The Basic Law of Germany

By :Princess Fathia Nkrumah

 History of the German constitution
(BASIC LAW)
The Basic Law, or Grundgesetz, is the Constitution of Germany
(Bundesrepublik). It was created during the Allied Occupation of
Germany following the second World War, and was designed to correct
the defects of the Weimar Constitution and the tragedy and total defeat
of the Third Reich.
The constitutional moment in 1948 was “irregular,” for several reasons:
(1) The Basic Law was drafted under Allied occupation and with Allied
powers’ influence;
(2) It was drafted on the heels of the failure of the Weimar Republic and
catastrophic actions of the National Socialists;
(3) It was drafted under the circumstances of the territorial division of
Germany that resulted from the conclusion of the second World War.
Until German Reunification in 1990, the Basic Law applied only to West
Germany.
In retrospect, it can be said that the German Constitution ('Basic Law')
originated under extraordinary circumstances. It was the result of the
most abysmal war that the world had ever seen, the Second World War.
An rexamination of the wider context of the post-war period in Germany
provides the background for a more focused view of the origins of the
Basic Law.
The Basic Law determines that Germany is a constitutional state: All state
authorities are subject to judicial control. Section 1 of the Basic Law is of
particular relevance. It stipulates that respect for human dignity is the
most important aspect of the constitution: “Human dignity shall be
inviolable. To respect and protect it shall be the duty of all state
authority.” Among other things, the other basic rights guarantee the
freedom to act within the law, equality before the law, freedom of the
press and media, freedom of association and protection of the family.
In determining that it is the people who exercise power
through special bodies, the Basic Law lays down
representative democracy as the form of rulership.
Furthermore, it determines that Germany is a constitutional
state: All state authorities are subject to judicial control.
Another principle of the constitution is that Germany is a
federal state, in other words the ruling authorities are divided
up into a number of member states and the central state. In
conclusion, the Basic Law defines Germany as a welfare state.
The welfare state requires the political system to take
precautions such that people are guaranteed a decent
standard of material well-being in case of unemployment,
disability, illness and in old age. One particular feature of the
Basic Law is the so-called “eternal character” of these
governing constitutional principles. Subsequent alterations to
the Basic Law or a completely new constitution cannot
encroach on the basic rights, the democratization of
sovereignty, the federal state and the welfare state.
In determining that it is the people who exercise power
through special bodies, the Basic Law lays down
representative democracy as the form of rulership.
Furthermore, the constitutions of the German federal states
stipulate instruments of direct democracy. With a popular
initiative a minimum required number of citizens can call on a
state parliament to draw up a law. In the same way a petition
for referendum demands that the parliament pass a bill that
has been presented. Should the parliament not heed the
petition a referendum is held, through which the majority can
determine the law.
 Why is it called the “Basic Law”
and not the Constitution
(Verfassung)
There are various speculations as to why the outline of the German law (under
which the government and people are ruled) is known as the basic law. One most
prominent explanation could be because of the territorial division between East and
West, and the possibility of future reunification, the drafters of the Basic Law
explicitly considered it to be provisional, and not a full constitutional document.
There are provisions in the Basic Law for the promulgation of a full Constitution, but
for various reasons, since Reunification in 1990, there has been no movement
toward drafting and implementing a new and full Constitution.
 Who undertook it, when was it
approved and how did it come into
being?
Drafting a new constitution was undertaken by the Parliamentary Council (Parliamentarischer Rat). The re-
established state Parliaments elected delegates to the Council, and the final document was ratified not by the
people, but by the Parliaments of the Länder. The Prime Minister of the Lander convened a committee of
experts in 1948, which met to deliberate and prepare a preliminary draft. In August of 1948, the Parliaments
elected the delegates to the Council, which consisted of 70 members (including delegates form Berlin), and the
Council undertook the task of debating, discussing, and arriving at compromises for the draft. The Council met
in Bonn, the future capital of West Germany, and elected Konrad Adenauer as its President. The work of the
Council was followed closely by the Allies, who intervened a number of times to ensure particular outcomes,
especially in terms of democracy, protections of fundamental rights, strong federalism, and counterbalances of
decentralized taxation and financial administration.
