FIFTY YEARS of GERMAN BASIC LAW the NEW DEPARTURE for GERMANY Conference Report Conference Report
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FIFTY YEARS OF GERMAN BASIC LAW THE NEW DEPARTURE FOR GERMANY Conference Report Conference Report American Institute for Contemporary German Studies The Johns Hopkins University Conference Report FIFTY YEARS OF GERMAN BASIC LAW THE NEW DEPARTURE FOR GERMANY American Institute for Contemporary German Studies The Johns Hopkins University The American Institute for Contemporary German Studies (AICGS) is a center for advanced research, study, and discussion on the politics, culture, and society of the Federal Republic of Germany. Established in 1983 and affiliated with The Johns Hopkins University but governed by its own Board of Trustees, AICGS is a privately incorporated institute dedicated to independent, critical, and comprehensive analysis and assessment of current German issues. Its goals are to help develop a new generation of American scholars with a thorough understanding of contemporary Germany, deepen American knowledge and understanding of current German developments, contribute to American policy analysis of problems relating to Germany, and promote interdisciplinary and comparative research on Germany. Executive Director: Jackson Janes Research Director: Carl Lankowski Development Director: Laura Rheintgen Board of Trustees, Cochair: Steven Muller Board of Trustees, Cochair: Harry J. Gray The views expressed in this publication are those of the author(s) alone. They do not necessarily reflect the views of the American Institute for Contemporary German Studies. ©1999 by the American Institute for Contemporary German Studies ISBN 0-941441-46-6 This AICGS Conference Report paper is made possible through grants from the German Program for Transatlantic Relations. Additional copies are available at $5.00 each to cover postage and processing from the American Institute for Contemporary German Studies, Suite 420, 1400 16th Street, NW, Washington, D.C. 20036-2217. Telephone 202/332-9312, Fax 202/265-9531, E-mail: [email protected], Web: http://www.aicgs.org. ii C O N T E N T S Foreword................................................................................................v About the Authors.................................................................................ix THE BASIC LAW: A FIFTY YEAR ASSESSMENT Donald P. Kommers....................................................................................1 THE ROLE OF THE FEDERAL CONSTITUTIONAL COURT Jutta Limbach.............................................................................9 THE PROTECTION OF HUMAN DIGNITY (ARTICLE 1 OF THE BASIC LAW) Ernst Benda.............................................................................................35 FIFTY YEARS OF THE BASIC LAW – MIGRATION, CITIZENSHIP AND ASYLUM Kay Hailbronner......................................................................................47 STATE AND MARKET IN THE CONSTITUTIONAL ORDER Fritz Ossenbühl.......................................................................................71 Conference Agenda.......................................................................................89 iii F O R E W O R D The fiftieth anniversary of the founding of the Federal Republic of Germany in May of 1999 was the occasion for the American Institute for Contemporary German Studies, in cooperation with the Dräger Foundation, to organize a conference that addressed the development of Germany’s Basic Law since 1949. The agenda of the conference included a number of issues, which were presented in a comparative context with developments influencing the interpretation of the U.S. Constitution. The role of the Federal Constitutional Court, balancing the equation between the state and the market place, controlling asylum and immigration policies, and responses to the increasingly comprehensive global economy were among the topics of discussion. In addition, the particular impact of German unification on the Basic Law was a focus of the conference. The contributions in this volume represent several of the perspectives presented on these issues. They provide assessments of the parameters of German approaches to the interpretation and application of the Basic Law to the continually changing environment in Germany during the past five decades. They also raise questions concerning the anticipated challenges Germany faces in its domestic environment and within the European Union as an increasingly important factor in the legal environment. We are pleased that the current and past presidents of Germany’s Federal Constitutional Court, Prof. Dr. Jutta Limbach and Prof. Dr. Ernst Benda have contributed their thoughts and analysis to this volume, along with three leading scholars: