Germany's Dual Constitution

Parliamentary Democracy in the Federal Republic

Florian Meinel

• Publisher: Hart Publishing
• Year: 2021
• Print ISBN: 9781509943432
• eBook ISBN: 9781509943401
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book offers a compelling and persuasive framework for understanding the German constitutional system. It argues that it can only be fully understood as a dual structure combining two layers with little in common. The first layer is the basic administrative institutional structure, comprised of federal institutions. The second layer is that of parliamentary democracy. It is the interplay between the two, as mediated by the chancellery, the major political parties and the Federal Constitutional Court, which lies at the heart of the German constitutional arrangement. This innovative hybrid perspective allows for a better understanding of the current challenges of parliamentary government and its potential long-term development. An updated translation of its impactful German edition, this provides one of the most brilliant introductions to governmental systems of one of the world's most influential states.

1

Introduction: The Two Crises of Parliamentary Government

The establishment of a far-right opposition party in the German national parliament marks both a watershed and the end of the great transformation the German postwar constitution has undergone since the country’s reunification. For more than six decades, as long as the shared memory of defeat and reconstruction was passed on from the founding generation to its children, the Bundestag had known only a loyal opposition. Meanwhile the political polarisation of German society has reached the centre of the political system. A vociferous opposition to the existing order is expressing itself in attempts to destroy the moral and political code of the Federal Republic, while the defenders of the status quo believe that the constitution can be defended by invoking its ‘values’. Both sides hold fiercely opposing views on the true constitution. Friends of the constitution pitted against its enemies, democrats against anti-democrats, insiders against outsiders, elites against populists, the institutions against those who scorn them, the upholders of democracy against the rule of elites. And yet, amid this challenge to its constitutional beliefs, the country seems to remain true to its own self in one respect: each and every one is the enemy of the constitution in the eyes of the other.

From the outset, the Federal Republic did not attach its notion of ‘constitutional patriotism’ (Verfassungspatriotismus), this idea of a civic compensation for the lack of a republican identity, to its political institutions and the rules of the political process. Constitutional patriotism is a matter of ideals, high-level constitutional principles and basic rights understood as material truths.¹ As the constitutional lawyer Christoph Möllers has recently put it, high-ranking ‘principles’ in German constitutional law

substitute for the lack of effective political traditions. Where the American constitutional debates, French republicanism or English parliamentarianism serve less as a consensual basis than as a foil against which disputes take place, the prehistory of the Basic Law cannot offer the same.²

The political inclination to the absolute, however, brings with it two opposing dangers. When every opponent is framed as an enemy of the constitution, there is great difficulty to put a name to the constitution’s actual enemy and resolutely to combat him as such. Yet another danger lies in the strategy of all too readily disqualifying unwelcome opponents as ‘enemies of the constitution’ and thus evading the awkward task of confronting them politically. As a result, the realm of political possibility keeps on shrinking, narrowing down to a simple alternative of loyalty or disloyalty. Any willingness to political and institutional change is lost, and the well-meaning defenders of policies with supposedly ‘no alternative’ themselves act as protagonists of what the ancient historian Christian Meier has called ‘a crisis without an alternative’,³ accelerating the crisis much against their will.

Over the last decade the diagnosis of a crisis of liberal democracy has become an unquestioned commonplace of political and constitutional theory, while at the same time the concept of democracy serves as a somewhat vague and unspecific device of polemic. In public debates, not only in Germany, ‘democracy’ often figures as something that could once be taken for granted and was associated with high turnouts, moderate and broadly based parties, an efficient welfare state, measured statecraft, the West, journalistic objectivity in the mass media, and the absence of Facebook and Twitter. Yet to recall a sense of political stability that has come to seem unfathomable, though it belongs to times only just past, is no substitute for political analysis. As the Greek word ‘crisis’ signifies the turning point in a disease, it seems fitting to examine the patient’s state, his constitution, rather than to lament too much about the way of life that brought about the depression. The crisis of democracy without a reasonable alternative is a global phenomenon, but its manifestations, driving forces and development logics differ in each particular polity. What are the constitutional peculiarities of democracy in Germany? To what extent does the German model of parliamentary democracy differ from other comparable models? In what direction is it developing? What are its political strengths and weaknesses, and where do its vulnerabilities lie?