The Council approved the draft Basic Law on May 8, 1949, a date which coincided with the date of Germany’s
surrender four years previously. Ten of the eleven Lander ratified the draft; only Bavaria did not approve it. It
entered into force on May 23, 1949. Elections were held for the Federal Parliament (Bundestag) on August 14,
1949, and its first session took place on September 7, and the following week the Members elected Konrad
Adenauer as the first Chancellor. The coming-into-being of the Basic Law, and the procedures, practices, and
circumstances of its drafting, ratification, and implementation have been critiqued as un-democratic, or not fully
democratic, due to the role of Parliaments and the Council, and insufficient popular participation
 Road to the constitution
1871 18 January -
Wilhelm I was crowned
the first Kaiser of the 1914 28 June - Archduke
German Empire uniting Franz Ferdinand of Austria-
August 1914 - Germany
the German states into Hungary and his wife were
declared war on Russia 9 November 1918
one country assassinated in Sarajevo, 11 November 1918 - The Treaty of
and France. The United Germany was
Bosnia-Herzegovina provoking Versailles ended World War I and
Kingdom declared war declared a republic
WW1 the Rhineland was placed under
on Germany
nal Allied occupation for 15 years
9 1 9 - A natio o write
uary 1 ma r t
19 Jan t s in Wei n-
e m b lym e e
C o n s titutio
list ass The
al Socia s ) ew G erman Repub
lic
o n a z i a n im a r
Nati ty (N he We May 1949 - The Allies approve a
3 - The kers Par l a r med called t i nt o
19 2 or sfu de d constitution for western Germany
m an W nsucces t l e r r m a n y divi i o n
r i e t
ccupa
d e -G (Federal Republic of Germany) and
inte G an u olf H
rg appo tt e mpt by Ad J u n e 1945 m i l i tary o i n g d om,
u d a d
nes o f i ted K East Germany adopts a Communist-
denb r an on le he Un
3 - Hin chancello re belli f our zo t e s , t o n ) prepared constitution
19 3
ders (United Sta ni
a s the g in r r en e S o viet U
Hitle
r yb e
any
su nd t h rman
e rman e r m F r a nce, a   he G e
Naz i G w s G - T med
u ting Je
1 94 5 -
ob e r 1 94 9
l i c wa s fo r
pers
e c ay Oct epub
7M an y ob ta in s m o c r at ic R
West Ge rm De y)
30 April 1945 Hitler commits
a s 5 May 1955 - a s t G er m a n
suicide   al l w independence
(E
e r l in W
he B
  1 9 61-T  
u g ust  
A
built 9 November 1
989 - The Ber
was demolished lin Wall
  a nd C om munist 3 October 1990 - East and West
East Germans
were able to tr Germany was reunited.
the West avel to

 
CHALLENGES OF THE BASIC LAW
•It is of an opinion that the main challenge to the Basic Law is in fact the Basic law. The Allied occupation of Germany began far over
55 years ago and in the eyes of many Germans has not yet ended.
•Foreign armies are still based on German soil and Europe's largest and most prosperous "democracy" still lacks a constitution and
a peace treaty putting a formal end to the Second World War. For Germany, World War II, like the conflicts in Iraq and
Afghanistan, lacks formal legal closure because a peace treaty has never been signed between the Allies and Germany.
• While the partly reunified German nation is considered a modern European democracy, it has no constitution other than the
temporary Basic Law (Grundgesetz) originally written in 1948 under the guidance of the U.S. military occupation forces and
originally meant only to apply to the western parts of Germany under U.S. control. One of the Basic Law's final articles says it is to
be replaced when Germany obtains a constitution. Article 23 defining the legal jurisdiction of the Basic Law was removed at the
request of former Secretary of State James Baker at a Paris conference of the Allied powers and the two former German states on
July 17, 1990. The two German states were legally abolished at this conference and their foreign ministers were only informed of the
changes after it had been done. As a result of these changes, the Basic Law does not legally apply to the reunified German state,
according to some legal experts. In any case, the Basic Law is incomplete and contradictory and, therefore, cannot serve as a proper
constitution. For example, Article 139 states that "legal provisions" concerning Nazism and German militarism are "not affected"
by the Basic Law. This article indicates that the numerous Allied occupation laws and proclamations remain in effect in spite of the
Basic Law. Article 139 is a little contradictory, despite the obvious problems with the temporary Basic Law, which has never been
ratified by a vote of the people, some view it as a valid German constitution. often stating "The Grundgesetz is the constitution - it
just has a different name," he said. There is no movement in Germany towards creating a constitution, Currently, a proper
constitution is not as important as the unemployment problem. The fact that the flawed and temporary Basic Law serves as
Germany's de facto constitution is unacceptable.
