Germany's Basic Law: Key facts about the German constitution
May 23 marks the anniversary of the ratification of Germany’s Basic Law (Grundgesetz) - the constitution of the Federal Republic of Germany that was passed in 1949. Although initially intended to be a provisional piece of legislation pending the reunification of Germany, the Basic Law was ultimately retained and continues to be considered as the definitive legal framework setting out the fundamental rights and obligations of all people in Germany.
To mark its anniversary, we dive into the history of this important piece of legislation, and explain what its contents mean for those living and working in Germany.
A brief history of the German Basic Law (Grundgesetz)
The Basic Law has its origins in the aftermath of the Second World War and the efforts of the victorious Allies - Great Britain, the USA, and France - to establish a democratic and federal state in the regions of western Germany they were occupying.
Following a conference between the occupation powers and representatives from Germany’s western neighbours (the Netherlands, Belgium and Luxembourg), the state premiers of the West German federal states were summoned to arrange an assembly to hammer out the details of a democratic and federal constitution for a West German state that would guarantee the individual freedoms and rights of the Germans, specify a central German government, and also guarantee power to the individual federal states.
Why is it called the Basic Law?
The state premiers were reluctant to write a constitution as a formal foundation for the West German state, as they were concerned this would put the prospect of one day reunifying Germany into jeopardy.
Instead, they agreed that any constitutional legislation would be put forward in a provisional way only, ready to be replaced with a constitution once unity had been restored. In this way, the symbolic title “Basic Law” (Grundgesetz) was conceived of as an alternative to a “constitution”.
From a provisional piece of legislation to the German constitution
Then, on August 31, 1990, the governments of the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany) agreed to reunite Germany in the Unification Treaty.
But instead of drafting a new constitution - as the state premiers had envisaged back in 1949 - it was decided that Eastern Germany would simply join the Federal Republic of Germany, creating five new federal states and the reunified city-state of Berlin. When reunification came into effect on October 3, 1990 - German Unity Day, a public holiday in Germany - the Basic Law became the constitution for the whole of the country.
The 146 Articles of the Grundgesetz
The Basic Law sets out the fundamental principles that determine how society is organised in Germany. No law may contradict the Basic Law, as it stands above all others. Although the Basic Law has had more than 60 amendments since 1949, its core principles - made up of 146 “articles” - have remained virtually unchanged for the past 70 years.
The first 19 articles of the Basic Law set out the “fundamental rights” (Grundrechte) that all people are guaranteed. In the aftermath of the Second World War, this was considered especially important given the experience of Germany’s recent and troubling past.
Additional articles were added to protect these fundamental rights, ensuring that they can never be removed from the constitution, and no amendment can “affect their essence.” These fundamental rights and obligations include:
- Human dignity (i.e. everyone’s life is valuable and must be protected)
- Personal freedoms
- Equality before the law
- Freedom of belief
- Freedom of expression
- Freedom of the press
- Freedom of marriage and family
- State supervision of the school system
- Freedom of assembly
- Freedom of association
- Privacy of correspondence and communication
- Freedom of movement
- Occupational freedom (i.e. freedom to choose where you want to work or study)
- The inviolability of the home (i.e. private spaces are protected, except in the case of emergencies)
- Right not to be deprived of citizenship and made stateless
- Right to asylum
- Right to petition
The remaining articles set out the fundamentals of the German state, resting it on the key principles of democracy, republicanism, social responsibility, federalism and rule of law.
Equally important is the separation of state powers into legislative, executive and judicial branches. When the Basic Law was drafted in 1949, this was considered incredibly important to prevent a situation like in 1933, when the Enabling Act gave the government powers to institute the National Socialist dictatorship.
For instance, Article 20 explicitly states, “All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.”
The Basic Law also lays out the constitutional institutions that make up Germany’s parliamentary democracy, detailing how they should be made up, and how they should function:
- The executive branch: The largely ceremonial Federal President as head of state and the Federal Chancellor as the head of the Bundestag
- The legislative branch: The elected representatives of the Bundestag and the Bundesrat
- The judicial branch: The Federal Constitutional Court
The Basic Law also contains articles discussing the role of political parties (which are recognised as a foundational part of the democratic German state), the role of the military (which is prohibited from preparing for or engaging in an aggressive war), the look of the German federal flag, and foreign relations.
Amending the Basic Law
Any change to the Basic Law must pass with at least a two-thirds majority in both the Bundestag and the Bundesrat. Over the years, these changes have included amendments to increase ties between Germany and the West, measures to improve European integration, and changes to facilitate German reunification.
The Basic Law remains an important part of German national identity
Although written constitutions across Europe might gradually be losing their significance, Germany still places great importance on its Basic Law, whose principles the Constitutional Court in Karlsruhe, Baden-Württemberg is tasked with upholding.
Beyond this, the Basic Law is still considered a cornerstone of Germany’s national identity, with questions about it regularly posed in naturalisation tests for those seeking German citizenship, and its principles taught to migrants in integration courses.
While the horrors of German history make national pride a thorny subject, a sober document that declares the inviolable dignity of all human beings is something Germans can safely take pride in.
To read the Basic Law in full, you can find an official English translation via the Gesetze im Internet website.