in deference to the post-war actions of the occupying Western powers; but had the unintended consequence that the Federal Constitutional Court tended to define 'rules of international law' as applicable to German federal law within Germany, that were nevertheless different from the generality of rules and principles of international law as they might operate between Germany and other nations. Hence, the Federal Constitutional Court could recognise East Germany as a sovereign state in international law in the second sense, while still asserting that it was not a 'sovereign state in international law' within Germany itself.


Basic Law and German ''Sonderweg''

In seeking to come to terms with Germany's catastrophic recent history, much discussion has focused on the key theory of a German ''
Sonderweg (, "special path") identifies the theory in German historiography that considers the German-speaking lands or the country of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , coordinates = , larges ...
'' (special way): the proposition that Germany had followed a path to modernity radically different from that of its European neighbours, that had rendered it particularly susceptible to militaristic, anti-humanitarian, totalitarian and genocidal impulses. The theory is much contested, but formed the major context for the original formulation of the Basic Law. The Basic Law sought "to correct the course of Germany's Sonderweg—to reclaim the German State from its special historical path, and to realise in postwar West Germany the Liberal Democratic Republic that had proved unachievable for the Frankfurt patriots of 1848 or the Weimar revolutionaries of 1919." In interpreting it, the Federal Constitional Court seemed to "have its eye on a Germany that might have been". In the dominant post-war narrative of
West Germany West Germany is the common English name for the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification German reunification (german: Deutsche Wieder ...
, the
Nazi Nazism ( ), officially National Socialism (german: Nationalsozialismus, ), is the ideology An ideology () is a set of belief A belief is an Attitude (psychology), attitude that something is the case, or that some proposition about th ...

Nazi
regime was characterised as having been a 'criminal' state, illegal and illegitimate from the outset, while the
Weimar Republic The Weimar Republic (german: Weimarer Republik ) was the German state from 1918 to 1933 when it functioned as a federal constitutional republic. The state was officially named the German Reich (german: Deutsches Reich, link=no, label=none), ...
was characterised as having been a 'failed' state, whose inherent institutional and constitutional flaws had been exploited by
Hitler Adolf Hitler (; 20 April 188930 April 1945) was an Austrian-born German politician who was the dictator of Nazi Germany, Germany from 1933 to 1945. Adolf Hitler's rise to power, He rose to power as the leader of the Nazi Party, becoming Cha ...

Hitler
in his "illegal" seizure of dictatorial powers. Consequently, following the death of Hitler in 1945 and the subsequent capitulation of the German Armed Forces, the national institutions and constitutional instruments of both Nazi Germany and the Weimar Republic were understood as entirely defunct, such that the Basic Law could be established in a condition of constitutional nullity. Nevertheless, although the Weimar Republic was now wholly irretrievable, avoiding its perceived constitutional weaknesses represented the predominant concern for the framers of the Basic Law. The experience of the Weimar Republic had resulted in a widespread public perception that the principles of representative democracy and of the rule of law (''
Rechtsstaat ''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, ta ...
'') were inherently in conflict with one another, and the Parliamentary Council drafting the Basic Law were well aware that their militantly pro-democratic ideals were far from generally shared in the bleak context of Germany in 1949. Hence they built into the Basic Law a strong instrument for guardianship of the " free democratic basic order" of the Federal Republic, in the form of the Federal Constitutional Court, representing a 'staggering conferral of judicial authority'. Unlike the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the Federal judiciary of the United States, federal judiciary of the United States of America. It has ultimate and largely Procedures of the Supreme Court of the United ...

United States Supreme Court
the Federal Constitutional Court not only has jurisdiction in constitutional matters, but also exclusive jurisdiction in such matters; all other courts must refer constitutional cases to it. The intention of the framers of the Basic Law was that this court would range widely against any tendency to slip back toward non-democratic ways: "a strict but benevolent guardian of an immature democracy that cannot quite trust itself". As such the Federal Constitutional Court had the power to ban political parties whose objectives or actions threatened the 'free democratic basic order". The Basic Law places at its head its guarantee of inviolable fundamental rights. Initially it was intended to limit these to classic formulations of civil freedoms, as with equality before the law, freedom of speech, freedom of assembly, freedom of occupation and freedom of religious conscience. In the event particular interests pushed for additional consideration: the Catholic Church (through
CDU CDU may refer to: Education * Catholic Distance University, a worldwide Catholic university based in Hamilton, Virginia, U.S offering theological instruction and degrees via Internet * Cebu Doctors' University, a medical university in the Phili ...
/CSU representatives) succeeded in inserting protection both for 'Marriage and the Family" and for parental responsibility for children's education,
SPD The Social Democratic Party of Germany (german: Sozialdemokratische Partei Deutschlands, ; SPD, ) is a social democratic political party in Germany. It is one of the two major parties of contemporary Germany along with the CDU/CSU, Union parties ...
representatives then amended this to protect additionally the rights of children born outside marriage, and
Elisabeth Selbert
Elisabeth Selbert
(one of only four women on the 70-strong panel) was eventually successful in a largely lone campaign to gain constitutional protection for sex equality. Notwithstanding this, there was a striking disjunction between the social context of two-parent, family households assumed in the Basic Law, and the everyday reality of German society in 1949, where over half of adult women were unmarried, separated or widowed, where the effective working population was overwhelmingly female, and where millions of expellees, refugees and displaced families were still without permanent accommodation. It was not until 1994 that constitutional protection was extended against discrimination on grounds of disability, while discrimination on grounds of sexual orientation is still not disallowed within the Basic Law.