 CHALLENGES CONT…
•The German media is still under the control of the Allies. The entire media is controlled. The Second World War has not
ended, because a peace treaty has not been signed between Germany and the Allies, The peace contract is the most important
thing needed. Because there is no formal peace treaty between Germany and the Allies, headed by the United States, German
sovereignty is compromised. Until they have a peace treaty, Germany is a colony of the United States. Some 80,000 U.S.
military personnel are permanently based in Germany and Britain also continues to base troops and military equipment in
the western German zone they formerly occupied. It is not uncommon to see British tanks on the streets of the area near
Münster in Westphalia. U.S. occupation laws handed down by the Supreme Headquarter Allied Expeditionary Force
(SHAEF) are still in effect, Ebel said. The first law, Proclamation No. 1, making General Dwight D. Eisenhower supreme
authority in the areas under U.S. control was signed on Feb. 13, 1944. Allied authorities have informed Ebel that these
SHAEF laws will remain in effect for 60 years from the date of signing and apply to all of Europe. Calls to the U.S. State
Department in Washington and the U.S. Embassy in Berlin concerning the validity of SHAEF laws and U.S. occupation
proclamations in Germany were not returned. "When there is a peace treaty - when the wound is healed - many things will
change," Ebel says, "not only for Germany, but for the whole world. "The United Nations is also provisional - if there is a
peace treaty between Germany and the Allies [primarily the United States] - the UN will cease to exist as we know it," Ebel
said. The UN organization was founded in 1945 and originated with the 26 nations that had joined the anti-Nazi coalition in
1942. By 1944 the coalition had grown to include 47 nations. The UN Charter contains "enemy state clauses" [Articles 53
and 107], which were established because of Germany and name it as the "enemy state." The Bundesrepublik Deutschland
(the former West German state) is not the legal successor or inheritor of the Second German Reich. For this reason a legal
peace treaty cannot be signed by the current German government in Berlin. Until the real government is established and
voted by the people, the provisional government is necessary to fulfill the role of the legal German government.
 Problems, recurring crimes and
solutions
•Racist and other hate violence is a problem in Germany—as it is in many European Union countries— with hundreds of violent attacks recorded by
authorities and civil society groups each year. Germany has made progress in improving its institutional response to “hate crimes” over the past decade,
including more effective recording of such crimes by the police, prevention programs to discourage young people from getting involved in extremist groups,
and support to civil society groups and local programs addressing right-wing extremism, xenophobia and anti-Semitism. But a number of challenges remain.
•Many countries in the European Union explicitly penalize hate crimes as such through the criminal justice system. Some have separate criminal offenses for
violent attacks carried out with racist or other hate motivation. Others provide explicitly for higher sentences when a violent offense is carried out with such
motivation.
•Germany takes a different approach. It has no separate category of offenses for “hate crimes” involving violence. Nor does it explicitly provide for higher
sentences for them. But the courts can still take hate motivation into account during sentencing using general sentencing principles.
•Although there is no formal category of “hate crime” offenses, police in Germany can nonetheless keep track of racist attacks or other crimes motivated by
hate. The crimes may be recorded as politically motivated crimes, which are broken into four categories, including right-wing extremism. According to the
Federal authorities, this includes any crime where there is evidence that the reason for the attack was connected to the victim’s identity. In practice, however,
the conflation of politically motivated crimes and hate crimes, and an understandable focus on combating right-wing extremism, means a hate crime may not
be recorded or investigated as such. This can occur for example where a perpetrator lacks either an obvious ideological motivation (as in an attack on a
person with disabilities or a lesbian, gay, bi-sexual or transgendered person) or clear links to the extreme right. While police performance in responding to
racist attacks and other hate crimes has generally improved, particularly in forces with dedicated community liaison officers, there are still concerns amongst
victims and victim support organizations about the police response. Victims of hate crimes and victim support groups presented Human Rights Watch with
examples of cases in which the police at a crime scene had focused their questions on the victim rather than alleged perpetrator, had sought to discourage
victims from filing complaints, or had failed to take basic investigative steps, all of which undermined confidence in the police. Victims are sometimes
reluctant to report hate crimes to the police for example because of negative prior experiences with the police in Germany or elsewhere.