Democracy first and foremost is a set of political institutions that guarantee political freedom by submitting the exercise of political power to authorisation and control of the people. Its core therefore comprises the rules that spell out the meaning of representation by defining and intertwining parliaments, parties, government and the administration. Traditionally preoccupied with basic rights and judicial review, German constitutional law and theory has too often taken most of that for granted. To glance today at a standard textbook of German constitutional law is to behold the image of a coherent, self-contained constitutional framework: reasonable gradations of democratic legitimacy embodied by the Bundestag and Bundesregierung, federalism based on the principle of subsidiarity, embeddedness in the supranational federation of the European Union, comprehensive and sophisticated protection of basic rights, the rule of law; the institutional safeguard provided by the Federal Constitutional Court as the ‘guardian of the constitution’. No mention is made of the internal contradictions of the constitutional system, of the unpredictably rapid changes to which it might be subject, of returning ghosts of times past, of niggling doubts whether the constitution suits a society so different from the one of the old Federal Republic – no mention, in brief, of the forces slowly eating away at the institutional foundations of parliamentary democracy in Germany. Yet these forces are what this book is about. It asks how Germany is governed today and how it can expect to be governed in the future.

I.Brexit and the Europeanisation of Westminster Parliamentarianism

Parliamentary politics in the What makes the German case special in the world of parliamentary democracies? Federal Republic is operating under constant critical scrutiny by a constitutional court and shows strong features of bureaucratic autonomy in a complex federal system. This makes its current transformation interesting for anyone interested in the contemporary crisis of representative democracy. But the German case is also interesting because in many respects it represents a radically different type of parliamentary democracy compared to the United Kingdom, where it has been undergoing a profound transformation during the last decades, too. Political science and constitutional thought have long treated continental and Westminster-style parliamentarism as two different institutional models connected only by their name. Perhaps that was wrong. Perhaps critical developments of parliamentary government in Britain and on the continent are more closely connected than they appear at first glance. Perhaps one aspect of the crisis of the British constitution is that it is taking on continental features. This is a remarkable development in every respect.

The English role-model of parliamentary government contributed much to the political ideals of German liberals throughout the nineteenth and twentieth centuries. From the early admirers of Edmund Burke’s defence of the Westminster institutions to Max Weber’s outline of Germany’s interwar constitution and constitutional theorists of the Federal Republic such as Wilhelm Hennis: responsible government, a two-party system and the respective set of constitutional conventions represented the desired opposite of both the German tradition of bureaucratic autonomy and the dangers of revolutionary mass democracy. It was not by chance that the first systematic analysis of British parliamentary procedure was written by an Austro-German liberal lawyer.⁴ But the adoption of this model failed or remained patchwork. German parliamentary democracy has always been and still is different.

Like Montesquieu, who famously misinterpreted eighteenth-century British parliamentary government to model his theory of a mixed constitution, German fascination with British parliamentary democracy has not always been free of prejudices or clichés. The most recent example is the German public’s imagination of the Brexit process as a foolish rebellion of irrationality. This view of the British struggle for EU withdrawal was formed by the Leave campaign and the result of the referendum, but even more by the agony of the House of Commons under Theresa May’s government after the UK Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union⁵ and the events surrounding Boris Johnson’s prorogation of Parliament and R (Miller) v The Prime Minister.⁶ How could this admired institution of British statecraft fail to present a workable solution? German debates on the British constitutional crisis were touchingly idealistic. Not a word about the fact that withdrawal was an option provided for in the Lisbon Treaty –something that German constitutional theory, too, at the time of the drafting had strongly advocated for reasons of democratic legitimacy. German observers also tended to ignore that the Tories had won a parliamentary majority in 2017 with their promise ‘no deal is better than a bad deal’. It was Johnson who at least publicly took the stand on this election promise, while Theresa May, who was bid farewell on the continent with a heavy heart after her resignation, had herself pushed the rift between her and her party when she took this option off the table after the election. Most of all, German commentators did not want to understand why Brexit wasn’t stopped by a non-partisan coalition of the reasonable and why the courts couldn’t stop the madness. Why could there not have been better integration of Scottish and Irish regional interests? When the UK Supreme Court eventually declared the prorogation unconstitutional, it was unanimously celebrated by German and European constitutional scholars as a victory of parliamentarianism. But was it? The intervention of a constitutional court may have been cheered also because it met European expectations. In short, anyone following the German debate had to reach the conclusion that everything could have turned out for the better if Britain were to become more like the Federal Republic: with a multi-party system, parliamentary election of the head of government, the option of grand coalitions for exceptional challenges, federalism and powerful constitutional review.

