Federalism and the Lander Autonomy

The Higher Education Policy Network in the Federal Republic of Germany, 1948-1998

Cesare Onestini

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9780415933599
• eBook ISBN:
  9781317849551
• Topic: Education
• Subtopic: Education General

An interesting study of the German higher Education system, examining the development of higher education policies from the post-war years, to the post-unification period.

Part I
FEDERALISM AND HOCHSCHULPOLITIK IN THE FRG

Part I will review definitions and analyses of federalism concerning the Federal Republic of Germany and will show how federalism affects policy-making in varying degrees according to which policy area is considered.

The following chapters will propose an approach to understanding German federalism based on investigations of specific policy areas and of policy stages: the analysis of higher education policy-making in the Federal Republic of Germany will be introduced as an example of how federalism can be understood from policy analysis.

Moreover, definitions relating to higher education and to policy actors will be discussed in chapter 2. Such definitions will allow an appreciation of the role of the Länder in the re-establishment of higher education policy-making after 1945 as well as of the limits of Länder’s ability to keep control of the higher education policy community.

Chapter 1
German Federalism

A Policy-area Approach

How can federalism¹ be defined and how can German federalism be characterised? The considerable wealth of opinions and discussions surrounding these two questions bears witness to the lack of agreed definitions and, at the same time, to the continuing interest in academic and political discourse in trying to capture the essential features of the German system of governance.

The present chapter will review the concept of federalism and its applications to the Federal Republic of Germany, and will propose a framework for the analysis of German federalism based on an investigation of the evolution of the allocation of competence between Federal government and Länder in one policy-area over a long period of time.

1. FEDERALISM IN GERMANY

Federalism can be seen as a principle according to which the organisation of a state is structured on more than one level of governance, with a corresponding division of competences and resources between them, and comprising rules and arrangements for co-operation and autonomy through the legal and political definition of the relations of each level to the others.² Existing federal systems display great variation and have emerged as a result of very different, and at times contradictory objectives: so, while federalism is often misrepresented in current debates over the European Union as a synonym for centralisation, in the case of the Bonn Republic, as we shall see below, federalism was introduced in the Basic Law with the explicit aim of the allied occupation powers to foster a decentralised reconstruction of the German state.

Federalism in Germany has a long history and tradition. It can be said that, with the exception of the unitary and centralised period of the Nazi dictatorship, Germany has been characterised and defined by federal models of state organisation. In the words of Otto Kimminich, federalism can be seen as ‘Germany’s fate’—‘deutsches Schicksal’.³

This long tradition, however, does not mean that there was consensus at any time over the precise formulation of the division of competences and resources. Federalism does imply a territorially decentralised government structure but it remains difficult to find a standard definition for such a division of power.

In the literature, federalism is often defined as a method of dividing powers so that the general and regional governments are ‘each, within a sphere, co-ordinate and independent’.⁴ According to this definition, the Federal Republic of Germany would not be classified as a truly federal state, because the powers given to the Federal government in the exclusive list and potentially in the concurrent list cover almost all subjects of importance. Wheare’s concludes that ‘it is fairly clear that Germany has a “quasi-federal” Constitution’.⁵

Other scholars have no doubts on the federal nature of the Bonn republic. Läufer puts forward a broader definition of a federal system and takes the Federal Republic of Germany as a clear example of a federal state.⁶ Similarly, Finer proposes a wide interpretation of the notion of federalism allowing for any number of variations in the actual arrangements underpinning any one system.⁷ Most scholars would today agree that the German polity is an example of federal government.⁸

Rather than focusing on abstract definitions of federalism it seems therefore more useful to consider federalism as an historically determined concept, taking on different meanings, roles and functions according to the historical situation it refers to. In this last sense, there can be no doubt that federalism was the explicit framework used for the recreation of the (West) German state after 1945.⁹

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Apart from concern with general definitions of federalism, various studies have drawn attention to the peculiarity of the German federal system, especially to the division of tasks between the Federal government and the Länder. In such accounts, the specificity that sets Germany apart from other federal systems is the fact that competence is not divided exclusively by policy areas but also by the role of the Federal government and the Länder in the allocation of tasks within each policy area.¹⁰ In order to understand how this ‘particular’ set of arrangements was introduced, the historical context that shaped the recreation of the German state after 1945 has to be borne in mind.

According to the prescriptions of the Frankfurt Document, issued by the Western occupation powers and calling for a German constitution, the new Germany had to choose a ‘government system of the federal type’. This prescription could hardly be seen as an imposition, given that all German political parties had already expressed their rejection of a centralised form of government and their preference for a federal solution, albeit maintaining a relatively important role for the Bund.

The newly reconstituted Länder had also already started co-operation in order to put forward proposals for a federal system with a strong position for the Länder, in 1948, the Minister-Presidents, led by Bavaria, produced a first set of constitutional proposals to be submitted to the Parliamentary Council.¹¹ Debate within the Parliamentary Council focused on the need for, and the role of, the Bundesrat, the second chamber through which the Länder would represent and safeguard their interests at the Federal level.¹²

As a result of the need to compromise between the specific demands of the allied occupation powers, those of the Länder, and those of the political parties assembled in the Parliamentary Council, the Basic Law—passed in 1949 as the foundation of the new Federal Republic of Germany—contained the principles for more or less clearly defined domains of competence for the Federal government and the Länder respectively. On the whole, the federal system envisaged in the Basic Law is based on provisions which require co-operation and close relationships among various levels of government. The Basic Law says little specifically about this relationship but it lays down an allocation of competences, on the basis of which a number of relations had to develop through common agreement and through reference to the Federal Constitutional Court. As a result, there is no single working relationship between Bund and Länder, but a ‘multi-faceted network’ of such relationships, ‘both formal and informal, bilateral and multilateral, individual and collective’.¹³

The central aspect of this network of relationships is that the bulk of legislation is enacted at the Federal level, while the Länder are primarily responsible for administration, even in the field of federal legislation, but can exercise suspensive or veto powers on federal legislation affecting their interests through voting in the Bundesrat.¹⁴ The institutional repercussions of such a division of competence can best be seen through the panoply of specialised committees which characterise intra-federal relations in Germany. According to an estimate produced by the Land North-Rhine-Westphalia, in 1989 there were more than 330 Bund-Länder Commissions and about 130 Länder’s committees.¹⁵ A brief look at the main provisions relating to federalism contained in the Basic Law will illustra...

Table of contents

• Cover
• Title
• Copyright
• Contents
• PREFACE
• PART I. FEDERALISM AND HOCHSCHULPOLITIK IN THE FRG
• PART II. THE HIGHER EDUCATION POLICY COMMUNITY, 1948–1969
• PART III. SEGMENTED FEDERALISM AND HOCHSCHULPOLITIK
• PART IV. UNIFICATION, FEDERALISM AND INTRICATE INTERDEPENDENCE
• LIST OF INTERVIEWS
• ABBREVIATIONS
• BIBLIOGRAPHY
• INDEX