 Problems, recurring crimes and
solutions
•Specialized victim support organizations feel that further work is necessary to strengthen cooperation with police, and ensure for
instance that the police inform them systematically when a hate crime occurs so that they can offer to assist the victims. The
performance of prosecutors and judges in handling hate crimes has improved. States now have specialized prosecutors trained in
politically-motivated cases, but due to caseload and the duty roster, duty prosecutors may have to take on prosecutions of a hate
motivated crimes on the day of the hearing even if they do not have specialized training or experience.

•The failure by police to record or investigate a case as a “politically motivated” hate crime means that the prosecutor is then
unlikely to pursue evidence that the crime was indeed motivated by hate in the prosecution of the offenses. This is despite the fact
that prosecutors have independent authority to order the police to pursue that line of inquiry in their investigation if that they are not
doing so. Where evidence of hate motivation does not surface during a prosecution, it is also highly unlikely that the prosecutor
would call for that factor to be taken into account during sentencing in the event of a conviction.

•Justice ministries in some of the key states and the Federal authorities argue that hate motivation is taken into account as a factor in
sentencing when appropriate. While this might be the case, victims of hate crimes, victim support groups and criminal lawyers
suggest that it is often left to the lawyers acting for the crime victim to call for this factor to be taken into account if evidence of
hate motivation emerges at trial. Prosecutors cannot be relied upon consistently to make this call themselves. The same sources also
indicate that judges have a mixed record of taking hate motivation into account as a factor in sentencing even when it is raised.
 Possible solutions
Germany’s approach to hate crimes is not fundamentally flawed. But with some simple steps it could be greatly improved:
• The police should build on successful efforts already underway to strengthen ties with affected communities and victim support groups.
• Prosecutors should be trained to thoroughly examine the possibility that racial, homophobic or other hatred may have been a motivating factor in an attack,
to order further investigative steps where necessary, and to put hate motivation forward as a factor in sentencing where appropriate.
• Judges should receive further training on how to identify and assess relevant evidence of hate motivation, and when to take it into account.
• States should examine how to strengthen the systematic examination of possible hate motivation in the prosecution of cases, including through a possible
decree issued by justice ministries to prosecutors to reiterate that the hate dimension of attacks, including those against LGBT people and persons with
disabilities, should be thoroughly investigated, and where such evidence exists, put forward during the trial, and in case of conviction, during sentencing.
• The federal and state justice ministries should intensify efforts to develop and extend existing professional training for prosecutors and judges, on the
effective identification and characterization of hate motivation in criminal offenses.
• The federal and state justice ministries should publicize the prosecution of bias-motivated crimes to the general public and to the affected communities.
 A corrupt Germany?
• In the last years the country has been exposed to a wave of corruption scandals. Although a few years ago it seemed that the new legislation on
party financing had given an end to the grand scale corruption evolving around the illegal party financial practices of the major political parties, the
recent corruption scandals in which some pillars of the economic system of the country (i.e. companies like VW and Siemens) were involved, have
brought the issue of structural corruption back to the fore. Given the scale of the economic power these two corporations exercise in the German
and European economy, but also a number of minor scandals (Deutsche Bank, Infineon), the question has been posed once again in the public
whether the notion of widespread corruption should not after all be considered true, despite the fact that Transparency International rates the
country among the top 20 countries worldwide for the openness and honesty of economic activities. The two most prominent corruption affairs
reveal that in the corporatist economic model of Germany (‘Rhein capitalism’) there are deep entrenched mechanisms that favour corruption
liabilities.
