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Comparative Law Spring 2002 Professor Susanna Fischer

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Title: Comparative Law Spring 2002 Professor Susanna Fischer


1
Comparative Law Spring 2002Professor Susanna
Fischer
  • CLASS 9
  • THE GERMAN CONSTITUTION I

2
WRAP-UP POINTS
  • Our study of French legal history showed that
    before the French Revolution (1789), French law
    was a patchwork of customary and regional laws,
    due to the power of the regional Parlements,
    despite the development of an absolute monarchy.
  • The Revolution toppled the King, aristocracy and
    Parlements from power.
  • When Napoleon took over, he codified the law in
    an attempt to centralize and systematize it. His
    Codes were strongly influenced by Roman law, as
    well as by the 17th century codes under Colbert
    and Louis XIV

3
THE GRUNDGESETZ (BASIC LAW)
  • What is the Basic Law?
  • How was it created?
  • What was its purpose?
  • When did it come into force?
  • Is it still in force today?

4
THE NAME GRUNDGESETZ
  • Why was it called Grundgesetz (Basic Law)
    rather than die Verfassung (Constitution)?

5
THE NAME GRUNDGESETZ
  • Why was it called das Grundgesetz (Basic Law)
    rather than die Verfassung (Constitution)?
  • The drafters of the Grundgesetz wanted to
    underscore the provisional character of the West
    German state. It was a goal, stated in the
    Preamble, that there would be one unified
    Germany. This goal took 50 years to be achieved
    but has now been realized with the 1989 removal
    of the Berlin Wall and the 1990 Reunification(and
    the Preamble altered)

6
GRUNDGESETZ AND VERFASSUNGSGERICHT
  • As a source of law, how does the Grundgesetz rank
    in relation to other sources of German law?
  • Can the Grundgesetz be amended?

7
AMENDMENT
  • Amendment is possible but only pursuant to
    Article 79 GG. (GG stands for Grundgesetz)
  • Requires a law passed by 2/3 of both members of
    Bundestag and Bundesrat.
  • Some constitutional rules cant be changed, such
    as the basic rights in Arts. 1-20 GG, the
    division of Germany into Länder, and the
    participation of the Länder in the legislative
    process. See Art. 79 GG.

8
Fundamental Structural Principles of the German
State
  • What are the fundamental structural principles of
    the German constitution (applicable both for the
    federal state and for the Länder)? Name and
    describe each.

9
Fundamental Structural Principles of the German
State
  • Demokratie (Democracy)
  • Republik (Republic)
  • Rechtstaat (Constitutional State)
  • Sozialstaat (Social State)
  • Bundestaat (Federal State)
  • Protection of the Environment (Art. 20a GG)

10
Demokratie
  • Democracy All state authority is derived from
    the people (Art. 20 GG)
  • But this democracy is representative It shall
    be exercised by the people though elections and
    other votes and through legislative, executive
    and judicial bodies.
  • Individuals are not completely excluded from
    decision-making the GG refers to referenda and
    input on border modifications (Arts. 29, 118,
    118a GG)

11
Demokratie
  • In assessing the significance of the
    constitutional principle of democracy, it is
    important to remember that for much of Germanys
    history its government was completely
    undemocratic.

12
Republik
  • Republic As your book explains, a republic is
    the opposite of a monarchy the head of state of
    a republic is elected rather than being royal.
  • The Bundespräsident is elected for 5 year term (2
    term limit). Art. 54 GG
  • Who is the current Bundespräsident?

13
Bundespräsident
  • Johannes Rau elected in 1999
  • SPD

14
Rechtsstaat
  • Constitutional State Rule of Law Art. 20(3) GG
    The legislature shall be bound by the
    constitutional order, the executive and the
    judicary by law and justice
  • Every citizen is protected by certain basic
    rights in Arts. 1-19 GG (more on this in the next
    class)
  • Rechtsschutzgarantie guarantee of legal
    protection from State acts/omissions
  • Gewaltenteilung separation of powers (Art.
    20(2) GG)

15
More on the Separation of Powers
  • The Basic Law allocates different tasks to
    legislature, executive and judiciary
  • Certain institutions are delegated as legislative
    (e.g. Bundestag and Bundesrat), executive
    (Bundespräsident, Federal Government) and
    judiciary (Federal courts, including
    Bundesverfassungsgericht (Federal Constitutional
    Court))

16
Rechtstaat
  • Principles of fidelity Vertrauensschutzprinzip
    and certainty Bestimmtheitsgrundsatz
  • Law cannot be applied retroactively. No
    retroactive criminal legislation Art 103(2)
  • Parliament must employ specificity and clarity in
    legal drafting.

17
Sozialstaat
  • Social state (stated in Art. 20(1) and 28 GG)
  • The social state is grounded in the basic right
    to human dignity (Menschenwürde) in Art. 1
    which means that the state must guarantee legal
    rights but also social conditions that are
    necessary to permit an individual to live his or
    her life.
  • No specific social basic rights in the Basic Law,
    such as the right to work.

18
Bundesstaat
  • Federal State (Art. 20(1) GG).
  • The decision to make Germany a federal state was
    grounded in historical experience it was an
    attempt to prevent a repeat of any government
    similar to the centralized Nazi dictatorship.
  • Art. 30 gives the Federation powers only where
    specifically enumerated, although through
    amendments to the GG there has gradually been a
    shift in the balance of power toward the
    Federation.

19
Länder and Legislation
  • Länder have the right to legislate except where
    specifically given to Federation (Art. 70(1))
  • Some areas of federal legislation are exclusive,
    e.g. foreign affairs, currency, citizenship (Art.
    71, 73, 105(1))
  • Some areas of federal legislation are concurrent,
    e.g. civil law, criminal law, law relating to
    commerce, labor law (Art. 72, 74)

20
Concurrent Legislation
  • Federation may only legislate in the areas of
    concurrent legislation if these areas are
    enumerated as areas of concurrent legislation
    (Arts. 74, 74a, and 105 GG) and also there is a
    need for uniform regulation throughout Germany
    (Art. 72 GG)

21
Federal Skeleton or Framework Legislation
  • Art. 75 gives the Federation (subject to Art. 72
    prerequisites) power to enact such skeleton or
    framework legislation, to be completed by Land
    legislation, in certain specified areas,such as
    higher education, and nature conservation.
  • What is the Bundestag?
  • What does it do?

22
Bundestag Arts. 38-48 GG
  • Highest constitutional organ in Germany and one
    of 2 chambers of Parliament.
  • Legislative body directly elected by the German
    people
  • 669 Representatives now they serve a 4 year term
  • Mixed member proportional system Electors cast 2
    votes one for member from his/her constituency,
    and the second for the Land list
    (majority/proportional voting)
  • Elects Chancellor (Arts. 63, 67 and 68 GG)
  • Parliamentary committees Ausschuß what do they
    do?

23
Composition of the Bundestag
  • When was the last Bundestag election?
  • How many political parties have seats? Which
    parties? What percentage of members?
  • Note to obtain representation in the Bundestag,
    it is necessary for a party to have at least 5
    of the Land list votes and win seats in at least
    3 constituencies.

24
Bundestag Parties (9/1998-9/2002 (81 voter
turnout)
  • SDP 40.9 298 seats
  • CDP 28.4 198 seats
  • CSU 6.7 47 seats
  • Bundnis 90/Greens 6.7 47 seats
  • FDP 6.2 43 seats
  • PDS 5.1 36 seats
  • REP 1.8 no seats
  • DVU 1.2 no seats
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