Legal status of Germany

As adopted by West Germany in 1949 as an interim constitution, the preamble of the Basic Law looked forward explicitly to a future free and united German state: "The entire German people is called upon to accomplish, by free self-determination, the unity and freedom of Germany." This was understood as embedding in the Basic Law both the proposition that Germany in 1949 was neither unified nor free, and also as binding the new Federal Republic to a duty to pursue the creation of such a free and unified Germany "on behalf of those Germans to whom participation was denied". The Basic Law potentially provided two routes for the establishment of a reborn and unified German state: either under Article 23 whereby 'other parts of Germany' over and above the named
States of the Federal Republic
States of the Federal Republic
(''Bundesländer'') could subsequently declare their accession, or under Article 146 where
constituent power
constituent power
(''pouvoir constituant'') could be exercised by elected representatives of the entirety of the
German people Germans (, ) are the natives or inhabitants of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin Berlin (; ) is the Capital city, capital and List of cities in Germany by population, largest city ...
in creating a new permanent constitution that would replace the Basic Law. Adoption of a constitution under Article 146 would have implied that the legal validity of a unified German State would rest on "a free decision by the German people" as a whole. It is common ground that no effective national government of any sort existed in Germany in May 1945 following the surrender of the German High Command, and that all national military and civil authority and powers were thereon exercised by the four Allied Powers. The Allies then maintained that the former German Reich no longer existed in fact; so, as the 'highest authority' for Germany, they were entitled to assume all sovereign powers without limitation of duration or scope, and could legitimately impose whatever measures on the German people within German national territory as any government could legally do on its own people—including validly ceding parts of that territory and people to another country. They argued furthermore that international conventions constraining occupying powers in wartime from enforcing fundamental changes of governmental system, economic system or social institutions within the territory under their control—the Hague Regulations of Land Warfare and the
Geneva Conventions file:Geneva Convention 1864 - CH-BAR - 29355687.pdf, upright=1.15, Original document as PDF in single pages, 1864 The Geneva Conventions are four Treaty, treaties, and three additional Protocol (diplomacy), protocols, that establish internatio ...
—did not apply, and could not apply, as the termination of
Nazi Germany Nazi Germany, (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945, was ...