The continental democracies may have been overlooking that the Brexit drama highlighted the accelerating assimilation of Westminster parliamentary democracy to its continental type. The admired institutions of liberal statecraft were in fact becoming more like their counterparts in countries such as Italy, the Netherlands or Germany. The British constitutional crisis of 2017–19 may not have been solely about Brexit. It was also a conflict between the traditions of the English constitution and the standard type of constitutionalism established worldwide, defined by the separation of powers, fundamental rights and constitutional review. In its breakaway from the European Union, the British constitution ironically seemed to be becoming more European.

The modern notion of parliamentary government in the United Kingdom was based not on the separation of powers, but on a prime ministerial government accountable to parliament and its constant public control by the opposition. Political authority was concentrated in the prime minister as head of government, party and parliamentary leadership in one. Walter Bagehot had famously situated political authority under the British constitution in a ‘fusion of legislative and executive power’.⁷ The institutional separation between legislative and executive power does exist as a distinction between parliament and government, but it is overshadowed by the political antagonism between government and opposition, which has never existed in such sharpness in continental parliamentarism.

The assimilation of British parliamentary government dates back to the 1990s, when the Labour government introduced certain elements of European constitutionalism. In 1998, the Human Rights Act created binding basic rights that also restrict parliamentary sovereignty.⁸ The devolution of Scotland, Northern Ireland and Wales later introduced a kind of asymmetric federalism, the Constitutional Reform Act of 2005 established a Constitutional Court, the UK Supreme Court, which is no longer part of Parliament. It is certainly no coincidence that these institutions have played a major role in the Brexit crisis. In 2017, the Supreme Court bound the government to parliamentary approval of its Brexit policy, thus separating the government’s basis of confidence in the House from the House’s approval of certain major issues. The Scottish National Party, too, was a force of resistance against Brexit, not least because devolution greatly accelerated the crisis of the British party system and majority representation. Since British quasi-federalism makes it less hazardous to send representatives of regional parties to Westminster, a considerable number of seats are no longer allocated to the two major parties, which makes one-party governments structurally less likely. After the Second World War, only the elections of 2010 and 2017 resulted in a hung parliament (with the minor exception of 1974, when a hung parliament only lasted half a year). If there were only negative majorities in the House of Commons from referendum day to the general election of December 2019, this was ostensibly related to the political question as such, but at the same time to a deep-seated dysfunction in the formation of majorities in parliament. The plebiscitary representation of the referendum only made this dysfunction particularly visible: A huge majority of Labour constituencies notoriously voted ‘Leave’.

A second element of continental constitutionalism changed the British constitution in 2011, not coincidentally pushed for by David Cameron’s coalition government with the Liberal Democrats. The Fixed-term Parliaments Act (FTPA) addressed the very centre of parliamentary government. It was only the Brexit crisis that fully revealed its institutional consequences. Ever since the modern type of prime ministerial government emerged when the party leader successfully reclaimed the right to the premiership at the turn of the nineteenth and twentieth centuries, the basis of prime ministerial power was control over his parliamentary party. His most important instrument to keep together centripetal factions within the party was the right to dissolve Parliament and call new elections at any time. This gave the head of government the power to ensure that the major policies pursued by his government and the majority in Parliament are consistent with the electorate. Albert Venn Dicey in his classical analysis of parliamentary government under modern mass democracy, conceived the free dissolvability of Parliament as the flipside of its outstanding consti...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Note on the Citation of Case Law
• 1. Introduction: The Two Crises of Parliamentary Government
• 2. The Two Worlds of German Constitutionalism
• 3. Transformations of Parliamentary Government in Germany Since World War I
• 4. What is the Bundestag? Political Representation in a Working Legislature
• 5. The Crisis of the Mediating Institutions
• 6. Potentials and Weaknesses of Parliamentary Control
• 7. The Future of Parliamentarianism and the German Constitution
• Index
• Copyright Page