What are laws based on


1. History of origin

Generally valid laws were introduced in the German states during the time of the Enlightenment. This was intended to overcome arbitrariness in the exercise of power and to enforce uniform principles throughout the → national territory. With the constitutions that most of the German states passed between 1810 (Sachsen-Weimar) and 1851 (Prussia), the participation of parliaments in legislation (Gg) was established. In doing so, it was possible to tie in with the older corporate budget law. In 1871 the Reichstag, which cooperated with the Federal Council and the monarch, was given corresponding legislative rights.

2. Institutional responsibilities

According to Art. 70 GG the → federal states are responsible for the Gg. Responsible wherever this is not explicitly assigned to the federal government. In reality, however, the emphasis of the Gg. At the federal level, the federal states have only been able to maintain their legislative autonomy in the areas of culture and media, police, municipal and state institutions. In the education sector, it has been complete since 2006; federal framework legislation has been abolished. The new additional responsibilities for areas such as shop closing time, restaurants, leisure noise and home law are of little importance. At the same time, formalized coordination between the states remains necessary, for example in the conference of ministers of education, so that the legislative competence of the → state parliaments is in fact limited. In most countries there is the possibility of a referendum on laws, but very limited compared to Switzerland (no financial regulations, high quorums).

In most areas of life, the federal government has the exclusive or the competing Gg. to. He made extensive use of these responsibilities, to which the centralized → political culture in Germany makes a decisive contribution. With the doctrine of "legislative competence by virtue of the nature of the matter" and "by virtue of factual context", federal competence has been expanded even further (Bundestag printed matter V / 4002: 8; Schindler 1999: 2322).

Federal legislation is either exercised jointly by the → Bundestag and the → Bundesrat (laws requiring approval) or under the responsibility of the Bundestag with the participation of the Bundesrat (laws not requiring approval). The demarcation between the two areas is extremely complex. The 2006 federalism reform was intended to reduce the requirement for approval and to decouple federal and state politics. It has not succeeded to the extent that proponents of the reform predicted. In 1949-1983 an average of 50.7% of the laws were subject to approval, 1983-1987 60.6%, 1987-2002 57.0%, 2002-2005 51.0%, 2005-2009 41.8% and in the current legislative period up to as of August 17, 2011 41.3%. Tactical considerations have often led to the fact that laws have been split up into a part requiring approval and a part not requiring approval. The high points in the rejection of important laws by the Federal Council resulted from different majorities in the two houses. The number of laws finally rejected by the Federal Council was, however, low at 183 of a total of 6,458 laws (2.8%). This suggests the pronounced ability to compromise between the two houses, which often allows solutions in the → mediation committee, even with different majorities.

According to the experience of 1933, the → Basic Law places value on controls and counterweights. The constitutionality of laws can be checked before the → Federal Constitutional Court (norm review). Since its inception, the → opposition, federal states, → courts and individual citizens have called on it again and again. At times the Federal Constitutional Court has gone beyond the control and has provided the parliament with creative legal standards or proposals that are included in the Gg. have flowed in. Examples are the rulings on abortion, → data protection and the "principle of division" in taxation. The coordination of the law ("virtual unit" - Beyme 1997: 55) has increasingly shifted to the BVerfG. Nevertheless, the Bundestag has rightly been called "perhaps the most powerful legislative chamber in Europe" (Aberbach et al. 1981: 231). It should be noted in this context that the strong position of the BVerfG only comes about due to the political tension between the government and opposition factions. The state constitutional courts play a corresponding role, albeit less visible to the public.

Other controls and restrictions provided for in the Basic Law have acquired little or no significance. This applies to the → Federal Government's ability to raise objections to laws that have a financial impact (Art. 113) as well as to the Finance Minister's possibilities to object. The "legislative emergency" provided for in Art. 81, which should arise in the event of a quorum in parliament, has never been applied either. In contrast to the Reichstag during the Weimar period, the Bundestag has always been a functional and, despite all party-political harshness, a collegial working parliament. The → Emergency Constitution passed in 1968, with which Gg. can be transferred to a small "joint committee", despite all the excitement, has become irrelevant.

3. Procedures and Interests

Laws are mostly introduced by the federal government (1994-1998 71.2%, 2005-2009 59.3%), which the → ministerial bureaucracy uses for this purpose. Further bills are initiated by the parliamentary groups (2005-2009 29.2%). Major changes have taken place between the various electoral terms, mainly due to the number of opposition factions. The number of Federal Council drafts has also risen; it was 11.5% in 2005-2009. In political practice, in the last few decades there has been an informalization when introducing laws (Lehmbruch 2000). In cases of urgency, the coalition factions also introduce laws that have been drawn up with the help of the ministerial bureaucracy. In recent years, bills, especially in the financial sector, have repeatedly been drafted by external law firms, which directly gives private interests a problematic influence on government actions. With attempts to "rule through" (Merkel), large legislative packages are brought through the Bundestag for short-term tactical considerations, which has a negative impact on the quality of advice and thus the quality of the law. Bundestag President Lammert has repeatedly criticized this, but was unable to assert himself against the power of the Chancellor's democracy.

While the share of unanimously passed laws from the first electoral term (1949-1953) to the seventh electoral term (1972-1976) rose continuously from 19.3% to 72.9%, it has since decreased and was only 17 in 1987-1990 , 3%. According to Schindler's categorization (1999: 2396), not a single major law was passed unanimously during this period. This has to do with the entry of the Greens and later the PDS into the Bundestag, who tried to make a name for themselves in the opposition. In 2005-2009, 21.6% of the laws were passed unanimously.

At the beginning of the legislative process there is usually a draft bill in the responsible ministry. This is followed by the coordination within the ministry, with other ministries and the Federal Chancellery, the hearing of the relevant associations, the cabinet submission and resolution, the consultation in the Federal Council. The draft is then introduced to the Bundestag, which transfers it to the responsible committees after the first reading. This is followed by the reports of the committees, the second and third readings and, if necessary, the Federal Council and, in the event of controversial resolutions, the mediation committee. A federal law is then signed by the responsible ministers, the → Federal Chancellor and finally the → Federal President, while a state law is signed by the minister and the prime minister. It is a matter of dispute to what extent the Federal President has the right to review the signing because of the constitutionality. After careful consideration, the Federal Presidents made use of this right in a few cases.

From the outset, → interest groups are generally involved in the formulation of legislative proposals; this goes back to pre- and early constitutional conditions (Loewenberg 1969: 342). Traditionally, the cooperation between the Ministry of Economic Affairs and the Ministry of Agriculture and the relevant associations has been particularly close. According to the rules of procedure of the federal government, which can be traced back to Wilhelmine models, only central organizations are consulted, which gives them a kind of monopoly. The corresponding parliamentary committees are also colored by associations and are therefore endowed with interest-based expertise. The organized party and association structure in Germany tends to give preference to centrally organized groups. In the USA, on the other hand, with its system geared more towards the individual MPs, local and personal interests are more emphasized.

Source: Andersen, Uwe / Wichard Woyke (ed.): Concise dictionary of the political system of the Federal Republic of Germany. 7th, updated Aufl. Heidelberg: Springer VS 2013. Author of the article: Dietrich Thränhardt