Nazi Germany
and the total
Denazification Denazification (german: link=no, Entnazifizierung) was an Allied initiative to rid German and Austrian society A society is a Social group, group of individuals involved in persistent Social relation, social interaction, or a large social ...
of German institutions and legal structures had been agreed by the Allied Powers as absolute moral imperatives. Consequently, the
Potsdam Agreement The Potsdam Agreement (german: Potsdamer Abkommen) was the 1 August 1945 agreement between three of the Allies of World War II : Generalissimo Chiang Kai-shek, Franklin D. Roosevelt, and Winston Churchill meeting at the Cairo Conference ...
envisaged that an eventual self-governing state would emerge from the wreckage of WWII covering 'Germany as a whole', but that this new state would have no claim to sovereignty other than as derived from the sovereignty then being assumed by the Allied Powers, and its constitution would also require the approval of all the Allies. From the 1950s onwards, however, a school of German legal scholars developed the alternative view that the Allies had only taken custody of German sovereignty while the former German state had been rendered powerless to act, and that consequently, once a freely constituted German government had come into being in the form of the Federal Republic, it could resume the identity and legal status of the former German Reich without reference to the Allied Powers. From the 1950s, the claim that there was a single continuing German Reich, and that in some sense the Federal Republic and the Federal Republic alone could represent that Reich, was adopted both by the Federal Government itself and by the
Federal Constitutional Court The Federal Constitutional Court (german: Bundesverfassungsgericht; abbreviated: ') is the supreme constitutional court for the Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , ...
. Initially, the 1949 constitution of the
German Democratic Republic German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ger ...
adopted a mirror image version of this claim, being framed in anticipation of a future all-German constitution on its own political terms, but all references to a wider national German nation were removed in constitutional amendments in 1968 and 1974, and from that date the GDR maintained that from 1949 there had existed two entirely separate sovereign German states. The Federal Republic's Cold-war Allies supported its claims in part, as they acknowledged the Federal Republic as the sole legitimate democratically organised state within former German territory (the GDR being held to be a Soviet
puppet state A puppet state, puppet régime or puppet government or dummy government is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State ( ...
), but they did not accept the associated arguments for the Reich's continuing 'metaphysical' existence ''de jure'' within the organs of the Federal Republic alone. Subsequently, under the ''
Ostpolitik ''Neue Ostpolitik'' (German for "new eastern policy"), or ''Ostpolitik'' for short, was the normalization of relations between the Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin ...
'', the Federal Republic in the early 1970s sought to end hostile relations with the countries of the
Eastern Bloc The Eastern Bloc, also known as the Communist Bloc, the Socialist Bloc and the Soviet Bloc, was the group of socialist state A socialist state, socialist republic, or socialist country, sometimes referred to as a workers' state or workers' ...
, in the course of which it negotiated in 1972 a Basic Treaty with the GDR, recognising it as one of two German states within one German nation, and relinquishing any claim to ''de jure'' sovereign jurisdiction over East Germany. The Treaty was challenged in the Federal Constitutional court, as apparently contradicting the overriding aspirations of the Basic Law for a unified German state; but the Treaty's legality was upheld by the Court, heavily qualified by a reassertion of the claim that the German Reich continued to exist as an 'overall state' such that the duty to strive for future German unity could not be abandoned while East and West Germany remained disunited, albeit that without any institutional organs of itself the 'overall' Reich was currently not capable of action. According to the 1973 decision of the Federal Constitutional Court, Article 23 of the Basic Law required the Federal Republic to be "legally open" to the accession of those former parts of Germany who were then organised into the German Democratic Republic, and they noted that this implied that the Federal Republic could recognise the capability of the GDR state, as then constituted, of so declaring its accession. In this sense, the Basic Treaty's recognition of the GDR as a ''de jure'' German State and as a valid state in international relations (albeit without then according it within West Germany with the status of a separate sovereign state) could be interpreted as furthering the long-term objective of eventual German unification, rather than as contradicting it. On 23 August 1990 the ''Volkskammer'' of the GDR did indeed declare its accession to the Federal Republic under Article 23 of the Basic Law, but postdated to come into effect on 3 October 1990, and conditional on fundamental amendments being made to the Basic Law in the interim. These amendments were required to implement the series of constitutional changes to the Basic Law that had been agreed both in the Unification Treaty between the GDR and the Federal Republic, and in the 'Two Plus Four Treaty' (
Treaty on the Final Settlement with Respect to Germany The Treaty on the Final Settlement with Respect to Germany (german: Vertrag über die abschließende Regelung in Bezug auf Deutschland; rus, Договор об окончательном урегулировании в отношении Гер ...
), and had the general effect of removing or rewording all the clauses (including Article 23) on which the Federal Constitutional Court had relied in support of its claim to the continued legal identity of the German Reich as an 'overall state'. Specifically too, the Basic Law was then amended such that the constitutional duty of the German people to strive for unity and freedom was stated as now fully realised, and consequently that the expanded ' Berlin Republic' could no longer be "legally open" to further accessions of former German territories.


Constitutional institutions

The Basic Law established Germany as a parliamentary democracy with
separation of powers Separation of powers refers to the division of a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' ...
into
executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, a senior management role in an organization ** Chief exec ...
,
legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) who use parliamentary procedure Parliamentary procedure ...
, and
judicial The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of court A court is any person or institution, often as a government A government i ...
branches. The executive branch consists of the largely ceremonial Federal President as head of state and the Federal Chancellor, the head of government, normally (but not necessarily) the leader of the largest grouping in the Bundestag. The legislative branch is represented by the
Bundestag The Bundestag (, "Federal diet (assembly), Diet") is the Germany, German Federalism, federal parliament. It is the only body that is directly elected by the German people on the federal level. It can be compared to a lower house similar to the ...

