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Comparative Law Spring 2002 Professor Susanna Fischer

Comparative Law Spring 2002 Professor Susanna Fischer. CLASS 10 THE GERMAN CONSTITUTION II BASIC RIGHTS. WRAP-UP POINTS. The Basic Law ( Grundgesetz ) is Germany’s constitution. It has a higher status than other legal norms.

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Comparative Law Spring 2002 Professor Susanna Fischer

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  1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 10 THE GERMAN CONSTITUTION II BASIC RIGHTS

  2. WRAP-UP POINTS • The Basic Law (Grundgesetz) is Germany’s constitution. • It has a higher status than other legal norms. • Art. 20 (the constitution in short form) sets out the fundamental structural principles underlying the GG • These are: democracy (Demokratie), republic (Republik), social state (Sozialstaat), federal state (Bundesstaat) and constitutional state subject to the rule of law (Rechtstaat).

  3. WRAP-UP POINTS CONTINUED • Although amendment of the Constitution is possible in some cases under Art. 79 (requiring a 2/3 vote of both the Bundestag and Bundesrat), some constitutional rules can’t be changed, such as the basic rights in Arts. 1 and 20 GG (note slight typo on previous slide), the division of Germany into Länder, and the participation of the Länder in the legislative process. See Art. 79 GG.

  4. WRAP-UP POINTS CONTINUED • The main constitutional organs of the Bund are: Bundestag, Bundesrat, Bundesregierung, Bundespräsident, and Bundesverfassungsgericht (Federal Constitutional Court). The constitution regulates their functions. • A necessary corollary to the fundamental principle of the Rechtstaat (constitutional state) is the principle of separation of powers. • The Bundestag and Bundesrat are legislative organs, the Bundesregierung and Bundespräsident are executive organs, and the Federal Constitutional court is judicial.

  5. Legislation and the Bundesstaat • The fear of a centralized German state leading to dictatorship led the drafters of the Basic Law to limit the legislative powers of the Bundesstaat to situations specifically enumerated by the Basic Law. In some cases the Bundestaat’s power to legislate is exclusive, in others, concurrent with the Länder, and sometimes it has the power to pass skeleton legislation.

  6. Composition of the Bundestag • The last Bundestag election was in September, 1998 and then next will be in September of 2002. • How many political parties have seats? Which parties? What percentage of members? • Note – to obtain representation in the Bundestag, it is necessary for a party to have at least 5% of the Land list votes and win seats in at least 3 constituencies.

  7. Bundestag – Parties (9/1998-9/2002 (81% voter turnout) • SDP 40.9 298 seats • CDP 28.4 198 seats • CSU 6.7 47 seats • Bundnis 90/Greens 6.7 47 seats • FDP 6.2 43 seats • PDS 5.1 36 seats • REP 1.8 no seats • DVU 1.2 no seats

  8. Parliamentary Groups • What is a parliamentary group?

  9. Parliamentary Groups • What is a parliamentary group? Associations of at least 5% of the members of the Bundestag that belong to the same political party or to parties that don’t compete with each other (CDU, CSU) See Art. 53 GG • Key centers of political power – The Rules of Procedure give them certain rights such as the right to introduce bills

  10. Political Parties • What does the Basic Law provide with respect to political parties?

  11. Political Parties • What does the Basic Law provide with respect to political parties? • Article 21(1) provides that parties “shall participate in the forming of political will of the people”. • Some political parties are banned: if they “seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany”, e.,g. the SRP and KPD (2 left wing political parties)

  12. Bundesrat • What is the Bundesrat? • What does it do?

  13. Bundesrat • What is the Bundesrat? This is the second chamber of the German parliament. It is an organization of members of the 16 Land governments. It is the constitutional institution through which the Länder participate in the German Federation. • Each Land has at least 3 votes, depending on size. • Not a directly democratic body, but it is indirectly democratic since the people elect the Land governments that appoint the delegates to the Bundesrat.

  14. Bundesrat • Participates in legislative process – must consent to bills adopted by the Bundestag before they can become law • Some statutory instruments/ordinances also require consent of Bundesrat • Can introduce bills in the Bundesrat • Federal Government bills are first submitted to the Bundesrat

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