• In the case of Siemens it was revealed that high-level management knew of or even was directly involved in setting up a system of secret accounts
abroad that were deployed to pay bribes for contracts. Although at first the state prosecutors assumed that the amount of company money
deposited in slush funds in Switzerland and Austria amounted to 200 million Euros, it is according to an internal audit now estimated to have been
as much as 420 million Euros. Two other aspects of the system of corrupt practices also deserve mention: Firstly, although Siemens introduced in
2001 the Business Conduct Guidelines and Code of Ethics to ensure binding standards for law-abiding behavior and precise rules regarding
compliance with applicable fair competition and anticorruption laws and in addition has an internal anti- corruption department, the money
transfer went apparently unnoticed. Secondly, the company has over the years transferred millions of Euros to finance a so-called independent
labor association that was meant to act as a counterweight to IG Metall, Germany's powerful trade union.
• The case of VW is no less representative of corruption originating in the corporate structure of German big business. Like the Siemens scandal the
corruption affair in VW has two aspects: Firstly, acting apparently to secure foreign contracts two former VW executives siphoned corporate funds
into a web of phony companies to defraud authorities and enrich themselves. Secondly, managers and members of the general works council
received illegal privileges i.e. bribes they spent on personal travel, jewels, alcohol and sex.
• Beyond the convincement of the main actors involved the VW corruption affair has triggered off a discussion on whether the strong
interdependencies between management and labour under Germany's consensus-style codetermination management system that gives workers'
representatives 50% of the seats on the supervisory boards of all large companies should not be cut down to a moderate level thus reducing the
influence of the employee works councils on key corporate decisions. A similar criticism of corporatist interdependencies was formulated in the
case of the Siemens scandal and in addition it was claimed that another source of corrupt liabilities lie in the function of supervisory boards.
Although initially praised for its stability, the two-tier system of management and supervisory board does not function properly according to the
critics, because the boards fail to exercise their supervisory function.
 D ueli n g co n sti tu ti o n s: th e U.S vs.
G er ma ny
• No discussion on the history of the Basic Law is complete without comparing it with the American experience
in a consistent and clear manner. The sacralisation of the original republican text characterizes the entire
history of the interpretation of the US Constitution. On the other hand, by American standards, the fate of the
Basic Law within the political system that had been originally constituted by that very Basic Law would have to
be considered a desecration [very pedestrian document].
• The contrast by pointing out the differences in the handling of the constitutional text in the simplest and most
practical meaning of the word. Because they almost continuously rewrite the Basic Law Germans are not
treating their Basic Law as Sacred Scripture [untouchable]. The American constitution has been changed only
twenty-seven times during the 222 years of its existence, while, in its sixty-first year, the Basic Law has already
been scheduled for its fifty-fifth change. The hurdles for amending the Constitution in the United States are
much higher, requiring not only three-thirds majorities in both the Senate and in the House of
Representatives, but also fully three-thirds of the total number of individual state legislatures with two
chambers each must approve. Though introduced in 1789, the procedure for constitutional change led to the
most recent constitutional change in 1992 [with the 27th amendment].
• The varying procedures [for amending the Constitution] correspond to different perceptions of the integrity of
the constitutional text. The changes in the Constitution of the United States are termed ‘amendments’, That is
revisions that are attached and numbered without altering the text of the original constitution. On the other
hand, in the Basic Law a new clause typically replaces a previous formulation. This illustrates the fact that the
Basic Law regulates a great many more details. It must be noted that from a systematic point of view, the Basic
Law represents a hybrid between a constitutional and a legal code, and, like every legal code in our modern
times, is destined for growth. Thus, any aesthetic objections voiced by the President of the Federal Parliament
(Bundestag) against the lack of form present in the proposed articles concerning debt reduction touch on a
structural element of the Basic Law.
 D ueli n g co n sti tu ti o n s: th e U.S vs.
G er ma ny
• The Ironclad Article 5 of the US Constitution
• In 1956, the Basic Law was amended to permit Germany’s remilitarization (Wehrgesetzbuch). In 1968, it was amended again to deal with a
national emergency (Notstandsgesetzbuch). Both amendments were extremely controversial. One can take a favourable view of these
amendments even though they were highly controversial in Germany. Emphasizes that the Basic Law assures democratic freedom by
expressly defining the executive powers invoked as implications of their position by US presidents from Lincoln to Bush and on to Obama.
