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Law and Politics in Germany
Abstract
German politics are still influenced by the tradition of legalism. Constitutional provisions often serve as criteria of political argument, and constitutional principles (e.g. the ‘social state’) and basic rights may be portrayed as programmatic‘commandments’justifying specific political demands.
The corollary is a propensity towards judicial, and thus ‘authoritative’, solutions to political disputes. The post-war establishment of the Federal Constitutional Court with comprehensive constitutional jurisdiction and easy access for the political actors has subjected major political issues to legal adjudication. Increasingly appeal to the Court has become a weapon of opposition, resorted to by the Christian Democrats to challenge such measures as the Basic Treaty with East Germany and the Abortion Reform.
Despite general self-restraint vis-à-vis the political authorities, the Court has sometimes construed basic rights expansively as‘participatory’rights to positive government action. Recently it has been criticised for‘conservatism’and a tendency to restrict future legislative discretion.
The ‘politicization of justice’, emerging from the judicialization of politics, could affect respect for the Court as authoritative arbiter. But it may foster a healthier relationship between politics and the law.
This paper explores the problems which are involved in the interpretation of the character of West German politics. Its politics is at once coherent in composing a pattern and preserving a continuity of identity because it is focused upon a particular and traditional idea of political rule, the state; and incoherent as this idea is interpreted to support contrasting views about the proper scope of politicization and depoliticization in the context of different and changing conceptions of interest and need. One such incoherence is between theories which underpin the depoliticized character of the Bundesbank and theories which support party “penetration” of German public institutions. These theories are an interesting indication of how the opportunities and problems which are posed by politicization have been perceived in society and illuminate the standards with reference to which politicization is evaluated.
The paper's conclusions are:
(1) The idea of the state provides a political language which is flexible enough to encompass a variety of views. At the same time it provides a frame which lends some coherence to German politics and is not to be dismissed as rhetorical decoration. The state is constitutive of political activity.
(2) Neither an individual theory of the state nor even the concept itself can offer more than a partial portrayal of German politics, of the complex mixture of normative and utilitarian considerations which enter into political calculation. Adoption of one or the other of these views has authoritarian implications and does not illuminate the political practice of the Federal Republic.
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