Bundestag
, elected directly through a
mixed-member proportional representation Mixed-member proportional representation (MMP or MMPR) is a mixed electoral system A mixed electoral system is an electoral system that combines a voting system using single-member districts with an element of proportional representation (PR ...
, with the German ''Länder'' participating in legislation through the Bundesrat, reflecting Germany's
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
structure. The judicial branch is headed by the
Federal Constitutional Court The Federal Constitutional Court (german: Bundesverfassungsgericht; abbreviated: ') is the supreme constitutional court for the Federal Republic of Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin , ...
, which oversees the constitutionality of laws.


Presidency

In Germany's
parliamentary system A parliamentary system or parliamentary democracy is a system of democratic Democrat, Democrats, or Democratic may refer to: *A proponent of democracy Democracy ( gr, δημοκρατία, ''dēmokratiā'', from ''dēmos'' 'people' an ...
of government, the Federal Chancellor runs the government and the day-to-day affairs of state. However, the German President's role is more than merely ceremonial. By his or her actions and public appearances, the Federal President represents the state itself, its existence, its legitimacy, and unity. The President's office has an integrative role and the controlling function of upholding the law and the constitution. It has also a "political reserve function" for times of crisis in the parliamentary system of government. The Federal President gives direction to general political and societal debates and has some important "
reserve power In a parliamentary A parliamentary system or parliamentary democracy is a system of democratic Democrat, Democrats, or Democratic may refer to: *A proponent of democracy Democracy ( gr, δημοκρατία, ''dēmokratiā'', from ' ...
s" in case of political instability (such as those provided for by Article 81). Under Article 59 paragraph 1, the Federal President represents the Federal Republic of Germany in matters of international law, concludes treaties with foreign states on its behalf and accredits diplomats. Furthermore, all federal laws must be signed by the President before they can come into effect; however, he/she can only veto a law that he believes to violate the constitution.


Executive branch

The Chancellor is the
head of government The head of government is either the highest or second-highest official in the executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administrat ...
and the most influential figure in German day-to-day politics, as well as the head of the Federal Cabinet, consisting of ministers appointed by the Federal President on the Chancellor's suggestion. While every minister governs his or her department autonomously, the Chancellor may issue overriding policy guidelines. The Chancellor is elected for a full term of the Bundestag and can only be dismissed by parliament electing a successor in a "constructive vote of no confidence".


Judicial branch


Federal Constitutional Court

The guardian of the Basic Law is the German Federal Constitutional Court (''Bundesverfassungsgericht'') which is both an independent constitutional organ and at the same time part of the judiciary in the sectors of constitutional law and public international law. Its judgements have the legal status of ordinary law. It is required by law to declare statutes as null and void if they are in violation of the Basic Law. Although judgements of the Federal Constitutional Court are supreme over all other counts, it is not a court of appeal; the FCC only hears constitutional cases, and maintains sole jurisdiction in all such cases, to the exclusion of all other courts. The court is famous for nullifying several high-profile laws, passed by large majorities in the parliament. An example is the Luftsicherheitsgesetz, which would have allowed the
Bundeswehr The ''Bundeswehr'' (, meaning literally: ''Federal Defence'') is the unified armed forces of Germany Germany (german: Deutschland, ), officially the Federal Republic of Germany, is a country in . It is the in Europe after , and the most popu ...
to shoot down civilian aircraft in case of a terrorist attack. It was ruled to be in violation of the guarantee of life and
human dignity Dignity is the Rights, right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Age of Enlightenment, Enlightenment-era concepts ...
in the Basic Law. The Federal Constitutional Court decides on the constitutionality of laws and government actions under the following circumstances: * individual complaint – a suit brought by a person alleging that a law or any action of government violated his or her constitutional rights. All possible solutions in the regular courts must have been exhausted beforehand. * referral by regular court – a court can refer the question as to whether a statute applicable to the case before that court is constitutional. * abstract regulation control – the federal government, a government of one of the federal states or a quarter of the
Bundestag The Bundestag (, "Federal diet (assembly), Diet") is the Germany, German Federalism, federal parliament. It is the only body that is directly elected by the German people on the federal level. It can be compared to a lower house similar to the ...

Bundestag
's members can bring suit against a law. In this case the suit need not refer to a specific case of the law's application. The Weimar Constitution did not institute a court with similar powers. When the Basic Law is amended, this has to be done explicitly; the concerning article must be cited. Under Weimar the constitution could be amended without notice; any law passed with a two-thirds majority vote was not bound by the constitution. Under the Basic Law the fundamentals of the constitution in Articles 1 and 20, the fundamental rights in Articles 1 to 19, and key elements of the federalist state, cannot be removed. Especially important is the protection of the division of state powers into the legislative, executive and judicial branches. This is provided by Article 20. A clear separation of powers was considered imperative to prevent measures like an over-reaching
Enabling act An enabling act is a piece of legislation Legislation is the process or product of enrolling, enacting, or promulgating Promulgation is the formal proclamation or the declaration that a new statute, statutory or administrative law is enacte ...
, as happened in Germany in 1933. This act had given the government legislative powers which effectively finished the Weimar Republic and led to the dictatorship of the
Third Reich Nazi Germany, (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945, was ...
.


