Constitution / German Basic Law (chr.)

 

(Turk. Anayasa)

A constitution is the conscience of democracy. The Basic Law  or ‘Grundgesetz‘ is the basic ordering document for the German state. It lays down the fundamental principles on the basis of which all other law is legitimated. The Basic Law provides answers to contemporary questions relative to law based on the measure of lastingly binding, inviolable and inalienable basic principles of human coexistence. The German national Constitution establishes rules on the basis of which state power is engendered and organised. These rules empower and limit state authorities in their respective capacities, vest them with the capacity to act and set forth the substance of fundamental rights and of state aims. The Constitution takes precedence over all other laws.

The Constitution bindingly defines legal experience and traditional political discernment for the future. This project can succeed only if the Constitution is supported by a general culture of the rule of law while keeping the essential content of the Constitutionpeace, liberty, democracy, equality of all before the law and social responsibility – alive in a general conviction of the substantive correctness of this content.

Rendered binding in the form of a written document, the Basic Law seeks to apply the rationality of language to capture the fundamental conflicts of a community through application of traditional legal concepts in its effort to resolve disputes not by force but solely through application of its language.

The Constitution sets the legally binding framework for tolerance, liberty, and openness to development. ‘Tolerance’ as used here does not refer to the off-handed way in which some take this sweet-sounding word at face value. Rather, it calls for the display of intellectual strength required to delineate the steadfast from the fragile, the inalienable from the mercenary, the disposable from the non disposable.

Constitutional law is justified, and lays claim to validity, on the basis of the human capacity to think beyond oneself and to apply experiences and insights to draw binding conclusions for the future. Today, we recognise the physical laws that teach us the arts of making cars and steering vehicles because we have discovered and experienced them. Experience and insight apply in the same way to constitutional law as a condition of good policy. Anyone who has been through a civil war knows that he or she must organise the peace, and that to do so requires establishment of a state vested with a monopoly on the use of force. Anyone who has endured state oppression and despotism seeks to moderate state power through application of the rule of law, separation of powers and a material obligation to fundamental rights. Degradation calls for a guarantee of the dignity of every person. The experience of hate and hunger teaches that society is held together by a common morality, and that this morality must give rise to a right to social affiliation and careful balancing.

The German Basic Law is particularly marked by these experiences. When it went into effect on 23 May 1949, the people of Germany wanted to end tyranny, permanently eliminate degradation and oppression, end hunger and war once and for all, foster continuous legitimation of state power by the people of Germany through a democratically elected nation of laws and social welfare, renew the state in parliamentary legislation, and to achieve individual benefits – efficiency for the individual – and openness to development on the part of the state, economy and society through the principle of liberty.

The Basic Law has been put to the test once, upon German reunification in 1989/1990 when, solely through the power of the word, the power of demonstration, and the power of prayer, two mutually hostile German states tore down walls and joined one another again in peace. The German Basic Law is demonstrates the power of legal thought, of the people’s determination to achieve a better life, and of the persuasiveness of peacefulness and human rights.

Paul Kirchhof

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