1989/2009 Shaping Freedom

Were the fathers of Germany’s Basic Law touched by genius? After all, it was only supposed to be a provisional solution, and yet it has seen us through the past 60 years.

The ‘parents’ of the Basic Law – for there were also four women in the Parliamentary Council which drafted the Basic Law – certainly showed a measure of wisdom, partly because they were forced to compromise. When it came to our catalogue of basic rights in particular, they engaged in some tough party-political wrangling, for example about the question whether to include the right to work. In the end, they only included the elements that everyone could agree on. But the point is that the middle course which everyone can agree on is often the right one. And that may be why the Basic Law has remained viable for longer than expected. Let’s not forget, though, that over the past decades, it has been amended more than 50 times to bring it into line with current requirements, and has thus remained relevant to the present day.

Our reality is now dominated by challenges such as terrorism and climate change, but it is also shaped by Europe. Is the Basic Law still up to the job?

At least where Europe is concerned, Article 23, which previously dealt with German unity, has been reframed. Today, it deals in detail with the European Union and how the Federal Republic of Germany should participate in its development. When it comes to the threats posed by terrorism, however, we are not completely up-to-date. Astonishingly, we have not yet managed to establish clearly and unequivocally the extent to which domestic deployment of the Federal Armed Forces (Bundeswehr) is permitted. The Federal Constitutional Court has made it clear that in its present form, the Constitution does not provide an adequate legal basis here.

“Victors’ constitution”

I don’t imagine the Parliamentary Council could ever have predicted with certainty just how important the Federal Constitutional Court would become for the application of the Constitution. However, that does not mean that there is a systemic error. In my view, Parliament needs to debate, from time to time, exactly which of its decisions should be incorporated explicitly into the Constitution. After all, the Basic Law is supposed to be a manual for the people, and yet it doesn’t say a word about this supplementary case-law.

Do citizens identify with the Basic Law, especially in the new federal states?

Unfortunately, there is a much more fundamental problem. What worries me is that public awareness of the precise content of the Basic Law is not very high anyway, but is certainly higher in the old federal states, where the Basic Law has something of a tradition. In the new federal states, however, it is seen as a “victors’ constitution” to some extent.

Looking back at reunification, wouldn’t it have been better to forge an entirely new constitution for a united Germany? Indeed, under Article 146, this is still possible?

In terms of integration, that would have been a good move, but I don’t think it was feasible. At the time, speed was of the essence – it was about seizing the opportunity afforded by the political situation, not knowing how long it would last. The Basic Law was a familiar, tried and tested framework to which recourse could be made. Anything else would have been an unsafe experiment – and anyway, there simply wasn’t time to reach a political agreement.

The right to work

That’s right – but it was only envisaged as a new constitution for the GDR, and it was overtaken by events. I am very familiar with the draft. It contained a much more comprehensive catalogue of basic rights, but much of it was copied from the Basic Law for the Federal Republic. That shows that the Basic Law was viewed as a fairly good model. However, if we ever get to the stage of framing a new constitution, we should certainly look at this draft.

Will that day ever come?

Regrettably, no deadline has been set. But to be honest, I don’t have too many complaints. Clearly, we could add social rights to the catalogue of basic rights. However, the principle of the social state does give us a tool which allows us to develop certain rights and thus compensate for the brevity of the catalogue of rights contained in the Constitution. All in all, we can live with the Constitution in its present form – and do so fairly well. The people in the old federal states don’t know anything different, and even in the new federal states, they understand that the main problems they face – which are social and economic in nature – cannot be resolved through a new constitution. These problems are highly dependent on international conditions. A constitution won’t create any jobs, even if it includes the right to work.