German Law

– A Reflection Of German History Or The Demands Of The Allied Powers? Essay, Research Paper

??????????????? On 1st September

1948, the Parliamentary Assembly met for the first time, called by the German

Landtage, but ultimately demanded by the occupying allied powers, Britain,

France and America.? They were charged

with the creation of a stable constitutional system for the three west German

zones that later became the Federal Republic of Germany.? Some restrictions were placed on this

assembly by the allies, but in this essay?

hope to show the extent of the freedom of the Assembly, and the fact

that the Basic Law which emerged from it was largely the product of German

history and not allied coercion. ??????????????? The first area to

examine is the historical sequence of events which led to the drafting of the

Basic Law.? One important thing to

notice is that the three governments involved in the occupation of western

Germany after the Second World War – the French, British and Americans – were

far from agreed about the way to proceed with the rebuilding of a German

government.? Aside from the fact that

they had been forced to accept the inevitability of the division of Germany

following the Soviet withdrawal from the Control Council responsible for Germany,

there were disagreements between the democratic allies as to what sort of

government would be suitable for the three occupied zones over which they still

had control.? The French were of the

opinion that the governments of the individual L?nder should be the central

element of German government and should retain almost all power.? Rather than a true federal system, the

French envisaged something of a confederation of L?nder.? The British, on the other hand, wanted to

give Germany a relatively strong central government, drawing on the British

tradition of strong central government.?

The Americans took up a position somewhere between the two. ??????????? This disagreement

between the allies was important at the outset, because it meant that only very

broad guidelines were given to the Germans when they were required to draft the

Basic Law.? General Clay, the military

governor of the American zone, cites in his memoirs the decision to avoid

confrontation with the French over ?details which might not necessarily develop

in the German draft?.? The intention

was, he said, to ?concentrate on establishing the broad principles to be given

the German assembly for its guidance?[1].? Thus the disunity of the allies prevented

them from giving any more specific instructions to the constituent assembly,

even if some of them had wished to do so. ??????????? The actual call to the

ministers-president of the German L?nder was issued after a French, British and

American conference in London, and was decidedly vague.? The ministers-president were authorised (by

which was meant, required) to call an assembly which would have the task of

drafting ?a democratic constitution which will establish for the participating

states a governmental structure of federal type? which would ?provide adequate

central authority, and contain guarantees of individual rights and

freedoms?.? Doubtless the lack of

precision in this document was partly due to the fact that the London

conference had not succeeded in completely removing French difficulties with

the proposed federal system.? However,

it was also due to a desire on the part of the allies to allow the creation of

a genuinely German solution to the problem of drafting a constitution. ??????????? Although the allies

did later provide a further document setting out the conditions which must be

met by the new constitution, this document too was somewhat vague.? For example, it was specified that there

should be a bicameral legislature, and that one of the houses of this

legislature should represent the L?nder, but no restriction or guidance was

placed on the constituent assembly as to the other house.? Likewise, it was decided that a federal

administration should be allowed, although the power of this administration was

limited to areas where government by the L?nder would be ?impracticable?.? Clearly, these rather general terms left a

great deal of scope for interpretation by the German assembly. ??????????? In fact, the level of

scope was wider than this, since even the first document which authorised the

calling of an assembly was open to negotiation.? In the event, the ministers-president of the L?nder objected to

the idea that they were creating a constitution, because they thought that

making the three western zones into a state would imply an acceptance of the

division of Germany.? They proposed

instead to create a ?Basic Law?, which would allow for the government of the

three western zones without conferring statehood on these zones as a country

distinct from the eastern zone.?

Further, they could not countenance ratification of the Basic Law by a

referendum, since this would give it far too much of a constitutional

character.? The fact that the allies

were prepared, after some deliberation and discussion, to accept these changes

shows the extent to which they were prepared to give the Germans a free hand in

the process of drawing up the document which was now to be known as ?Basic Law

(Provisional Constitution)?. ??????????? Having seen that the

allied powers made remarkably few formal demands of the parliamentary council

responsible for drafting the Basic Law, it is necessary to move on to look at

the content of the Basic Law itself.?

