1.1 General Description of the Constitutional System¹The constitution of the Federal Republic of Germany dating from 1949 is called the Basic Law (Grundgesetz). It deals with a number of aspects, enumerates basic rights, and, in Articles 20 ff., lays the foundations of government. The fundamental structural principles of the Federal Republic of Germany are:
- the rule of law,
- the "social state" (government based on social justice).
According to Article 20 (1) of the Basic Law, the Federal Republic of Germany is a democratic and social, federal state.
The federal structure laid down by the constitution provides for statehood at two levels. The federal state is composed of a central government (Bund) and a number of constitutive states (Länder or Bundesländer).2 The states have united to form a Federation under the name Federal Republic of Germany (Bundesrepublik Deutschland). The constitutions of the 16 constitutive states of the Federation vest them with state authority and with territorial and personal sovereignty.3 Apart from the tripartite, horizontal division of powers between legislature (law making), executive (government and subordinate administration), and judiciary (courts), state authority in the federal state is distributed between the Federation (Bund) and the member states (Bundesländer).4 The Basic Law assigns the exercise of state authority and the discharge of state functions to the constitutive states of the Federation, except as otherwise provided or permitted by the Basic Law itself. Competence is deemed to lie with the states unless otherwise specified.5 The functions or powers of the Federation as central government are enumerated in the Basic Law. In questions of competence, the Basic Law must always be consulted to ascertain whether it assigns jurisdiction to the Federation in the field at issue. If this is not the case, the states alone are competent.6
The Social State
Article 20 (1) and Article 28 (1) of the Basic Law address the social function as an explicit objective of government. This "social" function is very broad in scope, requiring and inviting substantial legislative effort, since its satisfactory performance is strongly affected by changing economic and political conditions. The "social state" principle alone cannot provide independent justification for any subjective rights of the individual.8 Social state rights can therefore not be derived from the principle. The more specific constitutional directives drawing on the social state provision can be called "rights" only in a general and non-technical sense. A number of basic rights (Articles 6, 7, 12 (1), 9 (3) of the Basic Law) can be described as social state rights. The Social Code - General Part - describes fundamental social policy goals as "tasks of the Social Code" and lists a number of "social rights" to be addressed by statutory social services and benefits (promotion of education and employment, social security, social assistance, etc.). These social rights have no constitutional status; they summarise entitlements in areas dealt with by social law and cannot in themselves found claims.9
Article 20 (2) of the Basic Law gives a detailed description of popular sovereignty, the key characteristic of the democratic state:
"All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies."
In Germany, all state authority is derived either directly or indirectly from the people. In this sense, the people are the sovereign in the state, and, so to speak, rulers over themselves. The people, the "nation" exercise their authority directly by means of elections and other forms of ballot. Beyond elections and other voting procedures, the people exercise their state authority only indirectly through the institutions of the legislature, executive, and judiciary.10 The principle of popular sovereignty legitimates the exercise of all state authority by the people. This means that government institutions must be constituted by popular election (e.g., the federal parliament, the Deutscher Bundestag) or be put in office by elected representatives (e.g., the Federal Chancellor, the head of government, who is elected by the Bundestag). At the federal level, direct democratic procedures (plebiscites, referendums) have played no role, so that the Federal Republic can be described as a representative democracy.11
Article 20 of the Basic Law also stipulates the separation of powers. The separation of powers is intended to provide constitutional limits to the exercise of power, and to ensure democratic representation and the rational discharge of functions.12 The aim is not to divide state authority but the exercise thereof, and to distribute it among different institutions.13 Article 20 (2) sentence 2 of the Basic Law lists the classical lawmaking, executive, and judicial functions of government and prescribes their exercise by special institutions, without at this point naming them. Later constitutional provisions set forth the details.14 Legislation is largely entrusted to the Bundestag, executive powers to the Federal Government and the administration subordinated to it, and judicial powers are vested in the courts.
