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“The Basic Law for the Federal Republic of Germany came into force on May 23rd and thus became legally binding for 45 million people in West Germany” – this was the sober first sentence of a correspondent’s report on the adoption of our constitution 75 years ago. Commentators agree that the Basic Law is a great stroke of luck – especially when you consider the rapid, today unthinkable speed at which the 146 articles were formulated in less than a year. Nevertheless, one can ask whether the Basic Law could not be carefully updated in one place or another today. This is the opinion of Peter M. Huber, Federal Constitutional Court judge in Karlsruhe from 2010 to 2023, now law professor at the Ludwig Maximilian University of Munich. Here he discusses his ideas with Merkur publisher Dirk Ippen.
Is Germany in good shape?
Peter M. Huber: Yes, of course Germany is in good shape. We have not had any governments that wanted to undermine the current constitutional order by bringing the judiciary into line or abolishing public broadcasting. There are no attempts by incumbents to undermine the constitutional safeguards – fundamental rights, protection of minorities, separation of powers – in the direction of an illiberal democracy.
Dirk Ippen: Aren’t there signs of an authoritarian state around the world? In the USA, but also elsewhere?
Huber: Definitely. In many western democracies, the traditional order has come under pressure. This is also due to increasing social polarization, as described by the British journalist David Goodhart: on the one hand, the “Anywheres”, the woke urban milieus, internationally networked, wealthy, well-educated, and on the other hand, the “Somewheres”, the losers of globalization, the middle class threatened with decline, who live primarily in small towns and in the countryside. This social analysis has been criticized, but it is not entirely wrong, and we are not disconnected from these trends.
Why is that?
Huber: One reason could be that liberal democracy’s great promise of prosperity no longer works after the war. There are fears of decline in the middle class and also a greater discrepancy in wealth distribution. In the USA this is quite extreme; Our development may be weaker, but it exists here too.
Ippen: If you look at the individual MP in our parliamentary system, you will see that he or she unfortunately has very little influence. Ultimately, there is strict party discipline in the Bundestag. Do you see a way to change that?
Huber: One idea would be the so-called trench voting system. Under this system, half of the Bundestag seats in the constituencies would be allocated with the first vote, without offsetting with the second votes, and the other half with the second vote via the list. This would significantly strengthen the independence of the MPs from the party and parliamentary group leadership. In order to avoid one party being favored one-sidedly, there should be run-off elections if a constituency candidate has not achieved 50 percent of the votes. This would also give weaker candidates and their parties a chance in the first round of voting.
Ippen: You think that a minority government is possible at the federal level. A bold idea.
Huber: In this respect, I am arguing against bans on thinking. Of course, governing with a minority government is more difficult and less secure. But until there are no serious alternatives in the democratic spectrum, a government made up of only the SPD or the CDU/CSU would be the better solution, despite the lack of a majority. Democracy thrives on alternatives. In addition, in the case of a minority government, the coalition circles would be weakened and the parliamentary process would be given more of its due – under the public eye!
Mr. Huber, there have been 67 changes to the Basic Law so far. Was that always necessary?
Huber: Opinions differ, particularly when it comes to changes to the financial constitution, as to whether this has always been successful – the keyword being the debt brake. The effectiveness of the law should not be overestimated. When it comes to money, politicians in Germany and Europe (unfortunately) almost always find ways to increase spending.
Ippen: Nevertheless, you write about hypertrophy, i.e. a flooding of the legal system with uncoordinated regulations and laws. That’s crazy. 150,000 EU legal acts to date, 15,000 regulations under federal law, plus 8,000 from the state.
Huber: This means that officials, judges and lawyers are constantly in danger of overlooking something. For example, the question of whether refugees can be turned back at the internal borders of EU states requires consideration of three directives that are not well coordinated with one another, the Dublin III Regulation and other legal sources, so that ultimately no one can say exactly what applies. This increases the tendency to do nothing in order to avoid making mistakes.
Ippen: In one of your essays you quote Montesquieu, the inventor of the separation of powers, as saying that if it is not necessary to pass a law, it is necessary not to pass the law. I find that remarkable. You have proposed giving the Minister of Justice a right of veto when new regulations are passed if they are not sufficiently coordinated with the legal system. That would also be worth considering.
Mr. Huber, you were a Federal Constitutional Court judge for over twelve years. Let me ask you a self-critical question: does the court interfere too much in politics – or too little?
Huber: Certainly not too little. The Federal Constitutional Court is a citizens’ court and has the task of stepping on politicians’ toes when necessary. In terms of its powers, it is perhaps the most powerful court in the world. This forces humility rather than showing off. In any case, as a federal constitutional judge you are not eager to interfere.
Ippen: It is also interesting that you advocate referendums even at the federal level. I was always of the opinion that the fathers and mothers of the Basic Law were skeptical – rightly so – because it went completely wrong during the Weimar period.
Huber: There were three referendums in the Weimar Republic – and all three failed. Referendums were unimportant for the instability of democracy. The later Federal President Theodor Heuss described it in the Parliamentary Council as a bonus for demagogues. This was an elitist distortion. The Weimar Republic failed because of the unwillingness of its citizens to support democracy, not because of direct democracy. Furthermore, experience in Bavaria shows that referendums and referendums can counteract the isolationist tendencies of politicians in representative democracy. In this respect: More direct democracy, that would be good.
How would you introduce more direct democracy?
Huber: Actually, it’s the same as in Bavaria: we’ve had 18 referendums here since 1946 – from the abolition of the Senate to the smoking ban. The experience of being able to have a say as a citizen should not be underestimated for one’s own self-image as a citizen. The quorums are also a test of relevance: the fact that the Bavarian population was not really interested in the G8/G9 debate, for example, was remarkable.
What, if anything, would have to be changed in the Basic Law?
Huber: Article 20 of the Basic Law names elections and referendums as expressions of popular sovereignty. The procedure would have to be anchored in the Basic Law, however, and the Bavarian Constitution could actually be used as a guide. There would not be more than one or two referendums per legislative period.
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