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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