The institutions of the state are interlinked by a dense network of participatory and supervisory powers.15
The Rule of Law
Article 20 (4) of the Basic Law names key elements in the principle of the rule of law:
"The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice."
The Basic Law details the rule of law in numerous individual provisions. These provisions give expression to the fundamental objectives of the rule of law, the safeguarding of personal freedom, and the subjection of state authority to the law.16
Public administration must not violate valid law (constitution, statutes, ordinances) and must conform with prevailing legal principles. At the same time, administration requires a basis in law,17 precisely defining and limiting the powers of administrative authorities, for all measures that encroach upon the freedom of the citizen. The principle of "proportionality" comes to bear in this connection. It requires that civic liberties be not excessively restricted; that the purposes of government and the means chosen to achieve them must be proportionate.18 All public authorities are bound by these principles in performing their functions.The judiciary is the third branch of government. The arrangements for the administration of justice and the extent of individual legal protection are yardsticks for the rule of law. Article 19 (4) of the Basic Law states: "Should any person's rights be violated by public authority, he may have recourse to the courts." It is the task of the judiciary to reach binding and impartial decisions through special procedures in the event of legal dispute or violation of the law.19 In the Federal Republic, the judiciary is divided into five, independent court systems: ordinary courts (civil and criminal), administrative courts, social security courts, finance courts, and labour courts. Each system is differently structured. Jurisdiction is divided between the Federation and the states; the supreme courts in each system are federal courts, while all lower courts are state courts (cf. chapter 2.2).20
Safeguarding the Structural Principles of the Constitution
The principles laid down by Article 20 of the Basic Law (federalism, social state, democracy, and the rule of law) cannot be changed by legislation. This also applies for the protection and recognition of human dignity and for the subordination of government to the basic rights enumerated in the Basic Law (Article 1). These constitutional principles are core components of the Basic Law, and, according to Article 79 (3), cannot be modified even by constitutional amendment (so-called "perpetuity clause").21
1 Grundgesetz für die Bundesrepublik Deutschland of 23 May 1949 (BGBl. 1949, 1), amended by statute on 28.08.06 (BGBl. I 2034).
2 Cf. Badura, Staatsrecht, D, Rn. 69, 336.
3 Cf. Badura, Staatsrecht, D, Rn. 69, 336.
4 Cf. Badura, Staatsrecht, D, Rn. 69, 336.
5 Cf. Katz, Staatsrecht, Rn. 250.
6 Cf. Katz, Staatsrecht, Rn. 250.
7 Own Illustration
8 Cf. Badura, Staatsrecht, D, Rn. 36.
9 Cf. Badura, Peter, Staatsrecht, D, Rn. 37.
10 Cf. Badura, Peter, Staatsrecht, D, Rn. 6, 271 f.
11 Cf. Katz, Staatsrecht, Rn. 142 ff., 73 ff.
12 Cf. Maurer, Staatsrecht I. Grundlagen - Verfassungsorgane - Staatsfunktionen, Rn. 5.
13 Cf. Maurer, Staatsrecht I. Grundlagen - Verfassungsorgane - Staatsfunktionen, 379 Rn. 1.
14 Cf. Maurer, Staatsrecht I. Grundlagen - Verfassungsorgane - Staatsfunktionen, Rn. 13.
15 Cf. Maurer, Staatsrecht I. Grundlagen - Verfassungsorgane - Staatsfunktionen, Rn. 13.
16 Cf. Katz, Staatsrecht, Rn. 162, 84.
17 Cf. Katz, Staatsrecht, Rn. 189 ff., 93 ff.
18 Cf. Katz, Staatsrecht, Rn. 205 ff., 102 ff.
19 Cf. Badura, Staatsrecht, D, Rn. 62
20 Cf. Katz, Staatsrecht, Rn. 516 f., 254.
21 Cf. Katz, Staatsrecht, Rn. 134, 67.