Other courts

Article 95 establishes the
Federal Court of Justice The Federal Court of Justice (german: Bundesgerichtshof, BGH) in Karlsruhe is the highest court in the system of ordinary jurisdiction (''ordentliche Gerichtsbarkeit'') in Germany. It is the supreme court (court of last resort) in all matters of cr ...
, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal Social Court as supreme courts in their respective areas of jurisdiction. Article 96 authorises the establishment by federal law of the Federal Patent Court, of federal military criminal courts having jurisdiction only in a state of defence or on soldiers serving abroad,This authorisation has not been implemented by statute; German soldiers are under the jurisdiction of the civilian court system. See
German military law German military law has a long history. History Drumhead courts-martial in the German German(s) may refer to: Common uses * of or related to Germany * Germans, Germanic ethnic group, citizens of Germany or people of German ancestry * For c ...
.
and of a federal disciplinary court.The Federal Disciplinary Court was abolished in 2003 and its jurisdiction merged into the administrative court system. See '' Bundesdisziplinargericht'' . Article 92 establishes that all courts other than the federal courts established under the Basic Law are courts of the
''Länder''
''Länder''
. Article 101 bans extraordinary courts, such as the ''Volksgerichtshof''.


General provisions for the judiciary and rights of the accused

Article 97 provides for
judicial independence Judicial independence is the concept that the judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of court A court is any person or institut ...
. Article 102 abolishes
capital punishment Capital punishment, also known as the death penalty, is the state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ' ...
. Article 103 mandates a
fair trial Fair Trial (1932–1958) was a British Thoroughbred The Thoroughbred is a horse breed A horse breed is a selectively bred population of domestication, domesticated horses, often with Pedigree chart, pedigrees recorded in a breed registry. ...
, forbids retroactive criminal legislation and multiple punishment for the same criminal act. Article 104 mandates that deprivation of personal liberty must be provided for by statute and authorised by a judge before the end of the day following the arrest (analogous to the common law concept of
Habeas corpus (; from Medieval Latin Medieval Latin was the form of Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, ...
), and that a relative or a person in the confidence of the prisoner must be notified of a judicial decision imposing detention. The German Constitution (i.e. the Basic Law of the Federal Republic of Germany) unmistakably outlines the
presumption of innocence The presumption of innocence is a legal principle A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent A precedent is a principle or rule established in a previous legal case A legal ca ...
.


Legislative branch


Bundestag

The main body of the legislative branch is Germany's parliament, the Bundestag, which enacts federal legislation, including the budget. Each member of the Bundestag has the right to initiate legislation, as do the cabinet and the Bundesrat. The Bundestag also elects the
Chancellor Chancellor ( la, links=no, cancellarius) is a title of various official positions in the governments of many nations. The original chancellors were the ''cancellarii Cancelli are lattice-work, placed before a window, a door-way, the tribunal o ...
, the head of government, usually (but not necessarily) the leader of the majority party or the party with a plurality of seats in the Bundestag, and takes part in the election of the Federal President.


Bundesrat

The Bundesrat represents the ''Länder'' (states) and participates in federal legislation. The Bundesrat's power has grown over the years, as the fields of federal legislation were extended at the expense of state legislation. In return, the number of laws requiring the assent of the Bundesrat was also extended.


Early elections

The Basic Law contains no clear provision to call early elections. Neither the chancellor nor the Bundestag has the power to call elections, and the
president President most commonly refers to: *President (corporate title) A president is a leader of an organization, company, community, club, trade union, university or other group. The relationship between a president and a Chief Executive Officer, chi ...
can do so only if the government loses a
confidence vote A motion of no confidence, vote of no confidence, or no confidence motion, sometimes in the reverse as a motion of confidence or vote of confidence, is a statement or vote about whether a person in a position of responsibility (government, manager ...
if the chancellor so requests. This was designed to avoid the chronic instability of
Weimar Republic The Weimar Republic (german: Weimarer Republik ) was the German state from 1918 to 1933 when it functioned as a federal constitutional republic. The state was officially named the German Reich (german: Deutsches Reich, link=no, label=none), ...
governments. However, early elections have been called three times (1972, 1982, and 2005). The last two occasions were considered controversial moves and were referred to the constitutional court for review. In 1972, Chancellor
Willy Brandt Willy Brandt (; born Herbert Ernst Karl Frahm; 18 December 1913 – 8 October 1992) was a German politician and statesman who was leader of the Social Democratic Party of Germany The Social Democratic Party of Germany (german: Sozialdemokrati ...

