Basic structural decisions of the German Basic Law (Grundgesetz) and their significance for the state order and social order of the Federal Republic of Germany

日期 2019年11月11日(周一)
时间 14:00 - 15:30
地点 虹口校区会议中心MBA案例室
主办 法学院
语言 英语 English

The first part of the lecture is devoted to the genesis of the Basic Law and the significance of the two - democratic - predecessor constitutions of 1919 and 1849 for this purpose, which also largely explains the basic structure of the Basic Law chosen in 1949. First, the structure of the German state and its organs is presented, which is more open in the Basic Law than the system of government has developed rapidly (see the gradual shifts in emphasis towards cooperative/unitarian federalism or "chancellor democracy"). Starting from the observation that, in contrast to the Weimar Constitution from 1919, there are no provisions on an economic and social constitution, this current view of the Basic Law as a concise "working order" of the federal state is abandoned and, on the basis of the catalogue of fundamental rights, its novelty is shown as a "preamble" to the entire constitutional and legal order of Germany. This now also reveals the human and social image from which the Basic Law proceeds. In addition, the economic and social constitution of the Basic Law, i.e. the social market economy and its design, also results from this. This anchoring of the social market economy above all in the catalogue of fundamental rights is briefly compared with the theses of attempts at interpretation inspired by Soviet Communism in the relevant articles on fundamental rights.

In the next section, the numerous amendments to the Basic Law over the period of 70 years are examined and classified against the respective socio-political background (e.g. several constitutional reforms towards more or less unitarian federalism, etc.). The result of these different constitutional amendments is a partial rejection of regulatory structural decisions for the Basic Law of 1949 and an increased tendency to establish political compromises between the political parties in the constitution on the one hand and to charge the Basic Law with program sentences (which were deliberately dispensed with in 1949) on the other hand.

At least this is followed by a final outlook: Since the increasing overload of technical legal details on the one hand, and political program or target clauses on the other, is making the Basic Law and even the catalogue of fundamental rights increasingly incomprehensible, this tendency of constitutional development stands in the way of a role for the Basic Law as a document that creates identity. The model of constitutional patriotism presupposes that the constitution can continue to be read and understood by all citizens and not just by experts if they are to be able to identify with it. This is an essential reason for the continued broadest social acceptance of the Basic Law and thus for the legitimacy of our entire constitutional order. As a counter-example, reference is made here to the Weimar Constitution, which ultimately lost its legitimacy in the eyes of the majority of the people due to a lack of success - i.e. due to a lack of real significance of its numerous postulated guarantees for the individual citizen.


Prof. Dr. Hans-Jörg Dietsche

Prof. Dr. Hans-Jörg Dietsche,Referent im Justiziariat der CDU/CSU-Bundestagsfraktion(德国基民盟/基社盟议会党团法务专家)。