Table of Contents
1. Germany’s history
2. The German Basic Law (Grundgesetz)
3. The Federal Constitutional Court (Bundesverfassungsgericht)
4. Comparison with foreign countries
4. Book Chapters
According to the first Article of the German Basic Law (Grundgesetz) human dignity shall be inviolable: “Die Würde des Menschen ist unantastbar”. The fact that the protection of human dignity is enshrined at the very beginning of the Basic Law emphasises its value and significance. But has it always been like this, or rather, since when did human rights protection gain such importance?
It is both interesting and necessary within comparative legal studies to look at laws and their development in various countries since legal history can support the study of comparative law. Especially constitutional issues are relevant as the functioning of a state and human co-existence are based on constitutional principles and values. An analysis of the historic developments permits a better understanding of law in general as well as a critical analysis of one’s own domestic legal system.
The aim of this essay is to analyse the German constitution and its emphasis on human rights protection in the Federal Constitutional Court (Bundesverfassungsgericht) and to discuss whether it is a consequence resulting from Germany’s history. First, this essay will present an overview of Germany’s history with particular focus on the period of the Weimar Republic and the National Socialism. In the next section, it will outline the history of origins of the Basic Law as well as its catalogue of fundamental rights, followed by an illustration of the competences of the Federal Constitutional Court in contrast to its predecessors. Finally, a short comparison with regard to the American, French and British Constitution will be drawn.
1. Germany’s history
It is a common statement that the German Basic Law is both a reaction to certain challenges and the attempt to overcome the defects of former constitutions and political systems and that the Federal Constitutional Court would not put as much emphasis on human rights protection but for the historical events. In order to analyse whether this assertion is grounded on true roots, it is necessary to have a closer look at Germany’s history. The Frankfurt Constitution (Frankfurter Reichsverfassung) of 1849, also called Constitution of St. Paul’s Church (Paulskirchenverfassung) as the members of the Frankfurt Parliament, the National Assembly, were meeting in St. Paul’s Church, was the first democratic constitution designed to be effective for a unified German state. It provided for a democratic government in the form of a constitutional monarchy and included a charter of fundamental rights. For the first time in German history, liberty and equality before the law were meant to be the foundation of a new constitutional order. However, by the time the constitution with its catalogue of human rights was about to be enforced, the counter revolution in Prussia and Austria had already triumphed, leading to the consequence that it never came into existence. Even though the Frankfurt Constitution had failed, it remained exemplary for later constitutions and it had a strong influence on the Weimar Constitution of 1919 as well as on the Basic Law of 1949.
A second big step in the history of the constitutional system of Germany was the Constitution of the Weimar Republic as the first completely democratic and liberal constitution that governed Germany from 1919–1933. One of its significant characteristics is that it contained an extensive catalogue of rights and duties – in contrast to the Constitution of the German Empire of 1871 (Reichsverfassung) that did not provide for basic rights at all. For instance, the law acknowledged citizens’ equality and the individual’s liberty was protected. However, the Weimar Constitution recognised the basic rights merely as goals and guiding principles that were not judicially enforceable. Plus, one of the weaknesses of the Weimar Constitution was that stable majorities have never existed, resulting in twenty governments ruling the Republic within fourteen years. Due to the flaw that the human rights did not enjoy any specific protection they could easily be suppressed in the Third Reich.
The most devastating events in German history which had the biggest impact on the German constitution as it is today are those of the National Socialist period. No new constitution was enacted, but the existing one was substantially reworked or simply ignored; hence it was still in force in name but was in effect suspended. A complete breaking-through of the constitution (Verfassungsdurchbrechung) was established by the Enabling Act of 23 March 1933 (Ermächtigungsgesetz) which transferred practically all legislative powers of Parliament to the government under the new chancellor Hitler who could also suspend important fundamental rights in case of emergency. The dictatorship of Hitler, the following building up of concentration camps (Konzentrationslager) and the happenings resulting in World War II emphasize the disastrous fact that human rights were treated with bare contempt.
2. The German Basic Law (Grundgesetz)
After the total defeat and destruction of Germany after World War II a new political order was needed. The Allied Powers – France, Great Britain and the United States – resolved to combine their respective zones of occupation into a separate state and they offered West Germans an opportunity to remake themselves politically under a new charter, subject to Allied approval. The aims of a new constitution were little different from those of the Weimar Republic: both were formed out of the chaos of defeat in a devastating world war and sought to establish a democratic federal republic guaranteeing rights to prevent war again. However, a big difference is that this time the legislators had learnt from the mistakes in the past and their purpose was to form a constitution which would avoid the inadequacies of the Weimar Constitution that led to a situation of failure of democracy and abuse of human rights. Since the weaknesses within the Weimar constitution concerning defence mechanisms against undemocratic movements became obvious after the catastrophe of the Weimar Republic yielding to the Nazi totalitarian dictatorship, the Weimar Constitution could be used as a “negative blueprint” for the Basic Law. Against this backdrop, emphasis was put on the weakening of the position of the President while enhancing the powers of the chancellor and Parliament, on constituting a strong Parliamentary system, on strengthening federalism by extending the powers of the federate states (Bundesländer) and on introducing the necessity of a “constructive vote of no confidence” (konstruktives Misstrauensvotum) in order to remove the Cabinet.