Willy Brandt
's coalition had lost its majority in the Bundestag, so that the opposition (CDU/CSU) tried to pass a constructive vote of no confidence, thus electing
Rainer Barzel Rainer Candidus Barzel (20 June 1924 – 26 August 2006) was a German politician of the Christian Democratic Union (CDU). He served as the 8th President of the Bundestag President most commonly refers to: *President (corporate title) A pres ...

Rainer Barzel
as new chancellor. Surprisingly, two representatives of CDU/CSU voted for SPD's Willy Brandt so that the vote failed. Nevertheless, the coalition had no majority in the Bundestag, so that a new election was necessary. It was later revealed that the East German Ministry for State Security had bribed the two dissenting representatives. In 1982, Chancellor
Helmut Kohl Helmut Josef Michael Kohl (; 3 April 1930 – 16 June 2017) was Chancellor of Germany The chancellor of Germany, officially the Federal Chancellor of the Federal Republic of Germany (german: Bundeskanzler(in) der Bundesrepublik Deutschlan ...

Helmut Kohl
intentionally lost a confidence vote in order to call an early election to strengthen his position in the Bundestag. The
constitutional court A constitutional court is a high court High court usually refers to the superior court In common law systems, a superior court is a court A court is any person or institution, often as a government institution, with the authority to Ad ...
examined the case, and decided that the vote was valid, but with reservations. It was decided that a vote of no confidence could be engineered only if it were based on an actual legislative impasse. In 2005, Chancellor
Gerhard Schröder Gerhard Fritz Kurt Schröder (; born 7 April 1944) is a German retired politician, lawyer, consultant and lobbyist, who served as the chancellor of Germany The chancellor of Germany, officially the Federal Chancellor of the Federal Republic ...

Gerhard Schröder
engineered a defeat in a
motion of no confidence A motion of no confidence, vote of no confidence, or no confidence motion, sometimes in the reverse as a motion of confidence or vote of confidence, is a statement or vote about whether a person in a position of responsibility (government, manage ...
after a power shift in the '' Bundesrat''. President
Horst Köhler
Horst Köhler
then called
elections An election is a formal group decision-makingGroup decision-making (also known as collaborative decision-making or collective decision-making) is a situation faced when individuals An individual is that which exists as a distinct entity. Ind ...

elections
for 18 September 2005. The constitutional court agreed to the validity of this procedure on 25 August 2005, and the elections duly took place.


Role of 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 contrast, the Basic Law stipulates that parties' "... internal organisation must conform to democratic principles", which precludes any party using the
Führerprinzip The (; German for 'leader principle') prescribed the fundamental basis of political authority in the Government of Nazi Germany. This principle can be most succinctly understood to mean that "the 's word is above all written law" and that gov ...
, even internally).


