A current analysis by constitutional law expert Prof. Ulrich Fastenrath, Head of the Research Center for International Legal and State Theory at TU Dresden

“A constitution should be short and obscure.” This sentence is attributed to Napoleon, and you wouldn't expect anything else from an authoritarian ruler: They eschew legal bindings. Surely, this is not a vision for the Federal Republic of Germany, a democratic country governed by the rule of law. Nevertheless, there is a grain of truth in this sentence for the German constitution: the Basic Law, which was proclaimed 75 years ago on May 23, 1949 and came into force the following day.

Constitutions are designed for the long term and should be kept to the essentials. They constitute the state and can only be amended under demanding conditions requiring specific majorities. At the same time, constitutions must be adaptable in order to take account of changing circumstances and attitudes. And last but not least, the population should also be able to unite behind their constitution on an emotional level. Therefore, ideally, the constitution is both a legal and a societal foundation or framework.

The founders of the German Basic Law have achieved quite a lot of these goals, but according to Prof. Ulrich Fastenrath, who heads the Research Center for International Legal and State Theory at TU Dresden, the Basic Law has a number of weaknesses in terms of its continuity, adaptability and societal ties.

“In its 75 years, the Basic Law has already been amended 67 times. That is exceptionally often. The American constitution, which is more than three times as old, has only been amended 18 times,” compares Prof. Fastenrath. “One of the reasons is probably that some of the provisions of the Basic Law are very precise, and there is a tendency to go into great detail when making amendments. There are historical reasons for this phenomenon, but it is also due to the fact that the political stakeholders want the wording to precisely reflect the limits of their concessions or what they have obtained in return. In practice, however, such detailed regulations do not always prove their worth.”

However, it is not only politics that deprives the Basic Law of its flexibility. The Federal Constitutional Court, too, has increasingly caused constitutional concepts to become fossilized in the course of its case law, says Fastenrath. “As much as it is true that law needs consistency and that judicial decisions must therefore be taken into account when interpreting legal principles, there is a risk of encrustation because German law sees itself in a particular way as scholarly law.” According to Fastenrath, the Federal Constitutional Court does not simply decide the individual case presented, but embeds the decision in a larger context of reasoning, which sharpens legal concepts and repeatedly recalls earlier conclusions of reasoning. “This takes away the flexibility of constitutional interpretation and application and means that the Basic Law can now only be understood reasonably well by people with legal knowledge.”

This fact has direct consequences for the emotionally binding effect of the Basic Law. “The population thus lacks the basis for constitutional patriotism, as Dolf Sternberger called it. All that remains is withdrawing to universal (and therefore not Germany-specific) values such as freedom and the principle of non-discrimination as the foundation of society or the basic consensus of all democrats,” criticizes Fastenrath.

On the occasion of the 75^th anniversary, the constitutional law expert hopes that we (can) have more trust in the political process and do not want to place legal regulations on everything, neither in the constitution nor in laws. A free state and a free society need leeway to responsibly adapt to changing demands and attitudes over time.

Prof. Ulrich Fastenrath held the Chair of International Law, European Law and Public Law at TUD Dresden University of Technology from 1993 to 2014, and has since headed the Research Center for International Legal and State Theory. These fields also represent his core research areas, which he pursues in an interdisciplinary approach involving linguistics, philosophy and political science. He continues to teach at the Center for International Studies.

Contact:
Prof. Ulrich Fastenrath
Chair of International Law, European Law and Public Law at TU Dresden