【11月11日】Prof.Dr. Hans-Jörg Dietsche:Basic structural decisions of theGerman Basic Law (Grundgesetz) and their significance for the state order andsocial order of the Federal Republic of Germany
发布时间: 2019-10-30 浏览次数: 25

上外法学院“区域与国别法”讲座系列

 

题目: Basic structural decisions of theGerman Basic Law (Grundgesetz) and their significance for the state order andsocial order of the Federal Republic of Germany

报告人:Prof.Dr. Hans-Jörg Dietsche

   Referent im Justiziariat der CDU/CSU-Bundestagsfraktion

             德国基民盟/基社盟议会党团法务专家

时间:1111日(周一)14:00 -15:30

地点:虹口校区国际会议中心第二报告厅

内容简介:

The first part of the lecture is devoted to thegenesis of the Basic Law and the significance of the two - democratic -predecessor constitutions of 1919 and 1849 for this purpose, which also largelyexplains the basic structure of the Basic Law chosen in 1949. First, thestructure of the German state and its organs is presented, which is more openin the Basic Law than the system of government has developed rapidly (see thegradual shifts in emphasis towards cooperative/unitarian federalism orchancellor democracy). Starting from the observation that, incontrast to the Weimar Constitution from 1919, there are no provisions on an economicand social constitution, this current view of the Basic Law as a conciseworking order of the federal state is abandoned and, on the basisof the catalogue of fundamental rights, its novelty is shown as apreamble to the entire constitutional and legal order of Germany.This now also reveals the human and social image from which the Basic Lawproceeds. In addition, the economic and social constitution of the Basic Law,i.e. the social market economy and its design, also results from this. Thisanchoring of the social market economy above all in the catalogue offundamental rights is briefly compared with the theses of attempts atinterpretation inspired by Soviet Communism in the relevant articles onfundamental rights.

In the next section, the numerous amendments to theBasic Law over the period of 70 years are examined and classified against therespective socio-political background (e.g. several constitutional reformstowards more or less unitarian federalism, etc.). The result of these differentconstitutional amendments is a partial rejection of regulatory structuraldecisions for the Basic Law of 1949 and an increased tendency to establishpolitical compromises between the political parties in the constitution on theone hand and to charge the Basic Law with program sentences (which weredeliberately dispensed with in 1949) on the other hand.

At least this is followed by a final outlook: Sincethe increasing overload of technical legal details on the one hand, andpolitical program or target clauses on the other, is making the Basic Law andeven the catalogue of fundamental rights increasingly incomprehensible, thistendency of constitutional development stands in the way of a role for theBasic Law as a document that creates identity. The model of constitutionalpatriotism presupposes that the constitution can continue to be read andunderstood by all citizens and not just by experts if they are to be able toidentify with it. This is an essential reason for the continued broadest socialacceptance of the Basic Law and thus for the legitimacy of our entireconstitutional order. As a counter-example, reference is made here to theWeimar Constitution, which ultimately lost its legitimacy in the eyes of themajority of the people due to a lack of success - i.e. due to a lack of realsignificance of its numerous postulated guarantees for the individualcitizen. 

语言:英语