This last sentence is an accurate translation from the German, but the message is garbled. What I did was to take note of a glaring deficiency
in the U.S. Constitution and that is its failure to clearly define congressional and presidential power in the field of foreign and military
affairs. I noted decisions by executive decree by Lincoln in the Civil War and Bush in the war on terror to underscore the extent to which
presidential power has outstripped Congressional control over that power, noting that this could not happen under the 1956 and 1968
amendments to the Basic Law.
• The American constitutional model which wants to be only a framework and which is, therefore, not really in need of change, but, at the
most, of being amended, has always been admired by people in the Federal Republic. Regarding the methods of constitutional change, here
the German method is prefers. Together with many of his colleagues, he sees the structural problems of the separation of powers in the
United States; he insists that their removal is de facto impossible because of the intricateness of the amendment process of Article 5 of the
US Constitution. The President of the United States is still indirectly elected, the less populated federal states enjoy disproportionate
influence in the Senate; also, the US Constitution lacks a provision allowing for the removal of an incompetent president, while
impeachment proceedings apply only in cases of criminal activity.
• The longevity of the US Constitution is sometimes mentioned too readily because people overlook the system’s collapse in 1860. Lincoln’s
second inaugural address could be by far the most influential act of constitutional interpretation in US history. Ever since, there are no
longer any doubts about the Union’s indissolubility despite the fact that the wording of the Constitution does not explicitly forbid an
individual federal state from leaving the Union. Accordingly, the unitary federal power which had been created as a result of the Civil War, is
hindered by a mechanism of constitutional change whose principle of adding sovereign rights to individual states is deemed anachronistic.
Article 5 he described as an iron cage. It is of an opinion to advice the submission the Basic Law to a belated plebiscite tended to take away
from this assessment, however only with regard to the five new federal states that joined the Federal Republic of Germany in 1990. Could it
not be said that the demonstrations for unification during the winter of 1989/90 and the German Democratic Republic’s parliamentary
elections of March 18, 1990 were equivalent to Lincoln’s address, and that they cleared the way for the issue of legitimacy? It is interesting
to note that, we can acknowledges even for the Federal Republic within the realm of federalism the technical constitutional problems of an
alignment of institutions blocked by constitutional provisions. He is apprehensive about the fact that the 2006 reform of federalism
increased the veto power of the Federal Council even more. In fact, he insists that the body representing the federal states was not
conceived as an upper or second chamber, but that, today, as a power in its own right it is positioned between the Government and the
Parliament.
 D ueli n g co n sti tu ti o n s: th e U.S vs.
G er ma ny
• The Prohibition of Article 79, Section 3 of the Basic Law
• The division of the Federation into individual federal states and their participation in the making of laws
constitute two principles that, according to Article 79, Section 3 of the Basic Law, are beyond the reach of
constitution-changing lawmakers. The liberal-positivistic criticism of the dogmatization of the Basic Law
proceeds from this so-called perpetuity clause (Frankfurter Allgemeine Zeitung, November 24, 2008). It could
be admitted that this clause seems to alienate and foreign American readers of the Basic Law. The notion of
constitutional law violating the constitution does not seem plausible to American readers. Quoting the words
of John Marshall, the highly influential president of the US Supreme Court, “the entire constitution of the
United States is designed in ways that are intended to make it approach perpetuity”. However, this goal is not
laid down in the text of the Constitution. The freedom of the constitutional lawgiver is restricted only in one
area: the guarantee of equal representation in the Senate for the Federal States.
• It may be possible to make Article 79, Section 3 of the Basic Law plausible to Americans by adapting a concept
of David Humes: The clause does not attribute a kind of perpetuity to the Basic Law, one on which only the
future can pass judgment; rather it is to anticipate the euthanasia of the constitution, that is the stealthily
creeping murder at the hand of disfiguring changes. Even when understood in this fashion, the clause
represents a difference to American constitutional thought, which is comprised of a hierarchy of truths: Since
the Basic Law guarantees a plethora of overlapping demands titles constitutional interpretation ends up being
confronted with adopting a situational gradation in accordance with a guideline taken from the constitution
itself. On the other hand, the US Constitution presents itself as an enumeration of right which seem to exist
harmlessly parallel to one another.
