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The Basic Law is 75 years old – and is an achievement. A former federal constitutional judge in conversation with publisher Dirk Ippen.
Munich – “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” – that was the sober first sentence of a correspondent’s report on the adoption of our constitution 75 years ago today. Commentators agree that the Basic Law is a great stroke of luck – especially when you consider the rapid, now 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 Judge in Karlsruhe from 2010 to 2023, now a law professor at the Ludwig Maximilians University MunichHere he discusses his ideas with Merkur publisher Dirk Ippen.
Is the Basic Law still up to date? – Peter M. Huber in conversation with 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 existing constitutional order, for example by forcing the judiciary into line or abolishing public broadcasting. There are no attempts by those in office to undermine the safeguards of the rule of law – basic 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 environments, internationally networked, wealthy, well-educated, and on the other hand, the “Somewheres”, the losers of globalization middle class threatened by decline, who live mainly in small towns and in the countryside. This social analysis was criticized; It is not entirely wrong, and we are not disconnected from these trends.
Fears of relegation and unequal distribution – the promise of prosperity of liberal democracies in danger
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. After that, half of the Bundestag seats in the constituencies would be allocated with the first vote, without being offset against the second votes, and the other half would be allocated with the second vote via the list. This would significantly strengthen the independence of MPs from party and parliamentary group leadership. In order not to favor one party unilaterally, there should be runoff elections if a constituency candidate does not receive 50 percent of the vote. 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.
For the Basic Law but “against bans on thinking” – democracy thrives on alternatives
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, especially when it comes to the changes to the financial constitution, as to whether this has always been successful – keyword: debt brake. One should not overestimate the effectiveness of the law. 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 at risk of overlooking something. For example, when it comes to the question of whether refugees can be rejected at the internal borders of the EU states, three guidelines that are not well coordinated must be taken into account: 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 so as not to make mistakes.
Ippen: In an essay 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 issuing new regulations if they are otherwise not sufficiently coordinated with the legal system. That would also be worth considering.
The Basic Law is 75 years old – does the Constitutional Court interfere too often?
Mr. Huber, you were a federal constitutional judge for over twelve years. Once self-critically asked: Is the court interfering too much in politics – or even too little?
Huber: Certainly not too little. The Federal Constitutional Court is a citizens’ court and has the task of stepping on the toes of politics when necessary. In terms of its powers, it is perhaps the strongest court in the world. This forces one to be humble rather than boastful. As a Federal Constitutional Court judge, one certainly has no desire 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.
Referendums counteract isolationist tendencies – “More direct democracy, that would be good”
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 nevertheless described them in the Parliamentary Council as a reward for demagogues. That was an elitist distortion. The Weimar Republic failed because of the citizens’ lack of willingness to support democracy, not because of direct democracy. Incidentally, experience in Bavaria has shown that referendums and popular votes can counteract the isolationist tendencies of politicians in representative democracy. In this respect: more direct democracy would be good.
How would you introduce more direct democracy?
Huber: Actually like in Bavaria: We have 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 wasn’t 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 votes as forms of expression of popular sovereignty. However, the procedure would have to be anchored in the Basic Law, although one could actually be guided by the Bavarian Constitution. There would not be more than one or two referendums per legislative period. (Interview: Dirk Walter)
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