Professor Donald Kommers, University of Notre Dame, Prof. Dr. Kay Hailbronner, University of Konstanz, and Professor Fritz Ossenbühl, University of Bonn. It is particularly important for Germans and Americans to understand the common challenges we face in adjusting to the changes and challenges generated in our societies and within the global community. Germany’s Basic Law shares many of the values and principles laid down in the U.S. Constitution. How we interpret them may differ based on our different political and social history. Yet it is clear that the basis for two healthy v and innovative democracies is the German and American commitment to the preservation of the constitutional framework. These essays will be of value to those who wish to understand and pursue the development of Germany’s most successful experiment in democracy in its often turbulent history. The fiftieth anniversary of the Federal Republic also coincided with the tenth anniversary of the fall of the Berlin Wall, which represented another milestone in German democracy. Taken together, these two memorable turning points give hope and encouragement to those seeking to build on the democratic principles, which help to rebuild the Federal Republic in 1949 and to accomplish a bloodless revolution forty years later. We are grateful for the cooperation of the Dräger Foundation in preparing this conference, to all the participants and to the German Program in Transatlantic Relations for its generous support. Jack Janes Executive Director November 1999 vi A B O U T T H E A U T H O R S Professor Dr. Ernst Benda is the past president of Federal Constitutional Court in Karlsruhe, of which he was a member from 1971- 1983. Since 1984 he has been a professor for Constitutional Law at the University of Freiburg. He is currently chairman of Media Council of Berlin-Brandenburg since 1992. Prof. Dr. Kay Hailbronner, LL.M. is director of the Center for International and European Law on Immigration and Asylum and Chairman ILA Committee on Refugee Procedures. From 1988 - 1992 he was Judge at the Administrative Appeal Court of Baden-Württemberg. In 1990 he served as legal counsel for the federal government in Asylum and Immigration Cases at the Constitutional Court and the European Court, Luxembourg. Professor Donald P. Kommers is the Joseph and Elizabeth Robbie Professor of Government and Law at the University of Notre Dame. He has spent several years of his academic career in Germany, most recently as a senior fellow at the Max Planck Institute of International and Comparative Public Law (Heidelberg). He has authored numerous books and articles on American and comparative constitutional law, including American Institutional Law: Essays, Cases, and Comparative Notes (1998, coauthored with John Finn). Professor Dr. Jutta Limbach is the first woman to be elected president of the German Constitutional Court. In 1971 she received a chair of law at the Free University of Berlin and worked there as professor for civil law, commercial law and legal sociology until 1989. In 1989 Ms. Limbach became Senator of Justice of the City and State of Berlin. In March 1994 she was elected justice and vice-president of the German Constitutional Court and then president in September 1994. Professor Dr. Fritz Ossenbühl he has been full member of the North Rhine Westphalian Academy of Sciences since 1998. Since 1984 has been member of the Selection Committee of the Alexander-von- vii Humboldt Foundation. From 1984-1996 he was member of the Permanent Delegation of the German Convention of Lawyers (Deutscher Juristentag). His main areas of specialization are constitutional and administrative law and state liability law. viii Donald P. Kommers THE BASIC LAW: A FIFTY YEAR ASSESSMENT Donald P. Kommers In 1949, fifty years ago, Germany embarked upon a fascinating constitutional experiment. In that year, with the consent of the three occupying powers, the United States, France and Great Britain, German leaders in the western zone of occupation drafted a new constitution that created the Federal Republic of Germany (FRG).1 They called it the Basic Law (Grundgesetz) to highlight its provisional character. The more dignified term “constitution” (Verfassung) would be reserved for the time when Germany as a whole would determine its own future. Accordingly, the Basic Law by its own terms was to cease to exist on the day a reunited Germany replaced it with a real constitution freely adopted by all the German people.2 The Basic Law raised as many questions as it tried to answer. Could a newly minted constitution—mere words on paper—breathe new life into a people devastated by war? Would it serve as a framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? And if the FRG were to reach the half-century mark—as it would in 1999—how