Comparative Law Spring 2002 Professor Susanna Fischer. CLASS 9 THE GERMAN CONSTITUTION I. WRAP-UP POINTS.
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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
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)
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 can’t 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.
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))
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.
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)
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.