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


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

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