The issue with which this part of the essay will deal is the source of

inspiration for this content; whether it was drawn primarily from the examples

of federalism espoused by the Americans as the most influential of the allied

powers, or from the history of Germany. ??????????? It was specified by

the allies that the Basic Law should provide for a federal system of

government, although exactly which powers should be reserved to the states was

not made clear.? However, this is not

necessarily an example of the parliamentary council being forced to adopt a

foreign system.? There is a strong

tradition of federalism in Germany, dating back to unification in the 1870?s,

and indeed beyond.? The German

Confederation of 1815 to 1866 was a collection of separate monarchies and

principalities, with the Confederation itself possessing very few, and very

weak, powers.? The Second Reich, finally

established in 1871, gave the central power, represented by the Kaiser as the

executive and the Reichstag as the legislature, much more power, but retained

for the individual states many powers through the Bundesrat.? Further, the states were still responsible

for almost all administration. ??????????? Even under the Weimar

Republic, which certainly did move in the direction of further centralisation,

the newly renamed L?nder retained control over ?the administration of justice,

police, education, and local government?[2]. This gave

them an extensive remit, although they did lose their financial autonomy.? Nevertheless, the L?nder were still

represented in government, via the Reichsrat, the second chamber of the

legislature, to which each Land sent representatives.? It was not until the Nazis took power that federalism disappeared

altogether from Germany.? There is no

room in a totalitarian regime for any degree of regional autonomy.? However, this move to centralised government

must be viewed in the light of previous German history as something of an

aberration, federalism being the norm from which Nazism was a deviation. ??????????? Further evidence

exists that the federalism adopted by the parliamentary assembly was a German

phenomenon, and this can be seen most clearly by underlining the huge

differences that there are between American federalism, surely the pattern

which the allies (dominated by America) would have wished to impose on Germany,

and the federalism adopted in Basic Law. ??????????? American federalism

was brought into being in order to unite the various states.? The states retain considerable control over

themselves and their own affairs.?

However, in Germany the L?nder could not be described as separate

states.? They possessed very little in

the way of state sovereignty, and most of them were new creations, since the

Nazis had done everything in their power to eliminate the original L?nder.? Added to this is the historic form of German

government, which generally has concentrated executive power at the centre

while leaving administrative functions to the L?nder.? Consequently, the federal arrangement in Germany results in the

L?nder sending representatives to the Bundesrat, which is the guardian of the

rights of the L?nder, and which has direct involvement in the making of federal

law.? The contrast with the American

Supreme Court is obvious, since that court has no role to play in the

formulation of federal law. ??????????? As well as federalism,

other aspects of Basic Law point clearly to German history as the source of

their inspiration.? Article 67, which

restricts the ability of the Bundestag to overthrow the government, is a clear

reaction against the chaotic days of the Weimar Republic and the characteristic

high government turnover of that period.?

However, the fact that it is possible to overthrow the government in the

Bundestag shows that the framers of the Basic Law were well aware of the need

to avoid both the extreme of totalitarianism on the one hand and the weakness

of the Weimar Republic on the other.?

Article 68 also shows an acute awareness of the need for stability, as

it makes it very difficult to dissolve the Bundesrat. ??????????? The role of the

President in the Weimar Republic had been instrumental in the breakdown of

democracy in that system.? Determined to

avoid a repeat of this mistake, the framers of the Basic Law were very careful

to outline the powers of the President in Articles 54 to 56.? It was decided that the President would be

elected by an electoral college made up of members of the Bundestag and

delegates of the L?nder.? A popularly

elected Presidency, it was felt, would be open to the demagogue, and Germany

had experience of what such a person could do once elected.? Further, a directly elected President might

be felt to have the legitimacy to act against the Bundestag.? This clearly had to be avoided if a repeat

of the Hindenburg crisis was not to be suffered. ??????????? In conclusion, then,

the Basic Law of Germany has its origins primarily in the history of Germany,

albeit in a negative way.? The Basic Law

was a reaction to that history, and an attempt to avoid a repetition of

it.? The role of the allied powers was

very limited, and they allowed themselves to a great extent to be guided by the

parliamentary assembly which they had requested be called. [1]Decision in Germany, Lucius D. Clay p 399 [2]The Founding of the Federal Republic of Germany, John Golay, p 36??????????????? On 1st September