Other stipulations


Role of the military

From the outset, the Basic Law guaranteed the right of
conscientious objection A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, or religion Religion is a social system, social-cultural system of designated ...
to war service (Article 4), and prohibited the Federal Republic from activities preparing for or engaging in aggressive war (Article 26). These provisions remain in force; and that in Article 4 is a fundamental right that cannot be removed in any subsequent amendment. Also in the 1949 Basic Law, Article 24 empowered the federal government to join international systems for mutual collective security; but made no specific provision for West German rearmament. The Basic Law was amended in 1955 with Article 87a allowing the creation from new of federal armed forces, the ''
Bundeswehr The ''Bundeswehr'' (, meaning literally: ''Federal Defence'') is the unified armed forces of Germany Germany (german: Deutschland, ), officially the Federal Republic of Germany, is a country in . It is the in Europe after , and the most popu ...
''. The ''
Bundeswehr The ''Bundeswehr'' (, meaning literally: ''Federal Defence'') is the unified armed forces of Germany Germany (german: Deutschland, ), officially the Federal Republic of Germany, is a country in . It is the in Europe after , and the most popu ...
'' therefore has no constitutional or legal continuity with either the ''Reichswehr'' of the Weimar Republic, or with the ''Wehrmacht'' of WWII Germany. The Weimar Constitution had contributed to the Reichswehr becoming a state within a state, outside of the control of the parliament or the public. The army directly reported to the President of Germany (1919–1945), President who himself was not dependent on the parliament. Under the Basic Law, during times of peace, the
Bundeswehr The ''Bundeswehr'' (, meaning literally: ''Federal Defence'') is the unified armed forces of Germany Germany (german: Deutschland, ), officially the Federal Republic of Germany, is a country in . It is the in Europe after , and the most popu ...
is under the command of the Minister of Defence (Germany), Minister of Defence, and during war-time under the Federal Chancellor. The Chancellor is directly responsible to the parliament, the Minister is indirectly responsible to the parliament because it can remove the entire Cabinet by electing a new chancellor. The Basic Law also institutes the parliamentary post of the ''Wehrbeauftragter'' (''defense commissioner''), reporting once a year to parliament, not to the executive. The ''Wehrbeauftragter'' is a soldiers' ombudsman who can be petitioned directly by soldiers, bypassing the chain of command. Disciplinary measures against soldiers petitioning the ''Wehrbeauftragter'' are prohibited. From eleven defense commissioners until 2013 eight performed military or war services. Six hold an officer's rank (or reserve officer's rank), two of them, as Vizeadmiral Hellmuth Heye, were high-ranking and decorated admirals or generals of the Wehrmacht. Although this is not explicitly spelled out in the Basic Law, a number of Constitutional Court cases in the 1990s established that the military may not be deployed by the government outside of NATO territory without a specific resolution of parliament, which describes the details of the mission and limits its term. There are also strict restrictions on the intervention of the military within Germany (i.e. a ban of the military being used for police-type duties), which generally only allow the military to act in unarmed roles within Germany (such as disaster relief).


Referendums and plebiscites

Unlike the Weimar Constitution, the Basic Law only names referendums, concerning the federal level of legislation, on a single issue: a States of Germany#New delimitation of the federal territory, new delimitation of the federal territory. Baden-Württemberg was founded following a 1952 referendum that approved the fusion of three separate states. In a 1996 referendum the inhabitants of Berlin and Brandenburg rejected a proposed merger of the two states. After referendums on reestablishing to Länder borders as existed in the
Weimar Republic The Weimar Republic (german: Weimarer Republik ) was the German state from 1918 to 1933 when it functioned as a federal constitutional republic. The state was officially named the German Reich (german: Deutsches Reich, link=no, label=none), ...
all failed, this institution has not been used, as minor border changes can be done by state contract. The denial of referendums in other cases was designed to avoid the kind of populism that allowed the rise of
Hitler Adolf Hitler (; 20 April 188930 April 1945) was an Austrian-born German politician who was the dictator of Nazi Germany, Germany from 1933 to 1945. Adolf Hitler's rise to power, He rose to power as the leader of the Nazi Party, becoming Cha ...
. Yet Article 20 states that "All state authority is derived from the people. It shall be exercised by the people through elections and other votes [''Abstimmungen''] and through specific legislative, executive and judicial bodies". These ''other votes''—the words are to be understood meaning votes on legislative issues—are, by now, common practice on the level of the Länder. Claims of extending this practice also to the federal level have an undisputed constitutional basis in the Article 20, being ''the'' general and unchangeable article on state structure. However, this could only be conferred by a constitutional amendment nevertheless.


Amendments


Process

Article 79 states the Basic Law may be amended by an absolute two-thirds majority of both the
Bundestag The Bundestag (, "Federal diet (assembly), Diet") is the Germany, German Federalism, federal parliament. It is the only body that is directly elected by the German people on the federal level. It can be compared to a lower house similar to the ...

Bundestag
and the Bundesrat. Such a vote may not remove any of the principles underlying Articles 1 and 20 as defined by the eternity clause, or remove or otherwise affect the essence of, any of the fundamental rights originally specified in Articles 1 to 19, but may clarify, extend or refine those original principles and fundamental rights. Where however Articles 1 to 20 have subsequently been amended or extended, any additional words and phrases are not protected by the eternity clause but may be further amended or removed through the normal constitutional process.


