The Constitution of the Federal Republic of Germany
| Published date | 01 June 1983 |
| Author | Roman Herzog |
| DOI | 10.1177/002085238304900202 |
| Date | 01 June 1983 |
| Subject Matter | Articles |
The
Constitution
of
the
Federal
Republic
of
Germany
by
Professor
Dr.
Roman
HERZOG,
Minister
of
the
Interior,
Land
Baden- Württemberg
I.
Introduction :
Germany’s
legal
situation
When
the
Parliamentary
Council,
on
23
May
1949,
confirmed
that
the
Basic
Law
for
the
Federal
Republic
of
Germany
which
it
had
adopted
on
8
May
1949
could
enter
into
force
after
its
ratification
in
the
Land
diets,
the
&dquo; fathers
of the
Basic
Law &dquo;
were
still
firmly
convinced
that
they
would
see
the
reunification
of
Germany
in
the
near
future.
This
is
why
they
included
the
principle
of
reunification
in
the
preamble
and
designed
the
constitution
so
as
to
allow
the
accession
of
further
German
Lander
(cf.
Art.23)
or
the
adoption
of
a
new,
all-German,
constitution
(cf.
Art.146).
Those
hopes
and
wishes
have
not
come
true.
Credit
is
due
to
Konrad
Adenauer
for
having
made
the
Federal
Republic
of
Germany
an
integral
part
of
the
Western
Alliance,
and
thus
achieved
(nearly)
complete
sovereignty
for that
part
of
Germany
by
the
entry
into
force
of the
Bonn
Conventions
in
May
1955.
In
a
similar
way,
the
German
Democratic
Republic,
which
had
come
into
being
in
the
Soviet
occupied
part
of
Germany,
was
firmly
incorporated
in
the
Eastern
Pact.
The
Brandt-
Scheel
government
attempted
to
reduce
the
tension
which
necessarily
arose
from
this
situa-
tion
through
the &dquo; East
Treaties&dquo;
(Ostver-
trage).
Neither
the
treaties
on
the
non-use
of force
with
the
Soviet
Union
and
Poland
(Moscow
Treaty
of
12
August
1970
and
War-
saw
Treaty
of
7
December
1970)
nor
the
Four-
Power
Agreement
on
Berlin
of
3
September
1971
nor
the
Basic
Treaty
of
21
September
1972
with
the
German
Democratic
Republic,
have
changed
Germany’s
legal
situation.
Now
as
before,
there
is
a
controversy
in
the
field
of
jurisprudence,
but
also
between
the
GDR
and
the
Federal
Republic,
for
exam-
ple
regarding
the
problem
of
nationality,
as
to
who
is
entitled
to
represent
Germany
and
to
what
extent.
Even
the
judgement
of
the
Federal
Constitutional
Court
of
31
July
1973,
concerning
the
Basic
Treaty,
did
not
settle
the
controversy,
though
it
is
to
be
considered
as
the
official
legal
view
of
Germany’s
position,
according
to
which
the
Federal
Republic
is
identical
with
the
German
Reich.
Under
con-
stitutional law,
its
territorial
sovereignty
is
thus
restricted
to
the
scope
of
the
Basic
Law,
but
at
the
same
time
it
feels
responsible
for
the
whole
of
&dquo;
Germany &dquo;
which
still
exists
as
a
subject
of
international
law.
The
City
of
Berlin
holds
a
special
position
in
the
German
question.
Art.23
of the
Basic
Law
admittedly
includes
Greater
Berlin
in
that
Law’s
scope
of
application,
but
the
provision
was
restricted
by
a
letter
of
permission
from
the
Western
military
governors
of
12
May
1949
to
the
effect
that
Berlin
was
not
allowed
to
be
&dquo;
ruled
&dquo;
by
the
Federal
Government.
This
reservation
was
laid
down
definitely
in
the
Four-Power
Agreement,
which
at
the
same
time
acknowledged
the
established
links
be-
tween
the
West
sectors
of
Berlin
and
the
Federal
Republic.
In
the
practice
of
constitu-
tional
law,
e.g.
with
regard
to
the
conclusion
of
treaties,
Land
Berlin
is
considered
a
consti-
tuent
state
of
the
Federal
Republic.
On
the
other
hand,
there
are
various
restrictions,
e.g.
regarding
federal
laws
which
are
only
put
into
force
in
Berlin
after
a
special
transference
pro-
cedure,
or
regarding
the
jurisdiction
of
the
Federal
Constitutional
Court
over
Berlin.
Whereas,
due
to
the
division
of
Germany,
reunification
was
one
of
the
declared
aims
in
the
framing
of
the
Basic
Law,
it
was
far
more
characterized
by
the
effort
to
avoid
the
un-
desirable
developments
of
the
Weimar
Re-
public
which
finally
led
to
the
Nazi
regime.
The
Parliamentary
Council
above
all
intended
to
create
instrumental
and
functional
safe-
guards
so
as
to
prevent
democracy
from
being
undermined
and
destroyed
internally
and
the
State
from
interfering
unduly
with
the
citizen’s
sphere
of
liberty.
Therefore,
the
fundamental
rights
of
the
citizen
are
set
forth
in
the
first
place
in
the
Basic
Law
(III).
That
is
also
why
the
Basic
Law
advocates
the
principles
of
re-
presentative
democracy
and
the
social
state
based
on
the
rule
of
law
(I’~.
For
the
same
reason,
decisions
have
been
taken
in
favour
of
the
federal
state
(V),
of
the
parliamentary
government
system
and
democracy
expressed
by
political
parties
(VI)
and
of
wide
powers
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