In view of this contrast between two constructive principles, it could be proposed that one ought to turn to
constitutional content by contrasting the Basic Law as a constitution of human dignity with the US
Constitution as a constitution emphasizing freedom. The basic rights stipulated by the Bill of Rights
represent absolute positions of negative freedom, whereas the basic human rights of the Basic Law
concretize a kind of dignity from which issue the duty of protection and the need for fair balance.
The hermeneutics of the objective order of values which the Federal Constitutional Court derived from the
fundamental decision in favoring human dignity is viewed as a separate German creation which was
prompted by the restorative spirit of the 50’ies, as a projection by the Christian state that does not
differentiate between ‘right’ law and morality. It is precisely to this pattern of interpretation advocated by the
justices in Karlsruhe accompanied by keen intellectual criticism that certain personalities attribute the
double-natured success of the Basic Law within German and in the world at large. Thus, the findings of the
Federal Constitutional Court changed the constitution to a greater degree than all those explicit changes
made in the Basic Law. The Basic Law, as some believe has taken the place of the American Constitution
as a model for democratic constitutions.

Young democracies determined to introduce constitutions advocating human dignity are not shopping for
old hats stored away among the relics of the Western World. They rightly recognize that the law must be
elevated to the level of social effectiveness, thus accepting jurisprudences additional third role as a provider
of constitutional fundamental rights even among private people. The US Constitution whose individualism
had originated based on the contractual thinking prevalent during the eighteenth century, has never
adopted this thought. Thus Germany are still export champions, albeit in the realm of constitutional law C
precisely with the assistance of the kind of high class German workmanship that is readily ridiculed by
many a sophisticated German legal.
 THE FUTURE…
Of course, aside from the fully autiomated drones, hover cars and True liberation of Africa,
Germany’s legal system might just have some changes in the future.
At the beginning and end of the Nineties, new initiatives were started, in particular by a group of
university teachers and high-ranking judges (for example Justice Prof. Böckenförde and Justice Dr.
Kühling of the Federal Constitutional Court) and at the turn of the Millennium, a formal proposal
for reforms was submitted by the Conference of Ministers of Justice. However, up to now, all
proposals to change the system have failed, due more to financial reasons than to a lack of
substance. It is not difficult to predict that sooner or later the system of state examinations will be
abandoned. University studies will be completed with academic examinations. Further, a
specialization of the professional fields will occur during the time of university study and in
particular during the practical training phases. However, this is a dream of the future.
The recruitment of judges and prosecutors is carried out in the Länder of the Federal Republic of
Germany in line with the demand for additional staff and according to the age structure.
The overriding factor for employment is essentially seen in the examination results. In addition -
differing in the various Länder candidates are interviewed in order to access their social
competence. As a rule, newcomers to the profession are employed, but strong endeavours are
made to recruit men and women with professional experience from other legal professions. The
newly employed judges or public prosecutors have a special status as probationers. During this
time, which generally lasts at least three years, they normally enjoy full judicial independence in
the cases they are assigned, but they have not yet been granted the guarantee of tenure which,
for judges, is a significant problem with respect to constitutionality. For newcomers to the
profession with experience in other fields the minimum probation period may be reduced to one.
 THE FUTURE…
Concerning the workload of the German judiciary, reference is often made to the so-
called “Pensen” (from the Latin “pensum”). With the use of statistics on the judiciary,
politicians concerned with justice and finance can quite safely conclude from the figures
describing the lodging of new cases, case completions, and length of proceedings what
approximate number of judges will be necessary in the future to cover the demand. The
calculation is based on bench marks (“Pensen”) developed by a working group of the
Conference of Ministers of Justice from the Federation and Länder and continually
updated. In the past, these statistics were deemed to be a secret of the ad- ministration
of justice, but today they are public. According to the calculations for civil law cases,
each year a judge at a Local Court, for example, has to process approximately 600 cases;
a judge at a Regional Court has to process approximately 140 cases; and a judge at the
Higher Regional Court has to process approximately 70 cases. Judges for family law cases
in the Local Court have to process approximately 300 cases each year. In fact, the
“Pensen” are generally (20%) higher. In order for the German constitution to avoid
further decline in justice in the future, this dubious system and others like it must be
reformed.