History

The Basic Law has been amended 50 times as of 2003. Important changes to the Basic Law were the re-introduction of conscription and the establishment of the Bundeswehr in 1956. Therefore, several articles were introduced into the constitution, e.g., Articles 12a, 17, 45a-c, 65a, 87a-c. Another important reform was the introduction in 1968 of emergency competencies, for example Article 115 paragraph (1). This was done by a grand coalition of the two main political parties (CDU/CSU and SPD) and was accompanied by heated debate. In the following year there were changes to the articles regarding the distribution of taxes between federal government and the states of Germany. During German reunification, reunification, the two states discussed the possibility of drafting a new common constitution followed by a plebiscite, as envisioned in Article 146, but this path was ultimately not taken. Instead the Federal Republic of Germany and the German Democratic Republic decided to keep the Basic Law, amended in accordance with the terms of the Two plus Four Treaty, because it had proved to be effective in West Germany. To facilitate reunification and to reassure other states, the FRG made some changes to the Basic Law. Article 23 was fulfilled by reunification itself, and then withdrawn to indicate that there were no other parts of Germany that existed outside of the unified territory. The question of "using″ Article 146 to draw a new constitution, and hold a referendum, was left to the twelfth (and first all-German) Bundestag, which after consideration decided against a new draft. However, the Bundestag passed the constitutional reform of 1994, a minor change, but still fulfilling the constitutional question together with some other amendments between 1990 and 1994. For example, affirmative action was allowed in women's rights under Article 3, and environmental protection was made a policy objective of the state in the new Article 20a. Article 3 was also reworded to ban discrimination on grounds of disability. In 1992, membership in the European Union was institutionalised (new Article 23). For the privatisation of the Deutsche Bundesbahn, railways and the Deutsche Bundespost, postal service, amendments were necessary as well. Since then, there have only been minor amendments, with the exception of the Balanced Budget Amendment added in 2009, which became fully effective in 2016. In 2002, the protection of animals was explicitly mentioned in Article 20a. The most controversial debate arose concerning the limitation of the right to asylum in 1993 as in the current version of Article 16a. This change was later challenged and confirmed in a judgment by the constitutional court. Another controversy was spawned by the limitation of the right to the invulnerability of the private domain (''Unverletzlichkeit der Wohnung'') by means of acoustic observation (''Großer Lauschangriff''). This was done by changes to Article 13 paragraph (3) and Article 6. The changes were challenged in the constitutional court, but the judges confirmed the changes. Other changes took place regarding a redistribution of competencies between federal government and the ''Länder''.


Literature

* Donald P. Kommers, Russell A. Miller (2012): ''The Constitutional Jurisprudence of the Federal Republic of Germany: Third Edition, Revised and Expanded''. Duke University Press, 3rd edition (2nd ed. 1997), .


See also


Former constitutions

* Constitution of the German Confederation (1815) ** Constitution of Prussia (1848) * Frankfurt Constitution (1849) ** Constitution of Prussia (1850) * North German Constitution (1867) * Constitution of the German Confederation (1871) * Constitution of the German Empire (1871) *
Weimar Constitution The Constitution of the German Reich (german: Die Verfassung des Deutschen Reichs), usually known as the Weimar Constitution (''Weimarer Verfassung''), was the constitution that governed Germany during the Weimar Republic era (1919–1933). The c ...

Weimar Constitution
(1919) ** Constitution of Prussia (1920) **
Reichstag Fire Decree 250px, '' Das Andere Deutschlands final issue, announcing its own prohibition (''Verbot'') by the police authorities on the basis of the Reichstag fire decree The Reichstag Fire Decree (german: Reichstagsbrandverordnung) is the common name of th ...
(1933) ** Enabling Act of 1933, Enabling Act (1933) * Constitution of East Germany#1949 constitution, First Constitution of East Germany (1949) * Constitution of East Germany#1968 constitution, Second Constitution of East Germany (1968)


Others

* Abolition of Prussia * Bremen clause * Bundesrechnungshof * Constitutional economics * Constitutionalism * Post-World War II Constitution of Italy * Post-World War II Constitution of Japan * German Emergency Acts * History of Germany * Legal status of Germany * Politics of Germany *
Rechtsstaat ''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, ta ...
* Reconstruction of Germany * Rule according to higher law * ''Streitbare Demokratie'' *United Kingdom constitutional law


Notes


References


External links

* Full text ** Official text
HTMLPDF
(status: August 2006) ** Official Translation
HTMLPDF
** Original text of the Basic Law, as adopted in 194
PDF
* Former constitutions ** s:Constitution of the German Empire, Constitution of the German Empire (1871–1919). Full text from Wikisource. *
Constitution of the Weimar Republic (1919–1933)
*

* Other links *
Introduction to the basic and the constitutional law
(on JurisPedia). *
Staatsrecht for you – Introduction to german constitutional law
{{DEFAULTSORT:Basic Law for the Federal Republic of Germany German constitutional law 1949 in law 1949 documents West Germany Constitutions of Germany 1949 in West Germany 1949 in politics May 1949 events Anti-fascist works