The Basic Law as supreme source of German law states the leading principles of the state, its organisation and the individuals’ basic rights. Its supreme position is emphasised by Article 1 Basic Law, declaring all state authorities bound by the basic rights, and Article 20 Basic Law, subjecting even the legislature to the constitutional order. The draft of the Basic Law, made by a committee of experts in Herrenchiemsee (Herrenchiemseekonvent), was passed by the Council on 8 May 1949 and came into effect on 23 May 1949. Under the circumstances of a divided Germany the founders decided, pending Germany’s reunification and therefore regarding it merely as provisional, to call it “Basic Law” (Grundgesetz) rather than “constitution” (Verfassung). However, since the Basic Law had proved to be a well-functioning constitution, the political decision-makers refrained from taking the risk of enacting a less suitable one when both parts of Germany were finally reunified in 1990 and only minor changes and amendments were introduced.
In order to stress the aim of ensuring that a potential dictator would never again have the chance to come into power, human rights and dignity constitute the core part of the Basic Law: whereas the Weimar Constitution listed fundamental basic rights merely as state objectives, the Basic Law contains a complete catalogue of subjective public rights. These basic rights are presented before the other chapters – dealing with the rights of the various governmental organisations and the relationship between the different organs of state – to underline their importance in the new German Constitution in contrast to the position given to them at the end of the Weimar Constitution. The first nineteen Articles provide for a wide range of individual liberties and rights against encroachments by the state, such as freedom of faith and conscience, freedom of expression, arts and sciences, freedom of assembly and property rights. The most precious Article is the first one, the protection of human dignity (Schutz der Menschenwürde) as the key concept of the constitution, illustrated by its primary position at the very beginning. This is not surprising bearing in mind the experience of the atrocities under the Nazi dictatorship and the contempt which human dignity had been treated with in the Third Reich. The inviolability of human dignity is a high aim and it seems to be a vague concept to some extent as it can be interpreted as protecting the sum of all human rights. In reaction to the weakness of fundamental rights in the nineteenth and twentieth century, the first Article explicitly declares them to be directly applicable law and to bind all branches of government. Furthermore, human rights experience a special protection by the fact that a statute which expressly amends or supplements the Basic Law and which finds a two thirds majority within both the Bundestag and the Bundesrat is required to make any amendments of the Basic Law, thereby outlawing the above mentioned Verfassungsdurchbrechung. The so-called eternity clause (Ewigkeitsklausel) is of particular significance since it excludes any amendments affecting the principles laid down in Articles 1 and 20 Basic Law. Thereby the perpetuity of the five structural principles republicanism (Republik), democracy, federal state (Bundesstaat), rule of law (Rechtsstaat) and social state (Sozialstaat) as well as the inviolability of human dignity is guaranteed. This seems to be a huge step against the backdrop of the historical happenings.
 Basic Law (Grundgesetz), Article 1 Paragraph 1.
 Mathias Reimann, ‘Rechtsvergleichung und Rechtsgeschichte im Dialog‘ (1999) 7 Zeitschrift für Europäisches Privatrecht 496.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 13; Alec Stone Sweet, ‘Constitutional Courts’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 818.
 Wolfram Siemann, ‘The Revolutions of 1848–49 and the Persistence of the Old Regime in Germany (1848–1850) in Mary Fulbrook (ed), German History since 1800 (Arnold 1997) 106.
 German Bundestag, ‘Revolution and the National Assembly in Frankfurt am Main 1848/1849’ <https://www.bundestag.de/htdocs_e/artandhistory/history/parliamentarism/1848> accessed 18 April 2016.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 16.
 Martin Kitchen, A History of Modern Germany (2nd edn, Wiley-Blackwell 2012) 76.
 Deutsches Historisches Museum, ‘1849 – Die Paulskirchenverfassung: Nationale Einheit und Freiheit‘ <http://www.dhm.de/archiv/ausstellungen/verfassung/1849.html> accessed 18 April 2016.
 Wolfram Siemann, ‘The Revolutions of 1848–49 and the Persistence of the Old Regime in Germany (1848–1850) in Mary Fulbrook (ed), German History since 1800 (Arnold 1997) 123.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 17.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 204.
 Weimar Constitution (Weimarer Reichsverfassung), Articles 109, 114.
 Donald P Kommers and Russell A Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd edn, Duke University Press 2012) 44.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 18.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 31.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 19.
 Donald P Kommers, ‘Germany: Balancing Rights and Duties’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (OUP 2007) 162.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 29.
 Ibid 145.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 20.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 37.
 Basic Law (Grundgesetz), Article 1 Paragraph 3, Article 20 Paragraph 3.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 11.
 Donald P Kommers, ‘Germany: Balancing Rights and Duties’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (OUP 2007) 161.
 Werner Heun, The Constitution of Germany (Hart Publishing 2011) 12.
 Basic Law (Grundgesetz), Articles 1–19.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 148.
 Basic Law (Grundgesetz), Articles 4, 5, 8, 14.
 Nigel Foster and Satish Sule, German Legal System and Laws (3rd edn, OUP 2002) 214.
 Dieter Grimm, ‘Types of Constitutions’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 110.
 Basic Law (Grundgesetz), Article 1 Paragraph 3.
 Ibid Article 79 Paragraphs 1–2.
 Ibid Article 79 Paragraph 3.