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Comparative Law Spring 2002 Professor Susanna Fischer. CLASS 9 THE GERMAN CONSTITUTION I. WRAP-UP POINTS.

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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
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?
the name grundgesetz
  • Why was it called “Grundgesetz” (Basic Law) rather than “die Verfassung” (Constitution)?
the name grundgesetz1
  • 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)
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?
  • 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.
fundamental structural principles of the german state
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.
fundamental structural principles of the german state1
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)
  • 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)
  • In assessing the significance of the constitutional principle of democracy, it is important to remember that for much of Germany’s history its government was completely undemocratic.
  • 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?
bundespr sident
  • Johannes Rau – elected in 1999
  • SPD
  • 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)
more on the separation of powers
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))
  • 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.
  • 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.
  • 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.
l nder and legislation
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)
concurrent legislation
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)
federal skeleton or framework legislation
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?
bundestag arts 38 48 gg
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?
composition of the bundestag
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.
bundestag parties 9 1998 9 2002 81 voter turnout
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